SOFTWARE LICENSE AND SERVICES AGREEMENT

This Software License and Services Agreement (“Agreement”) is entered into on the dates (the “Effective Date”) set forth below, by and between Klarity Health, Inc., a Delaware corporation (“Company”), and the Customer listed above (“Customer”). This Agreement includes and incorporates the above Order Form and the attached Terms and Conditions, and contains, among other things, warranty disclaimers, liability limitations and use limitations. Any different terms of any related purchase order or similar form, even if signed by the Parties after the date of this Order Form, will be of no force or effect. This Agreement shall become legally binding upon signature by Customer and acceptance by Company. By signing, each Party acknowledges that it has read, understood and agrees to be bound by the Agreement and that the person signing is duly authorized to do so.

TERMS AND CONDITIONS

1. Definitions. As used in this Agreement:

a. “App” means the Company software application offering identified in the applicable Order Form.

b. “Authorized User” means: (a) employees of Customer working at the Customer Facilities that have been requested by the Customer and approved access by the Company via written format; (b) non-employed health care professionals with privileges at or the right to perform services at Customer Facilities that have been requested by the Customer and approved access by the Company via written format; or (c) patients of Customer being treated at the Customer Facilities and their legal guardians, that have received unique log-in credentials from Customer, that have been requested by the Customer and approved access by the Company via written format

c. “Company Data” means any information, data, content and materials made available to Customer pursuant to the Agreement, excluding any Customer Data.

d. “Company Services” or “Services” means, collectively, the set up services and Support Services and any App related service provided to Customer under this Agreement.

e. “Customer Data” means any information, data, materials and content owned or licensed by Customer provided to Company on or after the Effective Date, including Patient data.

f. “Documentation” means the user instructions, help files, and App and Services specifications made available by Company for use with the Services and App, as may be updated from time to time by Company.

g. “Intellectual Property Rights” means all intellectual property rights or similar proprietary rights, including (a) patent rights and utility models, (b) copyrights and database rights, (c) trademarks, trade names, domain names and trade dress and the goodwill associated therewith, (d) trade secrets, (e) mask works, and (f) industrial design rights; in each case, including any registrations of, applications to register, and renewals and extensions of, any of the foregoing in any jurisdiction in the world.

h. “Patient” means an individual who is a patient of Customer’s healthcare practice, if applicable.

i. “Patient Data” means any electronic data, information or material about a Patient that is entered or uploaded into the App.

“Software and Services” The Kiwi Health software platform and practice management support and patient engagement modules (collectively, the “App”) designed to help private healthcare practices to grow and expand their services.

k. “Support Services” means the support services related to the App, as described in the applicable Order Form and Service Agreement.

2. App and Services. Company shall provide to Customer the App and Services as described in the Order Form for the fees and in accordance with any other terms described on Order Forms as are executed from time to time by both Parties (collectively the “Services”). Should the Terms and Conditions conflict with the terms of any Order Form, the terms of the Terms and Conditions will control. Any change to an Order Form will be set forth in a change order that is mutually agreed upon and signed by the Parties (a “Change Order”).

a. License Grant.Company hereby grants to Customer and its Authorized Users, during the Service Term of the Order Form, a limited, revocable, non-exclusive, non-transferable right and license to access, use and display the App in accordance with the Documentation subject to any applicable terms of use for the App, solely for the Business Purpose set forth in the Order Form.

b. Restrictions. Customer will not: (a) reverse engineer, decompile, disassemble, or otherwise attempt to derive the source code form or structure of the App; (b) provide, lease or lend the App or Services to any third party; (c) remove any proprietary notices or labels displayed on the App; (d) create a derivative work of any part of the App; (e) intentionally use the App for any unlawful purpose or any purpose not contemplated by this Agreement; or (f) create Internet “links” to or from the App, or “frame” or “mirror” any of Company’s content which forms part of the App.

c. Support and Set-Up Services. Company will provide reasonable support, updates and maintenance for the App. Company will use commercially reasonable efforts to perform the set-up Services as set forth in or referenced by the applicable Order Form.

d. Acceptance of Services. In the event the set up or Support Services are not performed in accordance with this Agreement, Customer will notify Company in writing no later than thirty (30) calendar days after performance of the relevant Services. Customer’s notice will specify the basis for non-compliance with the Agreement and if Company agrees with the basis for non-compliance, then at Company’s sole option, Company will re-perform the set up or Support Services at no additional charge to Customer or refund to Customer the applicable fees for such Services. THE FOREGOING CONSTITUTES CUSTOMERS’ SOLE AND EXCLUSIVE REMEDY AND COMPANY’S SOLE AND EXCLUSIVE LIABILITY WITH RESPECT TO PERFORMANCE OR NONPERFORMANCE OF THE SET UP AND SUPPORT SERVICES.

e. Customer Data License Grant. Customer hereby grants to Company a limited, non-exclusive, royalty-free, worldwide license to use, reproduce, de-identify, aggregate and modify the Customer Data and to perform all acts with respect to the Customer Data as may be necessary for Company to provide the App and Services to Customer and to share de-identified Customer Data with third parties as authorized by Customer. Customer Data will be included in and treated as Customer’s Confidential Information under this Agreement.

f. Artificial Intelligence (AI) Use. Generative artificial intelligence (AI) and automation tools are integrated in the development and operation of the App and other products and services.

g. Company Developments. Except as otherwise set forth in this Agreement, all inventions, works of authorship, and developments conceived, created, written, or generated by or on behalf of Company, whether solely or jointly, including without limitation, in connection with the Company Services and App hereunder, (“Company Developments”) and all Intellectual Property Rights therein, shall be the sole and exclusive property of Company.

h. Downtime. Company shall use commercially reasonable efforts to provide to Customer the services in accordance with specifications and terms and conditions hereof, including to manage, operate and maintain the App for remote electronic access and use by Customer and its Authorized Users in substantial conformity with the terms hereof twenty-four (24) hours per day, seven days per week every day of the year, except for: (i) scheduled downtime; (ii) service downtime due to a Force Majeure Event; (iii) any other circumstances beyond Company’s reasonable control including Customer’s or any Authorized User’s misuse of the services or the use of the services other than in compliance with the express terms of this Agreement, and (iv) any suspension or termination of Customer’s or any Authorized User’s access to or use of the services as permitted by this Agreement.

