THESE TERMS OF USE AND SUBSCRIPTION, TOGETHER WITH ANY AND ALL POLICIES REFERENCED IN THESE TERMS OF USE AND THEREBY INCORPORATED HEREIN, ARE A LEGALLY BINDING CONTRACT (“AGREEMENT”) BETWEEN HYLAND AND CUSTOMER GOVERNING ACCESS TO AND USE OF SHAREBASE BY CUSTOMER AND ANY OF CUSTOMER’S USERS; AND, IF CUSTOMER IS ACQUIRING THE RIGHTS TO ACCESS AND USE SHAREBASE DIRECTLY FROM HYLAND, THEN THIS AGREEMENT ALSO GOVERNS THE TERMS OF SUCH ACQUISITION. BY CLICKING TO LAUNCH THE SETUP AND ACTIVATION OF SHAREBASE FOLLOWING THE PRESENTATION OF THESE TERMS OF USE AND SUBSCRIPTION, CUSTOMER ACCEPTS THIS AGREEMENT AND CUSTOMER AGREES THAT THIS AGREEMENT IS LEGALLY BINDING UPON CUSTOMER AND CUSTOMER’S USERS. IF CUSTOMER DOES NOT ACCEPT THIS AGREEMENT OR CUSTOMER IS NOT WILLING TO BE BOUND BY THIS AGREEMENT, THEN CUSTOMER SHOULD NOT CLICK TO LAUNCH THE SETUP AND ACTIVATION OF SHAREBASE AND, IN ANY EVENT IN WHICH CUSTOMER HAS NOT ACCEPTED THIS AGREEMENT, CUSTOMER AND ANY OF CUSTOMER’S USERS ARE STRICTLY PROHIBITED FROM ACCESSING OR MAKING ANY USE OF SHAREBASE.

REPRESENTATION AND WARRANTY REGARDING AUTHORITY: BY CLICKING TO LAUNCH THE SETUP AND ACTIVATION OF SHAREBASE, THE INDIVIDUAL DOING SO IS ACCEPTING AND ENTERING INTO THIS AGREEMENT ON BEHALF OF CUSTOMER, WHICH IS A COMPANY OR OTHER LEGAL ENTITY. THE INDIVIDUAL COMPLETING SUCH CLICK REPRESENTS AND WARRANTS THAT HE OR SHE HAS ALL REQUISITE POWER AND AUTHORITY, FOR AND ON BEHALF OF CUSTOMER, TO TAKE SUCH ACTION AND TO BIND CUSTOMER AND ALL OF CUSTOMER’S USERS TO SUCH ACCEPTANCE AND TO THIS AGREEMENT.

This Agreement is effective between Customer and Hyland on and as of the date that Customer has accepted this Agreement as described above.

Hyland reserves the right, in its sole discretion, at any time and from time to time, to modify or terminate this Agreement. Modifications to this Agreement (including any policies referred to herein) will be made by Hyland by uploading the modifications or the modified form of the Agreement at the location to which links to the Agreement included in Customer’s instance of ShareBase connect Customer; and such modifications will be effective immediately upon such uploading. Hyland encourages Customer to regularly review the Agreement by linking to the Agreement terms to see if this Agreement has been modified. Customer’s continued access to or use of any part of ShareBase constitutes Customer’s acceptance of the modifications. If any modification is not acceptable to Customer, Hyland is no longer required to provide ShareBase to Customer and Customer’s only recourse is to cease using ShareBase.

“Agreement” means these ShareBase by Hyland Terms of Use and Subscription and any and all Hyland policies referenced in these terms and thereby incorporated herein, as in effect from time to time.

“Authenticated User” means an individual who is authorized by Customer to use the instance of ShareBase subscribed for by Customer and who is required to create and use an authenticated user identification and password in order to access and use ShareBase.

“Beta Version” means any version of ShareBase that Hyland makes available to Customer on an evaluation use-only basis, but that Hyland has not made commercially available to its ShareBase customers generally.

“Customer” means the company or legal entity on behalf of which an individual has accepted this Agreement and which has submitted one or more Purchase Order(s) to Hyland to subscribe for ShareBase that Hyland has accepted.

“Customer Content” means electronic data, information, files and other content submitted by or for Customer to the instance of ShareBase subscribed for by Customer or collected or processed by Customer using such instance of ShareBase.

“Customer’s Users” means any or all of the Authenticated Users or Linked Users authorized by Customer to use the instance of ShareBase subscribed for by Customer, as the context may require.

“Hyland” means Hyland Software, Inc. or, if Customer’s principal business location using ShareBase or, if none, the business location from which Customer accepted this Agreement, is located in a country in which a subsidiary of Hyland Software, Inc. is the principal Hyland company conducting business, then the subsidiary of Hyland Software, Inc. that is the principal Hyland company conducting business in such country.

“Linked User” means an individual to whom Customer or any Authenticated User of Customer has provided access, using controls provided in ShareBase, to Customer Content stored in the instance of ShareBase subscribed for by Customer, but which is not required to obtain or use a user identification, password or other means of authentication within ShareBase.

“Purchase Order” means an ordering document specifying the ShareBase use and access for which Customer is acquiring a subscription, including the applicable usage limits subscribed to; and, in the case of the activation by Customer of additional Authenticated User(s), Customer’s action to activate such additional Authenticated Users(s) and the information with respect to such additional Authenticated User(s) stored in ShareBase will constitute an ordering document for these purposes.

“Reseller”, if applicable, means the authorized solution provider of Hyland from which Customer has acquired the right to use ShareBase under this Agreement.

“ShareBase” means the services and software and other components described in Section 3.

