UPTODATE, INC., LICENSED CONTENT ADDENDUM

1.1  This UpToDate, Inc., Licensed Content Addendum is an addendum to the agreement between Licensor and [insert legal name of Customer] (“Customer Agreement”).

1.1 The following definitions are incorporated into the Addendum:

1.1.1 “Addendum” means this addendum to the agreement between Licensor and [insert legal name of Customer], dated [insert date of Customer Agreement with Customer].

1.1.2 “Clinician” means an MD, DO, DDS, DDM, OD, Physician’s Assistant (PA), advanced practice nurse, licensed pharmacist, or other properly licensed professional clinician authorized to write or dispense prescriptions.

1.1.3 “Customer” means [insert legal name of Customer].

1.1.4 “Customer Authorized User” means a person permitted by Customer to access or use UpToDate Licensed Content, including, without limitation, Clinicians, and who is subject to the terms of this Addendum.

1.1.5 “Licensor” means WellSky Corporation.

1.1.5.1 “UpToDate” means UpToDate, Inc., a Delaware corporation.

1.1.6 “UpToDate Licensed Content” means certain data or software provided to Licensor under separate license from UpToDate and provided by Licensor to Customer pursuant to the Customer Agreement.

1.2 License Grant. During the term of this Addendum, Licensor grants to Customer a limited, non-exclusive, non-transferable license to access and use certain content from the UpToDate Licensed Content which Licensor has previously and separately licensed from UpToDate.  Customer and its Customer Authorized Users may use the UpToDate Licensed Content pursuant to a limited and restricted license in conformance with the terms of the license from UpToDate.  Customer and its Customer Authorized Users may not provide data from the UpToDate Licensed Content to third-parties for any other purpose.  This is not a sale of the UpToDate Licensed Content or of a copy of the UpToDate Licensed Content.  Any use or attempted use of the UpToDate Licensed Content other than as expressly permitted herein is a material breach of this Addendum and a material breach of the license granted by UpToDate to Licensor.  Only Customer Authorized Users may access and use the UpToDate Licensed Content.  The UpToDate Licensed Content was developed for use only in the United States and its territories.

1.3 Customer Authorized Users Compliance. Customer shall take commercially reasonable measures to ensure its Customer Authorized Users compliance with the terms of this Addendum.  Customer shall promptly report to Licensor any breach of this Addendum by a Customer Authorized User, but in no event later than five calendar days after becoming aware of a breach.

1.4 License Restrictions. Customer and its Customer Authorized Users shall not: (a) print in whole or in substantial part the UpToDate Licensed Content; (b) modify, translate, reverse engineer, decompile, disassemble, or attempt to derive or alter any source code of the UpToDate Licensed Content or any underlying software; (c) use the UpToDate Licensed Content to provide service bureau, time sharing, or similar services to third parties, including any parent, subsidiary, or other affiliate of Customer unless such use by the parent, subsidiary, or other affiliate is explicitly permitted by Licensor and such parent, subsidiary or other affiliate is bound by the terms of this Addendum; (d) distribute, sublicense, sell, assign, transfer, rent, lease, pledge, or encumber the UpToDate Licensed Content, or make any attempt to do so; (e) alter, remove, obscure, or hinder delivery of any copyright, disclaimer, or proprietary notice appearing in the UpToDate Licensed Content; (f) take any action compromising the enjoyment and use of the UpToDate Licensed Content by any other UpToDate or Licensor customer; or (g) take any action compromising UpToDate’s or Licensor’s rights in or to use of the UpToDate Licensed Content.  Redistribution of the UpToDate Licensed Content in whole or substantial part for any purpose is not permitted.

