Master Services Agreement

This Master Services Agreement (“Agreement”) is entered into and effective as of the effective date of the Order Form (“Effective Date”), by and between Customer and Ginger.io of California Medical P.C., a California professional corporation (“Ginger.io”).  

For good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties agree as follows:

1. DEFINITIONS

1.1. "Affiliate" means any entity that directly or indirectly controls, is controlled by, or is under common control with the subject entity. "Control," for purposes of this definition, means direct or indirect ownership or control of more than 50% of the voting interests of the subject entity. An Affiliate of Yours must be listed on the Order Form for this Agreement to apply to said Affiliate.

1.2. “TOU” means Our Terms of Use each User enters into with Us in order to access and use the Mobile Application and the Services.

1.3. “Teleservices” means the Services provided to Users, as selected in an Order Form.  As selected, Teleservices includes Coaching, Therapy, and Psychiatry.

1.4. "Malicious Code" means viruses, worms, time bombs, Trojan horses and other harmful or malicious code, files, scripts, agents or programs.

1.5. “Mobile Application” means the mobile application to be used by the number of Users listed on the Order Form.

1.6. "Order Form" means the Ginger.io documents for placing orders hereunder (including addenda thereto), which are entered into between You and Us (and/or any Affiliates) from time to time. By entering into an Order Form hereunder, You (and Your listed Affiliate(s) if any) agree to be bound by the terms of this Agreement as if it were an original party hereto. Order Forms shall be deemed incorporated by reference herein.

1.7.  "Services" means the products and services that are purchased by You under an Order Form and made available by Us hereunder. Services are listed on the executed Order Form, and, if applicable, may be further set forth in a Statement of Work (“SOW”), which shall be attached hereto as an exhibit and incorporated by this reference herein. The Services include the System (or any part thereof) and Teleservices as set forth on the applicable Order Form.

1.8. “System” means, as provided hereunder, Our (a) cloud-based data analytic engine, (b) Mobile Application (and its contents), (c) reports and/or data summaries generated by Us, and (d) written customer product/user manuals and documentation (if any).

1.9. "Third Party Applications" means products and services, if any, that are provided by entities or individuals other than Us, and that interoperate with the Services.  Subject to Section 4.3 below, Third Party Applications does not include the System (or parts thereof), which is provided by Ginger.io, Inc., an independent third party who is a vendor to Us and has licensed the System to Us.

1.10. "Users" means individuals who use the Mobile Application pursuant to the TOU, and for whom You have purchased the Services (each authorized User, a “Seat”) through an Order Form.  Except as otherwise expressly set forth in this Agreement or an SOW, Users shall be Your employees, and/or contractors who are members of Your workforce. 

1.11. “User Data” means raw or unprocessed data (i.e., data that is not otherwise collected or processed by the System) from or about a User collected by Us through the User, You, an authorized third party, or Mobile Application hereunder.  User Data includes (i) health outcome and health changes data for each User during the period the Mobile Application is used, including the interventions and medical protocols applied to such User, for the medical condition for which the Mobile Application is used; and, (ii) during the period the Mobile Application is used, data regarding the cost (including insurance and reimbursement information) of healthcare, prescription drugs and medical treatment applied to each User for the medical/behavioral condition(s) for which the Mobile Application is used.  User Data also includes User Survey Data.

1.12. “User Survey Data” means User responses to health-related survey questions provided in the Mobile Application.  

1.13. "We," "Us" or "Our" means Ginger.io and Affiliates of Ginger.io.

1.14. "You" or "Your" means Customer, and Affiliates of Customer if any Affiliates are expressly a party hereto as listed on an Order Form.

1.16. “Your Data” means employee information that is not otherwise included in User Data.  For the avoidance of doubt, Your Data does not include User Data.

1.17.  “Coaching” means nonclinical coaching services provided by unlicensed health coaches to Users via a telehealth platform.

1.18.  “Therapy” means clinical services provided by practitioners licensed in the applicable clinical psychological or behavioral sciences/fields and provided to Users via a telehealth platform. 

1.19.  “Psychiatry” means clinical services provided by licensed clinical psychiatrists to Users via a telehealth platform.

2. PURCHASED SERVICES

2.1. Provision of Purchased Services. We shall make the purchased Services available to Your Users pursuant to the TOU and in accordance with this Agreement, SOW(s) (if any), and the relevant Order Forms during the Term (as defined below). You agree that Your purchases hereunder are neither contingent on the delivery of any future services, functionality or features nor dependent on any oral or written public comments made by Us regarding future services, functionality or features.  You agree that We have the right to make changes to the Services, and/or the functionality and/or features of the System, at any time in order to meet business requirements, comply with third-party obligations, or comply with applicable law.

