1.1. “Authorized User” means Customer’s equity owners or employees, and any other Persons that have otherwise (a) been pre-approved in writing by Customer, and (b) agreed to abide by terms and conditions no less restrictive than those set forth in this Agreement. 

1.2. “Customer” has the meaning set forth above.

1.3. “Documentation” means the most current operating manual(s) for the applicable version of the Licensed Platform generally made available to end users by Imagine, whether in written or electronic form.  The Documentation substantially reflects the functionality of the version of the Licensed Platform referenced in the Documentation, however Customer understands and hereby acknowledges the Licensed Platform undergoes continuous modification intended to improve its functionality, and sometimes the Documentation content may lag behind the state of the most current version of the Licensed Platform. 

1.4. “Effective Date” is the date set forth in the table above.

1.5. “Fees” means, collectively, the Implementation Services Fee, License Fees, and Professional Services Fees, if any, due from Customer to Imagine.

1.6. “Go-Live Date” means the first day that Customer processes a payment transaction using the Licensed Platform.

1.7. “Hardware” means any tangible property comprising a computer or computer system, including (but not limited to) computers, workstations, printers, scanners, monitors and displays, networking devices such as routers, switches and modems, keyboards, mice, power supplies, and cabling.

1.8. “Imagine” has the meaning set forth in the opening paragraph.

1.9. “Implementation Services” means services by provided by Imagine for the implementation of the ImaginePay™ product.

1.10. “Implementation Services Fee” means the fee due from the Customer to the Imagine set forth on an SOW for the Implementation Services.

1.11. “License” means the license to use the Licensed Platform granted under Section 2.

1.12. “License Fees” means the fees Customer is obligated to pay to the Imagine in exchange for the License (unless waived for Customer’s agreement to use only Approved Processors) or under an SOW.

1.13. “Licensed Platform” means the ImaginePay™ payment platform.

1.14. “Parties” means Imagine and Customer together.  “Party” means either Imagine or Customer. 

1.15. “Person” means any natural person or any private or governmental entity, including (but not limited to) a corporation, partnership, limited liability company, government or governmental agency, department, or other subdivision.

1.16. “SOW” means a statement of work listing specific activities, deliverables, timelines, services, requirements, and/or pricing relating to services provided by Imagine to Customer hereunder.

1.17. “Term” means the time period starting on the Effective Date ending on the date this Agreement terminates.

1.18. “Territory” means the United States of America and its possessions, unless otherwise specified in an SOW.

2.1. Customer may copy the Documentation in order to make the Documentation available to all Authorized Users.  Otherwise, Customer shall not copy the Documentation in whole or in part for any reason.

2.2. Customer shall not re-license, sublicense, timeshare, make available as an application service or otherwise market, transfer or distribute to any other Person all or any part of any Licensed Platform or the Documentation, or any right, title or interest therein of any kind.

2.3. Customer shall not modify, translate, patch, alter or otherwise change the Licensed Platform or the Documentation or any part thereof, or create any derivative works thereof.

2.4. Customer shall not publish the results of any benchmark or performance tests of the Licensed Platform.

2.5. Customer shall observe and comply with Imagine’s proprietary rights and access rights set forth herein.

2.6. Customer shall: (a) notify Imagine in writing immediately of the unauthorized possession or use of the Licensed Platform or Documentation or any portion thereof; (b) assist in correcting any such unauthorized possession or use; and (c) cooperate with Imagine in any litigation against any Person instituted by Imagine to protect its proprietary rights.

2.7. Except for the License, Customer obtains no right, title, or interest in or to the Licensed Platform, the Documentation, or any other intellectual property of Imagine by virtue of any provision of this Agreement, and Customer shall not assert or claim any such right, title or interest.  To assist Imagine in the protection of its property rights, Customer shall permit reasonable inspections by representatives of Imagine to review Customer’s confidentiality policies and procedures relating to the safeguard of the Licensed Platform and the Documentation and the use thereof.  Additionally, Customer shall allow Imagine to examine the contents of the Authorized System, Customer’s hard drives, and other storage media to confirm that Customer’s use of Licensed Platform complies with this Agreement.

2.8. Upon termination of the License, Customer shall immediately erase, destroy, or return to Imagine all copies of the Documentation (current and former versions, if applicable) in Customer’s possession, including all archival copies of the Documentation stored on any form of archival magnetic or other electronic media.

2.9. Customer shall enter into, and remain in for the duration of the Term, a merchant transaction processing agreement with an Authorized Processor. 

