MASTER SERVICES AGREEMENT

This Master Services Agreement (“Agreement”) is entered into as of the effective date of the initial Order Form (“Effective Date”) by and between Ginger.io of California Medical P.C., a California professional Corporation (“Ginger.io”), and the entity(ies) listed on the applicable Order Form (“Customer”). Customer and Ginger.io shall each be referred to individually as a “Party” and collectively as the “Parties”. In consideration of the mutual promises and covenants contained in this Agreement, the Parties agree as follows:

  1. SERVICES
    1. Ginger.io Services. Ginger.io is offering mental health services via a secure telehealth technology platform to Customer’s employees (“Employees”) pursuant to the Ginger.io end user Terms of Use, Privacy Policy, and other applicable end user terms and conditions (collectively, the “Terms”), and as further set forth in the applicable Order Form (collectively, the “ Services”). Customer desires that Ginger.io make the Services available to Employees who install the Ginger.io mobile application and otherwise satisfy the eligibility criteria for participation in the Services (“Participants”) pursuant to the Terms and subject to this Agreement.
    2. Eligibility. Only those Employees who Ginger.io, in its sole discretion, deems are within the scope of care provided by the Services shall be allowed to be Participants.
  2. GINGER.IO OBLIGATIONS
    1. Performance of Services. Ginger.io shall provide the Services in accordance with industry standards and in compliance with Applicable Law (as defined below). The Services provided to each Participant will be provided by Ginger.io pursuant to the Terms on an as-requested and as-available basis. Ginger.io shall determine the timing, method, details and means of performing the Services and administration of the Services.
    2. Provider Non-discrimination. Ginger.io will not differentiate, or discriminate against any Participant because of race, color, creed, national origin, ancestry, religion, sex, marital status, age, disability, sexual orientation, gender identity, or any other basis prohibited by law. Ginger.io shall not be required to provide any type or kind of service to Participants that it does not customarily provide to others within its scope of care.
  3. CUSTOMER’S OBLIGATIONS
    1. General Customer Assistance and Best Efforts. During the term of this Agreement, Customer shall, subject to Applicable Law, use its best efforts, including through Customer’s chief officers and management personnel, to assist Ginger.io in marketing to Employees.
    2. _Ginger.io Program Representations. Customer shall not make any representations or warranties concerning the Services except as set forth in the program materials provided by Ginger.io.
    3. Warranty. Each Party warrants to the other that it has full power and authority to enter into this Agreement and to contract with the other with respect to Employees as contemplated by this Agreement. Each Party also warrants to the other that the person signing this Agreement on its behalf has the authority to do so. Each Party shall indemnify, defend and hold the other and each of its respective affiliates, shareholders, officers, directors, employees and agents harmless from any and all damages or other losses resulting or arising from any breach of the indemnifying Party’s warranty under this Section 3.3.
    4. Subcontractors. Ginger.io may fulfill some of its duties under this Agreement through subcontractors. Hereinafter, subcontractors are referred to collectively as "subcontractors", and for purposes of this provision include, but are not limited to, affiliated companies, vendors and others that provide supplies, equipment, staffing, and other services to Participants at the request of, under the supervision of, and/or at the place of business of Ginger.io. Ginger.io shall assure the compliance of its subcontractors with the terms and conditions of this Agreement as applicable.
  1. COMPENSATION
