DEFINITIONS

For purposes of this Agreement, the following terms shall have the meanings set forth below:

Effective Date

1. "Effective Date" means the earlier of:

(a) the effective date specified in the first Service Order signed by Client, or

(b) if no signed Service Order exists, the date of the first invoice issued by Provider for services that Client pays.

LIMITATION OF LIABILITY

Limited Warranty and Liability Cap

1. Provider will perform services in a professional and workmanlike manner consistent with industry standards. EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT, IN NO EVENT WILL PROVIDER’S AGGREGATE LIABILITY ARISING FROM OR RELATING TO THIS AGREEMENT (WHETHER IN CONTRACT, TORT, NEGLIGENCE, OR OTHERWISE) EXCEED THE TOTAL AMOUNT OF FEES ACTUALLY RECEIVED BY PROVIDER UNDER THIS AGREEMENT DURING THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO THE CLAIM, REGARDLESS OF WHETHER SUCH LIABILITY ARISES FROM A SINGLE INCIDENT OR MULTIPLE INCIDENTS. THIS LIMITATION APPLIES TO ALL CAUSES OF ACTION AND CLAIMS, INCLUDING BUT NOT LIMITED TO DATA BREACHES, SYSTEM FAILURES, SERVICE INTERRUPTIONS, OR SECURITY INCIDENTS.

Provider shall not be liable for damages arising from cybersecurity incidents, including data breaches, that occur as a result of Client’s failure to implement recommended security measures or Client’s non-compliance with Provider’s security policies.

Provider shall not be liable for damages caused by the failure or negligence of third-party vendors or service providers, provided that Provider has exercised reasonable care in their selection and management.

Provider shall not be liable for loss of data if the Client has not subscribed to or maintained adequate data backup services from Provider or a third-party.

Exclusion of Damages

  1. EXCEPT FOR LIABILITY ARISING FROM PROVIDER’S INDEMNIFICATION OBLIGATIONS HEREUNDER OR A BREACH OF CONFIDENTIALITY OBLIGATIONS, IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, OR EXEMPLARY DAMAGES ARISING OUT OF SERVICES PROVIDED HEREUNDER, EVEN IF PROVIDER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, INCLUDING BUT NOT LIMITED TO:

a) Loss of profits or revenue

b) Loss of use of equipment

c) Lost data

d) Costs of substitute equipment or services

e) Business interruption

f) Reputational harm

g) Other commercial damages or losses

Time Limitation

  1. NO CLAIM ARISING OUT OF THIS AGREEMENT MAY BE BROUGHT BY EITHER PARTY MORE THAN TWO (2) YEARS AFTER THE EVENT GIVING RISE TO SUCH CLAIM.

Exceptions

  1. The limitations set forth in this section shall not apply to:

a) Death or personal injury caused by Provider’s negligence

b)Damages arising from Provider’s gross negligence or willful misconduct

c)Provider’s indemnification obligations under this Agreement

d)Breach of confidentiality obligations

Acknowledgment

  1. The parties acknowledge that these limitations of liability are an essential element of the Agreement between the parties, and that the fees charged reflect these limitations. Client acknowledges understanding these limitations and has the opportunity to secure additional services and is encouraged to secure additional insurance to cover risks beyond those assumed by Provider under this Agreement.

INDEMNIFICATION (DUTY TO DEFEND)

Mutual Indemnification

  1. Each party (“Indemnifying Party”) agrees to defend, indemnify, and hold harmless the other party, its officers, directors, and employees (“Indemnified Party”) from and against third-party claims, demands, suits, or proceedings arising from:

a) The Indemnifying Party’s gross negligence or willful misconduct

b) Death or personal injury caused by the Indemnifying Party’s negligence

c) The Indemnifying Party’s breach of confidentiality obligations

Procedures

  1. The Indemnified Party shall:

a) Promptly notify the Indemnifying Party of any claim

b) Allow the Indemnifying Party to control the defense

c) Provide reasonable cooperation at the Indemnifying Party’s expense

If the Indemnifying Party fails to timely assume the defense, the Indemnified Party may assume the defense at the Indemnifying Party’s cost and expense.

Limitations

  1. The indemnification obligations shall be subject to the liability caps and limitations set forth in the Limitation of Liability section, except where such limitations are prohibited by law.