4.1. Through ImaginePay™, Imagine enables functionality permitting Customer to use the Licensed Software to charge a patient’s credit card for amounts Customer (or any of its customers) is owed after (a) deducting any and all amounts such patient has paid to the Customer, and (b) such patient’s insurance has paid Customer everything such insurance is obligated to pay toward such patient’s medical bill.  In exchange for and as a condition to enabling this functionality, Customer represents and warrants to Imagine that the following statements are true and correct, and will remain true and correct throughout the term of the Agreement:

a. Customer maintains an account in good standing with an Approved Processor.

b. Customer complies with all applicable laws and regulations.

c. Customer is solely responsible (or, at least, Imagine is not responsible) for any and all costs and expenses of acquiring and maintaining all Hardware, resources, and facilities (including without limitation trained and capable staff and Internet connectivity and service) required to effectively use the Licensed Platform. 

d. Customer maintains financial policies and procedures that govern its billing and collection processes in accordance with all applicable state and federal laws.

e. Customer has obtained and shall continue to obtain, and shall make available to Imagine upon request, written authorization to draw payment on any credit card or process any form of payment provided by a patient for the services rendered to such patient.

f. Customer shall obtain and make available to Imagine any applicable informed consents or required authorizations to bill patients for (a) in-network covered services and (b) out-of-network or non-covered services, including any applicable advance beneficiary notices required by the applicable payors. 

g. Customer acknowledges and agrees that it is solely responsible for compliance with any notifications, informed consents, advance beneficiary notices, and other communications required by applicable laws.

h. Customer acknowledges and agrees that its financial policies and procedures do not violate or conflict with any payor or participation agreements with third-party payer programs, including, without limitation, any state or federal healthcare programs.

i. Customer agrees to indemnify, defend, and hold harmless Imagine and its officers, directors, employees, and agents from and against any and all claims, penalties, losses, liabilities, judgments, settlements, awards, damages, costs, and expenses (including, without limitation, reasonable attorney’s fees) arising (directly or indirectly) out of Customer’s use of the Licensed Platform and Customer’s failure to pay any Fees when due.  This indemnity shall not apply to any claims for personal injury, death or property damage to the extent arising from Imagine’s negligence or willful misconduct when performing services on Customer’s premises.

5.1. Customer shall possess and use the Licensed Platform in (and only in) strict accordance with the terms of the License.

5.2. The owner (whether Imagine or another Person) of each item of intellectual property (including without limitation patent, copyright, trademark, and similar rights) embodied in the Licensed Platform or any component thereof shall possess and retain title in and to each such item of intellectual property, including, without limitation, all intellectual property embodied in (a) all Licensed Platform and programming documentation, (b) all Documentation, user manuals, guides or other user documentation relating to the Licensed Platform, (c) the design and format of the input and output screens, graphical user interface, and printable forms, reports and other hard copy output incorporated in or generated by the Licensed Platform, and (d) all additions, enhancements, revisions, updates or other modifications to the Licensed Platform or any part thereof, regardless of any fee or charge paid by Customer to Imagine in respect of the Licensed Platform or the design, creation or use of any portion thereof.  Customer has no interests in the Licensed Platform other than those stated herein.  Customer shall not make any claim or take any action inconsistent with this Subsection.

5.3. Each item of intellectual property embodied in the Licensed Platform or any component thereof as to which no public disclosure has been made constitutes valuable proprietary information and trade secrets of the owner of such intellectual property.  Customer shall not disclose (nor permit any Authorized User, Customer employee, contractor, agent, or other Person under its authority or control, to disclose) to any Person, or allow any Person access to, any such proprietary information or trade secrets in whole or in part; provided, however, use of the Licensed Platform in accordance with the terms and conditions of this Agreement shall be permitted by Authorized Users in the ordinary course and scope of their services to Customer. 

5.4. Customer shall not cause or permit removal or alteration of any notice, legend or symbol denoting any copyright, trademark, patent or other proprietary right or interest of the intellectual property owner appearing on any input or output screen or hard copy output incorporated in or generated by the Licensed Platform, or the Documentation, or any documentation, manuals, brochures, or other written or printed materials of any kind related to the Licensed Platform.

5.5. Customer shall not cause or permit (a) the Licensed Platform to be reverse engineered, decompiled, or disassembled in whole or in part, or (b) the design, structure, or source code of the Licensed Platform to be derived by any means, in whole or in part.  Except as expressly permitted herein, Customer shall not cause or permit the Licensed Platform, the Documentation, or other information related to the Licensed Platform to be copied or reproduced in any form or medium, in whole or in part.

