2022 Best in KLAS Patient Intake Management
2022 BEST IN KLAS

PATIENT INTAKE MANAGEMENT

MASTER SERVICES AGREEMENT 

Last Updated: July 5, 2022

This Master Services Agreement (the “Agreement”), effective as of the last date of the last Party’s signature (the “Effective Date”), is made by and between Phreesia, Inc., a Delaware corporation with a principal place of business at 434 Fayetteville Street, Suite 1400, Raleigh, NC 27601 (“Phreesia”), and the customer executing this Agreement below (“Customer”). Phreesia and Customer shall herein be referred to each as a “Party” and collectively as the “Parties.” This Agreement governs the terms and conditions upon which the Customer has agreed to engage Phreesia to provide certain products and services from time to time pursuant to one or more Order Forms. Each Order Form will be governed by and incorporated into this Agreement. In consideration of the mutual promises and covenants contained in this Agreement, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties agree as follows:

1. DEFINITIONS

1.1 Affiliates means any corporation, partnership or other entity now existing or hereafter organized that directly or indirectly controls, is controlled by or under common control with a Party. For purposes of this definition “control” means the direct possession of a majority of the outstanding voting securities of an entity.

1.2 Arrivals Stations are kiosk devices designed by Phreesia for in office patient registration.

1.3 Business Associate Agreement or BAA means the HIPAA Business Associate Agreement attached hereto or referenced herein as Exhibit A.

1.4 Confidential Information has the meaning given to it in Section 4.1.

1.5 Custom Content means a patient-reported outcome (PRO) and/or screening tool that: (a) is not available in Phreesia’s library and not otherwise offered as part of any existing Product or Service, (b) has been authored and/or copywritten by a source other than Customer or Phreesia, and (c) is or will be administered and/or deployed through Phreesia Products.

1.6 Customer Data means all Data made available by Customer or its Users to Phreesia or otherwise provided by Customer or its Users in connection with the Products.

1.7 Dashboard means Phreesia’s secure hosted solution allowing designated Users to access, manage and store certain patient records made available in connection with the Subscription Service.

1.8 Data means text, images, documents, materials and all other forms of data or communication.

1.9 DDA means Customer’s designated demand deposit account.

1.10 Documentation means the documentation for the Products generally supplied by Phreesia to assist its customers in the use of the Products.

1.11 Hardware is the equipment provided by Phreesia to Customer for use in connection with the Subscription Service. Hardware shall be listed on the applicable Order Form and may include PhreesiaPads and Arrival Stations.

1.12 Implementation Services means the configuration and implementation of the Products set forth and described on an Order Form.

1.13 Integration Addendum means a schedule or addendum to an Order Form that describes the process by which the Subscription Service will be integrated for use by Customer with Customer’s third party electronic medical record and/or practice management system.

1.14 Location(s) means the specific customer facility or facilities, listed on the Order Form, where the Products will be used.

1.15 Open Source Software means any software that is distributed as free software, open source software (e.g., Linux or software distributed under any license approved by the Open Source Initiative as set forth at www.opensource.org) or under a similar licensing or distribution model, and as to any of the foregoing, that requires any one or more of the following (i) redistribution of the software on a royalty-free basis, and/or (ii) redistribution of the software under the same license/distribution terms as those contained in the software license under which such software was originally released, and/or (iii) release to the public, disclosure, or a requirement to otherwise make available the source code of the software or any other software that links with such software.

1.16 Order Form means each Phreesia ordering document signed or electronically accepted by duly authorized representatives of both Parties which references this Agreement, identifies the specific Products ordered by Customer from Phreesia, sets forth the prices for the Products and contains other applicable terms and conditions.

1.17 Payments Gateway means the tool used by Phreesia to facilitate a payment transaction by transferring information between a payment portal and the Customer’s bank.

1.18 Phreesia Data means all Data made available by Phreesia to Customer in connection with the Customer’s use of the Services.

1.19 PhreesiaPads are purpose-built tablets designed by Phreesia for in office patient registration.

1.20 Practice-Developed Content means content that: (a) has been created by Customer, and (b) Customer has requested Phreesia to include in the Products.

1.21 Practice Management Appointment Schedule is a tool used by staff to schedule appointments or visits for patients.

1.22 Products means the Software, Hardware and Services, as the case may be.

1.23 Professional Services means consulting and/or custom services to be provided by Phreesia. All Professional Services will be set forth and described in a SOW.

1.24 Provider shall mean any individual Customer clinician or authorized resource that has scheduled appointments. Each Provider will have a unique schedule in the Dashboard.

1.25 Provider License is a license to use the Subscription Service granted for one Provider as described herein.

1.26 Service Level Agreement or SLA means Phreesia’s service level commitment as set forth and described on Exhibit B attached hereto for both the Subscription Service and the Hardware.

1.27 Services means the Subscription Service, Implementation Services and any Professional Services provided by Phreesia.

1.28 Software means any software provided by Phreesia to Customer including via its use of the Subscription Service or embedded in any Hardware.

1.29 SOW means a Statement of Work referencing this Agreement and entered into by both Parties from time to time that describes the Professional Services to be provided by Phreesia, sets forth the prices for the Professional Services and contains certain other related terms as agreed between the Parties.

1.30 Subscription Service means Phreesia’s proprietary subscription-based patient intake management solutions set forth on the applicable Order Form and as defined in Exhibit F.

1.31 Users mean individuals who are authorized by the Customer to use the Subscription Service. Users consist of any employee of the Customer or its Affiliates and any independent contractor of the Customer or its Affiliates.

1.32 Work Product means any deliverables, content, reports, analyses or documentation developed by Phreesia on behalf of Customer and delivered to the Customer in the performance of any Professional Services.

2. SERVICES

2.1 Products. Phreesia shall provide the Customer with the specific Products specified on an Order Form or SOW, as the case may be. Any conflict between the terms and conditions set forth in this Agreement and any Order Form or SOW shall be resolved in favor of this Agreement unless the Order Form or SOW specifically references the conflicting provision of this Agreement that it is to supersede in which case such conflict will be resolved in favor of such Order Form or SOW (but only for such Order Form or SOW). The Customer agrees that purchases hereunder are neither contingent on the delivery of any future functionality or features nor dependent on any oral or written comments made by Phreesia regarding future functionality or features.