3. Marketing Services.

Services to be Provided by Company. During the term of this Agreement, Company will provide to Customer certain marketing services in connection with Customer’s business only if selected by Customer. The marketing services may include the creation and management of ad campaigns, using third-party search engine technology, social media and online advertising platforms to promote Customer’s business.
Access to Information. Customer hereby agrees to provide to Company any and all information with respect to the Customer that Company determines is reasonably necessary or appropriate to provide the marketing services. Notwithstanding any obligation created by the foregoing sentence, Customer shall not be required to disclose to Company any confidential patient data or other information that may not be disclosed to Company under applicable law. Customer hereby grants Company the right and license to use the name, marks and logos of Customer, and other information, including but not limited to images, video images, other audio or visual recordings. Customer represents and warrants to Company that it owns all right, title and interest in and to the intellectual property rights, including all copyrights, trade secrets, trademarks, service marks, patents, and other proprietary rights provided to Company for the creation of the marketing campaigns (the “Client IP Rights”), and that the Client IP Rights do not infringe on any intellectual property rights of any third party. If applicable, in connection with marketing campaigns on Customer’s social media platforms, Customer hereby agrees to provide to Company with login credentials to their existing social media platforms to the extent such information is necessary for the provision of the marketing services by Company.
Use of Likeness. Customer hereby grants to the Company, its affiliated companies, and delegates, the right to use Customer’s name, professional biography and likeness in connection with the advertising, sale and/or marketing of the Company’s products or services, including the use on third party platforms, channels, websites, social media, and other forms of digital media as the Company deems appropriate, in its sole discretion, and without any further approval from Customer or any payment to Customer.
Review Gating. Customer’s use of the App cannot implement any form of review gating.
Third Party Sites. Customer agrees that, to the extent that Customer requests to be integrated with, or make use of data from, other websites or services (“Third Party Sites”), Customer agrees that Company does not have control over the terms of use, privacy policies, operation, intellectual property rights, performance, service levels or content of any Third Party Sites; and Company disclaims any and all responsibility and liability for any use of Third Party Sites. The services incorporate or make the use of certain third party software (“Third Party Software”), which is licensed subject to the terms and conditions of the third party licensing such Third Party Software. Nothing in this Agreement limits Customer's rights under, or grants Customer rights that supersede, the terms and conditions of any applicable license for such Third Party Software. Customer shall comply any applicable terms and conditions of Third Party Websites and Third Party Software. Failure to comply with Third Party Website terms and conditions, Company shall notify Customer upon receipt of written notice from a Third Party Website or service provider. In the event Customer fails to comply with such terms and conditions of Third Party Website within 30 days from the notice to Customer (or such other time period specified in the written notice from the Third Party Website or service provider), Company shall suspend Customer’s account.

4. Additional Services. The parties may from time to time identify certain services which are not within the scope of the services as described herein, but which the parties anticipate that Customer may opt-in during the term of this Agreement. All additional services related to Klarity Health Inc. internet platform and services related to the platform shall be governed by the Platform Access and Services Agreement. Customer acknowledges and agrees that Company does not act as a delegated entity of any payer and does not perform credentialing, utilization review, prior authorization, claims processing, or any other payer-delegated function. Customer is solely responsible for complying with all applicable billing and insurance documentation requirements.

5. Customer Obligations.

a. Customer Systems. Customer is responsible for (a) obtaining, deploying and maintaining the Customer’s system, and all computer hardware, software, mobile devices, modems, routers and other communications equipment necessary for Customer’s Authorized Users to access and use the App via the Internet; (b) contracting with third party ISP, telecommunications and other service providers to access and use the App via the Internet; and (c) paying all third party fees and access charges. Customer is solely responsible for any liability, loss or damages arising from its Authorized Users and the use of the login credentials it generates.

b. Onboarding/Implementation. Customer understands, acknowledges and agrees that onboarding and implementation of the Services may take up to 3 hours over a four (4) week period of time. Customer’s reasonable and timely participation in the onboarding process is a vital component of delivering the Services and any delays in this process caused by Customer will not affect the term of the Agreement and will not provide a basis for non-payment or termination.

c. Authorized User Terms. To access the Services, each Authorized User will be required to accept the individual user terms shown when they first access the Services. Customer is solely responsible for (a) promptly deactivating any individual that should no longer be an Authorized User and (b) the permission levels and modules that it assigns to each Authorized User.

d. Company will not be responsible for supplying any hardware, software or other equipment to Customer under this Agreement.

e. Customer will invite Patients to log into the App, and Company will generate unique login credentials for each Authorized User, including Patients. Customer will prohibit Authorized Users from disclosing their login credentials to others, and will immediately notify Company of any unauthorized access to the App or any other breach of security or user privacy and any known violation of this Agreement by any Authorized User.

f. Customer is solely responsible for any liability, loss or damages arising from its Authorized Users.

g. Consents. Customer will obtain all necessary consents and authorizations to enable Company to use, upload, process, store, de-identify and share with authorized third parties the Customer Data using the App.

h. Terms of Use. Customer will and will ensure all of its employee and healthcare provider Authorized Users accept and abide by the Terms of Use applicable to the App. Company reserves the right to terminate the access of any Authorized User that it reasonably believes is not a properly Authorized User, is violating the requirements of this Agreement, Terms of Use or is otherwise misusing the Services.

