Healthie's Master Associate Agreement (MSA)

Subscription Agreement

This Subscription Agreement (this “Agreement”) governs Subscriber’s rights to use and access to Healthie, Inc’s (“Healthie”) proprietary health and wellness practice management and telehealth platform (the “Healthie System”). This Agreement is incorporated into and governs the sales order form that is attached to or references this Agreement (the “Sales Order”) with the customer set forth therein (the “Subscriber”). This Agreement shall be effective upon the Effective Date identified in the Sales Order. In the event of a discrepancy between the terms set forth herein and the Sales Order, the terms herein shall govern unless the Sales Order specifically states otherwise.

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1. Definitions.  The below underlined terms have the meanings set forth below or in the referenced provision. Other capitalized terms used herein are defined as they arise in this Agreement.
   
   1. “Administrator” means an employee of Subscriber that has been authorized by Subscriber to access the Healthie System on behalf of Subscriber and who has been provided a unique username and password for use when accessing the Healthie System.
   2. “Authorized Health Professional” means a health or wellness professional (who is a natural person) who: (a) has privileges at the Licensed Site; (b) provides health, or wellness guidance to Clients; (c) has been authorized by Subscriber to access the Healthie System on behalf of Subscriber; and (d) has been provided a unique username and password for use when accessing the Healthie System.
   3. “Business Associate Agreement” means that certain Business Associate Agreement applicable to the Services entered into by and between Healthie and Subscriber or Licensed Site on or around the Effective Date.
   4. “Clients” means the aggregate number of clients or patients for which Subscriber is licensed to enter or track with the Healthie System during the Service Term.
   5. “Client Data” means all data, text, graphics, pictures, or other content (including, for the avoidance of doubt, any personally identifiable information) relating to a Client or such Client’s health or treatment that Subscriber, the Registered Users or the Clients input, post or upload into the Healthie System.
   6.  “Compatible Mobile Devices” means mobile devices that are Healthie System compatible as identified in the Documentation or in communications to Subscriber by Healthie.
   7.  “Documentation” means the Help Documentation and API documentation provided to Subscriber with respect to the use of the Healthie System, as updated from time to time by Healthie.
   8.  “HIPAA” means the Health Information Portability and Accountability Act of 1996 and the rules promulgated thereunder.
   9. “Licensed Site” means a site that may be specified in Exhibit A.
   10. “Registered User” means a(n): (a) Authorized Health Professional; (b) Administrator; (c)  Support Seat.
   11. “Subscriber Data” means: (a) the Client Data; and (b) all other data or content that Subscriber or the Registered Users input, post, or upload into the Healthie System.
   12. “Web Portal” means the web-accessible, browser-based version of the Healthie System.

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2. Use of the Services.
   
   1. License and Subscription.  Healthie will make the Healthie System available to Subscriber pursuant to this Agreement and the Sales Order. Except as otherwise stated in this Agreement or the Sales Order, Subscriber has a nonexclusive, non-transferable, non-sublicensable right to remotely access the Healthie System through its Registered Users  in the manner described in the then current Documentation (collectively, “Healthie Services”), including to track Client Data and manage communications with Clients using the functionality of the Healthie System. Registered Users may allow Clients to use the Healthie Services. 
   2. Support.  Healthie will provide Subscriber with Implementation and Support services related to the Healthie System described in the Sales Order (“Implementation and Support” and together with Healthie Services, the “Services”). Subscriber may elect to purchase additional Implementation and Support for a mutually agreed annual price. In addition, Healthie shall provide reasonable technical support via email as specified in the Sales Order.
   3. Registered Users.  In the Healthie System, Subscriber may register: (a) Authorized Health Professionals; and (b) Administrators. Administrators have special functionality as outlined in the Documentation.  Each Registered User may only log in to the Healthie System using the unique login and password associated with that Registered User. Subscriber shall not permit any person to use a Registered User’s login and password to login and access the Healthie System (other than the Registered User associated with that login and password).
   4. Subscriber Responsibilities and Obligations.  Subscriber is solely responsible, at its expense, for obtaining the necessary hardware, Compatible Mobile Devices and establishing, maintaining, and operating its connection to the Internet (the speed of which may have a significant impact on use of the Services), including all access lines, all Internet service provider connection charges, and any long-distance telephone charges. Subscriber is responsible for the actions and omissions of all Registered Users and Clients with respect to their use of the Services.  Subscriber shall take reasonable steps to ensure that (a) no unauthorized persons have access to the Healthie System or Services using logins and passwords issued to Subscriber, its Registered Users or its Clients, and (b) Registered Users and Clients do not take any action which would be in violation of this Agreement if taken by Subscriber. Subscriber shall promptly report to Healthie any actual or suspected violation of this Section, and take further steps as may reasonably be requested by Healthie to prevent or remedy any such violation.
   5. Use Restrictions. Subscriber shall not, and shall ensure that its Registered Users and Clients do not, (a) copy, modify, create derivative works of, disassemble, decompile, reverse engineer, reproduce, republish, download, or copy any part of the Services (including data structures or similar materials produced by programs),  (b) license, sell, transfer, assign, distribute, outsource, permit timesharing or service bureau use of, commercially exploit, or make available the Services to any third party except as permitted by this Agreement or the Sales Order, nor (c) use or access the Healthie System or Services other than in accordance with the terms of this Agreement. 
   6. Security.  As part of the Healthie System, Healthie shall implement and maintain reasonable security measures (such as password protection and encryption) and other safeguards (including virus protection safeguards) which are reasonably intended to prevent the destruction, loss, interception, or alteration of Subscriber Data by unauthorized persons. However, the parties expressly recognize that it is impossible to maintain flawless security. Subscriber and its Registered Users and Clients will not attempt to disable, modify or circumvent any security safeguard adopted by Healthie.
   7. Updates.  To the extent Healthie develops and applies patches, bug fixes, updates, and any other changes to the core functionality of the Services identified on the Sales Order (collectively, “Updates”), Healthie shall apply those Updates to the Services at no additional charge. For clarification, Updates do not include new functionality or features that expand the Healthie System’s current core functionality.
   8. Cooperation.  Subscriber shall cooperate with Healthie to establish and maintain for the duration of the Service Term all data feeds and connections between Subscriber’s databases and the Services that are necessary for Subscriber to access the full functionality of the Healthie System.
   9. API Keys.  Subscriber may obtain an API key from Healthie for use of certain features available through Healthie’s API program, including use of Healthie’s API Explorer. Subscriber may use, and allow its third-party vendors to use, the API-related Documentation and the API key in accordance with the API Terms of Use available at docs.gethealthie.com.  