2.2. User Seats. Unless otherwise specified in the applicable Order Form, (i) the Mobile Application is a Service purchased as User Seats and may be accessed by no more than the maximum number of concurrent User Seats specified in said Order Form, (ii) additional User Seats may be added during the applicable Term, prorated for the remainder of the Term in effect at the time the additional User Seats are added, and (iii) the added User Seats shall be co-terminous with the pre-existing Seats at the end of the Term.  Each User Seat is for one User only and cannot be shared by or among more than one User. For purposes of calculating the number of User Seats, a User shall no longer be deemed a User Seat once said User has deleted the Mobile Application from his/her mobile device.  

3. USE OF THE SERVICES

3.1. Our Protection of Your Data and User Data.  We shall maintain appropriate administrative, physical, and technical safeguards for protection of the security, confidentiality and integrity of Your Data and User Data, including in accordance with applicable laws and regulations (including The Health Insurance Portability and Accountability Act of 1996 (HIPAA), The Health Information Technology for Economic and Clinical Health Act (HITECH Act)).

3.2. Your Responsibilities. You shall (i) be solely responsible for the accuracy, quality and legality of Your Data and of the means by which You acquired Your Data, (ii) use commercially reasonable efforts to prevent unauthorized access to or use of the Services, and notify Us promptly of any such unauthorized access or use, (iii) use the Services only in accordance with applicable laws and government regulations, (iv) not make the Services available to anyone other than Users, or sell, resell, rent or lease the Services, (v) not use the Services to store or transmit Malicious Code, (vi) not attempt to gain unauthorized access to the Services or their related systems or networks, (vii) make no false or misleading representations regarding Us or the Services (or any part thereof); and (viii) make no representations, warranties or guarantees with respect to the specifications, features or functionality of the Services (or any part thereof) that are inconsistent with any user documentation or this Agreement.  Only Users shall access the Mobile Application and Teleservices.  You shall notify Us promptly of any unauthorized use of the System or any other known or suspected breach of security, or other occurrence requiring username/password or account cancellations or changes.  To the extent We issue evaluation surveys to and/or request interviews of You and/or Users regarding feedback with respect to the use or performance of the System and other related activities, You shall provide reasonable assistance in timely completing said surveys and/or interviews as reasonably requested by Us.  You shall permit Us to provide reasonable assistance in User recruitment as set forth in an SOW.  You shall provide us with the email addresses and postal mailing addresses for each of Your employees.  The parties shall use good faith efforts to coordinate marketing and recruiting efforts for use of the Mobile Application by Users. Subject to applicable law and to the extent this information is available from You, You shall provide Us with data regarding (i) health outcome and health changes for each User during the period the Mobile Application is used, including the interventions and medical protocols applied to such User, for the medical condition for which the Mobile Application is used; and, (ii) the cost (including insurance and reimbursement information) of healthcare, prescription drugs and medical treatment applied to each User for the medical/behavioral condition(s) for which the Mobile Application is used during the period the Mobile Application is used. 

3.3. Usage Limitations.  You shall not permit more than the maximum number of concurrent Users listed as Seats in the Order Form to use the Mobile Application.  

3.4. Use by You and Users.  YOU AND/OR USERS ARE SOLELY RESPONSIBLE AND LIABLE FOR (A) MEDICAL TREATMENT OR HEALTHCARE NOT PROVIDED BY US, (B) ANY AND ALL DIAGNOSES, ACTIONS, INACTIONS, OMISSIONS, HEALTHCARE, HEALTH OUTCOMES, AND PRACTICES NOT PROVIDED BY, OR COMING FROM THE SERVICES, AND (C) HEALTH INSURANCE.  You agree that the Services are provided to Your Users pursuant to the TOU and, each such User is under a separate contract directly with Us for the Services.  You acknowledge and agree that there are geographical jurisdictional legal and regulatory restrictions on the applicable Teleservices (e.g., using only licensed professionals within the applicable state of licensure for the applicable Teleservices).  Users are solely responsible for the accuracy, quality, and legality of information they provide to Us.

4. THIRD PARTY PROVIDERS

4.1. Third Party Products and Services.  Any acquisition by You and/or Users of Third Party Applications, and any exchange of data between You (and/or Users) and any third party provider, is solely between You (and/or Users) and the applicable provider. We do not warrant or support Third Party Applications or products or services, except as specified in an Order Form.  

4.2. Third Party Applications and Your Data.  We shall not be responsible for any disclosure, modification or deletion of Your Data resulting from any such access to or by Third Party Applications (e.g., third-party electronic workers compensation records). 

4.3. Ginger.io Inc.  The parties acknowledge and agree that Ginger.io, Inc. is an independent third party who has licensed the System to Us and is solely an information technology vendor to Us.  You acknowledge and agree that: (i) at no time does Ginger.io, Inc. provide any Services nor any clinical, medical or healthcare services to You; (ii) you shall not hold Gigner.io Inc. liable or responsible for any such Services or services, or the performance or results thereof; and (iii) this Agreement is solely between You and Us and that Ginger.io Inc. is not a party to nor a third party beneficiary of this Agreement.

