‍CLAIM.MD CUSTOMER SERVICE AGREEMENT

           This service agreement (“Agreement”), by and between Claim.MD and Customer Name (“Customer”), is effective as of the date it is accepted by Customer.  Claim.MD and Customer, for adequate consideration and intending to be legally bound, mutually agree to the following terms and conditions:

1.         Definitions.  For all purposes of this Agreement, the following terms shall have the following meanings:

1.1       “Intellectual Property” shall refer to Claim.MD’s intellectual property as defined by law.  Without limiting the foregoing, Intellectual Property shall expressly include the Services and Materials.

1.2       “Materials” shall mean any and all materials in whatever format, including but not limited to specifications, user guides, software, applications, and training and informational materials, provided to Customer by Claim.MD with respect to the Services.

1.3       “Payers” shall mean those entities ultimately intended to receive Transactions submitted by Customer through the Services, and from whom Transactions submitted to Customer by Claim.MD may originate.

1.4       “Proprietary Data” shall mean data used in Claim.MD’s business or business practices to which Customer would not have access but for this Agreement, including but not limited to information system technologies and practices, and operational processes.

1.5       “Services” shall mean the services provided by Claim.MD pursuant to this Agreement.  Generally, the Services include services intended to facilitate the electronic transmission between Customer and Payers of health insurance claims and related information and requests.  The Services also include the use of claim validation logic intended to minimize claim rejection rates.  The Services do not include ensuring the payment or timely payment of any health insurance claim by any Payer, or determining the accuracy of any information provided to Claim.MD by Customer or Payers.

1.6       “Transactions” shall mean batch and real-time transactions submitted by Customer to Claim.MD for transmission to a Payer, or by Claim.MD to Customer for transmission from a Payer, whether or not a Payer accepts or favorably adjudicates such transactions, including but not limited to transactions related to and/or including enrollment and eligibility data, claims data, protected health information and Proprietary Data.

2.         Use of the Services.

2.1       Subject to the terms and conditions of this Agreement, Claim.MD grants to Customer a non-exclusive and non-transferable right to use the Services for the term of this Agreement.  Claim.MD further grants to Customer a right to use the Materials to facilitate Customer’s use of the Services.  Customer shall only use the Services and Materials for the purposes for which they were designed and offered to Customer, and only in the course of Customer’s legitimate business operations.  This Agreement provides Customer no right or license to Intellectual Property or Proprietary Data, or access to Claim.MD’s systems, except as may be explicitly granted by its terms.

2.2       Customer acknowledges and agrees that Claim.MD may from time to time utilize the services of third parties, including but not limited to other clearinghouses, to facilitate the transmission of data between Customer and Payers.  Customer agrees that by using such third party services Claim.MD does not assume liability for any errors or omissions on the part of such third party.

3.         Training, Technical Support and Modification of Services.  As it relates to Customer’s use of the Services, Claim.MD shall provide to Customer one-time, initial start-up training as well as ongoing technical support.  Claim.MD, or its designated agent, shall be the sole source of training and support for the Services.  Customer shall be responsible for acquiring, operating and maintaining the computer hardware, software and other equipment used in conjunction with and/or necessary for Customer to use the Services.  Claim.MD shall have no responsibility for any costs incurred in connection with modifications or enhancements to Customer’s system necessary for implementing Customer’s interface with the Services or in connection with Customer’s use of the Services.  Claim.MD may from time to time, in its sole discretion and without liability to Customer, revise, modify, update or replace the Services in whole or in part.  Claim.MD shall furnish Customer with appropriate Materials in connection with any such revision, modification, update or replacement in a manner reasonably calculated to allow implementation and testing by Customer before its effective date.

4.         Pricing.

4.1       Customer shall pay Claim.MD for the Services in accordance with the Claim.MD Price Sheet accessible at https://www.claim.md/pricing.html, the terms of which are incorporated into this Agreement by reference.  Claim.MD reserves the right to alter the Price Sheet, in its sole discretion, during the term of this Agreement.  In the event Claim.MD decides to alter the Base Monthly Fee set forth in the Price Sheet, Claim.MD shall provide Customer with notice of the alteration at least forty-five (45) days prior to charging the altered fee to the Customer.

