Software Services Agreement         

This Software Services Agreement, together with the Exhibits hereto (this “Agreement”) is made as of the start date (the “Effective Date”), by and between Open Forest LLC (“Service Provider”) and ____________________ (“Customer”) located at ____________________.

WHEREAS, Service Provider provides innovative software that will be beneficial to the Customer;

WHEREAS, Customer wishes to utilize Service Provider to oversee and manage the use of its software in accordance with the terms of this Agreement to provide its users an innovative and elegant product to improve their overall experience; and

WHEREAS, pursuant to the terms of this Agreement, Service Provider agrees to make the Service available to Customer.

NOW THEREFORE, for good and valuable consideration, the sufficiency of which is hereby acknowledged, the parties agree as follows

1. DEFINITIONS  

1.1. “Customer” means the entity or organization that is purchasing services from Service Provider.

1.2. “Documentation” means instructional and user manuals relating to the Service made available by Service Provider electronically or in written form under this Agreement.

1.3. “Service” means the Service Provider modules provided through certain proprietary software.

1.4. “Successfully Deployed” means that the Service Provider’s service is being used in the course of daily business operations.

2. PRICING, FEES AND PAYMENT   

2.1. Fees. Customer will pay Service Provider the fees as set forth in the attached Pricing Exhibit (which includes the Exhibits hereto). Services will be pre-paid via online payment, unless otherwise agreed in writing. Provider will invoice the Customer and the Customer will pay the Service Provider as agreed herein.  If the parties agree to changes in price or payment terms, the following shall apply:.  

2.1.1 An Amendment to this Agreement is not required.  Agreement in writing and/or continued payment for and use of the service will be considered as consent to the changes in pricing terms.

2.2. Variation. All prices and fees described herein will remain firm for the full pre-paid period from the day the Service is Successfully Deployed. Customer may at any time terminate this Agreement if Customer does not agree to accept price and fee increases.

2.3. Payment, Taxes and Procedures. All fees will be due and payable no later than thirty (30) days after the date of an invoice received from Service Provider. All amounts paid are nonrefundable provided and subject to Service Provider not being in material breach or violation of this Agreement. Customer will pay all fees in U.S. dollars, and payments shall be sent to the address indicated on the invoice, or as otherwise instructed by Service Provider. Service Provider may withhold services or terminate this Agreement if Customer fails to pay after being provided thirty (30) days written notice of such delinquency and provided Service Provider is not in material breach or violation of this Agreement. Prices do not include applicable state and local sales, use and related taxes. Customer shall be responsible for such taxes or will provide proof of tax exemption with first payment.

2.3.1. Late Payments. Service Provider reserves the right to charge interest on any late payments at the lesser of 1.5% per month or the maximum rate permitted by law.

3. SERVICES

3.1. Right to Services.  Service Provider hereby grants Customer a non-exclusive, non-transferrable, limited right to access and use the Services, and a non-exclusive, non-transferrable limited license to use the website and any related software furnished by Service Provider pursuant to this Agreement.  Customer’s right to services is contingent upon full compliance with the terms of this Agreement.  

3.2. Updates and Upgrades. Customer is entitled to have full access to any maintenance updates to the Service that Service Provider may release or provide to its other customers that improves or maintains the stability of the Service (“Updates”) at no cost to Customer. If new features that add new functionality to the Service (“Upgrades”) are offered for sale to Service Provider’s other customers, such features will be offered to Customer at or below the prevailing rate. In the case where Service Provider provides new features to Customer at no charge for testing or trial, the continued availability, performance, or usefulness of such features are not guaranteed or warranted by Service Provider and such features may be revoked at any time.  Customer will be given prior notice of all updates and upgrades except in the situation where emergency changes or repairs are necessary.  In the case of an emergency, Service Provider will give the Customer as much notice as possible, with the understanding that in certain circumstances, no notice may be given.

