Technology Services Subscription Agreement

Standard Terms and Conditions

I. Definitions

Affiliate” of a Party means, for so long as one of the following relationships is maintained, any corporation or other business entity owned by, owning, or under common ownership with a Party to the TSSA to the extent of more than fifty percent (50%) of the equity (or such lesser percentage that is the maximum allowed to be owned by a foreign corporation in a particular jurisdiction) having the power to vote on or direct the affairs of the entity or any person, firm, partnership, corporation or other entity actually controlled by, controlling or under common control with a Party.
“Agreement” or “TSSA” means the Technology Services Subscription Agreement, including the TSSA BT, the TSSA T&C and the Senior Insight, Inc. EULA and any Exhibits and approved amendments to all such documents.
“Claim” or “Claims” means any disagreement, demand, controversy, dispute, demand, cause of action, litigation or other legal proceeding whatsoever.
”Client” means the individual or entity referenced in the TSSA and includes all that Party’s owners, officers, directors, managers, employees, agents, independent contractors, Affiliates, Managed Communities, and authorized assigns. Any reference to “you” or “your” is a reference to Client. In the event “Client” references multiple Parties, all references to “you,” “your” or “Client” include all such Parties.
“Database Information” or “Client Information” means all information, including Client-owned Intellectual Property that Client provides to Senior Insight, Inc. to perform the Services and/or that information Client inputs into the Senior Insight, Inc. Senior Housing Software platform.
“Derivative Work” has the meaning provided by the U.S. Copyright laws as amended from time to time.
“Documentation” means user manuals, documentation, binders, release notes, installation notes, written utility programs and other written or graphic materials related to Senior Insight, Inc. software and all copies thereof.
“Senior Insight” means Senior Insight, Inc. and includes all that Party’s officers, directors, managers, employees, agents, independent contractors, subcontractors and successors.
“Senior Insight software” means a SaaS and database owned by Senior Insight, Inc., with components that may be licensed to Senior Insight, Inc. by third parties, and licensed to Client regardless of the title/name utilized for such software, including all related Intellectual Property, improvements, Derivative Works, coding and interfaces, and excluding Client Information.
“Intellectual Property” has its commonly understood meaning and includes, without limitation, (i) all ideas reduced to a tangible expression, industrial property, moral rights, discoveries, concepts, work or inventions that are the result of creativity, including, without limitation, patents, trademarks, copyrights, trade dress and Trade Secrets (as defined by Colorado law), whether or not registered or registrable and (ii) confidential and proprietary information and know-how. Without limiting this definition, and by way of example, Senior Insight, Inc.’s Intellectual Property includes Licensed Software, Senior Insight, Inc.’s trademarks, and websites.
“Jurisdiction” means the county in which Senior Insight, Inc. has its principal place of business, including the court system(s) located in that county as well as the closest U.S. Federal Court in Colorado should U.S. Federal laws apply.
“Licensed Software” means all software, whether in source code, object code, reconfigurable binary, script, or any other form, and related Documentation in the Senior Insight software, as well as all updates, bug fixes, repairs and Maintenance Releases that are provided to Users generally without additional charge. Licensed Software does not include any new versions or modules that Senior Insight, Inc. charges some customers for use thereof.
“Managed Community” means a senior housing facility wherein Client and such facility have executed a contract for affiliation or for Client to provide operations’ management or other services.
“Maintenance Release” means any update, upgrade, release or other adaptation or modification of Licensed Software, that Senior Insight, Inc. may generally provide to licensees from time to time, which may contain, among other things, error corrections, enhancements, improvements or other changes to the User interface, functionality, compatibility, capabilities, performance, efficiency or quality.
“Regular Business Hours” means Monday through Friday, 8am to 5pm (using Senior Insight, Inc.’s time zone), excluding national holidays, including, without limitation, New Year’s Eve, New Year’s Day, Martin Luther King Jr.’s Birthday, President’s Day, Memorial Day, Independence Day, Easter, Labor Day, Thanksgiving, the day after Thanksgiving, Christmas Eve and Christmas Day.
Term” means the duration of the TSSA. The Initial Term is described in the TSSA. Any subsequent Term is a “Renewal Term.”
“Transfer” means any sale, assignment, encumbrance, hypothecation, pledge, conveyance in trust, gift, transfer by request, devise or descent, or other transfer or disposition of any kind, including, but not limited to, transfers to receivers, levying creditors, trustees or receivers in bankruptcy proceedings or general assignees for the benefit of creditors, whether voluntary or by operation of law, directly or indirectly.
“Use” or “Used”, as to the Licensed Software, means viewing or displaying it on a single computer or device by an authorized End User as set forth in the TSSA. “Use” includes transmitting such property to the hardware to process information contained therein. Use does not permit further Transfer except as permitted in the TSSA.
The Definitions detailed by this Section I, paragraphs #1 – #19 will survive termination of the TSSA.

II. TERMS AND CONDITIONS

INCORPORATION. All Definitions in Section I are hereby incorporated in these Terms and Conditions as if fully set forth herein.
ACCEPTANCE. The TSSA is valid only upon Senior Insight, Inc.’s written acceptance.
