Revision Date: September 12th, 2025

THIS AGREEMENT GOVERNS THE PROVISION OF CODENTA PRODUCTS AND SERVICES. BY ACCEPTING THIS AGREEMENT, EITHER BY CLICKING A BOX INDICATING ACCEPTANCE OR BY EXECUTING AN ORDER FORM THAT REFERENCES THIS AGREEMENT, CUSTOMER AGREES TO THE TERMS OF THIS AGREEMENT. 

1. DEFINITIONS

   
   

“Agreement” means this Terms of Use document and one or more executed Order Forms.

“Beta Product” means a Codenta product that is not generally available to customers.

“Billing Cycle” means a calendar month.

“Business Hours” means normal business hours between 8:00 am and 6:00 pm ET, Monday through Friday, excluding Codenta holidays, which are New Year’s Day, Memorial Day, Independence Day, Labor Day, Thanksgiving Day and the day after, Christmas Eve and Christmas Day. If any of these holidays fall on a Saturday, the Saturday and the Friday before will be considered holidays. If any of these holidays fall on a Sunday, the Sunday and the Monday after will be considered holidays.

“Codenta” means Codenta Inc., a Delaware corporation.

“Customer” means the customer that has executed an Order Form.

“Customer Data” means electronic data and information submitted by or for Customer through a Product or collected and processed by or for Customer using a Product.

“Documentation” means Codenta’s online user guides, documentation, and help and training materials, as updated from time to time, relating to a Product.

“Go‑Live” for a Practice means the date on which that Practice first has: (a) a Product provisioned with access to its PMS/EHR for production data; and (b) Alerts enabled for live visits.

“Malicious Code” means code, files, scripts, agents, or programs intended to do harm, including, for example, viruses, worms, time bombs and Trojan horses.

“Order Form” means an ordering document specifying the Products to be provided by Codenta. 

“Parties” means Codenta and Customer.

“Party” means Codenta, or Customer, as applicable.

“Practice” means a distinct Customer location/site identified in the Order Form.

“Product Support” means the support services described in the Documentation or in the Order Form.

“Products” means the products and services that are ordered by Customer and made available online, including any associated offline components, as described in the Documentation and Order Form. 

“Term” means the initial period of this Agreement plus any renewal periods.

“User” means an individual who is authorized by Customer to use a Product, and to whom Customer (or Codenta at Customer request) has supplied a user identification and password. Users may include, for example, Customer employees, consultants, contractors, and agents, and third parties with which Customer transacts business.

Other definitions are included below.

2. CODENTA RESPONSIBILITIES

   
   

   2.1. Provision of Products. Codenta shall: (a) make the Products available to Customer pursuant to this Agreement and the applicable Order Forms and Documentation; (b) provide applicable Product Support during Business Hours at no additional charge; and (c) provide the Products in accordance with laws and government regulations applicable to the provision of the Products to customers generally (i.e., without regard for Customer’s particular use of the Products), and subject to Customer’s and Users’ use of the Products in accordance with this Agreement, the Documentation, and the applicable Order Form. Codenta makes no guarantees as to the continuous availability of the Products or of any specific feature of the Products since: (i) it is hosted by third parties; and (ii) it interoperates with products from third parties, including web browsers.
   
   

   2.2. Service Level. Codenta shall exercise reasonable commercial efforts to process at least 95% of eligible completed visits within 24 hours after note/code completion. No credits or refunds will be granted for any failure to meet this provision.

   
   

   2.3. Protection of Customer Data; Security. Codenta shall receive, process, store, use, and transmit Customer Data in accordance with its privacy statement posted at https://www.codenta.ai/privacy or such other location as Codenta may notify Customer in writing. The privacy statement may be amended from time to time, and it is Customer’s responsibility to regularly review such privacy statement. Customer’s continued use of a Product following any change to the privacy statement will constitute agreement to be bound by the revised terms of the privacy statement. Codenta will maintain administrative, physical, and technical safeguards as described in Exhibit B, including encryption in transit and at rest, role‑based access, logging/monitoring, vulnerability management, and incident notification within 72 hours after confirmation of a breach affecting Customer Data. 

   
   

   2.4. Geographic Scope. Customer may only use and access the Products in the United States of America, and Customer acknowledges Codenta is undertaking under this Agreement to comply the privacy and protection laws only of the United States of America.

   
   

   2.5. Codenta Personnel. Codenta is responsible for the performance of its personnel (including its employees and contractors) and their compliance with its obligations under this Agreement.