5.6. Customer shall take such actions to preserve and protect the confidentiality of all of Imagine’s intellectual property which are, at a minimum, commensurate with those actions taken by Customer (or which would be taken by Customer if acting prudently) to preserve and protect its most valuable trade secrets or other proprietary or confidential information.  Customer’s confidentiality obligations hereunder do not apply to any information which (a) was lawfully and rightfully in Customer’s possession at the time of disclosure and was not acquired directly or indirectly from the intellectual property owner, (b) was lawfully and rightfully acquired by Customer from others who acquired it by proper means and had no confidentiality obligation to the intellectual property owner with respect to same, or (c) is now, or hereafter becomes, through no fault of Customer, part of the public domain by publication or otherwise.

5.7. Any derivative work of the Licensed Platform or Documentation produced or funded by Customer in whole or in part shall be considered part of the Licensed Platform and Imagine shall at all times retain exclusive title to and ownership of all such derivative works, and Customer shall provide to Imagine promptly upon demand copies of all programs, documentation, design schematics, or other written or graphic materials related to any such derivative works.  Customer hereby assigns to Imagine any and all right, title and interest Customer may have now or in the future in and to any and all such derivative works.  Customer shall execute and deliver to Imagine promptly upon request any document or instrument reasonably requested by Imagine from time to time to evidence or give effect to such assignment.

5.8. Neither Party shall infringe upon or otherwise make use of any trademark, service mark, trade name, or similar right or interest of the other Party without such other Party’s prior written consent.

6.1 Unless otherwise expressly stated herein, the Fees, charges, and reimbursements set forth in this Agreement do not include shipping charges, or any sales, use, withholding, excise, or other taxes now or hereafter imposed on the production, storage, transportation, import, export, licensing or use of the Licensed Platform or other products or services provided under this Agreement.  Such expenses and taxes shall be paid by Customer, and Customer shall reimburse Imagine promptly upon demand for any such expenses or taxes advanced by Imagine on Customer’s behalf or otherwise incurred by Imagine.

6.2 Fees, charges, and reimbursements for standard setup of the Licensed Platform, and for training of Customer’s personnel, are set forth in an SOW unless waived in exchange for Customer’s agreement to use only Approved Processors.  Any additional setup or training services shall be invoiced to Customer at Imagine’s Professional Services Fees rates set forth in an SOW.

7.1 Customer shall pay in full when due all Fees, charges, and reimbursements provided for in this Agreement.  All Fees, charges, and reimbursements under this Agreement are quoted and payable in US dollars.

7.2 Except as otherwise set forth in this Agreement, all Fees, charges, and reimbursements owed by Customer under this Agreement shall be due and payable within ten (10) days after the date of the applicable invoice provided to Customer by Imagine.  Delinquent amounts owed by Customer shall accrue interest at the rate equal to the lesser of (a) one and one-half percent (1.5%) per month, compounded monthly, or (b) the maximum amount permitted by law.  Such delinquency interest shall be in addition to, and not in lieu of, any and all other rights and remedies of Imagine in respect of such delinquency available at law, in equity or otherwise under this Agreement.  No such interest accrued in respect of a delinquency shall be payable with respect to billed amounts disputed by Customer in good faith while such dispute is pending.  Once such dispute has been finally resolved, to the extent it is resolved in Imagine’s favor, such accrued interest shall be immediately due and payable to Imagine by Customer.

7.3 Payments due from Customer to Imagine are made by automated clearing house (ACH) transfer initiated by Imagine. Customer shall, upon the execution of this Agreement, provide to Imagine a completed copy of Imagine’s ACH transfer authorization form.

10.1 In the event of a breach of Imagine’s warranty under Section 8, Imagine shall, at its option and expense, either (a) procure for Customer a license permitting Customer to use the Licensed Platform as contemplated by this Agreement; (b) modify the Licensed Platform so that it is non-infringing and provides substantially equivalent functionality and performance; or (c) terminate the License.  Notwithstanding any other provision of this Agreement, Imagine shall have no liability or responsibility with respect to infringement claims related to Third Party Software.  Except for Customer’s right to indemnification under Section 8, this Section states Customer’s exclusive remedy and Imagine’s sole obligation in respect of the Licensed Platform’s infringement of any third party intellectual property rights.

10.2 Notwithstanding any other provisions of this Agreement, Customer's exclusive remedy in respect of or related (directly or indirectly) in any way to any defect or deficiency of the Licensed Platform (including without limitation any defect or deficiency in the Licensed Platform’s design, use, suitability, performance, features, or other characteristics, regardless of the applicability of any warranty) shall be for Imagine, at its option and at no cost or charge to Customer, to either: (a) repair or correct the defect or deficiency within a commercially reasonable time; (b) replace the portion of the Licensed Platform exhibiting the defect or deficiency with replacement software that corrects the defect or deficiency without a material adverse effect on the utility of the Licensed Platform; (c) replace the Licensed Platform in its entirety with other Software whose functionality is substantially the same as the Licensed Platform; or (d) terminate the License.

