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<br />b. Except for material breach by MHIN, if Practice terminates the Agreement prior to the
<br />expiration of the term, Practice will pay an early termination fee in an amount equal to one third of the remaining
<br />balance of fees for the current Term with respect to the Agreement.
<br />9. Audit MHIN has the right to inspect and to access the MHIN Service during normal business
<br />hours, to verify that it is being used and protected as specified herein.
<br />10. Indemnification
<br />a. MHIN will indemnify, defend and hold Practice and its directors, officers, employees and
<br />agents ("Practice Indemnitees") harmless from any claims, actions and damages (including the cost of
<br />investigating, defending or settling any action, claim or demand including, but not limited to, attorneys' fees
<br />and litigation costs) from every kind and nature, which may be made, threatened to be made, or instituted
<br />against the Practice Indemnitees arising out of or in any way connected with: (i) a breach of the Agreement by
<br />MHIN; (ii) the negligence or willful misconduct of MHIN (iii) the MHIN Service, as provided by MHIN to Practice
<br />under this Agreement and used within the scope of this Agreement, infringement upon any U.S. patent or
<br />copyright issued as of the Effective Date, or incorporation of any misappropriated trade secrets. MHIN has no
<br />indemnification obligation for any claim of infringement or misappropriation to the extent that it results in whole
<br />or part from: (a) modification to the MHIN Service made by a party other than MHIN; (b) combination of the
<br />MHIN Service with other systems, products, processes or materials; or (c) compliance by MHIN with designs,
<br />plans or specifications furnished by or on behalf of Practice.
<br />b. Practice will indemnify, defend and hold MHIN and its directors, officers, employees and
<br />agents ("MHIN Indemnitees") harmless from any claims, actions and damages (including the cost of
<br />investigating, defending or settling any action, claim or demand including, but not limited to, attorneys' fees
<br />and litigation costs) from every kind and nature, which may be made, threatened to be made, or instituted
<br />against the MHIN Indemnitees arising out of or in any way connected with: (i) a breach of the Agreement by
<br />Practice; (ii) any medical malpractice claim, tort claim, statutory claim or other claim against the MHIN
<br />Indemnitees arising out of the Agreement; or (iii) the negligence or willful misconduct of Practice.
<br />G. Each Party's indemnification obligations under this Section 10 are conditioned upon the Party
<br />requesting indemnification: (a) promptly notifying the other Party in writing of the claim; (b) granting the Party
<br />providing indemnification sole control of the defense and settlement of the claim, provided that the Party
<br />providing indemnification will not settle a pending matter without first notifying the Party requesting
<br />indemnification; and (c) providing the Party providing indemnification with all assistance, information and .
<br />authority required for the defense and settlement of the claim.
<br />d. Injunctions. If Practice's use of the MHIN Service is at risk of being enjoined due to the type
<br />of infringement specified above, MHIN has the right, at its sole option and expense to: (a) procure for Practice
<br />the right to continue using such MHIN Service under the terms of this Agreement; (b) replace or modify such
<br />MHIN Service so that it is non -infringing; or (c) terminate Practice's rights and MHIN's obligations hereunder
<br />with respect to such MHIN Service with no further liability.
<br />11. Warranties, Remedies, Limitation of Liability, Allocation of Risk
<br />a. WARRANTY DISCLAIMER. EXCEPT FOR THE EXPRESS WARRANTIES SET FORTH IN
<br />THIS AGREEMENT, THE SERVICES ARE PROVIDED TO PRACTICE "AS IS" WITH ALL FAULTS AND
<br />DEFECTS AND WITHOUT WARRANTY OF ANY KIND. TO THE MAXIMUM EXTENT PERMITTED BY
<br />APPLICABLE LAW, MHIN HEREBY DISCLAIMS ALL WARRANTIES PERTAINING TO THE SERVICES OR
<br />THE USE THEREOF, INCLUDING THE MHIN SERVICE (AND ANY MATERIALS PROVIDED TO PRACTICE
<br />UNDER THIS AGREEMENT), EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED
<br />WARRANTIES OF MERCHANTABILITY, TITLE, DESIGN, NON -INFRINGEMENT, OPERATION OR
<br />FITNESS FOR A PARTICULAR PURPOSE AND ANY WARRANTY ARISING FROM CONDUCT, COURSE
<br />OF DEALING, CUSTOM OR USAGE IN TRADE. MHIN DOES NOT WARRANT THAT THE SERVICES WILL
<br />SATISFY PRACTICE'S REQUIREMENTS OR THAT THE OPERATION OF THE MHIN SERVICE WILL BE
<br />UNINTERRUPTED OR ERROR FREE. THE ENTIRE RISK ARISING OUT OF THE USE, PERFORMANCE,
<br />OR INABILITY TO USE THE SERVICES REMAINS WITH PRACTICE.
<br />MHIN Form #3013 Revised. 0810812014 Page 10 of 19
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