CLINICAL DOCUMENTATION SOLUTION AGREEMENT

1.01

“Author” means a medical specialist within a Clinical Department (defined herein) who documents medical processes relating to such Clinical Department through dictation. “Medical Domain” means, collectively, (1) a generally recognized and standard medical treatment-related department within a physician practice, clinic or hospital (a “Clinical Department” ), and (2) specified dictation instructions, habits, and documentation practices of the dictating Authors within such Clinical Department, including particularized recording setup. By way of illustration, such Medical Domains include desktop radiology in connection with PACS, telephony-based cardiology without normals, and handheld dictation recorder general medicine with templates. “Activated Author” means an Author whose status has been changed through AnyModal CDS (defined below) from “learning mode” to “activated” in accordance with the procedures set forth in the Information Sheet (defined below), to allow for such Author’s dictation recordings to be processed by AnyModal CDS to create AnyModal CDS Draft Documents (defined below).

1.02

“AnyModal CDS” means M*Modal’s set of speech recognition-based software components, in Object Code (defined below) form, and any and all portions thereof, designed to work in connection with transcription workflow software to convert real-time ( e.g. , not compressed in time) Author dictation recordings of applicable Medical Domain information into Structured Medical Reports (defined below) by enabling the transcription workflow software to make calls to application services deployed and accessible via the Internet by means of standardized Web Services, along with any and all Web Services interfaces and related information necessary to integrate such software services into the transcription workflow software. To the extent the Pilot Solution (defined below), or any and all portions thereof, fall within the foregoing definition of AnyModal CDS, such Pilot Solution shall be deemed to be AnyModal CDS.

1.03

“AnyModal CDS Draft Document” means a draft medical report transcript created by AnyModal CDS as a result of submission to AnyModal CDS of an Activated Author dictation recording, which draft medical report transcript is designed for (a) review and editing (to the extent necessary) by medical transcription personnel through use of the Editing Tools (defined below), and (b) subsequent submission of the reviewed/edited transcript to AnyModal CDS to obtain a Structured Medical Report (defined herein). (Note: In accordance with section 3.02, below, AnyModal CDS Draft Documents may only be used by Client as set forth immediately above.) “Structured Medical Report” means a structured document representing a final medical report customized for the applicable Medical Domain using the HL7® CDA (Clinical Document Architecture) standard, created by AnyModal CDS as a result of submission to AnyModal CDS of a reviewed/edited AnyModal CDS Draft Document.

1.04

“AnyModal CDS Editing Tools” or “Editing Tools” meansM*Modal’s user interface-based software components, in Object Code (defined below) form, and any and all portions thereof, designed for integration into, and use by, transcription workflow software to enable editing of AnyModal CDS Draft Documents by medical transcription personnel, along with any and all APIs (application programming interfaces) and related information necessary to integrate such software components into the transcription workflow software. To the extent the Pilot Solution (defined below), or any and all portions thereof, fall within the foregoing definition of Editing Tools, such Pilot Solution shall be deemed to be Editing Tools.

1.05

“Client Customer” means a physician practice, clinic or hospital that has engaged Client to provide the service of transcribing dictation of clinical information into textual medical reports.

1.06

“Client Workflow System” means Client’s software-based system designed to enable (a) workflow from Client Customers to Client medical transcription personnel, (b) quality assurance of transcribed documents, and (c) distribution of textual medical reports to medical specialists, in addition to working with AnyModal CDS and the Editing Tools as described, respectively, in sections 1.02 and 1.04, above.

1.07

“Confidential Information” means business or technical information, including third party information, disclosed by one Party (the “Disclosing Party” ) to the other Party (the “Receiving Party” ), in whatever form or medium, tangible or intangible, that (a) was or is so disclosed to the other Party as part of, or in connection with, the Pilot Solution, in connection with this Agreement, or in connection with any of the activities contemplated by this Agreement, (b) is designated, either in writing or orally, as confidential at or within a reasonable time after such disclosure, or (c) by the nature of the circumstances surrounding such disclosure, ought, in good faith, to be treated as confidential information of the Disclosing Party, whether or not such information is identified as such by the Disclosing Party, including, without limitation, information that has or could have commercial value or other utility in the business or prospective business of the Disclosing Party, as well as information of which unauthorized disclosure could be detrimental to the interests of the Disclosing Party. Without limiting the foregoing, all patient data, as well as any other data subject to confidentiality as required by law, rule or regulation (including, without limitation, the Health Insurance Portability and Accountability Act of 1996) shall be deemed to be Confidential Information. Subject to sections 6.05 and 12.01, below, and without limiting the foregoing, the Parties expressly agree that the existence and the terms and conditions of this Agreement constitute Confidential Information.