1.5 Additional Considerations for Medi-Span. If the UpToDate Licensed Content includes any Medi-Span Clinical Access Software, Medi-Span Application Programming Interfaces (“Medi-Span Clinical APIs”), or Medi-Span Clinical API Data (each individually a “Medi-Span Clinical Data” and collectively, the “Medi-Span Clinical Content”), the following additional provisions apply to such Licensed Content:

The Medi-Span Clinical Content is designed to allow Customer to use its discretion to program software, applications, or other Customer Authorized User interfaces to permit Customer Authorized Users to deactivate or suppress certain content contained in the Medi-Span Clinical Content, including without limitation drug safety alerts relating to drug-drug interactions, drug-allergies, route of administration, therapy duplication, etc. (“User Control”).  Customer is solely responsible for determining whether, and to what extent, User Control is implemented or available to Customer Authorized Users.  UpToDate is unable to monitor and will not monitor Licensee’s implementation or use of User Control.  UpToDate, its affiliates, and licensors shall not assume or incur any liability or alleged liability of any kind that may arise out of Customer’s or its Customer Authorized Users’ implementation or use of User Control.  This section survives expiration, termination, or rescission of the Agreement.

If Customer implements or uses User Control, Customer agrees to include the following Professional Responsibility Disclaimer Notice with the UpToDate Licensed Content which shall be visible to each Customer Authorized User at the time User Control is first implemented and each time the parameters of User Control are modified thereafter:

“The user of this application acknowledges that the professional duty to the patient in providing health care services (including the dispensing of prescription drugs and drug information, substitution of one drug product for another or the availability of generic substitutable alternative drug products, and answering questions a patient may have) lies solely with the health care professional providing direct patient care and/or pharmaceutical services.  This application is designed to provide the user with certain “alerts” related to drug safety, which may include, but not be limited to, alerts pertaining to: drug, food and herbal medication interactions; drug-to-drug interactions; adverse drug reactions; drug precautions; drug dosage; and duration of drug therapy.  This application permits the developer or user to use their discretion to deactivate or suppress some or all alerts that are believed to be unnecessary (“User Control”).  Before using this application, user should determine whether, and to what extent, User Control has been implemented or used.”

1.6 Compliance with Laws. Customer shall use the UpToDate Licensed Content and the information contained therein and results derived therefrom, in compliance with applicable federal, state, and local laws, rules, and regulations.

1.7 No Competitive Products. Under no circumstances shall Customer use the UpToDate Licensed Content or information contained therein or results derived therefrom, to develop a product(s) or service(s) in any format similar to, or which could be competitive with, the UpToDate Licensed Content.

1.8 Customer Modifications. Customer shall not modify, or create a derivative work from, the UpToDate Licensed Content without the explicit, prior written permission of UpToDate and Licensor.  Customer assumes all liability for any modification made by Customer, on behalf of Customer, or by a Customer Authorized User.  UpToDate and Licensor specifically disclaim all warranties of any nature, express and implied, regarding any Customer-modified or Customer Authorized User-modified UpToDate Licensed Content.

1.9 Product Documentation, Training, Support. In the event that UpToDate provides Licensor with documentation or an alert that has the potential to affect patient safety or clinical practice, Licensor is obligated under its agreement with UpToDate to make such known to Customer.  Upon notification of such an alert or documentation, Customer shall promptly provide Customer Authorized Users with access to a hard copy or instructions for obtaining an electronic copy of the alert or documentation as provided by Licensor to Customer.  Customer shall have sole responsibility for ensuring that Customer Authorized Users have sufficient training to use the UpToDate Licensed Content in a reasonably competent manner before providing them with access to the UpToDate Licensed Content.  UpToDate will not provide support directly to Customer; rather all support regarding the UpToDate Licensed Content will be provided to Customer by Licensor.