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3. Term and Termination.
   
   1. Term.  Unless earlier terminated as provided in Section 3.2, the term of this Agreement begins on the Effective Date and continues for the period specified in the Sales Order (that period, the “Service Term”). After the initial Service Term, the Sales Order and Agreement automatically renews in two-year increments (each, a “Renewal Term”) unless either party provides at least 90 days’ written notice prior to expiration of the Service Term or then-current Renewal Term. Each Renewal Term’s new subscription quantity will mirror the previous month’s subscription quantity, as billed in the previous month’s invoice.

2. Termination.  This Agreement may be terminated prior to its expiration as follows:
   
   1. By Healthie, if Subscriber fails to pay any amount when due and does not cure that breach within 30 days after the date on which payment was due; or
   2. By either party, if the other party materially breaches any provision of this Agreement and fails to cure that breach within 90 days following its receipt of written (e-mail to compliance@gethealthie.com) notice describing, in reasonable detail, the alleged breach.
3. Effects of Termination.  Except as expressly provided herein, upon any expiration or termination of this Agreement, the following occur:
   
   1. All Sales Orders subject to this Agreement and the rights, licenses and obligations of the parties immediately terminate and Subscriber and its Registered Users and Clients shall cease to use and access the Healthie System and the Services. Subscriber shall pay Healthie in full any remaining unpaid amounts owed Healthie hereunder
   2. Upon expiration or termination of this Agreement, Subscriber shall be entitled to obtain a copy of its account data in electronic form. More details regarding the details and limitations in export of data is provided at https://help.gethealthie.com/. Healthie is entitled to charge a fee for the export or conversion of data. Subscriber shall contact Healthie and make arrangements to retrieve the data no later than 60 days following termination of the Agreement. Healthie is not responsible for storing or maintaining any Client Data after 90 days following expiration or termination of this Agreement.
   3. The provisions of Sections 2.5, 3.3, 4, 5, 6, 7, 8.3, 9 and 11 will survive the termination of this Agreement in accordance with their terms.

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4. Fees.