   
   

   2.6. Beta Products. From time to time, Codenta may invite Customer to try a Beta Product at no charge. Customer may accept or decline any such Beta Product in its sole discretion. A Beta Product will be clearly designated as beta, pilot, limited release, developer preview, non-production, evaluation or by a description of similar import. A Beta Product is for evaluation purposes only and not for production use, is not considered  a “Product” under this Agreement (except that the provisions of Section 3 (Customer Responsibilities) applicable to the Products are also applicable to the Beta Product), is not supported, and may be subject to additional terms. Unless otherwise stated, any Beta Product trial period will expire upon the earlier of 3 months after the trial start date or the date that a production version of the Beta Product becomes generally available. Codenta may discontinue a Beta Product at any time in its sole discretion and may never make it generally available. Codenta will have no liability for any harm or damage related to use of a Beta Product.

   
   

   2.6. Insurance. Codenta shall maintain in full force and effect during the Term: (a) Commercial general liability insurance with coverage limits of not less than $1,000,000 per occurrence and $2,000,000 in the aggregate; (b) Cyber insurance with coverage limits of not less than $2,000,000 per occurrence and in the aggregate; and (c) other insurance policies as are commercially reasonable under the circumstances.

   
   

3. CUSTOMER RESPONSIBILITIES

   
   

   3.1. Access and Cooperation. Customer shall provide timely API credentials, IP allow‑listing, and necessary access to PMS/EHR, patient ledgers (including completed and planned treatment codes, postings, adjustments/reversals, and write‑offs), clinical notes, claim images, payer tables/fee schedules, ERAs/EOBs, and knowledgeable personnel. Customer will ensure its agreements with third‑party vendors (e.g., PMS) permit access for the Products.

   
   

   3.2. Customer’s Sole Responsibility for Changes. Product outputs are proposed changes only and must only be accepted if they accurately reflect the actual treatments provided. Customer retains sole control and responsibility for clinical judgment, coding selections, documentation, and the accuracy of all entries in its systems. Customer is solely responsible for the acceptance or rejection of Product outputs, which must be evaluated by Customer to determine whether a Product output accurately reflects treatments actually provided. Customer is also solely responsible for any resulting write-backs (including ledger postings, code changes, note addenda, and similar entries) in its PMS/EHR, whether performed manually by Customer or performed automatically by a Product at Customer’s direction upon acceptance in the Product UI (and only where write-backs are enabled for that Practice). The Products provide technical functionality to transmit Customer-approved changes; Codenta does not practice dentistry and does not independently create or approve any entries.

   
   

   3.3. Third‑Party Changes. If a third‑party vendor (e.g., PMS) materially changes APIs, rate limits, or access in a way that impacts the Services, the Parties will negotiate a change order in good faith.

   
   

   3.4. Product Adoption and Enablement. Customer will use commercially reasonable efforts to enable the Services, including timely completion of clinical notes and staff training. If, during any rolling 30-day period for any Practice in which Codenta issues at least 50 Eligible Alerts, the Accepted Rate for that Practice is below 10%, the parties will meet within 7 days to agree on a 14-day remediation plan (e.g., training, workflow adjustments, access fixes). If, after the remediation period, the Accepted Rate remains below 10%, Codenta may, upon 10 days’ notice: (a) suspend the Products for that Practice, (b) terminate the applicable Product as to that Practice without penalty, or (c) convert pricing for that Practice to a mutually agreed fixed monthly fee going forward, documented by amendment. “Accepted Rate” = (# of Eligible Alerts that result in an Eligible Posting (as defined in Exhibit A) within the Adoption Window) ÷ (# of Eligible Alerts issued in that period). “Adoption Window” means 30 days after the Alert. “Eligible Alert” means an Alert issued when: (i) the Practice is post-Go-Live: (ii) required access/data under Section 3.1 was available; and (iii) the Alert does not solely concern a Zero-Dollar Posting. 

   
   

   3.5. Customer Responsibilities. Customer shall: (a) be responsible for Users’ compliance with this Agreement; (b) be responsible for the accuracy, quality and legality of Customer Data and the means by which it acquired Customer Data; (c) use commercially reasonable efforts to prevent unauthorized access to or use of the Products, and notify Codenta promptly of any unauthorized access or use; and (d) use the Products only in accordance with the Documentation and applicable laws and government regulations.