6. Proprietary Rights.

a. Company Intellectual Property. As between the Parties, Company shall own all right, title and interest, including all Intellectual Property Rights, in and to the App, Services, Company Data, Company Developments, Documentation, and any other Company property or materials furnished or made available hereunder, and all modification and enhancements thereof, belong to and are retained solely by Company.

b. Trademarks. Nothing in this Agreement shall grant any Party any ownership interest, license or other right to any other party’s trade names, trademarks or service marks.

c. Customer Data. As between the Parties, Customer shall own all right, title and interest, including all Intellectual Property Rights, in and to the Customer Data.

d. Feedback License. Customer hereby grants Company a royalty-free, worldwide, transferable, sublicenseable, irrevocable, perpetual license to use or incorporate into the App any suggestion, enhancement, request, recommendation, or other feedback related to the App provided by Customer (any “Feedback”). Feedback shall not be considered Customer’s Confidential Information pursuant to this Agreement.

7. Fees and Payment. The fees paid by Customer under this Agreement are set forth in the Order Form. Company may increase the fees after the first contract term, by providing written notice to Customer at least 30 calendar days prior to the commencement of the renewal term and the Order Form shall be deemed amended accordingly.

a. Payments. Subscription fees are due monthly on the first day of the month.

b. Late Payments. If payment is not made within the time set forth in the Order Form or within thirty (30) days of receipt of the invoice, whichever is applicable, then (a) Company may charge Customer a late charge of 1.5% per month or the maximum lawful rate, and (b) Company may suspend Customer’s access to the App and Services until Customer is current on payments. Customer is solely responsible for payment of any federal, state or local excise, sales, use or similar taxes assessed with respect to this Agreement.

c. Reasonable Fair Market Value. Payment of the fees is acknowledged as the reasonable fair market value of the services furnished by Company pursuant to the Agreement for its marketing and software services expertise.

d. No Referrals Required. The parties agree that no provision of this Agreement shall be construed to induce or encourage the referral of patients or the purchase of healthcare services or supplies. The parties acknowledge that there is no requirement under this Agreement or any other agreement, between Company and Customer or any third party that Company refer any patient, or influence the referral of any patient, to the Customer for the provision of any healthcare services or supplies. No payment under this Agreement is in return for the referral of patients to the Customer or in return for purchasing or ordering of healthcare services or supplies from the Customer.

Per-Transaction Fees. For Customers using the App to facilitate payment transactions, Company may assess an application fee equal to a percentage of the total billed charges for each transaction booked through the App. These fees are assessed in addition to subscription charges and will be disclosed to Customer in advance via the App or supplemental documentation.

8. Confidentiality.

a. Definition. In connection with this Agreement, each Party (a “Disclosing Party”) may disclose its confidential or proprietary information to the other Party (a “Receiving Party”). Subject to the exceptions listed below, a Disclosing Party’s “Confidential Information” shall be defined as such information disclosed by or on behalf of the Disclosing Party to the Receiving Party under this Agreement and during its term that is actually treated by the Disclosing Party as confidential and either: (i) is clearly marked or otherwise clearly designated as confidential or proprietary; (ii) is described in this Section 6(a); or (iii) should be reasonably understood by the Receiving Party to be the confidential or proprietary information of the Disclosing Party. Company’s Confidential Information includes the App, Services, Documentation, and Company Data. Customer’s Confidential Information includes Customer Data.

b. Obligations of Confidentiality. During the term of this Agreement and after its expiration or termination, each Party shall keep the Confidential Information of the other Party in strict confidence and neither Party may use or otherwise disclose the other Party’s Confidential Information to any third Party without the prior written consent of the Disclosing Party. Each Party may use and disclose the Confidential Information of the other Party to its employees or subcontractors to the limited extent necessary to permit such Party to perform its obligations under the Agreement, provided that each third Party to whom Receiving Party discloses such Confidential Information is bound by obligations of confidentiality with respect to such Confidential Information that are consistent with this Section. In the case of subcontractors all such obligations of confidentiality shall be in a written agreement prior to the disclosure. Each Party shall be responsible for the actions and omissions of employees and subcontractors to whom they disclose the other Party’s Confidential Information to the same extent as if such actions or omissions were their own. Upon the termination of this Agreement, each Party shall return to the other Party or destroy all Confidential Information of such other Party in its possession, custody or control.

c. Exceptions. Confidential Information shall not include any information that: (i) is or becomes publicly available through no wrongful act of the Receiving Party; (ii) the Receiving Party can demonstrate was in the Receiving Party’s possession free of any obligation of confidentiality at the time of the Disclosing Party’s communication thereof to the Receiving Party; (iii) becomes known to the Receiving Party directly or indirectly from a source other than one having an obligation of confidentiality; or (iv) is developed by the Receiving Party completely independent from the Confidential Information of the Disclosing Party. Notwithstanding any provision in this Section to the contrary, in the event that Receiving Party becomes obligated by mandatory applicable law, regulatory rule or judicial or administrative order to disclose Disclosing Party’s Confidential Information, or any portion thereof, Receiving Party shall notify Disclosing Party thereof, so that the Disclosing Party may seek an appropriate protective order or other, similar remedy or relief with respect to resisting or narrowing the scope of such disclosure. In the absence of such a protective order or other remedy or relief, Receiving Party may disclose such Confidential Information, provided that Receiving Party furnishes only such portion of the Confidential Information as it is legally required to disclose.

d. Equitable Relief. Both Parties agree that any breach of the confidentiality obligations under this Section may result in irreparable damage for which there is no adequate remedy at law. Therefore, it is agreed that the non-breaching Party shall be entitled to equitable relief, without the necessity of posting a bond or other undertaking, including permanent injunctive relief enjoining such breach, by a court of competent jurisdiction, in addition to whatever remedies it may have at law.

e. HIPAA Applicability. The Business Associate Agreement (“BAA”) attached as Exhibit A governs the use and disclosure of your Patient’s personal health information, which is hereby incorporated by reference into this Agreement. If there is a conflict between the terms of the BAA and these Terms and Conditions, the terms of the BAA will govern.