3.1 Solution. ShareBase is a cloud-based solution of services and software for electronic storage, sharing and processing of Customer Content, which is accessible by Customer and Customer’s Users through the web site hosted by Hyland through which Customer has accepted this Agreement. Hyland reserves the right, in its sole discretion, at any time and from time to time, to modify, discontinue or terminate ShareBase or any services or software included in ShareBase.

3.2 Beta Versions.

1. Hyland may offer to Customer Beta Versions of ShareBase for use for a limited time at no charge. Customer may elect to accept or decline any Beta Version trial in its sole discretion. Hyland will provide notice to Customer identifying any version of ShareBase that is offered as a Beta Version. Beta Versions of ShareBase are for evaluation purposes only and not for production use and may be offered subject to additional terms and conditions.
2. Unless otherwise stated, the evaluation use period of any Beta Version of ShareBase will terminate or expire upon the earliest of (1) Hyland electing to discontinue the availability of such Beta Version at any time, in its sole discretion, (2) one (1) year from the use start date of such Beta Version, or (3) the date after the use start date of such Beta Version upon which Hyland first commercially releases to its ShareBase customers generally a new version of ShareBase. Hyland may, in its sole discretion, never make such Beta Version commercially available to its ShareBase customers generally. HYLAND HAS NO LIABILITY OR RESPONSIBILITY FOR ANY HARM, DAMAGES OR LOSSES ARISING OUT OF OR IN CONNECTION WITH ANY BETA VERSION OF SHAREBASE OR CUSTOMER’S OR CUSTOMER’S USERS’ ACCESS TO OR USE OF ANY SUCH BETA VERSION.
3. Hyland has no responsibility or obligation to transfer any Customer Content from any Beta Version of ShareBase used by Customer or Customer’s Users to any production version of ShareBase used by Customer or Customer’s Users at any time, including at the termination or expiration of the use period of any Beta Version.

3.3 Storage and Processing Location(s). Hyland operates ShareBase from business locations and data centers located in the United States and in other countries. Customer’s instance of ShareBase may be located inside or outside of the United States and Customer Content may be transmitted, stored, processed or routed through locations inside or outside of the United States. Notwithstanding the preceding, Customer may specify in its initial Purchase Order subscribing to ShareBase that its instance of ShareBase be located only in Hyland data centers located in the geographic region selected by Customer from the list of geographic regions made available by Hyland. Hyland operates ShareBase from locations within the European Union and, if Customer has specified in accordance with the preceding sentence that its instance of ShareBase be located only in the European Union, then Hyland will not engage in any transmission, storage, processing or use of Customer Content outside of the European Union or Switzerland.

3.4 Subscription Period. Customer’s initial subscription period for ShareBase is the subscription term mutually agreed upon by Customer and Hyland or Reseller at the time of Hyland or Reseller’s acceptance of Customer’s initial Purchase Order. For annual subscription periods, the initial subscription period shall commence on the date of Customer's submission of the purchase order for ShareBase and shall expire on the anniversary of such date; and thereafter, subject to modification of the subscription period in accordance with the Agreement or to early termination of the subscription period in accordance with this Agreement, the subscription period shall renew annually on the anniversary of such commencement date. The subscription period is subject to modification only by mutual agreement of Customer and Hyland and any such modification shall be effective only upon expiration of the then-current subscription period.

Hyland will make ShareBase available to Customer pursuant to this Agreement; and Hyland will use commercially reasonable efforts to provide such availability 24 hours a day, 7 days a week, except for scheduled or unscheduled downtime for maintenance and support. Hyland may temporarily suspend the availability of ShareBase if the continued availability of ShareBase would jeopardize the security of ShareBase, including, without limitation, in the cases of hacking, denial of service attacks or other malicious activities. If Customer purchases ShareBase directly from Hyland (and not a Hyland reseller), Hyland will provide support for ShareBase in accordance with these provisions and the Support Prioritization Attachment attached hereto. HYLAND’S OBLIGATIONS UNDER THIS SECTION 4 APPLY ONLY TO PAID PRODUCTION VERSIONS OF SHAREBASE AND SPECIFICALLY DO NOT APPLY TO EVALUATION OR TRIAL VERSIONS OF SHAREBASE, INCLUDING BUT NOT LIMITED TO BETA VERSIONS.

Customer and Customer’s Users may not make any use of the instance of ShareBase subscribed for by Customer until Customer completes the steps to activate such instance of ShareBase for Customer’s use. Hyland will provide Customer by email a link to be used to complete the activation steps after Hyland has received and accepted Customer’s Purchase Order initially subscribing to ShareBase.

6.1 Access. Customer and Customer’s Users may access and use one (1) instance of ShareBase subscribed for by Customer under this Agreement, only in accordance with the terms of this Agreement. Customer acknowledges and agrees that Hyland provides ShareBase to other customers and that Customer’s and Customer’s Users’ access to and use of ShareBase are on a non-exclusive basis. Customer will prevent unauthorized use of ShareBase by Customer’s Users and terminate any unauthorized use of or access to ShareBase. For these purposes, unauthorized use of or access to ShareBase will include any use of or access to Customer’s instance of ShareBase by anyone other than an Authenticated User or a Linked User. Customer will promptly notify Hyland of any unauthorized use of or access to ShareBase.

6.2 Rights to Use of Software Included in ShareBase. Customer may receive software from Hyland as part of ShareBase that is required to be downloaded and installed on Customer’s or Customer’s Users’ computers or mobile devices. In the case of such software to be downloaded and installed on a computer, the use of such software will be governed by this Agreement unless (a) separate license terms are presented in connection with the installation of such software, or (b) in the case of open source software included in such download, Hyland will make the license for such open source software available to Customer, and in either of such cases the use of such software will be governed by those separate license terms and this Agreement will not apply to such use. In the case of such software to be downloaded and installed on a mobile device, if such software will be downloaded from the application market or store maintained by the manufacturer of the mobile device, then use of such software will be governed by the license terms for the software included at the applicable application store or market or presented to Customer or Customer’s User in the software, and this Agreement will not govern such use. Customer’s and Customer’s Users’ access to and uses of any other software that is part of ShareBase are governed by this Agreement. Hyland reserves all other rights in and to any software.