   
   

   3.6. Usage Restrictions. Customer shall not: (a) make a Product available to anyone other than Customer’s Users, or use a Product for the benefit of any party other than Customer, except as may be explicitly permitted under this Agreement; (b) sell, resell, license, sublicense, distribute, rent or lease a Product, or include a Product in a service bureau or outsourcing offering, except as may be explicitly permitted under this Agreement; (c) use a Product to store or transmit infringing, libelous, or otherwise unlawful or tortious material, or to store or transmit material in violation of third party privacy rights; (d) use a Product to store or transmit Malicious Code; (e) interfere with or disrupt the integrity or performance of a Product or third party data contained in a Product; (f) attempt to gain unauthorized access to a Product or its related systems or networks; (g) permit direct or indirect access to or use of a Product in a way that circumvents a contractual usage limit; (h) copy a Product or any part, feature, function, software code or user interface thereof; (i) copy the Documentation other than as reasonably needed in connection with permitted use of a Product; (j) frame or mirror any part of a Product; (k) access a Product in order to build a competitive product or service; (l) reverse engineer a Product (to the extent this restriction is permitted by law); (m) use a Product for any benchmarking purposes; or (n) download, read, display, copy, modify or transmit any program code or documentation comprising an internal part of a Product.

   
   

   3.7. Usernames and Passwords. Customer shall (and shall require all Users to) keep all passwords and API keys provided by Codenta safe and secure, and Customer shall be responsible for all use of a Product using passwords or API keys issued to Customer or its Users. Access credentials may not be shared. Customer shall: (a) provide Codenta with accurate, complete, and up to date information; and (b) update Customer’s information to keep it accurate, current and complete. Failure to provide accurate information constitutes a breach of this Agreement, which may result in immediate termination of Customer’s right to access the Products. Furthermore, Customer shall not: (d) give a password to any unauthorized person; (e) use a Product as the agent of a third party, except as may be explicitly permitted under this Agreement; (f) allow any unauthorized party to use Customer’s account; (g) sell or transfer use of or access to a Product or permit anyone else whose account was suspended or terminated to use a Product through Customer’s username or password; or (h) select a username that impersonates someone else, is intended to disguise the user’s identity, is or may be illegal, may be protected by trademark or other proprietary rights, is vulgar or offensive, or may cause confusion. Codenta reserve the right to reject any username in its sole discretion. If any User ceases to be an authorized User, then Customer shall immediately delete that person’s access credentials and otherwise terminate that person’s access to the Products. If any security breach or unauthorized use of Customer’s account occurs, Customer shall notify Codenta immediately in writing or via email. Codenta will not be liable for any loss Customer incurs as a result of someone else using Customer’s password and account with or without Customer’s permission.

   
   

   3.8. Certification and Audit Rights. On written request, Customer shall provide a signed certification: (a) verifying that the Products is being used in accordance with the terms of this Agreement; and (b) listing the locations where the Products are accessed. Codenta may audit Customer’s use of the Products and compliance with the terms of this Agreement until the expiration of the Order Form pursuant to which the Products are provided, and for one year thereafter. Any audit will be conducted during business hours and will not unreasonably interfere with Customer’s business activities. Customer shall provide all reasonable assistance and information reasonably requested to determine whether Customer is in compliance with this Agreement. If an audit reveals that Customer has underpaid under this Agreement, Codenta shall invoice Customer for the underpaid amounts based upon the generally available price list at the time the amounts would have otherwise been incurred, together with interest at a rate of one and one-half percent (1.5%) per month or partial month or the highest rate allowed by law, whichever is less, compounded, during which any amounts were owed and unpaid.  If an audit reveals that Customer has underpaid amounts totaling ten percent (10%) or more of the amounts due in any year, Customer shall reimburse all reasonable costs, fees, and expenses associated with the audit.

   
   

4. FEES AND PAYMENT

   
   

   4.1. Fees. Customer shall pay the fees specified in Exhibit A and in an Order Form in accordance with the payment terms specified in that document. 

   
   

   4.2. Invoicing and Payment. Customer shall provide valid and updated ACH or credit card information, or with a valid purchase order or alternative document reasonably acceptable to Codenta. If Customer provides ACH or credit card information, Customer authorizes Codenta to charge the bank account or credit card for the Products as listed in the Order Form for the initial subscription term and any renewal subscription terms. Unless otherwise stated in the Order Form, invoiced charges are due upon receipt. Customer is responsible for providing complete and accurate billing and contact information and notifying Codenta of any changes to this information.

   
   

   4.3. Purchase Order Terms. Any terms or conditions on any purchase order in any way different from or in addition to the terms and conditions of this Agreement will have no effect and each Party hereby rejects all such terms and conditions.

   
   

   4.4. Overdue Charges. If any invoiced amount is not received by the due date, then without limiting any other rights or remedies: (a) those charges may accrue interest at the rate of 1.5% of the outstanding balance per month, or the maximum rate permitted by law, whichever is lower; and (b) Codenta may condition future subscription renewals on different payment terms.