9. Warranties and Representations; Limitations.

a. Company. Company represents and warrants to Customer that (i) it has the power and authority to enter into and perform this Agreement; (ii) the execution, delivery and performance of this Agreement will not violate any applicable law, rule or regulation by which Company is bound; (iii) during the Service Term of the Order Form, the App will perform substantially in compliance with the Documentation; and (iv) it will use commercially reasonable efforts to operate and maintain the Services.

b. Customer. Customer represents and warrants to Company that: (i) Customer has the power and authority to enter into and perform this Agreement; (ii) the execution, delivery and performance of this Agreement and Customer’s provision of the Customer Data will not violate any applicable contract, law, rule or regulation to which Customer is bound; (iii) if applicable, the Patient Authorized Users are patients of Customer; and (iv) the information provided to Company, including but not limited information with respect to Customer’s professional licenses, permits, certifications, credentials and other qualifications as required by law to conduct Customer’s business and to provide health care services are true and correct. Customer acknowledges that Company relies on the information provided by Customer and the warranties and representations hereto. Notwithstanding anything to the contrary, Company may request additional information about Customer to verify the information provided by Customer related to Customer’s licenses, certifications or other authorizations required to perform healthcare services and Customer agrees to provide such additional information.

c. Practice of Medicine Disclaimer. CUSTOMER HEREBY AGREES AND ACKNOWLEDGES THAT COMPANY IS IN NO WAY ACTING AS A MEDICAL PROVIDER WITH RESPECT TO ANY MEMBER. CUSTOMER FURTHER ACKNOWLEDGES AND AGREES THAT THE INFORMATION, PROCESSES, PRODUCTS AND OTHER ITEMS REFERENCED BY COMPANY OR ITS APP ARE NOT INTENDED AS A RECOMMENDATION OR ENDORSEMENT OF ANY COURSE OF TREATMENT, INFORMATION, OR PRODUCT, OR TO BE USED AS A MEDICAL DEVICE. CUSTOMER IS RESPONSIBLE FOR ITS EMPLOYEES AND HEALTHCARE PROFESSIONALS WITH RESPECT TO WORKING WITHIN THEIR PERMITTED SCOPE OF PRACTICE, AND COMPANY DISCLAIMS ALL LIABILITY FOR (I) ANY SERVICES, ADVICE, COURSE OF TREATMENT, DIAGNOSIS, OR ANY OTHER INFORMATION THAT ANY PATIENT OR OTHER INDIVIDUAL MAY OBTAIN OR RECEIVE FROM CUSTOMER OR (II) THE ACCURACY, COMPLETENESS, OR SUITABILITY OF ANY DATA OR INFORMATION USED IN ANY HEALTHCARE ACTIVITIES.

d. Warranty Disclaimer. ALL SERVICES, INFORMATION AND DATA ARE PROVIDED “AS IS,” AND EXCEPT AS SPECIFICALLY PROVIDED IN THIS SECTION 7, COMPANY MAKES NO WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, QUALITY, NON-INFRINGEMENT OR ACCURACY.

THE ENTIRE RISK ARISING OUT USE OF THE COMPANY SERVICES AND APP, INCLUDING, WITHOUT LIMITATION, ANY INFORMATION, DATA, PRODUCTS, PROCESSES, AND OTHER MATTERS REFERENCED BY THE COMPANY SERVICES AND APP, REMAINS WITH THE CUSTOMER. COMPANY DOES NOT WARRANT OR MAKE ANY REPRESENTATION REGARDING (A) THE USE OR THE RESULTS OF THE USE OF ITS SERVICES AND APP IN TERMS OF CORRECTNESS, ACCURACY, RELIABILITY OR OTHERWISE, OR (B) THE ACCURACY OF PROCESSES, IMAGES, INFORMATION OR OTHER DATA PROVIDED BY THE SERVICES AND APP. THE INFORMATION PROVIDED BY OR THROUGH THE SERVICES OR APP, IS INTENDED AS A SUPPLEMENT TO, AND NOT A SUBSTITUTE FOR, THE KNOWLEDGE, SKILL AND JUDGMENT OF HEALTHCARE PROFESSIONALS.

EXCEPT AS EXPRESSLY PROVIDED HEREIN, COMPANY DOES NOT GUARANTEE CONTINUOUS, ERROR-FREE, VIRUS-FREE OR SECURE OPERATION AND ACCESS TO THE APP. COMPANY SHALL NOT BE LIABLE FOR ANY DAMAGE CAUSED BY THE INTERACTION OF THE APP WITH ANY DEVICE OR ANY INFORMATION TECHNOLOGY INFRASTRUCTURE OF CUSTOMER.

e. Artificial Intelligence Disclaimer. . Generative artificial intelligence (AI) and automation tools are integrated in the operation and performance of the App and other products to improve Customer and user experiences for better business outcomes. Company makes no representations that the App and/or other product’s output is human-generated.

f. Limitation of Liability. IN NO EVENT WILL COMPANY, ITS AFFILIATES, OR ITS OR THEIR RESPECTIVE DIRECTORS, OFFICERS, EMPLOYEES, AGENTS, SUCCESSORS OR ASSIGNS, BE LIABLE TO CUSTOMER, PATIENT, OR ANY THIRD PARTY FOR ANY LOST PROFITS, LOST DATA, INTERRUPTION OF BUSINESS, OR OTHER SPECIAL, INDIRECT, PUNITIVE, INCIDENTAL, OR CONSEQUENTIAL DAMAGES OF ANY KIND, WHETHER IN CONTRACT, TORT (INCLUDING WITHOUT LIMITATION NEGLIGENCE) OR OTHERWISE, ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, AND WHETHER OR NOT CUSTOMER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE. IN NO EVENT SHALL COMPANY BE LIABLE IN THE AGGREGATE FOR ANY CLAIMS OR DAMAGES IN ANY AMOUNT EXCEEDING THE AMOUNTS CUSTOMER HAS PAID TO COMPANY UNDER THE APPLICABLE ORDER FORM DURING THE TWELVE MONTHS PROCEEDING SUCH CLAIM OR DAMAGES.