DISPUTE RESOLUTION

Initial Resolution

  1. The parties shall attempt to resolve disputes through good faith negotiations between authorized representatives. Each party’s authorized representatives shall have full authority to resolve the dispute on behalf of their respective parties.

Mandatory Mediation

  1. If negotiations fail, the parties agree to submit to mediation before pursuing litigation:

a) Mediation shall be conducted in the state of Nebraska.

b) The parties shall share mediation costs equally.

c) Mediation must occur within forty-five (45) days of a written request.

d) The parties shall participate in good faith.

Litigation

  1. If mediation fails, any legal action shall:

a) Be filed in the courts of Nebraska.

b) Be governed by Nebraska law.

c) The prevailing party shall be entitled to recover its reasonable attorney’s fees and costs.

Injunctive Relief

  1. Nothing in this section prevents either party from seeking immediate injunctive relief for:

a) Intellectual property violations.

b) Confidentiality breaches.

c) Data security incidents directly resulting from the Provider’s acts or omissions, excluding incidents attributable to third-party service providers unless such providers were selected or managed negligently by Provider.

FORCE MAJEURE

Force Majeure Events

  1. Neither Party shall be liable for any failure or delay in performance of its obligations under this Agreement (other than payment obligations) to the extent such failure or delay is caused by circumstances beyond its reasonable control, including but not limited to:

a) Acts of God, natural disasters, or extreme weather events

b) War, terrorism, or civil unrest

c) Pandemics, epidemics, or public health emergencies

d) Government actions or regulations

e) Power failures or telecommunications outages

f) Cyber attacks or widespread internet disruptions, including but not limited to ransomware attacks, cloud infrastructure failures, and domain name system (DNS) outages

g) Labor disputes or strikes

h) Supply chain disruptions

i) Third-party service provider failures, provided that Provider exercised reasonable care in their selection and oversight

Obligations During Force Majeure

  1. The affected Party shall:

a) Promptly notify the other Party of the force majeure event

b) Use reasonable efforts to minimize the impact of the event

c) Resume performance as soon as reasonably possible following the cessation of the force majeure event

Termination Due to Prolonged Force Majeure

  1. If a force majeure event continues for more than sixty (60) consecutive days, either Party may terminate this Agreement upon written notice to the other Party, effective immediately or on a date specified in the notice, without penalty.

ASSIGNMENT

Provider Assignment

  1. Provider may not assign or transfer this Agreement without the prior written consent of Client, except that Provider may assign this Agreement without Client’s consent to:

a) A successor corporation or business entity

b) An entity acquiring all or substantially all of Provider’s assets and business

c) An entity resulting from a merger with Provider

Assignment Requirements

  1. Any permitted assignment under Section 1 shall require that:

a) The assignee assumes in writing all terms and conditions of this Agreement

b) Written notice is provided to Client

c) The assignee is capable of performing Provider’s obligations

Client Assignment

  1. Client may assign or transfer this Agreement without the prior written consent of Provider, provided that Client gives Provider written notice of the assignment within thirty (30) days.

Effect

  1. This Agreement will inure to the benefit of permitted successors and assigns.

Void Assignments

  1. Any attempted assignment in violation of this section shall be void and constitute a material breach of this Agreement.

CONFIDENTIALITY

Definition of Confidential Information

  1. “Confidential Information” means any non-public information disclosed by either party (“Disclosing Party”) to the other party (“Receiving Party”), whether orally, in writing, or by inspection, including but not limited to:

a) Business plans and strategies

b) Customer data and lists, including Patient Health Information

c) Technical specifications and architectures

d) Pricing and financial information

e) Trade secrets and know-how

f) Employee information

g) Software code and documentation

h) Network and security configurations

i) Any information marked as confidential

General Obligations

  1. Each Party acknowledges that in the course of performing this Agreement, they may have access to Confidential Information about the other Party’s business operations, technology, customers, and practices that give them their competitive advantage. Each Party agrees to:

a) Use reasonable care to protect the confidentiality of such information|

b) Use such information only for purposes of performing this Agreement

c) Not duplicate or permit others to duplicate confidential materials except for internal use

d) Comply with all applicable data protection and privacy laws and regulations when handling Confidential Information

e) Share Confidential Information with third-party service providers only as necessary to perform the Services, and only under obligations of confidentiality materially similar to those set forth herein

f) Implement reasonable administrative, technical, and physical safeguards to protect electronic Confidential Information

Exclusions

  1. These confidentiality obligations do not apply to information that:

a) Is generally known to and available for use by the public

b) Is required to be disclosed by law or court order

c) Is necessary to share during a transition to or from another service provider

Duration

  1. These confidentiality obligations shall survive the termination of this Agreement for a period of two (2) years, except for trade secrets, which shall be maintained as confidential for as long as they qualify as trade secrets under applicable law.

