Terms of Service

1.1. Services. R1 or one or more of its Affiliates will perform the services set forth on the Order Form (the “Services”)  or as applicable, an executed Service Order (each, an “SO”) to Client and those hospitals, physician groups, medical groups, and other healthcare facilities and provides, or entities owned, operated or controlled by Client (or, under an agreement with Client to receive services similar to the Services) and listed on the Order Form (each, “In-Scope Provider” or “In-Scope Facility” and collectively, the “In-Scope Providers and In-Scope Facilities”). Client hereby authorizes R1 to utilize R1’s proprietary technology (the “R1 Technology”), in connection with the provision of Services.  The Services will be provided on a co-managed relationship basis; provided, however, that Client will retain control and decision-making authority over its revenue cycle operations. R1 will advise Client with respect to changes or modifications necessary or advisable to improve Client’s revenue cycle operations with respect to the SOW Services, including best practice methods, processes, technology, vendors, and other resources. Client will use good faith efforts to evaluate and consider such recommendations for implementation.

1.2.  Reports. The Services include the provision of reports, results, and outputs of the Services (the “Reports”). During the term of this Agreement and thereafter, Client may, solely for its internal business purposes, use, copy, modify and distribute any such Reports; provided, however, that Client shall not distribute or share the Reports with any third-party vendor of revenue management services or technology without R1’s prior written consent.

1.3.  Access to the Platform. R1 will provide the Services by deploying and making available the R1 Platform (as defined below). R1 will permit designated Client personnel access to R1 Technology through the R1 Platform, and the R1 Technology shall be deemed to include the R1 Platform and the Outputs (as defined below). Client will allow only Client personnel who have been assigned a unique user identification (“User ID") (“Client User”) to access the R1 Platform and will take reasonable measures to protect such User IDs and corresponding passwords, including by prohibiting and preventing any Client User or any other person or entity, from sharing such User IDs or passwords. Subject to providing R1 with reasonable advance written notice with respect to each third party, Client may grant third-party contractors or other agents of Client the right to use R1 Technology (in which case they will be considered Client Users for all purposes of this Agreement); provided, however, that R1 reserves the right at any time to require any such contractor or agent to execute a copy of R1’s standard use agreement as a condition to such use. A unique User ID will be granted to each individual Client User. Client will promptly notify R1 if any Client User leaves the employ or service to Client.

1.4. Limitations. Client shall not, and shall not permit any Client User or any other person or entity to, access or use R1 Technology, except as expressly permitted by this Agreement. For purposes of clarity, Client shall not: (a) copy, modify or create derivative works or improvements of R1 Technology or any part thereof; (b) sell, sublicense, assign, publish or otherwise make available R1 Technology to any third party; (c) reverse engineer, disassemble, decompile or otherwise attempt to derive any R1 Technology source code; (d) input, upload, transmit or otherwise provide any unlawful or injurious information or materials, including any virus, worm, malware or other malicious computer code; (e) perform or disclose any benchmarking or performance testing data of R1 Technology; or (f) use R1 Technology for the purpose of developing a product or service competitive with R1 Technology.

1.5. Suspension or Termination of Access. R1 may suspend, terminate or otherwise deny Client or any Client User access to or use of all or any part of R1 Technology, without any resulting obligation or liability: (a) if R1 reasonably determines a suspension or termination is necessary to mitigate or otherwise prevent Client’s or a Client User’s ongoing violation of applicable law or an imminent security threat to R1 Technology; (b) if R1 reasonably determines that Client or Client User is in breach of Section 1.4; or (c) (i) if any payment of Fees  is over thirty (30) days past due in accordance with the applicable payment terms and such Fees are not subject to a dispute under Section 3.3, or (ii) if a dispute raised under Section 3.3 has not been resolved within ninety (90) days of the date the invoice is due, both of the foregoing (i) and (ii) until the past due amounts have been paid in full. This Section 1.5 does not limit any of R1’s other rights or remedies, whether at law or in equity.

1.6. Improvements. The Parties anticipate that the Services will evolve and be supplemented, modified, enhanced, or replaced over time to keep pace with technological advancements and improvements in the methods of delivering services and changes in the business of Client. If any services, functions or responsibilities not described in the Agreement are required for proper performance or provision of the Services in accordance with this Agreement, those services, functions and responsibilities shall be deemed to be included within the scope of the Services. Client further understands and agrees that R1 regularly updates and improves the R1 Technology. R1 reserves the right to make changes to the R1 Technology or specifications that it deems necessary or useful, at no additional charge to Client; provided, however, that any such changes do not degrade in any material respect the function or performance of the R1 Technology or the Services. 

1.7. Exclusivity. Subject to the terms of this Agreement, Client hereby appoints R1 as the sole and exclusive provider (including with respect to Client and the In-Scope Providers and Facilities) of the Services and of services of the type, nature, and substance identical to, or substantially similar to, the Services (including, for clarity, such services as they may be performed directly and not through an artificial intelligence or other web-powered platform) (collectively, the “Similar Services”) for Client and the In-Scope Providers and Facilities. 