2.2 License Grant. Subject to the terms and conditions of this Agreement, and in consideration for the payment of fees set forth on the applicable Order Form, Phreesia hereby grants to Customer, solely during the term of the applicable Order Form, a non-exclusive, nontransferable (except as set forth in Section 12.2) license to access and use the Products solely for the Customer’s internal business purposes and solely at the applicable Locations. This license is restricted to use by Customer and its Users and does not include the right to use the Subscription Service on behalf of any third party. The Customer is responsible for procuring and maintaining the network connections that connect the Customer to the Subscription Service. The Customer agrees: (a) that only authorized Users are permitted to use the Products; (b) that it is responsible for its authorized Users’ actions or failures to act in connection with activities contemplated under this Agreement, and (c) to otherwise take all commercially reasonable steps to protect the Products from unauthorized use and/or access and from any loss or damage. Unless otherwise set forth on the Order Form, upon termination of the applicable Order Form, Customer shall return the Products to Phreesia in good working condition (reasonable wear and tear excepted). Customer shall immediately notify Phreesia in the event that any Products have been stolen, lost or damaged.

2.3 Affiliates. Subject to the terms of the Order Form, the Customer may make use of the Products available to its Affiliates provided that all licensing restrictions are complied with in each instance by each such Affiliate and that the Customer shall be liable for any breach of the terms and conditions of this Agreement by any of its Affiliates. Any license restrictions set forth on an Order Form shall be deemed to apply to both the Customer and its Affiliates. In addition, Customer’s Affiliates may acquire Products subject to the terms and conditions of this Agreement by executing Order Forms or SOWs hereunder directly with Phreesia. Each Order Form or SOW executed by an Affiliate hereunder shall incorporate the terms of this Agreement by reference and be deemed to be a two party agreement between Phreesia and such Affiliate. Each Affiliate executing an Order Form or SOW shall be responsible for its obligations pursuant to such Order Form and SOW as well as for the obligations to be performed pursuant to this Agreement.

2.4 Data Storage. Customer is solely responsible for maintaining its own system of record. Phreesia and Customer acknowledges and agrees that Phreesia is not Customer’s system of record and is not responsible for retaining any Customer Data except as necessary to perform under this Agreement and comply with applicable law. To the extent Phreesia retains Customer Data, Phreesia and Customer acknowledge and agree that all Customer Data entered into the Products by Customer or its employees, contractors or patients will be securely stored by Phreesia at designated data centers in accordance with HIPAA and all other applicable laws. Phreesia agrees to use industry standard physical and technical security measures to protect Customer Data.

2.5 Installation. Phreesia or its designated subcontractors shall assist Customer with the installation of the Products and Customer shall promptly schedule the installation, integration and implementation of the Products with Phreesia upon receipt of the Products.

2.6 BAA. The Parties each agree to comply with the terms and conditions set forth in the Business Associate Agreement. Notwithstanding anything in the Business Associate Agreement to the contrary, Customer shall be responsible for the unauthorized use or disclosure of any protected health information (PHI) or security incident as a result of Customer’s acts or omissions (including misusing or misconfiguring the Products).

2.7 Trial Subscriptions. If Customer receives free access or a trial or evaluation or promotion subscription to one or more Products (a “Trial Subscription”), then Customer may use the Trail Subscription in accordance with the terms and conditions of this Agreement for a period of thirty (30) days or such other period granted by Phreesia (the “Trial Period”). Trial Subscriptions are permitted solely for Customer’s use to determine whether to purchase a paid subscription to the Products. Certain Trial Subscriptions may include pre-release and beta products (“Beta Releases”). Trial Subscriptions may not include all functionality and features accessible as part of a paid Subscription Service. Phreesia has the right to terminate a Trial Subscription at any time for any reason. Unless otherwise stated or communicated to Customer, any Beta Releases trial period will expire upon the date that a version of the Beta Releases becomes generally available without the applicable Beta Releases designation. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT, PHREESIA WILL HAVE NO WARRANTY, INDEMNITY, DATA ARCHIVING, SERVICE LEVEL, OR SUPPORT OBLIGATIONS WITH RESPECT TO TRIAL SUBSCRIPTIONS AND WILL HAVE NO LIABILITY FOR ANY HARM OR DAMAGE ARISING OUT OF OR IN CONNECTION WITH BETA RELEASES. At the end of the Trial Period, if neither party has terminated the Trial Subscription, then (i) if Customer continues to use the Trial Subscription, then the Customer shall be charged the then going monthly rate for the Trial Subscription which shall be reflected in the respective Change Notification and (ii) the Trial Subscription shall become a part of the Subscription Service.

3. FEES; PAYMENT TERMS

3.1 Fees. The Customer agrees to pay Phreesia for the Products provided and expenses incurred on the basis and at the rates specified in each Order Form or SOW. Unless otherwise set forth on the Order Form or SOW, payment shall be due within thirty (30) days after receipt of Phreesia’s invoice and shall be made in US Dollars. Customer agrees to pay a late charge of one and one-half percent (1.5%) per month (or part of a month), or the maximum lawful rate permitted by applicable law, whichever is less, for all amounts, not subject to a good faith dispute, and not paid when due. In addition to paying the applicable fees, Customer shall also pay all reasonable travel and outof-pocket expenses incurred by Phreesia in connection with any Services rendered provided Customer pre-approves such expenses in advance in writing. Customer authorizes Phreesia to deposit funds and initiate debit entries to the DDA. Customer authorizes Phreesia to debit the DDA monthly for any fees and expenses associated with the Order Form. If Customer pays for any fees by check or payment card, and Customer does not remit such fees within thirty (30) days of Customer’s receipt of an invoice, Customer agrees that Phreesia will levy an automatic deposit fund hold, and hold merchant payments until such fees are paid in full. Customers paying for Products via Automated Clearing House (ACH) payment will not be assigned an automatic deposit fund hold unless Customer has not paid fees for ninety (90) days or more. If Customer’s payment is unable to be debited because of insufficient funds, Customer agrees to pay a $25 NSF fee per incident. Customer must notify Phreesia ten (10) days in advance if it changes or closes its DDA.

