INNOVACCER TERMS OF USE LAST UPDATED: MAY 15, 2020 These Terms of Use (this “Agreement”) are a legally binding contract between Innovaccer, Inc., a Delaware corporation having its principal place of business at 535 Mission St, Suite 1829, 18th floor, San Francisco, CA, 94105, USA (“Company”), and any entity entering into an order form with Company which references this Agreement (the “Customer”) for Customer to use Company’s software products and services. Company and the Customer are hereinafter sometimes referred to as the “Parties” and individually as a “Party.” 1. Definitions. Capitalized terms not otherwise defined in this Agreement shall have the meanings ascribed to them below. 1.1 “Company Materials” means the Software, related specifications and Documentation, Company’s Confidential Information, and any and all other proprietary documents, materials, devices, methods, processes, hardware, software and other technologies and inventions, technical or functional descriptions, requirements, plans or reports of Company, that are provided or used by or on behalf of Company or any Company personnel in connection with the Software or relate to the Services. Company Materials also include the information technology infrastructure used by or on behalf of Company in performing the Services or providing the Software, including all computers, software, hardware, databases, electronic systems and networks, whether operated directly by Company or through the use of third-party services. 1.2 “Confidential Information” shall have the meaning provided in Section 9. 1.3 “Customer Systems” means Customer’s or any third party information technology infrastructure, including computers, software, hardware, databases, electronic systems (including database management systems) and networks, whether owned and/or operated by the Customer (or through the use of third party services) or by a third party. 1.4 “Data” shall mean any data or information input and/or stored in the Software by Users or data that is Processed by Company through the Software. For the avoidance of doubt, Data does not include information reflecting the access or use of the Software by or on behalf of Customer or any User. 1.5 “Documentation” means any documentation provided by Company for use with the Software under this Agreement. 1.6 “Intellectual Property Rights” means any and all registered and unregistered rights granted, applied for or otherwise now or hereafter in existence under or related to any patent, copyright, trademark, trade secret, mask work, trademark, moral right, database protection or other intellectual property rights laws, and all similar or equivalent rights or forms of protection, in any part of the world. 1.7 “Losses” means any and all losses, damages, liabilities, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs or expenses of whatever kind, including reasonable attorneys' fees and the costs of enforcing any right to indemnification hereunder and the cost of pursuing any insurance providers. 1.8 “Marks” means a Party’s corporate or trade name, trademark(s), logo(s), domain names or other identification of such Party. 1.9 “Order” means an order form signed by the Parties specifying (i) the details of the Software and Services to be provided by Company under the terms of this Agreement, (ii) the time period for which the access to Software and provision of Services are to be in effect, (iii) the fees and charges to be paid by Customer to Company in consideration thereof and (iv) any other terms agreed between the Parties. 1.10 “Process” means to take any action or perform any operation or set of operations that the Software is capable of taking or performing on any data, information or other content, including to collect, receive, input, upload, download, record, reproduce, store, organize, compile, combine, log, catalog, cross-reference, manage, maintain, copy, adapt, alter, translate or make other derivative works or improvements, process, retrieve, output, consult, use, perform, display, disseminate, transmit, submit, post, transfer, disclose or otherwise provide or make available, or block, erase or destroy. "Processing" and "Processed" have correlative meanings. 1.11 “Representatives” means Party’s and its affiliates’ employees, officers, contractors and agents and subcontractors. 1.12 “Services” means any maintenance, training, configuration, data extraction, data feed, support, hosting, professional, and any other service provided by Company to Customer as specified in the Order. 1.13 “Software” means Company’s proprietary software, platform, portal, dashboard or applications (including web app, desktop app and mobile app) and any computer program or module related thereto, including all Documentation, new versions, updates, enhancements, customizations, upgrades, revisions, improvements and modifications of the foregoing that Company provides to Customer or develops under this Agreement as specified in the Order. 1.14 “Term” shall have the term of the engagement between the Parties as specified in the Order. 1.15 “Third Party Materials” means materials and information, in any form or medium, including any open-source or other software, documents, data, content, specifications, products, equipment or components of or relating to the Software that are not proprietary to Company. 1.16 “Users” means all users of the Software and Services, including but not limited to individuals who access and use the Software from any public platform or website as agreed by the Parties hereunder. 