5. FEES AND PAYMENT FOR PURCHASED SERVICES

5.1. Fees. You agree to pay all fees specified in all Order Forms hereunder. Except as otherwise specified herein or in an Order Form, (i) fees are based on Services purchased and not actual usage, (ii) payment obligations are non-cancelable and fees paid are non-refundable, and (iii) the number of licenses (and/or User Seats, as applicable) purchased cannot be decreased during the relevant Term stated in the Order Form. Licenses (and/or User Seats, as applicable) added in the middle of a Term will be charged a pro-rated amount based on the months remaining in the Term.

5.2. Invoicing and Payment. You will provide Us with valid and updated credit card information, or with a valid purchase order or alternative document reasonably acceptable to Us. If You provide credit card information to Us, You authorize Us to charge such credit card for all Services listed in the Order Form for the initial Term and any renewal Term(s) as set forth in Section 12 below. Such charges shall be made in advance, either annually or in accordance with any different billing frequency stated in the applicable Order Form. If the Order Form specifies that payment will be by a method other than a credit card, We will invoice You in advance and otherwise in accordance with the relevant Order Form. Unless otherwise stated in the Order Form, invoiced charges are due net 30 days from the invoice date. You are responsible for providing complete and accurate billing and contact information to Us and notifying Us of any changes to such information.  Payment is due and payable regardless of Your receipt of Our invoice.

5.3. Overdue Charges. If any charges are not received from You by the due date, then at Our discretion, (a) such charges 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, from the date such payment was due until the date paid, and/or (b) We may condition license renewals and Order Forms on payment terms shorter than those specified in Section 5.2 above.  Additionally, You will be responsible for paying all fees and costs of collection for unpaid amounts due and owing hereunder, including reasonable attorneys’ fees.

5.4. Suspension of Service and Acceleration. If any amount owing by You under this Agreement or any other agreement for Our Services is more than 30 days overdue (or 10 or more days overdue in the case of amounts You have authorized Us to charge to Your credit card), We may, without limiting Our other rights and remedies, accelerate Your unpaid fee obligations under such agreements so that all such obligations become immediately due and payable, and suspend the Services until such amounts are paid in full. We will give You at least 7 days’ prior notice that Your account is overdue before suspending the Services.  You may incur a fee to re-start suspended Services.  You shall be solely responsible to Your Users for suspended Services, including without limitation any consequences from such suspension. 

5.5. Taxes. Unless otherwise stated, Our fees do not include any taxes, levies, duties or similar governmental assessments of any nature, including but not limited to value-added, sales, use or withholding taxes, assessable by any local, state, provincial, federal or foreign jurisdiction (collectively, "Taxes"). You are responsible for paying all Taxes associated with Your purchases hereunder. If We have the legal obligation to pay or collect Taxes for which You are responsible under this paragraph, the appropriate amount shall be invoiced to and paid by You, unless You provide Us with a valid tax exemption certificate authorized by the appropriate taxing authority. For clarity, We are solely responsible for taxes assessable against Us based on Our income, property and employees.

5.6. Audit.  We have the right to conduct, at our expense, an audit of Your use of the Services for purpose of assessing Your compliance with the terms of this Agreement with respect to the licenses We granted to You.  Such an audit shall be conducted on no less than 30 days prior written notice and during normal business hours at Your facility(ies).  To the extent we reasonably determine that Your use of the Services is in breach of this Agreement, in addition to any and all remedies available to Us hereunder and under applicable law, You shall be responsible for the cost of said audit.  No such audit shall be conducted more than twice annually during the Term of this Agreement, except that an audit shall be conducted regardless of the number of audits conducted in a calendar year in the event of a breach of this Agreement by You.

6. DATA USE

6.1. User Data.  Subject to applicable laws and regulations, and as between the parties, all User Data shall be deemed owned by Us.  We shall have the right to use User Data solely for the following purposes:  (i) to produce data sets or data summaries or otherwise provide the Services hereunder during the Term; (ii) for providing, maintaining, distributing, developing, configuring, modifying, supporting, marketing, selling, promoting, and/or enabling access to or use of the Services (or any part thereof) during the Term and thereafter, including for or on behalf of any users, patients, third parties, and/or any of Our products and/or services, and not be limited to the Mobile Application or Your Users hereunder; (iii) to collect, aggregate and/or develop anonymized (or de-identified, as required by applicable law) data with respect to the use of the System (including by Users) to measure and analyze response rates, performance, and/or usage metrics related to the System (“Usage Data”), which may be used by Us for legitimate business purposes, including without limitation improving, testing, and providing the System, additional products, and/or services; and, (iv) to collect and/or develop other anonymized (or de-identified, as required by applicable law) data in aggregate form (“Statistical Data”) with respect to industry, health, insurance, cost or medical statistics.  We have the right to sell, distribute, use and/or disclose (including without limitation to or for the benefit of third parties) Usage Data and/or Statistical Data for promotional, statistical, market analysis, financial analysis, and/or other business purposes to the extent such Usage Data and/or Statistical Data do not include any User personal identifying information or protected health information or other data or information that identifies any User(s) or You.  Unless otherwise required by applicable laws or regulations, We shall have no obligation hereunder to provide You (or any User) with User Data.  We shall have no obligation hereunder to provide You (or any User) with any Usage Data or Statistical Data.  Subject to applicable laws and regulations and Our TOU and privacy policy, We have the right to retain and use User Data for purposes of fulfilling or supporting Our rights under this Agreement; and, said rights shall survive the expiration or termination of this Agreement.  Subject to applicable law and Section 6.2 below, Ginger.io may provide User Data and/or data summaries to the applicable payer of costs of healthcare services to the extent (x) You have received this Agreement through said payer or (y) Ginger.io is obligated to do so pursuant to it’s agreement with said payer.   