10. Indemnification.

a. Each Party agrees to defend, indemnify and hold harmless the other Party and its affiliates, officers, directors, employees, contractors and agents from and against any liability and costs, including reasonable attorney’s fees, incurred in connection with any claim arising out of the gross negligence or willful misconduct of the indemnifying Party or other employee or agent of the indemnifying Party in the performance of this Agreement.

b. Customer Indemnification. Customer shall defend, indemnify and hold Company and its directors, officers, employees, agents and successors harmless from and against any and all losses, claims, actions, damages, liabilities, costs and expenses (including reasonable attorneys’ fees and expenses) (collectively, “Losses”), or portions thereof, arising out of or resulting directly or indirectly from (i) Customer’s use of the App, Services, or Company Data other than as permitted under this Agreement; (ii) Customer’s breach of this Agreement; (iii) violation of any applicable law, rule or regulation by Customer; and (iv) any services provided by Customer’s employees or healthcare professionals.

c. Indemnification Process. If any action will be brought against either Party in respect to any allegation for which indemnity may be sought from the Indemnifying Party, the Indemnitee will promptly notify the Indemnifying Party of any such claim of which it becomes aware and will: (i) provide reasonable cooperation to the Indemnifying Party at that Party’s expense in connection with the defense or settlement of any such claim; and (ii) be entitled to participate at its own expense in the defense of any such claim. The Indemnifying Party will have sole and exclusive control over the defense and settlement of any such claim. However, Indemnitee will not acquiesce to any judgment or enter into any settlement that adversely affects its rights or interests without its prior written consent, which such consent shall not be unreasonably withheld.

11. Termination.

a. Termination. Either Party may terminate this Agreement (i) upon written notice to the other Party, if the other Party is in breach of any material obligation under this Agreement and fails to cure such breach within thirty (30) business days after written notice thereof from the terminating Party or (ii) upon 30 days written notice to the other Party.

b. Effect of Termination.

i. Unless otherwise stated below, upon expiration or termination of this Agreement for any reason, (a) the license to the App shall terminate and the Customer and its Patients shall not use or access, directly or indirectly, the App or any Documentation; (b) Company’s obligation to perform Support Services shall cease; and (c) all fees and other amounts owed to Company will be immediately due and payable by Customer up through the effective date of termination for any Support Services or set up Services completed. Customer shall pay the pro-rated portion of the fees for any partially completed set up Services.

ii. If Customer has made any copies of any App, Documentation, or any other Company property or materials furnished or made available hereunder, Customer shall either destroy or return to Company all such copies along with a certificate signed by Customer that all such copies have been either destroyed or returned, respectively, and that no copy or any part of the App, data or materials has been retained by Customer in any form.

iii. Within thirty (30) days after the effective date of applicable termination or expiration, Company will make any Customer Data stored on the App available for download by Customer for a period of thirty (30) days in the format in which it is stored in the App. Except as required by law, after such 30- day period, Company will have no obligation to maintain or provide any Customer Data and may thereafter delete all Customer Data in its systems or otherwise in its possession or under its control, including but not limited to Customer’s online directory listings and account information. Customer acknowledges and agrees that it is solely responsible for retaining any data, information or content related to its account prior to the termination, to the extent Customer is entitled to such data, information, or content.

12. Audit. Customer will maintain records reasonably sufficient to document and record its compliance with the terms and conditions of this Agreement. Company shall have the right to audit such records upon not less than ten (10) business days’ prior written notice, not more often than one time per calendar quarter hereunder, to confirm compliance with this Agreement.

13. Insurance. Company will maintain contracts of insurance sufficient to ensure its ability to reasonably discharge its obligations hereunder.

14. Miscellaneous.

a. Relationship of the Parties. Company is an independent contractor of Customer hereunder, and nothing herein shall be deemed to create a partnership, joint venture, employment, or similar relationship.

b. Assignment. This Agreement shall be binding upon and inure to the benefit only of the Parties hereto and their respective successors and permitted assigns. Company may subcontract its obligations hereunder to a third party or affiliate and may assign to a successor in interest. Customer may not assign this Agreement nor any of its rights, duties or obligations hereunder without the prior written consent of Company.

c. Governing Law and Choice of Forum. The construction, interpretation and performance of this Agreement and all transactions under this Agreement shall be governed and enforced pursuant to the laws of the State of Delaware, without giving effect to its conflicts of laws provisions, except to the extent such law is preempted by any provision of federal law. The parties agree that all disputes arising out of or relating to this Agreement will be subject to mandatory binding arbitration under the rules of Judicial Administration and Arbitration Services (“JAMS”) in effect at the time of submission, as modified by this Section.

d. Arbitration. The arbitration will be heard and determined by a single arbitrator selected by mutual agreement of the parties, or, failing agreement within thirty (30) days following the date of receipt by the respondent of the claim, by JAMS. Such arbitration will take place in the state of Delaware. The arbitration award so given will be a final and binding determination of the dispute, and will be fully enforceable in any court of competent jurisdiction. Except in a proceeding to enforce the results of the arbitration or as otherwise required by law, neither party nor any arbitrator may disclose the existence, content or results of any arbitration hereunder without the prior written agreement of both parties.

e. Force Majeure. Neither Party shall be liable for any default or delay in the performance of any of its obligations under this Agreement if such default or delay is caused, directly or indirectly, by fire, flood, earthquake, the elements, or other such occurrences; labor disputes, strikes or lockouts; wars (declared or undeclared), rebellions or revolutions in any country; riots or civil disorder; accidents or unavoidable casualties; interruptions of transportation or communications facilities or delays in transit or communication; supply shortages; laws, treaties, agreements, embargoes, actions, inactions, rulings, regulations, decisions or requirements, whether valid, invalid, formal or informal, of any government, tribunal or governmental agency, board or official; litigation to which either Party may be a party relating to any rights of such Party in any patents, licenses, trademarks, service marks, or trade names; or any other cause, whether similar or dissimilar to those enumerated herein, beyond that Party’s reasonable control. The Party experiencing a default or delay caused by any of the above circumstances shall notify the other Party of any such contingency within a reasonable period of time.