1.10 Professional Responsibility. Customer acknowledges and agrees that the professional duty to a patient in the provision of healthcare services (including but not limited to the dispensing of drug prescriptions, provision of drug information, substitution of one drug product for another, availability of generic substitutable alternative drug products, providing instruction, and answering questions a patient may have) lies solely with the healthcare professional providing direct patient care or pharmacy services.  Customer acknowledges and agrees that clinical information and screening functions in the UpToDate Licensed Content are intended only as a limited supplement to, and not replacement for, the professional clinical judgment of a healthcare professional.  Customer acknowledges and agrees that neither UpToDate nor Licensor provides medical, pharmaceutical, or other professional advice or patient services in connection with this Addendum or as part of or as a result of the provision of the UpToDate Licensed Content and that neither UpToDate nor Licensor has the ability to verify patients’ understanding of their medications and the effects of such medications.  Customer acknowledges that content from the UpToDate Licensed Content provided to patients: (a) is not a substitute for verbal medication counseling or physical demonstration of an administration technique by a healthcare professional, (b) may be confusing to certain patients when not interpreted by a healthcare professional, and (c) is designed solely to support the verbal information transfer by healthcare professionals and to serve as a non-comprehensive take home reference source for patients or caregivers.  Accordingly, Customer, through its Customer Authorized Users, is required to, and will, independently apply their medical, nursing, pharmaceutical, or other professional knowledge, expertise, and judgment with respect to determining the correctness, completeness, timeliness, and suitability of the content or function of the UpToDate Licensed Content for each patient for whom Customer or a Customer Authorized User provides any services or products and, where applicable and within the discretion of the healthcare professional, provide each patient with appropriate, individualized verbal counseling regarding potential relevant health care conditions and the use of, or potential adverse consequences associated with, a particular drug, drug combination, or course of therapy.  Therefore, as between Customer, on the one hand, and UpToDate on the other hand, Customer takes full responsibility for its and Customer Authorized Users use of the content in, and function of, the UpToDate Licensed Content in patient care.

1.11 Effect of Termination. Upon expiration or termination of this Addendum for any reason, the right to use the UpToDate Licensed Content granted hereunder terminates.  Customer shall (a) within thirty (30) days cease all use of the UpToDate Licensed Content; (b) take such steps as are necessary to prohibit further use of the UpToDate Licensed Content; and (c) furnish a written description of the steps taken if so requested by UpToDate or Licensor.  If so required by law or a regulatory agency, for archival purposes only, Customer may retain data from the UpToDate Licensed Content if the data was derived in accordance with this Addendum.  Data from the UpToDate Licensed Content that has been included in a patient’s electronic health record prior to termination may be retained in that electronic health record after termination.

1.12 Title. Customer agrees that all right, title, and interest in and to the UpToDate Licensed Content and all information therein, including all copyrights and other intellectual property inherent therein or appurtenant thereto, are, and at all times shall remain, the sole and exclusive property of UpToDate.  To the extent that Customer inadvertently or otherwise acquires any rights to the UpToDate Licensed Content or any portion thereof in a manner not set forth herein, Customer agrees to execute, and to cause its representatives to execute, any assignment agreements or other instruments assigning, transferring, and conveying to UpToDate all right, title, and interest in and to the UpToDate Licensed Content, including copyrights and other intellectual property.

1.13 Disclosure. Customer shall treat the UpToDate Licensed Content as confidential.  Customer shall not share or disclose the UpToDate Licensed Content to any individual or entity other than as set forth herein.  If Customer receives a request to disclose the UpToDate Licensed Content to a third-party, Customer shall promptly communicate such request to UpToDate and Licensor for approval, disapproval, or objection.

1.14 No Other Rights. Rights not expressly granted to Customer herein are reserved to UpToDate and/or Licensor as may be the case.  Neither Customer nor Customer Authorized Users have any implied rights in, or to use of, the UpToDate Licensed Content; rather, all rights applicable to Customer and Customer Authorized Users are expressly set forth in this Addendum.

1.15 Equitable Relief. Customer agrees that money damages would not be a sufficient remedy for any actual or threatened breach of the provisions of this Addendum by Customer or Customer Authorized Users and that, in addition to all other remedies, UpToDate is entitled to seek specific performance and injunctive or other equitable relief as a remedy for any such breach, and Customer further agrees to waive, and to use its best efforts to cause its directors, officers, employees, and agents to waive, any requirement for the proving of actual money damages or securing or posting of any bond in connection with such remedy.