TERM AND TERMINATION

Term

  1. This Agreement shall commence on the Effective Date and continue:

a) On a month-to-month basis; or

b) For the Initial Term specified in the applicable Service Order, unless terminated earlier as provided herein.

Renewal

  1. Upon expiration of the Initial Term, this Agreement shall continue on a month-to-month basis under the same terms unless either party provides written notice of non-renewal at least sixty (30) days prior to the expiration of the then-current term.

Termination for Convenience

  1. a) For month-to-month agreements, either party may terminate this Agreement upon thirty (30) days written notice.

    b) For fixed-term agreements, Client may terminate for convenience upon ninety (90) days written notice and payment of any early termination fees specified in the Service Order.

Termination for Cause

  1. Either party may terminate this Agreement immediately upon written notice if the other party:

    a) Materially breaches this Agreement and fails to cure within thirty (30) days of written notice.

    b) Becomes insolvent or files for bankruptcy.

    c) Ceases to conduct business in the ordinary course.

    d) Fails to pay fees when due and does not cure such non-payment within thirty (30) days following written notice.

    e) Provider may suspend Services if Client’s account remains unpaid for more than fifteen (15) days after the due date, after providing at least five (5) business days’ written notice.

Effect of Termination

  1. Upon termination of this Agreement:

a) Client shall pay all outstanding fees for services rendered through the date of termination.

b) Each party shall return or destroy Confidential Information as required under the Confidentiality section.

c) Sections regarding confidentiality, indemnification, limitation of liability, and payment obligations shall survive termination.

Transition Assistance

  1. a) Upon written termination notice from Client, and provided that Client’s account is current with no outstanding past-due balances, Provider shall assist in the orderly transition of services to Client or another provider (the “Successor Provider”) for a period not to exceed sixty (60) days following the termination of this Agreement. A final day for transition assistance will be listed in either the response to the written termination notice from Client or in a Termination Agreement sent from Provider to Client via electronic signature platform.

    b) Provider will cease providing direct IT support services to Client and will provide transition assistance only to the Successor Provider during the offboarding period.

    c) Transition assistance shall include reasonable cooperation to transfer subscriptions, licensing, security services, and relevant documentation. Provider will maintain applicable subscriptions and services until they are either (i) transferred to the Successor Provider or (ii) the Successor Provider instructs Provider in writing to terminate them.

    d) Client shall be responsible for ensuring that the Successor Provider schedules and completes all necessary transitions in a timely manner. Time is of the essence with respect to service transfer activities.

    e) Provider may, at its sole discretion, elect to charge for transition assistance by either:

    a.Issuing a final invoice equal to the most recent month’s service fees, due upon issuance, which shall cover up to sixty (60) days of reasonable transition assistance; or

    b.Charging Client for actual transition assistance services at the non-customer rates specified in the applicable Service Order, or at Provider’s then-current standard hourly rates if no such rates are specified.

    Any additional services requested by the Successor Provider or Client beyond the sixty (60) day off-boarding period shall be billed at Provider’s then-current non-customer hourly rates.

    f) Client shall remain responsible for payment of all active subscriptions and licensing fees retained by Provider until such time as those subscriptions are formally transferred or terminated at the written direction of the Successor Provider or Client.

PAYMENT TERMS

Fees

  1. a) Client agrees to pay the fees specified in the applicable Service Order, Quote, or Applicable Invoice.

b) Provider may increase fees upon sixty (60) days written notice or upon mutual agreement.

c) New services or equipment shall be billed at then-current rates.

Payment Terms

  1. a) Invoices are due upon receipt.

b) Payment is considered late after fifteen (15) days from the invoice date.

c) Late payments may bear interest at 1.5% per month or the maximum rate permitted by law.

d) All fees are non-refundable unless otherwise specified.

e) For late invoices, Client explicitly authorizes Provider to charge any payment method on file including credit cards, debit cards, or bank accounts. This authorization is deemed ongoing and applies to all services rendered under this Agreement.

f) Provider may suspend Services for Client’s non-payment after thirty (30) days overdue, following at least five (5) business days’ written notice.