USER AGREEMENT. The Senior Insight, Inc. End User License Agreement (“EULA”), which Senior Insight, Inc. may modify from time to time in its sole discretion, the most current version of which is available at the hyperlink (in blue) in this paragraph, is hereby incorporated into the TSSA by reference. The EULA does not preclude your Use of the Licensed Software in your Citrix environment and Use of the Licensed Software with your current and future Affiliates and Managed Communities. The Senior Insight, Inc. EULA is binding on each individual User of Senior Insight, Inc., whether an employee or independent contractor. In the event Senior Insight, Inc. modifies the EULA, each End User will be provided with an opportunity to review/read/accept the revised EULA.
AGENTS. Client Contact (for you) and the Senior Insight, Inc. Account Representative (for Senior Insight, Inc.) will be the Parties’ agents for implementing the TSSA, for any Notices and for resolution of any Claims or issues. A Party may change the individual serving in such capacity from time to time upon reasonable written Notice to the other Party.
CLIENT ASSISTANCE. You will use all reasonable efforts as are standard in the industry to assist Senior Insight, Inc. in providing Services, including without limitation, making personnel, resources and property available when requested during Regular Business Hours (as defined herein) for purposes of setup, integration and reasonable support, responding promptly to requests for information, providing Senior Insight, Inc. with any and all information in your possession or control to assist Senior Insight, Inc. in performing Services and maintaining a reasonable level of staffing and resources to continue self-reliance. Further, you are solely responsible for acquiring, servicing, maintaining and updating all equipment, computers, and software to allow your access to Senior Insight, Inc.. In addition, you agree to access and Use the Licensed Software and Services in compliance with all operating instructions and procedures that Senior Insight, Inc. may provide and as may be amended from time to time in Senior Insight, Inc.’s sole discretion.
SERVICES. Both Parties will act in a professional, workmanlike and skilful capacity as is reasonable and standard in the industry, and in compliance with all applicable statutes, laws, regulations and professional standards. Provided Client complies with the TSSA, Senior Insight, Inc. will use reasonable efforts to provide Services to Client during Regular Business Hours through employees and/or independent contractors as necessary and appropriate in Senior Insight, Inc.’s reasonable discretion. Client understands that such personnel may change from time to time in Senior Insight, Inc.’s sole and exclusive discretion. Such changes will not be a breach of the TSSA. As more specifically detailed in the TSSA BT, Services to Client may include:
1. Providing access to the Licensed Software by a subscriber only, password protected, web service;
2. Implementing Senior Insight, Inc.’s cloud-based based CRM system;
3. Providing reasonable training for Client’s sales representatives to utilize the Licensed Software, including a standardized help desk support by telephone during Regular Business Hours;
4. Providing access to the online Senior Insight, Inc. help desk; and
5. Providing Client with updates and enhancements as those are available to all Users without a separate charge.
LICENSE. Subject to all the terms and conditions of the TSSA, Senior Insight, Inc. grants you, the Client, a terminable, worldwide, non-exclusive license for internal business purposes only to (a) access and Use, for its standard and intended purpose, Senior Insight, Inc. software through the logon IDs and passcodes provided and paid-up, (b) print reports and/or make copies of screen shots of Database Information as input in Senior Insight, Inc. and (c) Use any API as provided by Senior Insight, Inc. for Use with Senior Insight, Inc. in other applications at any time for no additional charge. Should you require alterations to the API, such alterations, if approved by both Parties, will be at Senior Insight, Inc.’s standard hourly rates.
LIMITATIONS ON LICENSE. Senior Insight, Inc. does not grant any further license to access, copy, reproduce, modify, prepare or create Derivative Works of, publicly display, publicly perform, sublicense, Transfer, assign exploit or distribute the Licensed Software in any manner whatsoever, directly or indirectly. Reasonable requests made to the Senior Insight, Inc. Account Representative to use screen shots or other copies of reports for presentations will not be unreasonably denied provided appropriate Intellectual Property and ownership notices are included in such copies and Client gives Senior Insight, Inc. advance copies. Further, you agree, warrant and represent that you will not, directly or indirectly,
1. Make use of, modify, enhance or adapt any of Senior Insight, Inc.’s Intellectual Property except as permitted in the TSSA;
2. Present, develop, manufacture, produce, market, sell or provide any product or service that uses, is derived from, or is attributable to, Senior Insight, Inc. Intellectual Property anywhere in the world;
3. Reverse assemble, compile, disassemble, re-engineer or reverse compile the whole or any part of Senior Insight, Inc.’s Intellectual Property, including, without limitation, the Licensed Software;
4. Sub-license or distribute any of Senior Insight, Inc.’s Intellectual Property except as authorized herein;
5. Remove any Intellectual Property ownership or management information, including, without limitation, trademark, copyright and/or other restricted rights notices incorporated into Senior Insight, Inc.’s tangible or Intellectual Property; or
6. Allow any third party, Managed Community or Affiliate, not authorized by the TSSA, to have access to or Use Senior Insight, Inc. Intellectual Property, directly or indirectly, or permit or authorize any such unauthorized individual or entity to do anything prohibited by the TSSA.
7. The terms of this Section II, paragraph #8 and all subparagraphs will survive termination of the TSSA.
BUGS AND ERRORS. Senior Insight, Inc. agrees to (a) provide maintenance services to the extent errors or bugs are discovered, (b) notify your Client Contact of any material errors reasonably discovered, i.e., those errors that that would cause Senior Insight, Inc. to fail in its intended purpose, and (c) if such errors are not capable of being repaired, Senior Insight, Inc. will reasonably provide Notice to your Client Contact. Your sole remedy for Senior Insight, Inc.’s failure to repair a material error is to terminate the TSSA. Failure to repair bugs or errors is not a breach of the TSSA.