f. Waiver. Except as otherwise specified in this Agreement, this Agreement may be amended or supplemented only by a writing that refers explicitly to this Agreement and that is signed on behalf of both Parties. No waiver will be implied from conduct or failure to enforce rights. No waiver will be effective unless in a writing signed on behalf of the party against whom the waiver is asserted. If any of this Agreement is found invalid or unenforceable that term will be enforced to the maximum extent permitted by law and the remainder of the Agreement will remain in full force.

g. Notices. All notices and other communications required or permitted to be given or made hereunder shall be in writing and delivered personally or sent by pre-paid, first class, certified or registered mail, return receipt requested, email, or by facsimile transmission addressed to the intended recipient thereof at the address appearing on the Order Form. Any such notice or communication shall be deemed to have been duly given immediately (if given or if made by confirmed facsimile), or five days after mailing. Any Party may change the address or facsimile number to which notices, demands or other communications shall be mailed or sent by giving notice to the other Party in the manner provided herein.

a. If to Klarity:

Klarity Health, Inc.
100 Broadway Street, PO Box 5098

Redwood City, CA 94063

ATTN: Compliance
Email: compliance@helloklarity.com

b. If to Client: To the contact information stated in the Order Form.

h. Headings. The headings describing the contents of sections are inserted only for convenience and shall not be construed as a part of this Agreement or as a limitation on or enlargement of the scope of any of the terms or provisions of this Agreement.

i. Severability. All rights and restrictions contained herein may be exercised and shall be applicable and binding only to the extent that they do not violate any applicable laws and are intended to be limited to the extent necessary so that they will not render this Agreement illegal, invalid or unenforceable. If any term of this Agreement shall be held to be illegal, invalid or unenforceable by a court of competent jurisdiction, it is the intention of the Parties that the remaining terms shall constitute their agreement with respect to the subject matter of this Agreement, and all such remaining terms shall remain in full force and effect.

j. No Third-Party Beneficiaries. The Parties hereto do not intend to, and do not, by executing this Agreement, confer any benefit upon any person other than the Parties hereto and their permitted successors and assigns.

k. Publicity. Neither Party may make any public statement about this Agreement or the subject matter thereof, including without limitation a press release, without the prior written consent of the other Party. Notwithstanding the foregoing, upon the execution of this Agreement, Company may include Customer’s name and logo among the list of customers on Company’s website and in its marketing materials; provided, however, that Company will not, without Customer’s consent, present such name in a manner that appears to constitute an endorsement.

l. Compliance with Laws. Customer shall comply with all applicable laws and regulations that are relevant to its use of the App, the services provided herein, and in connection with its performance under this Agreement, as applicable.

m. Survival. The following provisions will survive any termination or expiration of this Agreement: Sections 2(b) (Restrictions), 2(f) (Company Developments), 4 (Proprietary Rights), 5 (Fees and Payments), 6 (Confidentiality), 7(d) (Warranty Disclaimer), 7(e) (Limitation of Liability), 12 (Miscellaneous), and any other provision of this Agreement that must survive to fulfill its essential purpose.

n. Entire Agreement. This Agreement including its exhibits and any amendments supersedes all prior discussions and agreements between the Parties with respect to the subject matter hereof, and this Agreement contains the sole and entire agreement between the Parties with respect to the matters covered hereby. Should the terms of the body of this Agreement conflict with the terms of any attachment or exhibit to this Agreement, the terms of the body of this Agreement will control. Any future exhibits or attachments shall be deemed incorporated into to this Agreement when signed by both Parties.

o. Electronic Signatures. This Agreement may be electronically signed, and any electronic signatures appearing on this Agreement are the same as handwritten signatures for the purposes of validity, enforceability, and admissibility.

EXHIBIT A

a) BUSINESS ASSOCIATE AGREEMENT

Company and Customer entered into the SAAS ORDER FORM AND TERMS AND CONDITIONS AGREEMENT, pursuant to which Company provides Customer access to certain products and services that implicate HIPAA. For purposes of the Services Agreement, Customer is a Covered Entity and Company is Business Associate of Customer.

b) RECITALS:

WHEREAS, Business Associate has entered into an agreement with Covered Entity for the purposes of performing certain services for Covered Entity (the terms and conditions of such agreement between the parties hereinafter referred to as the “Services Agreement”);

WHEREAS, pursuant to the Administrative Simplification provisions of the Health Insurance Portability and Accountability Act of 1996 (the “Act”), 42 C.F.R. Part 2, and the “Health Information Technology for Economic and Clinical Health Act,” part of the “American Recovery and Reinvestment Act of 2009” (“HITECH Act”), the Department of Health and Human Services (“HHS”) has promulgated regulations at 45 C.F.R. Parts 160-64, including regulations implementing certain privacy requirements (the “Privacy Rule”), certain security requirements regarding electronic media (“Security Rule”) and certain breach notification requirements (“Breach Notification Rule”), each as amended from time to time (the Act, HITECH Act, the Privacy Rule, the Security Rule and the Breach Notification Rule referred to collectively herein as “HIPAA”);

WHEREAS, Business Associate may receive, maintain, retain, record, store, transmit, hold, use and/or disclose Protected Health Information (as defined below) in conjunction with the services being provided under the Services Agreement, thus necessitating a written agreement that meets applicable requirements of the Privacy Rule and the Security Rule, and making advisable certain additional agreements regarding HIPAA; and

WHEREAS, Business Associate and Covered Entity desire to satisfy the foregoing Privacy Rule and Security Rule requirements through this Agreement, and otherwise to address related matters regarding HIPAA on the terms and conditions set forth herein.

