This Agreement governs the purchase and delivery of the Chart Talk software as a service (“SaaS”), and only applies to Chart Talk and Chart Talk Billing Services.

DEFINITIONS

In this Agreement, the following terms shall have the meaning set forth below:

“Backup” means a direct copy, at a moment in time, of the Customer Data as used by the Software.

“Mighty Oak” means Mighty Oak Technology, Inc., a Minnesota corporation.

“Chart Talk Billing Service” means the billing service provided by Mighty Oak.

“CollectionTerm” means the 90-day period
following a month of Chart Talk Billing Services, during which payments to Customer determine fees Customer is obligated to pay Mighty Oak.

“Customer” means the person, or single legal entity, having the legal name and address
identified in the first paragraph of this Agreement.

“Customer Data”
means the electronic data and information (i) collected by the Customer and uploaded to the Software and (ii) collected, processed and generated by the Software from the Customer’s use of the Software, excluding the Software application and the Software’s dependent or required software.

“Documentation” means any documents, print materials, or electronic files or information created by Mighty Oak that describe the Software or teach proper use of the Software.

“Downtime” means the duration of time the Customer attempts, through no fault of the Customer’s own connectivity to the service, to use the service and the Software is not accessible for one of the following reasons (i) the Host Server or Software is not accepting any incoming HTTPS requests, (ii) all Users receive an error message that the Software is not available or a more generic HTTPS error where the Host Server cannot be found, or (iii) the duration of all HTTPS requests are slowed to such an unreasonable level and so severely impacted that no User can reasonably continue to work.

“First Line Support” means an internal process of the Customer that provides direct support and assistance for the Software to the Customer’s own Users.

“Host Server” means the physical computer or computers that the Software operates on and on which Customer Data or Backups< are stored.

“Intellectual Property Rights” means any patent, copyright, trademark, service mark (any other application or egistration respecting the foregoing), database right, trade secret, know-how and/or other present or future intellectual property right of any type, wherever in the world possible.

“Malicious Code” means code, files, scripts, agents or programs intended to do harm, including, for example, viruses, worms, time bombs and Trojan horses.

“Provider” means a User who can appear on the provider schedule in the Software.

“Service Term” means the duration of time for which the Customer has purchased the Services and which is more fully defined in paragraph 2.2 of this Agreement.

“Services” means providing access to, and use of, the Software, including data storage, specifically to Customer pursuant to this Agreement.

“Software” means specifically the Chart Talk software together with any optional functionality (e.g. billing services), as more specifically described in the Chart Talk sales proposal.

“Support Contact” means a person(s) the Customer designates to act as a liaison between the Customer and Mighty Oak for support services provided under this Agreement.

“Support Notifications” means a general or public announcement from Mighty Oak to Customer concerning matters related to the Software.

“User” means any employee or agent of Customer who is authorized to access the Software, including a Provider.

2. SOFTWARE SERVICES

Mighty Oak hereby grants to the Customer a non-exclusive, revocable, non-transferable and limited right to use and have access to the Software, subject to the terms and conditions of this Agreement. Mighty Oak will provide the Customer a single URL (accessible only through HTTPS) to access the Software through the Services. The Software is provided solely as a service and the Customer is not provided with any license rights in, or any other right to, the Software under this
Agreement. Mighty Oak has no obligation of any kind whatsoever in providing the Customer with any other right in and to the Software except as expressly permitted in this Agreement.
The Services provided under this Agreement, including the optional Chart Talk Billing Service, are provided on a subscription basis. The Service Term shall be ongoing on a month-to-month basis, subject to either the Customer’s continuous payment of the monthly subscription fees (which may increase from time to time), or until the Customer provides 30 days written notice to end the Service Term, whichever occurs earlier. Chart Talk Billing Service is subject to the Collection Term, at the end of which, Customer will be charged the appropriate fee, as further described in the Chart Talk sales proposal.
Use of the Software through the Service is subject to a Provider limit where a limited number of Providers may be authorized to use the Software. The maximum number of Providers shall be defined as the total sum of Providers purchased by the Customer for any specific Service Term which will be specified in the Chart Talk sales proposal (Sales Agreement). Each User will have unique log-on credentials for the Software, and must only access and use the Software with that User’s unique log-on credentials. Mighty Oak reserves the right to monitor the activity of any User accessing the Software.
The Customer may, at any time during the Service Term, increase the Provider limit described in paragraph 2.3 above by submitting a written request to Mighty Oak for such new Provider limit where Mighty Oak shall apply new fees (and support fees if permitted under any support agreement), which will be applicable as of the effective date
of the increase to the User limit.
The Customer may reduce the Provider limit described in paragraph 2.3 above, by providing a written
request to Mighty Oak.
As part of the Services, Mighty Oak will notify the Customer of any updates made to the Software. Any updates to the Software will be performed with the server maintenance as defined in paragraph 5.1 of this Agreement. Mighty Oak reserves the right to automatically apply security updates, without prior notice, where such security updates address known vulnerabilities and do not impose significant new user functionality in the Software.
Mighty Oak reserves the right to suspend any Services under this Agreement without providing any credit or refund to Customer where:
- the Customer has not paid for the Services; or
- the Customer is in breach of any terms of this Agreement.
Mighty Oak reserves the right to modify the terms of this Agreement, upon 30 days written notice to Customer. Customer will have an
opportunity to review and accept any modifications to this Agreement. If Customer fails to accept the modifications to this Agreement, Mighty Oak reserves the right to terminate Customer’s access to the Software and the Services at the end of the Service Term.

