Terms & Conditions

Redcircle International, Inc. General Terms and Conditions (version 2.0)

Redcircle International, Inc. Agreement: This version of the Redcircle International, Inc. Agreement (this “Agreement”) is made and entered into by and between Redcircle International, Inc. or one of its subsidiaries as designated in the Sales Order (“Redcircle”) and the customer (“Customer” or “Client”) identified in the Sales Order (“Sales Order”, “Statement of Work”, “Scope of Work”, “Proposal”, “Work Order”, “Change Order” or “RFP Response”), that specifically references this Agreement. Certain capitalized items are defined at conclusion of this agreement. This Agreement sets forth the terms and conditions under which Redcircle shall provide the Products and/or Services described in the Sales Order. The Sales Order shall reference and be governed by this Agreement. THE PERSON WHO ACCEPTS THIS AGREEMENT AND THE SALES ORDER REPRESENTS AND WARRANTS THAT HE OR SHE HAS THE POWER AND AUTHORITY TO BIND CUSTOMER AND, ACKNOWLEDGES ON BEHALF OF CUSTOMER THAT HE OR SHE HAS READ THIS AGREEMENT, UNDERSTANDS IT, AND AGREES TO BE BOUND BY ITS TERMS AND CONDITIONS.

This Agreement and the Sales Order constitute the complete and exclusive agreement between the parties concerning the subject matter of this Agreement and supersedes all oral or written proposals, negotiations, conversations and other communications between the parties relating to the subject matter of this Agreement.

Term and Termination: This Agreement shall remain in effect until terminated as provided herein and any Sales Order shall remain in effect for the term specified in such Sales Order unless terminated earlier as provided in this Agreement. Either party may terminate this Agreement or a Sales Order if the other party materially breaches this Agreement or such Sales Order, as the case may be, and does not cure such breach within thirty (30) days after the non-breaching party gives written notice of such breach describing in detail the specific nature and dates of the material breach. Either party may terminate this Agreement without cause when there are no outstanding Sales Orders. Termination of this Agreement in accordance with this Section will also result in the termination of all outstanding Sales Orders. Any terms of this Agreement that by their nature extend beyond the expiration or termination of this Agreement, including the terms of the sections entitled Charges and Payment, Intellectual Property Rights and Limitation of Liability, shall remain in effect until fulfilled.

SALES ORDERS: If there is a conflict between the terms and conditions of this Agreement and the terms and conditions of a Sales Order (or any other document that the parties may execute), the terms and conditions of this Agreement prevail unless the conflicting term in the Sales Order expressly states that it is modifying the terms and conditions of this Agreement for that particular Sales Order. If not otherwise subject to a signed Sales Order, a Product or Service becomes subject to this Agreement when Redcircle accepts Customer’s order by: (a) providing Customer a Sales Order; (b) shipping the Product or (c) providing the Service. Customer accepts the additional terms in a Sales Order by doing any of the following: (a) signing the Sales Order or issuing a purchase order or similar document referencing the Sales Order; (b) using the relevant Product or Service, or allowing others to do so or (c) making any payment for the relevant Product or Service. The use of pre-printed forms, including but not limited to purchase orders, e-mail or acknowledgements, shall be for convenience only and all pre-printed terms and conditions stated on such forms are void and of no effect. All orders for Products or Services are subject to approval by Redcircle at its corporate headquarters in New York, NY.