1.08

“Derivative Work” means a revision, modification, translation, abridgement, condensation, expansion, upgrade or enhancement of a work (including, without limitation, computer software and related documentation), or any other form in which such work may be recast, transferred or adapted, and which, if prepared without authorization of the owner of the copyright or trade secret in and of such work, would constitute copyright or trade secret infringement under the laws of the United States of America or relevant state law, as applicable.

1.09

“Enhancement” means any change or addition to Object Code (defined below) or Source Code (defined below) that improves function or improves performance by changes in system configuration, system design or coding, including, without limitation, new releases of software. “Update” means any modification or revision, other than an Enhancement, to Object Code (defined below) or Source Code (defined below) that corrects any Error, supports a new release of the operating system with which the Object Code is expressly designed to operate, or provides other incidental updates or corrections. “Error” means a mistake, problem or defect that causes an incorrect functioning of Object Code (defined below), if such mistake, problem or defect either (a) renders the Object Code inoperable, or (b) causes the Object Code to fail to meet the relevant Specifications (described in Article II below) established by the Parties.

1.10

“Information Sheet” means the document set forth in Attachment A to this Agreement, designed to provide an overview of Author enrollment practice and adaptation of AnyModal CDS to Medical Domains.

1.11

“Intellectual Property” means any and all rights created under laws governing patents, copyrights, mask works, trade secrets, trademarks, publicity rights, and any other law that gives a Person (defined below) a right to control or preclude another Person’s use of, or access to, information on the basis of the holder-of-right’s interest in such information, and includes, without limitation, software and all know-how, trade secrets, copyrights, and patentable inventions relating thereto, as well as materials, notes, designs, technical data, ideas, research, reports, documentation and other similar information.

1.12

“Internal” or “Internally” means, with respect to any action capable of being taken by a Party under this Agreement, that such action may be taken only by employees of such Party.

1.13

“Object Code” means a computer software program assembled or compiled in binary form on software media that is readable and usable by machine, but not generally readable by humans without reverse assembly, reverse compiling, reverse engineering, or similar action, commonly referred to as “object code.” Notwithstanding anything to the contrary in the foregoing, the term Object Code specifically excludes any item that otherwise constitutes Source Code (defined herein). “Source Code” means the human-readable form of computer programming code and related system documentation, including, without limitation, documentation relating to sequencing, organization and architecture, as well as comments, programmer notes, and procedural languages.

1.14

“Person” means a natural person, corporation, business trust, non-business trust, estate, joint venture, partnership, limited liability company, association, governmental subdivision, instrumentality or agency, or any other, legally cognizable entity. (For the purpose of clarity, the term “Person” does not extend to, or cover, any legally cognizable entity, natural person or other party affiliated with, or otherwise related to, such Person (each, an “Affiliate” ), including, without limitation, any Affiliate that or who wholly or partially owns such Person, is wholly or partially owned by such Person, or is under common ownership or control with such Person.)

1.15

“Pilot Solution” means M*Modal’s technology and related information as already piloted by Client in connection with a radiology-related Medical Domain for Client Customer designated “33.100,” including, without limitation, sample documents and style sheets for the Editing Tools, style sheets to convert Structured Medical Reports to text documents and HTML documents, style sheets to extract ADT (admission, discharge and transfer) information from Structured Medical Reports, sample integration code using Microsoft ^® Visual Basic® for incorporating the Editing Tools into the Client Workflow System, and integration code using Microsoft Visual Basic to illustrate and facilitate the use of AnyModal CDS Web Services interfaces in connection with the Client Workflow System.

1.16

“Process” means that, in exchange for the submission by the Client Workflow System to Customized AnyModal CDS (defined in section 2.02, below) of one Activated Author dictation recording (regardless of the number of minutes of such recording), Customized AnyModal CDS returns and makes available to Client an AnyModal CDS Draft Document.