3. PERMITTED USE AND RESTRICTIONS

The Customer is permitted to make such copies of the Documentation to adequately provide to Users and shall not modify, adapt, translate or create derivative works based on the Documentation, in whole or in part, without the prior written consent of Mighty Oak where such work is made publicly available.
The Customer isstrictly prohibited from taking any action, or implementing any technology, where the intent or effect is to circumvent, directly or indirectly, the Provider limit defined in paragraph 2.3 above.
Use of the Software is for the Customer’s internal purposes and only as permitted pursuant to this Agreement, and shall not be used in any unlawful manner whatsoever.
The Customer shall not assign, sublet or transfer any rights granted herein. This Agreement is not transferrable in the sale of a portion or all of Customer’s business or assets.
The Customer shall not rent, lease, transfer, assign, distribute, sell or otherwise provide access to the Software in whole or in part, on a temporary or permanent basis, except as otherwise expressly permitted by this Agreement. The Customer shall not grant any further licenses, sublicenses, or other rights in the Software. The Customer will not purport to be an authorized reseller, licensor, distributor, or provider of the Software to any third-party or other organization.
The Customer is strictly prohibited from (i) using the Services to store or transmit infringing, libelous, or otherwise unlawful or tortious material, (ii) using the Services to store or transmit material in violation of third-party privacy rights, (iii) using the Services to store or transmit Malicious Code, (iv) accessing the Services in order to build a competitive product or service, or (v) any attempt to reverse engineer the Software.

4. CUSTOMER ACKNOWLEDGEMENTS

1. The Customer acknowledges and agrees that the Software requires specific third-party web browsers to function in accordance with the Documentation (herein “Supported Browsers”). Certain web browsers or older versions of a web browser may not be compatible or have reduced functionality. As web browsers play an integral part of the overall security and functionality of the Software and the provision of the Services, Mighty Oak continuously updates the inclusion and exclusion of Supported Browsers. Mighty Oak is under no obligation to support any web browser other than the Supported Browsers. Any use by the Customer of a web browser other than a Supported Browser shall immediately release Mighty Oak of any warranties or liability with such use.
2. The Customer acknowledges that the Software includes certain optional functionality that may interface with third-party software or services. To the extent that Customer chooses to use such functionality, the Customer is responsible for: (i) the purchase of, (ii) the ancillary requirements related to, and (iii) the licensing obligations related to the applicable third-party software and services. The Customer’s responsibility to ensure the requirements are met inorder for the Customer to benefit from the specific functionality made available to the Customer. These interfaces include, but are not limited to:
  1. one-way externaldelivery of email messages (which requires a compatible SMTP server); and
  2. a credit card payment interface (which requires a subscription to a predefined list of payment gateways).

It is the Customer’s responsibility to ensure that the requirements are met for specific functionality to be available to the Customer.