NOW THEREFORE, in consideration of the mutual agreements and undertakings of the parties, and for other good and valuable consideration the sufficiency of which is hereby acknowledged, the parties, intending to be legally bound, hereby agree as follows:

c) ARTICLE I

d) DEFINITIONS

The following terms have the following meanings when used in this Agreement:

“Breach” has the same meaning as the term “breach” in 45 C.F.R. § 164.402.
“Designated Record Set” has the same meaning as the term “designated record set” in 45 C.F.R. § 164.501.
“Electronic Protected Health Information” means Protected Health Information that is “electronic protected health information” as defined in 45 C.F.R.§ 160.103.
“Individual” has the same meaning as the term “individual” in 45 C.F.R. §160.103 and includes a person who qualifies as a personal representative in accordance with 45 C.F.R. §164.502(g).
“Protected Health Information” has the same meaning as the term “protected health information” in 45 C.F.R. § 160.103, except limited to the information received from Covered Entity, or created, maintained or received on behalf of Covered Entity.
“Unsecured Protected Health Information” means Protected Health Information that is “unsecured protected health information” as defined in 45 C.F.R. § 164.402.
“Required By Law” has the same meaning as the term “required by law” in 45 C.F.R. § 164.103.
“Secretary” means the Secretary of HHS or the designee of the Secretary of HHS.
“Subcontractor” has the same meaning as the term “subcontractor” in 45 C.F.R. §160.103, except limited to any such individual or entity who creates, receives, maintains, or transmits Protected Health Information on behalf of Business Associate.
Any capitalized term not specifically defined herein shall have the same meaning as is set forth in 45 C.F.R. Parts 160 and 164, where applicable. The terms “use,” “disclose” and “discovery,” or derivations thereof, although not capitalized, shall also have the same meanings set forth in HIPAA.

e) ARTICLE II

f) OBLIGATIONS AND ACTIVITIES OF BUSINESS ASSOCIATE

Business Associate agrees to not use or disclose Protected Health Information other than as permitted or required by this Agreement or as Required By Law.

Business Associate agrees to use appropriate safeguards and comply, where applicable, with Subpart C of 45 C.F.R. Part 164 with respect to Electronic Protected Health Information, to prevent use or disclosure of the Protected Health Information other than as provided for by this Agreement.
Business Associate agrees to report to Covered Entity any use or disclosure of Protected Health Information not provided for by this Agreement, including, without limitation, Breaches of Unsecured Protected Health Information as required at 45 C.F.R. 164.410, and any Security Incident of which it becomes aware. The parties acknowledge and agree that this Section 3 of this Article II constitutes notice by Business Associate to Covered Entity of the ongoing existence and occurrence of attempted but unsuccessful Security Incidents for which no additional notice to Covered Entity shall be required. Unsuccessful Security Incidents shall include, but not be limited to, pings and other broadcast attacks on Business Associate’s firewall, port scans, unsuccessful log-on attempts, denials of service and any combination of the above, so long as such incidents do not result, to the extent Business Associate is aware, in unauthorized access, use or disclosure of Electronic Protected Health Information.

In accordance with 45 C.F.R. 164.502(e)(1)(ii) and 164.308(b)(2), if applicable, Business Associate agrees to ensure that any Subcontractors that create, receive, maintain, or transmit Protected Health Information on behalf of Business Associate agree in writing to the same restrictions, conditions, and requirements that apply to Business Associate under this Agreement with respect to such Protected Health Information.

Business Associate agrees to make available Protected Health Information in a Designated Record Set to Covered Entity as necessary to satisfy Covered Entity’s obligations under 45 C.F.R. § 164.524.
Business Associate agrees to make any amendment(s) to Protected Health Information in a Designated Record Set as directed or agreed to by Covered Entity pursuant to 45 C.F.R. § 164.526, or take other measures as necessary to satisfy Covered Entity’s obligations under 45 C.F.R. § 164.526.
Business Associate agrees to maintain and make available the information required to provide an accounting of disclosures to Covered Entity as necessary to satisfy Covered Entity’s obligations under 45 C.F.R. § 164.528.

To the extent that Business Associate is to carry out one or more of Covered Entity’s obligations under Subpart E of 45 C.F.R. Part 164, Business Associate agrees to comply with the requirements of Subpart E that apply to Covered Entity in the performance of such obligations.

Business Associate agrees to make its internal practices, books, and records available to the Secretary for purposes of determining compliance with HIPAA.

Business associate that acknowledges that, to the extent Covered Entity is subject to 42 C.F.R. Part 2, in receiving, storing, processing, or otherwise dealing with any patient records from Covered Entity, Business Associate is fully bound by the regulations of 42 C.F.R. Part 2 and, if necessary, at Covered Entity’s cost, will resist in judicial proceedings any efforts to obtain access to patient identifying information related to substance use disorder diagnosis, treatment, or referral for treatment except as permitted by 42 C.F.R. Part 2.

g) ARTICLE III

h) PERMITTED USERS AND DISCLOSURES BY BUSINESS ASSOCIATE

Business Associate may use or disclose Protected Health Information as necessary to perform the Services Agreement. In addition, Business Associate is authorized to use Protected Health Information to de-identify the Protected Health Information in accordance with 45 C.F.R. 164.514(a)-(c).

Business Associate may use or disclose Protected Health Information as Required By Law.

Business Associate agrees to make uses and disclosures and requests for Protected Health Information consistent with Covered Entity’s minimum necessary policies and procedures.

Business Associate may not use or disclose Protected Health Information in a manner that would violate Subpart E of 45 C.F.R. Part 164 if done by Covered Entity, except for the specific uses and disclosures set forth in Sections 5, 6 and 7 of this Article III.

Business Associate may use Protected Health Information for the proper management and administration of the Business Associate or to carry out the legal responsibilities of the Business Associate.