4.2       Claim.MD shall be entitled at any time without prior notice to pass through any access fees and/or increase in communication tariffs related to the Services, including without limitation government-imposed fees, fees resulting from changes in regulation or statute, and third party-imposed access fees, or any other fees assessed against Claim.MD and outside of Claim.MD’s reasonable control.  Claim.MD shall make available to Customer upon request documentation relating to such pass-through fees in connection with the Services.

4.3       Customer shall be responsible for any taxes or charges however called, including but not limited to any registration fees, assessments, sales, use, personal property, ad valorem, stamp, documentary, excise, telecommunication and other taxes (excluding any taxes imposed on Claim.MD’s income) imposed by any federal, state or local government or regulatory authority with respect to the performance of the Services or delivery of the Materials by Claim.MD pursuant to this Agreement, whether such is imposed now or later by the applicable authority, even if such imposition occurs after the use by Customer of the Services or receipt by Customer of the Intellectual Property, the invoicing by Claim.MD for the applicable Intellectual Property, or the termination of this Agreement.  If Customer is tax-exempt, Customer must submit with this Agreement evidence of its tax-exempt status.

5.         Customer Obligations.

5.1       Customer shall not sell, license, distribute, or otherwise share any user ID or password provided to or created by Customer pursuant to this Agreement.  Customer agrees to protect Customer’s user IDs and passwords from compromise, release or discovery by any unauthorized person, and otherwise agrees to take commercially reasonable precautions to prevent unauthorized access to Claim.MD’s systems.  If a breach of this provision occurs, or Customer becomes aware of any unauthorized access to Claim.MD’s systems, Customer must immediately notify Claim.MD.  Each user ID shall be assigned to an individual identified by Customer prior to its issuance, and no person, including other employees and agents of Customer, shall be permitted to use any user ID to access the Services except the individual to whom it was assigned.  Customer acknowledges that only Customer personnel it designates shall be permitted to use the login IDs and passwords.  Customer shall change its passwords with the frequency that Claim.MD may require from time to time, but in any event no less frequently than every three months and whenever a password has been compromised.

5.2       Customer agrees to provide Claim.MD with all information and other assistance required by Claim.MD to facilitate Customer’s use of the Services.

5.3       Customer agrees to transmit Transactions through the Services in accordance with the procedures, technical requirements (including format and code) and edits that Claim.MD may require from time to time.

5.4       Customer shall promptly report to Claim.MD any performance problems related to the Services, including a description of the circumstances surrounding their occurrence.  Customer shall also otherwise make a good faith effort to cooperate with Claim.MD in efforts to resolve performance problems related to the Services.

5.5       Invoices will be submitted to Customer electronically on a regular basis, and will include itemized and total charges incurred by Customer during the applicable billing period.  Customer shall pay the total charge within thirty (30) days of submission of the invoice.  In the event Customer fails to do so, Claim.MD shall be entitled to interest accruing at the rate of five percent (5%) per month on any unpaid balance existing after payment is due.  Claim.MD reserves the right to suspend use of the Services and/or immediately terminate this Agreement, notwithstanding any other provision of this Agreement, if any amount remains unpaid forty-five (45) days after submission of the corresponding invoice.  Customer shall be liable for all costs incurred by Claim.MD to collect amounts owed by Customer pursuant to this Agreement, including reasonable attorney’s fees and expenses.

5.6       Customer shall not submit any Transaction to Claim.MD unless and until it has obtained any and all authorization from, and/or entered into any and all agreements with, third parties that may be necessary for Customer to have the legal right to submit the Transaction.  Such third parties include, but are not limited to, patients, providers and Payers.

5.7       Customer shall comply with any and all legal requirements and obligations imposed by statute, rule, regulation or otherwise, as they may be amended from time to time, applicable to it in submitting Transactions to Claim.MD.  This paragraph includes but is not limited to any applicable requirement or obligation imposed by HIPAA, the HITECH Act, Medicare, Medicaid and state programs administering Medicaid benefits, and applicable federal regulations.

5.8       It is Customer’s responsibility to comply with any policy, procedure or protocol imposed on or required of Customer by a Payer as it relates to Customer’s submission and/or receipt of health insurance claims and related information and requests to and/or from a Payer.  Claim.MD shall not be liable for any loss resulting from Customer’s failure to comply with any requirement imposed on Customer by a Payer.