1.8. Managed Services Changes; Services Changes. Without limiting the amendment process set forth in Section 10.1: (a) Notwithstanding Section 1.1, one or more Services may be provided by R1, at Client’s request directly through R1’s employees (and not though the R1 Platform) if mutually agreed to by the Parties in a signed SO (each such change, a “Managed Service Change”); and (b) Without limiting Section 1.8(a), this Agreement may also be amended to add, remove, or change other Services, in each case by executing an updated SO setting forth the terms and conditions of the same (each such change, a “Service Change”). For purposes of clarity, each Managed Service Change and each Service Change shall not be effective unless an SO is signed in writing by each Party and shall only take effect on the effective date set forth therein. The Parties acknowledge that Managed Service Changes and Service Changes may result in additional, decreased or modified Fees, which shall be set forth with specificity in the applicable SO.

1.9. Pre-Release Services. Client acknowledges and agrees that: (a) R1 intends to use or make available to Client, R1’s proprietary, artificial intelligence platform known as Phare (the “R1 Platform”); (b) R1 is making the R1 Platform available to Client and the In-Scope Providers and Facilities as a pre-release offering, and that, from time-to-time, R1 may grant Client access to related pre-releases, pilots, alpha or beta tests, previews, or limited releases of R1 products, services, or features (collectively, the SOW Services deployed through the R1 Platform and the products, services, and features described above, the “Pre-Release Services”). Client acknowledges and agrees that the Pre-Release Services may have limited or evolving functionality, are provided on an “as-is” basis, and are not subject to the same standards and warranties as other R1 products, services, or features.]

1.10. Implementation Services. R1 will provide to Client and the In-Scope Providers and Facilities certain implementation, integration, management, and consulting services to effectuate the transition to and the deployment of the R1 Platform (collectively, the “Implementation Services”). After the Effective Date, the Parties will prepare, and cooperatively continue to modify, as needed, a non-binding implementation work plan, which will set forth: (a) the Implementation Services to be provided hereunder, including with respect to discovery, baselining, monitoring, provisioning of on-site space and Client Systems access, training and onboarding for Client users of the R1 Platform, and change management; (b) a list of key implementation milestones (if any) and the steps required to meet such milestones; (c) the Party responsible for such steps and related milestones (if any); (d) key individuals and groups who will play a critical role in the successful transition to the R1 Platform and performance of the Services; and (e) a governance structure to oversee the performance of the Implementation Services, which governing body will meet regularly to address barriers and discuss mutually agreed upon objectives (collectively, the “Implementation Plan”). R1 shall not charge Fees for its performance of the Implementation Services provided that if R1 performs services other than the Implementation Services specified hereunder, R1 shall be entitled to charge for such additional services at a mutually agreed amount to be established between the Parties. Notwithstanding the foregoing, each Party will be responsible for managing its personnel and obligations in implementing a successful transition to the Services. The Implementation Plan may address any communication issues, technology transition issues, and data and security requirements, to obtain third-party consents that are required in connection with the commencement of the Services consistent with this Agreement, and, to the extent any Exhibits are not completed as of the Effective Date, to finalize such Exhibits. Each Party shall provide any data and information necessary for the performance or receipt (as applicable) of the Implementation Services and the successful completion of the service transition.

1.11. Key Data Delivery. As part of the transition of the Services and pursuant to Client’s obligations under Section 3.2, R1 will provide Client with the specifications, instructions, and other classifiers (e.g., table names, headings, or columns) for the information and data required to be extracted or electronically interfaced from the applicable electronic health record and revenue cycle systems patient accounting system (e.g., Epic, FinThrive) to enable R1 to implement the R1 Platform and any other applicable R1 Technology necessary for the provision of the Services (such data and information, the “Key Data Extracts”). Client shall then use such specifications, instructions, and other classifiers to: (a) generate and deliver the required Key Data Extracts (e.g., .csv, .txt, HL7, FHIR API, other mutually agreed formats), which would be delivered or otherwise made available to R1 through a mutually agreeable method; (b) enable and support bidirectional data exchange, allowing R1 to transmit data back in a manner consistent with the agreed specifications and protocols; and (c) within ninety (90) days of the Effective Date, commence providing those Key Data Extracts set forth in Exhibit 2.6 on an ongoing real-time or near real-time basis (as such frequency may be further set forth in Exhibit 2.6) (“Data Extract File Delivery”). R1’s Client Technology and Data Enablement Team shall provide reasonable support to assist Client’s performance thereof. If Client fails to provide the list of Key Data Extracts in accordance with Exhibit 2.6 within the ninety (90)-day period stipulated in subsection (c), or any associated data feed or ongoing data delivery is subsequently suspended or terminated (rather than any temporary, maintenance-related interruption), then the Steering Committee shall meet to discuss the viability of the continued provision of the Services hereunder.  For clarity, Client’s breach of this Section 2.6 or Exhibit 2.6 (including any interruption of the data delivery described therein) shall constitute a breach sufficient to trigger the cure procedures and right to termination of this Agreement, under Section 9.3.