2. Right to Access and Use. 2.1 Software and Services. Subject to Customer’s compliance with the terms and conditions of this Agreement and Documentation, Company shall provide Customer, a limited, non-exclusive, non-transferable, non-sublicensable, non-assignable right to access and use the Software solely for its internal business operations within the United States of America for the duration of the Term. Customer’s access to the Software and Company’s provision of Services may be subject to service level agreement as specified in the Order and other conditions as may be specified in the Order. Any Third Party Materials provided by Company shall be subject to the applicable third party terms of use or the applicable agreement between Company and such third party, provided that such third party agreement or terms of use shall be provided to Customer upon request. Company shall provide the Services in accordance with the requirements specified in the Order. Company will employ security measures in accordance with applicable industry practice to protect Data from unauthorized use or disclosure. Customer agrees that, except as otherwise specified in the applicable Order, Company will be hosting Data on servers in the United States provided by Company’s hosting/cloud services provider; provided however that Company may access, use and Process Data from outside the United States through a secure VPN/Citrix connection. Company has and will retain sole control over the operation, provision, maintenance and management of the Software and Company Materials, including (a) the location(s) where any of the Services are performed; (b) selection, deployment, modification and replacement of the Software, provided that Company will not modify the Software to remove any material features without providing prior notice to Customer; and (c) performance of support services and maintenance, upgrades, updates, corrections and repairs. Company will have the right to review and monitor all use of the Company Materials by Customer and its Users to ensure compliance with all of the terms of the Documentation. 2.2 Changes. Company reserves the right, in its sole discretion, to make any changes to the Software and Company Materials that it deems necessary or useful to: (a) maintain or enhance (i) the quality or delivery of Company's services to its customers, (ii) the competitive strength of or market for Company's services or (iii) the Software’s cost efficiency or performance; or (b) to comply with applicable law. Without limiting the foregoing, either Party may, at any time during the Term, request in writing changes to the Software but any such changes will not be implemented unless mutually agreed to in writing. 2.3 Reservation of Rights. Except for the limited access rights granted in Section 2.1 for the duration of the Term, nothing in this Agreement grants any title or ownership interest in or to any Intellectual Property Rights in or relating to, the Software, Company Materials or Third Party Materials, whether expressly, by implication, estoppel or otherwise. All title and ownership interest in and to the Services, the Software, the Company Materials and the Third Party Materials are and will remain with Company and the respective rights holders in the Third Party Materials. Company has and will retain sole control over the operation, provision, maintenance and management of the Software and Company Materials, including the: (a) location(s) where any of the Services are performed; (b) selection, deployment, modification and replacement of the Software. 2.4 Authorization Limitations and Restrictions. Customer’s access to and use of the Software and any Company Materials is subject to the restrictions in this Section 2.4. Customer agrees to be bound by the actions of its Users and shall not permit any User to access or use the Software or the Company Materials except as expressly permitted by this Agreement and, in the case of Third Party Materials, the applicable third party agreement or terms of use. The Parties agree and the Customer acknowledges that a violation of this Section 2.4 shall be deemed a material breach of this Agreement. For purposes of clarity and without limiting the generality of the foregoing, Customer or its Users shall not, except as this Agreement expressly permits: (i) copy, modify or create derivative works or improvements of the Software or Company Materials, except that, in the case of Documentation, Customer may create a reasonable number of copies of the written Documentation and training materials for training purposes; (ii) rent, lease, lend, sell, sublicense, assign, distribute, publish, transfer or otherwise make available any Software or Company Materials to any third party, including on or in connection with the internet or any time-sharing, service bureau, software as a service, cloud or other technology or service; (iii) reverse-engineer, disassemble, decompile, decode, adapt or otherwise attempt to derive or gain access to the source code of the Services, Software or Company Materials, in whole or in part; (iv) bypass or breach any security device or protection used by the Software or Company Materials or access or use the Software or Company Materials other than by a User through the use of his or her own then valid access credentials issued by Company; (v) input, upload, transmit or otherwise provide to or through the Software or Company Materials, any information or materials that Customer knows to be unlawful or injurious, or contain, transmit or activate any virus, worm, malware or other malicious computer code or any application or function of any of the foregoing or the security, integrity, confidentiality or use of the Software or any data Processed by the Software; (vi) damage, destroy, disrupt, disable, impair, interfere with or otherwise impede or harm in any manner the Software, Company Materials or Company's provision of services to any third party; (vii) remove, delete, alter or obscure any trademarks, specifications, Documentation, warranties or disclaimers, or any copyright, trademark, patent or other intellectual property or proprietary rights notices from any Services or Company Materials, including any copy thereof; (viii) access or use the Software or Company Materials in any manner or for any purpose that violates any applicable law; (ix) access or use the Software to communicate any message or material that is harassing, libelous, threatening, obscene or would violate the copyright or other intellectual property right or privacy right of any person or is otherwise unlawful or that would give rise to civil liability or that constitutes