The Customer acknowledges that any interface work created by the Customer, or by Customerwith the aid of Mighty Oak, that relies on the specifications or functionality of the Software at a certain point in time, may not be perpetually compatible with the Software in view of future updates, added functionality, and other
changes to the Software. Mighty Oak is under no obligation to ensure that functionality in one (1) version of the Software is available in a subsequent version of the Software.
It is the Customer’s responsibility to obtain any licenses and required consents that pertain to the Customer’s own data or content (such as assessment tools and code sets, and any similar types of data or content) that is accessible by the Software and which data is stored on the Host Server. The Customer warrants that it has all required consents and permissions to use and store the Customer Data through
the Software. Further, Customer assumes sole responsibility for the accuracy of Customer Data, including all data and
information Customer uses related to, or transmits via, Chart Talk Billing Service.
It is assumed that Customer Data is owned by Customer. To the extent that Customer Data is not owned by Customer due to the rules, regulations, or other laws related to the Customer Data, then the Customer warrants and represents that it has all of the required consents and licenses as detailed above in paragraph 4.4 of this
Agreement. Further, Customer agrees to maintain appropriate insurance related to unauthorized access of Customer Data.
The Customer acknowledges and agrees that the Customer’s purchase of the Services is not contingent on the delivery of any future functionality or features, or dependent on any oral or written comments made by Mighty Oak regarding future functionality or features.

5. SERVICE AVAILABILITY

Mighty Oak will, subject to section 5.2 of this Agreement, make the Software, available during the Service Term to the Customer 24 hours a day and 7 days a week (herein “Service Availability”) except for:
1. planned maintenance of Host Servers as further described in paragraph 5.3 below;
2. applying updates or patches as further described in paragraph 5.3 below;
3. any request, by the Customer, to temporarily take the Service offline;
4. any suspension of the Services by Mighty Oak pursuant to paragraph 2.7; and
5. any unavailability caused by circumstances beyond Mighty Oak’s reasonable control, including, for example, an act of God such as a tornado, an earthquake or flood, an act of government, civil unrest, act of terrorism or sabotage, an internet service provider failure or delay, and any issues related to the telephony infrastructure of either Mighty Oak or the Customer (such as fiber optic cables, cable, or telephone wiring).
Mighty Oak will use commercially reasonable efforts to minimize any actual downtime during the Service Availability (wherein any time during which the Customer has access to the Software through the Services is herein “Uptime”).
Mighty Oak may, from time to time, schedule routine maintenance of the Host Server or Software. This maintenance is required to ensure the Host Servers and Software are running in the most optimal and secure manner. Any maintenance will be kept to theminimum amount of time needed. Mighty Oak will notify the Customer not less than 24 hours in advance of any server maintenance. Additionally, Mighty Oak may, as subject to paragraph 2.6 above, apply updates and patches to the Software. The scheduled window to perform any server maintenance and application of Software updates is as follows: Software updates will be performed Sunday through Friday between 1:00am and 4:00am Central Standard Time. Host Server Maintenance will be performed the third Saturday of every other month from 1:00am Central Standard Time until the scheduled maintenance is completed.

6.USE LIMITS AND ADDITIONAL CHARGES

1. The Services provided under this Agreement contain storage limits for the Customer Data (herein “Storage Limit”). The Storage Limit is based on the number of Customer databases and is defined as follows:
  10 gigabytes (GB) per Customer
  database. Additional storage will automatically be allocated by Mighty Oak to mitigate any Customer downtime.
2. In the event Customer Data exceeds the Storage Limit, the Customer will pay Mighty Oak any overage fees for each block of five (5) gigabytes (GB) in excess of the Storage Limit. For the purposes of calculating the Customer Data storage size, the size of the data is the sum of (i) the database files containing the Customer Data
  (as calculated by the file system), (ii) the unencrypted and uncompressed files
  uploaded to the Software or generated by the use of the Software, and (iii)
  excluding any Backups, data files generated by system logs or logs generated by
  the Software. The storage size of the Customer Data will be assessed on the
  last day of each month during the Service Term and be invoiced as follows:

For each block of five (5) gigabytes (GB) in excess
of Storage Limit

$10 per month

7. SECURITY AND CUSTOMER DATA

Mighty Oak will use commercially reasonable efforts to maintain administrative, physical, and technical safeguards to protect the Customer Data. Safeguards will include, but are not limited to, measures preventing physical or remote access to the Host Server, monitoring of remote access attempts, firewalls and appropriate software for the purposes or providing security, all of which are to be made in Mighty Oak’s sole discretion.
Mighty Oak will use industry standard encryption techniques for any data transmissions by the Host Server. These techniques include, but are not limited to, secure socket layer (SSL), transport layer security (TLS), and secure shell (SSH). Use of this Service by the Customer will be over HTTPS protocol and Mighty Oak will provide the Customer with the required third-party verified SSL certificate.
The Software includes certain optional interfaces with third-party applications or use of external communications such as email or SMS that either does not use any encryption or the data encryption is defined by the third-party interface. Use of these features is at sole discretion and risk of the Customer.
In the event that Mighty Oak becomes aware of a successful unauthorized incident resulting in access, use, disclosure, modification, or destruction of Customer Data, Mighty Oak shall notify the Customer’s Support Contact as soon as practicable, but within no more than 72 hours following discovery. This notification will include (i) the identification of the records that have been or are reasonably believed to have been accessed in the incident, (ii) the date of discovery, and (iii) a general description of the nature of the incident. An incident will be considered discovered by Mighty Oak as of the first day on which such incident is known to Mighty Oak or, by exercising commercially reasonable diligence, would have been known to Mighty Oak.
Mighty Oak will, at all times, physically store the Customer Data and any Backups in the United States. At no point will Mighty Oak transfer, electronically or physically, the Customer Data or any Backups to another country. Mighty Oak cannot warrant in which countries any data is routed through over the internet in the normal course of carrying out the obligations under this Agreement. Mighty Oak may, at any time, without consent and without notice, move the Customer Data to a new location provided that the new location is within the United States.
Mighty Oak will ensure Customer Data is backed up each day. Each Backup will be stored, and subject to paragraph 7.4 above, in at least two (2) separate hosting facilities to ensure redundancy. The backup will occur only once each day (or for no more than a 36-hour period). Mighty Oak will retain no less than seven (7) Backups at any one time which will be for the last seven (7) previous days of the Customer Data. Mighty Oak does not provide any warranty on the time of day for when the Backup will occur and Customer accepts all risks associated therewith.

8. TECHNICAL SUPPORT

1. Mighty Oak will provide the technical support services to the Customer with all necessary care and skill and be performed or attended by, a suitably trained, skilled and experienced personnel that would be consistent with industry standards.
2. Mighty Oak will provide technical support for issues covering configuration and use of Software provided that:
  1. the Software is accessible by Customer via the Services, and the issues do not pertain to Customer’s hardware or connectivity; and
  2. the Software is being accessed by a Supported Browser.
3. Mighty Oak may, at its sole discretion, provide technical support services where the conditions of paragraph 8.2 are not met. Any technical support services provided under this paragraph are performed as a courtesy to the Customer and shall in no way create an implied or written waiver of the conditions of paragraph 8.2, or create any obligations relating to further support requests.
4. The Customer is required to establish and maintain a First Line Support for the Software directly to the Customer’s Users. First Line Support shall include but is not limited to:
  1. a direct response to the Users with respect to inquiries concerning the performance, functionality or operation of the Software;
  2. a direct response to the Users with respect to problems or issues with the Software;
  3. a diagnosis of the problem or issue of the Software; and
  4. a resolution of problems or issues of the Software.

If after reasonable commercial efforts the Customer is unable to diagnose or resolve the issue of the Software, the Customer may contact Mighty Oak for technical support as directed by Mighty Oak.

Technical support is solely for the Software, as defined in paragraph 8.2, and does not cover such matters relating to help material readily available to the Customer, or an end-to-end support solution for the Customer’s connection to the Software. Specifically,Mighty Oak technical support does not include issues such as:
1. an explanation of features or abilities that can be found in the Documentation, the help materials or other forms of documentation provided by Mighty Oak;
2. training on features, changes or use of the Software;
3. issues with connectivity to the Software such the Customer’s own network, firewall, routing, and proxy server;
4. issues with the operating system, browser, or any third-party software;
5. issues relating to data import or export; or
6. professional services related to the use of the Software including, but not limited to, business and deployment consultation.

9.SUPPORT AVAILABILITY AND RESPONSE TIME

Mighty Oak will provide support services to the Customer as post on the website found at: https://charttalk.cloud/chart-talk-support/ . Telephone
support is available Monday through Friday, 9:00am – 4:00pm Central Standard Time. Customer may report issues or request support services via email 24 hours a day, 7 days a week. Mighty Oak reserves the right to adjust support services hours from time to time as necessary; however, changes will not affect response time commitments as<
outlined in paragraph 9.2 below.
Mighty Oak will use commercially reasonable efforts to respond to each technical support request based on the severity of the support request. Mighty Oak cannot guarantee any resolution time nor the outcome of any resolution of a support request. Any support request will understandably be important to the User’s immediate task at hand. Mighty Oak strives to ensure all support requests from Mighty Oak’s Users are treated fairly and timely with respect to their severity.