1.12. Steering Committee. The Parties shall form a governance committee, consisting of equal numbers of representatives of each Party (a “Steering Committee”) that will facilitate the provision and receipt of the Services and the implementation and use of the R1 Platform and any Pre-Release Services.  The Steering Committee will be responsible for, at a minimum, the following: (a) on at least a monthly basis, discussing the progress of, and any issues arising from, any ongoing operational tasks taking place under this Agreement (e.g., implementation of the R1 Platform, provision of the Services); (b) attempting to resolve, in the first instance, any disputes arising under this agreement; (c) discussing and finalizing certain fee-related matters, including pursuant to Exhibit 6.1-A and Exhibit 6.1-B; and (d) on a regular and periodic basis, collecting and facilitating the provision of Feedback relating to the R1 Platform and Pre-Release Services.]

2.1. Client Systems. Client will maintain Client’s information technology infrastructure (“Client Systems”) that impact R1’s ability to provide the Services to Client. Client will provide all personnel and subcontractors of R1 with access to Client Systems and, if applicable, Client’s premises and any third-party systems, as reasonably required for R1 to perform the Services and without requiring R1 to agree to terms that R1 determines are unreasonable. Client agrees to provide dedicated login credentials where feasible and expressly permits developer-user password sharing for development, testing, production and reporting of automation solutions used in the Services provided to Client. Client will (a) employ sufficient data privacy and security measures to detect any intrusion to Client Systems or potential corruption of Client Data and (b) maintain a data breach plan which includes immediate notification to R1 of any incident which would compromise R1’s systems or R1 Confidential Information. Client acknowledges that R1’s performance of the Services depends on Client’s timely, accurate, and effective performance of all of its responsibilities under this Agreement. Client further acknowledges and agrees that its failure to satisfy any such responsibilities may prevent or delay R1’s performance of the Services which may result in modifications to an SO and an adjustment of the Fees. Nothing in this Agreement shall require R1, in connection with the provision of the Services, to use any specific Client Systems. Client’s failure to possess or maintain minimum system requirements to install or operate the R1 Platform, or ay breach of this Section 2.1, will constitute a breach sufficient to trigger the cure procedures and right to termination of this Agreement under Section __ of this Agreement.

2.2. Changes to Client Systems. Client will keep R1 reasonably informed of any anticipated changes (including any planned replacement dates and schedules for Client Systems, which Client will ensure do not conflict with or prevent a migration event or system change planned by R1) to Client Systems to the extent that those changes may impact the Services. The Parties will work together to reasonably resolve any impact by such changes on the Services, including any changes that result or could reasonably be expected to result in a material decrease in functionality, efficiency, quality, or other significant negative effect as compared to Client Systems or that reasonably would require R1 to take efforts to interface with new or modified Client hardware or software outside of ordinary course upgrades and configurations. Client will work with R1 during any decision-making processes, requests for proposals, and other procurement processes with respect to Client Systems to ensure the continuity of the Services during the Term, including consultation with R1 and consideration of any input from R1 in connection with any such changes on a continuous basis. To the extent any such changes (e.g., a change in EHR system) result in R1 needing to incur significant costs to provide the Services and make available the R1 Platform in the same manner, R1’s obligation to continue providing and making available the foregoing shall be subject to the Parties entering into a separate statement of work or amendment to the applicable pricing Exhibits attached hereto memorializing any such increase.

2.3. Client Data. Client will provide R1 access to Client Data (as defined below) reasonably required by R1 to provide the Services. Client Data will be provided on at least a daily automated data feed or as otherwise agreed to by the Parties, and in a format to be mutually agreed by the Parties. “Client Data” means all information, data, and other content, in any form or medium, that is provided by or on behalf of Client, the In-Scope Providers and Facilities. Client Data may include “protected health information,” as that term is defined by 45 C.F.R. 160.103 (“PHI”). Such PHI (and aggregated PHI) shall be safeguarded in accordance with the Parties’ business associate agreement, dated of even date herewith (“BAA”). The parties understand and agree PHI (including aggregated PHI) does not constitute Confidential Information (defined below). Client will obtain all consents or permissions as necessary or appropriate for R1 system or portal access necessary to perform the Services contemplated by this Agreement. R1 will assist Client with the completion of forms as needed for R1 to obtain Medicare Direct Data Entry or other access upon the execution of any SO.

2.4. Data Use and Benchmarking. R1 uses de-identified or aggregated data to benchmark trends and ensure optimal analytics across all providers and payers. Results and metrics derived directly benefit clients yielding more exact payment integrity results and the ability to trend against industry performance. Client hereby authorizes R1 to: (a) with respect to Client Data that is PHI, de-identify Client Data in accordance with HIPAA (as defined below) and use and disclose the results for lawful purposes; (b) with respect to Client Data that is PHI, aggregate Client Data as permitted under HIPAA; and (c) with respect to Client Data that is not PHI, de-identify or aggregate the Client Data in a way that such data cannot be re-identified or attributed to Client, for the purpose of benchmarking trends, ensuring optimal analytics, and for other lawful purposes. The analyses, reports, metrics, and outputs generated in connection with the foregoing are hereafter referred to as “Analyses.” “HIPAA” means: (i) the Health Insurance Portability and Accountability Act of 1996; and (ii) the Health Information Technology for Economic and Clinical Health Act (Title XIII of the American Recovery and Reinvestment Act of 2009), and any and all rules or regulations promulgated thereunder from time to time.