or encourages conduct that could constitute a criminal offense under any applicable law or regulation; (x) access or use the Software or Company Materials for purposes of competitive analysis of the Software or Company Materials, the development, provision or use of a competing software service or product or any other purpose that is to the Company’s detriment or commercial disadvantage; or (xi) otherwise access or use the Software or Company Materials beyond the scope of the authorization set forth in this Agreement or in any manner or for any purpose that is unlawful under applicable law. 2.5 Works for Hire. The Parties do not contemplate the development by Company of any custom-developed deliverables for Customer. In the event Customer requests custom development of deliverables by Company in the future, the Parties will agree to the governing terms at that time separately. Notwithstanding the foregoing, any suggestions or product feedback rendered by a Customer relating to the Services shall not be considered “works made for hire,” or comparable terms, as defined in the United States Copyright Act or other federal or state laws. In furtherance of the foregoing, Customer hereby unconditionally and irrevocably grants to Company an unrestricted and perpetual license to use any feedback or suggestions given to Company, or other ideas for enhancement and recommendations provided by Customer to Company, including all Intellectual Property Rights relating thereto. 3. Customer Obligations. 3.1 Customer Responsibility. Customer shall at all times during the term of this Agreement: (a) be responsible for the acts or omissions of its Users; (b) set up, maintain and operate in good repair and in accordance with the specifications of the Software all Customer Systems that Company may need access to; (c) provide Company personnel with timely access to Customer's premises, Data and Customer Systems as may be reasonably necessary for Company to perform the Services in accordance with the terms of this Agreement; and (d) provide all information, instructions and materials as necessary for Company to perform its obligations under this Agreement and all cooperation and assistance as Company may reasonably request to enable Company to exercise its rights and perform its obligations hereunder. Customer has and will retain sole control over the operation, maintenance and management of, and all access to and use of, the Customer Systems, and sole responsibility for all access to and use of the Software and Company Materials directly or indirectly by or through the Customer Systems or its Users' access credentials issued by Company, with or without Customer’s knowledge or consent, including all results obtained from, and all conclusions, decisions and actions based on, such access or use. 3.2 Access and Security. Customer shall employ all physical, administrative and technical controls, screening and security procedures and other safeguards necessary to securely administer the distribution and use of all access credentials generated by Company to access the Software and protect against any unauthorized access to or use of the Company Materials. 3.3 Effect of Customer Failure or Delay. Company is not responsible or liable for any delay or failure of performance caused in whole or in part by Customer's delay in performing, or failure to perform, any of its obligations under this Agreement. In such case, Company will be given an extension of time equal to the number of days delayed by Customer to perform Company’s obligations. 3.4 Corrective Action and Notice. If Customer becomes aware of any actual or threatened prohibited activity by Customer or any User, Customer shall, and shall cause its Users to, immediately: (a) take all reasonable and lawful measures that are necessary to stop the activity or threatened activity and to mitigate its effects (including, where applicable, by discontinuing and preventing any unauthorized access to the Software and Company Materials and permanently erasing from their systems and destroying any data to which any of them have gained unauthorized access); and (b) notify Company of any such actual or threatened activity. 3.5 Non-Solicitation. During the Term and for 1 year after, Customer shall not directly or indirectly recruit or solicit for employment or engagement as an independent contractor any person then or within the prior 6 months employed or engaged by Company or any subcontractor and involved in any respect with the Software or the performance of this Agreement (other than by general advertisement not directed specifically to such individuals). In the event of a violation of this Section 3.5, Company will be entitled to liquidated damages equal to the compensation paid by Company to the applicable employee or contractor during the prior 12 months. 4. Acceptance. Any Services provided by Company may be subject to acceptance by Customer if mentioned in the Order. Such acceptance by Customer shall be subject to the acceptance procedure in this Section 5 and the acceptance/sign-off criteria as described in the Order. Company will notify Customer when it believes it has completed a milestone as specified in the applicable Order. Customer will have 15 days to evaluate whether the milestone is complete according to the acceptance/sign-off criteria defined in the applicable Order. If Customer believes that a milestone is not complete according to the applicable acceptance/sign-off criteria, Customer will promptly provide a written notice of rejection to Company specifying in reasonable detail the basis for Customer’s rejection. In the event Customer has not provided a written notice of rejection within 15 days after Company’s notification of completion of a milestone, the milestone shall be deemed accepted. Upon receipt of a written notice of rejection by Customer before such 15 day period, Company shall make commercially reasonable efforts to complete the milestone within 30 days to meet the acceptance/sign-off criteria, and the completion of the milestone will again be subject to the acceptance procedure described above. 