2.01

Adaptation. M*Modal shall adapt AnyModal CDS (in each case, “Adapted AnyModal CDS” ) to work in connection with particular Medical Domains (each, an “Adapted Medical Domain” ) in accordance with the Adaptation Work Plan set forth in Attachment B to this Agreement (the “Adaptation Services” ) (which Adaptation Work Plan shall be completed and executed by the Parties coincident with execution of this Agreement and may be amended thereafter upon mutual, written and signed agreement of the Parties), and the specifications stated therein for Adapted AnyModal CDS (the “Adaptation Specifications” ). As a condition of M*Modal performing the Adaptation Services, Client shall provide M*Modal with any and all information and assistance as required by the Adaptation Work Plan.

2.02

Integration Configuration. M*Modal shall configure AnyModal CDS (“Integration-ready AnyModal CDS”) to enable integration of AnyModal CDS into the Client Workflow System and shall configure the Editing Tools (the “Integration-ready Editing Tools,” together with Integration-ready AnyModal CDS, the “Integration-ready Solution” ; also, Adapted AnyModal CDS, with Integration-ready AnyModal CDS, individually and collectively (as applicable) shall be referred to as “Customized AnyModal CDS” ; and Customized AnyModal CDS, with the Integration-ready Editing Tools, individually and collectively (as applicable) shall be referred to as the “Customized Solution” ) to enable integration of such Editing Tools into the Client Workflow System in accordance with the Integration Configuration Work Plan set forth in Attachment C to this Agreement (the “Integration Configuration Services” ) (which Integration Configuration Work Plan shall be completed and executed by the Parties coincident with execution of this Agreement), and the specifications stated therein, respectively, for Integration-ready AnyModal CDS and the Integration-ready Editing Tools (collectively, the “Integration-ready Specifications,” with the Adaptation Specifications, individually and collectively (as applicable) the “Specifications.” ). As a condition of M*Modal performing the Integration Configuration Services, Client shall provide M*Modal with any and all information and assistance as required by the Integration Configuration Work Plan. Without limiting or expanding the foregoing, any items marked in the Integration Configuration Work Plan with the “#” symbol shall be deemed part of Integration-ready AnyModal CDS or the Integration-ready Editing Tools, as applicable.

2.03

Testing. M*Modal shall indicate to Client that the Integration-ready Solution is ready for Client’s acceptance testing. Client, with the reasonable assistance of M*Modal (if requested), shall examine and test the Integration-ready Solution to determine whether such Integration-ready Solution conforms to the Integration-ready Specifications. The Integration-ready Solution shall be considered to have conformed to the Integration-ready Specifications if it does not contain any Error that prevents it from functioning in accordance with such Integration-ready Specifications.Within fourteen (14) business days after Client’s notification that the Integration-ready Solution is ready for Client’s acceptance testing, Client shall provide M*Modal with either written acceptance of the Integration-ready Solution ( “Acceptance” ) or a specific and objective statement of Error(s) to be corrected. M*Modal shall then correct any Error(s) and redeliver, within a commercially reasonable period (given the number and the complexity of such Error(s)), the Integration-ready Solution to Client for re-testing under the procedures set forth above in this section 2.03. Notwithstanding the foregoing, Client shall be deemed to have provided Acceptance in connection with the Integration-ready Solution to the extent Client either (a) makes such Integration-ready Solution, or any portion thereof, available for use by Client medical transcription personnel and Client delivers to one or more Client Customers a Structured Medical Report or any derivative of such Structured Medical Report (including, without limitation, a rendering of a Structured Medical Report into a text document – e.g., into Microsoft® Word®, PDF, RTF or plain text formats) on or after December 1, 2004, or (b) fails to provide a statement of Error(s) within the specified time.

3.01

Grant. Upon and subject to the terms and conditions of this Agreement, M*Modal hereby grants to Client, and Client hereby accepts, a non-exclusive, non-transferable (except as specifically provided herein), revocable (but only as specifically provided herein) license to