PAYMENT OF FEES. The monthly fee for the License granted by the EULA and the Services (the “Fees”) shall be calculated per Active Resident living in a client Facility during such month for which Senior Insight has been utilized to coordinate their care. “Active Resident” defined to mean, any individual listed in the Senior Insight Software database for whom the Senior Insight Software has been utilized as part of the “active census” during the month.

One hundred percent (100%) of any setup, training and integration Fees, if any, detailed in the business terms are due upon execution of this TSSA. An Invoice for such Fees will be provided to Client with a fully signed copy of this TSSA. All Monthly Charges and Fees detailed will be automatically paid by an automated deduction from Client’s checking account (ACH), no later than the 10th of each month. An Invoice for the Monthly Charges and/or other Fees will be sent at the beginning of each month to the email on file that Client provides to Senior Insight, Inc.. Client has thirty (30) days from receipt to contest any monthly invoice. Please contact the Senior Insight, Inc. Account Representative at support@seniorinsight.com to set up electronic payments. Failure to pay any undisputed charges when due will result in termination of all Services to Client at Senior Insight, Inc.’s option upon ten (10) days written Notice to Client and Senior Insight, Inc. will, in that event, have no obligation to provide any comma-delimited file of Client Information to Client after termination of this TSSA. In the event of a dispute as to Monthly Fees or other charges due, if the parties are unable to resolve the dispute between themselves, either party may terminate this TSSA.
1. All late payments are subject to a late payment charge equal to 1.5% of the unpaid Fees.
2. At its option, Senior Insight, Inc. may also charge interest on late payments at the rate of 1.5% each month, compounded monthly.
3. In the event a final order issues favor of Senior Insight, Inc. (including through Binding Mediation), late payment and interest charges will be added to the amount ordered to be due to Senior Insight, Inc., calculated from the date the disputed payments should have been originally paid to Senior Insight, Inc..
4. Client will pay any transit/insurance expenses and Taxes related to approved expenses, if any.
5. Client will reimburse Senior Insight, Inc.’s reasonable out-of-pocket travel expenses if over twenty-five miles from Senior Insight, Inc.’s business location and if related to any Services, provided that Client must pre-authorize any such expenses exceeding $250 U.S.
6. Client is responsible for all collection costs, including attorneys’ fees and costs.
7. After the first calendar year of this CCSA, Senior Insight, Inc. may increase Fees, effective on the anniversary of the TSSA upon thirty (30) days Notice.
  1. Fees will not increase by more than 5% each calendar year.
  2. Senior Insight, Inc. will give Client at least thirty (30) days Notice before any Fee increase.
8. The terms of this Section II., paragraph #3 and all subparagraphs will survive the termination of this TSSA.
TERMINATION.
1. The TSSA will automatically renew for one-year successive periods, each a “Renewal Term” equal to the time-period of the initial Term agreed upon by the Parties in the TSSA BT.
2. During any initial Term or Renewal Term, either Party may terminate the TSSA upon ninety (90) days written Notice to the other for any reason or no reason. The termination date will be the 90th day after Notice is received.
3. Senior Insight, Inc. may terminate the TSSA, effective immediately upon receipt of Notice without any cure period, if you, or anyone under your control:
  1. Sublicenses or Uses the Licensed Software, directly or indirectly, in breach of the TSSA;
  2. Becomes, threatens or resolves to become subject to any form of insolvency administration;
  3. Violates the terms of Section II, paragraph #8 (including subparagraphs);
  4. Violates any confidentiality terms of the TSSA or any separate nondisclosure or confidentiality agreement executed by the Parties;
  5. Shares a logon ID or password with another Person.
    Such termination will not be a breach of the TSSA or be considered a waiver of any other rights and remedies at law or in equity.
4. In the event a Party breaches the TSSA other than under Section II, paragraph #11c (including subparagraphs) or for nonpayment of Fees (Section II, paragraph #10, including subparagraphs), the non-breaching Party will provide the breaching Party with a Notice to cure such breach. The breaching Party will have thirty (30) days from the date of such Notice to cure the breach; and if the breach is cured to the non-breaching Party’s reasonable satisfaction, the TSSA and the license granted herein will remain in full force and effect. If not cured, the termination date will be the 31st day after receipt of the Notice to cure. In the event a breach is not fully curable within the thirty (30) day limitation, but the defaulting Party makes prompt and reasonable ongoing efforts to correct such breach, the Parties will reasonably extend the cure period and termination date.
5. All Fees incurred, earned or contracted for, prior to the date of termination through and until the termination date will be fully due and payable regardless of termination.
6. Termination of the TSSA is without prejudice to, and does not affect the accrued rights or remedies of, any of the Parties arising up to the date of termination.