5. Fees. 5.1 Fees. Customer shall pay Company the fees and charges as set forth in the applicable Order in accordance with the terms set forth in this Section 5 and as may be specified in the Order. The fees are non-refundable and not subject to allocation. 5.2 Taxes. Customer shall, in addition to the other amounts payable under this Agreement, pay, if applicable, all applicable customs, duties, sales, use, value added or other taxes, federal, state or otherwise, however designated, which are levied or imposed by reason of the transactions contemplated by this Agreement, excluding only taxes based on Company’s net income. Customer agrees to indemnify, defend, and hold Company, its officers, directors, consultants, employees, successors and assigns harmless from all claims and liability arising from Customer’s failure to report or pay any such taxes, duties or assessments. 5.3 Payment Terms. Unless otherwise agreed in the Order, Customer shall pay all fees and any reimbursable expenses within 30 days after the date of the invoice therefor. Customer shall make all payments hereunder in US dollars by wire transfer or check. Customer shall make payments to the address or account as the Parties agree to and may specify in writing from time to time. 5.4 Late Payment. If Customer fails to make any payment when due then, in addition to all other remedies that may be available, Company may charge interest on the past due amount at the rate of 1.5% per month, or the maximum allowable under applicable law, whichever is more. Customer shall reimburse Company for all reasonable costs incurred by Company in collecting any late payments or interest, including attorneys' fees, court costs and collection agency fees; and if such failure to pay continues for thirty days following written notice thereof, Company may suspend access to the Software and Services until all past due amounts have been paid, without incurring any obligation or liability to Customer or any other person by reason of such suspension. 5.5 No Deductions or Setoffs. All amounts payable to Company under this Agreement shall be paid by Customer to Company in full without any setoff, recoupment, counterclaim, deduction, debit or withholding for any reason or deduction or withholding of tax as may be required by applicable law. 6. Intellectual Property Rights. 6.1 Company Materials. All right, title and interest in and to the Software and Company Materials, any changes, corrections, bug fixes, enhancements, customizations, updates and other modifications thereto including all Intellectual Property Rights therein, are and will remain with Company and the respective rights holders in the Third-Party Materials. Customer has no right, license or authorization with respect to any of the Software or Company Materials except as expressly set forth in Section 2. All other rights in and to the Software and Company Materials are expressly reserved by Company and the respective third-party licensors. Any data related to Customer’s usage of the Software and Services, for example, number of Users, usage levels, nature and type of application usage, transactions processed, configurations, and reports processed using the Services shall belong exclusively to Company. 6.2 Data. As between Customer and Company, Customer is and will remain the sole and exclusive owner of all right, title and interest in and to all Data, including all Intellectual Property Rights relating thereto, subject to the rights and permissions granted in Section 6.3. Notwithstanding the foregoing, Company shall be permitted to create de-identified information from Data, (in accordance with 45 CFR § 164.502(d) if applicable); and such de-identified data shall belong exclusively to Company; provided however that, Company’s use of such data will not reveal or disclose the identity, whether directly or indirectly, of any individual or specific data entered by any individual using the Software or Services. 6.3 Consent to Use Data. Subject to the terms and conditions of this Agreement, the Customer hereby grants Company a worldwide, non-exclusive, royalty-free license during the Term to use, reproduce, electronically distribute, transmit, have transmitted, perform, display, store, archive, and make derivative works of the Data solely in order to provide the Software and the Services to Customer. 6.4 Limited Trademark License; Marketing Materials. Customer hereby grants Company a royalty-free, non-exclusive, non-transferable, limited term license to use Customer’s Marks for the purpose of aligning the appearance of the Software to Customer’s branding if required under the Order and only as specifically authorized by, and subject to any restrictions stated in, this Agreement. Company may include Customer’s name and Marks in any of Company’s customer lists, testimonials and press releases, including in its website, for the purpose of identifying Customer as a customer of Company and for other business promotional purposes. 7. Representations and Warranty. 7.1 Company Warranty. Company warrants to Customer that during the Term, (a) the Software will perform substantially in accordance with the terms of Documentation, (b) Company has the right to grant Customer the access and usage rights under Section 2.1; and (c) Company has the necessary resources, expertise, and personnel to perform the Services in a professional manner according to the terms and conditions of this Agreement and Order. The foregoing warranty in clause (a) shall not apply to performance issues (i) caused solely by factors outside of Company’s reasonable control; (ii) that result solely from any improper actions or inactions of Customer, its Users, or any third parties; or (iii) that result solely from Customer’s data structure, operating environment or equipment. 