2.5. Data Quality. Client acknowledges and agrees that optimal performance of the Services is dependent on the quality and accuracy of the Client Data. R1 assumes no responsibility for the accuracy or completeness of the Client Data. R1 makes no representation as to the appropriateness of its findings for any purpose other than as specifically set forth in the Service Orders.

2.6. Feedback.  Client may (but is not required to) provide R1 with suggestions, ideas or feedback regarding the Services (collectively, “Feedback”). If Client provides any Feedback, R1 may use, disclose, and fully exploit such Feedback without restriction and without compensation or attribution to Client. Feedback shall not be considered Confidential Information of Client; for clarity, Feedback does not include Client Data.

2.7. Notifications of Investigation. Subject to any direction or requirement imposed by the government agency or contractor that prohibits notification, Client will notify R1 telephonically or in writing, within five (5) business days of becoming aware of an investigation by a government agency or contractor where the subject of the investigation involves any aspect of the Services.

2.8. Client Revenue Cycle Operations Policies. Client will have in place appropriate privacy, security, and other policies and procedures for its revenue cycle operations. R1 will notify Client of any known or suspected non-compliance with respect to Client’s policies or procedures for purposes of ensuring that R1 can carry out its obligations to Client consistent with all applicable laws. Client agrees to promptly review any such notice, taking into account any advice of R1 in good faith, and take such actions as it deems reasonably necessary. Notwithstanding anything in this Agreement to the contrary, R1 will have no responsibility or liability for any Service-related or Client-related non-compliance with any applicable law or this Agreement if such non-compliance existed prior to the effective date of this Agreement.

R1 shall make commercially reasonable efforts to provide the Services and the R1 Platform (and any related support and maintenance services) in a manner that meets or exceeds the standards set forth in Exhibit X hereto.

4.1. Payment. The fees payable for the Services (the “Fees”) will be set forth in the applicable SO. Unless a different time period is set forth in the applicable SO, subject to Section 3.3, Client will pay all amounts set forth on R1’s invoice within thirty (30) days after Client’s receipt of the invoice. If any payment of Fees is over thirty (30) days past due in accordance with the applicable payment terms and such Fees are not subject to a dispute under Section 3.3, then, in addition to all other remedies that may be available: (a) R1 may charge interest equal to 1.5% per month on undisputed amounts; (b) R1 may, upon providing five (5) days’ written notice, suspend performance for all Services until payment has been made in full or terminate in accordance with Section 8.2; and (c) Client shall reimburse R1 for all reasonable costs incurred in collecting any late payments or interest, including reasonable  collection agency and attorneys’ fees. Subject to Section 3.3, all amounts payable to R1 under this Agreement or a SO will be paid by Client to R1 in full without any setoff, recoupment, deduction or withholding of Fees or other payments for any reason.

4.2. Changes in Fees. Notwithstanding anything herein to the contrary, in the event that during the term of this Agreement, R1’s costs of providing the Services under any SO increases as a result of any newly enacted or newly implemented rules, regulations or operating procedures of any federal, state or local agency or regulatory authority, the Parties agree to negotiate in good faith regarding an increase in compensation to R1 for such affected Services to offset the increased costs. In addition, Fees, other than those calculated based on recoveries or collections, will be adjusted on an annual basis to account for inflation in accordance with the following sentence. Effective as of the first day of the calendar quarter (such day, “CPI Date”) following each anniversary of the effective date of each SO, the Fees payable under such SO for the four (4) calendar quarters beginning on the CPI Date will be equal to: (a) the Fees paid or payable under such SO for the calendar year ending on the day before the CPI Date, multiplied by (b) the sum of one (1) plus CPI. “CPI” means an annual percentage increase, if any, in the U.S. Department of Labor, Consumer Price Index, All Urban Consumers, U.S. City Average, all items, (1982-84=100), measured quarterly based on annual percentage change in seasonally adjusted indices.

4.3. Disputed Invoices. Within thirty (30) days of receiving an invoice, Client may, reasonably and in good faith, dispute such invoice by providing R1 written notice of the dispute along with payment of any undisputed and unpaid portions and sufficient details of the disputed portion to allow R1 to respond (including copies of backup records if R1 does not have access to Client’s system). R1 will respond to Client with any backup or other information which supports the accuracy of the disputed portion within fifteen (15) business days of the notice of dispute. The Parties will use their best efforts to resolve disputes to a mutually agreeable resolution. If Client fails to notify R1 in writing of an invoice dispute within such thirty (30) day period, then the entirety of such invoice will be conclusively deemed accepted and no dispute with respect to such invoice may be raised by Client at a later time. For so long as amounts due to R1 under any SO or any invoice remains in dispute, Client will provide R1 with either access to Client Systems or copies of records sufficient for R1 to verify Client revenues upon which invoices are based. Potential overpayments identified by Client after payment of invoices may be brought to R1 with supporting detail under the same submission and response process. Confirmed overpayments will be offset against Client’s future invoices.