3.2 Disputed Charges. If the Customer disputes any charge or amount on any invoice and such dispute cannot be resolved promptly through good faith discussions between the Parties, the Customer shall pay the amounts due under this Agreement less the disputed amount, and the Parties shall proceed in good faith to promptly resolve such disputed amount. An amount will be considered disputed in good faith if (i) the Customer delivers a written statement to Phreesia on or before the due date of the invoice, describing in detail the basis of the dispute and the amount being withheld by the Customer, (ii) such written statement represents that the amount in dispute has been determined after due investigation of the facts and that such disputed amount has been determined in good faith, and (iii) all other amounts due from the Customer that are not in dispute have been paid as and when required under this Agreement.

3.3 Taxes. Fees are exclusive of taxes. The Customer shall be responsible for the payment of all sales, use and similar taxes arising from or relating to the Products rendered hereunder, except for taxes related to the net income of Phreesia and any taxes or obligations imposed upon Phreesia under federal, state and local wage laws.

3.4 Payment Processing. If Customer is using merchant processing services in connection with the Products then Customer must complete an application and separate Merchant Services Agreement (“MSA”) provided by Phreesia with its third party payment processor, commit to payment processing exclusively with Phreesia and must obtain and provide a Payment Card Industry Data Security Standards (“PCI DSS”) compliance certificate (“PCI Certificate”) within six (6) months of the date of the Order Form, and annually thereafter, as required by PCIDSS. Phreesia can support Customer’s PCI Certification upon request. Failure to submit the PCI Certificate on time may result in the assessment of non-compliance fees contained in the Order Form. All merchant processing services are provided by Phreesia on an “as is” basis without any warranty of any kind and Customer shall look solely to the third party payment processor with respect to any liability, losses, claims or damages suffered or incurred in connection with such merchant processing services. If Customer is using Payments Gateway, Phreesia will provide Customer access to payment card processing through the Payments Gateway. Any payments processed will be collected through the Products and routed to Customer’s merchant processor. Phreesia is responsible for the security of cardholder data that it possesses or otherwise stores, processes, or transmits on behalf of Customer on Phreesia’s networks and systems.

3.5 Payable Vendors. If Customers engages or commences to engage the services of a payable vendor such as Ariba, American Express, WA WF, PayPal, or other similar vendors, Phreesia will charge a five percent (5%) administrative fee above and beyond the Fees specified in the Order Form to defray the costs to Phreesia resulting from the Customer’s use of such vendor.

4. CONFIDENTIALITY

4.1 Confidential Information. During the term of this Agreement, each Party will regard any information provided to it by the other Party and designated in writing as proprietary or confidential to be confidential (“Confidential Information”). Confidential Information shall also include information which, to a reasonable person familiar with the disclosing Party’s business and the industry in which it operates, is of a confidential or proprietary nature. For the avoidance of doubt all Customer Data shall be deemed Customer’s Confidential Information. The receiving Party shall hold in confidence, and shall not disclose (or permit or suffer its personnel to disclose) any Confidential Information to any person or entity except to a Customer director, officer, employee, outside consultant, or advisor (collectively “Representatives”) who have a need to know such Confidential Information in the course of the performance of their duties for the receiving Party and who are bound by a duty of confidentiality no less protective of the disclosing Party’s Confidential Information than this Agreement. In addition non-employees of the Customer including, without limitation, outside consultants and advisors (“Outside Consultants”) must also (a) receive advanced written permission from Phreesia before the Customer can disclose the Confidential Information to the Outside Consultants and (b) sign a direct nondisclosure agreement with Phreesia. The receiving Party and its Representatives shall use such Confidential Information only for the purpose for which it was disclosed and shall not use or exploit such Confidential Information for its own benefit or the benefit of another without the prior written consent of the disclosing Party. Each Party accepts responsibility for the actions of its Representatives and shall protect the other Party’s Confidential Information in the same manner as it protects its own valuable confidential information, but in no event shall less than reasonable care be used. The Parties expressly agree that the terms and pricing of this Agreement are Confidential Information and the Customer further agrees that it shall not use the Products for the purposes of conducting comparative analysis, evaluations or product benchmarks with respect to the Products and will not publicly post any analysis or reviews of the Products without Phreesia’s prior written approval. A receiving Party shall promptly notify the disclosing Party upon becoming aware of a breach or threatened breach hereunder, and shall cooperate with any reasonable request of the disclosing Party in enforcing its rights.

4.2 Exclusions. Information will not be deemed Confidential Information hereunder if such information: (i) is known prior to receipt from the disclosing Party, without any obligation of confidentiality; (ii) becomes known to the receiving Party directly or indirectly from a source other than one having an obligation of confidentiality to the disclosing Party; (iii) becomes publicly known or otherwise publicly available, except through a breach of this Agreement; or (iv) is independently developed by the receiving Party without use of the disclosing Party’s Confidential Information. The receiving Party may disclose Confidential Information pursuant to the requirements of applicable law, legal process or government regulation, provided that it gives the disclosing Party reasonable prior written notice to permit the disclosing Party to contest such disclosure, and such disclosure is otherwise limited to the required disclosure.

4.3 Injunctive Relief. Notwithstanding any other provision of this Agreement, both Parties acknowledge that any use of the disclosing Party’s Confidential Information in a manner inconsistent with the provisions of this Agreement may cause the disclosing Party irreparable and immediate damage for which remedies other than injunctive relief may be inadequate. Therefore, both Parties agree that, in addition to any other remedy to which the disclosing Party may be entitled hereunder, at law or equity, the disclosing Party shall be entitled to an injunction or injunctions (without the posting of any bond and without proof of actual damages) to restrain such use in addition to other appropriate remedies available under applicable law.