    1. Compensation. Customer shall pay Ginger.io all fees specified in the applicable Order Form in accordance with the terms set forth in said Order Form. Some fees are based on Services purchased and not actual usage. Payment obligations are non-cancelable and fees paid are non-refundable. The number of Participants purchased cannot be decreased during the relevant term. To the extent Customer provides Ginger.io with a credit card for payment, Customer authorizes Ginger.io to charge such credit card for all Services listed in the Order Form for the initial term and any renewal terms.
    2. Invoicing. Payments by Customer to Ginger.io shall be paid no later than thirty (30) days after invoicing. To the extent payment is not made in full when due, the outstanding balance may accrue late interest at the rate of 1.5% of the outstanding balance per month, or the maximum rate permitted by law, whichever is lower. Additionally, Customer will be solely responsible for paying all fees and costs of collection for unpaid amounts due and owing, including reasonable attorneys’ fees.
  2. COMPLIANCE, DATA AND INSURANCE
    1. Compliance. Each Party hereby agrees to comply with all laws and regulations applicable to such Party in the performance of this Agreement, including without limitation the Health Insurance Portability and Accountability Act, as amended and all applicable security and privacy requirements promulgated thereby (“ Applicable Law”).
    2. Intellectual Property. Subject to Applicable Law, Customer acknowledges and agrees that Ginger.io or its licensors shall have the sole right, title and interest, including all intellectual property rights, in and to the Services, and all data and results collected by Ginger.io from Participants or otherwise generated through the Services (collectively, “Ginger.io IP ”). Customer acknowledges and agrees that it shall have no right, title or interest in any Ginger.io IP, and that any data or information that has been de-identified by Ginger.io shall be deemed Ginger.io IP and may be used for any lawful purpose, regardless of the source of such data or information, including but not limited to any and all uses permitted by HIPAA.
    3. Insurance. Ginger.io agrees, during the term of this Agreement, to carry insurance in customary and appropriate coverage amounts with respect to the Services.
  3. TERM AND TERMINATION
    1. Term. This Agreement will commence upon the Effective Date and continue for one (1) year unless otherwise terminated in accordance with the provisions of this Agreement. This Agreement shall automatically renew for additional 12-month periods, unless either Party gives the other notice of non-renewal at least sixty (60) days before the ned of the current term.
    2. Termination for Cause. If a Party materially breaches this Agreement, the other Party may terminate this Agreement by giving thirty (30) days prior written notice, provided that the material breach set forth in such notice is not cured to the reasonable satisfaction of the non-breaching party within such thirty (30) day period.
    3. Effects of Termination. Termination shall not relieve either Party of obligations incurred prior to the effective date of the termination. Any provisions that by their nature are intended to survive, shall survive the termination or expiration of this Agreement, including without limitation: Sections 4, 5.2, 6, 7, 8, 9, and 10.
  4. WARRANTY DISCLAIMER. EXCEPT FOR THE EXPRESS WARRANTy PROVIDED IN SECTION 3.3 ABOVE AND ANY WARRANTY THAT MAY BE provided to Participants in accordance with THE TERMS, GINGER.IO MAKES NO REPRESENTATION OR WARRANTY OF ANY KIND WHETHER EXPRESS, IMPLIED (EITHER IN FACT OR BY OPERATION OF LAW), OR STATUTORY, AS TO ANY MATTER WHATSOEVER. GINGER.IO EXPRESSLY DISCLAIM ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUALITY, ACCURACY, AND TITLE. GINGER.IO DOES NOT WARRANT AGAINST INTERFERENCE WITH THE ENJOYMENT OF SERVICES OR AGAINST INFRINGEMENT. GINGER.IO DOES NOT WARRANT THAT THE SERVICES ARE OR WILL BE ERROR-FREE OR THAT THE PROVISION OF THE SERVICES WILL BE SECURE OR UNINTERRUPTED. CUSTOMER WILL HAVE NO RIGHT TO MAKE OR PASS ON ANY REPRESENTATION OR WARRANTY ON BEHALF OF GINGER.IO TO ANY OTHER THIRD PARTY.
  5. CONFIDENTIAL INFORMATION