5.9       Customer shall retain records relative to Customer’s use of the Services in accordance with sound business practices.  Upon Claim.MD’s request, Customer shall provide to Claim.MD documentation and/or other information that Claim.MD may deem necessary to establish Customer’s compliance with the terms of this agreement.

6.         Proprietary Rights and Confidentiality

6.1       All rights in and to the Intellectual Property and Proprietary Data shall remain vested in Claim.MD except for the limited rights granted Customer pursuant to this Agreement. Customer will make no attempt to ascertain the circuit diagrams, source code, schematics, logic diagrams, components, operation of, or otherwise attempt to decompile, reverse engineer, copy, modify, transfer or prepare any derivative works from the Intellectual Property, Proprietary Data or Claim.MD’s other systems, software and property except as specifically authorized by Claim.MD in writing or as otherwise provided in this Agreement.  Customer shall reasonably cooperate with Claim.MD in any claim or litigation against third parties that Claim.MD may determine to be appropriate to enforce its rights with respect to Intellectual Property and Proprietary Data provided to Customer pursuant to this Agreement.  The breach or threatened breach by Customer of any provision of this Section 6 will subject Customer, at Claim.MD’s option and notwithstanding any other provision of this Agreement, to immediate termination of all Customer’s rights under this Agreement.  Claim.MD shall be entitled to seek equitable relief, including but not limited to a restraining order or injunction, prohibiting such breach without limiting Claim.MD’s other remedies including recovery of money damages.  Customer expressly agrees that Claim.MD has no adequate remedy at law for Customer’s breach of this Section 6, that Claim.MD will suffer irreparable injury from such a breach, and that equitable relief is appropriate to prevent its occurrence.

6.2       Each party shall retain in confidence and not disclose to any other person, except in confidence and in accordance with this paragraph 6.2, any of the terms of this Agreement, and any and all confidential or proprietary information and materials of the other party.  All of the foregoing are hereinafter referred to as “Confidential Information”.  Confidential Information shall expressly include, but not be limited to, the Intellectual Property and Proprietary Data.  Confidential information shall not include information which (a) is or becomes generally available to the public other than as a result of a wrongful disclosure by the other party, (b) was in the recipient’s possession and not known to be the Confidential Information of the other party prior to its disclosure to the recipient by the other party, (c) was independently developed by the recipient, or (d) was disclosed by another entity without restriction and where neither party is aware of any violation of the confidential rights of the other party.  Confidential Information of the other party shall not be disclosed, in whole or in part, to any person other than in confidence to one for whom such knowledge is reasonably necessary for purposes of this Agreement, and then only to the degree such disclosure is so necessary, and only if the recipient has agreed in writing to maintain the confidentiality of such information.  Each party shall protect the Confidential Information of the other with at least the same degree of care with which it protects its own most sensitive confidential information, but in any event, no less than reasonable care.

6.3       If a party is required by judicial, administrative or other governmental order to disclose any Confidential Information of the other party, it shall promptly notify the other party prior to making any such legally required disclosure and provide reasonable cooperation in order to allow such party to seek a protective order or other appropriate remedy prior to complying with such order.

6.4       All media releases, public announcements, or other public disclosures by either party or its employees or agents relating to this Agreement or its subject matter, including without limitation promotional or marketing materials, shall be coordinated with and approved by the other party prior to release, but this restriction shall not apply to any disclosure solely for internal distribution by either party or any disclosure required by legal, accounting or regulatory requirements.

6.5       Customer and Claim.MD agree to remain in full compliance with HIPAA, the HITECH Act, and regulations promulgated thereunder, to the extent applicable, and all other applicable authority during the term of this Agreement.  To that end, the parties have executed a separate Business Associate Agreement the terms of which are incorporated into this Agreement by reference.

6.6       Claim.MD does not sell or otherwise disclose Customer information including Customer financial information including but not limited to billed/paid amounts, claims data, protected health information or enrollment/eligibility data in any manner except in furtherance of provision of the Services as provided herein.  This Claim.MD sale prohibition includes data purported to be de-identified, aggregated, tokenized or coded or otherwise rendered anonymous.