4.4. Taxes. All service charges, fees, expenses and other amounts due under this Agreement are exclusive of all taxes. Other than net income taxes imposed on R1, Client will be responsible for all applicable sales, use, withholding, value added and other taxes, including any interest and penalties in connection therewith (collectively, “Taxes”) imposed with respect to the Services. If the Services are exempt from any otherwise applicable sales and use tax as a result of Client’s tax-exempt status, Client will provide R1 with a valid and applicable exemption certificate. All tax exemption certificates with a copy of the Agreement and applicable SOW should be sent c/o Tax@r1rcm.com for validation by the R1 Tax Department. 

5.1. Inputs and Outputs; License to Outputs.

5.1.1. Pursuant to its use of the R1 Platform and R1’s provision of the Services, Client may submit certain inputs, prompts, data or other materials to the R1 Platform (collectively, “Inputs”) for purposes of generating certain reports, results and outputs therefrom (collectively, “Outputs”). As between the Parties, the Inputs are considered Client Data to which Client retains all rights, title and interest pursuant to Section 4.2. Client should not rely on Outputs or any resulting data or analyses as a source of truth or fact or as a substitute for professional advice and R1 will not be responsible for any actions taken or not taken in reliance thereon.

5.1.2. Client and the In-Scope Providers and Facilities may, solely for its and there internal business purposes, use, copy, modify, and distribute Outputs; provided, however, that neither Client nor the In-Scope Providers and Facilities shall distribute or share the Outputs with any third-party vendor of revenue management services or technology without R1’s prior written consent.

5.2. Ownership of Client Data. The parties understand and agree that Client retains all right, title, and interest in and to the Client Data. For the avoidance of doubt, Client Data does not include R1 Intellectual Property.

5.3. License to Client Data. Client hereby grants to R1 and its Affiliates, a worldwide, fully paid up, non-exclusive, royalty-free, sublicensable, transferable (as permitted in Section 10.3) right and license to access, use, aggregate, reproduce, modify, display, disclose, distribute, and create derivative works of the Client Data or any portion thereof (including the Inputs): (a) in connection with the provision of the Services to Client and the In-Scope Providers and Facilities (including to provide Outputs and Reports); (b) to fulfill its obligations to Client under this Agreement; and (c) for any other purposes set forth in this Agreement, the BAA, or an applicable SO. Without limiting any of Client’s representations or warranties set forth in this Agreement, Client represents and warrants that it has obtained and will maintain all rights, consents, and permissions necessary to make the Client Data available to R1 as necessary to perform the Services, including to provide R1, its affiliates, its personnel and subcontractors system or portal access.

5.4. Ownership of R1 Intellectual Property. Client acknowledges and agrees that R1 retains all right, title, and interest in and to (a) the R1 Platform, R1 Technology, Reports (excluding Client Data contained therein), and Analyses; (b) all ideas, information, concepts, code, systems, know-how, tools, models, algorithms, processes, programming, data, methods, strategies, techniques, software, conceptual approaches, and inventions created, conceived, enhanced, or improved upon by or on behalf of R1 or any of its Affiliates at any time (e.g., to support R1’s operations, for example, by creating R1 financial, business or other records), including anything which R1 or its Affiliates may discover, create, learn, or develop during the provision of Services for Client; and (c) any intellectual property in or to any of the foregoing (including any derivative works and improvements of any of the foregoing); in each case whether or not modified or developed at Client’s request, modified or developed in cooperation with Client, or modified or developed by R1 jointly with Client (collectively, the “R1 Intellectual Property”). For the avoidance of doubt, each of the foregoing, including all information pertaining to the R1 Platform, is considered the Confidential Information of R1.

6.1. Definition. “Confidential Information” means any non-public information that either Party (as the disclosing Party) treats as confidential or proprietary, including any information and documents relating to a Party or its Affiliates or its and their respective businesses, operations, technical or financial information, including customer lists, marketing information, finances, pricing, and any other information or materials not available to the general public, including the terms of this Agreement. Confidential Information does not include: (a) information that is or becomes publicly known through no wrongful act of the receiving Party; (b) information that is received by the receiving Party on a non-confidential basis from a third party, who is not under any obligation to maintain its confidentiality; or (c) information that is independently developed by the receiving Party without the use of, or reliance on, the disclosing Party’s Confidential Information.

6.2. Protection of Confidential Information. During the term of this Agreement and for a period of five (5) years after completion or termination of each SO, the receiving Party agrees to safeguard the disclosing Party’s Confidential Information from unauthorized use, access or disclosure using at least the degree of care that such Party uses to protect its similarly sensitive information and in no event less than a reasonable degree of care. Client shall not disclose any Confidential Information of R1 or any of its Affiliates to any vendor of revenue management services or technologies or any entity that Client knows or should reasonably know to be a competitor of R1 or any of its Affiliates, except with the prior written consent of R1.