6.2. Identifying Information.  You acknowledge and agree that pursuant to the TOU, We may receive personally identifying information and protected health information (as such is defined under applicable laws and regulations) directly from Users.  We shall comply with the Health Insurance Portability and Accountability Act of 1996 (“HIPAA”) with respect to such information.

7. LICENSES; PROPRIETARY RIGHTS

7.1. Licenses.  

(a) License to You.  Subject to the terms and conditions of this Agreement, We hereby grant You (and Your Affiliates, as applicable) the following license as part of the Services: a non-exclusive, non-transferable, revocable, royalty-free, perpetual limited license (with the right to sublicense) to use, and to make copies and derivative works of, the reports delivered by Us under an SOW or Order Form for any purpose.  You shall comply with all applicable laws and regulations in Your use of the foregoing license set forth in this Section 7.1(a).  All license rights granted in this Section 7.1(a) are only for the United States, and cannot be exercised outside of the United States, except as otherwise set forth in an Order Form.  The license granted under this Section 7.1(a) shall survive the expiration or termination of this Agreement, subject to Sections 7.2(a) and 7.3(a) below.

(b) Your Data License From You.  Subject to applicable laws and regulations, You shall provide Us during the Term with Your Data, to the extent it is available and legally permitted.  Subject to the terms and conditions of this Agreement, You hereby grant Us a non-exclusive, non-transferable, fully paid-up, royalty-free, sublicenseable, worldwide, perpetual limited license to use Your Data solely for the following purposes:  (i) for use with the System during the Term and thereafter; and (ii) for use for or for the benefit of any of Our client(s), customer(s), product(s), service(s) and/or third party patients and/or users; provided however, We shall not provide, transfer or distribute any of Your Data unless it is in conjunction with the System and We shall not reveal its source or any identifying information with respect to any User or You.  With respect to such purposes, the license granted to Us in this Section 7.1(b) shall include the right to (1) make copies, modifications to, and/or derivative works of Your Data and/or (2) use Your Data in conjunction with content and data from other sources or third parties.  We obtain only the rights expressly set forth in this Agreement with respect to Your Data, and no implied rights are granted.  We shall comply with all applicable laws and regulations in Our use of the license set forth in this Section 7.1(b).  This Section 7.1(b) shall apply to Our Affiliates and any third party who is running, providing, hosting or provisioning the System on Our or Our Affiliates’ behalf. The license rights set forth in this Section 7.1(b) shall survive the expiration or termination of this Agreement, subject to Sections 7.2(b) and 7.3(b) below. 

7.2. Proprietary Rights.

(a) You acknowledge and agree that, subject to the limited rights expressly granted by Us in Section 7.1(a) above (i) the Services (including without limitation the System), (ii) Usage Data, (iii) Statistical Data, (iv) all data produced or generated by the System, (v) Evaluation Data (defined below), and (vi) all related intellectual property therein and thereto (Section 7.2(a)(i) through (vi) shall collectively be referred to as the “Our Proprietary Rights”) are proprietary to Us, and that We shall exclusively have all ownership, right, title, and interest in and to Our Proprietary Rights, including any and all intellectual and proprietary rights therein and thereto.

(b) We acknowledge and agree that, subject to the limited rights expressly granted by You in Section 7.1(b) above, (i) Your Data, and (ii) all intellectual property therein and thereto (Section 7.2(b)(i) through (ii) shall collectively be referred to as the “Your Proprietary Rights”) are proprietary to You, and that You shall exclusively have all ownership, right, title, and interest in and to Your Proprietary Rights, including any and all intellectual and proprietary rights therein and thereto.