7. The terms of this Section II, paragraph #11, subparagraphs #11c-g will survive termination of the TSSA.
OWNERSHIP. SENIOR INSIGHT, INC., on its own or on behalf of others, is the sole owner of all rights, title and interest to the Licensed Software, including, without limitation, any modifications made by either Party. In addition, all other materials identified with a copyright notice, trademark indicia, Senior Insight, Inc. trade names, its patent or patent pending products and other Senior Insight, Inc. Intellectual Property created by or for the benefit of Senior Insight, Inc., or a Derivative Work thereto, and identified from time to time as being its Intellectual Property, belongs solely to Senior Insight, Inc. No title to, or ownership of, any such Intellectual Property is Transferred to Client by or through the TSSA. You warrant and represent that, within five (5) days of termination for any reason, you will (i) return all Senior Insight, Inc. tangible and Intellectual Property in your possession or control to Senior Insight, Inc., (ii) destroy all archival or backup copies of such tangible and Intellectual Property, and (iii) certify, in writing, that you do not have possession or control of any Senior Insight, Inc. tangible or Intellectual Property. CLIENT, on behalf of itself or others, is the sole owner of all rights, title and interest in its Client Information. No title to, or ownership of, such Intellectual Property is Transferred to Senior Insight, Inc. by or through the TSSA other than as granted by license herein. You may request, but not more than once per month, current copies of your data or Client Information in CSV format, which will be billed at Senior Insight, Inc.’s then-current hourly rates. Without limiting Senior Insight, Inc.’s right to use Client Intellectual Property pursuant to Section II, paragraph #13, Senior Insight, Inc. agrees to destroy all Client’s Intellectual Property, return all Client’s tangible property collected during the term of the TSSA and execute a similar confirmation. Nothing in the TSSA will limit Senior Insight, Inc.’s rights to provide similar Services to others without inclusion of Client Information or property. The terms of this Section II, paragraph #12 will survive termination of the TSSA.
LICENSE TO SENIOR INSIGHT, INC.
1. You hereby grant Senior Insight, Inc. a royalty-free, terminable, world-wide license to view, copy, report on, commingle and otherwise use Client Information to provide Senior Insight, Inc. Services to you (e.g., creating analytics, optimizing information and for call center use) for the term of the TSSA; and for internal business purposes in order to (a) improve the Services generally, and (b) perform troubleshooting and maintenance.
2. You grant Senior Insight, Inc. a royalty-free, nonterminable world-wide license to view, copy, report on, commingle and otherwise use non-personally identifiable Client information, analytics and statistical information derived from Client Information (i) to improve the Services, (ii) to perform troubleshooting and maintenance, (iii) to improve Senior Insight, Inc.’s products and services generally, (iv) to advertise Senior Insight, Inc.’s Services and (v) for any commercial purposes.
3. Nothing herein reduces Senior Insight, Inc.’s or Client’s responsibilities and obligations under any U.S. federal or state laws regarding the confidentiality of personally identifiable protected information (e.g., under the U.S. Health Insurance Portability and Accountability Act (“HIPAA”). In the event of any conflict between mandatory provisions of HIPAA and the TSSA, HIPAA will control.
4. You hereby grant Senior Insight, Inc. a royalty-free, terminable, world-wide license to display your trade name and/or trademarks in Senior Insight, Inc. advertising to third parties to demonstrate the clients for whom Senior Insight, Inc. provides Services unless you provide the Senior Insight, Inc. Account Representative with written notice that you do not wish to allow such use.
LIMITATIONS ON SENIOR INSIGHT, INC. LICENSE.
1. Senior Insight, Inc. will comply with the U.S. Health Insurance Portability and Accountability Act (“HIPAA”) and any approved and executed Business Associate Agreement.
2. Senior Insight, Inc. will treat personally-identifiable Client Information with the same degree of care that it treats its own confidential information and will not utilize such Client Information except as permitted in the TSSA.
CLIENT INFORMATION.
1. Your sole and exclusive remedy for any loss or damage to Client Information, other than loss to a third party that is directly caused by Senior Insight, Inc.’s grossly negligent or willful misconduct, will be for Senior Insight, Inc. to use commercially reasonable efforts to replace or restore the lost or damaged data from the latest backup of such data that Senior Insight, Inc. has maintained in accordance with its standard archival/backup procedures.
2. During the Term or any Renewal Term, you may request, but not more than once per month, current copies of Client Information in CSV format, which will be provided and charged at Senior Insight, Inc.’s then-current hourly rates. Within five (5) days of termination of the TSSA, as long as termination is not caused by your breach of the TSSA, you may request a final copy of your Client Information, in CSV format, which copy will also be billed at Senior Insight, Inc.’s then-current hourly rates.
3. The terms of this Section II, paragraph #15 and all subparagraphs will survive termination of the TSSA.
CONFIDENTIALITY. Each Party acknowledges that the other has invested significant time and effort and will, over the course of the TSSA, continue to invest time and effort in furtherance of its business, which effort has and will cause the production of confidential information (“Information”) and various Trade Secrets (as defined by Colorado law).
1. Information will be considered confidential and proprietary if it is stamped as “CONFIDENTIAL,” would reasonably be considered confidential under ordinary circumstances or is orally identified as such by Owner of such Information (“Owner”) to the other (“Receiving Party”). Receiving Party agrees to maintain Information as secret and will not, directly or indirectly, use with, or disclose such Information to, any third parties without Owner’s written authorization except as permitted herein.
2. Notwithstanding, Information, whether or not marked as CONFIDENTIAL, includes: all the Senior Insight, Inc. object code and source code, personally identifiable Client Information, CRM passwords, both Parties’ customer and vendor lists and Senior Insight, Inc.’s training materials and procedures, onboarding deliverables, if any, reference guides, call procedures and methodologies.