5. WARRANTIES

5.1 Subscription Service Warranty. Phreesia warrants that during the term of any Order Form for the Subscription Service, the Subscription Service will conform, in all material respects, with the Documentation. Phreesia does not warrant that it will be able to correct all reported defects or that use of the Subscription Service will be uninterrupted or error free. Phreesia makes no warranty regarding features or services provided by third parties. Customer acknowledges and agrees that the Subscription Service will be subject to limitations inherent in the use of the internet, that Phreesia does not control the transfer of data over the internet, and that Phreesia is not responsible for any delays, delivery failures or other damage resulting from such problems, including any problems or damages of any kind that arise from any of Customer’s or its Users’ acts or omissions. For any breach of the above warranty, Phreesia will, at no additional cost to Customer, provide remedial services necessary to enable the Subscription Service to conform to the warranty. The Customer will provide Phreesia with a reasonable opportunity to remedy any breach and reasonable assistance in remedying any defects. Except for any additional remedies set forth in the Service Level Agreement, the remedies set out in this subsection are the Customer’s sole remedies for breach of the above warranty. Such warranty shall only apply if the Subscription Service has been utilized by the Customer in accordance with the Order Form, the Documentation and this Agreement.

5.2 Hardware Warranty. Phreesia warrants that during the term of any Order Form, the Hardware will conform, in all material respects, with the Documentation. Phreesia does not warrant that it will be able to correct all reported defects or that use of the Hardware will be uninterrupted or error free. As described in the SLA and the PhreesiaCare terms set forth in Exhibit B and C, as Customer’s sole and exclusive remedy for any breach of the foregoing warranty, Phreesia will repair or replace, at its election, Hardware discovered to be defective and returned by the Customer in accordance with Phreesia’s then current return policy. This warranty does not cover repair or replacement of any Hardware that malfunctions because of or is otherwise damaged as a result of (a) Customer’s failure to comply with the provisions and instructions contained in the Documentation; (b) the failure of anyone (other than Phreesia or its authorized service or supply contractors) to comply with the written instructions or recommendations contained in the Documentation; (c) any alteration or improper storage, handling, transporting, use or maintenance of any part of the Hardware by anyone other than Phreesia or its authorized service or supply contractors; or (d) any external force or unusual stress such as building structural deficiency, power surge, fluctuation or failure, or climate control failure.

5.3 Professional Services Warranty. Phreesia warrants that any Professional Services provided hereunder shall be provided in a competent manner and in accordance with any specifications set forth in the SOW in all material respects. Phreesia further warrants that any Work Product provided pursuant to any Professional Services engagement shall comply, in all material respects, with the specifications set forth in the applicable SOW. If the Services are not performed as warranted or the Work Product does not so comply, then, upon the Customer’s written request, Phreesia shall promptly re-perform, or cause to be re-performed, such Professional Services, at no additional charge to the Customer. Such warranties and other obligations shall survive for thirty (30) days following the completion of the Professional Services or the delivery of each applicable portion of the Work Product, as the case may be. Such re-performance shall be the Customer’s exclusive remedy and Phreesia’s sole liability for any such nonperformance. If, however, after repeated efforts, Phreesia is unable to remedy such defect in any Work Product, then the Customer’s sole remedy and Phreesia’s entire liability shall be to refund to the Customer any amounts previously paid by the Customer for the particular deficient Professional Services or Work Product, as the case may be.

5.4 No Additional Warranty

THE WARRANTIES STATED IN SECTION 5.1 THROUGH 5.3 ABOVE ARE THE SOLE AND EXCLUSIVE WARRANTIES OFFERED BY PHREESIA. THERE ARE NO OTHER WARRANTIES OR CONDITIONS, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION, THOSE OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT OF THIRD PARTY RIGHTS. CUSTOMER ASSUMES ALL RESPONSIBILITY FOR DETERMINING WHETHER THE PRODUCTS ARE ACCURATE OR SUFFICIENT FOR CUSTOMER’S PURPOSES.

5.5 Third Party Products. Customer acknowledges that from time to time Phreesia may make available optional third party products (“Third Party Products”) for use with the Products. These Third Party Products are provided by Phreesia as a “pass through” to Customer and such Third Party Products may be covered by a warranty offered by the third party vendor, not Phreesia. Any such Third Party Products shall be identified as such on the Order Form. Any Third Party Products which are supplied with a separate agreement are subject to the terms of such separate agreement and are not subject to any warranties or indemnification rights contained herein. Where such Third Party Products are supplied with a separate agreement Customer acknowledges and agrees that Phreesia makes no warranty of any kind with respect to such Third Party Products, and agrees to look solely to the applicable vendor for warranty support for such Third Party Product. Any Third Party Products which are not supplied with a separate agreement are instead subject to the terms of this Agreement as “Products” hereunder.

5.6 Third Party Open Source Software. Phreesia uses certain third-party software in its Products, including what is commonly referred to as Open Source Software. Under some of these third-party licenses, Phreesia is required to provide the Customer with notice of the license terms and attribution to the third party. See the licensing terms and attributions for such third-party software that Phreesia uses at: https://www.phreesia.com/wp-content/uploads/2021/09/AR-ApprovedOpenSourceSoftware-300821-1031-740-002.pdf.

5.5 Medical Decisions. Notwithstanding anything in this Agreement to the contrary, Customer acknowledges and agrees that Phreesia is not engaged in the practice of medicine, and is not determining appropriate medical use of any of its Products that are, or may be, offered pursuant to this Agreement or results from any advertisements or content displayed on the Products. Medical treatment and diagnostic decisions are solely the responsibility of Customer and its professional healthcare providers.

6. LIMITATION OF LIABILITY

Neither Party will be liable to the other or any third party for loss of profits or for any special, indirect, incidental, consequential or exemplary damages (including without limitation, damages for loss of business profits, loss of goodwill, business interruption, reputational harm, punitive damages, loss of business information and/or data) in connection with the Products, or the performance of any other obligations under this Agreement, even if it is aware of the possibility of the occurrence of such damages. The total cumulative liability of Phreesia to Customer for any and all claims and damages under this Agreement, whether arising by statute, contract, tort or otherwise, will not exceed the fees paid by Customer to Phreesia under the Order Form or SOW for the Products which form the subject of the claim during the twelve (12) month period immediately preceding the event giving rise to the claim. 