1. Payment of Fees.  Subscriber’s access to the Healthie System and the Services is contingent upon Subscriber’s timely payment to Healthie of the relevant Subscription Fees outlined in Exhibit A to the Sales Order (the “Fees”). Subscriber shall pay Healthie the Fees for the Service Term in the amounts and at the times specified in the Sales Order. All payments shall be made in U.S. Dollars. Healthie may increase the Fees for any Renewal Term by up to United States Consumer Price Index (CPI) + 3% each subsequent year for equivalent subscription.
2. Registered Users/Clients.  The minimum number of Clients and/or Authorized Health Professionals (see ‘Standard Seats’ for Authorized Health Professionals) will be invoiced as set out on the Sales Order but may be increased by Subscriber from time to time pursuant to this Section. If Subscriber desires to increase the number of Registered Users or Clients, then Subscriber may purchase additional access for Registered Users or additional Clients as applicable per the Sales Order by paying Healthie the fees set forth in the Sales Order. Healthie may from time to time audit the number of Registered Users or Clients using the Services. If Healthie discovers that the actual usage and access exceeds the usage and access specified in the Sales Order, then Healthie shall invoice Subscriber and Subscriber shall pay Healthie the applicable fees for such additional usage.
3. Taxes.  Subscriber is responsible for any sales, value-added, use or other taxes, tariffs and governmental charges that are due in connection with the sale and provision of the Services or access to the Healthie System hereunder (except taxes based on Healthie’s net income). If Healthie is required to pay any such taxes or charges based on the Healthie System, the Services or other items provided to Subscriber, then Healthie shall bill Subscriber for, and Subscriber shall pay, those charges. If Subscriber is exempt from taxation, Subscriber shall obtain and provide to Healthie any certificate of exemption or similar document required to exempt any transaction under this Agreement from sales tax, use tax or other tax liability.
4. Payment Terms.  In addition to any other remedies available to Healthie, if Subscriber fails to pay any amounts within 30 days after payment is due, then Subscriber shall pay Healthie a late payment charge equal to 1.25% per month (or the highest rate permitted by law, if lower) of the unpaid overdue amounts, together with all costs and expenses, including reasonable attorneys’ fees, incurred by Healthie in collecting overdue amounts
5. Manner Requested. The parties acknowledge and intend that the terms contained in this Agreement related to the manner of a request for access, exchange, or use of electronic health information (as defined at 45 C.F.R. § 171.102), including, without limitation, any and all terms related to fees, reflect the Parties’ mutual agreement (in an arm’s length transaction without coercion) and meet the “manner requested” condition of the Manner Exception at 45 C.F.R. §§ 171.301(a).

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5. Ownership Rights.

1. Healthie’s Ownership. Healthie and its licensors are the sole owners of the Healthie System (and all components thereof apart from the Subscriber Data), the Services, and all copyright, trade secret, patent, trademark and other intellectual property rights therein and thereto. This Agreement does not provide Subscriber with any rights to the Healthie System, the Services or any copies thereof except as expressly set forth herein.
2. Subscriber Data. As between Subscriber and Healthie, Subscriber is the sole owner of the Subscriber Data (including but not limited to the Client Data) and all intellectual property rights therein and thereto, and this Agreement does not provide Healthie with any rights to the Subscriber Data except as expressly set forth herein.

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6. Nondisclosure.

1. Confidentiality Obligations.
   
   1. Confidential Information.  From time to time, either party (the “Disclosing Party”) may disclose or make available to the other party (the “Receiving Party”), whether orally or in physical form, confidential or proprietary information concerning the Disclosing Party or its business, products, customers, or services, including but not limited to information or documents concerning: (1) financial information, strategic business plans, policies or methods; (2) marketing, claims, sales, underwriting strategy, and decision making processes; (3) pricing or profit information; (4) lists of actual or prospective customers; (5) proprietary or confidential intellectual property; and (6) intellectual property of third parties licensed to the disclosing party (collectively, “Confidential Information”) in connection with this Agreement. Each party agrees that: (i) it will use Confidential Information belonging to the Disclosing Party solely for the purpose(s) of this Agreement; and (ii) it will take reasonable precautions, but no less than it would take to prevent the disclosure of its own similar Confidential Information, to ensure that it does not disclose Confidential Information belonging to the Disclosing Party to any third party (other than the Receiving Party’s employees, contractors, or professional advisors on a need-to-know basis who are bound by obligations of nondisclosure and limited use at least as stringent as those contained herein) without first obtaining the Disclosing Party’s written consent. Upon request by the Disclosing Party and upon termination or expiration of the Agreement, the Receiving Party will return all copies of any Confidential Information to the Disclosing Party. For Confidential Information that does not constitute trade secrets under applicable law, these confidentiality obligations will expire three years after the termination or expiration of this Agreement, and for Confidential Information that constitutes trade secrets, they survive until such Confidential Information ceases to be a trade secret. The Receiving Party will be responsible for any breach of this Section 6 by its employees, representatives, and agents. Non-public information regarding the Healthie System and the Services (including but not limited to the Services and their performance, operation, and data formats) and the Documentation are the Confidential Information of Healthie. The terms of this Agreement are the Confidential Information of both parties but may be disclosed by either party with its advisors and potential investors or acquirers who are subject to confidentiality obligations or to enforce its terms.
   2. Subscriber Data.  Healthie may use Subscriber Confidential Information and Subscriber Data to (i) provide the Services to Subscriber as contemplated herein, (ii) monitor Subscriber’s and its Registered Users’ and Clients’ use of the Services, (iii) enforce the terms of this Agreement, and (iv) study usage of the Healthie System, including to aggregate with other subscribers’ usage data, in order to identify patterns of use and/or improve or market the Services and Healthie System. Subscriber expressly acknowledges and agrees that: (A) Healthie may process Client Data that is “protected health information” (as defined under HIPAA and the Business Associate Agreement) into de-identified or aggregated form that does not reveal the identity of Clients or any personally identifiable information of Clients (“De-Identified Client Data”); and (B) because De-Identified Client Data is not subject to regulation under HIPAA and does not constitute “protected health information” under HIPAA, the Business Associate Agreement and this Agreement do not restrict Healthie’s use or transfer of such De-Identified Client Data.
   3. Exclusions.  For purposes hereof, “Confidential Information” will not include any information that the Receiving Party can establish by convincing written evidence: (i) was independently developed by the Receiving Party without use of or reference to any Confidential Information belonging to the Disclosing Party; (ii) was acquired by the Receiving Party from a third party having the legal right to furnish same to the Receiving Party; or (iii) was at the time in question (whether at disclosure or thereafter) generally known by or available to the public (through no fault of the Receiving Party). Subscriber Data is not Confidential Information and Healthie’s obligations regarding Subscriber Data are specifically addressed in Section 6.1(b) and the Business Associate Agreement.
   4. Required Disclosures.  These confidentiality obligations will not restrict any disclosure required by order of a court or any government agency, provided that the Receiving Party gives prompt notice to the Disclosing Party of any such order and reasonably cooperates with the Disclosing Party at the Disclosing Party’s request and expense to resist such order or to obtain a protective order.
2. Equitable Relief.  Because unauthorized access, use, disclosure or transfer of the Confidential Information or other intellectual property of either party in violation of this Section 6 will diminish substantially the value of such Confidential Information or other intellectual property and irreparably harm the owner of such Confidential Information or intellectual property, if either party breaches the provisions of this Section 6, the other party shall be entitled to seek equitable relief, including a restraining order, preliminary and permanent injunctive relief, specific performance and any other relief that may be available from any court, without providing a bond or other security, in addition to any other remedy to which such party may be entitled at law or in equity.
3. Media and Press.  Neither Subscriber nor any of its current employees or affiliates will make any statement, directly or indirectly, to the press or media concerning or related to Healthie’s Confidential Information or otherwise or any of its employees or senior executives, whether on or off the record, without the prior written consent of Healthie. During the Service Term and for one year afterwards, Subscriber agrees, on behalf of itself and its affiliates and their respective employees, Registered Users, officers, and directors (collectively, “Subscriber Parties”), that the Subscriber Parties shall not make, publish, or communicate to any person or entity or in any public forum any false, defamatory, or disparaging remarks, comments, or statements concerning Healthie or Healthie’s business, products, or services. This restriction does not apply to truthful statements made in connection with legal proceedings or process, required governmental testimony or filings or administrative or arbitral proceedings, or communications described in Section 6.5.
4. Business Associate Agreement.  Except as otherwise expressly provided herein, Healthie shall use the Subscriber Data in accordance with the terms of the Business Associate Agreement.
5. Communications. For the avoidance of doubt, nothing in this Agreement shall be construed to prohibit or restrict any communication in a manner that violates the Condition of Certification at 45 C.F.R. § 170.403(a).