    1. Definition. “Confidential Information” means any proprietary information of a Party disclosed by one Party to the other Party that is in written, graphic, machine readable, oral, or other form and (i) is marked or declared “Confidential” or “Proprietary” or in some other manner to indicate its confidential nature, or (ii) based upon the facts and circumstances, is information a reasonable person would consider confidential.
    2. Exceptions. Confidential Information will not include any information that was publicly known and made generally available prior to the time of disclosure by the disclosing Party, becomes publicly known and made generally available after disclosure by the disclosing Party to the receiving Party through no action or inaction of the receiving Party, is already in the lawful possession of the receiving Party at the time of disclosure, is obtained by the receiving Party from a third party without a breach of such third party’s obligations of confidentiality, or is independently developed by the receiving Party without use of or reference to the disclosing Party’s Confidential Information.
    3. Non-Use and Non-Disclosure. Each Party will treat as confidential all Confidential Information of the other Party, not disclose such Confidential Information to any third party, except on a “need to know” basis to third parties that have signed a non-disclosure agreement containing provisions substantially as protective as the terms of this Section provided that the disclosing Party has obtained the written consent to such disclosure from the other Party, and will not use such Confidential Information except in connection with performing its obligations or exercising its rights under this Agreement. Each Party is permitted to disclose the other Party’s Confidential Information if required by law so long as the other Party, if legally permitted, is given prompt written notice of such requirement prior to disclosure.
    4. Confidentiality of Agreement. Customer shall not disclose the terms of this Agreement to any third party without the consent of Ginger.io, except as required by securities or other Applicable Laws. Notwithstanding the above provisions, each Party may disclose the terms of this Agreement in connection with the requirements of a public offering or securities filing, in confidence, to attorneys, accountants, banks, and financing sources and their advisors, in confidence, in connection with the enforcement of this Agreement or rights under this Agreement, or in confidence, in connection with a merger or acquisition or proposed merger or acquisition, or the like.
  6. LIMITATION OF LIABILITY
    1. Exclusion of Consequential and Related Damages. EXCEPT FOR A PARTY’S EXPRESS INDEMNIFICATION OBLIGATIONS OR ANY BREACH OF A PARTY’S CONFIDENTIALITY OBLIGATIONS HEREUNDER, NEITHER PARTY WILL, UNDER ANY CIRCUMSTANCES, BE LIABLE TO THE OTHER PARTY FOR CONSEQUENTIAL, INCIDENTAL, SPECIAL, PUNITIVE, OR EXEMPLARY DAMAGES ARISING OUT OF OR RELATED TO THE TRANSACTION CONTEMPLATED UNDER THIS AGREEMENT, INCLUDING BUT NOT LIMITED TO LOST PROFITS OR LOSS OF BUSINESS, EVEN IF SUCH PARTY IS APPRISED OF THE LIKELIHOOD OF SUCH DAMAGES OCCURRING.
    2. Limitation of Liability. EXCEPT FOR A PARTY’S EXPRESS INDEMNIFICATION OBLIGATIONS OR ANY BREACH OF A PARTY’S CONFIDENTIALITY OBLIGATIONS HEREUNDER, UNDER NO CIRCUMSTANCES WILL A PARTY’S TOTAL LIABILITY OF ANY KIND ARISING OUT OF OR RELATED TO THIS AGREEMENT (INCLUDING BUT NOT LIMITED TO WARRANTY CLAIMS), REGARDLESS OF THE FORUM AND REGARDLESS OF WHETHER ANY ACTION OR CLAIM IS BASED ON CONTRACT, TORT, OR OTHERWISE, EXCEED THE AMOUNT PAID BY CUSTOMER TO GINGER.IO UNDER THIS AGREEMENT IN THE TWELVE MONTHS PRECEEDING THE INCIDENT.
    3. Independent Allocations of Risk. EACH PROVISION OF THIS AGREEMENT THAT PROVIDES FOR A LIMITATION OF LIABILITY, DISCLAIMER OF WARRANTIES, OR EXCLUSION OF DAMAGES IS TO ALLOCATE THE RISKS OF THIS AGREEMENT BETWEEN THE PARTIES. THIS ALLOCATION IS REFLECTED IN THE AGREED UPON COMPENSATION AND IS AN ESSENTIAL ELEMENT OF THE BASIS OF THE BARGAIN BETWEEN THE PARTIES. EACH OF THESE PROVISIONS IS SEVERABLE AND INDEPENDENT OF ALL OTHER PROVISIONS OF THIS AGREEMENT, AND EACH OF THESE PROVISIONS WILL APPLY EVEN IF THE WARRANTIES IN THIS AGREEMENT HAVE FAILED OF THEIR ESSENTIAL PURPOSE.