7. TERM

7.1 Term. This Agreement will commence on the Effective Date and will continue in effect unless and until otherwise terminated in accordance with Sections 7.2 or 7.3 below. The initial term of each Order Form (the “Initial Term”) will be set forth in the applicable Order Form. Thereafter the Order Form will automatically renew for additional terms of one (1) year each (each a “Renewal Term(s)” and along with the Initial Term the “Term”) unless either Party notifies the other Party at least sixty (60) days prior to the expiration of the Initial Term or any Renewal Term that it has elected not to renew the Order Form. For the avoidance of doubt, the term of this Agreement and the BAA shall continue in effect for so long as any Order Form is in effect.

7.2 Termination for Cause. Notwithstanding the foregoing, either Party may terminate this Agreement or any Order Form or SOW (i) immediately in the event of a material breach of this Agreement or any such Order Form or SOW by the other Party that is not cured within thirty (30) days of written notice to the other Party, or (ii) immediately if the other Party ceases doing business or is the subject of a voluntary or involuntary bankruptcy, insolvency or similar proceeding, that is not dismissed within sixty (60) days of filing or (iii) immediately in the event that Customer violates Section 8.3. Termination or expiration of an Order Form or SOW shall not be deemed a termination of this Agreement. Termination of this Agreement shall, however, terminate all outstanding Order Forms and SOWs.

7.3 Termination as a result of PM/EHR Change. In the event that Customer has changed its existing PM/EHR software solution to a PM/EHR software solution that has not been integrated with the Products, Customer may terminate the Order Form upon no less than sixty (60) days prior written notice to Phreesia; provided, however, that such termination may only occur during a Renewal Term and not during the Initial Term of the Order Form. Customer shall provide documentation reasonably requested by Phreesia to validate that it has changed its existing PM/EHR software solution to a PM/EHR software solution that has not been integrated with the Products.

7.4 Effect of Termination. Upon any termination or expiration of this Agreement or an Order Form for any reason (i) all applicable licenses are revoked, (ii) each Party shall promptly return or destroy the other Party’s Confidential Information and Customer shall, unless otherwise expressly set forth on the Order Form immediately cease use of the applicable Products and (iii) unless otherwise set forth on the Order Form, within ten (10) days of termination Customer shall return the Products to Phreesia in good working condition (reasonable wear and tear excepted). If an Order Form was terminated during its Initial Term as a result of Customer’s uncured breach then Customer will be billed a restocking fee for any returned Product and a fee for the value of any unreturned Products. Customer shall have the right during the forty-five (45) day period immediately following the termination of this Agreement or an Order Form to access the Dashboard for the sole purpose of copying and downloading all of its Customer Data and records stored in connection with the Dashboard. Termination of this Agreement shall not limit either Party from pursuing any remedies available to it, including injunctive relief, or relieve Customer of its obligation to pay all fees that have accrued, have been paid, or have become payable by Customer hereunder. All rights and obligations of the Parties which by their nature are reasonably intended to survive such termination, such as e.g., confidentiality and limitation of liability, will survive termination or expiration of this Agreement and each Order Form.

8. OWNERSHIP; USE OF CONTENT; OBLIGATIONS

8.1 Subscription Service/Products. Except in the event where the Order Form expressly states that Customer is purchasing the Hardware, all Products are owned by Phreesia and are licensed (and not sold) to Customer, as set forth in Section 2.2. All right, title and interest to the Products, Phreesia Data and all intellectual property rights in and to the Products, Phreesia Data, all of Phreesia’s proprietary technology, including, without limitation, all software, products, processes, algorithms, user interfaces, know-how, techniques, designs, suggestions, ideas, enhancement requests, feedback, or recommendations and other tangible or intangible technical material or information made available to the Customer by Phreesia in providing the Subscription Service and all updates, enhancements, improvements, modifications, configurations and derivative works thereto are retained by Phreesia. Customer shall not allow any lien, security interest or other encumbrance to attach to Products owned by Phreesia. Purchased Hardware is non-refundable. The Phreesia name, all Phreesia logos, and the product names associated with the Products are trademarks of Phreesia or third parties, and no right or license is granted to use them.

8.2 Customer Data. The Customer retains ownership of all right, title and interest in and to all Customer Data. During the term of this Agreement, the Customer hereby grants to Phreesia a limited, worldwide, non-exclusive, non-transferable (except as set forth in Section 12.2), royalty-free right to use, display, transmit, and distribute the Customer Data solely as necessary to provide the Products to the Customer. Customer is solely responsible for all Customer Data. Phreesia does not guarantee the accuracy, integrity or quality of such Customer Data. Neither the Customer nor its Users shall use the Products to: (a) send, upload or otherwise transmit any Customer Data that is unlawful, threatening, abusive, harassing, tortious, defamatory, vulgar, obscene, libelous, invasive of another’s privacy, hateful, or racially, ethnically or otherwise objectionable; (b) upload or otherwise transmit, display or distribute any Customer Data that infringes any trademark, trade secret, copyright or other proprietary or intellectual property rights of any person; (c) upload or otherwise transmit any material that contains software viruses or any other computer code, files or programs designed to interrupt, destroy or limit the functionality of any computer software or hardware or telecommunications equipment; (d) interfere with or disrupt the Subscription Service or networks connected to the Subscription Service; or (e) violate any applicable law or regulation. Phreesia shall have the right to collect, use and distribute aggregated information, analysis, statistics, related benchmarking algorithms and other data generated by the Products (or derived from the Customer’s use of the Products) provided, however, that Phreesia shall not disclose any such data unless such data is in an aggregated form that would not permit a third party to identify the data as associated with the Customer or any of its Users (“Aggregated Data”). All Aggregated Data shall be owned by Phreesia. For the avoidance of doubt, the Aggregated Data shall not include PHI.