7.3. License Restrictions.

(a) With respect to any part of the Services, and except as is expressly set forth in this Agreement, You shall not: (1) otherwise access, use, license, sublicense, distribute, provide, assign, transfer, relicense, rent, lease, share, market, sell, resell, port, translate, encumber or suffer to exist any lien or security interest on, or time-share, the Services, or cause any part thereof to be deemed in the public domain; (2) access or use the Services or any other materials provided by Us hereunder to build, develop, distribute, improve, test, market, provide, or sell a product or service that is competitive thereto; (3) remove, conceal, or modify any or Our copyright, trademark, or other proprietary rights notices contained in or on the Services, or Our other materials, nor add any other proprietary notice thereto, without Our prior written consent; (4) access the Services for purposes of monitoring their availability, performance or functionality, or for any other benchmarking or competitive purposes or disclose the results of any system benchmark or other performance data of the Services to any third party without Our prior written consent; (5) incorporate the Services into any other software application, software program, or hardware or software platform without Our prior written consent (except as is otherwise expressly authorized in this Agreement); (6) violate any applicable laws and regulations in the use of the Services or foregoing licenses; or, (7) authorize, cause or permit any third party to do any of the above.  You shall comply with all reasonable guidelines provided by Us regarding use of Our trademarks. You acknowledge and agree that any software licensed by Us hereunder is licensed on a software-as-a-service (i.e., cloud) basis, except to the extent such software requires the installation of an application or software code. You shall not permit any third party to access the Services except as permitted herein or in an Order Form.  You may not access the Services if You are Our direct competitor (or allow access by a direct competitor of Ours), except with Our prior written consent.  You obtain only the rights expressly set forth in this Agreement with respect to the Services, and no implied rights are granted.  

(b) With respect to any part of Your Data, and except as is expressly set forth in this Agreement, We shall not: (1) access, use, license, sublicense, distribute, provide, assign, transfer, relicense, rent, lease, share, market, sell, resell, port, translate, encumber or suffer to exist any lien or security interest on, or time-share Your Data; (2) violate any applicable laws and regulations in the use of Your Data or the foregoing licenses; (3) remove, conceal, or modify any of Your copyright, trademark, or other proprietary rights notices contained in or on Your Data, nor add any other proprietary notice thereto, without Your prior written consent; (4) incorporate Your Data into any other software application, software program, or hardware or software platform without Your prior written consent (except as is otherwise expressly authorized in this Agreement); or, (5) authorize, cause or permit any third party to do any of the above.  We shall comply with all reasonable guidelines provided by You regarding Our use of Your trademarks. We shall not permit any third party to access Your Data except as permitted herein.  We obtain only the rights expressly set forth in this Agreement with respect to Your Data, and no implied rights are granted.  
         
7.4.  Suggestions.  We may issue and distribute surveys to, or interview, You and/or Users concerning the use and performance of the Services.  You shall use reasonable efforts to promptly and accurately respond to such requests.  Information received in such surveys and interviews shall be deemed “Evaluation Data”.  

8. CONFIDENTIALITY

8.1. Definition of Confidential Information. As used herein, "Confidential Information" means all confidential information disclosed by a party ("Disclosing Party") to the other party ("Receiving Party"), whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure. Your Confidential Information shall include Your Data; Our Confidential Information shall include the Services and the terms and conditions of this Agreement and all Order Forms; and, Confidential Information of each party shall include business and marketing plans, technology and technical information, product plans and designs, and business processes disclosed by such party. However, Confidential Information shall not include any information that (i) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party, (ii) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party, (iii) is received from a third party without breach of any obligation owed to the Disclosing Party, or (iv) was independently developed by the Receiving Party without reference to the Disclosing Party’s Confidential Information.

8.2. Protection of Confidential Information. The Receiving Party shall (i) use the same degree of care that it uses to protect the confidentiality of its own confidential information of like kind (but in no event less than reasonable care) (ii) not use any Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement, and (iii) except as otherwise authorized by the Disclosing Party in writing, to limit access to Confidential Information of the Disclosing Party to those of its and its Affiliates’ employees, contractors and agents who need such access for purposes consistent with this Agreement and who are under confidentiality agreements with the Receiving Party containing protections no less stringent than those herein. You shall not disclose the terms of this Agreement or any Order Form to any third party other than to Your Affiliates and Your/their legal counsel and accountants without Our prior written consent, unless otherwise expressly permitted hereunder or by operation of law.

8.3. Compelled Disclosure. The Receiving Party may disclose Confidential Information of the Disclosing Party if it is compelled by law to do so, provided the Receiving Party gives the Disclosing Party prior notice (to the extent legally permitted) of such compelled disclosure and reasonable assistance, at the Disclosing Party's cost, if the Disclosing Party wishes to contest the disclosure. If the Receiving Party is compelled by law to disclose the Disclosing Party’s Confidential Information as part of a civil proceeding to which the Disclosing Party is a party, and the Disclosing Party is not contesting the disclosure, the Disclosing Party will reimburse the Receiving Party for its reasonable cost of compiling and providing secure access to such Confidential Information.