New versions of software installed on Customer’s or Customer’s Users’ computers or mobile devices may automatically be downloaded to such computers and devices.

Any software is licensed, not sold. Unless Hyland notifies Customer otherwise, the software license ends when Customer’s rights to use ShareBase ends.

6.3 Acceptable Use. All access to and uses of ShareBase by Customer and Customer’s Users must comply with the ShareBase by Hyland Acceptable Use Policy, which is available by using the link provided in Customer’s instance of ShareBase.

6.4 Privacy. All access to and uses of ShareBase by Customer and Customer’s Users are subject to the ShareBase by Hyland Privacy Policy, which is available the link provided in Customer’s instance of ShareBase.

6.5 Certain Restrictions. Customer agrees that Customer and Customer’s Users shall not:

1. remove any Hyland notices or copyright, trademark or other proprietary rights notices that appear in ShareBase or during the use of ShareBase;
2. sell, transfer, rent, lease or sub-license the right to use ShareBase or any components thereof to any third party;
3. alter or modify ShareBase or any components thereof;
4. reverse engineer, disassemble, decompile or attempt to derive source code from any components of ShareBase;
5. prepare derivative works from ShareBase or any components thereof;
6. make any use of ShareBase for processing of third party data, documents or content as a service bureau, application service provider, business process outsource provider or otherwise;
7. make any use of ShareBase in connection with the design, creation, development, enhancement or improvement of any similar service or solution; or
8. make any use of ShareBase in any situation where failure or fault of any kind of ShareBase could lead to death or serious bodily injury to any person, or to severe physical or environmental damage (“High Risk Use”). High Risk Use is STRICTLY PROHIBITED. ShareBase is not fault-tolerant and is not guaranteed to be error free or to operate uninterrupted. High Risk Use includes, for example, the following: aircraft or other modes of human mass transportation; nuclear or chemical facilities; life support systems; implantable medical equipment; motor vehicles; or weaponry systems. High Risk Use does not include use of ShareBase for administrative purposes, to store configuration data, engineering or configuration tools or other non-control applications, the failure of which would not result in death, personal injury, or severe physical or environmental damage. These non-controlling applications may communicate with the applications that perform the control, but must not be directly or indirectly responsible for the control function.

6.6 Internal Administration of ShareBase by Customer. Customer may give any of its Authenticated Users the rights to act as a system administrator, through the configuration tools included in ShareBase, for the instance of ShareBase subscribed for by Customer. Hyland has no responsibility or obligations in connection with the internal management or administration of Customer’s instance of ShareBase.

6.7 Third Party Services and Content. ShareBase contains functionality which allows Customer to link or integrate ShareBase with services provided by third parties and to access third party web sites and content. Hyland has no responsibility for such third party services, web sites or content. Any activities engaged in by Customer or any of Customer’s Users with third parties using ShareBase is solely between Customer and such third party and Hyland has no liability, obligation or responsibility for any such activities. Hyland does not endorse any third party web sites that may be linked through ShareBase. Hyland is not responsible for any third party content, products or materials purchased, accessed or used by Customer or Customer’s Users using ShareBase.

6.8 Responsibility for Access and Use by Customer’s Users. Customer is responsible for any access to or use of ShareBase by Customer’s Users.

6.9 Suspension or Termination of Access and Use. Hyland may suspend or terminate all access to and use of ShareBase by Customer and all of Customer’s Users for: (1) any violation of this Agreement; (2) any unauthorized access to or use of ShareBase occurring through Customer’s instance of ShareBase; (2) Customer’s or any of Customer’s Users’ use of ShareBase in a manner that (a) could disrupt ShareBase or the ShareBase infrastructure or that could adversely affect the access to and use of ShareBase by any other customer of Hyland, or (b) Hyland reasonably believes could cause legal liability to Hyland; (3) reasonable suspicion of or detection of any malicious code, virus or other harmful code introduced by Customer or any of Customer’s Users or introduced into or through Customer’s instance of ShareBase; or (4) Customer’s use of excessive storage capacity or bandwidth when compared to other users.

7.1 Ownership and Rights.

1. Of Customer. Customer retains all rights of Customer or Customer’s Users in all Customer Content. Customer represents and warrants to Hyland that Customer has all rights in all Customer Content necessary for Customer and Customer’s Users to transmit, store, process and use such Customer Content to, in and with ShareBase. Customer also represents and warrants to Hyland that the transmission, storage, processing and use of all Customer Content do not violate this Agreement or any applicable laws, rules or regulations.
2. Of Hyland. Customer grants to Hyland and its contractors the right to transmit, store, process, use and disclose Customer Content solely to the extent necessary to provide ShareBase in accordance with this Agreement and as otherwise permitted by this Agreement. Hyland and its contractors may access Customer’s instance of ShareBase, including Customer Content, to respond to service or technical problems with ShareBase or to the extent required by applicable laws, rules or regulations.