8.3 Customer Obligations. The Customer is responsible for (i) all activities conducted under its User logins and for its Users’ compliance with this Agreement, (ii) compliance with all applicable laws and regulations that govern its business, and (iii) obtaining all authorization’s, consents and licenses necessary to use Customer Data. Unauthorized use, resale or commercial exploitation of the Products in any way is expressly prohibited. Without Phreesia’s express prior written consent in each instance, the Customer shall not (and shall not allow any third party to): reverse engineer, decompile, disassemble, or otherwise attempt to derive the source code form or structure of the Products or access the Products in order to build a competitive product or service or copy any ideas, features, functions or graphics of the Products. Except as expressly permitted in this Agreement, the Customer shall not copy, license, sell, transfer, make available, lease, time-share or distribute the Products to any third party. Customer and its personnel are responsible for maintaining and safeguarding the security of their accounts, passwords and files and Customer shall ensure that its personnel do not share their account information or passwords with any other person or allow any other person to access the Dashboard under their account. Customer shall terminate access to the Dashboard for any personnel whose employment or consulting relationship with Customer has ended.

8.4 Work Product. Except as otherwise set forth on a SOW, Customer will have a non-exclusive, non-transferable (except as set forth in Section 12.2) license to use any Work Product developed by Phreesia in the performance of the Professional Services and delivered to Customer, upon Customer’s payment in full of all amounts due hereunder, solely for Customer’s internal use in connection with its use of the Products. Phreesia retains ownership of all information, software and other property owned by it prior to this Agreement or which it develops independently of this Agreement and, except as otherwise set forth on a SOW, all Work Product compiled or developed by Phreesia in the performance of this Agreement.

8.5 Custom Content/Practice-Developed Content.

To the extent that Customer has requested Phreesia to include Custom Content or Practice-Developed Content in the Products that is not part of Phreesia content library, Customer understands and agrees to the requirements set forth in subparagraphs 8.5.1 through 8.5.5 below.

8.5.1 The deployment of any Custom Content is subject to Phreesia’s technical capabilities and limitations. By way of example, Phreesia may be able to display the text of the questions from the Custom Content yet not display the associated illustrations or images; Phreesia may be able to deploy the screening questions of the Custom Content yet not be able to automate its scoring, etc.

8.5.2 Customer represents and warrants that it has all proper right, title and interest in or possesses valid license rights to the Custom Content and/or Practice-Developed Content and can legally authorize Phreesia to: (1) reproduce, display and administer the Custom Content and/or Practice-Developed Content through the Products, (2) collect, aggregate, analyze, and store patient responses from such Custom Content and/or Practice-Developed Content, and (3) carry out other permitted activities, as set forth in this Agreement.

8.5.3 For each instance of Custom Content that Customer utilizes through the Product, Customer agrees to purchase a Clinical Expansion Package Custom Content. The pricing for such purchase shall be set forth on an Order Form or addendum thereto. This subparagraph (4) shall not apply to any Practice-Developed Content.

8.5.4 Phreesia reserves the right, in its sole discretion, to remove the Custom Content and/or Practice-Developed Content from the Products without prior notice to Customer if Phreesia is notified that such content violates any intellectual property rights and/or any other applicable law, rule, regulation, or policy.

8.5.5 As between the Parties, Customer assumes any and all liability that directly or indirectly results from Customer’s use of or Phreesia’s utilization of any Custom Content and/or Practice-Developed Content (including any patient reported outcome or screening tool therein).

8.6 Digital Patient Engagement (“DPE”). Phreesia shall deliver Digital Patient Engagement (“DPE”) to Customer through one of the options set forth on Exhibit E, as selected by Customer and set forth in an Order Form. Details around how patients will view the selected DPE content are set forth in the attached Exhibit. Customer acknowledges and agrees that: (i) Customer grants to Phreesia a nonexclusive, royalty-free, right and license to use Customer’s logo and trademarks on any DPE content sent to Customer’s patients, and (ii) in the event that Customer Content (as defined in the attached Exhibit) is sent to Customer’s patients through the Products, Customer shall be solely responsible for such Customer Content. Customer may change its DPE election at any time and for any reason upon thirty (30) days prior notice to Phreesia. Customer’s DPE selection shall not affect any other Products or Services then being provided to Customer.

9. INDEMNIFICATION

8.1 Subscription Service/Products. Except in the event where the Order Form expressly states that Customer is purchasing the Hardware, all Products are owned by Phreesia and are licensed (and not sold) to Customer, as set forth in Section 2.2. All right, title and interest to the Products, Phreesia Data and all intellectual property rights in and to the Products, Phreesia Data, all of Phreesia’s proprietary technology, including, without limitation, all software, products, processes, algorithms, user interfaces, know-how, techniques, designs, suggestions, ideas, enhancement requests, feedback, or recommendations and other tangible or intangible technical material or information made available to the Customer by Phreesia in providing the Subscription Service and all updates, enhancements, improvements, modifications, configurations and derivative works thereto are retained by Phreesia. Customer shall not allow any lien, security interest or other encumbrance to attach to Products owned by Phreesia. Purchased Hardware is non-refundable. The Phreesia name, all Phreesia logos, and the product names associated with the Products are trademarks of Phreesia or third parties, and no right or license is granted to use them.

8.2 Customer Data. The Customer retains ownership of all right, title and interest in and to all Customer Data. During the term of this Agreement, the Customer hereby grants to Phreesia a limited, worldwide, non-exclusive, non-transferable (except as set forth in Section 12.2), royalty-free right to use, display, transmit, and distribute the Customer Data solely as necessary to provide the Products to the Customer. Customer is solely responsible for all Customer Data. Phreesia does not guarantee the accuracy, integrity or quality of such Customer Data. Neither the Customer nor its Users shall use the Products to: (a) send, upload or otherwise transmit any Customer Data that is unlawful, threatening, abusive, harassing, tortious, defamatory, vulgar, obscene, libelous, invasive of another’s privacy, hateful, or racially, ethnically or otherwise objectionable; (b) upload or otherwise transmit, display or distribute any Customer Data that infringes any trademark, trade secret, copyright or other proprietary or intellectual property rights of any person; (c) upload or otherwise transmit any material that contains software viruses or any other computer code, files or programs designed to interrupt, destroy or limit the functionality of any computer software or hardware or telecommunications equipment; (d) interfere with or disrupt the Subscription Service or networks connected to the Subscription Service; or (e) violate any applicable law or regulation. Phreesia shall have the right to collect, use and distribute aggregated information, analysis, statistics, related benchmarking algorithms and other data generated by the Products (or derived from the Customer’s use of the Products) provided, however, that Phreesia shall not disclose any such data unless such data is in an aggregated form that would not permit a third party to identify the data as associated with the Customer or any of its Users (“Aggregated Data”). All Aggregated Data shall be owned by Phreesia. For the avoidance of doubt, the Aggregated Data shall not include PHI.