   
   

   4.5. Suspension of Service and Acceleration. If an amount owing under this Agreement is 30 or more days overdue (or 10 or more days overdue in the case of amounts Customer has authorized Codenta to charge to Customer bank account or credit card), Codenta may, without limiting any other rights and remedies, do one or both of the following: (a) accelerate unpaid fee obligations so that they all become immediately due and payable; and (b) suspend services until the unpaid amounts are paid in full. Codenta shall provide at least 10 days’ prior notice that the account is overdue, in accordance with Section 11.4 (Notice), before suspending services.

   
   

   4.6. Payment Disputes. Codenta shall not exercise its rights under Section 4.4 (Overdue Charges) or 4.5 (Suspension of Service and Acceleration) above if Customer is disputing the applicable charges reasonably and in good faith and is cooperating diligently to resolve the dispute. If Customer disputes an invoice, it shall notify Codenta within thirty (30) days after the date of the invoice of the amount in dispute and the reason for the dispute, and the Parties shall work together in good faith to expeditiously resolve the dispute. Invoices not disputed within thirty (30) days are deemed valid and undisputed and may not later be disputed.

   
   

   4.7. Taxes. Codenta fees do not include any taxes, levies, duties, or similar governmental assessments of any nature, including, for example, value-added, sales, use or withholding taxes, assessable by any jurisdiction related to the services under this Agreement (collectively, “Transaction Taxes”). Customer is responsible for paying all Transaction Taxes associated with purchases hereunder. If Codenta has the legal obligation to pay or collect Transaction Taxes for which Customer is responsible, Codenta shall invoice Customer and Customer shall pay that amount unless Customer provides a valid tax exemption certificate authorized by the appropriate taxing authority. For clarity, Codenta is responsible for taxes assessed based on its income, property, and employees.

   
   

   4.8. Future Functionality. Customer agrees that purchases are not contingent on the delivery of any future functionality or features, or dependent on any verbal or written public comments regarding future functionality or features.

   
   

   4.9. Compliance; No Referrals or Fee-Splitting. The Parties intend that compensation under this Agreement is fair market value for services actually rendered by Codenta and does not involve any payment for referrals or fee splitting. None of Codenta’s activities contemplated under this Agreement or otherwise shall constitute an obligation of Codenta to generate patient flow or business to Customer.  No benefits to Customer or Codenta under this Agreement require or are in any way contingent upon the recommendation, referral, or any other arrangement for the provision of any item or service offered by Customer, Codenta, or any of their respective affiliates. 

5. TERM AND TERMINATION

   
   

   5.1. Term and Renewal. This Agreement commences on the effective date of the first Order Form (or upon online acceptance of this Agreement, whichever is earlier) and continues until all subscriptions have expired or have been terminated. Termination of an individual Order Form will not terminate this Agreement. The term of each purchased subscription is specified in the applicable Order Form. Except as otherwise specified in an Order Form, subscriptions will automatically renew for additional 1- year terms, unless a Party gives the other written notice of non-renewal (email acceptable) at least 60 days before the end of the relevant subscription term. If pricing is going to increase upon renewal, then Codenta must provide notice of the increase at least 90 days prior to the renewal.

   
   

   5.2. Termination for Cause. A Party may terminate this Agreement: (a) if the other Party is in material breach of this Agreement and the breach remains uncured at least 30 days after receipt of written notice; or (b) if the other Party becomes the subject of any bankruptcy or insolvency proceeding. 

   
   

   5.3. Suspension. In addition to its rights under Section 4.5 (Suspension of Service and Acceleration), Codenta may suspend provision of a Product to address: (a) a security risk to the Product or likely harm to the Product, Codenta, or its customers; or (b) credible evidence of Customer’s unlawful use, fraud, or misuse of the Products (including suspected improper billing practices). Codenta shall restore the Product once the issue is resolved to its reasonable satisfaction.

   
   

   5.4. Effect of Termination.

   
   

   5.6. Customer Data. Upon request made within 30 days after the termination of this Agreement and full payment of all obligations under this Agreement, Codenta shall make Customer Data available for export or download as provided in the Documentation. After that 30-day period, Codenta will have no obligation to maintain or provide Customer Data, and unless legally prohibited may thereafter delete or destroy all copies of Customer Data. 

   
   

   5.7. Surviving Provisions. Sections 1 (Definitions), 2.3 (Protection of Customer Data; Security), 3 (Customer Responsibilities), 4 (Fees and Payment), 5 (Term and Termination), 6 (Proprietary Rights and Licenses), 7 (Confidentiality), 8.4 (Disclaimers), 9 (Infringement Indemnity), 10 (Limitation of Liability), and 11 (General Provisions) will survive any termination of this Agreement.