8.4.  Return or Destruction Upon Termination. Upon termination of this Agreement and except as to comply with applicable laws and regulations or as otherwise expressly set forth hereunder, the Receiving Party shall, within 30 days following the effective date of such termination, deliver to the Disclosing Party, or destroy, all Confidential Information of the Disclosing Party that remains in the Receiving Party’s possession or control (and all copies thereof).  The obligations of the Receiving Party under Sections 8.1 through 8.3 above shall continue after termination of this Agreement to the extent the Receiving Party is still in possession or control of the Disclosing Party’s Confidential Information.  This Section shall not apply to data subject to Section 6.1 above.

9. WARRANTIES AND DISCLAIMERS

9.1. Our Warranties. We warrant that We have validly entered into this Agreement and have the legal power to do so, and that the person signing or otherwise entering into this Agreement on Our behalf is duly authorized to do so. 

9.2. Your Warranties. You warrant that You (and Your Affiliates, as applicable) have validly entered into this Agreement and have the legal power to do so, and that the person signing or otherwise entering into this Agreement on Your (and Your Affiliates’, as applicable) behalf is duly authorized to do so.  You also warrant that you shall (i) explain the Services to Users in a substantially accurate manner, including without limitation the fact that the Services are provided through a telehealth platform and (ii) obtain any and all required consents from Users to the Services.

9.3. Disclaimer. EXCEPT AS EXPRESSLY PROVIDED HEREIN, NEITHER PARTY MAKES ANY WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND EACH PARTY SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, TITLE, OR ANY WARRANTY ARISING FROM USAGE OF TRADE, COURSE OF DEALING, OR OTHERWISE BY IMPLICATION TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW.  THE SERVICES ARE PROVIDED ON AN “AS IS” BASIS WITHOUT WARRANTY OF ANY KIND AND WE DO NOT WARRANT THAT THE SERVICES WILL BE ERROR-FREE OR INVIOLATE OR WILL MEET YOUR OR USERS’ REQUIREMENTS.

10. MUTUAL INDEMNIFICATION

10.1. Each party shall indemnify, defend and hold harmless the other party, and such other party’s officers, agents and employees from and against any and all liability, loss, cost, damage, claims, demands, lawsuits, actions, judgments, settlements or expenses of every kind (including reasonable attorneys’ fees) arising from a claim by a third party (collectively, “Claim(s)”) as a result of, arising out of, or occurring in connection with (i) bodily injury or death to any person, or damage to any tangible property (except data), to the extent that such injury, death, or damage is caused by the willful misconduct or gross negligence of any of the indemnifying party’s personnel (whether such personnel is employed by, representing, an agent of, or under contract with the indemnifying party) and/or (ii) a violation of any applicable law or regulation by the indemnifying party.  For the avoidance of doubt, the System, or any use, configuration, results, output, or analysis thereof or produced thereby (or any interpretation of any results, output, or analysis thereof or produced thereby) shall not be deemed Our personnel or an indemnifiable occurrence with respect to bodily injury, death or property damage.  
 
10.2. A party’s obligations to indemnify, defend and hold harmless under this Section 10 shall not apply in proportion to and to the extent that the Claim arises from the indemnified party’s violation of applicable law or regulation, breach of this Agreement, or the negligence or willful misconduct of the indemnified party or its officers, agents, contractors or employees.  An indemnified party shall provide prompt written notice to the indemnifying party of any Claim.  The indemnifying party, at its sole expense, shall have sole control over the resolution of the Claim; provided however, (1) the indemnified party has the right to seek its own legal counsel at the indemnified party’s expense, (2) the indemnified party shall provide reasonable assistance to the indemnifying party (at the indemnifying party’s expense), and (3) the indemnifying party shall not settle any Claim on behalf of the indemnified party whereby such indemnified party admits to liability or has to pay any sums (not reimbursed by the indemnifying party) without such indemnified party’s prior written consent (which shall not be unreasonably withheld).  The obligations under this Section 10 shall survive the termination of this Agreement.

10.3. Exclusive Remedy.  This Section 10 states the indemnifying party’s sole liability to, and the indemnified party’s exclusive remedy against, the other party for any type of claim described in this Section 10.

11. LIMITATION OF LIABILITY

11.1. Limitation of Liability. EXCEPT WITH RESPECT TO A PARTY’S INDEMNIFICATION OBLIGATIONS UNDER SECTION 10 ABOVE, A PARTY’S BREACH OF ITS OBLIGATIONS UNDER SECTION 8 ABOVE, OR A PARTY’S VIOLATION OF THE OTHER PARTY’S INTELLECTUAL PROPERTY RIGHTS HEREUNDER, (A) NEITHER PARTY'S LIABILITY WITH RESPECT TO ANY SINGLE INCIDENT ARISING OUT OF OR RELATED TO THIS AGREEMENT (WHETHER IN CONTRACT OR TORT OR UNDER ANY OTHER THEORY OF LIABILITY) SHALL EXCEED THE LESSER OF $500,000 OR THE AMOUNT PAID BY YOU HEREUNDER IN THE 12 MONTHS PRECEDING THE INCIDENT AND (B) A PARTY’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT (WHETHER IN CONTRACT OR TORT OR UNDER ANY OTHER THEORY OF LIABILITY) SHALL NOT EXCEED THE TOTAL AMOUNT PAYABLE BY YOU HEREUNDER. THE FOREGOING SHALL NOT LIMIT YOUR PAYMENT OBLIGATIONS UNDER SECTION 5 ABOVE.