8.3 Customer Obligations. The Customer is responsible for (i) all activities conducted under its User logins and for its Users’ compliance with this Agreement, (ii) compliance with all applicable laws and regulations that govern its business, and (iii) obtaining all authorization’s, consents and licenses necessary to use Customer Data. Unauthorized use, resale or commercial exploitation of the Products in any way is expressly prohibited. Without Phreesia’s express prior written consent in each instance, the Customer shall not (and shall not allow any third party to): reverse engineer, decompile, disassemble, or otherwise attempt to derive the source code form or structure of the Products or access the Products in order to build a competitive product or service or copy any ideas, features, functions or graphics of the Products. Except as expressly permitted in this Agreement, the Customer shall not copy, license, sell, transfer, make available, lease, time-share or distribute the Products to any third party. Customer and its personnel are responsible for maintaining and safeguarding the security of their accounts, passwords and files and Customer shall ensure that its personnel do not share their account information or passwords with any other person or allow any other person to access the Dashboard under their account. Customer shall terminate access to the Dashboard for any personnel whose employment or consulting relationship with Customer has ended.

8.4 Work Product. Except as otherwise set forth on a SOW, Customer will have a non-exclusive, non-transferable (except as set forth in Section 12.2) license to use any Work Product developed by Phreesia in the performance of the Professional Services and delivered to Customer, upon Customer’s payment in full of all amounts due hereunder, solely for Customer’s internal use in connection with its use of the Products. Phreesia retains ownership of all information, software and other property owned by it prior to this Agreement or which it develops independently of this Agreement and, except as otherwise set forth on a SOW, all Work Product compiled or developed by Phreesia in the performance of this Agreement.

8.5 Custom Content/Practice-Developed Content.

To the extent that Customer has requested Phreesia to include Custom Content or Practice-Developed Content in the Products that is not part of Phreesia content library, Customer understands and agrees to the requirements set forth in subparagraphs 8.5.1 through 8.5.5 below.

8.5.1 The deployment of any Custom Content is subject to Phreesia’s technical capabilities and limitations. By way of example, Phreesia may be able to display the text of the questions from the Custom Content yet not display the associated illustrations or images; Phreesia may be able to deploy the screening questions of the Custom Content yet not be able to automate its scoring, etc.

8.5.2 Customer represents and warrants that it has all proper right, title and interest in or possesses valid license rights to the Custom Content and/or Practice-Developed Content and can legally authorize Phreesia to: (1) reproduce, display and administer the Custom Content and/or Practice-Developed Content through the Products, (2) collect, aggregate, analyze, and store patient responses from such Custom Content and/or Practice-Developed Content, and (3) carry out other permitted activities, as set forth in this Agreement.

8.5.3 For each instance of Custom Content that Customer utilizes through the Product, Customer agrees to purchase a Clinical Expansion Package Custom Content. The pricing for such purchase shall be set forth on an Order Form or addendum thereto. This subparagraph (4) shall not apply to any Practice-Developed Content.

8.5.4 Phreesia reserves the right, in its sole discretion, to remove the Custom Content and/or Practice-Developed Content from the Products without prior notice to Customer if Phreesia is notified that such content violates any intellectual property rights and/or any other applicable law, rule, regulation, or policy.

8.5.5 As between the Parties, Customer assumes any and all liability that directly or indirectly results from Customer’s use of or Phreesia’s utilization of any Custom Content and/or Practice-Developed Content (including any 8.5.1 1he deploymentor screening tool therein).

8.6 Digital Patient Engagement (“DPE”). Phreesia shall deliver Digital Patient Engagement (“DPE”) to Customer through one of the options set forth on the attached Exhibit, as selected by Customer and set forth in an Order Form. Details around how patients will view the selected DPE content are set forth in the attached Exhibit. Customer acknowledges and agrees that: (i) Customer grants to Phreesia a nonexclusive, royalty-free, right and license to use Customer’s logo and trademarks on any DPE content sent to Customer’s patients, and (ii) in the event that Customer Content (as defined in the attached Exhibit) is sent to Customer’s patients through the Products, Customer shall be solely responsible for such Customer Content. Customer may change its DPE election at any time and for any reason upon thirty (30) days prior notice to Phreesia. Customer’s DPE selection shall not affect any other Products or Services then being provided to Customer.

10. INSURANCE

Phreesia shall maintain in full force and effect during the term of any Order Form and SOW the following insurance: (a) Workers’ compensation and employers’ liability insurance with limits to conform with amounts required by applicable law; (b) Commercial general liability insurance with limits not less than two million dollars ($2,000,000) per occurrence for bodily injury, death, and property damage, including personal injury, contractual liability, independent contractors, broad-form property damage, and products and completed operations coverage; and (c) Professional liability (Errors and Omissions) and Cyber Insurance each with limits not less than five million dollars ($5,000,000) annual aggregate for all claims each policy year. As evidence of insurance coverage, upon request Phreesia shall deliver a schedule of insurance issued by Phreesia’ insurance carrier showing such policies in force during the term of this Agreement.

11. TECHNICAL SUPPORT

During the term of the applicable Order Form, Phreesia will provide Customer with technical support services, Client Success and Support, which consist of: (i) assistance related to questions about the installation and operational use of the Products including the Dashboard; (ii) assistance in identifying and verifying the causes of suspected errors in any Product; and (iii) providing workarounds for identified Product errors or malfunctions, where reasonably available to Phreesia. Unless otherwise agreed to by the parties, all technical support is provided remotely (virtually). Customer shall designate a reasonable number of Customer employees to act as support liaisons to utilize the technical support services and will ensure that such persons will be properly trained in the operation and usage of the Products. Customer agrees to provide reasonable access to all necessary personnel to answer questions about any problems reported by Customer regarding the Product. Customer agrees to promptly implement all updates and error corrections provided by Phreesia under this Agreement. Designated Customer employees may contact Phreesia support directly from 4:00 a.m. to 12:00 a.m., EST, seven days a week. Customer may request additional support outside of these hours of operation. Support also includes access to Phreesia University, which provides a learning platform to train staff to use the Phreesia Products.