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7. Third-Party Services.

1. Third-Party Agreement. Subscriber may choose to use the Services together with a third-party platform, add-on, service, or product re-sold by Healthie, including third-party applications and plug-ins, under third-party license terms (“Third-Party Services”). Subscriber’s use of Third-Party Services is subject to Subscriber’s agreement to the terms of the relevant provider of the Third-Party Service (“Third-Party Agreement”) and not this Agreement. 
2. Content Updates. Subscriber acknowledges that content relating to integrations built by Third-Party Services found at help.gethealthie.com and harbor.gethealthie.com are updated by the respective provider of the Third-Party Services. Healthie makes no warranties, promises or guarantees relative to the functionality described in that content. Healthie allows the respective provider to integrate with the Healthie System, and then Healthie makes that integration available to the Subscriber.
3. Compliance with Third-Party Agreement. By using such Third-Party Services, Subscriber warrants that it will strictly comply with the Third-Party Agreement, any applicable Third-Party documentation, materials, policies and procedures, and any applicable government laws, rules, regulations and policies related to Subscriber’s use of the Third-Party Services. Subscriber shall provide or obtain any documents or supplementary agreements (including, if applicable, end user agreements) requested to comply with said laws, rules, regulations, and policies and will fully cooperate with any obligations related to Subscriber’s use of the Third-Party Services or any verification requirements. Subscriber agrees to abide by all federal and state regulations regarding Subscriber’s use of the Third-Party Services. 
4. Cooperation. Subscriber agrees to make its operations, methods, documentation and appropriate personnel accessible to the provider of the Third-Party Services as may reasonably be required, to enable the supplier to confirm Subscriber’s compliance with its obligations. Subscriber is solely responsible for acquiring, operating, and maintaining all hardware and software with respect to Subscriber’s use of the Third-Party Services. 
5. Subscriber’s Responsibilities. Healthie shall have no responsibility for any costs incurred in connection with modifications or enhancements to Subscriber’s instance of the Healthie System necessary for implementing Subscriber’s interface with the Third-Party Services. Testing and certification of all interfaces are the responsibility of Subscriber. Any modifications or enhancements to existing integrations built by Third Party-Services are completed at the discretion, and by, the provider of the Third Party-Services. Healthie makes no guarantees to modifications or enhancements of existing integrations built by the provider of Third-Party Services.
6. Disclaimer. Use of such Third-Party Services is at Subscriber’s risk and applicable Business Associate Agreement (if any). Supplier makes no warranties or representations regarding such third-party services and bears no responsibility or liability for such third-party services. . 
7. Effect of Termination. Subscriber’s rights to use the Third-Party Service with the Healthie Services will terminate upon the earlier of termination of this Agreement, as set forth in the Third-Party Agreement, or as set forth in the Sales Order. Upon termination or expiration of this Agreement or use of Third-Party Services, Subscriber shall promptly cease all use of the Third-Party Services and pay to the supplier of the Third-Party Services all outstanding fees and charges due and at Subscriber’s expense will return all confidential information of the supplier of the Third-Party Services.
8. E-Labs Direct Terms of Use. E-Labs Direct currently builds upon a third-party “Junction” and by using E-Labs Direct, you agree to adhering to the terms and conditions below. 