7.2 Customer Representations. Customer represents, warrants and covenants to Company that Customer owns or otherwise has and will have the necessary rights and consents in and relating to the Data so that, as received by Company and Processed in accordance with this Agreement, they do not and will not infringe, misappropriate or otherwise violate any Intellectual Property Rights, or any privacy or other rights of any third party or violate any applicable law. 7.3 Disclaimer of Any Other Warranties. EXCEPT FOR THE EXPRESS WARRANTIES PROVIDED IN THIS SECTION 7, ALL SOFTWARE AND COMPANY MATERIALS ARE PROVIDED "AS IS" AND COMPANY HEREBY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHER, AND COMPANY SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT, AND ALL WARRANTIES ARISING FROM COURSE OF DEALING, USAGE OR TRADE PRACTICE. WITHOUT LIMITING THE FOREGOING, COMPANY MAKES NO WARRANTY OF ANY KIND THAT THE SERVICE SOFTWARE OR COMPANY MATERIALS, OR ANY PRODUCTS OR RESULTS OF THE USE THEREOF, WILL MEET CUSTOMER'S OR ANY OTHER PERSON'S REQUIREMENTS, OPERATE WITHOUT INTERRUPTION, ACHIEVE ANY INTENDED RESULT, BE COMPATIBLE OR WORK WITH ANY SOFTWARE, SYSTEM OR OTHER SERVICES EXCEPT IF AND TO THE EXTENT EXPRESSLY SET FORTH IN THE SPECIFICATIONS, OR BE SECURE, ACCURATE, COMPLETE, FREE OF VIRUS OR HARMFUL CODE OR BE ERROR FREE. ALL THIRD-PARTY MATERIALS ARE PROVIDED "AS IS" AND ANY REPRESENTATION OR WARRANTY. 8. Termination. 8.1 Termination By Either Party. This Agreement or an Order may be terminated by either Party upon delivery of written notice of termination to the other Party, as follows: (a) if the other Party fails to perform or observe any material term or condition in this Agreement or the Order and fails to cure such breach within thirty (30) days after receipt of written notice of such breach from the non-breaching Party; or (b) if the other Party (i) makes a general assignment for the benefit of creditors, (ii) admits in writing its inability to pay debts as they come due, (iii) voluntarily files a petition or similar document initiating any bankruptcy or reorganization proceeding, or (iv) involuntarily becomes the subject of a petition in bankruptcy or reorganization proceeding and such proceeding shall not have been dismissed or stayed within sixty (60) days after such filing; or 8.2 Effect of Termination. Upon termination of this Agreement or the Order, each Party shall promptly return, or at the other Party’s request, destroy (and provide confirmation of such destruction signed by a legal officer), all Confidential Information of the other Party (including without limitation the Data, Documentation and any Software provided to Customer in object code form). Sections 1, 3.5 and 5-12 shall survive termination of this Agreement for any reason. All other rights and obligations of the Parties under this Agreement shall expire upon termination of this Agreement, except that all payment obligations accrued hereunder prior to termination or expiration shall survive such termination. 9. Confidentiality 9.1 Confidential Information. In connection with this Agreement each Party (as the "Disclosing Party") may disclose or make available Confidential Information to the other Party (as the "Receiving Party"). Subject to Section 9.2, "Confidential Information" means information in any form or medium (whether oral, written, electronic or other) that the Disclosing Party considers confidential or proprietary, including information consisting of or relating to the Disclosing Party’s technology, trade secrets, know-how, business operations, plans, strategies, customers, and pricing, and information with respect to which the Disclosing Party has contractual or other confidentiality obligations, in each case whether or not marked, designated or otherwise identified as "confidential". Without limiting the foregoing: all Company Materials are the Confidential Information of Company and the financial terms and existence of this Agreement are the Confidential Information of each of the parties. 9.2 Exclusions. Confidential Information does not include information that the Receiving Party can demonstrate by written or other documentary records: (a) was rightfully known to the Receiving Party without restriction on use or disclosure prior to such information being disclosed or made available to the Receiving Party in connection with this Agreement; (b) was or becomes generally known by the public other than by the Receiving Party's or any of its Representatives' noncompliance with this Agreement; (c) was or is received by the Receiving Party on a non-confidential basis from a third party that was not or is not, at the time of such receipt, under any obligation to maintain its confidentiality; or (d) the Receiving Party can demonstrate by written or other documentary records was or is independently developed by the Receiving Party without reference to or use of any Confidential Information. 9.3 Protection of Confidential Information. As a condition to being provided with any disclosure of or access to Confidential Information, the Receiving Party shall: (i) not access or use Confidential Information other than as necessary to exercise its rights or perform its obligations under and in accordance with this Agreement; (ii) except as may be permitted by and subject to its compliance with Section 9.4, not disclose or permit access to Confidential Information other than to its Representatives who: (i) need to know such Confidential Information for purposes of the Receiving Party's exercise of its rights or performance of its obligations under and in accordance with this Agreement; (ii) have been informed of the confidential nature of the Confidential Information and the Receiving Party's obligations under this Section 9.3; and (iii) are bound by confidentiality and restricted use obligations at least as protective of the Confidential Information as the terms set forth in this Section 9.3; (iii) safeguard the Confidential Information from unauthorized use, access or disclosure using at least the degree of care it uses to protect its similarly sensitive information and in no event less than a reasonable degree of care; and (iv) ensure its Representatives' compliance with, and be responsible and liable for any of its Representatives' non-compliance with, the terms of this Section 9. 