7.2 Customer’s Responsibilities with Respect to Customer Content and Personal Data.

1. Customer is solely responsible for the accuracy, quality, integrity, legality, reliability, appropriateness and copyright and other intellectual property rights of all Customer Content. Hyland has no responsibility or liability for the retention, deletion, correction, destruction, damage to, loss of or failure to store any Customer Content.
2. Customer shall comply with and fulfill all legal duties applicable to Customer or any of Customer’s Users as a data controller arising out of, related to or based upon Customer or any of Customer’s Users transmitting, storing, processing or using to, in or with ShareBase any personal data of any individual. In particular, Customer shall be responsible to provide, and shall provide, to any individuals all information and notices as may be required to be provided under any applicable privacy or data protection laws, rules or regulations and, if necessary, to obtain consents of such individuals and provide choices to such individuals regarding the handling of their personal data.
3. Unless Customer has entered into a Business Associate Agreement with Hyland covering ShareBase, Customer and Customer’s Users shall not transmit, store, process or use to, in or with ShareBase any “protected health information” of any individual as defined under the U.S. Health Insurance Portability and Accountability Act of 1996, as amended. Hyland shall have no responsibility or liability for any such “protected health information” handled in any manner in violation of this paragraph.

Hyland owns ShareBase and any and all computer hardware and telecommunications or other equipment and computer software, including web sites, and including, without limitation, any and all worldwide copyrights, patents, trade secrets, trademarks and proprietary and confidential information rights in or associated with the components of ShareBase. ShareBase is protected by copyright laws and international copyright treaties, as well as other intellectual property laws and treaties. No ownership rights in ShareBase or any hardware or software components of ShareBase are transferred to Customer or Customer’s Users. Customer agrees that nothing in this Agreement or associated documents gives it any right, title or interest in or to any of the foregoing, except for the limited express rights granted in this Agreement. THIS AGREEMENT IS NOT A WORK-FOR-HIRE AGREEMENT. At no time will Customer or any of Customer’s Users file or obtain any lien or security interest in or on ShareBase or any components of ShareBase.

HYLAND PROVIDES SHAREBASE ON AN “AS IS” AND “AS AVAILABLE” BASIS. HYLAND MAKES NO WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, UNDER THIS AGREEMENT OR OTHERWISE WITH RESPECT TO SHAREBASE (INCLUDING ANY HARDWARE OR SOFTWARE) AS PROVIDED OR MADE AVAILABLE FOR USE BY HYLAND TO CUSTOMER AND CUSTOMER’S USERS UNDER THIS AGREEMENT; AND HYLAND DISCLAIMS AND EXCLUDES ANY AND ALL WARRANTIES, EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, WARRANTIES OF TITLE, WARRANTIES AGAINST INFRINGEMENT AND WARRANTIES ARISING BY STATUTE OR OTHERWISE IN LAW OR FROM A COURSE OF DEALING OR USAGE OF TRADE. HYLAND DOES NOT MAKE (AND EXPRESSLY DISCLAIMS) ANY WARRANTIES, EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, THAT SHAREBASE WILL BE UNINTERRUPTED, ERROR-FREE OR FREE OF HARMFUL COMPONENTS, THAT SHAREBASE WILL INTEROPERATE WITH ANY OTHER HARDWARE, SOFTWARE, SYSTEM OR SERVICE, THAT CUSTOMER CONTENT WILL BE SECURE OR NOT OTHERWISE LOST OR DAMAGED, THAT SHAREBASE WILL MEET CUSTOMER’S EXPECTATIONS OR REQUIREMENTS OR THAT ANY ERRORS OR DEFECTS WILL BE CORRECTED. SOME JURISDICTIONS DO NOT ALLOW THE FOREGOING EXCLUSIONS. IN SUCH A CASE THE FOREGOING EXCLUSIONS WILL NOT APPLY SOLELY TO THE EXTENT PROHIBITED BY APPLICABLE LAW.

10.1 By Customer. Customer will indemnify, defend and hold harmless Hyland from and against all liabilities, damages and costs and expenses, including reasonable attorneys’ fees, arising from or in connection with any third party claim, action or proceeding instituted against Hyland based upon: (a) any Customer Content or third party content provided by Customer or any of Customer’s Users and transmitted, stored, processed or used in ShareBase; or (b) Customer’s or any of Customer’s Users’ use of ShareBase in violation of this Agreement or applicable laws, rules or regulations. Hyland will promptly notify Customer of any claim with respect to which Hyland seeks indemnification under this Section 10.1 and reasonably cooperate with Customer in defending and settling the claim.

10.2 By Hyland. Hyland agrees to indemnify, defend and hold harmless Customer from and against all liabilities, damages and costs and expenses, including reasonable attorneys’ fees, arising from or in connection with any third party claim, action or proceeding instituted against Customer based upon any infringement or misappropriation by ShareBase of any patent, registered copyright or registered trademark of a third party that is enforceable in the United States, provided that Hyland: (a) is notified promptly after Customer receives notice of such claim; (b) is solely in charge of the defense of and any settlement negotiations with respect to such claim, provided, that Hyland will not settle any such claim without the prior written consent of Customer if such settlement contains a stipulation to or admission or acknowledgement of any liability or wrongdoing on the part of or otherwise requires payment by Customer; (c) receives Customer’s reasonable cooperation in the defense or settlement of such claim; and (d) has the right, upon either the occurrence of or the likelihood (in the opinion of Hyland) of the occurrence of a finding of infringement or misappropriation, either to procure for Customer the right to continue use of ShareBase, or to replace the relevant portions of ShareBase with other equivalent, non-infringing portions or modify ShareBase so that it no longer infringes. If Hyland is unable to accomplish either of the options set forth in (d), Hyland shall terminate this Agreement and Customer’s use of ShareBase upon thirty (30) days advance written notice to Customer and refund to Customer a pro rata amount of any prepaid fees for the then current subscription period. Notwithstanding anything to the contrary, Hyland shall have no obligation to Customer to defend or satisfy any claims made against Customer to the extent that such claims arise from: (1) any Customer Content or third party content; (2) use of ShareBase other than as expressly permitted by this Agreement; (3) the combination of ShareBase or any component thereof with any product or service not furnished by Hyland; or (4) the modification or addition of any component of ShareBase, other than by Hyland or a contractor to Hyland specifically retained by Hyland to provide such modification or addition. THIS SECTION 10.2 STATES HYLAND’S ENTIRE LIABILITY AND THE SOLE AND EXCLUSIVE REMEDY OF CUSTOMER WITH RESPECT TO ANY ALLEGED INFRINGEMENT OR MISAPPROPRIATION OF INTELLECTUAL PROPERTY BY SHAREBASE OR ANY COMPONENT THEREOF.