3.02

Restrictions. Without expanding the limited grant contained in section 3.01, above, Client shall not (a) disassemble, reverse compile or reverse engineer the Customized Solution (or any portion thereof), or take any action in order to derive a source code equivalent of such Customized Solution (except as M*Modal is required under applicable law to allow Client to do, in which case the Client agrees that any such works are Derivative Works of the Customized Solution, and thus are the sole and exclusive property of M*Modal), (b) release to any Person results of any benchmark, performance, or functionality tests performed on the Customized Solution, except as expressly set forth in this Agreement, (c) release to any Person any results obtained through use of the Customized Solution, including, without limitation, media or text output, except as expressly set forth in this Agreement, (d) incorporate, bundle or pre-load the Customized Solution into any software or computing device manufactured by Client, or for Client, except as expressly set forth in section 3.01, above, (e) create Derivative Works of any part of the Customized Solution, except as expressly set forth in section 3.01, above, (f) sublicense the Customized Solution to any Person, or otherwise permit use of the Customized Solution (including timesharing or networking use) by any Person, except as expressly set forth in section 3.01, above, (g) subject to section 12.01, below, distribute any press release, demonstrate or otherwise publicize or promote the Customized Solution (or any portion thereof), or the functionalities of such Customized Solution, whether or not M*Modal is identified as the proprietor of such Customized Solution, except as agreed by M*Modal in advance in writing, which agreement shall not be unreasonably withheld or delayed in connection with Client’s proposed demonstration of such Customized Solution to one or more prospective or existing Client Customers or to securities analysts (and Persons acting in a capacity similar to a securities analyst), provided that the prospective or existing Client Customers, the securities analysts and the Persons acting in a capacity similar to a securities analyst cannot reasonably be deemed competitors of M*Modal, or (h) use the AnyModal CDS Draft Documents other than for purposes of Internal review and editing (to the extent necessary) by Client medical transcription personnel of such AnyModal CDS Draft Documents and subsequent submission of the reviewed/edited AnyModal CDS Draft Documents to Customized AnyModal CDS to obtain a Structured Medical Report.

5.01

Integration Configuration Services and Adaptation Services Fees. [***Omitted and filed separately with the commission.***]

5.02

Additional Services Fees . [***Omitted and filed separately with the Commision.***]

5.03

Transaction Fees . [***Omitted and filed separately with the Commission.***]

5.04

M*Modal Service Commitment/Minute-based Discount. [***Omitted and filed separately with the Commission.***]

5.05

Maintenance and Support . [*** Omitted and separately filed with the Commission.***]

5.06

Remittance Process. Client shall pay to M*Modal the Integration Configuration Services Fees and Additional Services Fees not more than five (5) business days after the date on which such amounts are due. Within thirty (30) calendar days following the end of each Billing Period, Client shall pay to M*Modal the Transaction Fee due for such Billing Period.

5.07

Taxes. The Integration Configuration Services Fees, Additional Services Fees and the Transaction Fees (and any other amounts payable by Client under this Agreement) are exclusive of all applicable taxes, including, without limitation, excise, sales, use, added value, and customs, duties or governmental impositions, and similar taxes or fees, now in force or enacted in the future, and Client shall have sole responsibility for the payment of such taxes, with the exception of taxes on M*Modal’s net income.

5.08

Delinquent Payment. For each calendar month (or any portion thereof) during which payment of the Integration Configuration Services Fees, Additional Services Fees or Transaction Fee is delinquent, a late fee of one and one-half percent (1.5%) of the amount due shall automatically be charged by M*Modal and due with such payment.

5.09

Accounting Records, Audit Rights. During the Term of this Agreement (defined in section 9.01, below) and for the twelve (12) months immediately following Termination (defined in section 9.04, below) of this Agreement, Client shall maintain full, clear and accurate records reflecting and recording all transactions pertaining to Client’s use of the Customized Solution and the Transaction Fees. Upon reasonable notice to Client, and not more than once per calendar year, M*Modal shall have the right, by itself or through an independent certified public accounting firm engaged on a non-contingent basis, to audit the books and records of Client reflecting information relating to the calculation or payment of such Transaction Fees hereunder for any year within three (3) years of the date of the request of the audit by M*Modal (each, an “Original Audit” ). In the event the Original Audit of Client’s books or records reveals any underpayment to M*Modal of such Transaction Fees, payment of such amount shall be made within seven (7) calendar days thereafter. If such underpayment is greater than seven and one-half percent (7.5%) of the payment due for the audited period, then Client shall pay all reasonable and customary costs associated with the Original Audit. If Client believes that such report is incorrect, then it may request an independent audit by an independent accounting firm of national reputation mutually acceptable to the Parties, any and all costs of which shall be borne solely by Client unless such report sustains the position taken by Client in all material respects. The report of such firm shall be final and binding upon the Parties. All auditors shall be required to sign an appropriate non-disclosure agreement.