10.TECHNICAL CONTACTS

The Customer’s Support Contacts are the sole liaisons between the Customer and Mighty Oak. Any Support Contacts must have, at a minimum, initial basic understanding of the Software, a baseline understanding of the environment the Software is deployed in, and, as needed, supplemental training appropriate for the specific role. The Customer is responsible for assigning and communicating to Mighty Oak any changes to the Support Contacts. The Customer is permitted to change the Support Contacts from time to time.
Mighty Oak will provide a Customer Support Contact email address, such as support@charttalk.cloud. Any support
request must be submitted via the Customer Support Contact email address, unless otherwise provided for in the Chart Talk sales proposal. Only Customer’s Primary Support Contact(s) may submit support requests. Mighty Oak may, in its sole discretion, utilize remote desktop software in responding to support requests.
The Customer acknowledges that the Support Contacts may receive news and other general announcements from Mighty Oak concerning the matters related to this Agreement. This correspondence is optional, however, opting out of such communications may adversely impact or impair Mighty Oak’s ability to meet its obligations under this Agreement.

11. ADDITIONAL PRODUCTS AND SERVICES

Mighty Oak will make Documentation available to the Customer that describes the Software and how to properly use the Software. This Documentation may come in various media forms and may be periodically updated.
Customer will be assigned a Chart Talk trainer, as well as an onboarding specialist, and can take advantage of up to three (3) scheduled one-on-one training and configuration sessions. Customer’s Users may also access and engage with the online learning systems provided by Mighty Oak.
Mighty Oak provides no warranty of any kind, and has no obligation to support, any other products or services listed in Chart Talk sales proposal, or otherwise provided to Customer, except the Software and Services. Customer should direct all inquiries to the appropriate
manufacturer of any hardware or software products other than the Software and
Services.

12. OWNERSHIP AND INTELLECTUAL PROPERTY

The Software is the proprietary property of Mighty Oak. Mighty Oak shall at all times retain the right, title and interest, including all copyrights and Intellectual Property Rights, in and to the Software including all upgrades. Mighty Oak expressly reserves all rights with respect to the Software not expressly granted by this Agreement. The Customer shall acquire no right in or title to the Software other than the rights to use and access the Software and the rights in the Documentation as specifically set out herein. The Software is protected by United States copyright laws and other intellectual property laws and treaties.
The Customer
shall not modify, adapt, translate, reverse engineer, decompile, disassemble,
or create derivative works based on the Software, in whole or in part, nor
modify, adapt, translate, or create derivative works based on the
Documentation, in whole or in part, without the prior written consent of Mighty Oak.
The Customer agrees not to alter, remove, deface, cover, or otherwise obscure any copyright, trademark, patent, or other proprietary rights, notices, and any other markings Mighty Oak may have placed in or on any copy of the Software, Documentation or the media on which the Software are supplied, in order that Mighty Oak’s proprietary rights thereto shall be protected.

13.DISCLAIMER OF WARRANTY

Mighty Oak warrants that the Software is capable of materially performing in accordance with the Documentation. This warranty period shall apply for ninety (90) days after the effective date of this Agreement. Mighty Oak does not warrant the operation of the Software will be uninterrupted or error free.
Customer’s only rights in association with a breach of the warranty provided in paragraph 13.1 above is for Mighty Oak to correct such breach within thirty (30) days of being provided with notice of such breach of warranty, or such additional time as may be required given the nature of the breach.
The Software and related Services are a tool for the use by qualified professionals and are not intended to provide a diagnosis or to replace qualified professional’s judgment in assessing and treating patients. The Software and Services are not meant to replace the Customer’s general protocols and other redundancies that are required when the Software or Services are unavailable for any reason; the Software and the Services are not meant to be the sole source for the information and services provided by the Software and Services.
OTHER THAN AS PROVIDED IN THIS AGREEMENT AND TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAWS, MIGHTY OAK MAKES NO WARRANTY OR CONDITION OF ANY KIND, EITHER EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, WITH RESPECT TO THE SOFTWARE OR SERVICES PROVIDED PURSUANT TO THIS AGREEMENT, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OR CONDITIONS OR MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. SOME JURISDICTIONS DO NOT ALLOW LIMITATIONS ON DURATION OF AN IMPLIED WARRANTY, SO THE ABOVE LIMITATION MAY NOT APPLY TO THE CUSTOMER.
NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY MIGHTY OAK, ITS DEALERS, DISTRIBUTORS, AGENTS OR EMPLOYEES (COLLECTIVELY, “AGENTS”) SHALL CREATE A WARRANTY OR IN ANY WAY INCREASE THE SCOPE OF THIS WARRANTY. THE CUSTOMER ASSUMES THE ENTIRE RISK AS TO THE USE AND PERFORMANCE OF THE SOFTWARE OR SERVICES AND THE APPLICATION OF THE DOCUMENTATION IN TERMS OF CORRECTNESS, ACCURACY, RELIABILITY, CURRENTNESS, OR OTHERWISE. TO THE EXTENT PERMITTED BY APPLICABLE LAW, BOTH PARTIES EXPRESSLY WAIVE THE APPLICABILITY OF THE UNIFORM COMMERCIAL CODE AND ANY OTHER STATUTORY COMMERCIAL TERMS.