3.3. Customers will not be entitled for a refund for service downtime related to system updates, upgrades and/or repairs.  Service Provider will, however, provide a free contract extension if the downtime exceeds twenty-four (24) hours.  Downtime of 24-48 hours will result in a contract extension of one (1) day; downtime of 48-72 hours will result in a contract extension of two (2) days.  Downtime of greater than seventy-two (72) hours will result in a calculation of a contract extension consistent with the calculation above.  

3.4. Professional Responsibility.  Customer will be solely responsible for the professional services they and their staff provide.  Service Provider makes no representations concerning the completeness, accuracy or utility of any information the Customer produces or provides in their services to their clients, or concerning the qualifications or competence of the persons providing the services on behalf of the customer.  Service Provider bears no responsibility and will have no liability for the consequences to the Customer or their clients for the Customer’s use or misuse of Service Providers product and/or service.  

3.5.  Purpose of Services.  Service Provider offers online software to healthcare professionals that allows for the treatment of patients remotely.  Service Provider’s website and software gives the Customer access to the tools necessary to conduct Asynchronous telemental health services.

3.6. Support and Training. Service Provider shall provide, if any, support, service and training in accordance with Pricing Exhibit.

3.7. Availability of Service. Service Provider will take commercially reasonable measures to maximize the availability of the Service to Customer. From time to time, the Service will be intentionally unavailable for system maintenance. Service Provider will give Customer prior notice and will attempt to perform such work during off-peak times.

3.8. Interruptions to Service and Credits. Customer shall notify Service Provider of any Service interruptions and Service Provider shall use its best commercial efforts to restore the Service expeditiously. In any month wherein the Service failed to operate for a total of twenty-four (24) hours or more (which time shall exclude reasonably scheduled maintenance), and if such Service interruption is the fault of Service Provider, Customer shall be entitled to a pro-rata credit towards the subsequent invoice, based on the number of affected vehicles and the length of the Service disruption. Service Provider is not responsible for Service interruptions caused by the malfunctioning Customer’s hardware and equipment or problems with communications availability, such as internet connection. Service Provider is not responsible for service problems related to data procured through third-party hardware.

3.9. Customer Responsibilities. The successful operation of the Service is dependent on Customer’s use of proper procedures and systems and input of correct data. Customer agrees that they shall have the sole responsibility for inputting, protecting and backing up the data used in connection with the Service. The Customer is responsible for providing Service Provider with the necessary information to appropriately integrate with the Service and deliver all portions of the contract. Customer is solely responsible for the accuracy and adequacy of the information and data that it furnishes to Service Provider for use with the Service, and Service Provider is not responsible for reductions in Service quality due to Customer action or inaction.

4. WARRANTY AND DISCLAIMER

4.1. Disclaimer. EXCEPT AS EXPRESSLY SET FORTH HEREIN, SERVICE PROVIDER MAKES NO WARRANTIES, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR ANY WARRANTIES ARISING AS A RESULT OF CUSTOMER USAGE IN TRADE OR BY COURSE OF DEALING. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, SUPPLIER MAKES NO REPRESENTATION OR WARRANTY THAT THE SUPPLIER’S SERVICES WILL OPERATE UNINTERRUPTED OR ERROR FREE.

4.2. Customer Acknowledgement. Customer understands and agrees that: (i) the Service is an information tool only and is not a substitute for competent management of Customer’s day to day operations; and (ii) the Service is a tool to assist Customer in the rending of mental health services through an online means.

5. LIABILITY

5.1. Limitation of Liability. Neither party shall be liable for any indirect, special, exemplary, consequential or incidental damages arising out of or in connection with this agreement (including, without limitation, any damages for lost profits or data or business interruption), whether arising from mistakes, omissions, interruptions, deletion of files, errors, defects, delays in operation or transmission, or failure of performance, even if that party has been advised of the possibility of such damages. This limitation upon damages and claims shall apply without regard to whether other provisions of this agreement have been breached or have proven ineffective.