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Junction Terms and Conditions

Content

Text, pictures, video, information, data and other materials not belonging to you (e.g., your personally identifiable information (PHI) and personal health information (PHI) (collectively, “Your Data”)) found on or through the Junction Platform (“Content”) is the property of Junction or used with permission. You may not distribute, modify, transmit, reuse, download, repost, copy, or use said Content, whether in whole or in part, for commercial purposes or for personal gain, without express advance written permission from Junction.

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Prohibited Uses

You may use the Junction Platform and the services available therefrom (collectively, the “Services”) only for lawful purposes and in accordance with these terms. You agree not to use a Service:

1. In any way that violates any Applicable Law. 
2. For the purpose of exploiting, harming, or attempting to exploit or harm minors in any way by exposing them to inappropriate content or otherwise. 
3. To transmit, or procure the sending of, any advertising or promotional material, including any "junk mail", "chain letter," "spam," or any other similar solicitation. 
4. To impersonate or attempt to impersonate another Active User or any other person or an entity. 
5. In any way that infringes upon the rights of others, or in any way is illegal, threatening, fraudulent, or harmful, or in connection with any unlawful, illegal, fraudulent, or harmful purpose or activity. 
6. To engage in any other conduct that restricts or inhibits anyone's use or enjoyment of the Service, or which, as determined by Junction, may harm or offend Junction or users of a Service or expose them to liability.

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Additionally, you agree not to:

1. Use a Service in any manner that could disable, overburden, damage, or impair a Service or interfere with any other party's use of a Service, including their ability to engage in real time activities through Service. 
2. Use any robot, spider, or other automatic device, process, or means to access a Service for any purpose, including monitoring or copying any of the material on Service. 
3. Use any manual process to monitor or copy any of the Content or for any other unauthorized purpose without Junction’s prior written consent. 
4. Use any device, software, or routine that interferes with the proper working of a Service. 
5. Introduce any viruses, trojan horses, worms, logic bombs, or other material which is malicious or technologically harmful. 
6. Attempt to gain unauthorized access to, interfere with, damage, or disrupt any parts of a Service, the server on which a Service is stored, or any server, computer, or database connected to a Service. 
7. Attack a Service via a denial-of-service attack or a distributed denial-of-service attack. 
8. Take any action that may damage or falsify Junction’s rating. 
9. Otherwise attempt to interfere with the proper working of a Service.

You represent and warrant that: (1) you are not under investigation by any governmental authority for, nor have you been charged with, or convicted of, money laundering, drug trafficking, terrorist-related activities, any crimes which in the United States would be predicate crimes to money laundering, or any violation of any Anti-Money Laundering Laws (as hereinafter defined); (2) you have not been assessed civil or criminal penalties under any Anti-Money Laundering Laws; and (3) you have not had any of your funds seized or forfeited in any action under any Anti Money Laundering Laws.

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Analytics

Junction may use third-party service providers to monitor and analyze the use of a Service.

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PostHog Analytics

Junction uses PostHog, an open-source analytics platform, to collect and analyze data about how users interact with our services. This helps Junction improve functionality, optimize user experience, and address any issues more efficiently. PostHog tracks anonymized usage data, such as page views, clicks, and user navigation patterns. Junction ensures that no personally identifiable information (PII) is collected through PostHog, and all data is handled in compliance with relevant data protection laws. 

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Accounts

You guarantee that the information you provide us is accurate, complete, and current at all times. Inaccurate, incomplete, or obsolete information may result in the immediate termination of your account on a Service.

You are responsible for maintaining the confidentiality of your account and password, including but not limited to the restriction of access to your computer and/or account. You agree to accept responsibility for any and all activities or actions that occur under your account and/or password, whether your password is with a Service or a third-party service. You must notify us immediately upon becoming aware of any breach of security or unauthorized use of your account.