14.LIMITATION OF LIABILITY

IN NO EVENT SHALL MIGHTY OAK AND ITS AGENTS BE LIABLE TO THE CUSTOMER OR ANY OTHER PERSON OR ENTITY FOR ANY INDIRECT DAMAGES, SPECIAL DAMAGES, CONSEQUENTIAL DAMAGES, OR INCIDENTAL DAMAGES, LOSS OF REVENUES OR PROFITS, BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION, DATA LOSS, AND THE LIKE, ARISING OUT OF THE USE OR INABILITY TO EITHER USE OR ACCESS THE SOFTWARE (OR SERVICES) OR DOCUMENTATION EVEN IF MIGHTY OAK OR ITS AGENTS HAVE BEEN ADVISED OF THE POSSIBILITY OR SUCH DAMAGES OR CLAIM.
IN NO EVENT SHALL MIGHTY OAK’S AGGREGATE LIABILITY EXCEED THE SUBSCRIPTION FEES PAID BY THE ORGANIZATION DURING THE TWELVE (12) MONTH PERIOD DIRECTLY PRECEDING THE DATE ON WHICH SUCH LIABILITY AROSE FOR THE SERVICES RELATED TO THE SOFTWARE PROVIDED UNDER THIS AGREEMENT.
THE LIMITATIONS OF LIABILITY STATED IN THIS SECTION SHALL APPLY WHETHER OR NOT THE ALLEGED BREACH OR DEFAULT IS A BREACH OF A FUNDAMENTAL CONDITION OR TERM AGREEMENT.
THE LIMITATIONS OF LIABILITY STATED IN THIS SECTION SHALL APPLY REGARDLESS OF THE FORM THAT THE CAUSE OF ACTION TAKES, INCLUDING FOR BREACH OF CONTRACT, RESCISSION OF CONTRACT, TORT, NEGLIGENCE, OR UNDER ANY EQUITABLE DOCTRINE.
EACH SUBSECTION ABOVE IS AN INDEPENDENT LIMITATION OF LIABILITY. TO THE EXTENT THAT ANY SUCH LIMITATION OF LIABILITY DOES NOT APPLY DUE TO A STATUTORY PROVISION, THE OTHER SUBSECTIONS SHALL CONTINUE TO BE IN FORCE DESPITE THE INAPPLICABILITY OF THE OTHER SUBSECTION.
IN NO EVENT SHALL MIGHTY OAK BE LIABLE, IN ANY WAY, FOR THE DELETION OF THE CUSTOMER DATA UNDER PARAGRAPH 15.2 OF THIS AGREEMENT. IT IS SOLEY THE CUSTOMER’S RESPONSIBILITY TO REQUEST THE CUSTOMER DATA AND VERIFY THE ACCURACY OF THE CUSTOMER DATA PRIOR TO THE DELETION OF THE CUSTOMER DATA UNDER PARAGRAPH 15.1 OF THIS AGREEMENT.