6.01

Non-Disclosure of Confidential Information . Each Party shall use it best efforts to hold and maintain in strictest confidence the Confidential Information of the other Party. Without limiting the generality of the foregoing statement, absent express, written consent of the other Party, neither Party shall disclose the other Party’s Confidential Information to any third party (including a consultant or independent contractor), and each Receiving Party shall protect the confidentiality of the Confidential Information furnished by the Disclosing Party with at least the same degree of care the Receiving Party uses to safeguard its own highly sensitive, proprietary information, and, in any event, shall exercise not less than the standard of care necessary to maintain and protect trade secret status for the Confidential Information (whether or not such Confidential Information actually constitutes a trade secret), and each Party shall store the other Party’s Confidential Information in a safe and secure location.

6.02

Use of Confidential Information . Each Party shall only receive and use the other Party’s Confidential Information Internally and as strictly necessary to perform its respective obligations under this Agreement. In doing so, each Party shall provide such Confidential Information only to those of its employees who have a legitimate “need to know” to effect such purpose, and who are bound in writing to exercise the degree of care imposed by this Agreement with respect to the other Party’s Confidential Information. Upon written request of the Disclosing Party, unless such request would otherwise violate the terms and conditions of this Agreement, the Receiving Party shall promptly return to the Disclosing Party all documents and other tangible objects containing or representing Confidential Information previously furnished by the Disclosing Party, along with any all copies thereof.

6.03

Ownership of Confidential Information. The Parties expressly acknowledge that, at all times, each Disclosing Party retains any and all right, title and interest in and to its own Confidential Information. To the extent the Receiving Party or its personnel acquires, by operation of law, any right, title or interest in or to the Disclosing Party’s Confidential Information, such Receiving Party irrevocably assigns all such right, title and interest exclusively to the Disclosing Party. Each Party shall maintain and enforce agreements and policies with its personnel sufficient to give effect to this section 6.03.

6.04

Exclusion(s) of Liability . Notwithstanding the above, the Receiving Party shall not have liability to the Disclosing Party with regard to any Confidential Information of the Disclosing Party that (a) is shown by written documentation to be already in the possession of, known to, or independently developed by the Receiving Party prior to disclosure hereunder and prior to such Receiving Party having an obligation of confidentiality with respect to such Confidential Information, in each case, provided that, to the extent such Confidential Information was obtained by the Receiving Party from a third party, such third party did not commit a breach of an obligation of confidence with respect to such Confidential Information, (b) becomes publicly available through no fault or breach of the Receiving Party, (c) is shown by written documentation to have been obtained by the Receiving Party from a third party without breach by such third party of an obligation of confidence with respect to the Confidential Information disclosed, or (d) has been or is developed by, as demonstrated through written documentation, the Receiving Party independently of ( i.e. , without use of) any such Confidential Information disclosed by the Disclosing Party

6.05

Lawful Order and Reference Exception(s) . In the event a Receiving Party is requested to disclose Confidential Information of a Disclosing Party pursuant to the lawful order of a court of law or government agency, the Receiving Party may disclose such Confirmation Information, provided the Receiving Party promptly provides the Disclosing Party with written notification of the underlying request for disclosure and takes any and all action (at the request and expense of the Disclosing Party) necessary to preserve the confidential nature of the Confidential Information, including, without limitation, moving to put in place an appropriate protective order. Notwithstanding the foregoing, the Parties expressly agree that Client shall be able to disclose the

6.06

Confidentiality Term . Each Party expressly acknowledges and agrees that, notwithstanding the Termination (defined in section 9.04, below) of this Agreement, the obligations regarding Confidential Information imposed by this Agreement shall continue in perpetuity following the date of Termination of this Agreement.

6.07

Intellectual Property Ownership/Rights . Except for the limited license(s) granted herein, all right, title and interest in and to the Pilot Solution, the Customized Solution (including any portion thereof), M*Modal’s Confidential Information, and all Intellectual Property attendant to such Pilot Solution, Customized Solution and M*Modal’s Confidential Information (individually and collectively, the “ M*Modal Solutions, Information and IP ”) are retained by M*Modal, and this Agreement shall not be construed to grant Client any right or license to such M*Modal Solutions, Information and IP, whether by implication, estoppel or otherwise, except as expressly provided. Neither changes, modifications, additional features or other derivative works made by Client to the M*Modal Solutions, Information and IP, nor changes, modifications, additional features or other derivative works made by M*Modal to the M*Modal Solutions, Information and IP as a result of feedback from Client, shall provide any basis for any claim of right by Client to the M*Modal Solutions, Information and IP, or Derivative Works of same, and shall remain the exclusive property of M*Modal. To the extent Client or its personnel acquires any such right, title or interest therein by operation of law, Client irrevocably assigns all such right, title and interest exclusively to M*Modal, and shall maintain and enforce agreements and policies with its personnel sufficient to give effect to this section 6.07. Except as expressly provided herein, M*Modal does not grant any right to Client to any other M*Modal intellectual property, including, without limitation, any patent, copyright, trademark, or trade secret right.