9.4 Compelled Disclosures. If the Receiving Party is compelled by applicable law to disclose any Confidential Information then, to the extent permitted by applicable law, the Receiving Party shall: (a) promptly, and prior to such disclosure, notify the Disclosing Party in writing of such requirement so that the Disclosing Party can seek a protective order or other remedy or waive its rights under Section 9.3; and (b) provide reasonable assistance to the Disclosing Party in opposing such disclosure or seeking a protective order or other limitations on disclosure. If the Disclosing Party waives compliance or, after providing the notice and assistance required under this Section 9.4, the Receiving Party remains required by law to disclose any Confidential Information, the Receiving Party shall disclose only that portion of the Confidential Information that the Receiving Party is legally required to disclose and, on the Disclosing Party's request, shall use commercially reasonable efforts to obtain assurances from the applicable court or other presiding authority that such Confidential Information will be afforded confidential treatment. 9.5 Remedies. The Receiving Party agrees that a breach of this Section 9 may result in immediate and irreparable harm to the Disclosing Party that money damages alone may be inadequate to compensate. Therefore, in the event of such a breach, the Disclosing Party will be entitled to seek equitable relief, including but not limited to a temporary restraining order, temporary injunction or permanent injunction without the posting of a bond or other security. 10. Limitation on Damages. 10.1 EXCLUSION OF CERTAIN DAMAGES. IN NO EVENT WILL COMPANY OR ANY OF ITS LICENSORS, SUBCONTRACTORS OR SUPPLIERS BE LIABLE UNDER OR IN CONNECTION WITH THIS AGREEMENT OR ITS SUBJECT MATTER UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY AND OTHERWISE, FOR ANY: (a) LOSS OF PRODUCTION, USE, BUSINESS, REVENUE OR PROFIT OR DIMINUTION IN VALUE; (b) IMPAIRMENT, INABILITY TO USE OR LOSS, INTERRUPTION OR DELAY OF THE SERVICES, (c) LOSS, DAMAGE, CORRUPTION OR RECOVERY OF DATA, OR BREACH OF DATA OR SYSTEM SECURITY, OR (d) CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, ENHANCED OR PUNITIVE DAMAGES, REGARDLESS OF WHETHER SUCH PERSONS WERE ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES OR SUCH LOSSES OR DAMAGES WERE OTHERWISE FORESEEABLE, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE. 10.2 CAP ON MONETARY LIABILITY. IN NO EVENT WILL THE AGGREGATE LIABILITY OF COMPANY UNDER OR IN CONNECTION WITH THIS AGREEMENT OR ITS SUBJECT MATTER, UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY AND OTHERWISE, EXCEED THE AGGREGATE AMOUNT PAID BY CUSTOMER FOR SERVICES PROVIDED UNDER THE APPLICABLE ORDER IN THE TWELVE-MONTH PERIOD PRIOR TO THE EVENT GIVING RISE TO LIABILITY. CUSTOMER ACKNOWLEDGES THAT THE AMOUNTS PAYABLE HEREUNDER ARE BASED IN PART ON THESE LIMITATIONS. THE PARTIES AGREE THAT THESE LIMITATIONS SHALL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY. 10.3 Exceptions. The exclusions and limitations in Section 9.1 and Section 9.2 do not apply to Company's obligations under Section 11 (Indemnification) or liability for Company's gross negligence or willful misconduct. 10.4 FURTHER, CUSTOMER ACKNOWLEDGES AND AGREES THAT THE SOFTWARE, SERVICES, AND COMPANY MATERIALS ARE TOOLS THAT ARE NOT INTENDED TO BE A SUBSTITUTE FOR THE EXERCISE OF CLINICAL JUDGMENT OR DECISION-MAKING. CUSTOMER AND THE USERS SHALL BE SOLELY RESPONSIBLE FOR (I) DETERMINING THE EXTENT (IF ANY) TO WHICH THE SOFTWARE, THE SERVICES, OR ANY COMPANY MATERIALS ARE USED IN MAKING MEDICAL JUDGMENTS, AND (II) THE RESULTS OF SUCH DETERMINATIONS AND ANY AND ALL TREATMENT DECISIONS BASED THEREON. COMPANY EXPRESSLY DISCLAIMS ANY AND ALL RESPONSIBILITY FOR ANY MEDICAL ERRORS, INJURIES, OR SIMILAR CLAIMS ARISING FROM CUSTOMER’S OR USERS’ USE OR MISUSE OF THE SOFTWARE, SERVICES, AND COMPANY MATERIALS IN CONNECTION WITH ANY MEDICAL DIAGNOSIS OR TREATMENT. 11. Indemnification. 11.1 Company Indemnification. Company shall indemnify, defend and hold harmless Customer and Customer's officers, directors, employees, agents, permitted successors and assigns (each, a "Customer Indemnitee") from and against any and all Losses incurred by such Customer Indemnitee arising out of or relating to any claim, suit, action or proceeding (each, an "Action") by a third party (other than an Affiliate of a Customer Indemnitee) to the extent that such Losses arise from any allegation in such Action that Customer's or an User's use of the Services (excluding Data and Third Party Materials) in compliance with this Agreement (including the Specifications) infringes a U.S. Intellectual Property Right. The foregoing obligation does not apply to any Action or Losses arising out of or relating to any: (i) access to or use of the Services or Company Materials in combination with any hardware, system, software, network or other materials or service not provided or authorized in writing by Company; (ii) modification of the Services or Company Materials other than: (i) by or on behalf of Company; or (ii) with Company's written approval in accordance with Company's written specification; or (iii) failure to timely implement any modifications, upgrades, replacements or enhancements made available to Customer by or on behalf of Company; or (iv) act, omission or other matter described in Section 11.2(i), Section 11.2(ii), Section 11.2(iii) or Section 11.2(iv). 11.2 Customer Indemnification. Customer shall indemnify, defend and hold harmless Company and its Affiliates, officers, directors, employees, agents, successors, contractors and assigns (each, a "Company Indemnitee") from and against any and all Losses incurred by such Company Indemnitee in connection with any Action by a third party (other than an Affiliate of a Company Indemnitee) to the extent that such Losses arise out of or relate to: (i) Data, including any use or Processing of Data by or on behalf of Company in accordance with this Agreement; (ii) any other materials or information (including any documents, data, specifications, software, content or technology) provided by or on behalf of Customer or any User, including Company's access to and use of any Customer Systems; (iii) Company’s compliance with any specifications or directions provided by or on behalf of Customer or any User; or (iv) gross negligence or more culpable act or omission (including recklessness or willful misconduct) by Customer, any User, or any third party on behalf of Customer or any User, in connection with this Agreement. 