15. CUSTOMER DATA

Mighty Oak will, upon written request, export the Customer Data for an additional fee. Customer must provide Mighty Oak a written request, a minimum of 30 days prior to the end of the Service Term. Upon receipt of such request, Mighty Oak shall provide instructions to the Customer on how to receive the Customer Data.Customer should refrain from creating any new Customer Data after making the request to Mighty Oak. It is the sole and absolute responsibility of the Customer upon receipt of the Customer Data to verify that the data is not corrupt, is free of defects and is accessible. The Customer is required to notify Mighty Oak of any defects within two (2) days of the Customer’s receipt of the Customer Data. Mighty Oak is under no obligation to notify the Customer concerning the return of the Customer Data. At the end of the Service Term, Mighty< Oak is permitted to delete all Customer Data in its possession. Customer hereby gives its consent for Mighty Oak to delete all Customer Data as of the last day of the Service Term.
AT NO POINT WILLL MIGHTY OAK RETAIN THE CUSTOMER DATA BEYOND THE END OF THE SERVICE TERM. MIGHTY OAK WILL HAVE NO OBLIGATION TO MAINTAIN OR PROVIDE THE CUSTOMER DATA, AND WILL THEREAFTER DELETE OR DESTROY ALL COPIES OF THE CUSTOMER DATA IN HOST SERVERS OR OTHERWISE IN MIGHTY OAK’S POSSESSION OR CONTROL, UNLESS PROHIBITED BY APPLICABLE LAW.
The Customer Data returned in paragraph 15.1 will be in a form at the discretion of Mighty Oak, which, as of the date of this Agreement, is in form of a Microsoft Excel workbook. Mighty Oak is under no obligations to provide the Customer alternate views, simplified data structures, amalgamated data or otherwise alterations to the data itself.
Prior to the expiration of the Service Term, Customer may export its own Customer Data at no additional cost, by using the reporting functionality of the Software.

16. INDEMNIFICATION

Customer shall indemnify, defend and hold Mighty Oak and its affiliates, owners, directors, officers, employees, contractors, agents, vendors, and partners (collectively “Indemnitees”) harmless from and against any and all claims, losses, liabilities, damages, costs and expenses, including without limitation, attorneys’ fees, to which such Indemnitees may be subject to that arise out of: (i) any misrepresentation or breach of this Agreement by Customer, or (ii) Customer’s use of the Software or Services.

17.TERM AND TERMINATION

Mighty Oak will provide the Customer with the Services for the Service Term, as further specified in the Customer’s Chart Talk sales proposal. Once the Service Term is terminated or expires, Mighty Oak has no obligation to provide the Software or Services, and Mighty Oak is relieved of all obligations under this Agreement. A final Collection Term will run following the end of the Service Term for Chart Talk Billing Service.
During the Service Term, the Services provided under this Agreement can only be terminated pursuant to the following terms:
1. Mighty Oak has the right to terminate the Services provided hereunder upon the occurrence of any breach of the terms of this Agreement which includes but is not limited to: (i)failure of the Customer to pay all or any part of the fees, and (ii) a violation by the Customer of any of the restrictions or conditions listed in Sections 2, 3 and 4 of this Agreement.
2. Without waiving, removing, limiting or restricting any legal or equitable right and remedy otherwise available to Mighty Oak attendant upon such a breach, Mighty Oak shall have the right and option to terminate the Services provided under this Agreement by providing written notice to the Customer of such termination. Upon receipt of such notice, the Customer shall immediately cease using the Software
  through the Services, and shall return the Documentation and any and all copies thereof to Mighty Oak within ten (10) days of receipt of such notice from Mighty Oak.
3. Customer shall have the right to terminate the Services provided for under this Agreement where Mighty Oak is in breach of this Agreement and fails to cure such breach within thirty (30) days. Customer must provide Mighty Oak with written notice of the alleged breach in sufficient detail to permit Mighty Oak to easily ascertain its obligations in remedying the breach and in determining whether or not Mighty Oak is in breach of the terms in this Agreement.
Mighty Oak is permitted to block Customer’s access to the Software upon the effective date of termination of this Agreement or the expiration of this Agreement.
All fees paid are non-refundable. Mighty Oak shall, under
no circumstances, be obligated to refund any amount paid by the Customer for any reason, including termination of this Agreement for a breach of the terms of this Agreement.