5.2. Compliance with Laws and Payment of Taxes. Each party agrees to:

        5.2.1. Comply with all laws, regulations, and orders relating to this Agreement and any products;

        5.2.2. Pay all applicable taxes, license fees, assessments, and all sales, use, consumption, and all other governmental taxes, charges, fees, fines, or penalties imposed by any government, upon any products; and

        5.2.3. File all necessary declaration and returns required by any governmental authority having jurisdiction.

6. OWNERSHIP, RIGHTS AND INTELLECTUAL PROPERTY                                                  

6.1. Right to Use. Subject to the terms and conditions in this Agreement, Service Provider grants to the Customer and the Customer accepts a non-exclusive, non-transferable, revocable license to access and use the applicable Service Provider software, Documentation, and data in the ordinary course of business and at its place of business.

6.2. General. Customer agrees that Service Provider is the sole and exclusive owner of all rights, title and interest in and to the Service and all improvements, customizations and enhancements thereto. Service Provider reserves and retains all rights not expressly granted to the Customer, including the rights, title and ownership of any related instructions, databases, and technology embedded therein or upon which it is based, and the related patent rights, copyrights, trade secrets, trademarks and all other related intellectual property rights. The terms of this Agreement will govern any software upgrade or update provided by Service Provider that replaces and/or supplements the original Service Provider software unless such update is accompanied by a separate license agreement.

6.3. Ownership. Service Provider warrants and represents it is the rightful owner or licensee of any and all intellectual property utilized in connection with the Service provided under this agreement.

6.4. Restrictions. Customer will not access or use licensed infrastructure in any way not specifically authorized in this Agreement. Prohibited activities include:

        6.4.1. Attempt to reverse compile, disassemble, or otherwise reverse engineer all or any part of the licensed infrastructure or any other means of circumventing the user interface provided by Service Provider.

        6.4.2. Attempt to disassemble, modify, adapt, access, download, copy, translate, add new features, or interfere with licensed infrastructure without the express written consent of Service Provider.

        6.4.3. Remove, alter or obscure any copyright, trademark notice, restrictive legend, or proprietary notice. This license does not grant customers any right to use the trademarks, service marks, or logos of Service Provider or its licensors.

6.5. Inspection Rights. Service Provider shall retain the right to review Customer’s use of all software and services in order to verify Customer’s compliance with licenses granted under this Agreement.

6.6  Service Provider Indemnification.  To the fullest extent provided by law, Service Provider agrees to protect, defend, indemnify and hold harmless Customer from and against any and all claims of whatever nature asserted against, imposed upon or suffered by Customer arising from or related to (a) the breach or alleged breach of this Agreement, including without limitation any warranty, covenant, or representation; (b) any negligent acts, errors, omissions or reckless or intentional wrongful misconduct of Service Provider; (c) any allegation that the Service or Documentation, or any part thereof, infringes, misappropriates or otherwise violates any third party intellectual property right; or (d) the misuse of any of Customer’s intellectual property by Service Provider.

7. TERM AND TERMINATION 

7.1.Term.  The term of this Agreement will be based upon the term for which services have been pre-paid by the Customer.  

Should the Customer fail to pre-pay, Services will be terminated upon the non-payment of the next term due.

7.2. Termination for Breach. In the event that either party believes that the other has materially breached any obligations, other than payment obligations, under this Agreement, such party shall so notify the breaching party in writing. The breaching party shall have thirty (30) days from the receipt of notice to cure the alleged breach and to notify the non-breaching party in writing that cure has been effected. If the breach is not cured within thirty (30) days, the non-breaching party shall have the right to terminate the Agreement without further notice.

7.3. Effect of Termination and Expiration. Upon termination of this Agreement for any reason, Service Provider and the customer shall cooperate in good faith to coordinate the timely discontinuance of all Services agreed to herein.  

7.3.1. Survival. Sections 1, through 10 of this Agreement shall survive any termination of this Agreement.

7.3.2. Payment. In the event of termination of this Agreement for any material breach or non-payment, Customer will pay Service Provider for all services delivered up to and including the date of termination if the Customer has not already done so prior to the date of termination.