IN NO EVENT WILL HYLAND OR ITS DIRECT OR INDIRECT SUPPLIERS BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES, INCLUDING BUT NOT LIMITED TO LOSS OF BUSINESS PROFITS, BUSINESS INTERRUPTION, LOSS OF DATA OR INFORMATION OR THE COST OF RECOVERING SUCH DATA OR INFORMATION OR THE COST OF SUBSTITUTE SERVICES ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR ANY USE OF OR INABILITY TO USE SHAREBASE, EVEN IF HYLAND OR SUCH SUPPLIERS HAVE BEEN ADVISED OF THE POSSIBILITIES OF SUCH DAMAGES. ADDITIONALLY, IN NO EVENT SHALL MICROSOFT CORPORATION, AS A SUPPLIER TO HYLAND, BE LIABLE FOR ANY DIRECT DAMAGES.

THE AGGREGATE LIABILITY OF HYLAND AND ITS DIRECT AND INDIRECT SUPPLIERS RELATING TO SHAREBASE WILL BE LIMITED TO THE AMOUNT OF THE FEES AND CHARGES ACTUALLY PAID BY CUSTOMER TO HYLAND UNDER THIS AGREEMENT DURING THE ONE (1) YEAR SUBSCRIPTION PERIOD IN WHICH THE EVENT GIVING RISE TO THE CLAIM OCCURS.

THE FOREGOING LIMITATIONS ON LIABILITY WILL APPLY EVEN IF CUSTOMER IS NOT FULLY COMPENSATED FOR ANY LOSSES OR DAMAGES IT MAY SUFFER AND EVEN IF CUSTOMER’S REMEDIES FAIL OF THEIR ESSENTIAL PURPOSE.

FOR CUSTOMERS THAT PROVIDE HEALTHCARE SERVICES: IF CUSTOMER USES SHAREBASE IN A CLINICAL SETTING, CUSTOMER ACKNOWLEDGES THAT SHAREBASE IS AN ADVISORY DEVICE AND IS NOT INTENDED TO SUBSTITUTE FOR THE PRIMARY DEFENSES AGAINST DEATH OR INJURY DURING MEDICAL DIAGNOSIS, TREATMENT OR SIMILAR APPLICATIONS, WHICH DEFENSES SHALL CONTINUE TO BE THE SKILL, JUDGMENT AND KNOWLEDGE OF CUSTOMER’S USERS.

12.1 Acquisition from Reseller. If Customer has acquired the right to use ShareBase from Reseller, then Customer shall submit all Purchase Orders related to such acquisition to Reseller and Reseller shall submit Purchase Orders related to such acquisition to Hyland. Unless and until Hyland notifies Customer in writing to the contrary, all fees and charges with respect to ShareBase shall be mutually agreed upon by Customer and Reseller, and Reseller will invoice Customer for all such fees and charges. Customer agrees to make any and all payments of such fees and charges to Reseller pursuant to such mutually agreed terms.

12.2 Acquisition from Hyland.

1. Purchase Orders. If (1) Customer has agreed to acquire the right to use ShareBase directly from Hyland or (2) Hyland has delivered to Customer the notice described in Section 21.1, then Customer shall submit Purchase Orders to Hyland for any acquisition of rights to use ShareBase thereafter occurring. Each Purchase Order submitted by Customer is subject to acceptance or rejection by Hyland, in its sole discretion. In the event any Purchase Order contains any additional terms or conditions not contained in this Agreement, or contains any terms or conditions that conflict with any of the terms or conditions of this Agreement, the terms and conditions of this Agreement shall control, Hyland shall be deemed to have rejected such additional or conflicting terms of such Purchase Order and such additional or conflicting terms of such Purchase Order shall not be a part of the understanding and agreement between Customer and Hyland.
2. Fees and Charges. Hyland and Customer will mutually agree upon the fees and charges for the initial subscription period for Customer’s initial acquisition of the right to use ShareBase. Hyland reserves the right to change the fees or charges, and to institute new fees or charges, at any time upon at least 30-days’ written notice to Customer by email or by posting the change in ShareBase. If Customer purchases additional ShareBase features or User rights during a subscription period, additional fees and charges (as mutually agreed upon by Hyland and Customer) will be payable for such additional features or User rights. All fees and charges are non-refundable.
3. Invoicing and Payments. For all ShareBase features or User rights already subscribed to as of the first day of a subscription period, Hyland will bill Customer once per subscription period by invoice for all applicable fees and charges. For all additional ShareBase features or User rights acquired by Customer during a subscription period, Hyland will bill Customer by invoice for all fees and charges for such additional features or User rights for the subscription period in which such Customer’s Purchase Order is accepted by Hyland on a pro-rated basis determined on the same basis as the applicable proration method used below for invoicing during the initial subscription period and, thereafter, as part of the regular billing.
   • For the initial subscription period hereunder, Hyland will bill Customer by invoice on an annual basis in advance on the commencement date of such initial subscription period. All fees and charges for annual renewal subscription periods will be invoiced in advance on or about the commencement dates of such renewal subscription periods, and such fees and charges shall be due and payable on or before the commencement of any such renewal subscription period.
   All invoices shall be sent electronically by Hyland to Customer to the attention of “Accounts Payable,” or to such other person or department as Customer may specify from time to time by written notice to Hyland. In the event any invoice contains an under billing error which is discovered by Hyland, Hyland may issue a new invoice to correct the error. If Customer has provided to Hyland an authorized credit card, Hyland may elect to automatically charge the fees and charges on any invoice issued by Hyland promptly after delivery of the invoice. Otherwise, Customer shall pay any invoice issued by Hyland in full to Hyland net thirty (30) days from the date of Customer’s receipt of such invoice.