Taxes and Expenses

  1. a) Fees exclude taxes, duties, and governmental charges.

b) Client is responsible for all applicable sales taxes.

c) Client shall reimburse Provider for reasonable, pre-approved travel and out-of-pocket expenses.

Disputed Charges

  1. a) Client must notify Provider in writing of any disputed charges within fifteen (15) days of the invoice date.

    b) Undisputed portions of invoices remain due according to the stated payment terms.

    c) The parties shall work in good faith to resolve any disputes promptly.

Payment Methods

  1. a) Provider accepts payment via credit card, debit card, or ACH, or check (which may be processed as an ACH debit).

    b) Client authorizes recurring charges for subscription services.

    c) Provider may suspend Services for failed payments after notice as specified above.

Check Conversion to ACH

  1. a) By submitting payment via check, Client acknowledges that their check may be converted to an ACH debit transaction.

    b) Provider will scan and process checks through a secure system that complies with NACHA rules.

    c) The ACH entry will appear on Client’s bank statement with Provider’s company name and “ACHINIT” or similar notation.

    d) Client’s check will be securely destroyed within fourteen (14) days of processing.

    e) Client retains the right to opt out of check conversion by notifying Provider in writing.

INSURANCE REQUIREMENTS

Provider Insurance

  1. Provider shall maintain in force during the term of this Agreement:

    a) Commercial General Liability Insurance with limits of at least $1,000,000 per occurrence

    b) Professional Liability/Errors & Omissions Insurance with limits of at least $1,000,000 per claim

    c) Cyber Liability Insurance with limits of at least $1,000,000 per occurrence

    d) Workers' Compensation Insurance as required by law

    e) Commercial Auto Liability Insurance with limits of at least $1,000,000 combined single limit

Additional Requirements

  1. a) Provider shall provide certificates of insurance upon request

    b) Client shall be named as an additional insured where applicable

Client Insurance

  1. Client shall maintain reasonable levels of insurance coverage appropriate for their business operations, including:

    a) Commercial General Liability Insurance

    b) Property Insurance covering Client’s equipment and premises

    c) Any industry-specific insurance required by law

    d) Client is strongly encouraged to maintain Cyber Liability Insurance covering data breaches, cybersecurity incidents, and related liabilities. Provider’s liability for cybersecurity events is limited as set forth in this Agreement, and Client acknowledges that maintaining its own Cyber Liability coverage is an important element of its risk management strategy.

DATA PROTECTION AND PRIVACY

Mutual Responsibilities

  1. Each party shall:

    a) Implement reasonable security measures to protect data

    b) Process data only as necessary to provide or receive Services

    c) Comply with applicable data protection and privacy laws

    d) Notify the other party promptly of any confirmed data breach

    e) Maintain and comply with its own privacy policies

    f) Obtain necessary consents for data processing

    g) Not provide data in violation of any laws or regulations

    h) Notify the other party of any special data handling requirements

Data Backup

  1. Client shall be responsible for backup of its own data unless specifically included in Services.

Protected Health Information

  1. If Client is a covered entity or business associate under HIPAA:

    a) Parties shall execute a Business Associate Agreement

    b) Provider shall comply with HIPAA requirements

    c) Client shall not provide PHI without a valid BAA

CUSTOMER OBLIGATIONS

System Requirements

  1. Client shall maintain:

    a) Genuine, licensed, and vendor-supported hardware and software

    b) Current vendor support contracts for hardware and software where applicable

    c) Connectivity service at Business or Enterprise grades where available

Access and Environment

  1. Client shall provide:

    a) Ready access to all work areas

    b) Necessary space and facilities

    c) Proper lighting and electrical circuits

    d) Environmental requirements for equipment

    e) Timely response to Provider requests

    f) Client acknowledges delays due to access or environment issues may result in additional charges at Provider’s standard hourly rates as specified in the Service Order