8. DISPUTES

8.1. Governing Law. This agreement and any related disputes shall be governed by the laws and courts of Delaware. The United Nations Convention on Contracts for the International Sale of Goods will not apply to this Agreement.

8.2. Dispute Procedure. Except as otherwise provided for in this agreement, any disputes concerning a question of fact arising under or related to this Agreement shall be decided in accordance with the following steps. However, by mutual agreement the matter may be taken immediately to a higher step in the dispute resolution process, or mutually agreed to alternative dispute resolution process or litigation.

        8.2.1. Notice of Dispute. All disputes shall be initiated through a written dispute notice submitted by either party to the other party.

        8.2.2. Negotiation. Both parties to this Agreement shall attempt in good faith to resolve any dispute promptly through negotiation between executives. Within fourteen (14) days of delivery of the dispute notice, the receiving party shall submit to the other party a written response. Within twenty eight (28) days of delivery of the dispute notice, the executives of both parties shall meet at a mutually acceptable time and place to attempt to resolve the dispute. All reasonable requests for information by one party to the other shall be honored.

        8.2.3. Alternative Dispute Resolution. If the parties agree, disputes may be resolved by a mutually-agreed alternative dispute resolution process, including structured negotiations, mediation, or arbitration.

        8.2.4. Court. The parties may agree that the decision of the arbitrator shall not be binding and that either party shall have the right to remedies provided by law.

9. CONFIDENTIALITY

9.1. Care and Protection of Confidential Information. Customer and Service Provider agree, subject to the requirements of law, to protect any confidential information of the other with at least the same degree of care used to protect its own most confidential information. Customer shall grant access to the password-protected portions of the service to their employees only, and not to any third party, without Service Provider’s approval.

Recognizing that the nature of the service in this Agreement is based upon health care and mental health treatment, the Parties hereto acknowledge and agree that all Protected Health Information must be guarded in accordance with the Health Insurance Portability and Accountability Act of 1996, Public Law 104-191 (HIPAA), the Health Information Technology for Economic and Clinical Health Act (HITECH) , Title XIII of Division A and Title IV of Division B of the American Recovery and Reinvestment Act of 2009 (ARRA), Pub. L. No. 111-5 (Feb 17, 2009) and related regulations, the HIPAA Privacy Rule (Privacy Rule), 45 C.F.R. Parts 160 and 164, as amended, 42 U.S.C. § 602(a)(1)(A)(iv), 42 U.S.C. § 139a(a)(7), 35 P.S. § 7607, 42 C.F.R. §§ 431.301-431.302 and other relevant laws.

The Parties hereby agree that Service Provider shall be permitted to use and/or disclose PHI provided by or obtained on behalf of the Customer for the following stated purposes, except as otherwise stated in the Agreement:

To manage the arrangement for and provision of online mental health care and services for (telemental health)  including the use of PHI as appropriate for any service or tool provided to the Customer through the Service Provider’s website and as appropriate pursuant to the Business Associate Agreement executed by the parties.

As required by law or to carry out any legal responsibilities.

In any way consistent with minimum necessary policies and procedures.

In an manner that complies with Subpart E of 45 C.F.R. part 164.

        9.1.1. Definition. “Confidential information” shall include trade secrets, financial information, pricing, proprietary technical information, procedures, algorithms, computer programming techniques and know-how, business information, product samples or prototypes, or any other information that could negatively affect business operations if publicly disclosed.

9.1.2. Definition. “Protected Health Information” or “PHI” means any information transmitted or recorded in any form or medium; (i) that relates to the past, present or future physical or mental condition of an individual; the provision of health care to an individual; or the past, present or future payment for the provision of health care to an individual; or the past, present or future payment for the provision of health care to an individual, and (ii) that identifies the individual or with respect to which there is a reasonable basis to believe the information can be used to identify the individual, and shall have the meaning given to such term under HIPAA, the HITECH Act and related regulations and agency guidance.  PHI also includes any and all information that can be used to identify a current or former applicant or recipient of benefits or services or Covered Entity (or Covered Entity’s contractors/business associates).