11.3 Indemnification Procedure. Each Party shall promptly notify the other party in writing of any Action for which such party believes it is entitled to be indemnified pursuant to Section 11.1 or Section 11.2, as the case may be. The party seeking indemnification (the "Indemnitee") shall cooperate with the other Party (the "Indemnitor") at the Indemnitor's sole cost and expense. The Indemnitor shall immediately take control of the defense and investigation of such Action and shall employ counsel of its choice to handle and defend the same, at the Indemnitor's sole cost and expense. The Indemnitee's failure to perform any obligations under this Section 11.3 will not relieve the Indemnitor of its obligations under this Section 11 except to the extent that the Indemnitor can demonstrate that it has been materially prejudiced as a result of such failure. The Indemnitee may participate in and observe the proceedings at its own cost and expense with counsel of its own choosing. 11.4 Mitigation. If any of the Services or Company Materials are, or in Company's opinion are likely to be, claimed to infringe, misappropriate or otherwise violate any third-party Intellectual Property Right, or if Customer's or any User's use of the Services or Company Materials is enjoined or threatened to be enjoined, Company may, at its option and sole cost and expense: (i) obtain the right for Customer to continue to use the Services and Company Materials as contemplated by this Agreement; (ii) modify or replace the Services and Company Materials, in whole or in part, to seek to make the Services and Company Materials (as so modified or replaced) non-infringing, while providing equivalent features and functionality, in which case such modifications or replacements will constitute Services and Company Materials, as applicable, under this Agreement; or (iii) by written notice to Customer, terminate this Agreement and require Customer to immediately cease any use of the Services and Company Materials or any specified part or feature thereof, provided that, Customer will be entitled to a refund of any pre-paid fees for the terminated portion of the Agreement. 11.5 Sole Remedy. THIS SECTION 11 SETS FORTH CUSTOMER'S SOLE REMEDIES AND COMPANY'S SOLE LIABILITY AND OBLIGATION FOR ANY ACTUAL, THREATENED OR ALLEGED CLAIMS THAT THIS AGREEMENT OR ANY SUBJECT MATTER HEREOF (INCLUDING THE SERVICES AND COMPANY MATERIALS) INFRINGES, MISAPPROPRIATES OR OTHERWISE VIOLATES ANY THIRD PARTY INTELLECTUAL PROPERTY RIGHT. 12. Miscellaneous. 12.1 Assignment. Neither Party may assign, sublicense, delegate or otherwise transfer any of its rights or obligations under this Agreement without the prior written consent of the other Party. Notwithstanding the foregoing, either Party may, without the consent of the other Party, assign this Agreement to an entity merging with, consolidating with, or purchasing substantially all its assets or stock, provided that the Party assuming obligations agrees to do so in writing and has adequate resources to meet its obligations hereunder. Notwithstanding the foregoing, Company may not assign this Agreement to any competitor of Customer without Customer’s prior written consent. Any change in control of Company will be deemed to be an assignment for purposes of this Section. Any permitted assignment of this Agreement shall be binding upon and enforceable by and against the Parties’ successors and assigns, provided that any unauthorized assignment shall be null and void and constitute a breach of this Agreement. Company shall be permitted to use subcontractors to fulfil its obligations under the Agreement, provided that it shall be fully responsible for any and all actions and omissions of its subcontractors. 12.2 Entire Agreement. This Agreement, the Order and any exhibits and amendments thereto, and other documents as may be expressly referenced in the foregoing documents constitute the entire agreement between the Parties and supersede all previous agreements, oral or written, with respect to the subject matter of this Agreement. To the extent any provision in an Order conflicts with any provision in this Agreement, the provision in the Order will control. 12.4 Force Majeure. Except for payment obligations, if either Party is prevented from performing or is unable to perform any of its obligations under this Agreement due to causes beyond the reasonable control of the party invoking this provision, including but not limited to acts of God, acts of civil or military authorities, riots or civil disobedience, wars, strikes or labor disputes (other than those limited to the affected Party) (each, a “Force Majeure Event”), such Party’s performance shall be excused and the time for performance shall be extended accordingly provided that the Party affected immediately notifies the other Party and immediately takes all reasonably necessary steps to resume full performance. 12.5 Governing Law. The validity, interpretation, construction and performance of this Agreement, and all acts and transactions pursuant hereto and the rights and obligations of the Parties hereto shall be governed, construed and interpreted in accordance with the laws of the State of California, without giving effect to principles of conflicts of law. Each of the Parties hereto consents to the exclusive jurisdiction and venue of the courts of San Francisco County, California 12.6 HIPAA. The Parties agree to comply with the Health Information Technology for Economic and Clinical Health Act of 2009 (the “HITECH Act”), the Administrative Simplification provisions of Health Insurance Portability and Accountability Act of 1996, as codified at 42 U.S.C. Section 1320 d (“HIPAA”) and any current and future regulations promulgated under either the HITECH Act or HIPAA, including, without limitation, the federal privacy regulations contained in 45 C.F.R. Parts 160 and 164 (“Federal Privacy Regulations”), the federal security standards contained in 45 C.F.R. Parts 160, 162 and 164 (“Federal Security Regulations”), and the federal standards for electronic transactions contained in 45 C.F.R. Parts 160 and 162 (“Federal Electronic Transactions Regulations”), all as may be amended from time to time, and all collectively referred to herein as “HIPAA Requirements.”