11.2. Exclusion of Consequential and Related Damages. EXCEPT WITH RESPECT TO A PARTY’S INDEMNIFICATION OBLIGATIONS UNDER SECTION 10 ABOVE, A PARTY’S BREACH OF ITS OBLIGATIONS UNDER SECTION 8 ABOVE, OR A PARTY’S VIOLATION OF THE OTHER PARTY’S INTELLECTUAL PROPERTY RIGHTS HEREUNDER, IN NO EVENT SHALL EITHER PARTY HAVE ANY LIABILITY TO THE OTHER PARTY FOR ANY LOST PROFITS OR REVENUES OR FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY OR PUNITIVE DAMAGES HOWEVER CAUSED, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, AND WHETHER OR NOT THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE FOREGOING DISCLAIMER SHALL NOT APPLY TO THE EXTENT PROHIBITED BY APPLICABLE LAW.

11.3. Allocation of Risk.  The limitations of liability in this Section 11 are agreed allocations of risk and were considered in relation to the terms agreed upon by the parties herein. 

12. TERM AND TERMINATION

12.1. Term of Agreement. Unless otherwise terminated earlier in accordance with this Section 12, this Agreement commences on the Effective Date and continues for one (1) year, unless otherwise renewed or terminated hereunder (including renewals, “Term”). The Services purchased by You commence on the start date specified in the applicable Order Form and continue for the Term. This Agreement shall automatically renew for additional 12-month periods, unless either party gives the other notice of non-renewal at least 60 days before the end of the current Term.  The per-unit pricing during any such renewal Term shall be the same as that during the prior Term unless (i) an Order Form states otherwise or (ii) We have given You written notice of a pricing increase at least 90 days before the end of such prior Term, in which case the pricing increase shall be effective upon renewal and thereafter. 

12.2. Termination for Cause. A party may terminate this Agreement for cause: (i) upon 30 days written notice to the other party of a material breach if such breach remains uncured at the expiration of such period, or (ii) if the other party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors.  Upon any termination by You for cause, We shall refund You a prorated portion of any unused prepaid fees covering the remainder of the Term for all licenses and User Seats (i.e., for the period after the effective date of such termination). Upon any termination by Us for cause, You shall pay any unpaid fees covering the remainder of the Term of all Order Forms after the effective date of termination.  In no event shall any termination relieve You of the obligation to pay any fees due and payable to Us hereunder.

12.3. License Termination. This Agreement and any license granted herein may be suspended or terminated by the licensor with written notice if the licensee fails to comply with any material term or condition of this Agreement with respect thereto.  On termination or expiration of this Agreement for any reason, and except as they otherwise survive as expressly set forth hereunder, the license rights granted herein cease, and the applicable licensee shall immediately cease all further access or use of the licensed material.  Furthermore, on termination or expiration of this Agreement for any reason, You shall cease distribution of the Mobile Application, and all Users shall promptly uninstall and remove the Mobile Application from the mobile device on which it was installed.  Additionally, and except as otherwise expressly set forth in this Agreement or required by applicable law, We reserve the right (but have no obligation) to delete any User Data or Your Data stored on Our servers if the Agreement or the licenses we granted to You expire or have been terminated. 

12.4. Surviving Provisions. Sections 3.1, 3.4, 5.1, 5.3, 5.5, 6.1, 7.1(a), 7.1(b), 7.2, 7.3, 8, 9.3, 10, 11, 12.3, 12.4, and 13 shall survive any termination or expiration of this Agreement. Any provisions that by their nature are intended to survive, shall survive termination or expiration of this Agreement.

13. GENERAL

13.1. Notice. Except as otherwise specified in this Agreement and using the addresses set forth below, all notices, permissions and approvals hereunder shall be in writing and shall be deemed to have been given upon: (i) personal delivery, (ii) the second business day after first class mailing, (iii) the second business day after sending by confirmed facsimile, or (iv) the first business day after sending by email (provided email shall not be sufficient for notices of termination or an indemnifiable claim). Billing-related notices to You shall be addressed to the relevant billing contact designated by You. All other notices to You shall be addressed to the relevant Services system administrator designated by You.