Charges and Payment: Customer shall pay Redcircle for Products and/or Services in accordance with the amounts set forth in the Sales Order, or if not so specified, then within 2 days of the date of invoice, and all payments shall be made in U.S. Dollars without reduction. If any authority imposes a tax, duty, levy or fee, excluding those based on Redcircle’s net income, upon any Products or Services supplied by Redcircle under this Agreement, Customer agrees to pay that amount as specified in the invoice or supply Redcircle with exemption documentation (taxes, shipping and/or other expense items may or may not be included in any of the listed charges, fees or compensation described in the Sales Order). Customer’s failure to pay according to the terms of this Agreement shall entitle Redcircle, without prejudice to its other rights and remedies under this Agreement, to charge interest on a daily basis after 45 days from the original invoice date at the rate of the lesser of 2.0% per month or the maximum amount permissible by law. Payment received when there are more than one past due invoices shall be applied at Redcircle’s discretion. Customer shall reimburse Redcircle for all reasonable costs incurred by Redcircle in collecting past due amounts, including collection agency fees, reasonable attorney’s fees and court costs. Unless otherwise specified in the relevant Sales Order, Redcircle may increase recurring charges for Products and Services (including hourly rates) by giving Customer thirty (30) days prior written notice. Disputes and questions regarding an invoice shall be brought to Redcircle’s attention by Customer within ten (10) days following receipt of the invoice, and the existence of a disputed item on an invoice shall not be cause for withholding payment for the undisputed portion of the invoice, or for any other invoice.

Assignment: This Agreement may not be assigned, sublicensed or otherwise transferred, in whole or in part, by Customer, whether by operation of law or otherwise, without Redcircle’s prior written consent. Any attempted assignment in violation of this Section will be void. Customer agrees that all Products, Services and WORK PRODUCT shall be used solely within Customer’s business enterprise, and shall not be remarketed or leased to third parties.

Governing Law; Actions: All rights, duties and obligations arising from or relating in any manner to the subject matter of this Agreement shall be governed by and construed under the laws of the State of New York applicable to agreements made and fully performed therein, without regard to its conflict of laws provisions. The state courts of the State of New York or the Federal District Court for the Southern District of New York shall have sole and exclusive jurisdiction to hear and determine any dispute or controversy arising under or concerning this Agreement. Neither party shall bring a legal action against the other relating to the subject matter of this Agreement more than two (2) years after the cause of action arose. Nothing in this Agreement affects any statutory rights that cannot be waived or limited by contract under applicable law.

Limitation of Liability: Regardless of the basis on which Customer is entitled to claim damages from Redcircle, to the fullest extent permitted by law, Customer hereby agrees that Redcircle’s total liability to the Customer (for any and all injuries, claims, losses, expenses or damages howsoever arising from or in any way relating to the Project, Proposal or Sales Order from any cause or causes including, but not limited to, the negligence, errors, omissions, misrepresentation, breach of contract or breach of warranty, or other contract or tort claim by any Redcircle employee or agent) shall be limited and shall not exceed the total compensation received by Redcircle under the Proposal. Redcircle is liable only for the amount of any actual direct damages up to a maximum actually paid by Customer for the Product, Work Product or Service that is the subject of the claim. This limit also applies to any of Redcircle’s affiliates, subsidiaries, suppliers and subcontractors, and is the maximum for which this group shall be collectively responsible. This limit does not apply to any damages for bodily injury (including death) and damage to real property and tangible personal property. In no event shall Redcircle, its subsidiaries, affiliates, suppliers or subcontractors be liable for (i) any third-party claims against Customer for losses or damages (other than those under the immediately preceding sentence), (ii) loss of or damage to Customer’s records or data or (iii) special, incidental or consequential damages (including lost profits or savings), even if they are informed of their possibility. These limitations shall apply despite the failure of the essential purpose of any limited remedy.

Force Majeure: No delay or default in performance of any obligation by either party, excepting all obligations to make payments hereunder, shall constitute a breach of this Agreement to the extent such default or delay is caused, directly or indirectly, by an event beyond the reasonable control of the party unable to perform, including fire, flood, earthquake, elements of nature, acts of war, terrorism, riots, civil disorders, rebellions or revolutions, failure of the Internet or strikes, lockouts or labor difficulties.

Severability - Entire Agreement: If any particular provision of this Agreement is held to be invalid or unenforceable, the remaining provisions of this Agreement shall remain in full force and effect. This Agreement, including all applicable Sales Orders, constitute the complete and exclusive agreement between the parties concerning the subject matter of this Agreement and supersede all oral or written proposals, negotiations, conversations and other communications between the parties relating to the subject matter of this Agreement. All applicable Sales Orders are hereby incorporated by reference and made a part of this Agreement.