. The Parties agree that the most stringent law and regulation will apply to this Agreement. The Parties agree not to use or further disclose any Protected Health Information (as defined in the Federal Privacy Regulations) or Electronic Protected Health Information (as defined in the Federal Security Regulations), other than as permitted by the HIPAA Requirements and the terms of this Agreement. In addition, the Parties agree to execute a separate Business Associate Agreement or Subcontractor Business Associate Agreement, as applicable, in the form acceptable to the Parties to the extent required by HIPAA or the HIPAA Requirements. 12.7 Restricted Rights. If Customer is an agency, department or entity of the United States Government (“Government”), Customer agrees, that (i) use, reproduction, release, modification or disclosure of the Software, or any part thereof, including technical data, is restricted in accordance with Federal Acquisition Regulation (“FAR”) 12.212 for civilian agencies and Defense Federal Acquisition Regulation Supplement (“DFARS”) 227.7202 for military agencies, (ii) the Software is a commercial product, which was developed at private expense, and (iii) use of the Software by any Government agency, department or other agency of the Government is further restricted as set forth in this Agreement. 12.8 Import and Export Requirements. Customer acknowledges and agrees that the Software is subject to export control laws and regulations. Customer may not download or otherwise export or re-export the Software or any underlying information or technology except in full compliance with all applicable laws and regulations, in particular, but without limitation, United States export control laws. The Software and applicable information or technology may not be downloaded or otherwise exported or re-exported: (a) into, or to a national or resident of, any country to which the United States has embargoed goods; or (b) to anyone on the U.S. Treasury Department’s list of specially designated nationals or the U.S. Commerce Department’s list of prohibited countries or debarred or denied persons or entities. Customer hereby agrees to the foregoing and warrants that Customer is not located in, or under the control of, or a national or resident of any such country or on any such list. 12.10 Notices. All notices and other communications hereunder shall be in writing and shall be deemed to have been duly given when delivered in person (including by overnight courier) or three days after being mailed by registered or certified mail (postage prepaid, return receipt requested), and on the date the notice is sent when sent by verified facsimile, in each case to the respective Parties at the address first set forth hereto. Either Party may change its contact information by providing the other Party with notice of the change in accordance with this section. 12.12 Relationship of Parties. The Parties are independent contractors and will have no right to assume or create any obligation or responsibility on behalf of the other Party. Neither Party shall hold itself out as an agent of the other Party. This Agreement will not be construed to create or imply any partnership, agency, joint venture or formal business entity of any kind. 12.13 Severability. If any provision of this Agreement is held invalid or unenforceable, it shall be replaced with the valid provision that most closely reflects the intent of the Parties and the remaining provisions of the Agreement will remain in full force and effect. 12.14 Waiver. No delay or failure by either Party to exercise any right or remedy under this Agreement will constitute a waiver of such right or remedy. All waivers must be in writing and signed by an authorized representative of the Party waiving its rights. A waiver by any Party of any breach or covenant shall not be construed as a waiver of any succeeding breach of any other covenant. 12.15 Modification. We reserve the right to change the terms of this Agreement on a going-forward basis at any time upon 7 days’ notice. Please check this Agreement periodically for changes. If a change to the terms of this Agreement materially modifies your rights or obligations, we may require that you accept the modified terms in order to continue to use the Software and Services. Material modifications are effective upon your acceptance of the modified terms. Immaterial modifications are effective upon publication. Except as expressly permitted in this Section 12.15, this Agreement may be amended only by a written agreement signed by authorized representatives of the Parties. Disputes arising under this Agreement will be resolved in accordance with the version of this Agreement that was in effect at the time the dispute arose. 12.16 Headings. The headings of the articles and paragraphs contained in this Agreement are inserted for convenience and are not intended to be part of or to affect the interpretation of this Agreement. 12.17 Construction; Advice of Counsel. Both Parties acknowledge and agree that the Agreement has been jointly prepared and its provisions will not be construed more strictly against either Party as a result of its participation in such preparation. Each Party acknowledges and represents that, in executing this Agreement, it has had the opportunity to seek advice as to its legal rights from legal counsel and that the person signing on its behalf has read and understood all of the terms and provisions of this Agreement.