6.3. Permitted Disclosures. The receiving Party may disclose Confidential Information of the disclosing Party only to its personnel, directors, agents, advisors and subcontractors (collectively, “Representatives”) who have a need to know in connection with the Services and who are bound by confidentiality obligations no less restrictive than those described in this Section 5. Each Party will be responsible and liable for any breach of confidentiality obligations by their Representatives.

6.4. Required Disclosures. Should the receiving Party be required to disclose Confidential Information of the disclosing Party by order of a government agency, bureau, a court of law or equity, the receiving Party may make such disclosure, provided that the receiving Party will first provide the disclosing Party with prompt written notice of such required disclosure (unless legally prohibited) and will take commercially reasonable steps to allow the disclosing Party to seek a protective order with respect to the Confidential Information required to be disclosed.

7.1. Representations and Warranties. Each Party hereby represents and warrants that: (a) it is duly organized, validly existing and in good standing under the laws of the jurisdiction of its formation; (b) it has full corporate or other entity power and authority to execute and deliver this Agreement and to perform its obligations hereunder; (c) this Agreement constitutes a valid and binding agreement enforceable against such Party in accordance with its terms; and (d) the execution and delivery of this Agreement and the consummation of the transactions contemplated hereby do not and shall not: (i) conflict with or result in a breach of any provision of such Party’s organizational documents; (ii) result in a breach of any agreement to which such Party is party; or (iii) violate any law applicable to such Party’s business. Each Party further represents and warrants that neither it, nor any of its employees or contractors providing services hereunder, are (x) listed by a federal or state agency as excluded, disbarred, suspended or otherwise ineligible to participate in Federal or state health care programs (including Medicare or Medicaid) or (y) identified on the General Services Administration List of Parties Excluded from the Federal Procurement and Non-Procurement Programs. 

7.2. Disclaimer.  Except as specifically provided, neither Client nor R1 makes any other representations or warranties with respect to the Services, R1 Technology, Reports, data, or systems to be provided to one another pursuant to this Agreement, or any results of the use thereof, and each explicitly disclaims all other representations and warranties, express or implied, including the implied warranties of merchantability, fitness for a particular purpose, title or noninfringement. Neither Party warrants that the Services, any materials or the operation of any systems, technology, hardware or software will be uninterrupted or error-free. Client understands and agrees that, as part of the Services, R1 makes recommendations as to appropriate billing and documentation only and does not provide any medical or clinical advice or consultation as to clinical care. In no event will either party be liable to the other party for any lost profits, lost revenue, or indirect, punitive, special, incidental, exemplary, or consequential damages, whether the likelihood of such damages was known to the party, and regardless of the form of the claim or action.  NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED HEREIN, IN THE EVENT OF AN ERROR OR OMISSION IN THE PERFORMANCE OF THE SERVICES, CLIENT’S SOLE REMEDY IS RE-PERFORMANCE OF THE SERVICES BY R1 AT NO ADDITIONAL COST.

8.1. R1 Indemnification. R1 will defend and indemnify Client, and its officers, directors, managers, and employees from any and all liabilities, costs and expenses incurred by them in connection with any third-party claim, action, or proceeding (each, a “Claim”): (a) arising from R1’s or its employees’, agents’ or contractors’ gross negligence or  actual or deliberate intention to cause harm in the performance of the Services; or (b) alleging that the Services, the R1 Platform or the Reports, as delivered by R1 and excluding any Client Data contained therein, or any use of the foregoing in accordance with this Agreement infringes or misappropriates any patent, copyright, trademark, trade secret, or other intellectual property right of any third party with exceptions for (i) unapproved modification and combination of R1 Technology; (ii) failure to implement available modifications or replacements; and (iii) a Claim that arises from Client Data, Client’s indemnification obligations, or Clients’ breach of this Agreement, the BAA, or a SO.

8.2. Client Indemnification. Client will defend and indemnify R1, its Affiliates, and each of its and their officers, directors, managers and employees from any and all liabilities, costs and expenses incurred by them in connection with any Claims: (a) arising from Client’s or its employees’, agents’ or contractors’ gross negligence or  actual or deliberate intention to cause harm in connection with this Agreement; (b) alleging that Client Data or the use thereof in accordance with this Agreement infringes or misappropriates any patent, copyright, trademark, trade secret, or other intellectual property or proprietary right of any third party; or (c) arising out of Client’s revenue cycle operations including any failure to implement changes and modifications recommended by R1 or to follow R1’s standard operating model.

8.3. Indemnification Procedure. The indemnified Party agrees to: (a) promptly notify indemnifying Party of any Claim for which the indemnified Party seeks indemnification hereunder, provided that failure by the indemnified Party to provide such notice will not impair the indemnified Party’s right to indemnification except to the extent that such failure has materially prejudiced the indemnifying Party in the defense of such Claim; and (b) provide indemnifying Party with reasonable cooperation in the defense of any such Claim.