3. Information will not be deemed to be confidential or proprietary which information Receiving Party can adequately demonstrate (i) is known to Receiving Party before disclosure by its Owner; (ii) is now or hereafter becomes part of the public domain without fault of Receiving Party; (iii) is disclosed to Receiving Party on a non-confidential basis by a third party under no legal disability to make such a disclosure, or (iv) is disclosed pursuant to judicial action or Governmental regulation, subpoena or court order. Disclosure of Information pursuant to this subparagraph is not precluded if such disclosure is in compliance with a valid subpoena or order of a court or other governmental body of the United States or any political subdivision thereof; provided that if Receiving Party is so required to disclose, it will first give advance Notice to Owner of any such request for disclosure as promptly as feasible in order that its Owner may, at its discretion, seek a protective order or such other appropriate remedy as that Owner deems necessary. Failing entry of a protective order, if Receiving Party is, in the opinion of its counsel, compelled to disclose the Information, it will disclose only that portion of the Information as is legally required without liability hereunder.
4. Compliance with Defend Trade Secrets Act of 2016. Neither Party will be held criminally or civilly liable under any U.S. Federal or state Trade Secret law for disclosing a Trade Secret that: (a) is made (i) in confidence to a U.S. Federal, state, or local government official, either directly or indirectly, or to an attorney; and (ii) solely for the purpose of reporting or investigating a suspected violation of law; or (iii) is made in a complaint or other document that is filed under seal in a lawsuit or other proceeding. If either Party, including Affiliates and Managed Communities, files a lawsuit for retaliation for reporting a suspected violation of law, that Party may disclose Trade Secrets to the attorney and use such Trade Secret information in the court proceeding if the Party: (a) files any document containing the Trade Secret under seal; and (b) does not disclose the Trade Secret, except pursuant to court order.
5. Receiving Party acknowledges and agrees that any breach of these obligations as to Information will cause Owner to suffer immediate, irreparable harm for which monetary damages alone would be an inadequate remedy. Accordingly, the Parties agree that Owner is entitled to equitable relief, including injunctive relief and specific performance, against Receiving Party for any breach of its obligations as to Owner’s Information, in addition, and not to the exclusion of, all other remedies at law, in equity or otherwise under the TSSA.
6. The terms of this Section II, paragraph #16 and all subparagraphs will survive termination of the TSSA.
NO COMMINGLING OR INDUCEMENT. Senior Insight, Inc. acknowledges that Client is in the business of providing services and housing for seniors or managing such services and housing for third parties prior to entering into any agreement with Senior Insight, Inc.. Nothing in the TSSA is intended to restrict such business. You may not, however, attempt to develop your business through use of any part of Senior Insight, Inc.’s Intellectual Property except as otherwise permitted by the TSSA. You also agree that you will not, directly or indirectly, anywhere throughout the world, present, develop, manufacture, produce, market, sell or provide any product or service that uses any concepts, formats, presentation methods, terminology and/or other Intellectual Property owned by Senior Insight, Inc. or that is specifically derived from or attributable to Senior Insight, Inc. property. In addition, at no time during the TSSA or subsequent to its termination, will you, directly or indirectly, induce or attempt to induce any person not to purchase or use any Senior Insight, Inc. product or service; or for a period of 5 years after the effective termination date, solicit any of Senior Insight, Inc.’s customers or clients who are then known by you to be Senior Insight, Inc.’s customers or clients or who are identified by name and other identifying information on Senior Insight, Inc.’s customer/client lists disclosed to you prior to the effective termination date; or induce or attempt to induce any of Senior Insight, Inc.’s employees, managers, members, officers, independent contractors, agents, Affiliates, subsidiaries, other clients, assignees or successors to terminate his or her employment or association with Senior Insight, Inc.. The Parties agree that this paragraph is reasonable as to time and territory and is necessary to protect Senior Insight, Inc.’s Trade Secret Information. The terms of this Section II, paragraph #17 will survive termination of the TSSA.
LIMITATION OF WARRANTY AND LIABILITY. EXCEPT AS OTHERWISE EXPRESSLY PROVIDED IN THE TSSA
1. THE LICENSED SOFTWARE AND SERVICES ARE PROVIDED “AS IS,” AND TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, SENIOR INSIGHT, INC. AND ITS OFFICERS, DIRECTORS, MANAGERS, MEMBERS, EMPLOYEES, AGENTS, INDEPENDENT CONTRACTORS, SUBCONTRACTORS, AUTHORIZED ASSIGNS AND LICENSORS HEREBY DISCLAIM ANY AND ALL WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, REGARDING THE LICENSED SOFTWARE AND SERVICES OR OTHERWISE RELATING TO THE TSSA, INCLUDING, WITHOUT LIMITATION, WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE, MERCHANTABILITY, NON-INFRINGEMENT AND ACCURACY;
2. SENIOR INSIGHT, INC. DISCLAIMS ANY AND ALL WARRANTIES THAT THE LICENSED SOFTWARE AND SERVICES ARE, OR WILL BE, ACCURATE, COMPLETE, UNINTERRUPTED, WITHOUT ERROR OR FREE OF VIRUSES, WORMS, OTHER HARMFUL COMPONENTS OR OTHER PROGRAM LIMITATIONS;
3. CLIENT ASSUMES THE ENTIRE COST OF ALL NECESSARY SERVICING, REPAIR OR CORRECTION OF PROBLEMS CAUSED BY VIRUSES OR OTHER HARMFUL COMPONENTS CAUSED BY CLIENT, DIRECTLY OR INDIRECTLY, OR ORIGINATING IN CLIENT’S ENVIRONMENT, UNLESS SUCH ERRORS OR VIRUSES ARE THE DIRECT RESULT OF SENIOR INSIGHT, INC.’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT;
4. SENIOR INSIGHT, INC. HEREBY DISCLAIMS AND MAKES NO WARRANTIES OR REPRESENTATIONS AS TO THE ACCURACY, QUALITY, RELIABILITY, SUITABILITY, COMPLETENESS, TRUTHFULNESS, USEFULNESS OR EFFECTIVENESS OF THE REPORTS, DATA, SCORES, RESULTS OR OTHER INFORMATION OBTAINED, GENERATED OR OTHERWISE RECEIVED BY CLIENT FROM ACCESSING AND/OR USING THE LICENSED SOFTWARE AND/OR SERVICES OR OTHERWISE RESULTING FROM THE TSSA, AND
5. USE OF THE LICENSED SOFTWARE AND SERVICES AND ANY RELATED REPORTS ARE ENTIRELY AT CLIENT’S OWN RISK, AND SENIOR INSIGHT, INC. WILL HAVE NO LIABILITY OR RESPONSIBILITY THEREFORE.