7.         Representation and Warranties.  Claim.MD represents and warrants that the Services provided hereunder shall be provided (i) without material defect and (ii) in a professional and workmanlike manner.  In the event that a documented and reproducible flaw inconsistent with this warranty is discovered, Claim.MD’s sole responsibility shall be to use commercially reasonable efforts to correct such flaw in a timely manner.  This warranty does not apply to (i) any claim resulting in whole or in part in changes in the operating characteristics of computer hardware or computer operating systems made after the release of the applicable Service; (ii) any claim resulting from problems in the interaction of the Services with non-Claim.MD software or equipment; (iii) any claim resulting from a breach by Customer of any of its obligations hereunder, or (iv) errors or defects caused by Customer, its agents, contractors, employees or any third party not controlled by Claim.MD.

8.         Limitations of Liability.

8.1       CLAIM.MD’S REPRESENTATIONS AND WARRANTIES ARE ONLY THOSE SET FORTH IN SECTION 7 OF THIS AGREEMENT.  CLAIM.MD DISCLAIMS ALL OTHER REPRESENTATIONS AND WARRANTIES, INCLUDING WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR USE.  CLAIM.MD DOES NOT GUARANTEE THE PAYMENT OR THE TIMING OF PAYMENT OF ANY CLAIMS SUBMITTED THROUGH THE SERVICES.  PAYMENT REMAINS THE RESPONSIBILITY OF THE PARTICULAR PAYER IN ACCORDANCE WITH ITS AGREEMENT WITH CUSTOMER. IN NO EVENT SHALL EITHER PARTY TO THIS AGREEMENT BE LIABLE FOR INCIDENTAL, CONSEQUENTIAL OR SPECIAL DAMAGES, INCLUDING BUT NOT LIMITED TO LOST PROFITS, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. CLAIM.MD’S AGGREGATE LIABILITY TO CUSTOMER UNDER THIS AGREEMENT AND WITH RESPECT TO THE SERVICES FURNISHED HEREUNDER (WHETHER UNDER CONTRACT, TORT, OR ANY OTHER THEORY OF LAW OR EQUITY) SHALL NOT EXCEED, UNDER ANY CIRCUMSTANCES, THE LESSER OF (1) THE PRICE PAID BY CUSTOMER TO CLAIM.MD FOR THE PARTICULAR SERVICES DURING THE ONE YEAR PRECEDING CUSTOMER’S CLAIM, OR (2) $10,000. THE FOREGOING LIMITATION OF LIABILITY REPRESENTS THE ALLOCATION OF RISK OF FAILURE BETWEEN THE PARTIES AS REFLECTED IN THE PRICING HEREUNDER AND IS AN ESSENTIAL ELEMENT OF THE BASIS OF THE BARGAIN BETWEEN THE PARTIES.

8.2       In the event any information to be transmitted by or to Customer through the Services is not transmitted by Claim.MD or is not accurately transmitted as a result of Claim.MD’s failure to perform the Services in accordance with the terms of this Agreement, and such results in damage to the Customer, then Claim.MD’s sole obligation and liability to Customer for such event (subject also to reasonable mitigation by Customer and the limitation of liability set forth in Section 8.1) shall be limited to furnishing credits on subsequent invoices from Claim.MD to Customer in an amount equal to Customer’s actual damages incurred for reconstructing or retransmitting the data, including reasonable out-of-pocket expenses that Customer can demonstrate it has sustained and that are directly attributable to such failure. Customer further agrees that Claim.MD shall not be liable in any way for any inaccuracy resulting from errors or omissions or the negligent or other wrongful acts of any employee or agent of Customer, its affiliates or any third party.  Any claim against Claim.MD by Customer must be asserted in writing within ninety (90) days after Claim.MD‘s alleged failure to transmit information.  Customer hereby agrees to promptly supply to Claim.MD documentation reasonably requested by Claim.MD to support any claim of Customer. THIS SECTION STATES THE ENTIRE LIABILITY OF CLAIM.MD WITH RESPECT TO CLAIMS THAT INFORMATION WAS NOT TRANSMITTED OR WAS TRANSMITTED INACCURATELY BY CLAIM.MD.

8.3       Customer agrees to defend, indemnify and hold harmless Claim.MD and its parents, subsidiaries, affiliates, officers, directors, employees, agents, successors and assigns, from and against any and all liability, losses or damages, whether direct or indirect, to person or property; claims; judgments; costs and reasonable attorneys’ fees; and threatened or pending legal action which may result from Customer’s breach of this agreement.  Such breaches include but are not limited to any use or disclosure of protected health information, Intellectual Property, Proprietary Data or Claim.MD’s information systems not authorized by this Agreement. Customer assumes all liability for any damage, whether direct or indirect, to Claim.MD’s information systems and/or data stored therein caused by Customer’s breach of this Agreement.

