ELECTRONIC PRESCRIPTIONS FOR CONTROLLED SUBSTANCES MODULE ADDENDUM

This Electronic Prescriptions for Controlled Substances Module Addendum (this “Addendum”) is attached to and made a part of that certain master license agreement (the “License Agreement”) by and between Modernizing Medicine, Inc., a Delaware corporation (“Modernizing Medicine”), and the medical practice that has entered into this Addendum (“Medical Practice”) and is subject to the terms and conditions contained in the License Agreement. Medical Practice has indicated its consent to this Addendum electronically through Modernizing Medicine’s website and confirms such consent by its continued use of the EPCS Module (as defined below). This Addendum is effective as of the date of such original consent by Medical Practice (the “Addendum Effective Date”). For purposes of this Addendum, the “EPCS Module” means the software module offered by Modernizing Medicine for use with Modernizing Medicine’s EMA^TM electronic medical record software products (the “EMA Software”) that enables Authorized Physicians (as defined below) from Medical Practice to electronically prescribe controlled substances through the EMA Software and which is designated by Modernizing Medicine as the EPCS Module. For purposes of the License Agreement, the EPCS Module shall be deemed part of the Software. The “Territory” means the United States of America. Capitalized terms used in this Addendum that are not otherwise defined herein shall have the meanings set forth in the License Agreement.

     The following provisions are hereby incorporated into the License Agreement:

A. License. Subject to the terms and conditions of the License Agreement (as supplemented by this Addendum), Modernizing Medicine hereby grants to Medical Practice a revocable, non-exclusive, nontransferable and limited (as provided in this Addendum) license for its Authorized Physicians to use the EPCS Module in the Territory for its internal business purposes only (the “EPCS Module License”). Medical Practice has no right to sublicense or distribute the EPCS Module.

B. Authorized Physicians. For purposes of this Addendum, “Authorized Physician” means any Physician of Medical Practice that has been identified by the Medical Practice, through the appropriate portal provided on Modernizing Medicine’s website or through such other means as permitted by Modernizing Medicine, as authorized to use the EPCS Module. Medical Practice agrees that no Authorized Physician shall use the EPCS Module unless such Authorized Physician is (i) authorized by Modernizing Medicine to use the EMA Software pursuant to the License Agreement, (ii) legally permitted to prescribe through the EPCS Module and (iii) properly registered with Symantec Corporation (“Symantec”) or such other third party identity proofing organization specified by Modernizing Medicine. Medical Practice may add additional Authorized Physicians through the appropriate portal provided on Modernizing Medicine’s website or through such other means as permitted by Modernizing Medicine subject to the terms and conditions of this Addendum. Medical Practice may not decrease the number of Authorized Physicians except as otherwise permitted by Modernizing Medicine in Modernizing Medicine’s sole discretion. Notwithstanding anything to the contrary, Modernizing Medicine may suspend, limit, condition, terminate or cancel Medical Practice’s or any Authorized Physician’s use of the EPCS Module in Modernizing Medicine’s sole discretion.

C. Registration of Authorized Physicians. Each Authorized Physician must properly register through the EMA Software and the Norton security website. As part of the two-factor authentication setup requirement for the EPCS Module, each Authorized Physician, at the Authorized Physician’s option, will either (i) be provided by Symantec with a hard security token (“Hard Token”) or (ii) download the Symantec VIP Access app (“Soft Token”, the Hard Token and Soft Token are sometimes referred to generally as a “Token”). In the event that the Authorized Physician elects to receive a Hard Token, Medical Practice shall pay Symantec the then-current fee for such Hard Token and if such Hard Token is lost, damaged or becomes inoperable thereafter, Medical Practice shall pay Symantec the then-current fee for a replacement Hard Token. In the event that the Authorized Physician elects to receive a Soft Token, such Soft Token must be downloaded/stored on a separate device from the computer or device on which the Authorized Physician accesses the EMA Software. Each Authorized Physician is responsible for following such protocols, conditions and guidelines for the use of the EPCS Module as Modernizing Medicine may notify Medical Practice of from time to time.