13.1 Termination at Will.  Either Party may terminate this Agreement by providing ninety (90) days written notice to the other Part. For the purpose of clarification, if neither Party terminates this Agreement, the Term of this Agreement shall continue until it is terminated in accordance with this Section.

13.2 Termination for Breach of Proprietary Rights.  In the event Customer breaches any of its obligations under Section 5 of this Agreement, Imagine may terminate this Agreement upon written notice to Customer’s legal contact, and Customer shall have no right of cure in respect of such breach.

13.3 Termination for Payment Breach.  In the event any amount payable by Customer to Imagine under this Agreement remains delinquent more than thirty (30) days after Customer’s billing contact is given written notice of such delinquency, Imagine may terminate this Agreement upon written notice to Customer’s legal contact.

13.4 Termination for Performance Breach.  In the event either Party breaches any of its obligations under this Agreement (other than a breach referred to in Subsection 13.2 or 13.3) and such breach remains uncured more than sixty (60) days after the breaching Party is given written notice of such breach, the non-breaching Party may terminate this Agreement by written notice to the breaching Party.

13.5 Termination for Insolvency.  If Customer becomes insolvent, Imagine may terminate this Agreement upon written notice to Customer’s legal contact.  For this purpose, Customer shall be conclusively deemed “insolvent” if: (a) Customer voluntarily makes an assignment for the benefit of creditors or files a voluntary petition in bankruptcy; (b) an involuntary petition in bankruptcy is filed against Customer and such petition is not dismissed within sixty (60) days of the date of filing; (c) a court of competent jurisdiction appoints a trustee or receiver for substantially all of the assets of Customer for the benefit of creditors; or (d) a levy of execution is made upon substantially all of the assets of Customer and such levy is not quashed or dismissed within sixty (60) days.

13.6 Termination for Upon Certain Events.  In the event (a) Customer dissolves, reorganizes, or terminates its business or existence, or (b) the owner of a majority of the equity or voting interests in Customer dies or is declared legally incompetent, Imagine shall have the right to terminate this Agreement upon ten (10) days written notice to Customer’s legal contact. 

13.7 Effect of Termination.  Upon the termination of this Agreement for any reason, the License and other rights granted Customer hereunder shall immediately terminate, and within ten (10) days thereafter Customer shall return to Imagine or destroy all copies of current and prior versions of the Documentation in Customer’s possession or control and upon Imagine’s request confirm to Imagine in writing that Customer has no copies of any current or prior versions of the Documentation in Customer’s possession or control.  All amounts owed by either Party to the other as of the date of termination shall remain due and payable as provided in this Agreement, and all provisions of this Agreement regarding payment of such amounts shall survive termination of this Agreement.  Each provision of this Agreement other than (a) the grant of the License to Customer under Section 2, and (b) Subsections 13.1 through 13.6 shall survive termination of this Agreement until all obligations to which such provision may be applicable shall be fully performed and satisfied.

14.1. Governing Law.  This Agreement shall be governed by and construed enforced in accordance with the laws of the State of North Carolina without regard to any choice of law or conflicts of law rules or principles of the State of North Carolina or any other jurisdiction.

14.2. Schedules and Exhibits.  The Schedules and Exhibits (if any) attached to this Agreement are by this reference incorporated into and made a part of this Agreement for all purposes.

14.3. Relationship Between the Parties.  The relationship between the Parties is that of vendor and customer, and nothing in this Agreement shall be construed as creating a joint venture, partnership, or employment or other principal-agent relationship between the Parties or between either Party and any employee or contractor of the other Party.  For the avoidance of doubt, neither Party shall have the right, power or authority legally bind the other Party or create any obligation or duty, whether express or implied, on behalf of the other Party.

14.4. Assignment.  Imagine may freely assign, transfer, or encumber any of its rights or obligations under this Agreement.  Customer may not assign or otherwise transfer or encumber its interest in this Agreement without the written consent of Imagine.  Any single assignment or single transfer to which Imagine may consent shall not relieve Customer of any of its obligations hereunder.  If Customer is an entity, any change (whether voluntary or involuntary) in the ownership or control (whether direct or indirect) of twenty-five percent or more of the equity or voting interests in the entity shall constitute an “assignment” for purposes of this Subsection.  Acceptance of payment or performance hereunder by Imagine after any assignment by Customer in violation of this Subsection shall not constitute consent to or approval of such assignment by Imagine.  In no event shall this Agreement be assignable by operation of any law, and Customer's rights hereunder may not become and shall not be set forth by Customer as an asset under any bankruptcy, insolvency, or reorganization proceedings.