8.4       Claim.MD shall have no responsibility for determining the accuracy of any information submitted to Claim.MD in connection with Customer’s use of the Services, for ensuring the payment or timely payment of any claims, or for settling disputed claims, payments, or other disputes between any third party (including a Payer) and Customer.  Claim.MD shall not be liable for the acts of Customer or any third party (including a Payer), or for acts beyond Claim.MD’s transmission of data pursuant to this Agreement.

8.5       Any claim or cause of action arising out of, based on, or related to this Agreement not presented by Customer within one (1) year from discovery of the claim or cause of action shall be deemed waived. Customer shall use commercially reasonable efforts to mitigate damages for which Claim.MD may become responsible under this Agreement.

8.6       Neither party shall be responsible for delays or failures in performance resulting from acts or events beyond its reasonable control, including but not limited to acts of nature, governmental actions, fire, labor difficulties or shortages, civil disturbances, transportation problems, interruptions of power, supply or communications or natural disasters, provided such party takes reasonable efforts to minimize the effect of such acts or events.

8.7       Each party further acknowledges that malfunctions, breakdowns and other errors in the other party’s systems and processes may occur from time to time despite the other party’s reasonable and standard preventative efforts.  Therefore, notwithstanding any other provision of this Agreement, neither party shall be considered to be in breach of this Agreement if that party’s breach is the result of any such malfunction, breakdown or error so long as the party has made reasonable and standard efforts to prevent and timely correct such malfunction, breakdown or error.

8.8       Neither the existence of this Agreement nor any of its terms are intended or should be construed to provide any third party, including but not limited to any Payer or provider, any right, claim, remedy or relief it would not have had absent this Agreement, including any status or claim as a third party beneficiary of this Agreement.  This Agreement is for the benefit of Customer and Claim.MD.

9.         Term and Rights upon Termination.

9.1       This Agreement may be terminated by either party without cause after giving the other party at least thirty (30) days advance notice.

9.2       Either party shall have the right to terminate this Agreement immediately as a result of a material breach by the other party; provided, however, the breaching party shall have the opportunity to cure any such breach within thirty (30) days of receiving notice thereof.  If the breach is not reasonably curable within thirty (30) days, the termination becomes effective if, within thirty (30) days of receiving notice of the breach, the breaching party has failed to begin and continue diligent and good faith efforts to cure the breach.  Either party shall have the right to terminate this Agreement, effective immediately, in the event that the other party ceases to conduct its business in the ordinary course, becomes legally insolvent, or avails itself of or becomes subject to any proceeding under the bankruptcy laws of any applicable jurisdiction.  Claim.MD shall have the additional right to terminate: (a) any or all portions of the Services effective upon reasonable advance notice to Customer that Claim.MD is no longer offering or providing support for the applicable Services, and (b) as it relates to use of the Services for Transactions falling under the jurisdiction of the HHS Secretary, immediately upon notice if such termination is required by the HHS Secretary or his/her signees in the event of fraudulent or questionable billing practices of Customer.

9.3       Upon expiration or termination of this Agreement for any reason, (i) all rights granted Customer under this Agreement shall terminate; (ii) Customer shall immediately cease using the Services and Materials, and (iii) Customer shall promptly return to Claim.MD, at Customer’s expense, all Materials provided for use of the Services and destroy all login IDs and passwords associated with Customer’s use of the services.  Notwithstanding the foregoing, Claim.MD may upon termination of this Agreement offer archival services to Customer allowing Customer to purchase a limited and continuing right to access Customer’s Transaction history.

9.4       Each party may also temporarily suspend electronic communications under this Agreement to protect computer or data systems in case of emergencies, or to perform maintenance.

10.       Miscellaneous.

10.1     This Agreement is intended to create an independent contractor relationship between the parties, and no other.  This Agreement is not intended to and does not create any employment, agency, partnership, joint venture or other relationship between the parties that could result in a finding of joint or vicarious liability.