   Customer shall not be entitled to any refund of fees and charges already paid, notwithstanding any early cancellation, expiration or termination of any subscription period or this Agreement.

4. Resolution of Invoice Disputes. If Customer believes that an invoice contains an error, then Customer shall, prior to the due date for payment of such invoice, notify Hyland in writing that it disputes all or any portion of an amount invoiced. Any amounts not timely disputed in accordance with the preceding sentence shall be deemed to be undisputed and shall be payable in accordance with Section 12.2(c). With respect to any amounts that are timely disputed, both parties will use commercially reasonable efforts to resolve the dispute within thirty (30) calendar days of Hyland’s receipt of the notice. If any amount remains disputed in good faith after such 30-day period, either party may escalate the disputed items to the parties’ respective executive management to attempt to resolve the dispute. The parties agree that at least one of each of their respective executives will meet (which may be by telephone or other similarly effective means of remote communication) within ten (10) calendar days of any such escalation to attempt to resolve the dispute. If the parties are unable to resolve the dispute in accordance herewith, either party thereafter may file litigation in a court of competent jurisdiction under this Agreement to seek resolution of the dispute.
5. Certain Remedies for Non-Payment or for Late Payment. At the election of Hyland, exercisable by written notice to Customer, any past due amounts under any Hyland invoice shall bear interest at the rate of one and one-half percent (1.5%) per month (or, if lower, the maximum rate lawfully chargeable) from the date due through the date that such past due amounts and such accrued interest are paid in full. In the event of any default by Customer in the payment of any amounts invoiced by Hyland, which default continues unremedied for at least thirty (30) calendar days after the due date of such payment, Hyland shall have the right to suspend or cease Customer’s and Customer’s Users’ rights to use ShareBase under this Agreement unless and until such default shall have been cured.
6. Taxes and Governmental Charges. All payments under this Agreement are exclusive of all applicable taxes and governmental charges (such as duties), all of which shall be paid by Customer (other than taxes on Hyland’s income). In the event Customer is required by law to withhold taxes, Customer agrees to furnish Hyland all required receipts and documentation substantiating such payment. If Hyland is required by law to remit any tax or governmental charge on behalf of or for the account of Customer, Customer agrees to reimburse Hyland within thirty (30) days after Hyland notifies Customer in writing of such remittance. Customer agrees to provide Hyland with valid tax exemption certificates in advance of any remittance otherwise required to be made by Hyland on behalf of or for the account of Customer, where such certificates are applicable.
7. Currency. Unless otherwise mutually agreed upon by Hyland and Customer, all fees and charges for ShareBase will be determined, invoiced and paid in U.S. dollars.

13.1 Term. Subject to the early termination provisions of Section 13.2, 13.3 and 13.4 below, this Agreement commences upon acceptance by Customer (as described in the introduction to this Agreement) and shall continue in effect until Customer’s cancellation of its subscription for ShareBase at any time, which must be exercised by Customer’s delivery to Hyland of at least thirty (30) days’ advance written notice of cancellation.

13.2 Early Termination. Each party will be entitled to give written notice to the other party of any material breach by such other party or other material failure by such other party to comply with any term or condition of this Agreement (including for purposes hereof any non-payment of amounts due under this Agreement), specifying the nature of such breach or non-compliance and requiring such other party to cure the breach or non-compliance. If such other party has not cured or commenced the necessary action to cure the breach or non-compliance within fifteen (15) calendar days after receipt of such written notice, this Agreement will automatically and immediately terminate as of the close of business, 5:00PM, US Eastern Time, on such 15th day.

13.3 Violation of Laws. If, in the reasonable opinion of Customer or Hyland, compliance by either party with the terms of this Agreement will be in violation of any applicable law, rule or regulation implemented or modified after Customer’s acceptance of this Agreement, Customer or Hyland, as the case may be, may terminate this Agreement upon at least thirty (30) days written notice to the other party.

13.4 Discontinuation of ShareBase. If Hyland elects to discontinue or terminate ShareBase in its entirety and for all customers and users, as described in the last sentence of Section 3.1, then Hyland may terminate this Agreement upon at least thirty (30) days written notice to Customer.

13.5 Certain Effects of Termination.

1. Payments. In the case of any termination or non-renewal of this Agreement, Customer will remain obligated to pay to Hyland all fees and charges accrued or due for any period or event occurring on or prior to the effective date of termination or expiration of this Agreement. All such payments will be made in accordance with the payment terms of this Agreement, which will survive any such termination or non-renewal for these purposes.
2. Cessation of Use. Immediately upon any termination or expiration of this Agreement, Customer and Customer’s Users shall cease any and all uses of ShareBase and, in the case of any software installed on any of Customer’s or Customer’s Users computers or mobile devices, Customer must promptly uninstall such software. Except upon a termination by Hyland in accordance with Section 13.2, Hyland may continue to grant to Customer access to ShareBase, at then-current fees and charges, for such period as Hyland may determine, for the sole and limited purpose of permitting Customer to export Customer Content. If Hyland has terminated this Agreement under Section 13.2, upon written request of Customer received by Hyland not more than fifteen (15) calendar days after the effective date of such termination, Hyland may make an electronic file of Customer Content available to Customer for a fee. Following termination, Hyland has no responsibility or obligation to maintain any Customer Content stored by Customer in ShareBase or to export or forward Customer Content to Customer or any third party. As of and after thirty (30) days following the termination or expiration of this Agreement, Hyland may delete any Customer Content relating to Customer’s instance of ShareBase.
3. Survival of Obligations. The provisions of this Agreement that by their nature or express terms extend beyond the termination or non-renewal of this Agreement will survive and remain in effect until all obligations thereunder are satisfied. All indemnification obligations, disclaimers of warranties and limitations of liability set forth in this Agreement will survive any termination or non-renewal of this Agreement.