6. PROPRIETARY RIGHTS AND LICENSES

   
   

   6.1. Ownership of Products. Subject only to the limited usage rights expressly granted in this Agreement, Codenta and its licensors reserve all right, title, and interest in and to the Products, including all related patent, copyright, trade secret, trademark, and other intellectual property rights. Codenta ownership includes any suggestions, ideas, enhancement requests, feedback, or recommendations Customer may provide relating to a Product (“Feedback”), and Customer hereby assigns to Codenta all right, title and interest in and to Feedback and all intellectual property rights therein. 

   
   

   6.2. Ownership of Customer Data. As between the Parties, Customer retains ownership of all right, title and interest in and to Customer Data, including all related patent, copyright, trade secret, trademark, and other intellectual property rights.

   
   

   6.3. License to Customer Data. Customer hereby grants Codenta a non-exclusive license to host, copy, manipulate, transmit and display Customer Data as necessary to provide the Products in accordance with this Agreement, and for Codenta to use Customer Data on an anonymized basis to create or improve its products and services. Codenta acquires no other right, title, or interest under this Agreement in or to Customer Data.

   
   

   6.4. Limitations. Customer is not getting a license to any software programs, but only the right to access and use the Products in accordance with this Agreement. No rights are granted other than as expressly set forth in this Agreement.

   
   

   6.5. Federal Government End Use Provisions. Codenta provides the Products, including related software and technology, for ultimate United States government end use solely in accordance with the following: Government technical data and software rights related to the Products include only those rights customarily provided to the public as defined in this Agreement. This customary commercial license is provided in accordance with FAR 12.211 (Technical Data) and FAR 12.212 (Software) and, for Department of Defense transactions, DFAR 252.227-7015 (Technical Data – Commercial Items) and DFAR 227.7202-3 (Rights in Commercial Computer Software or Computer Software Documentation).  If a government agency has a need for rights not granted under these terms, it must negotiate with Codenta to determine if there are acceptable terms for granting those rights, and a mutually acceptable written addendum specifically granting those rights must be included in any applicable agreement. 

7. CONFIDENTIALITY

   7.1. Definitions. “Confidential Information” means all information disclosed by a Party (“Discloser”) to the other Party (“Recipient”), whether verbally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure. “Representatives” means a Party’s directors, officers, employees, advisors (including financial advisors, counsel, and accountants), agents, or controlling persons. Customer’s Confidential Information includes Customer Data; Codenta Confidential Information includes the Products; and Confidential Information of each Party includes the confidential terms of this Agreement and all Order Forms (including pricing), as well as business and marketing plans, technology and technical information, product plans and designs, and business processes of Discloser. 

   
   

   7.2. Protection of Confidential Information. Recipient shall : (a) use the same degree of care that it uses to protect the confidentiality of its own confidential information of like kind (but not less than reasonable care); (b) not use any Confidential Information for any purpose outside the scope of this Agreement; and (c) except as otherwise authorized by Discloser in writing, limit access to Confidential Information to those of its Representatives who need that access for purposes consistent with this Agreement and who have confidentiality obligations no less stringent than those in this Agreement. Neither Party shall disclose the confidential terms of this Agreement to any third party other than its Representatives without the other Party’s prior written consent. The acts and omissions of a Party’s Representatives are deemed the acts and omissions of that Party under this Agreement.

   
   

   7.3. Exceptions. Except for personally identifiable information, Recipient has no obligations under Section 7.2 (Protection of Confidential Information) with respect to any Confidential Information if it: (a) is or becomes generally known, or readily ascertainable by proper means, by the public other than through a breach of this Agreement by Recipient; (b) was known by Recipient before it is disclosed to Recipient by Discloser as evidenced by Recipient’s written records; (c) is developed independently by Recipient in a manner that does not rely on the Confidential Information; or (d) is disclosed to Recipient by a third party not subject to any nondisclosure obligations with respect to the Confidential Information.

   
   

   7.4. Compelled Disclosure. If Recipient receives a request to disclose all or any part of the Confidential Information under the terms of a subpoena or order issued by a court or other governmental agency, Recipient shall: (a) immediately notify Discloser of the existence, terms, and circumstances surrounding the request; (b) consult with Discloser on the advisability of taking legally available steps to resist or narrow the request; and (c) if disclosure is required, cooperate with Discloser at Discloser’s expense in obtaining an order or other reliable assurance that confidential treatment will be accorded to the portion of the information as Discloser may designate.

8. WARRANTIES AND DISCLAIMERS

   
   

   8.1. Representations. Each Party represents that it has validly entered into this Agreement and has the legal power to do so.

   
   

   8.2. Product Warranty. Codenta warrants that the Products will perform substantially in accordance with the applicable Documentation and this Agreement and will not contain Malicious Code. 