You may not use as a username the name of another person or entity or that is not lawfully available for use, a name or trademark that is subject to any rights of another person or entity other than you, without appropriate authorization. You may not use as a username any name that is offensive, vulgar or obscene.

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Sentry

Sentry is open-source error tracking solution provided by Functional Software Inc. More information is available here: https://sentry.io/privacy/

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Links To Other Web Sites

The Services may contain links to third party web sites or services that are not owned or controlled by Junction.

Junction has no control over, and assumes no responsibility for the content, privacy policies, or practices of any third party web sites or services. Junction does not warrant the offerings of any of these entities/individuals or their websites.

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YOU ACKNOWLEDGE AND AGREE THAT Junction SHALL NOT BE RESPONSIBLE OR LIABLE, DIRECTLY OR INDIRECTLY, FOR ANY DAMAGE OR LOSS CAUSED OR ALLEGED TO BE CAUSED BY OR IN CONNECTION WITH USE OF OR RELIANCE ON ANY SUCH CONTENT, GOODS OR SERVICES AVAILABLE ON OR THROUGH ANY SUCH THIRD PARTY WEB SITES OR SERVICES.

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Junction STRONGLY ADVISES YOU TO READ THE TERMS OF SERVICE AND PRIVACY POLICIES OF ANY THIRD PARTY WEB SITES OR SERVICES THAT YOU VISIT.

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8. Service Levels; Limited Warranty.

1. Service Levels.  Healthie will provide the Services in accordance with the service levels described below (“Service Levels”). 

Uptime SLA. Healthie will maintain a Monthly Uptime Percentage for the Services of 99.3% (“Uptime SLA”)..

If Healthie fails to meet the Uptime SLA, it will issue a service credit to the Fees for the affected month (“Service Credit”) based on the applicable Monthly Uptime Percentage as identified in the table below:

99.3% and above: 0% Service Credit; 

99.29 – 97%: 5% Service Credit; 

96.99 – 95%: 8% Service Credit; 

94.99 – 93%: 15% Service Credit. 

Below 93%, Subscriber may, in its sole discretion, terminate the Sales Order without penalty and receive a refund of any prepaid but unearned Fees.

“Monthly Uptime Percentage” means the total number of minutes in the calendar month minus the number of minutes of Downtime in that calendar month, divided by the total number of minutes in the calendar month.

“Downtime” means the total time in a month, other than Scheduled Downtime, during which the Healthie Services are not accessible or available for use by Registered Users.

“Scheduled Downtime” means those downtime periods of which Healthie has notified Subscriber at least five (5) days prior to the commencement of such downtime. Scheduled Downtime is not considered Downtime for purposes of the Healthie Uptime SLA.

Exclusions. The Uptime SLA does not apply to, and Service Credits will not be provided for, any performance issues: (i) caused by factors outside of Healthie’s reasonable control; (ii) (ii) that resulted from any actions or inactions of Subscriber or any third-parties, including providers of Third-Party Services; or (iii) that resulted from equipment not within the primary control of Healthie. The Service Credits are Subscriber’s sole and exclusive remedy for any failure by Healthie to meet the Uptime SLA. 

Subscriber Must Request Service Credit. In order to receive Service Credits or terminate the Agreement (if applicable), Subscriber must notify Healthie by email or otherwise in writing within thirty (30) days from the time Subscriber becomes eligible to receive a Service Credit or termination right.

Maximum Service Credit. The aggregate Service Credits that Subscriber can claim for any single calendar month shall not exceed 15% of the Fees for that single month. Service Credits may not be exchanged for, or converted to, monetary compensation.

2. Limited Warranty.  Healthie warrants to Subscriber that the Healthie System shall perform substantially in accordance with the Documentation. For any breach of this warranty, Healthie shall, as its sole obligation and Subscriber’s exclusive remedy, (a) correct the nonconformity, or (b) provide reasonable alternative functionality at Healthie’s sole cost and expense, at Healthie’s option. If Healthie fails to correct the nonconformity or provide reasonable alternative functionality within 90 days after Subscriber notified Healthie of the breach of warranty, then Subscriber may terminate this Agreement and Healthie shall refund to Subscriber a prorated amount of the unused prepaid Subscription Fees for the then-current Service Term or Renewal Term based on the remaining portion of the then-current Term for which such Subscription Fees were paid..

3. Disclaimer. Except for the warranties provided in section 8.2, Healthie disclaims all other warranties, both express and implied, with respect to the Healthie system and services, including but not limited to all implied warranties of merchantability, fitness for a particular purpose (irrespective of any previous course of dealing between the parties or custom or usage of trade), or that the Healthie system or services will be uninterrupted or error free.

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9. Limitation of Liability.

1. Damages Cap.  In no event will Healthie’s liability arising out of or related to this Agreement, the Business Associate Agreement, or the Sales Order, whether in contract, tort (including negligence) or otherwise exceed, in the aggregate, the subscription fees paid under the Sales Order giving rise to the claim during the 12 month period prior to when the most recent claim arose.