13.2. Governing Law and Jurisdiction. This Agreement shall be governed by and construed in accordance with the laws of the State of California, USA without regard to its conflicts of laws provision. The parties hereby consent to the exclusive jurisdiction and venue in the state and federal courts in San Francisco, California. In any action or proceeding to enforce or interpret this Agreement, the prevailing party will be entitled to recover the court costs and expenses (including reasonable attorneys' fees) that it incurred in connection with such action or proceeding and enforcing any judgment or order obtained.  Each party hereby agrees that a party’s breach of confidentiality obligations or violation of intellectual property rights hereunder may cause the other party irreparable harm for which there are inadequate remedies at law and that such other party shall be entitled to seek equitable relief in addition to all other remedies available to it.  The parties agree that no bond or surety shall be required for such equitable relief.  The United Nations Convention on Contracts for the International Sale of Goods shall not apply to this Agreement.

13.3. Export Compliance. The Services, other technology We make available, and derivatives thereof may be subject to export laws and regulations of the United States and other jurisdictions. You represent that You are not named on any U.S. government denied-party list. You shall not, nor permit User, to access or use the Services in violation of any applicable export law or regulation. 

13.4. Anti-Corruption.  You hereby represent that You have not received or been offered any illegal or improper bribe, kickback, payment, gift, or thing of value from any of Our 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 You learn of any violation of the above restriction, You will use reasonable efforts to promptly notify Us.

13.5. Relationship of the Parties. The parties are independent contractors. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between the parties.

13.6. No Third-Party Beneficiaries. There are no third-party beneficiaries to this Agreement.

13.7. Waiver. No failure or delay by either party in exercising any right under this Agreement shall constitute a waiver of that right. 

13.8. Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, the provision shall be modified by the court and interpreted so as best to accomplish the objectives of the original provision to the fullest extent permitted by law, and the remaining provisions of this Agreement shall remain in effect.

13.9. Assignment. Neither party may assign any of its rights or obligations hereunder, whether by operation of law or otherwise, without the prior written consent of the other party (not to be unreasonably withheld). Notwithstanding the foregoing, either party may assign this Agreement in its entirety (including all Order Forms), without consent of the other party, to its Affiliate or in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets, except if it is an assignment by You to Our direct competitor. A party’s sole remedy for any purported assignment by the other party in breach of this paragraph shall be, at the non-assigning party’s election, termination of this Agreement upon written notice to the assigning party.  Subject to the foregoing, this Agreement shall bind and inure to the benefit of the parties, their respective successors and permitted assigns.

13.10. Entire Agreement. This Agreement, including all exhibits and addenda hereto and all Order Forms, constitutes the entire agreement between the parties and supersedes all prior and contemporaneous agreements, proposals or representations, written or oral, concerning its subject matter. To the extent of any conflict or inconsistency between the provisions in the body of this Agreement and any SOW, exhibit or addendum hereto or any Order Form, the terms of such SOW, exhibit, addendum or Order Form shall supersede and prevail.  Notwithstanding any language to the contrary therein, no terms or conditions stated in Your purchase order or other order documentation (excluding Order Forms) shall be incorporated into or form any part of this Agreement, and all such terms or conditions shall be null and void.

13.11. Government. The System 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 the System 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 Us 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.

13.12. Force Majeure. Neither party shall be liable hereunder for failure or delay in performing its obligations caused by circumstances beyond its reasonable control, including without limitation, acts of God/nature, acts of government, flood, fire, earthquakes, civil unrest, acts of terror, strikes or other labor problems (other than those involving the party’s own employees), telecommunications, Internet service provider or hosting facility failures or delays or denial of service attacks beyond its control. 

13.13. Publicity, Use of Name and Logo.  During the Term and thereafter, We have the right to use Your name and logo to list You as Our customer on Our website and in Our marketing and/or publicity collateral and activities. 

13.14. Counterparts. This Agreement may be executed in counterparts and such counterparts may be delivered in electronic format (including by fax and e-mail). Each such counterpart and copies produced therefrom shall have the same force and effect as an original.

13.15. Rules of Construction. The following rules of construction shall apply to this Agreement: (a) article, section, paragraph and exhibit headings shall not affect the interpretation of this Agreement; (b) the exhibits form part of this Agreement and shall have effect as if set out in full in the body of this Agreement, and any reference to this Agreement shall include such exhibits; (c) unless the context otherwise requires, words in the singular shall include the plural and in the plural include the singular; (d) unless the context otherwise requires, a reference to one gender shall include a reference to the other gender; (e) “include”, “includes” and “including” are not limiting; and (f) references to articles, sections and exhibits are to the articles, sections and exhibits of this Agreement unless the context indicates otherwise.

No modification, amendment, or waiver of any provision of this Agreement shall be effective unless in writing and either signed or accepted electronically by the party against whom the modification, amendment or waiver is to be asserted; provided however, Your use or Your Users’ use of the Services means that you have accepted any modifications to this Agreement, which may be updated from time to time without signature of either party in Ginger.io’s sole discretion.

 

Revised 10-3-2016