1.16 DISCLAIMER OF WARRANTIES. UPTODATE RECEIVES DATA AND INFORMATION FROM MANY INDEPENDENT SOURCES, INCLUDING DRUG MANUFACTURERS AND GOVERNMENT AGENCIES.  UPTODATE CANNOT, AND DOES NOT, INDEPENDENTLY REVIEW, VERIFY, TEST, OR SUBSTANTIATE THE CONTENT FOR ACCURACY, TIMELINESS, OR COMPLETENESS AND DISCLAIMS ALL RESPONSIBILITY FOR ANY OMISSIONS OR ERRORS THEREIN AND FOR ANY ADVERSE CONSEQUENCES RESULTING THEREFROM.  IN ADDITION, THE CONTENT MAY NOT NECESSARILY COVER ALL POSSIBLE USES, DIAGNOSES, TREATMENT OPTIONS, DIRECTIONS, PRECAUTIONS, DRUG INTERACTIONS, DOSAGE LIMITATIONS, LOCAL PRACTICES, OR ADVERSE EFFECTS APPLICABLE TO A PARTICULAR HEALTH CONDITION, DRUG OR TREATMENT OR A PARTICULAR PATIENT.  ALTHOUGH THE CONTENT COVERS A WIDE RANGE OF HEALTH CONDITIONS, PRESCRIPTION AND NON-PRESCRIPTION DRUGS AND TREATMENT OPTIONS, IT DOES NOT INCLUDE ALL HEALTH CONDITIONS, DRUGS, VACCINES, DEVICES, AND DIAGNOSTIC AGENTS.  ACCORDINGLY, AND WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, THE ABSENCE OF A WARNING FOR A GIVEN HEALTH CONDITION, DRUG OR DRUG COMBINATION, OR TREATMENT OPTION IS NOT AN INDICATION THAT NO SUCH WARNING MAY BE RELEVANT TO A PARTICULAR PATIENT.  MOREOVER, THE CONTENT THAT MAY BE PROVIDED TO CUSTOMER OR CUSTOMER AUTHORIZED USERS MAY PROVIDE USEFUL INFORMATION ABOUT HEALTH CONDITIONS, MEDICATIONS, AND TREATMENT OPTIONS, BUT THE CONTENT IS LIMITED AND MAY BE CONFUSING TO CERTAIN PATIENTS WHEN NOT INTERPRETED BY A HEALTHCARE PROFESSIONAL.  THE CONTENT IS NOT INTENDED, AND CUSTOMER AGREES NOT TO RELY ON, AND AGREES TO INSTRUCT CUSTOMER AUTHORIZED USERS NOT TO RELY ON, THE CONTENT AS A SUBSTITUTE FOR THE KNOWLEDGE, EXPERTISE, SKILL, VERBAL COUNSELING, PHYSICAL DEMONSTRATION OF AN ADMINISTRATION TECHNIQUE, OR JUDGMENT OF PHARMACISTS, NURSES, PHYSICIANS, OR OTHER HEALTHCARE PROFESSIONALS IN PATIENT CARE.

IN LIGHT OF THE FOREGOING, THE UPTODATE LICENSED CONTENT IS FURNISHED BY UPTODATE “AS IS” AND UPTODATE, ITS AFFILIATES, AND ITS LICENSORS MAKE NO REPRESENTATIONS OR WARRANTIES WITH RESPECT TO THE UPTODATE LICENSED CONTENT OR ANY SERVICES HEREUNDER AND DISCLAIM ALL IMPLIED REPRESENTATIONS AND WARRANTIES OF ANY KIND OR NATURE ARISING OUT OF OR RELATED TO THIS ADDENDUM, THE UPTODATE LICENSED CONTENT, OR RESULTS DERIVED THEREFROM INCLUDING, BUT NOT LIMITED TO, ANY REPRESENTATIONS AND WARRANTIES (i) REGARDING COMPREHENSIVENESS, SUITABILITY, AVAILABILITY, COMPATIBILITY, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT OF THE UPTODATE LICENSED CONTENT (IRRESPECTIVE OF ANY COURSE OF DEALING, CUSTOM, OR USAGE OF TRADE) OR ANY WARRANTY THAT THE CONTENT SATISFIES GOVERNMENT REGULATIONS.  NO UPTODATE OR LICENSOR EMPLOYEE, CONSULTANT, REPRESENTATIVE OR AGENT IS AUTHORIZED TO MAKE ANY STATEMENT THAT ADDS TO OR AMENDS THE WARRANTIES OR LIMITATIONS CONTAINED IN THIS ADDENDUM.