D. Medical Practice Responsibilities. Medical Practice and each Authorized Physician understand and agree: (a) to retain sole possession of the Token; (b) not to allow any other person to use a Token; (c) that failure to secure the Token may provide a basis for suspension or termination of the EPCS Module License; (d) to notify Modernizing Medicine immediately if: (i) Medical Practice or an Authorized Physician is contacted by a pharmacy because one or more controlled substance prescriptions are displaying the incorrect United States Drug Enforcement Administration (the “DEA”) number; (ii) if Medical Practice or an Authorized Physician discover that one or more controlled substance prescriptions issued using an Authorized Physician DEA number were not consistent with the prescriptions actually signed, or were not signed at all; or (iii) if an Authorized Physician’s Token has been lost or stolen or any other aspect of the authentication protocol has been compromised in any way; (e) that an Authorized Physician is responsible for any controlled substance prescriptions written using his or her authentication credentials and for compliance with all other DEA requirements for controlled substances prescriptions; (f) that an Authorized Physician has the same responsibilities when issuing electronic prescriptions for controlled substances as when issuing paper or oral prescriptions; (g) to prescribe controlled substances only for medically appropriate and legitimate purposes; (h) to review security logs on a daily basis for any security incidents; and (i) to report to the DEA any security incident and provide Modernizing Medicine with a copy of such report. Medical Practice agrees to keep all security incident reports on file for a period of at least six (6) years.

E. EPCS Module Fees; Payment Terms. During the Addendum Term (as defined below), in consideration of the EPCS Module License, Medical Practice shall pay Modernizing Medicine Thirteen Dollars ($13.00) per month per Authorized Physician (the “EPCS Module Fees”). The EPCS Module Fees shall be due in advance beginning on the Addendum Effective Date and on each annual anniversary of the Addendum Effective Date thereafter. The EPCS Module Fees are exclusive of all local, state, federal and foreign taxes, levies, or duties of any nature (“Taxes”), and all payments to Modernizing Medicine are payable in full without reduction for Taxes. Medical Practice is responsible for payment of all Taxes, excluding taxes owed by Modernizing Medicine based on Modernizing Medicine’s income.  If Modernizing Medicine has the legal obligation to pay or collect Taxes for which Medical Practice is responsible pursuant to this Section, the appropriate amount shall be invoiced to and paid by Medical Practice, unless Medical Practice provides Modernizing Medicine with a valid tax exemption certificate authorized by the appropriate taxing authority. The EPCS Module Fees shall be paid via electronic payment pursuant to the License Agreement and the Electronic Payment Authorization Form on file with Modernizing Medicine; provided, however, that if an Electronic Payment Authorization Form is not on file with Modernizing Medicine that would permit the payment of such fees electronically then Medical Practice shall promptly complete, execute and deliver to Modernizing Medicine such Electronic Payment Authorization form as is requested by Modernizing Medicine. The EPCS Module Fee is subject to change at the end of the Initial Term and each Renewal Term with at least thirty (30) days notice from Modernizing Medicine, which notice may be given by the posting of such change on Modernizing Medicine’s website, by email or such other means of notice as Modernizing Medicine may reasonably employ.

F. Term. The term of this Addendum shall begin on the Addendum Effective Date and shall terminate upon the expiration or earlier termination of the License Agreement (the “Addendum Term”); provided, however, that this Addendum shall be terminable by Medical Practice by providing at least ten (10) days prior written notice to Modernizing Medicine and such termination shall be effective on either (i) the last day of the Initial Term, if such notice was provided at least ten (10) days prior to the expiration of the Initial Term, or (ii) the last day of the current Renewal Term. Medical Practice acknowledges and agrees that this Addendum may be terminated by Modernizing Medicine at anytime, for any reason, in Modernizing Medicine’s sole discretion by providing at least ten (10) days prior written notice to Medical Practice. Medical Practice acknowledges and agrees that upon termination of this Addendum neither Medical Practice nor its Authorized Physicians shall have any further right to use the EPCS Module nor shall Medical Practice be entitled to a refund of any portion of the EPCS Module Fees paid prior to such termination date. Termination of this Addendum for any reason shall not affect Modernizing Medicine’s right to recover fees and damages for events occurring before termination.

G. Disclaimers; Limitation of Liability. MODERNIZING MEDICINE DOES NOT MAKE ANY WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE WITH RESPECT TO ANY MATTER CONTEMPLATED BY THIS ADDENDUM, INCLUDING, WITHOUT LIMITATION, THE EPCS MODULE OR THE USE THEREOF. MODERNIZING MEDICINE HEREBY SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING ANY WARRANTY OF NONINFRINGEMENT, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. THE EPCS MODULE IS MADE AVAILABLE ON AN “AS IS” AND “AS AVAILABLE”, “WITH ALL FAULTS” BASIS AND WITHOUT WARRANTIES OR REPRESENTATIONS OF ANY KIND, EITHER EXPRESS OR IMPLIED.

NEITHER MODERNIZING MEDICINE NOR ITS AFFILIATES SHALL BE LIABLE IN ANY WAY FOR LOSS OR DAMAGE OF ANY KIND RESULTING FROM THE USE OR INABILITY TO USE THE EPCS MODULE. MODERNIZING MEDICINE MAKES NO CLAIM OR REPRESENTATION REGARDING, AND EXPRESSLY DISCLAIMS RESPONSIBILITY FOR, THE ACCURACY, QUALITY, OR RELIABILITY OF THE EPCS MODULE OR THE RESULTS OF ITS USE.