14.1 Force Majeure. No failure, delay or default in performance of any obligation of a party to this Agreement (except the payment of money) shall constitute a default or breach to the extent that such failure to perform, delay or default arises out of a cause, existing or future, beyond the control (including, but not limited to: action or inaction of governmental, civil or military authority; fire; strike, lockout or other labor dispute; flood; war; riot; theft; earthquake; natural disaster or acts of God; national emergencies; unavailability of materials or utilities; sabotage; viruses; or the act, negligence or default of the other party) and without negligence or willful misconduct of the party otherwise chargeable with failure, delay or default.

14.2 Governing Law; Jurisdiction. This Agreement and any claim, action, suit, proceeding or dispute arising out of this Agreement shall in all respects be governed by, and interpreted in accordance with, the laws of the State of Ohio (and not by the 1980 United Nations Convention on Contracts for the International Sale of Goods, as amended), without regard to the conflicts of laws provisions thereof. Venue and jurisdiction for any action, suit or proceeding arising out of this Agreement shall vest exclusively in the federal or state courts of general jurisdiction located in Cuyahoga County, Ohio.

14.3 Notices. Either party may provide notices under this Agreement to the other party by email, regular mail or overnight courier. In addition, Hyland may provide notices to Customer by postings on the web site included in Customer’s instance of ShareBase.

14.4 Interpretation. The headings used in this Agreement are for reference and convenience purposes only and shall not in any way limit or affect the meaning or interpretation of any of the terms hereof. All defined terms in this Agreement shall be deemed to refer to the masculine, feminine, neuter, singular or plural, in each instance as the context or particular facts may require. Use of the terms “hereunder,” “herein,” “hereby” and similar terms refer to this Agreement.

14.5 Waiver. No waiver of any right or remedy on one occasion by either party shall be deemed a waiver of such right or remedy on any other occasion.

14.6 Integration. This Agreement, including these Terms of Use and Subscription and any and all policies referred to herein, set forth the entire agreement and understanding between the parties pertaining to the subject matter and merges all prior discussions between them on the same subject matter. Neither of the parties shall be bound by any conditions, definitions, warranties, understandings or representations with respect to the subject matter other than as expressly provided in this Agreement. This Agreement shall not be supplemented or modified by any course of performance, course of dealing or trade usage. Variance from or addition to the terms and conditions of this Agreement in any written notification or documentation, from Customer or otherwise, will be of no effect unless expressly agreed to in writing by both parties. In the event of any conflict between the terms of this Agreement and any other document or agreement, the terms of this Agreement will prevail and control.

14.7 Binding Agreement and Assignment. This Agreement shall be binding upon and shall inure to the benefit of the parties and their respective successors and permitted assigns. Hyland may assign this Agreement or its rights or obligations under this Agreement, in whole or in part, to any other person or entity. Customer may not assign this Agreement or its rights or obligations under this Agreement, in whole or in part, to any other person or entity without the prior written consent of Hyland. Any change in control of Customer resulting from an acquisition, merger or otherwise shall constitute an assignment under the terms of this provision. Any assignment made without compliance with the provisions of this Section 14.7 shall be null and void and of no force or effect.

14.8 Severability. In the event that any term or provision of this Agreement is deemed by a court of competent jurisdiction to be overly broad in scope, duration or area of applicability, the court considering the same will have the power and is hereby authorized and directed to limit such scope, duration or area of applicability, or all of them, so that such term or provision is no longer overly broad and to enforce the same as so limited. Subject to the foregoing sentence, in the event any provision of this Agreement is held to be invalid or unenforceable for any reason, such invalidity or unenforceability will attach only to such provision and will not affect or render invalid or unenforceable any other provision of this Agreement.

14.9 Injunctive Relief. The parties to this Agreement recognize that a remedy at law for a breach of the provisions of this Agreement relating to ownership and intellectual property rights will not be adequate for Hyland’s protection and, accordingly, Hyland shall have the right to obtain, in addition to any other relief and remedies available to it, specific performance or injunctive relief to enforce the provisions of this Agreement.

14.10 Export Compliance. Regardless of any disclosure made by Customer to Hyland of an ultimate destination of any components (including documentation) of the instance of ShareBase subscribed for by Customer, Customer agrees not to export either directly or indirectly any of the foregoing without first obtaining a license from the United States government to export or re-export such components, as may be required, and to comply with United States government export regulations, as applicable. Customer agrees that it will not export or re-export any components of ShareBase to a country that is subject to a U.S. embargo (such embargoed countries include, but are not limited to, Cuba, Iran, Iraq, North Korea, Burma (Myanmar), Sudan and Syria) under the U.S. Department of Commerce Export Administration Regulations and U.S. Department of State International Traffic in Arms Regulations. Customer will not export or re-export any components of ShareBase to any prohibited person or entity in violation of U.S. export laws as described above (for more information visit: http://www.bis.doc.gov/complianceandenforcement/liststocheck.htm). Customer shall not use ShareBase for any prohibited end uses under applicable United States laws and regulations, including but not limited to, any application related to, or purposes associated with, nuclear, chemical or biological warfare, missile technology (including unmanned air vehicles), military application or any other use prohibited or restricted under the U.S. Export Administration Regulations (EAR) or any other relevant laws, rules or regulations of the United States of America.