9.2. Third Party Confidentiality. Customer and Service Provider agree to require affiliates, subcontractors, partners, and any related third party to comply with the confidentiality provision set forth in this Agreement.

10. NOTICES

Any notice permitted hereunder shall be sufficiently given if delivered in person, or sent by facsimile (with the original sent promptly by ordinary mail), or by registered or certified mail, postage prepaid, or by recognized overnight delivery service, to the address of the applicable party as set forth below, and such notice shall be deemed to have been given when so delivered, sent by facsimile or mailed. By such notice either party may change its address for future notices.

For all notices to Service Provider, Customer shall provide a copy to: Open Forest LLC, 340 S Lemon Ave #6468, Walnut, CA 91789.

For all notices to Customer, Service Provider shall provide a copy to: email address on file.

11. MISCELLANEOUS

11.1. Assignment. This agreement shall be binding on parties and their successors. Neither party shall assign or transfer its rights or obligations under this Agreement without prior written permission of the other party, nor will such assignment will be effective until approved in writing by the other party.

11.2 Severability. If any clause or provision of this Agreement is declared to be invalid or unenforceable by any court of competent jurisdiction, then and in that event the remaining provisions of the agreement shall remain in force.

11.3. Force Majeure. Neither party shall be liable or responsible for any failure or delay in the performance of its obligations due to causes beyond the reasonable control of the party affected, including but not limited to war, sabotage, insurrection, terrorism, riot or other act of civil disobedience, strikes or other labor shortages, act of any government affecting the terms hereof, accident, fire, explosion, flood, hurricane, severe weather or any other event outside human control.

11.4. Complete Agreement. This Agreement, including any Schedules hereto, is the entire agreement between the parties as to the matters hereunder and there are no other contracts, express or implied. In the case of disagreement in the terms and conditions between the Agreement and any of its Schedules, the Agreement shall control, unless otherwise expressly stated in a Schedule. The headings of this Agreement are for convenience only and shall have no effect on the meaning or interpretation of this Agreement.

11.5. Amendment and Waiver. This Agreement may be modified by the publication of the modified terms on the Service Provider’s Website (www.localhost) and will be provided to Customers via electronic means.  Continued pre-payment for services and use of the Services will be considered consent to the modification of the Agreement terms. No delay or omission by either party in exercising any right or remedy under this Agreement or existing at law or equity shall be considered a waiver of such right or remedy. No waiver by either party of any right or remedy whether under this Agreement or otherwise shall be effective unless in writing.

11.6. No Promotion Rights. No public statements concerning the existence or terms of this Agreement will be made or released to any media except with the prior approval of both parties or as required by law.

11.7. Relationship. In making and performing this Agreement, Service Provider and Customer act and shall act at all times as independent contractors and nothing contained in this Agreement shall be construed or implied to create an agency, partnership, joint venture, or employer and employee relationship between Service Provider and Customer

11.8. Non-Protected Data.  In accordance with the applicable laws regarding PHI and any other existing Agreement between the parties, such as a Business Associate Agreement and/or the Service Provider’s Privacy Policy, any non-protected information, including non-identifying or anonymized patient data is not considered PHI and therefore, may be used by the Service Provider in accordance with the Service Provider’s Privacy Policy.

12. ELECTRONIC CONTRACTING

Your use of our Services includes the ability to enter into agreements and/or to make transactions electronically. YOU ACKNOWLEDGE THAT YOUR ELECTRONIC SUBMISSIONS CONSTITUTE YOUR AGREEMENT AND INTENT TO BE BOUND BY SUCH AGREEMENTS AND TRANSACTIONS.  YOUR AGREEMENT AND INTENT TO BE BOUND BY ELECTRONIC SUBMISSIONS APPLIES TO ALL RECORDS RELATING TO ALL TRANSACTIONS YOU ENTER INTO ON THE SERVICES, INCLUDING NOTICES OF CANCELLATION, POLICIES, CONTRACTS, AND APPLICATIONS.