Counterparts; Reproduction; & No Third Party Beneficiaries: This Agreement may be signed in one or more counterparts, each of which shall be considered an original, but all of which together form one and the same instrument. Once any required signatures are obtained, any reproduction of this Agreement or any Sales Order made by reliable means (for example, photocopy or facsimile) is considered an original, unless prohibited by local law; provided, however, that this shall not preclude either party from requiring the exchange of original signatures. This Agreement does not create any benefits, rights, claims, obligations, or causes of action in, to, or on behalf of, any person or entity other than to Redcircle and Customer under this Agreement, except as set forth in the Limitation of Liability section.

Notices & Changes: Except as otherwise specified in this Agreement, all notices, required or permitted under this Agreement must be given in writing to the addresses set forth above by reputable overnight courier, registered or certified first class mail, return receipt requested. Changes or waivers to this Agreement may be made only in wiring signed by both parties. Changes in any other form, including additional or different terms in any purchase order or other written communication from Customer, are void.

Representations: Redcircle and Customer each represent and warrant to the other that: (i) it has all requisite power and authority to execute, deliver and perform its obligations under this Agreement; (ii) its signing of and agreement to this Agreement has been duly authorized by all requisite corporate actions and (iii) this Agreement is a valid and binding obligation, enforceable against it in accordance with its terms (assuming the due authorization, execution, and delivery by the other).

SERVICES: Sections 1 thru 8 apply to any Sales Order in which Customer has agreed to acquire Service(s) from Redcircle:

1. Services, Work Product Ownership and License: Subject to the terms herein, Customer agrees to purchase, and Redcircle agrees to perform, the Services set forth in a Sales Order. Redcircle may deliver Work Product to Customer. Redcircle or third parties shall retain all right, title and interest, including ownership of copyright in such Work Product. Redcircle grants Customer an irrevocable, nonexclusive, paid-up license to access, use, execute, reproduce, perform and

distribute copies of such Work Product for Customer’s internal use, including the right to authorize others to do so on Customer’s behalf.

2. Parties Independent: In making and performing this Agreement, the parties act and shall act at all times as independent contractors and nothing contained in this Agreement shall be construed or implied to create an agency, partnership, employer and employee relationship or any form of fiduciary relationship between

Customer and Redcircle or between any party and any officer or employee of the other party.

3. Services Warranty: Redcircle warrants that each Service will be performed using reasonable care and skill and according to its current description (including


4. Personnel; Freedom of Action: Each party is responsible for the supervision, direction and control of its respective personnel. Redcircle reserves the right to determine the assignment of its personnel and Redcircle personnel shall not be restricted or prevented from performing services for others that are similar to the Services provided to Customer. Redcircle may perform its obligations through its affiliates, subsidiaries or subcontractors selected by Redcircle; provided, however, that Redcircle shall not be relieved of its obligations under this Agreement as a result of such use.

5. Cooperation: Customer shall, at its own expense, provide Redcircle with all reasonable cooperation necessary or appropriate for completion of the Services, including (if necessary) providing access to properly equipped facilities and obtaining all Required Consents necessary for Redcircle to provide the Services. “Required Consents” are any consents or approvals required to give Redcircle the right or license to access, use, and/or modify any third party software, hardware or other products or information used by Customer without infringing the ownership or license rights (including patent and copyright) of the providers or owners of such items. When Redcircle's performance of the Services requires or is contingent upon Customer's performance of an obligation (including providing Required Consents, approval or notification or taking a recommended corrective action) under this Agreement or a relevant Sales Order, and Customer delays or withholds its performance beyond the agreed time period (or beyond 2 business days, if a time period is not specified), Redcircle will be relieved of its obligation to perform such Services entirely or, if it is reasonable for Redcircle to perform once Customer performs, until a reasonable period following Customer's performance of its responsibility.