6.08

Intellectual Property Protection. Client shall use best efforts to protect the M*Modal Solutions, Information and IP from unauthorized use by agents of Client (such as medical transcription personnel and other employees) and by third parties. Absent the prior, written consent of M*Modal, Client shall not alter or remove any trademark, copyright, trade secret, patent, proprietary or other legal notice or legend contained in or on copies of the Pilot Solution, Customized Solution (including any portion thereof), or M*Modal’s Confidential Information.

7.01

Representations and Warranties – Services. M*Modal represents and warrants that it shall perform the Adaptation Services, Integration Configuration Services and the maintenance and support services under this Agreement in a diligent, timely and workmanlike manner. OTHER THAN AS EXPRESSLY STATED IN THIS AGREEMENT AND, TO THE MAXIMUM EXTENT PERMITTED BY LAW, M*MODAL MAKES NO WARRANTY, EXPRESS OR IMPLIED, AS TO SUCH SERVICES, THE DELIVERY OF THE CUSTOMIZED SOLUTION (INCLUDING ANY PORTION THEREOF), OR ANY OTHER SERVICES RENDERED IN CONNECTION WITH THIS AGREEMENT, INCLUDING, WITHOUT LIMITATION, THAT M*MODAL’S SERVICES WILL MEET CLIENT’S REQUIREMENTS, AND M*MODAL EXPRESSLY DISCLAIMS THE IMPLIED WARRANTY OF MERCHANTABILITY AND THE IMPLIED WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE.

7.02

Representations and Warranties – Products. M*Modal represents and warrants that, for a period of ninety (90) calendar days following Client’s Acceptance of the Integration-ready Solution under this Agreement (the “Integration-ready Warranty Period” ), such Integration-ready Solution shall function substantially in accordance with the Integration-ready Specifications, and, for a period of ninety (90) calendar days following M*Modal’s adaptation of AnyModal CDS under Exhibit B to work in connection with a particular Medical Domain (the “Adaptation Warranty Period,” together with the Integration-ready Warranty Period, individually and collectively (as applicable), the “Warranty Period” ), Adapted AnyModal CDS shall function substantially in accordance with the Adaptation Specifications. NOTWITHSTANDING THE FOREGOING, CLIENT EXPRESSLY ACKNOWLEDGES AND AGREES THAT ANY SPEECH RECOGNITION ERROR RATE DEPENDS ON VARIOUS EXTERNAL CONDITIONS, SUCH AS RECORDING SETUP, INTELLIGIBILITY OF UTTERED SPEECH, AND BACKGROUND NOISE, AND THEREFORE TRANSCRIPTION WILL NOT BE ONE HUNDRED PERCENT (100%) ACCURATE. IN THE EVENT CLIENT NOTIFIES M*MODAL WITHIN THE APPLICABLE WARRANTY PERIOD THAT THE INTEGRATION-READY SOLUTION OR ADAPTED ANYMODAL CDS, AS APPLICABLE, IS NOT FUNCTIONING SUBSTANTIALLY IN ACCORDANCE WITH THE SPECIFICATIONS PERTAINING THERETO, M*MODAL SHALL USE COMMERCIALLY REASONABLE EFFORTS, AS ELECTED BY M*MODAL WITHIN ITS SOLE DISCRETION, TO (A) CORRECT THE ERROR, (B) REPLACE THE INTEGRATION-READY SOLUTION OR ADAPTED ANYMODAL CDS, AS APPLICABLE, WITH A FUNCTIONAL EQUIVALENT, OR (C), SOLELY IN THE CASE OF THE INTEGRATION-READY SOLUTION, (i) RETURN TO CLIENT ANY AMOUNTS PAID BY CLIENT UNDER THIS AGREEMENT PRIOR TO AND DURING THE INTEGRATION-READY WARRANTY PERIOD, AND (ii) IF M*MODAL SO ELECTS UPON RETURN OF SUCH AMOUNTS, TO RIGHTFULLY TERMINATE THIS AGREEMENT. THE REMEDY FOR BREACH OF THE ABOVE WARRANTY SHALL BE LIMITED TO SAID CORRECTION, REPLACEMENT OR REPAYMENT, IF APPLICABLE. OTHER THAN AS EXPRESSLY STATED IN THIS AGREEMENT AND TO THE MAXIMUM EXTENT PERMITTED BY LAW, M*MODAL MAKES NO WARRANTY, EXPRESS OR IMPLIED, AS TO THE INTEGRATION-READY SOLUTION, THE CUSTOMIZED SOLUTION (INCLUDING ANY PORTION THEREOF), OR ANY OTHER ITEMS OR SERVICES PROVIDED OR RENDERED IN CONNECTION WITH THIS AGREEMENT, INCLUDING, WITHOUT LIMITATION, THAT THE INTEGRATION-READY SOLUTION OR CUSTOMIZED SOLUTION (INCLUDING ANY PORTION THEREOF) WILL MEET CLIENT’S REQUIREMENTS, AND M*MODAL EXPRESSLY DISCLAIMS THE IMPLIED WARRANTY OF MERCHANTABILITY AND THE IMPLIED WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE.