MODERNIZING MEDICINE AND ITS AFFILIATES MAKE NO GUARANTIES, REPRESENTATIONS OR WARRANTIES OF ANY KIND REGARDING THE COMPLETENESS OR ACCURACY OF ANY INFORMATION PROVIDED PURSUANT TO THE EPCS MODULE. ANY INFORMATION PROVIDED BY THE EPCS MODULE IS INTENDED AS A SUPPLEMENT TO, AND NOT A SUBSTITUTE FOR, THE KNOWLEDGE, SKILL AND JUDGMENT OF PHYSICIANS OR OTHER HEALTHCARE PROFESSIONALS IN PATIENT CARE. THE ABSENCE OF A WARNING FOR A GIVEN DRUG OR DRUG COMBINATION OR OTHER TREATMENT SHOULD NOT BE CONSTRUED TO INDICATE THAT THE DRUG OR DRUG COMBINATION OR OTHER TREATMENT IS SAFE, APPROPRIATE OR EFFECTIVE IN ANY GIVEN PATIENT. MODERNIZING MEDICINE IS NOT A HEALTH PLAN, HEALTH CARE PROVIDER OR PRESCRIBER. MODERNIZING MEDICINE DISCLAIMS LIABILITY FOR ANY DAMAGES OF ANY NATURE WHATSOEVER, DIRECTLY OR INDIRECTLY, RESULTING FROM MEDICAL PRACTICE’S USE OF OR RELIANCE ON ANY INFORMATION PROVIDED BY THE EPCS MODULE OR OTHERWISE RELATING TO THE SUBJECT MATTER OF THIS ADDENDUM.

IN NO EVENT SHALL MODERNIZING MEDICINE’S AND ITS PRESENT AND FORMER SUBSIDIARIES’, AFFILIATES’, DIRECTORS’, OFFICERS’, EMPLOYEES’, AND AGENTS’ AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THE EPCS MODULE OR THE USE THEREOF, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE) OR UNDER ANY OTHER THEORY OF LIABILITY, EXCEED THE EPCS MODULE FEES ACTUALLY PAID BY THE MEDICAL PRACTICE TO MODERNIZING MEDICINE UNDER THIS ADDENDUM DURING THE ONE (1) YEAR PERIOD IMMEDIATELY PRECEDING THE DATE THE CAUSE OF ACTION AROSE.

IN NO EVENT SHALL MODERNIZING MEDICINE OR ITS PRESENT OR FORMER SUBSIDIARIES, AFFILIATES, DIRECTORS, OFFICERS, EMPLOYEES OR AGENTS BE LIABLE FOR ANY DAMAGES, WHETHER DIRECT, INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY OR OTHERWISE, INCLUDING, BUT NOT LIMITED TO, LOSS OF REVENUES, LOSS OF PROFITS, LOSS OF DATA, LOSS OF USE, BUSINESS INTERRUPTION, OR COST OF COVER, EVEN IF MODERNIZING MEDICINE OR ITS PRESENT OR FORMER SUBSIDIARIES, AFFILIATES, DIRECTORS, OFFICERS, EMPLOYEES OR AGENTS HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. 

THE LIMITATIONS OR EXCLUSIONS OF WARRANTIES, REMEDIES, OR LIABILITY CONTAINED IN THIS ADDENDUM APPLY TO MEDICAL PRACTICE TO THE FULLEST EXTENT SUCH LIMITATIONS OR EXCLUSIONS ARE PERMITTED UNDER THE LAWS OF THE JURISDICTION IN WHICH MEDICAL PRACTICE AND ITS AUTHORIZED PHYSICIANS ARE LOCATED.

H. Indemnification. Medical Practice shall indemnify and hold harmless Modernizing Medicine and Modernizing Medicine’s affiliates and Modernizing Medicine and Modernizing Medicine’s affiliates’ respective officers, directors, employees and agents, from and against any and all damages, liabilities, penalties, interest, fines, losses, costs and expenses (including attorneys’ fees and expenses), which arise from any claim or allegation arising, directly or indirectly, out of or relating to the subject matter of this Addendum, including, without limitation, the use or operation of the EPCS Module.