18. GENERAL PROVISIONS

Non-Exclusive Service. Customer acknowledges the Software and Services are provided on a non-exclusive basis. Nothing shall be deemed to prevent or restrict Mighty Oak’s ability to provide the SaaS Services or other technology, including any features or functionality first developed for Customer, to other parties.
Mighty Oak Data Privacy Obligations. In providing the Services, Mighty Oak will comply with any applicable Business Associate Agreement, as well as the Mighty Oak Privacy Policy, which is available at https://charttalk.cloud/chart-talk-support/. The Mighty Oak Services Privacy Policy is subject to change at Mighty Oak’s discretion; however, Mighty Oak policy changes will not result in a material reduction in the level of protection provided for Customer Data during the period for which fees for the services have been paid. The services policies referenced in this Agreement specify our respective responsibilities for maintaining the security of Customer Data in connection with the Services. Mighty Oak will only process Customer Data in a manner that is reasonably necessary to provide Software and Services and only for that purpose. Customer agrees to provide any notices and obtain any consent related to Mighty Oak’s use of the data for provisioning the Services, including those related to the collection, use, processing, transfer and disclosure of personal information. Customer shall have sole responsibility for the accuracy, quality, integrity, legality, reliability, appropriateness and retains ownership of all of Customer Data.
Assignment. Customer may not assign this Agreement or any right under this Agreement, without Mighty Oak’s written consent. Mighty Oak may assign this Agreement to an acquirer of all or substantially all of Mighty Oak’s business, whether by merger, asset sale or otherwise. This Agreement shall be binding upon and inure to the benefit of the parties’ successors and permitted assigns. Either party may employ subcontractors in performing its duties under this Agreement, provided, however, that such party shall not be relieved of any obligation under this Agreement.
Notices. Except as otherwise permitted in this Agreement, notices under this Agreement shall be in writing and shall be deemed to have been given (a) five (5) business days after mailing if sent by registered or certified U.S. mail, (b) when transmitted if sent by email or facsimile, or (c) when delivered if delivered personally or sent by express courier service. All notices shall be sent to the other party at the address set forth on the cover page of this Agreement.
Force Majeure. Each party will be excused from performance for any period during which, and to the extent that, such party or any subcontractor is prevented from performing any obligation or Service, in whole or in part, as a result of causes beyond its reasonable control, and without its fault or negligence, including without limitation, acts of God, strikes, lockouts, riots, acts of terrorism or war, epidemics, communication line failures, and power failures.
Waiver. No waiver shall be effective unless it is in writing and signed by the waiving party. The waiver by either party of any breach of this Agreement shall not constitute a waiver of any other or subsequent breach.
Severability. If any term of this Agreement is held to be invalid or unenforceable, that term shall be reformed to achieve as nearly as possible the same effect as the original term, and the remainder of this Agreement shall remain in full force.
Entire Agreement. This Agreement (including all Exhibits), and any applicable Business Associate Agreement, contain the entire agreement of the parties and supersedes all previous oral and written communications by the parties, concerning the subject matter of this Agreement.
Survival. Sections 12, 13, and 14 of this Agreement shall survive the expiration ort ermination of this agreement for any reason.
Publicity. Mighty Oak may include Customer’s name and logo in its customer lists and on its website. Upon signing, Mighty Oak may issue a high-level press release announcing the relationship and the manner in which Customer will use the Mighty Oak solution.
Export Regulations. Export laws and regulations of the United States and any other relevant local export laws and regulations apply to the Services. Customer agrees that such export control laws govern its use of the Services (including technical data) and any services deliverables provided under this Agreement, and Customer agrees to comply with all such export laws and regulations. Customer agrees that no data, information, software programs or materials resulting from services (or direct product thereof) will be exported, directly
or indirectly, in violation of these laws.
No Third-Party Beneficiaries. This Agreement is an agreement between the parties, and confers no rights upon either party’s employees, agents, contractors, partners of customers or upon any other person or entity.
Independent Contractor. The parties have the status of independent contractors, and nothing in this Agreement nor the conduct of the parties will be deemed to place the parties in any other relationship. Except as provided in this Agreement, neither party shall be responsible for the acts or omissions of the other party or the other party’s personnel.
Statistical Information. Mighty Oak may anonymously compile statistical information related to the performance of the Software and Services for purposes of improving the Software, Services, and customer experience, provided that such information does not identify Customer Data or include Customer’s name.
Governing Law. This Agreement shall be governed by the laws of the State of Minnesota, excluding its conflict of law principles. Any legal claims arising from this Agreement shall be brought in courts located in Hennepin County, Minnesota. The parties hereby submit to the jurisdiction of said courts.
Compliance with Laws. Customer shall comply with all applicable local, state, national and foreign laws in connection with its use of the Software and Services, including those laws related to data privacy, international communications, and the transmission of technical or personal data.
Dispute Resolution. Customer’s satisfaction is an important objective to Mighty Oak in performing its obligations under this Agreement. Except with respect to intellectual property rights, if a dispute arises between the parties relating to the interpretation or performance of this Agreement or the grounds for the termination hereof, the parties agree to hold a meeting within fifteen (15) days of written request by either party, attended by individuals with decision-making authority, regarding the dispute, to attempt in good faith to negotiate a resolution of the dispute prior to pursuing other available remedies.
If, within 15 days after such meeting, the parties have not succeeded in resolving the dispute, either party may protect its interests by any lawful means available to it.

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