6. Non-Solicitation / Non-Hire of Redcircle Employees or Independent Contractors:

A) Unless otherwise agreed to by a senior executive of Redcircle in writing, the Customer agrees: (i) not to solicit the employment of any Redcircle employee while Redcircle is performing services for Customer, and for a period of one year after the termination of any work performed for Customer in conjunction with the Proposal; and (ii) not to employ any Redcircle employee or independent contractor working for Redcircle in any manner while Redcircle is performing services for the Customer and for a period of one year after the termination of any work relevant to the Proposal. Notwithstanding anything to the contrary contained herein, in the event that any Redcircle employee or independent contractor working for Redcircle who performed any work or services for Customer in connection with the Proposal, is hired or employed by Customer in any position or manner whatsoever, on a full-time or part-time basis, as an employee, independent contractor or consultant, pursuant to an agreement or on an at-will basis, within one year after the termination or completion of services rendered to Customer by Redcircle in connection with the Proposal, then Customer shall notify Redcircle in writing, prior to the date that such employment commences of the name of the employee, the date upon which such employment will commence, and shall provide to Redcircle an itemized statement of the compensation and benefits to be paid to such employee which shall include the base salary, commissions, bonuses, and the cost of any health benefits and retirement benefits to be paid or provided to such employee during the first year of employee’s employment by Customer (hereinafter the “Annual Compensation Package”), and Customer shall pay and remit to Redcircle, within thirty days of the commencement of such employment, a sum equal to fifty percent of the total first year Annual Compensation Package to be paid to the employee, regardless of whether such employee remains employed or is to be employed by Customer for a period less than one year.

B) The parties agree that payment of monetary damages would not be an adequate remedy to protect the rights of Redcircle set forth in paragraph 1 of this agreement; therefore, if it so elects, Redcircle shall be entitled to institute and prosecute proceedings in any court of competent jurisdiction, in law or equity, to seek a temporary, preliminary or permanent injunction to enforce its rights. In appropriate circumstances, Redcircle may apply to an appropriate court for a preliminary and/or temporary injunction pending the outcome of an arbitration proceeding between the parties.

7. Confidential Information. Each party acknowledges that certain information that it will have access to or acquire from the other party may constitute such other party’s (or its customers’) confidential information including information related to the business, operations, financial information, client and patient data, and certain work product of a party. Each party shall use reasonable efforts to maintain the confidentiality of information or trade secrets provided to or obtained by such party which are either identified as confidential or trade secrets or which a reasonable person should know is confidential. Each party’s obligations shall terminate if the information was in, or enters through no fault of the recipient, the public domain, or was in the recipient’s possession free of any obligation of confidence at the time it was communicated to the recipient by the other party; or was properly disclosed to recipient by another person without restriction or was developed by the recipient independently of any such information.

8. Knowledge Capital: The Knowledge Capital, Methodologies, Software, Computer Programs, and Hardware owned by, “Trade Marked” (TM), and/or “Service Marked” (sm) by Redcircle, including the framework, documentation, manuals, and database created by Redcircle shall be and remain at all times the property of Redcircle, subject to any limited license Redcircle may supply Customer to permit Customer to use the knowledge capital, methodologies, software, computer programs, and hardware to the extent and for a period of time necessary to maintain the integrity and operation of data, formulas and program configurations installed by Redcircle under the provisions of the Proposal.

Defined Terms:

“Sales Order” or “Sales Orders” shall mean one or more quotations, schedules, service orders, statements of work, scopes of work, proposals, work orders,

change orders or other transaction-specific documents for Products and/or Services including the applicable prices, to be provided by Redcircle under this Agreement. Certain Sales Orders may require signature if requested by either Redcircle or Customer. Unless otherwise specified in the relevant Sales Order, the terms of each Sales Order shall be independent of and shall have no effect on the terms of any other Sales Order.

“Service” or “Services” is the performance of a task, provision of advice and counsel, assistance, or access to a resource (such as access to an information database) Redcircle makes available to Customer as identified in the relevant Sales Order. Services do not include Third-Party Services.

“Third-Party Service” of “Third-Party Services” is a service provided by a third party, including services related to any non- Redcircle supplied areas.

“Work Product” means service delivery, programming tools, documentation, reports and drawings - or other works of authorship that Redcircle develops for, or otherwise delivers to, Customer.