   
   

   8.3. Remedies. For any breach of the warranties in Section 8.2 (Product Warranty), Codenta shall exercise commercially reasonable efforts to re-perform any non-conforming services that were performed within the 30 day period immediately preceding the date of Customer’s written notice specifying in reasonable detail the non-conformance. If Codenta concludes that conformance is impracticable, then Codenta shall refund all fees paid by Customer, if any, allocable to the nonconforming services. The express remedies in this Section 8.3 (Remedies) constitute Customer’s exclusive remedies, and Codenta’s sole obligation and liability, for any claim that (a) a Product does not conform to the requirements or is otherwise defective; or (b) any services were performed improperly.

   
   

   8.4. Disclaimers. 

   EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT, CODENTA MAKES NO WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND EACH PARTY SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, OR NON-INFRINGEMENT, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. CODENTA DOES NOT WARRANT THAT: (A) USE OF A PRODUCT WILL MEET CUSTOMER’S REQUIREMENTS; OR (B) USE OF A PRODUCT WILL BE UNINTERRUPTED OR FREE FROM ERROR. EACH PARTY DISCLAIMS ALL RESPONSIBILITY OR LIABILITY FOR ANY FUNCTIONALITY ISSUES OR DAMAGES CAUSED BY ANY THIRD-PARTY HOSTING PROVIDERS OR BY ANY THIRD PARTY PRODUCTS. 

9. INDEMNITY

   
   

   9.1. Codenta Intellectual Property Indemnity. Codenta shall: (a) defend or, at its sole option, settle, at its own expense any suit, action, or proceeding brought against Customer by a third party claiming that a Product, infringes any patent, copyright, trade secret, trademark, or other proprietary right (an “IP Action”); and (b) pay damages awarded against Customer in the IP Action, those monetary damages agreed to by Codenta and the claimant in a settlement of the IP Action, and Customer’s reasonable attorneys’ fees incurred in the defense or settlement of the IP Action. Customer shall: (i) give Codenta prompt written notice of the claim; (ii) tender to Codenta sole control of the defense or settlement of the IP Action; and (iii) cooperate with Codenta in defending or settling the IP Action. If Codenta receives notice of an allegation that a Product infringes a third party’s intellectual property rights, or if Customer’s use is enjoined as a result of infringement, Codenta may, at its sole option and expense: (A) procure for Customer the right to continue using the infringing material; (B) modify the infringing material so that it is no longer infringing; or (C) replace the infringing material with other material of equal or superior functional capability. If none of these actions are in Codenta’s determination commercially feasible, Codenta will have the right to terminate Customer’s right to that infringing material. If Codenta terminates a right to infringing material: (1) Codenta shall refund the applicable fees paid for the license of the infringing material; and (2) Customer shall immediately deliver to Codenta all copies of that infringing material in Customer’s possession or control. This requirement applies to all copies in all forms, partial and complete, and whether or not modified or merged into other materials.

   
   

   9.2. INDEMNITY LIMITATIONS. THE RIGHTS GRANTED TO CUSTOMER UNDER SECTION 9.1 WILL BE CUSTOMER’S EXCLUSIVE REMEDY AND CODENTA’S SOLE OBLIGATION AND LIABILITY FOR ANY ALLEGED INFRINGEMENT OF A PATENT, COPYRIGHT, TRADE SECRET, TRADEMARK, OR OTHER PROPRIETARY RIGHT. CODENTA HAS NO LIABILITY FOR ANY CLAIM OF INFRINGEMENT CAUSED BY: (A) MODIFICATION OF MATERIALS WITHOUT THE APPROVAL OF CODENTA; (B) ANY CUSTOMER OR THIRD-PARTY APPLICATION OR OTHER TECHNOLOGY; (C) USE OF MATERIALS IN CONNECTION OR IN COMBINATION WITH EQUIPMENT, DEVICES, OR SOFTWARE NOT PROVIDED BY CODENTA (BUT ONLY TO THE EXTENT THAT THE MATERIALS ALONE WOULD NOT HAVE INFRINGED); (D) COMPLIANCE WITH CUSTOMER’S REQUIREMENTS OR SPECIFICATIONS; (E) USE OF MATERIALS OTHER THAN AS PERMITTED UNDER THIS AGREEMENT, OR IN A MANNER FOR WHICH THEY WERE NOT INTENDED; OR (F) USE OR DISTRIBUTION OF OTHER THAN THE MOST CURRENT RELEASE OR VERSION OF MATERIALS (IF THE INFRINGEMENT WOULD HAVE BEEN PREVENTED BY THE USE OF THIS RELEASE OR VERSION).