6. The terms of this Section II, paragraph #18 and all subparagraphs will survive termination of the TSSA.
LIMITATIONS ON LIABILITY. EXCEPT AS PROVIDED HEREIN, SENIOR INSIGHT, INC. WILL NOT BE LIABLE IN ANY MANNER TO CLIENT FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES, OR LOST PROFITS WHATSOEVER (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF BUSINESS INFORMATION, OR ANY OTHER LOSS ARISING OUT OF THE USE OF OR INABILITY TO USE THE LICENSED SOFTWARE AND SERVICES, EVEN IF SENIOR INSIGHT, INC. HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND REGARDLESS OF SENIOR INSIGHT, INC.’S FAULT OR NEGLIGENCE. IN THE EVENT THIS LIMITATION IS ADJUDICATED IN A JURISDICTION THAT DOES NOT ACCEPT SUCH LIMITATION(S), SENIOR INSIGHT, INC.’S LIABILITY WILL NOT EXCEED ONE HUNDRED DOLLARS ($100.00) U.S., INCLUDING ATTORNEYS’ FEES AND COSTS. IN THE UNLIKELY EVENT OF ANY CLAIM AGAINST CLIENT BY ANY THIRD PARTY, SENIOR INSIGHT, INC.’S SOLE RESPONSIBILITY TO CLIENT WILL BE LIMITED TO PROVIDING EVIDENCE OF SENIOR INSIGHT, INC.’S OWNERSHIP (OR AS LICENSEE) OF THE LICENSED SOFTWARE AND SERVICES AND IDENTIFICATION OF THE TSSA. The terms of this Section II, paragraph #19 will survive termination of the TSSA.
DIRECT DAMAGES. Senior Insight, Inc. will only be liable for direct damages proven in a final judgment or negotiated resolution of any Claim between the Parties up to the maximum recovery herein. The maximum recovery will be the total of Fees paid by Client to Senior Insight, Inc. during the two (2) months immediately preceding when the covered Claim arose. This maximum recovery will include all costs and expenses, including, without limitation, your attorneys’ fees and costs.
U.S. GOVERNMENT RESTRICTED RIGHTS/EXPORT RESTRICTIONS. In the event the Licensed Software or Services are being provided to the U.S. government or a quasi-governmental entity, the following applies:

SOFTWARE PROVIDED WITH RESTRICTED RIGHTS. If the Licensed Software is used on behalf of a U.S. government agency or quasi-government agency, the TSSA constitutes the entire agreement between the government agency and Senior Insight, Inc. and is binding on government Users in accordance with the policy stated at FAR Sec. 12.211 and 12.212 (nondefense agencies) or DFAR 227.7201 and 227.7202 (for defense agencies). The Licensed Software and any related Services are commercial items, developed at private expense, and not under a government contract. Pursuant to FAR 12.212 (for nondefense agencies) and DFARS 227.7202-1 and 227.7202-3 (for defense agencies), the government’s rights in such Licensed Software and related Services are limited to those rights granted in the TSSA.

You will provide Senior Insight, Inc. with prompt notice of government inclusion; you warrant and represent that you will not, directly or indirectly, export or transmit the Licensed Software, technical data or Services provided to any country to which such export or transmission is restricted by any applicable U.S. regulation or statute, without Senior Insight, Inc.’s prior written consent and, if required, the consent of the Bureau of Export Administration of the U.S. Department of Commerce or such other governmental entity as may have jurisdiction over such export or transmission. You agree to indemnify and hold Senior Insight, Inc. harmless from any Claims whatsoever, including, but not limited to, attorneys’ fees and costs, for any breach of this Section II, paragraph #21.