2. Damages Disclaimer.  In no event will Healthie be liable for any indirect, special, incidental, exemplary, punitive or consequential damages, or any loss of revenue, profits, sales, data, data use, goodwill or reputation, arising out of or in connection with this Agreement, the Business Associate Agreement, or the use or performance of the Healthie system or the services, whether or not Healthie has been made aware of the possibility of such damages.

3. Risk Allocation.  Subscriber acknowledges that the Subscription Fees and other fees under this Agreement have been agreed by Healthie in reliance on the risk allocations included in Sections 8.3, 9.1, and 9.2 above and that these provisions are an essential term of this Agreement

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10. Indemnification.

1. Healthie’s Indemnification Obligations. Healthie shall defend, indemnify, and hold harmless Subscriber and its officers, directors, employees, and shareholders from and against any and all damages, penalties, judgments and reasonable related costs and expenses, including but not limited to reasonable legal fees and expenses, (“Damages”) arising out of any third party claim or allegation (a “Claim”) that Subscriber’s use or access of the Healthie System or Services in accordance with the terms of this Agreement infringes the patent, copyright or other intellectual property right of any third party, except to the extent (a) due to any Subscriber Data or specific materials that Subscriber uses or uploads into the Healthie System or (b) such Claim is based on Subscriber’s use of such the Healthie System in combination with other services and products not supplied by Healthie and not required by the Documentation.
2. Subscriber’s Indemnification Obligations. Subscriber shall defend, indemnify, and hold harmless Healthie and its officers, directors, employees, and shareholders from and against any and all Damages, including but not limited to legal fees and expenses, arising out of (a) any third party Claim that any Subscriber Data posted or loaded into the Healthie System or Services by Subscriber or its Registered Users or Clients infringes the patent, copyright or other intellectual property right of any third party or violates any laws, including privacy laws, (b) any Claim by or with respect to a Client (that is not attributable to Healthie’s breach of the Business Associate Agreement), or (c) any Claim related to or arising from Subscriber’s use or misuse of Services or Third-Party Services or violation of a Third-Party Agreement. 
3. Indemnification Procedures. If Subscriber or Healthie intends to claim indemnification hereunder (for itself or for another Indemnitee) with respect to any Damages arising under a Claim, then Subscriber or Healthie (the “Indemnified Party”) shall promptly notify the other party (the “Indemnifying Party”) of any Claim in respect of which the Indemnified Party (whether for itself or for one of the persons entitled to indemnification under Section 10.1 or 10.2) intends to claim such indemnification reasonably promptly after the Indemnified Party is aware thereof, and the Indemnifying Party shall assume the defense of any related third party action, suit or proceeding with counsel of the Indemnifying Party’s choice. The indemnification obligations in this Section 10 do not apply to amounts paid in settlement of any claim, loss, damage or expense if such settlement is effected without the consent of the Indemnifying Party, whose consent shall not be withheld or delayed unreasonably. The failure of the Indemnified Party to deliver notice to the Indemnifying Party within a reasonable time after the Indemnified Party becomes aware of any such matter, if prejudicial to Indemnifying Party’s ability to defend such action, shall relieve the Indemnifying Party of any liability under this Section 10 with respect to such Claim. The Indemnified Party and all indemnitees shall cooperate fully with the Indemnifying Party and its legal representatives in the investigation of any matter covered by this indemnification.
4. Infringement Remedies. If the Healthie System or Services become, or in Healthie’s opinion, are likely to become the subject of a Claim or an injunction preventing its use as contemplated herein, Healthie may, at its option (a) procure for Subscriber the right to continue to access the Healthie System or Services hereunder, (b) replace or modify the Healthie System or Services so that it becomes non-infringing, or, if Healthie determines, in its sole discretion, that (a) and (b) are not commercially practical for Healthie, then (c) Healthie may terminate this Agreement and refund to Subscriber a prorated amount of the Subscription Fees paid in advance for the then current Service Term or Renewal Term based on the remaining portion of the then current term for which such Subscription Fees were paid.
5. Sole and Exclusive. This Section 10 states the entire liability of Healthie, and Subscriber’s sole and exclusive remedy, with respect to infringement of third-party intellectual property rights by the Services or the Healthie System or any part thereof or by its operation.

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11. Miscellaneous.
    
    1. Trademark and Names.  This Agreement does not grant either party the right to use any trademark, trade name or logo of the other party in any advertising or promotional material, except that Healthie may identify Subscriber as a customer of Healthie, including as a subscriber of the Healthie Services, in promotional materials and published lists of Healthie’s customers. Subscriber agrees that Healthie may issue a press release, in a form to be mutually agreed by Subscriber and Healthie, describing this subscription including a quote from Subscriber. Following the go-live date of the Healthie Services, Subscriber agrees to serve as a reference for Healthie and to participate in reference calls, testimonials, or case studies as reasonably requested by Healthie.