8.4. Limitation of Liability. The Parties agree that the total cumulative liability of each Party to the other Party (regardless of the form of action) shall not exceed the total amount of all Fees paid to R1 by Client under the applicable SO giving rise to the liability during the twelve (12) months immediately preceding the event giving rise to such liability. The foregoing cap shall not apply to: (a) Claims arising out of a Party’s, or such Party’s employees’, agents’ or contractors’ fraud or out of actual or deliberate intention to cause harm; (b) a Party’s misappropriation or infringement of the other Party’s intellectual property; or (c) Client’s payment obligations under this Agreement or any SO.

9.1. Term. This Agreement will define the relationship between the Parties for so long as any active SO exists for performance of the Services. Unless specifically set forth in any SO, the initial term of each SO will be for three (3) years (“Initial Term”)  beginning upon execution of such SO. After the Initial Term, each SO will automatically renew for successive one (1) year terms unless terminated in accordance with Section 8.2 or Section 8.3.

9.2. Termination for Cause. Either Party may terminate an SO and all Services under this Agreement at any time: (a) if the other Party materially breaches any provision of this Agreement that affects the applicable SO and that has not been cured within ninety (90) days after such Party’s receipt of written notice of such breach; (b) if any payment of Fees is over thirty (30) days past due in accordance with the applicable payment terms and such Fees are not subject to a dispute under Section 3.3, subject to R1 providing no less than five (5) days’ written notice of termination for nonpayment; (c) if the other Party becomes insolvent, makes an assignment for the benefit of creditors or becomes subject to a bankruptcy or receivership; or (d) upon the occurrence of any Force Majeure Event (as defined below) that lasts longer than sixty (60) consecutive days.

9.3. Termination for Convenience. Following the Initial Term, either Party may terminate a SO without cause, upon one hundred twenty (120) days prior written notice to the other Party, unless otherwise set forth in the applicable SO.

9.4. Effect of Termination.

9.4.1. Survival. The rights and obligations of the Parties in this Agreement that, by their nature, should survive the expiration or termination of this Agreement will survive the expiration or termination of this Agreement. For clarity, Section 1.4, Section 2.5, Section 3, Section 4, Section 5, Section 6, Section 7, Section 8.4, Section 9, Section 10 and Client’s obligation to pay R1 for all Services provided survives any expiration or termination of this Agreement or any SO.

9.4.2. Wind Down.  Client acknowledges that when R1 is paid on a contingency basis, its compensation is contingent upon its ability to work accounts referred to R1 by Client to conclusion (the “Referred Accounts”). Upon any termination of this Agreement (other than by Client pursuant to Section 8.2) with respect to Services for which Fees are calculated based on recoveries or collections, R1 reserves the right (but not the obligation) to continue to pursue all revenue opportunities in connection with Referred Accounts for a period of one hundred eighty (180) days, unless a different time period is set forth in an applicable SO, following the effective date of the termination. Client will continue to provide requisite data and system access with respect to such Referred Accounts during the wind-down period and until all invoices for such work are paid in full. Client will compensate R1 for Fees and Taxes incurred prior to the effective date of termination and through the work-down of all work in process at termination.

9.4.3. Return of Property. Subject to Section 8.4(b), upon the effective date of a termination of an SO, save for any remaining work in process, each Party will promptly: (i) return or destroy all copies of the other Party’s Confidential Information, except as otherwise required by applicable law; and (ii) upon such other Party’s request, certify in writing compliance with this Section 8.4(c).

10.1. Exclusive Remedies.  Each Party agrees that the sole and exclusive remedy for (a) any dispute between the Parties arising under this Agreement or any SO, (b) any breach of this Agreement or any SO by the other Party or (c) any claim for indemnification arising under this Agreement will be, subject to the limitations set forth therein, the processes and rights of the Parties set forth in Section 7, Section 8 and this Section 9.

10.2. Arbitration. The Parties will attempt to settle any disputes through good faith negotiations between their respective senior executives for a period of thirty (30) days. In the event a dispute has not been resolved, it will be finally settled by final and binding arbitration, conducted on a confidential basis, under the federal arbitration act, if applicable, and the then-current dispute resolution procedures (“Rules”) of the American Arbitration Association strictly in accordance with the terms of this Agreement and the laws of the state of Utah, excluding its principles of conflicts of laws. To the extent permitted by the Rules, all Parties will direct that any arbitration be held on an expedited basis. All arbitration hearings will be held in Salt Lake City, Utah or such other location as the Parties mutually agree upon.

10.3. Arbitration Awards. Any award will be paid within thirty (30) days of the issuance of the arbitrator(s)’ decision. If any award is not paid within thirty (30) days, any Party may seek entry of a judgment in the amount of the award in any state or federal courts having jurisdiction thereof. 

10.4. No Limitation on Provisional Remedies. Neither Party will be excluded from seeking provisional remedies in the courts of competent jurisdiction, including temporary restraining orders and preliminary injunctions, but such remedies shall not be sought as a means to avoid or stay arbitration.  