12. GENERAL

12.1 Entire Agreement. This Agreement, including the BAA, all other Exhibits hereto and all Order Forms and SOWs, contains the entire agreement between the Parties with respect to the subject matter hereof, and supersedes all prior or contemporaneous proposals, understandings, representations, warranties, covenants, and any other communications (whether written or oral) between the Parties relating thereto and is binding upon the Parties and their permitted successors and assigns. Only a written instrument that refers to this Agreement and is duly signed by the authorized representatives of both Parties may amend this Agreement. Amendments to the Order Form or SOW may also be made via a change order or change notification sent by Phreesia. Any inconsistent or conflicting terms and conditions contained in any purchase order issued by the Customer shall be of no force or effect, even if the order is accepted by Phreesia. This Agreement shall be construed and interpreted fairly, in accordance with the plain meaning of its terms, and there shall be no presumption or inference against the Party drafting this Agreement in construing or interpreting the provisions hereof.

12.2 Assignment. This Agreement shall be binding upon and for the benefit of Phreesia, the Customer and their permitted successors and assigns. Neither Party may assign its rights or delegate its duties under this Agreement either in whole or in part without the prior written consent of the other Party, and any attempted assignment or delegation without such consent will be void. Notwithstanding the foregoing, either Party may assign this Agreement and all Order Forms and SOWs as part of a corporate reorganization, consolidation, merger, or sale of all or substantially all of its assets or business to which this Agreement relates. Phreesia may use independent contractors or subcontractors to assist in the delivery of Services; provided, however, that Phreesia shall remain liable for the actions or omissions of such independent contractors or subcontractors and for the payment of their compensation.

12.3 Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of New York without regard to its conflict of law provisions and without regard to the United Nations Convention on the International Sale of Goods.

12.4 Disputes. Any disputes between the Parties arising out of this Agreement shall be resolved as follows: Members of the senior management of both Parties shall meet to attempt to resolve such disputes. If a dispute cannot be resolved within fifteen (15) days, either Party may make a written demand for mediation. Within fifteen (15) days after such written notification, the Parties shall meet for one day with an impartial mediator. The costs and expenses of the mediator shall be shared equally by the Parties. If the dispute is not resolved by mediation, then the dispute shall be resolved in the federal and state courts sitting in New York, New York which shall have proper and exclusive jurisdiction and venue with respect to any disputes arising from or related to the subject matter of this Agreement, provided that either Party may seek injunctive relief in any court of competent jurisdiction.

12.5 Headings. The headings to the sections of this Agreement are for ease of reference only and shall not affect the interpretation or construction of this Agreement.

12.6 Relationship of the Parties. Phreesia and the Customer are independent contractors, and nothing in this Agreement shall be construed as making them partners or creating the relationships of partners, employer and employee, or principal and agent between them, for any purpose whatsoever. Neither Party shall make any contracts, warranties or representations or assume or create any obligations, express or implied, in the other Party’s name or on its behalf.

12.7 Force Majeure. Except for the obligation to make payments, nonperformance of either Party shall be excused to the extent that performance is rendered impossible by strike, fire, flood, governmental acts or orders or restrictions, failure of suppliers, or any other reason where failure to perform is beyond the reasonable control of the non-performing Party.

12.8 Notices. Any notice, approval, request, authorization, direction or other communication under this Agreement shall be given in writing (including email) and shall be deemed to have been delivered and given for all purposes one (1) business day after deposit with a nationally recognized overnight carrier, with written verification of receipt, or, in the case of email, by confirmation that such email has been received, to the address or email address of the receiving Party set forth on the applicable Order Form. A copy of any notices to be sent to Phreesia shall be sent to legal@phreesia.com and to 434 Fayetteville Street, Suite 1400, Raleigh, NC 27601 to the attention of “Legal Department”. Either Party may change its address by giving written notice of such change to the other Party. For avoidance of doubt, Phreesia shall send invoices to Customer’s designated email address set forth on the Order or to Customer’s designated representative set forth on the Order.

12.9 Publicity. The Customer hereby grants Phreesia a nonexclusive license solely during the term of this Agreement to list Customer’s name and display the Customer’s logo in the customer section of Phreesia’s website and to use Customer’s name and logo in Phreesia’s customer lists and other marketing materials.  Phreesia may also publicly issue and distribute a “case study” relating to Phreesia’s services performed on behalf of Customer. Any other use by Phreesia of the Customer’s name, logo or trademark requires the Customer’s prior written consent.

12.10 No Third Party Beneficiaries. Nothing contained in this Agreement is intended or shall be construed to confer upon any person any rights, benefits or remedies of any kind or character whatsoever, or to create any obligation of a Party to any such person.

12.11 Counterparts. The Parties hereby agree that: (i) this Agreement may be executed in any number of counterparts, each of which shall be deemed to be an original, but all of which together shall constitute one and the same Agreement; (ii) this Agreement may be reproduced by any Party by photographic, computer imaging or similar process; (iii) any such reproduction shall be admissible in evidence as the original itself in any judicial or administrative proceeding (whether or not the original is in existence); (iii) any signature upon or within this Agreement that is electronically generated or transmitted (whether in or as a scanned document or digital image, including, without limitation, in or as any “.pdf”, “.jpg”, “.tiff” or any other digital format) shall be deemed a valid and legally binding signature with the same effect as if such signature were a manually signed original signature; and (iv) any such electronically generated or transmitted signatures upon or within this Agreement may be exchanged and/or delivered between or among the undersigned Parties.

12.12 Waiver and Severability. Performance of any obligation required by a Party hereunder may be waived only by a written waiver signed by an authorized representative of the other Party, which waiver shall be effective only with respect to the specific obligation described therein. The failure of either Party to exercise any of its rights under this Agreement will not be deemed a waiver or forfeiture of such rights. The invalidity or unenforceability of one or more provisions of this Agreement will not affect the validity or enforceability of any of the other provisions hereof, and this Agreement will be construed in all respects as if such invalid or unenforceable provision(s) were omitted.

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