   
   

   9.3. Customer Compliance Indemnity. Customer shall: (a) defend or, at its sole option, settle, at its own expense any suit, action, or proceeding brought against Codenta by a third party involving (i) Customer’s violation of law (including healthcare billing and fraud-and-abuse laws); (ii) Customer Data; or (iii) Customer’s clinical, coding, or billing decisions or use of the Products contrary to the Documentation or this Agreement (a “Compliance Action”); and (b) pay damages or penalties awarded against Codenta in the Compliance Action, those monetary damages agreed to by Customer and the claimant in a settlement of the Compliance Action, and Customer’s reasonable attorneys’ fees incurred in the defense or settlement of the Compliance Action. Codenta shall: (i) give Customer prompt written notice of the claim; (ii) tender to Customer sole control of the defense or settlement of the Compliance Action; and (iii) cooperate with Customer in defending or settling the Compliance Action. 

10. LIMITATION OF LIABILITY

    
    

    10.1. Limitation of Liability. NEITHER PARTY’S AGGREGATE LIABILITY RELATED TO THIS AGREEMENT WILL EXCEED THE AMOUNT PAID BY CUSTOMER HEREUNDER IN THE 12 MONTHS PRECEDING THE FIRST INCIDENT GIVING RISE TO LIABILITY. THE LIMITATIONS IN THIS SECTION 10 (LIMITATION OF LIABILITY) WILL APPLY WHETHER AN ACTION IS IN CONTRACT OR TORT AND REGARDLESS OF THE THEORY OF LIABILITY. HOWEVER, THESE LIMITATIONS WILL NOT LIMIT CUSTOMER’S PAYMENT OBLIGATIONS UNDER SECTION 4 (FEES AND PAYMENT).

    
    

    10.2. Exclusion of Consequential and Other Damages. IN NO EVENT WILL EITHER PARTY HAVE ANY LIABILITY TO THE OTHER PARTY FOR ANY LOST PROFITS, SAVINGS, OR REVENUES, OR INCIDENTAL, CONSEQUENTIAL, COVER OR PUNITIVE DAMAGES, WHETHER AN ACTION IS IN CONTRACT OR TORT AND REGARDLESS OF THE THEORY OF LIABILITY, EVEN IF A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF THESE DAMAGES.

    
    

    10.3. Exceptions THE LIMITATIONS IN THIS SECTION 10 (LIMITATION OF LIABILITY) WILL NOT APPLY TO: (A) A PARTY’S OBLIGATIONS UNDER SECTION 9 (INDEMNITY); (B) A PARTY’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT; OR (C) THE EXTENT PROHIBITED BY LAW. 

    
    

    10.4. Basis of the Bargain. THE LIMITATIONS IN THIS SECTION 10 (LIMITATION OF LIABILITY) ARE INDEPENDENT OF ANY EXCLUSIVE REMEDIES FOR BREACH OF WARRANTY, AND WILL APPLY EVEN IF A PARTY’S REMEDY FAILS OF ITS ESSENTIAL PURPOSE. CUSTOMER ACKNOWLEDGES THAT THE FEES UNDER THIS AGREEMENT REFLECT THE OVERALL ALLOCATION OF RISK BETWEEN THE PARTIES, INCLUDING BY MEANS OF THE LIMITATION OF LIABILITY AND EXCLUSIVE REMEDIES DESCRIBED IN THIS AGREEMENT. THESE PROVISIONS FORM AN ESSENTIAL BASIS OF THE BARGAIN AND A MODIFICATION OF THESE PROVISIONS WOULD SUBSTANTIALLY AFFECT THE FEES. IN CONSIDERATION OF THESE FEES, CUSTOMER AGREES TO THIS ALLOCATION OF RISK AND HEREBY WAIVE ANY RIGHT, THROUGH EQUITABLE RELIEF, AMENDMENT, OR OTHERWISE, TO SUBSEQUENTLY SEEK A MODIFICATION OF THESE PROVISIONS OR ALLOCATION OF RISK.

11. GENERAL PROVISIONS

    
    

    11.1. Government/Regulatory Cooperation. Each Party shall reasonably cooperate with the other in responding to governmental or payer inquiries related to use of the Products, including by providing available audit logs and Product Documentation. Each Party will bear its own costs, except that if a Party’s breach or violation of law is the primary cause of the inquiry, then it will reimburse the other Party’s reasonable out-of-pocket costs, including attorneys’ fees.  

    
    

    11.2. Export Compliance. The Products may be subject to export laws and regulations of the United States and other jurisdictions. Each Party represents that it is not named on any U.S. government denied-party list. Customer shall not permit Users to access or use a Product in a U.S.-embargoed country or in violation of any applicable export or import law or regulation.