Indemnification.

(a) Each Party (the “Indemnifying Party”) shall indemnify, defend (at the other Party’s request) and hold such other Party and its directors, members, managers, officers, employees, agents, representatives, heirs, successors and permitted assigns, as applicable (the “ Indemnified Parties”) harmless from and against any liability, loss, cost, expense, including, but not limited to, reasonable attorneys’ fees, claim, action, cause of action (collectively, “Losses”) from a third party resulting from: (i) any breach by the Indemnifying Party of this Agreement; and/or (ii) a violation of Applicable Law by the Indemnifying Party.

(b) As soon as is reasonably practicable after any Indemnified Party becomes aware of any claim that it has to recover Losses under this Agreement, such Indemnified Party shall notify the Indemnifying Party in writing, which notice shall describe the claim in reasonable detail, and shall indicate the amount (estimated, if necessary and to the extent feasible) of the claim. The failure of any Indemnified Party to promptly give the Indemnifying Party such notice shall not preclude such Indemnified Party from obtaining indemnification under this Agreement, except to the extent that such Indemnified Party’s failure has materially prejudiced the Indemnifying Party’s rights or materially increased its liabilities and obligations hereunder. In the event of a third party claim which is subject to indemnification under this Agreement, the Indemnifying Party shall promptly defend such claim by counsel of its own choosing, subject to the approval of the Indemnified Party, which approval shall not be unreasonably withheld, and the Indemnified Party shall reasonably cooperate with the Indemnifying Party in the defense of such claim including the settlement of the matter on the basis stipulated by the Indemnifying Party (with the Indemnifying Party being responsible for all amounts, costs and expenses of such settlement). Notwithstanding the foregoing, the Indemnifying Party shall not enter into any such settlement or compromise unless the Indemnifying Party shall have obtained a complete and unconditional release of the Indemnified Party. If the Indemnifying Party, within a reasonable time after notice of a claim, fails to defend the Indemnified Party, which in no event shall exceed thirty (30) days, the Indemnified Party shall be entitled to undertake the defense, compromise or settlement of such claim at the expense of and for the account and risk of the Indemnifying Party.