Business Associate may disclose Protected Health Information for the proper management and administration of the Business Associate or to carry out the legal responsibilities of the Business Associate, provided the disclosures are Required By Law, or Business Associate obtains reasonable assurances from the person to whom the information is disclosed that the information will remain confidential and used or further disclosed only as Required By Law or for the purposes for which it was disclosed to the person, and the person notified Business Associate of any instances of which it is aware in which the confidentiality of the information has been breached.

Business Associate may provide Data Aggregation services relating to the Health Care Operations of Covered Entity.

i) ARTICLE IV

j) OBLIGATION OF COVERED ENTITY

Covered Entity shall notify Business Associate of any limitation(s) in the notice of privacy practices of Covered Entity under 45 C.F.R. 164.520, to the extent that such limitation may affect Business Associate’s use or disclosure of Protected Health Information.

Covered Entity shall notify Business Associate of any changes in, or revocation of, the permission by an Individual to use or disclose his or her Protected Health Information, to the extent that such changes may affect Business Associate’s use or disclosure of Protected Health Information.

Covered Entity shall notify Business Associate of any restriction on the use or disclosure of Protected Health Information that Covered Entity has agreed to or is required to abide by under 45 C.F.R. 164.522, to the extent that such restriction may affect Business Associate’s use or disclosure of Protected Health Information.

Except with respect to uses and disclosures by Business Associate of Protected Health Information under Sections 5, 6, and 7 of Article III, Covered Entity shall not request Business Associate to use or disclose Protected Health Information in any manner that would not be permissible under Subpart E of 45 C.F.R. Part 164 if done by Covered Entity.

k) ARTICLE V
TERM AND TERMINATION

Term. The Term of this Agreement commences as of the Effective Date and shall terminate upon the termination of the Services Agreement or on the date Covered Entity terminates this Agreement for cause as authorized in Section 2 of this Article V, whichever is sooner.

Termination for Cause. Business Associate authorizes termination of this Agreement by Covered Entity upon written notice to Business Associate if Covered Entity determines Business Associate has violated a material term of this Agreement and Business Associate has not cured the breach or ended the violation within thirty (30) days of Covered Entity providing written notice thereof to Business Associate.

Obligations of Business Associate upon Termination. Upon termination of this Agreement for any reason, Business Associate shall:

l) Retain only that Protected Health Information which is necessary for Business Associate to continue its proper management and administration or to carry out its legal responsibilities;

m) Return to Covered Entity or Covered Entity’s designee (to the extent permitted by HIPAA), or, if agreed to by Covered Entity, destroy all remaining Protected Health Information that the Business Associate still maintains in any form;

n) Continue to use appropriate safeguards and comply with Subpart C of 45 C.F.R. Part 164 with respect to Electronic Protected Health Information to prevent use or disclosure of the Protected Health Information, other than as provided for in this Section, for as long as Business Associate retains Protected Health Information;

o) Not use or disclose Protected Health Information retained by Business Associate other than for the purposes for which such Protected Health Information was retained and subject to the same conditions set out at Sections 5, 6, and 7, of Article , which applied prior to termination; and

p) Return to Covered Entity, or, if agreed to by Covered Entity, destroy Protected Health Information retained by Business Associate when it is no longer needed by Business Associate for its proper management and administration or to carry out its legal responsibilities.

Survival. The obligations of Business Associate under this Article V shall survive the termination of this Agreement.

q) ARTICLE VI

r) MISCELLANEOUS

Indemnity and Expenses. Business Associate shall indemnify Covered Entity from and against any and all claims, losses and liabilities arising out of or resulting from this Agreement (including, without limitation, enforcement of this Agreement), except claims, losses or liabilities resulting solely from Business Associate’s willful misconduct, gross negligence or violation of any law.

Regulatory References. A reference in this Agreement to a section in the Privacy Rule, the Security Rule, or to another provision of HIPAA means the provision as in effect or as amended.

Amendment. The parties agree to take such action as is necessary to amend this Agreement from time to time as is necessary for Covered Entity to comply with the requirements of HIPAA and any other applicable law.

Interpretation. Any ambiguity in this Agreement shall be resolved to permit compliance with HIPAA.

Governing Law and Disputes. The construction, interpretation and performance of this Agreement and all transactions under this Agreement shall be governed and enforced pursuant to the laws of the State of California, without giving effect to its conflicts of laws provisions, except to the extent California law is preempted by any provision of federal law, including HIPAA. The parties agree that all disputes arising out of or relating to this Agreement will be subject to mandatory binding arbitration under the rules of Judicial Administration and Arbitration Services (“JAMS”) in effect at the time of submission, as modified by this Section.. The arbitration will be heard and determined by a single arbitrator selected by mutual agreement of the parties, or, failing agreement within thirty (30) days following the date of receipt by the respondent of the claim, by JAMS. Such arbitration will take place in San Francisco, CA. The arbitration award so given will be a final and binding determination of the dispute, and will be fully enforceable in any court of competent jurisdiction. Except in a proceeding to enforce the results of the arbitration or as otherwise required by law, neither party nor any arbitrator may disclose the existence, content or results of any arbitration hereunder without the prior written agreement of both parties.

No Third Party Beneficiary. Nothing express or implied in this Agreement is intended to confer, nor shall anything herein confer, upon any person other than the parties and the respective successors or assigns of the parties, any rights, remedies, obligations, or liabilities whatsoever.

Controlling Provisions. In the event that it is impossible to comply with both the Services Agreement and this Agreement, the provisions of this Agreement shall control with respect to those provisions of each agreement that expressly conflict. This Agreement supersedes and replaces any prior business associate agreements between the parties, with respect to any actions of Business Associate after the Effective Date.

Effect. This Agreement shall be binding upon, and shall inure to the benefit of, the parties hereto and their respective successors, assigns, heirs, executors, administrators and other legal representatives.

Severability. In the event any provision of this Agreement is rendered invalid or unenforceable under any new or existing law or regulation, or declared null and void by any court of competent jurisdiction, the remainder of the provisions of this Agreement shall remain in full force and effect if it reasonably can be given effect.