    
    

    11.3. Compliance with Laws.  During the term of this Agreement each Party shall comply with all applicable laws and regulations, and shall obtain all applicable permits and licenses required in connection with its obligations under this Agreement.  

    
    

    11.4. Legal Expenses. If legal action is taken by a Party to enforce its rights under this Agreement, all costs and expenses incurred by the prevailing Party, including reasonable attorneys’ fees and costs of litigation, will be paid by the other Party.

    
    

    11.5. Notice. All notices under this Agreement, including notices of address change, must be in writing and will be deemed given when sent by: (a) registered mail, return receipt requested; or (b) a nationally recognized overnight delivery service (such as Federal Express), to the appropriate Party at the relevant address stated in the Order Form, unless a Party notifies the other of a new address in writing, in which case the new address will be used.

    
    

    11.6. Severability. If any provision of this Agreement is held by a court to be illegal, unenforceable, or in conflict with any law of a federal, state, or local government, the validity of the remaining provisions will remain in full force and effect.

    
    

    11.7. Governing Law; Arbitration. This Agreement is governed by the laws of the State of New York, without regard to its conflict of law principles. The United Nations Convention on Contracts for the International Sale of Goods does not apply to this Agreement. Any dispute arising out of or in relation to this Agreement or the rights and obligations hereunder must be arbitrated in the English language before one arbitrator under the administration of the American Arbitration Association, and according to its Commercial Arbitration Rules. The seat of the arbitration will be New York, and the place of hearing will be New York County, New York. A Party may seek interim injunctive relief under these Rules and before any court having jurisdiction, and each Party hereby submits to the personal jurisdiction of any court reasonably chosen by the initiating Party for such purposes. The initiating Party shall reimburse the other Party’s costs if the court declines jurisdiction. The arbitral panel will be empowered to grant injunctive relief upon application. Awards of the arbitral panel will be enforceable in any court having jurisdiction, and each Party hereby submits to the personal jurisdiction of any court reasonably chosen by the enforcing Party for such purposes. The enforcing Party shall reimburse the other Party’s costs if the court declines jurisdiction. 

    
    

    11.8. Waiver. The waiver by a Party of any breach of this Agreement will not constitute a waiver of any other or subsequent breach.

    
    

    11.9. Assignment. Neither Party may transfer, by operation of law or otherwise, this Agreement or any right or duty arising hereunder to a third party without the other Party’s prior written consent, except that a Party may transfer this Agreement, together with all of its rights and duties under this Agreement, to a successor entity if it is acquired, whether by equity or asset purchase, merger, corporate restructuring, or reorganization, or the like. Any purported transfer or assignment in violation of this section is void. 

    
    

    11.10. Relationship of the Parties. The relationship of the Parties is that of independent contractors. Neither Party is the agent of the other Party, and neither Party is authorized to act on behalf of the other Party. 

    
    

    11.11. Customer Name and Logo. Codenta has the right to use and display Customer’s logos and trade names for marketing and promotional purposes in connection with its website and marketing materials, subject to Customer’s trademark usage guidelines provided to Codenta. Customer may revoke this right in writing at Customer’s discretion. Customer retains all right, title and interest in its logos and trade names, including all goodwill.

    
    

    11.12. No Third-Party Beneficiaries. There are no third party beneficiaries of this Agreement.

    
    

    11.13. Force Majeure. Except with regard to any obligation to pay money hereunder, neither Party will be held responsible for any delay or failure in performance hereunder caused by fire, strike, flood, embargo, labor dispute, delay or failure of any subcontract, act of sabotage, riot, accident, delay of carrier or supplier, limitations or delays inherent in the use of the internet, voluntary or mandatory compliance with any governmental act, regulation or request, act of God or by public enemy, or any other cause beyond the Party’s reasonable control.  If one of these events does occur, the time to perform an affected obligation will be extended by the length of time the event continues.

    
    

    11.14. Entire Agreement; Modifications. This Agreement contains all the agreements, representations, and understandings of the Parties, and supersede any previous understandings, commitments, or agreements, verbal or written, with respect to the subject matter of this Agreement. Codenta from time to time may make revisions to the Documentation to reflect additional features or revisions to the manner in which an existing Product is provided. These revisions will be incorporated in this Agreement unless they constitute a material reduction in the quality or functionality of a Product or the Product Support. This Agreement may be otherwise modified or amended only in a written document signed by a duly authorized representative of each Party that expressly states the sections of this Agreement to be modified; no other act, usage, or custom will be deemed to amend or modify this Agreement.  Each Party hereby waives any right it may have to claim that this Agreement was subsequently modified other than in accordance with this Section.