I. Intellectual Property Ownership. The EPCS Module and the related technology, software, hardware, products, processes, algorithms, user interfaces, website content, visual interfaces, interactive features, graphics, compilations, computer code, all elements of website, know-how and other trade secrets, techniques, designs, inventions and other tangible or intangible technical material or information (the “EPCS Module IP”) is the proprietary work of Modernizing Medicine and its licensors. Other than as expressly set forth in this Addendum, no license or other rights in the EPCS Module IP covered by intellectual property rights owned or licensed by Modernizing Medicine are granted to Medical Practice or its Authorized Physicians, and all such rights are hereby expressly reserved by Modernizing Medicine. Additionally, and for avoidance of doubt, Modernizing Medicine shall at all times retain sole and exclusive ownership of, or, as applicable, rights as a licensee or sublicensee of, all software and intellectual property rights with respect to the EPCS Module IP. Medical Practice acknowledges and agrees that the EPCS Module IP contains certain licensed materials and Modernizing Medicine’s licensors may independently protect their rights in the event of any violation of this Addendum. Nothing in this Addendum shall be construed to give Medical Practice or its Authorized Physicians any right to inspect, possess, use, or copy the source code or object code used to create or constituting the EPCS Module. Neither Medical Practice nor its Authorized Physicians shall apply any process, technique, or procedure designed to ascertain or derive the source code of the EPCS Module, or attempt to do any of the foregoing. Medical Practice and its Authorized Physicians shall not, nor will they assist or encourage anyone else to: (i) sell, license, distribute, publicly perform or display, transmit, edit, adapt, modify, copy, translate or make derivative works based on the EPCS Module IP; (ii) disassemble, reverse engineer, or decompile any of the EPCS Module IP; or (iii) create Internet “links” to or from the EPCS Module, or “frame” or “mirror” any of Modernizing Medicine’s content which forms part of the EPCS Module. Additionally, Medical Practice and its Authorized Physicians are not entitled to: (i) sell, grant a security interest in or transfer reproductions of the EPCS Module to other parties in any way, nor to rent, lease or license the EPCS Module to others without the prior written consent of Modernizing Medicine; (ii) emulate or redirect the communication protocols used by the EPCS Module; (iii) access the EPCS Module in order to build a competitive product or service, (iv) copy any features, functions or graphics of the EPCS Module or (v) exploit the EPCS Module or any of its parts for any commercial purpose without Modernizing Medicine’s express written consent.

J. Feedback. If Medical Practice or any Authorized Physicians inform Modernizing Medicine of any errors, difficulties or other problems with the EPCS Module, or provide any feedback or make any suggestions as to changes or modifications to the EPCS Module, including beta or other in-development versions of the EPCS Module (collectively, “EPCS Feedback”), then Modernizing Medicine shall own all right, title and interest in that EPCS Feedback. Medical Practice hereby irrevocably assigns and agrees to assign all of its right, title and interest in and to the EPCS Feedback to Modernizing Medicine. To the extent Medical Practice is unable to assign any of its rights in the EPCS Feedback to Modernizing Medicine, Medical Practice hereby grants to Modernizing Medicine a perpetual, irrevocable, worldwide license to sell, offer to sell, make, have made, import, use, disclose, copy, distribute, publicly perform, publicly display, modify, create derivative works of and otherwise fully exploit the EPCS Feedback. The EPCS Feedback shall be treated as Modernizing Medicine’s Confidential Information and Modernizing Medicine shall have the unrestricted right to use and disclose the EPCS Feedback for any purpose.

K. Authorization. Medical Practice represents and warrants that it has the legal power and requisite authority to enter into this Addendum and that this Addendum has been accepted on its behalf by a duly authorized representative of Medical Practice.

L. Waiver and Cumulative Remedies. No failure or delay by either party in exercising any right under this Addendum shall constitute a waiver of that right. Other than as expressly stated herein, the remedies provided herein are in addition to, and not exclusive of, any other remedies of a party at law or in equity.

M. Force Majeure. Modernizing Medicine shall not be liable for failure or delay in performing its obligations hereunder if such failure or delay is due to a force majeure event or other circumstances beyond its reasonable control, including, without limitation, acts of any governmental body, war, cyber war or attack, terrorism, insurrection, sabotage, embargo, fire, flood, tropical storm, earthquake, tornado, hurricane, labor disturbance, interruption of or delay in transportation, unavailability of third-party services, failure of third-party software or services or inability to obtain raw materials, supplies or power used in or equipment needed for provision of the EPCS Module.

N. Amendment. No modification, amendment, or waiver of any provision of this Addendum shall be effective unless in writing and signed by the party against whom the modification, amendment, or waiver is to be asserted.

O. Survival. All terms of the License Agreement shall remain in full force and effect as supplemented hereby. In the event of a conflict between the terms of this Addendum and the License Agreement, the terms of this Addendum shall prevail. Sections F, G, H, I, J, K, L, M, N and O of this Addendum shall survive the expiration or termination of this Addendum.