14.11 U.S. Government End Users. The terms and conditions of this Agreement shall pertain to the U.S. government’s use or disclosure of ShareBase or any of its components as Customer or a Customer’s User, and shall supersede any conflicting contractual terms or conditions. As Customer or a Customer’s User, the U.S. government hereby agrees that all software include in ShareBase qualifies as “commercial” computer software within the meaning of ALL federal acquisition regulation(s) applicable to this procurement and that such software is developed exclusively at private expense. If this right to use fails to meet the U.S. government’s needs or is inconsistent in any respect with federal law, the U.S. government agrees to cease using ShareBase. In addition to the foregoing, where DFARS is applicable, use, modification, reproduction, release, display or disclosure of ShareBase or any components thereof, including user documentation by the U.S. government is subject solely to the terms of this Agreement, as stated in DFARS 227.7202, and the terms of this Agreement shall supersede any conflicting contractual terms or conditions.

14.12 Copyright Complaints and Removal Policy. Hyland respects the intellectual property rights of others and expects that users of ShareBase will do the same. In accordance with 17 U.S.C. §512(c)(3), if you believe that your work has been copied or used in a way that constitutes copyright infringement, please provide Hyland with the following information: (1) a physical or electronic signature of the copyright owner or a person authorized to act on their behalf; (2) identification of the copyrighted work claimed to have been infringed or, if multiple copyrighted works at a single online site are covered by a single notification, a representative list of such works at that site; (3) identification of the material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled, and information reasonably sufficient to permit us to locate the material; (4) your contact information, including your address, telephone number, and an email address; (5) a statement by you that you have a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law; and (6) a statement that the information in the notification is accurate, and, under penalty of perjury, that you are authorized to act on behalf of the owner of an exclusive right that is allegedly infringed. Please send such notices by email to safeharbor@hyland.com or by regular mail to Hyland Software, Inc., General Counsel, 28500 Clemens Rd., Westlake, Ohio 44145.

Hyland reserves the right to delete or disable Customer Content alleged to violate this Agreement and to terminate the access and use rights of repeat infringers.

14.13 Third Parties. Nothing herein expressed or implied is intended or shall be construed to confer upon or give to any person or entity, other than the parties hereto, any rights or remedies by reason of this Agreement; provided, however, that third party suppliers of software products bundled with the Software are third party beneficiaries to this Agreement as it applies to their respective software products.

Additional Defined Terms:

“Documentation” means the Help Files included in ShareBase, which relate to the functional, operational or performance characteristics of ShareBase.

“Error” means any defect or condition inherent in ShareBase which is reported to Hyland by Customer and which is confirmed by Hyland, that causes ShareBase to fail to function in any material respect as described in the Documentation.

“Resolution” means Hyland provides Customer with a reasonable workaround, correction, or modification that solves or mitigates a reported Error.

“Technical Support Services” means telephone or online technical support related to problems reported by Customer and associated with the operation of ShareBase, including assistance and advice related to the operation of ShareBase.

Severity Level	Description	Hyland Response
Level 1	“Level 1” means any Error that causes total or substantial ShareBase failure, which means that ShareBase is down and Customer is unable to access ShareBase in any way within their production environment.	Upon receiving notification from Customer, Hyland’s Technical Support contact will immediately notify a support Manager. Within thirty (30) minutes, the Manager will notify a member of Senior Management or a Vice President. If there is no Resolution within two (2) hours of the Customer’s notice, Hyland will place the Customer on the High Visibility Ticker (HVT). If there is no Resolution within four (4) hours of the Customer’s notice or by the end of business of that day, Hyland will designate the Error as Code Blue. Designation as Code Blue means a resolution team is immediately formed for the Level 1 Error and the resolution team provides continuous updates on all issues of change or status to all C-Level Executives and Vice Presidents of Hyland, and all of Hyland employees are made aware that the Customer is on Code Blue. To provide a Resolution, Hyland will match the Customer’s effort, up to and including 24 hour days, 7 days a week, through holidays and weekends until there is a Resolution.
Level 2	“Level 2” means an Error that causes substantial ShareBase failure which prevents a portion of Customer’s users from accessing ShareBase in any way within the production environment.	Upon receiving notification from Customer, Hyland’s Technical Support contact will notify a support Manager within sixty (60) minutes. Within two (2) hours, the Manager will notify a member of Senior Management or Vice President. If there is no Resolution by the end of business on that day, Hyland will place the Customer on Hyland’s High Visibility Ticker. If there is no Resolution within twenty-four (24) hours of Customer’s notice, Hyland will designate the Error as Code Blue. To provide a Resolution, Hyland will match Customer’s efforts up to 24 hour days, 7 days a week, through holidays and weekends until there is a Resolution.
Level 3	“Level 3” means that ShareBase is usable except that an Error causes an ongoing, system-wide, severe performance degradation.	To provide a Resolution, Hyland will match Customer’s efforts up to 5 days/week, 16 hours/day, through holidays and weekends until there is a Resolution.
Level 4	“Level 4” means that ShareBase is usable except that an Error prevents a specific feature or functionality from working.	To provide a Resolution, Hyland will use reasonable efforts during regular support hours.
Level 5	“Level 5” means that ShareBase is usable except that an Error causes a trivial inconvenience and the task can be completed in another way.	Standard support.
Level 6	“Level 6” means Technical Support Services.	Standard support.