7.03

LIABILITY . TO THE MAXIMUM EXTENT PERMITTED BY LAW, M*MODAL DISCLAIMS ANY AND ALL LIABILITY, UNDER CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER THEORY, FOR ANY CONSEQUENTIAL, INCIDENTAL, SPECIAL, OR INDIRECT DAMAGES WHATSOEVER (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF BUSINESS PROFITS, BUSINESS INFORMATION, BUSINESS INTERRUPTION, PERSONAL INJURY) ARISING UNDER THIS AGREEMENT OR OTHERWISE IN CONNECTION WITH THE ITEMS OR SERVICES PROVIDED OR RENDERED HEREUNDER. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, CLIENT ALONE (NOT M*MODAL) ASSUMES THE RISK FOR ANY HARM OR DAMAGE TO CLIENT PROPERTY AS A RESULT OF CLIENT’S USE OF ANY SERVICES, THE CUSTOMIZED SOLUTION (INCLUDING ANY PORTION THEREOF), OR M*MODAL CONFIDENTIAL INFORMATION, INCLUDING, WITHOUT LIMITATION, ANY HARM OR DAMAGE NECESSITATING REPAIR, EVEN IF M*MODAL HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH HARM OR DAMAGE. SUBJECT ONLY TO ARTICLE VIII, BELOW, IN NO EVENT SHALL M*MODAL’S LIABILITY TO CLIENT EXCEED THE TOTAL AMOUNTS PAID TO M*MODAL BY CLIENT UNDER THIS AGREEMENT.

9.01

Term . [***Omitted and filed separately with the Commission.***]

9.02

Early Termination with Possibility of Cure . Either Party may terminate this Agreement upon written notice in the event the other Party is in breach of any provision of this Agreement, if such breach materially and adversely affects the benefits of the non-breaching Party under this Agreement and the breaching Party has failed to cure such breach within thirty (30) calendar days after receiving written notice from the non-breaching Party of such breach.

9.03

Early Termination Without Cure. In the event either Party willfully breaches or breaches as a result of gross negligence any provision set forth in Article VI of this Agreement in any material respect, then, in addition to the rights the non-breaching Party has under section 9.02, above, the non-breaching Party may terminate this Agreement upon five (5) business days’ written notice to the other Party, with such termination becoming effective immediately upon expiration of the fifth (5th) business day, and Client shall immediately erase or otherwise destroy any and all copies of Adapted AnyModal CDS, Integration-ready AnyModal CDS, the Integration-ready Editing Tools, the Customized Solution, and other Confidential Information of M*Modal stored in fixed media or resident in the memory of any computer owned or controlled by Client, as well as any and all other copies of same, and shall send to M*Modal written certification, by an officer of Client, of such erasure or destruction. Notwithstanding the foregoing, in the event M*Modal invokes its right under this section 9.03 to terminate this Agreement as a result of Client’s gross negligence, M*Modal shall grant to Client sixty (60) days to cease Client’s use of Adapted AnyModal CDS, Integration-ready AnyModal CDS, the Integration-ready Editing Tools, the Customized Solution, and other C