BINDING MEDIATION. With the exception of Claims wherein a non-breaching Party is entitled to seek the immediate remedy of a temporary restraining order, preliminary injunction or such other form of injunctive or equitable relief as may be used by any court of competent jurisdiction to restrain or enjoin a Party hereto from breaching a provision or agreement, or to specifically enforce the provisions thereof, the Parties agree to proceed in good faith to submit disputed matters that cannot be resolved through good faith informal negotiation by the principals to a mediator with arbitrator powers (“Binding Mediation”). Should the principals not be able to resolve their dispute within thirty (30) days of notice of an initial Claim, the Parties will submit the Claim to binding mediation no earlier than sixty (60) days after the Claim arises. Either Party may request such binding mediation by a written notice to the other. Within ten (10) business days following notice of an intent to mediate by either Party, the Parties will jointly select, appoint and arrange to meet, either in person, telephonically or electronically, an impartial person skilled in the area of dispute and located in the Denver, Colorado metro area, including Arapahoe County, who can resolve the dispute confidentially. If the Parties cannot jointly choose a mediator, each side will choose a mediator (within fifteen (15) days of the notice of intent to mediate), which mediators will jointly choose a third neutral mediator (within twenty (20) days of the notice of intent to mediate) which third mediator will solely mediate the controversy. The mediator’s decision will be determined, without regard to any conflicts or choice of law provisions, pursuant to Colorado law, except where U.S. Federal law applies, and will rely upon the Colorado Rules of Civil Procedure. Should one Party fail to select a mediator within the timeframe above, fail to schedule a mediation session within sixty (60) days of the notice of intent to mediate or fail to appear at a scheduled mediation session, the mediator will rule in favor of the other Party. The Parties will share equally in the cost of such mediation. At each Party’s own cost and expense, it may also engage legal counsel to assist in presenting its arguments to the mediator. Mediation may include discovery at a Party’s option conducted under and in accordance with the Colorado Rules of Civil Procedure in effect at the time of the mediation. The mediator will have the power to set time limits on mediation sessions. Mediation will terminate when three (3) hours of mediation has been completed unless modified by mutual agreement. The mediator will issue a final binding decision within thirty (30) days of the final mediation session, which decision will be fully enforceable and registrable as a judgment in the Jurisdiction without further action. Neither Party will take any action, or fail to act, to the detriment of the other during the term of the TSSA or during any dispute between the Parties. The terms of this Section II, paragraph #22 will survive termination of the TSSA for a period of three (3) years.
INDEPENDENT CONTRACTORS. EACH PARTY IS AN INDEPENDENT CONTRACTOR TO THE OTHER AND IS NOT AN AGENT OR REPRESENTATIVE OR JOINT VENTURER WITH THE OTHER FOR ANY PURPOSE, IS NOT ENTITLED TO WORKERS’ COMPENSATION BENEFITS AND IS REQUIRED TO PAY ALL STATE AND FEDERAL TAXES WITHOUT CONTRIBUTION FROM THE OTHER. Each Party, personally and unconditionally, agrees to hold harmless and indemnify the other, its owners, officers, members, directors, employees, agents, Affiliates, Managed Communities and its clients, from (i) any assessment of taxes, penalties, damages, liabilities and costs incurred due to a Party’s failure to qualify as an independent contractor or (ii) failure to remit appropriate taxes to governmental agencies (including foreign agencies where applicable). No Party will have any right or authority to assume or create any obligation, commitment or responsibility for or on behalf of the other except as the other may expressly authorize in writing.
WAIVER. Waiver by either Party of any provision of the TSSA must be in writing to be effective. Waiver of any breach of any provision of the TSSA will not constitute or operate as a waiver of breach of such provision on any other occasion nor a waiver of any breach of other provisions, nor will failure to enforce any provision operate as a waiver of such provision.
APPLICABLE LAW/CHOICE OF LAW. The TSSA will be construed in accordance with and governed by Colorado law, except to the extent that U.S. Federal law applies, without regard to any conflict or choice of laws provisions. All disputes will be determined through binding mediation as detailed herein. The Parties agree that any judgment or award rendered by the mediator may be entered in the proper court of the Jurisdiction and such judgment will bind both Parties no matter where located or residing. Neither Party will contest subject matter or personal jurisdiction within the Jurisdiction.
NO ASSIGNMENT. You may not assign the TSSA without Senior Insight, Inc.’s written authorization. Senior Insight, Inc. will not unreasonably deny an assignment if Client sells a single-site, group, region, division or entire portfolio of senior living community(ies) to another entity. Client’s use of the Licensed Software with all of Clients’ current and future Affiliates and Managed Communities is not an assignment requiring written authorization.
NO NEGATIVE COMMENTS. Neither Party will do anything to injure the fine reputation of, nor make any negative comments regarding, the other Party to any third party or media at any time during the term of the TSSA or after its termination except in confidential discussions with legal counsel or a mediator. Notwithstanding, the Parties understand that they are unable to stop every complaint or statement by every employee or agent. This paragraph only applies to executive or officer level (or higher) commentary that injures either Party’s fine reputation or hinders the business of the other Party. Nothing in this paragraph will be interpreted to limit either Party’s rights and remedies permitted at law or in equity.
SENIOR INSIGHT, INC. ACCESS TO CLIENT COMPUTER SYSTEMS. Senior Insight, Inc. will not, directly or indirectly, remotely or on-site, access Client’s computer or telecommunications systems without Client’s authorization, unless such access is to permit Senior Insight, Inc. to perform Services under the TSSA. By way of example, a help desk call from Client to Senior Insight, Inc. will be considered consent to access Client’s systems.
ENTIRE AGREEMENT/NO MODIFICATION. The TSSA constitutes the entire understanding and agreement of the Parties with respect to the subject matter covered in it and supersedes all other prior agreements, understandings or statements, written or oral, by or between the Parties with respect to such subject matter. Notwithstanding, the TSSA may be amended by alteration of Senior Insight, Inc. EULA from time to time at Senior Insight, Inc.’s sole and exclusive discretion. Except as permitted herein, the TSSA may not be modified or amended, nor may any term or provision be waived or discharged, except in writing, signed by the Party or Parties against whom such amendment, modification, waiver or discharge is sought to be enforced.