1.17 LIMITATION OF LIABILITY. NOTWITHSTANDING ANYTHING IN THIS ADDENDUM TO THE CONTRARY, IN NO EVENT SHALL UPTODATE, ITS AFFILIATES OR ITS LICENSORS, OR ANY OF ITS OR THEIR RESPECTIVE DIRECTORS, OFFICERS, EMPLOYEES OR AGENTS, BE LIABLE TO CUSTOMER, CUSTOMER AUTHORIZED USERS, ITS OR THEIR PATIENTS OR ANY THIRD PARTY WHOSE CLAIM IS RELATED TO THIS ADDENDUM OR USE OF THE UPTODATE LICENSED CONTENT, UNDER ANY THEORY OF TORT, CONTRACT, STRICT LIABILITY, OR OTHER LEGAL OR EQUITABLE THEORY, FOR: (A) DAMAGES OF ANY KIND ARISING OUT OF THE USE OF, ACCESS TO, RELIANCE ON, INABILITY TO USE, OR IMPROPER USE OF THE UPTODATE LICENSED CONTENT OR (B) FOR ANY CLAIMS, DAMAGES OR COSTS OF ANY NATURE IN AN AMOUNT EXCEEDING THE LICENSE FEES ATTRIBUTABLE TO THE UPTODATE LICENSED CONTENT PAID BY CUSTOMER TO LICENSOR DURING THE TWELVE (12) MONTHS PRECEDING THE EARLIEST EVENT GIVING RISE TO SUCH SPECIFIC INSTANCE OF LIABILITY.  IN NO EVENT WILL LICENSOR, UPTODATE, ITS SUBSIDIARIES OR AFFILIATES, OR ANY OF ITS OR THEIR SUBSIDIARIES, AFFILIATES, OFFICERS, DIRECTORS, EMPLOYEES, OR AGENTS BE LIABLE TO CUSTOMER, CUSTOMER AUTHORIZED USERS, ITS OR THEIR PATIENTS OR ANY THIRD PARTY WHOSE CLAIM IS RELATED TO THIS ADDENDUM, UNDER ANY THEORY OF TORT, CONTRACT, STRICT LIABILITY OR OTHER LEGAL OR EQUITABLE THEORY, FOR CONSEQUENTIAL, INCIDENTAL, INDIRECT, PUNITIVE OR SPECIAL DAMAGES (INCLUDING, WITHOUT LIMITATION, LOSS OF PROFITS, DATA, BUSINESS, OR GOODWILL), REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE OR WHETHER A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.  THIS LIMITATION OF LIABILITY AS WELL AS THE DISCLAIMERS SET FORTH HEREIN ARE INDEPENDENT OF ANY REMEDIES SET FORTH HEREIN AND WILL SURVIVE AND APPLY EVEN IF SUCH REMEDIES ARE FOUND TO HAVE FAILED OF THEIR ESSENTIAL PURPOSE.  CUSTOMER ACKNOWLEDGES THAT THIS LIMITATION OF LIABILITY IS A MATERIAL PART OF THE CONSIDERATION PROVIDED BY CUSTOMER IN EXCHANGE FOR THE RIGHTS CUSTOMER HAS BEEN GRANTED HEREUNDER.