10.5. WAIVER OF JURY TRIAL; THIRD PARTIES. THE PARTIES IRREVOCABLY WAIVE ANY RIGHT TO TRIAL BY JURY. THE REQUIREMENT OF ARBITRATION SET FORTH IN THIS section 9 SHALL NOT APPLY IN THE EVENT THAT THERE IS THIRD-PARTY JOINDER BY EITHER PARTY OR A THIRD PARTY INSTITUTES AN ACTION AGAINST ANY PARTY TO THIS AGREEMENT, AND SUCH THIRD PARTY IS NOT AMENABLE TO JOINDER IN THE ARBITRATION PROCEEDINGS CONTEMPLATED BY THIS section 9.

11.1. Entire Agreement. This Agreement sets forth the entire agreement of the Parties with respect to the Services and, except as specifically provided, supersedes and merges all prior oral and written agreements between the Parties with respect to the subject matter hereof. In the event of a conflict between the terms of the various documents, such conflict will be resolved in the following descending order of priority: (1) the Order Form; (2) the BAA; (3) these Terms of Service; and (4) the applicable Service Order. This Agreement may not be amended or modified except in a writing executed by authorized representatives of both Parties. As used herein, the word “including” or any variation thereof means (unless the context of its usage otherwise requires) “including, without limitation” and shall not be construed to limit any general statement that it follows to the specific or similar items or matters immediately following it.

11.2. Notices. All notices required by or relating to this Agreement (other than routine operational communications or as otherwise set forth in this Agreement) will be in writing and signed by an authorized representative of the Party providing such notice and will be sent by means of email with a copy by certified mail, postage prepaid to the receiving Party at its address set forth in this Agreement or the relevant SO. 

11.3. Successors; Assigns; Delegation. Neither Party may assign or otherwise transfer any of its rights or obligations under this Agreement without the prior, written consent of the other Party; provided, however, that a Party may, upon written notice to the other Party and without consent, assign or otherwise transfer this Agreement (a) to any of its Affiliates or (b) in connection with a change of control transaction (whether by merger, consolidation, sale of equity interests, sale of all or substantially all assets, or otherwise) but, in the case of (b), only to the extent the assignee agrees in writing to assume all liabilities under this Agreement, including any liabilities accruing prior to the effectiveness of such assignment. Any assignment or other transfer in violation of this Section 10.3 will be null and void. Subject to the foregoing, this Agreement will be binding upon and inure to the benefit of the Parties hereto and their permitted successors and assigns. For purposes herein, “Affiliate” means, with respect to a particular Party, any person or entity that controls, is controlled by or is under common control with such Party; and “control” means the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of another person or entity, whether through the ownership of voting securities or equity interests, by contract or otherwise. Notwithstanding anything to the contrary herein, R1 or its Affiliates may augment staffing for performance of the Services through subcontracting, and R1 may delegate any of its obligations hereunder to any of its Affiliates or subcontractors, including using resources located outside of the United States. R1 will require all subcontractors and delegees to comply with the requirements of R1 set forth in this Agreement between the Parties, to the extent applicable to such subcontractors and delegees. Any reference in this Agreement to "R1" that imposes any obligation or grants any rights, relating to the provision of the Services, will be deemed to also be a reference to R1's Affiliates who perform the Services under this Agreement and their subcontractors, provided, however, that under no circumstances will Client have any rights to make any claims against any such Affiliates or subcontractors and Client can only make claims against R1.    

11.4. Waiver; Severability. No term of this Agreement will be deemed waived, and no breach of this Agreement excused, unless the waiver or consent is in writing and signed by the Party granting such waiver or consent. The waiver by any Party of a breach of any provision shall not operate or be construed as a further or continuing waiver or as a waiver of any other or subsequent breach. Should any one or more of the provisions be determined to be invalid, illegal or unenforceable in any respect, such provision will be construed to be adjusted to the minimum extent necessary to cure such invalidity or unenforceability, and the remaining provisions shall not in any way be adversely affected thereby. 

11.5. Force Majeure. Except with respect to payment obligations hereunder, if a Party is prevented or delayed in performance of its obligations hereunder as a result of circumstances beyond such Party’s reasonable control, including war, riot, fires, floods, elements of nature or acts of God, epidemics, pandemics, failure of public utilities or public transportation systems (each, a “Force Majeure Event”), such failure or delay will be excused and shall not be deemed to constitute a breach of this Agreement. 

11.6. Governing Law. This Agreement will be governed by and interpreted in accordance with the laws of the State of Utah, without regard to conflicts of law principles thereof, and each Party irrevocably consents to the exclusive jurisdiction of the federal and state courts located in the State of Utah.

11.7. Compliance with Laws. The Parties agree to comply with all applicable laws, regulations and standards applicable to the performance of this Agreement, including the requirements of the Anti-Kickback Statute, 42 U.S.C. 1320a-7b, the federal False Claims Act and the regulations promulgated thereunder. Upon eligibility for any discount or credit, R1 will provide information regarding the value of the credit or discount provided to Client. Client will determine any reporting obligations and report the amount to the government, as applicable.