SEVERABILITY. The provisions of the TSSA will be deemed severable, and the invalidity, illegality or unenforceability of any provision of the TSSA will not affect the validity or enforceability of any other provisions herein. In the event any provision of the TSSA is found to be invalid, illegal or unenforceable, the Parties (or any mediator) will endeavour to modify that clause in a manner that gives effect to the intent of the Parties in entering into the TSSA.
EXHIBITS. Any Exhibits attached to or made part of the TSSA are incorporated and agreed upon by the Parties.
SECURITY. To the extent it is reasonably able, neither Party will permit third parties from obtaining any security interest in, or any lien or encumbrance of any nature upon, the other’s Intellectual Property that is in its possession or control. Further, each Party will promptly provide Notice (within two (2) business days) to the other in the event an attempt to encumber such other’s tangible or Intellectual Property occurs or is threatened.
CLIENT LIABILITY. If multiple entities are listed as “Client,” such Clients will be jointly and severally liable for any and all Claims made by Senior Insight, Inc. for a breach of the TSSA.
1. In the event of a Claim as to the payment(s) due to a Party, (i) all monies agreed upon will be paid pursuant to the TSSA; and (ii) within three (3) days of receipt of any Notice to cure or other Claim, all disputed Fees will be placed by Client in an interest-bearing escrow account with U.S. Bank, or its successor bank, until the Parties’ Claims can be resolved by the Parties or by binding mediation.
2. Interest on the monies in the escrow account will be apportioned to the Party entitled to that money as determined by the mediator. Bank charges on the monies in the account will be apportioned to the Party not entitled to that money as determined by mediation.
3. Client hereby indemnifies and holds Senior Insight, Inc. harmless from any and all liability for Claims, including attorneys’ fees and costs, against Senior Insight, Inc. (i) relating to Client’s acts or omissions alleged to have caused injury or damage to third parties or (ii) that Senior Insight, Inc.’s use of a third party’s hardware or software or services, at Client’s request to fulfill the terms of the TSSA, violates that third party’s tangible or Intellectual Property or other rights.
NOTICES. Any notice, request, demand or other communication required under the TSSA (“Notice”) must be in writing and will be deemed sufficiently given upon delivery if provided to the authorized Senior Insight, Inc. Account Representative and/or Client Contact, if delivered by hand (signed receipt obtained), or within the continental U.S., seven (7) days after posting, if properly addressed and sent by U.S. mail, first class, postage prepaid. Notices sent by courier, email, facsimile or other transmission methods are effective as of the date received as long as a written confirmation of receipt exists. All such Notices will become effective on the date of receipt. In the event the Client Contact is no longer available and no replacement has been appointed by Client, Notice will be effective if provided by the above-means to an officer, executive or registered agent of Client.
HEADINGS. All captions, fonts, underlining or footers used in the TSSA are for convenience only and have no meaning in the interpretation or effect of the TSSA.
BANKRUPTCY/ABANDONMENT. In the event Client files for bankruptcy of any form or is unable to pay any creditor within ninety (90) days of when payment is required by such creditor, Client must provide immediate Notice of such filing or inability to pay to Senior Insight, Inc.. In the event Senior Insight, Inc. files for bankruptcy of any form, the TSSA will continue in force until otherwise ordered by a Bankruptcy Court.
CONSTRUCTION. The TSSA, including, without limitation, the TSSA Business Terms, the TSSA T&C, the Senior Insight, Inc. EULA and any Exhibits and amendments to such documents are not to be construed against the drafter.
FORCE MAJEURE. No Party hereto will be liable for damages for any delay or default in performance during any Term hereof if such delay or default is caused by conditions beyond its control, including, but not limited to, acts of God, Government restrictions, Government closure or sequester, continuing domestic or international problems such as wars, threats of terrorism, or insurrections, strikes, fires, floods, work stoppages and embargoes; provided, however, that either Party will have the right to terminate the TSSA “without breach” upon thirty (30) days prior written Notice if the other Party’s delay or default due to any of the above-mentioned causes continues for a period of two (2) months.
SIGNATURES/COUNTERPARTS. The TSSA may be signed in counterparts. Further, facsimile or digital signatures will be accepted and as valid as a hand-written signature.
CORPORATE AUTHORITY. The individuals executing the TSSA on behalf of their respective Parties hereby represent and warrant that they have the right, power, legal capacity and appropriate corporate authority to enter into the TSSA on behalf of the entity for which they sign.
SURVIVAL. The terms of Section II, paragraphs #23-41 and all subparagraphs will survive termination of the TSSA for a period of three (3) years.

BY EXECUTING THE TSSA BUSINESS TERMS (“BT”), CLIENT REPRESENTS AND WARRANTS, SWEARS AND AFFIRMS THAT CLIENT HAS FULLY READ THE TSSA BT, THESE TSSA T&C AND SENIOR INSIGHT, INC.’S EULA AND AGREES TO ALL SUCH TERMS AND CONDITIONS AS IF SET FORTH IN THE EXECUTED TSSA BT.

Should you have any questions or concerns regarding your rights under Senior Insight, Inc.’s TSSA, please consult with a qualified legal practitioner prior to agreeing to our terms.