Changes and Modifications

  1. Client shall:

    a) Not modify hardware or software without Provider notification

    b) Maintain an authorized contacts list

    c) Submit support requests through approved channels

    d) Obtain Provider approval before adding third-party equipment or services

Excluded Items

  1. Client acknowledges that the following are not included:

    a) Parts, equipment, or shipping costs

    b) Software licenses or renewal fees unless specified in the Service Order

    c) Third-party vendor support fees

    d) Environmental damage repair

    e) Training beyond basic operation of services provided by Provider

    f) Cabling and labor to install cabling

Security Compliance

  1. Client shall:

    a) Follow Provider’s security recommendations

    b) Promptly install or allow installation of security updates

    c) Report suspected security incidents immediately

    d) Maintain compliant password policies

    e) Ensure employees follow security protocols

Backup Cooperation

  1. Client shall:

    a) Verify backup completion when requested

    b) Review and test backup and disaster recovery procedures

    c) Maintain offline backup copies if required

    d) Report data loss immediately

Third-Party Coordination

  1. Client shall:

    a) Maintain relationships with software vendors

    b) Provide necessary third-party access credentials

    c) Coordinate with other service providers

    d) Obtain necessary licenses and permits

Business Continuity

  1. Client shall:

    a) Maintain current emergency contact information

    b) Document critical business processes

    c) Participate in disaster recovery planning

Provider Obligation

  1. Provider’s obligations to deliver Services are contingent upon Client’s compliance with the requirements set forth in this section.

NOTICES

Method of Delivery

  1. All notices under this Agreement shall be in writing and delivered by:

    a) Personal delivery

    b) Nationally recognized overnight courier

    c) Certified mail, return receipt requested

    d) Email with confirmation of receipt

Provider Notice Address

  1. Notices to Provider shall be delivered to:

    Apt Interactive

    General Counsel

    1845 Main Ave

    Crete, NE 68333

    Email: [email protected]

    or the current address listed with the Secretary of State of Nebraska.

Client Notice Address

  1. Notices to Client shall be delivered to the address specified in the applicable Service Order.

Effect

  1. Notices shall be effective upon:

    a) Personal delivery: Upon receipt

    b) Overnight courier: Next business day

    c) Certified mail: Third business day after mailing

    d) Email: Upon replied confirmation of receipt

Changes

  1. Either party may change its notice address by providing notice according to this section.

GENERAL PROVISIONS

Entire Agreement

  1. This Agreement, including appendices, constitutes the entire agreement between the parties and supersedes all prior agreements, understandings, or representations, whether oral or written.

Governing Law

  1. This Agreement shall be governed by and construed in accordance with the laws of the State of Nebraska, without regard to its conflict of law principles.

Entity Status

  1. a) Provider is a corporation/LLC operating under the laws of Nebraska.

b) All services are performed by Provider as an entity.

c) No individual employee, officer, director, or agent enters into any individual agreement with Client.

d) All actions taken by Provider’s representatives are taken solely on behalf of Provider entity.

Personal Liability Protection

  1. a) Client acknowledges and agrees that all services, agreements, and obligations are between Client and Provider entity only.

    b) No individual associated with Provider shall have any personal liability.

    c) Client waives any right to name individual employees, officers, directors, or agents in any legal action relating to this Agreement.

    d) Any legal claims must be brought solely against Provider entity.

    e) This section shall survive termination and is deemed material to this Agreement.

Modifications

  1. a) This Agreement may only be modified in writing signed by both parties.

    b) Provider may modify service specifications upon notice to Client, provided that such modifications do not materially reduce the core functionality of the Services.

    c) Addition of equipment, services, or third-party costs shall result in corresponding fee adjustments.

Severability

  1. If any provision of this Agreement is held to be invalid, illegal, or unenforceable, the remaining provisions shall remain in full force and effect.

Service Hours

  1. a) Helpdesk services are available 24/7/365.

    b) Standard onsite service hours are 8:00 AM to 5:00 PM, Monday through Friday.

    c) After-hours onsite service is available as defined in the applicable Service Order.

    d) Holiday onsite service is excluded unless specifically provided for in the Service Order.

Work Standards

  1. a) Provider shall maintain clean and orderly work areas.

    b) Provider shall perform services in a professional and workmanlike manner.

    c) Services outside the agreed scope shall be quoted separately before work is commenced.

    d) Hardware purchases and related third-party costs require advance payment.

Interpretation

  1. Section headings are for reference only and shall not affect the interpretation or meaning of the provisions of this Agreement.