14.5. No Implied Waiver.  A Party’s failure to exercise any right hereunder, or to insist upon the other Party’s strict compliance with any obligation hereunder, shall not constitute a waiver of the Party’s right at any subsequent time to exercise such right or to exact such compliance.  with the terms hereof.  A Party’s waiver of a particular default by the other Party shall not constitute a waiver of the other Party’s default under any other provision of this Agreement.

14.6. Construction.  Captions and Section headings used in this Agreement are for convenience of reference only and shall not be used in construing it.  Each Schedule attached to this Agreement is by this reference incorporated into this Agreement and made a part hereof.  This Agreement reflects the negotiation and bargaining of the Parties and no inference shall be drawn against a Party as the draftsman of this Agreement in whole or in part.

14.7. Notices.  All notices or other communications between the Parties contemplated by this Agreement, shall be in writing, in English, and sent by either a prepaid third-party delivery service with tracking capabilities and delivery confirmation, facsimile or email to the recipient’s address provided herein corresponding to the delivery method used.  Notices sent from the Imagine to the Customer shall be sent to the appropriate contact person listed. Communications sent by a third-party delivery service shall be deemed given and received at the time reflected in the third-party delivery service’s delivery confirmation.  Such communications sent by facsimile or email shall be deemed given and received at the time reflected in the machine generated electronic transmission and delivery confirmation.  Either Party may change its addresses for such communications from time to time by a notice to the other Party given in accordance with this Subsection.

14.8. Force Majeure.  Neither Party will have the right to claim damages or to terminate this Agreement as a result of the other Party's failure or delay in performance (other than with respect to payment obligations) due to circumstances beyond its reasonable control, such as labor disputes, strikes, lockouts, shortages of or inability to obtain labor, fuel, raw materials or supplies, war, riot, insurrection, epidemic, acts of God, acts of the other Party or governmental action not the fault of the non-performing Party.

14.9. Severability.  The invalidity, illegality, or unenforceability of any provision of this Agreement shall not render invalid, illegal, or unenforceable any other provision hereof, and the remainder of this Agreement shall remain in full force and effect.

14.10. Supremacy.  This Agreement, including the Schedules attached hereto, contains the full understanding of the parties, and supersedes all prior or contemporaneous agreements and understandings (except any existing non-disclosure agreement in effect between the parties, which shall continue according to its terms), written or oral, between the parties with respect to the subject matter hereof, and there are no representations, warranties, agreements, or understandings other than those contained herein.  No alteration, modification, variation, or waiver of this Agreement, or any of the provisions hereof shall be effective unless executed by both parties in writing.  This Agreement shall inure to the benefit of and be binding upon the Parties, their respective trustees, successors, permitted assigns and legal representatives.

14.11. Dispute Resolution.  If a dispute arises from or relates to this Agreement or the breach thereof, and if the dispute cannot be settled through direct discussions, the Parties agree to endeavor first to settle the dispute by mediation administered in Charlotte, North Carolina by the American Arbitration Association under its Commercial Mediation Procedures before resorting to arbitration.  The Parties further agree that any unresolved controversy or claim arising out of or relating to this Agreement, or breach thereof, shall be settled by arbitration administered by the American Arbitration Association in accordance with its Commercial Arbitration Rules.  The arbitration shall take place before a panel of three (3) arbitrators, and judgment on the award rendered by the arbitrators may be entered in any court having jurisdiction thereof.  Notwithstanding the foregoing, either Party may immediately bring a proceeding seeking preliminary injunctive relief in a state or federal court located in Mecklenburg County, North Carolina, which shall remain in effect until a final award is made in the arbitration.  Such courts shall be the exclusive forums for all such proceedings initiated by either Party under or in connection with this Agreement or the subject matter hereof.  Each Party consents to the jurisdiction of such courts and agrees that venue in such courts shall be convenient and proper in connection with all such proceedings.  Each Party agrees not to commence any such proceeding in any other forum.  Each Party consents to service of process by U.S. mail in connection with any such proceedings.  Customer acknowledges that the rights of Imagine in its proprietary and confidential information are unique and, accordingly, Imagine shall, in addition to such other remedies as may be available to it at law or in equity, have the right to enforce its rights hereunder by an action for injunctive relief, specific performance, and damages to the full extent permitted by law.