10.2     If applicable, each party represents and warrants that, as of the commencement of this Agreement, neither it nor its medical staff, partners, officers, directors, or employees are or have been (i) sanctioned for, or convicted of, a criminal offense related to health care or (ii) barred, suspended or terminated from participation in a state or federal health care program. Each party agrees that, should it or its medical staff, partners, officers, directors, or employees become so sanctioned, convicted, barred, suspended or terminated, this Agreement will automatically terminate.

10.3     If and to the extent required by Section 1395x(v)(1)(l) of Title 42 of the United States Code, until expiration of four (4) years after the termination of this Agreement, Claim.MD shall make available, upon written request by the Secretary of HHS or the Comptroller General of the United States General Accounting Office, or any of their duly authorized representatives, a copy of this Agreement and such books, documents and records as are necessary to certify the nature and extent of the costs of the Services provided hereunder.  Claim.MD further agrees that, in the event it carries out any of its duties under this Agreement through a subcontract with a related organization with a value or cost of Ten Thousand Dollars ($10,000.00) or more over a twelve (12) month period, such subcontract shall contain a similar requirement for the subcontractor.

10.4     Any notice contemplated by this Agreement shall be given in writing via (1) personal delivery, in which case notice shall be deemed given on the date of delivery (2) registered or certified mail, return receipt requested, in which case notice shall be deemed given on the date the return receipt is signed, (3) a nationally recognized courier service, in which case notice shall be deemed given on the date of delivery by the service, or (4) electronic mail, in which case notice shall be deemed given on the date the electronic mail message is sent, to the addresses provided by the other party.  Notwithstanding the foregoing, termination of this Agreement by Customer shall not become effective until Customer completes Claim.MD’s cancellation notice form.

10.5     Neither party shall assign, sell or otherwise transfer this Agreement or any rights hereunder without the express prior written consent of the other party, which consent shall not be unreasonably withheld. An assignment hereunder shall not be deemed to include a transfer of control or a majority equity ownership of a party. Any purported assignment in violation of this provision shall be null and void. This agreement shall be binding upon and shall inure to the benefit of the parties and their respective successors and assigns.

10.6     No representations have been made to induce either party to enter into this Agreement, except for the representations explicitly stated in this Agreement. This Agreement and any terms incorporated by its language supersede all prior or contemporaneous written or oral agreements or expressions of intent or understanding, and is the entire Agreement between the parties with respect to its subject matter.  In the event of any irreconcilable conflict or inconsistency between this Agreement and the terms and conditions of any Schedule hereto, the terms and conditions of the Schedule shall take precedence.  If any provision of this Agreement is held by a court of competent jurisdiction to be invalid, void, or unenforceable, that provision shall nonetheless continue to be valid and enforceable to the maximum extent allowable, and the remaining provisions will nevertheless continue in full force without being impaired or invalidated in any way.

10.7     If Customer has an existing account with Claim.MD, this Agreement shall apply retroactively to the date Customer first established such account.

10.8     Claim.MD reserves the right to modify the terms of this Agreement from time to time, and will provide Customer with electronic notification of any such amendment.  The current version of this Agreement, as it may be amended from time to time, may be accessed by Customer through its account.  Customer’s continued use of the Services after any amendment by Claim.MD constitutes acceptance of the amended Agreement. No waiver of any provision of this Agreement shall be effective unless in writing and signed by an authorized officer of the party charged with such waiver, and any such waiver shall be strictly limited to the terms of such writing.  A waiver by either party of a breach of this Agreement shall not constitute a waiver of any other similar or different breach.

10.9     Any provision of this Agreement which requires or reasonably contemplates the performance or existence of obligations by either party after the termination of the Agreement shall survive such termination.

10.10   This Agreement shall be governed by the laws of the State of New Mexico both as to interpretation and enforcement, without regard to conflict of law principles of any particular jurisdiction.  Any action to enforce or otherwise arising from this Agreement shall be filed in a court of competent subject matter jurisdiction in Santa Fe County, New Mexico.

10.11   This Agreement shall be construed as a whole according to its fair meaning and not strictly construed for or against either party.  Each party expressly waives the application of any doctrine or other legal authority that agreements are to be construed against the party who drafted the agreement.

10.12   The section headings of this Agreement are inserted for reference and convenience purposes only, and do not constitute a part or affect the meaning or interpretation of the provisions of this Agreement.