2. Entire Agreement.  This Agreement, the Sales Order and its Exhibits, and the Business Associate Agreement constitute the entire agreement between Healthie and Subscriber with respect to the subject matter hereof. No addendum, waiver, consent, modification, amendment or change of the terms of this Agreement shall bind either party unless in writing and signed by duly authorized officers of Subscriber and Healthie. 

3. Severability.  In the event that any provision of this Agreement is held by a court of competent jurisdiction to be unenforceable because it is invalid or in conflict with any law of any relevant jurisdiction, the validity of the remaining provisions shall not be affected, and the rights and obligations of the parties shall be construed and enforced as if the Agreement did not contain the particular provisions held to be unenforceable.

4. Assignments.  Subscriber shall not assign (including but not limited to by operation of law) this Agreement or any of its rights, obligations or subscriptions granted hereunder without Healthie’s prior written consent, which shall not unreasonably be withheld, except that Subscriber may assign this Agreement to a successor to its business in connection with a merger or sale of all or substantially all of its assets. This Agreement shall insure to the benefit of the parties and their permitted successors and assigns.

5. Notices.  Any notice by a party under this Agreement shall be in writing and either personally delivered or sent via reputable overnight courier (such as Federal Express) or certified mail, postage prepaid and return receipt requested addressed to the other party to (a) the address on the signature page of this Agreement (b) or, in each case, such other address of which either party may from time to time notify the other in accordance with this Section 11.5. All notices shall be in English and shall be deemed effective on the date of personal delivery, one business day after deposit with an overnight courier, or five business days after deposit in the mail. If granted by Healthie, Notices may be delivered via electronic mail to email listed above on the signature page. 

6. Governing Law.  The validity, construction and interpretation of this Agreement, and the rights and duties of the parties, shall be governed by and construed in accordance with the laws of the State of New York, U.S.A. Subject first to Section 11.7, if a lawsuit or court proceeding is permitted under this Agreement, the parties will be subject to the exclusive jurisdiction of the state and federal courts located in the State of New York, and the parties hereby agree and consent to the exclusive jurisdiction and venue of such courts.’

7. Arbitration. The parties agree to resolve all disputes arising under or in connection with this Agreement through binding arbitration. A party who intends to seek arbitration must first send a written notice of the dispute to the other party. The parties will use good faith efforts to resolve the dispute directly, but if the parties do not reach an agreement to do so within 30 days after the notice is received, either party may commence an arbitration proceeding. The arbitration will be conducted in accordance with the applicable rules of the American Arbitration Association (“AAA”). The arbitration will be conducted in English in the state of New York. If the parties do not agree on an arbitrator, the arbitrator will be selected in accordance with the applicable rules of the AAA for the appointment of an arbitrator. The selection of an arbitrator under the rules of the AAA will be final and binding on the parties. The arbitrator must be independent of the parties. The arbitrator’s decision will be final and binding on both parties, and the arbitrator must issue a reasoned written decision sufficient to explain the essential findings and conclusions on which the decision and award, if any, are based. The costs and expenses of the arbitration will be shared equally by both parties; however, if the arbitrator finds that either the substance of the claim or the relief sought in arbitration is frivolous or brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)), then the payment of all fees will be governed by the AAA Rules. However, this Section 11.7 will not prohibit either party from: (a) bringing an individual action in small claims court; (b) seeking injunctive or other equitable relief in a court of competent jurisdiction in accordance with Section 6.2; (c) pursuing an enforcement action through the applicable federal, state, or local agency if that action is available; or (d) filing suit in a court of law to address an intellectual property infringement or misappropriation claim. If this Section 11.7 is found to be unenforceable, the parties agree that the exclusive jurisdiction and venue described in Section 11.63 will govern any action arising out of or related to this Agreement.

8. No Waiver.  The waiver by either party of a breach of a default of any provision of this Agreement by the other party shall not be construed as a waiver of any succeeding breach of the same or any other provision, nor shall any delay or omission on the part of either party to exercise or avail itself of any right, power or privilege that it has, or may have thereunder, operate as a waiver of any right, power or privilege by such party.

9.  Force Majeure.  In the event that either party is unable to perform any of its obligations under this Agreement because of causes beyond its reasonable control or because of any act of God, accident to equipment or machinery; any fire, flood, hurricane, tornado, storm or other weather condition; any war, act of war, act of public enemy, terrorist act, sabotage, riot, civil disorder, act or decree of any governmental body; any failure of communications lines, transportation, light, electricity or power; any earthquake, civil disturbance, commotion, lockout, strike or other labor or industrial disturbance; or any illness, epidemic, pandemic, quarantine, death or any other natural or artificial disaster, the party who has been so affected shall immediately give notice to the other party and shall do everything reasonably possible to resume performance. Upon receipt of such notice, all obligations under this Agreement shall be immediately suspended and performance times shall be considered extended for a period of time equivalent to the time lost because of any such delay. Nothing provided herein shall excuse the delay of any payment that is validly due by Subscriber under this Agreement.
   

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