  1. GENERAL
    1. Independent Contractors. The relationship of the Parties established by this Agreement is that of independent contractors, and nothing contained in this Agreement should be construed to give either Party the power to act as an agent or direct or control the day-to-day activities of the other.
    2. Assignability and Binding Effect. Neither Party will assign its rights and obligations under this Agreement without the written consent of the other Party, except that a Party may, without the consent of the other Party, assign this Agreement to a successor to all or substantially all of its business that pertains to this Agreement, whether by merger, acquisition, operation of law, sale, or otherwise. Subject to the foregoing, this Agreement will be binding upon and inure to the benefit of the Parties and their successors and permitted assigns.
    3. Notices. Any notice required or permitted to be given under this Agreement will be effective if it is in writing and sent by electronic transmission (email) or by postal mail or courier. Either Party may change its address for receipt of notice by notice to the other Party in accordance with this Section. Notices are deemed given two business days following the date of mailing, one business day following delivery to a courier, and one business day following electronic transmission. The address for notice shall be that listed on the Order Form.
    4. Force Majeure. Nonperformance of either Party will be excused to the extent that performance is rendered impossible by strike (except that of the non-performing Party’s employees), fire, flood, governmental acts, civil unrest, act of terrorism, or any other reason where failure to perform is beyond the reasonable control of such Party.
    5. Governing Law and Litigation. This Agreement is governed by the laws of the state of California, without giving effect to provisions related to choice of laws or conflict of laws. Any dispute arising under or relating in any way to this Agreement will be resolved exclusively by final and binding arbitration in San Francisco, California under the rules of the American Arbitration Association, except that either Party may bring a claim related to intellectual property rights, or seek temporary and preliminary specific performance and injunctive relief, in any court of competent jurisdiction, without the posting of bond or other security. The Parties agree to the personal and subject matter jurisdiction and venue of the courts located in San Francisco, California, for any action related to this Agreement. The prevailing Party in any lawsuit arising from or relating to this Agreement is entitled to recover reasonable attorneys’ fees.
    6. Remedies Cumulative. The remedies provided to the Parties under this Agreement are cumulative and will not exclude any other remedies to which a Party may be lawfully entitled.
    7. Waiver and Severability. The waiver by either Party of any breach of this Agreement does not waive any other breach. The failure of any Party to insist on strict performance of any covenant or obligation under this Agreement will not be a waiver of such Party’s right to demand strict compliance in the future, nor will the same be construed as a novation of this Agreement. If an arbitrator or court of law holds any provision of this Agreement to be illegal, invalid or unenforceable, (a) that provision shall be deemed amended to provide the Party who would otherwise receive the benefit of such provision the maximum protection permitted by applicable law, and (b) the legality, validity and enforceability of the remaining provisions of this Agreement shall not be affected.
    8. Entire Agreement. This Agreement, including any exhibits, is the final and complete expression of all agreements between the Parties and supersedes all previous oral and written agreements regarding these matters.
    9. Execution in Counterparts and by Facsimile or Electronic (PDF) Transmission. The Agreement may be executed in counterparts, each of which will be deemed an original, but all of which taken together will constitute but one and the same instrument. The Agreement may be executed and delivered by facsimile or electronic (PDF) transmission and the Parties agree that such facsimile or electronic execution and delivery will have the same force and effect as delivery of an original document with original signatures, and that each Party may use such facsimile or electronic signatures as evidence of the execution and delivery of this Agreement by the Parties to the same extent that an original signature could be used.
    10. No Third-Party Beneficiaries. Nothing set forth in this Agreement is intended to nor shall be construed to confer any benefit or right of action upon any person or entity that is not a Party to this Agreement.

10.11 Amendment. This Agreement may be amended from time to time by ginger.io with notice to customer, and said amendment shall not take effect until thirty (30) days following the date of such notice.

10.12 Publicity. Ginger.io has the right to use Customer’s name and logo to list Customer as a customer on Ginger.io’s website and in Ginger.io’s marketing and/or publicity collateral and activities.

10.13 Government, Export Compliance and Anti-Corruption. The Services use a technology platform that is a “commercial item”, as that term is defined in 48 C.F.R. 2.101 (Oct. 1995), consisting of "commercial computer software" and "commercial computer software documentation," as such terms are used in 48 C.F.R. 12.212 (Sept. 1995). Consistent with 48 C.F.R. 12.212 and 48 C.F.R. 227.7202-1 through 227.7202-4 (June 1995), all U.S. Government users acquire such software and documentation with only those rights set forth herein. If a government agency has a need for rights not conveyed under these terms, it must negotiate with Ginger.io to determine if there are acceptable terms for transferring such rights, and a mutually acceptable written addendum specifically conveying such rights must be included in any applicable contract or agreement. The Services, other technology Ginger.io makes available, and derivatives thereof may be subject to export laws and regulations of the United States and other jurisdictions. Customer represents that Customer is not named on any U.S. government denied-party list. Customer shall not, nor permit anyone, to access or use the Services in violation of any applicable export law or regulation. Customer hereby represents that Customer has not received or been offered any illegal or improper bribe, kickback, payment, gift, or thing of value from any Ginger.io employees or agents in connection with this Agreement. Reasonable gifts and entertainment provided in the ordinary course of business do not violate the foregoing restriction. If Customer learns of any violation of the above restriction, Customer shall use reasonable efforts to promptly notify Ginger.io.

 

 

Rev April 18, 2017