LifeLoop master services agreement

This Master Services Agreement (“Agreement”) is made as of the Effective Date (defined below) by and between It’s Never 2 Late, LLC,  d/b/a “LifeLoop”, and LifeLoop, LLC (a wholly owned subsidiary of It’s Never 2 Late, LLC, DBA LifeLoop), collectively referenced as “LifeLoop” or “Company” with its principal place of business at 5889 Greenwood Plaza Blvd. Suite 210, Greenwood Village, CO 80111 and the Purchaser. As used in this Agreement, “Purchaser” shall be understood to include the purchaser identified in the applicable Order Summary, and any entity which owns or controls, is owned or controlled by, or is under common ownership or control with said Purchaser. Company and Purchaser may be referred to in this Agreement collectively as the “parties” or individually as a “party.”

Company offers services that provide Purchaser’s end users with the ability to access and use: (a) software from Company and other third parties; (b) information, data, and content from Company and other third parties; and (c) third party hardware software and peripherals to empower individuals and staff to connect, engage, and enjoy life. Purchaser desires to purchase a subscription to access and use the Company Systems for Purchaser’s long-term care communities or other locations where the Company Systems and Hardware will be used and maintained, as listed in an Order Summary (“Use Sites”).

This Agreement sets forth the terms and conditions under which Company will provide Purchaser and Users (defined below) with access and use to those Company Systems (defined below) or purchase of Hardware (defined below) specified in one or more order summaries executed by both parties pursuant to the terms of this Agreement (each, an “Order Summary”) and will perform those Services (defined below) specified in each Order Summary. All access to and use of the Company Systems, purchase and use of the Hardware, and the performance of all Services (defined below) are subject to the terms of this Agreement. If any term of an Order Summary conflicts with a term of this Agreement or a previous Order Summary, the terms of the latest Order Summary shall control, but only to the extent it relates to the rights and obligations of the parties under such Order Summary.

1.    DEFINITIONS. All capitalized terms used in this Agreement and defined in the context in which they are used will have the meanings given to them herein. All other terms used in this Agreement will have their plain English meaning as commonly interpreted in the United States.

2.    ORDER SUMMARY. Purchaser may enter into one or multiple Order Summaries under this Agreement. Except where Purchaser has met the Multiple Use Site Threshold (defined below), each Order Summary must be submitted to Company using an approved Company form ordering document, which Company shall provide to Purchaser upon request and will only be deemed effective when signed by both parties. If Purchaser has met the Multiple Use Site Threshold, an Order Summary may only be executed in accordance with Section 4.8.2. Purchaser will have no right to access or use any Company Systems or Services unless an applicable Order Summary has been executed. All Order Summaries executed between Company and Purchaser shall be subject to the terms set forth in this Agreement, including any Exhibits. Purchaser acknowledges and agree that by adding an additional Use Site(s) pursuant to this Section, Purchaser shall be responsible for the access and use of Company Systems, Hardware, and/or Services at such Use Site(s).

3.    TERM. The term of this Agreement will begin on the Order Summary Effective Date for the first Order Summary executed between the parties (“Effective Date”) and will continue thereafter until all Order Summaries are terminated in accordance with the terms of this Agreement (the “Term”). The term of each Order Summary will start as of the Effective Date listed on the Order Summary, or, if no date is listed, the day Purchaser signs the Order Summary (“Order Summary Effective Date”). Unless otherwise stated in an applicable Order Summary, the term of each Order Summary will begin on the Order Summary Effective Date and will continue thereafter for an initial period of three (3) years (“Initial Order Summary Term”). Unless otherwise stated in an applicable Exhibit or Order Summary, the term of each Order Summary shall automatically renew thereafter for additional 1-year renewal periods, unless either party provides written notice of non-renewal at least sixty (60) days prior to the end of the Initial Order Summary Term or then-current renewal period. 

4.    COMPANY SYSTEMS. Collectively, “Company Systems” means: (a) software developed by and/or for Company (“Company Software”); (b) software developed, provided, or maintained by third-party providers (“Third-Party Software”); (c) information, data, and content developed by and/or for Company (“Company Content”); and (d) information, data, and content developed or provided by third-party providers (“Third-Party Content”).

4.1.    Hardware. Company may supply Purchaser with third party hardware, peripheral devices, network communication devices, computers, and other equipment related to the Company Systems as identified in an Order Summary (“Hardware”). If Purchaser elects to purchase Hardware, Purchaser shall pay any and all applicable Fees for such Hardware, as described in the applicable Order Summary. 

4.1.1.    Acceptance. Purchaser must visually inspect all Hardware upon receipt and promptly report possible errors or damage to Company. Unless Purchaser provides written notice to Company of material defects in any Hardware within five (5) calendar days following the receipt of the Hardware, the Hardware will be deemed accepted by Purchaser when delivered. Notices provided pursuant to this Section must describe the material defects in reasonable detail.

4.1.2.    Title and Risk of Loss. Purchaser acknowledges that Company is acting only as a distributor or reseller of such Hardware and all Hardware is also subject to the applicable terms and conditions of any third-party provider of such Hardware. Title and risk of loss for any Hardware shall transfer to Purchaser FOB shipping point. As between Purchaser and Company, Purchaser is responsible for any loss, destruction, damage, or theft of or to the hardware following transfer of the risk and title to Purchaser.

4.2.    Documentation. Company shall provide Purchaser with applicable user manuals, system documentation, or warranty information described in the Order Summary related to the Company Systems (“Documentation”). The Company Systems will include the functionality described in the applicable Documentation. Company may from time-to-time update, change, or revise the functionality of the Company Systems and/or the Documentation. Company is not responsible or liable for any damages, misleading or inaccurate information, incompleteness, or validity relating to Third-Party Content. 

4.3.    Right to Use.

4.3.1.    Company Software and Company Content. Subject to Purchaser’s compliance with this Agreement, including Purchaser’s payment of all applicable Fees, Company hereby grants Purchaser a limited, non-exclusive, non-transferable, non-sublicensable, right to access and use the Company Software and Company Content solely for Purchaser’s internal use in connection with the Company Systems at the Use Sites and otherwise in accordance with the Documentation and this Agreement. Company also grants Purchaser a limited, non-exclusive, non-transferable right to use the Documentation solely in connection with Purchaser’s use and access of the Company Systems. 

4.3.2.    Third-Party Offerings. Purchaser acknowledges and agrees that certain portions of the Company Systems may include Third-Party Software or Third-Party Content, or integrations to same (collectively, “Third-Party Offerings”). Purchaser’s access to and use of any Third-Party Offering is subject to third-party terms separate from this Agreement that Purchaser may enter into (or may have entered into) relating to those Third-Party Offerings.  Purchaser is responsible for complying with any relevant terms and conditions of the Third-Party Offering. Purchaser acknowledges and agrees that Company has no responsibility or liability for any Third-Party Offering, or how a Third-Party Offering uses or processes Purchaser Data after such is exported to a Third-Party Offering. Company cannot ensure that the Company Systems will maintain integrations with any Third-Party Offering and Company may disable integrations of the Company Systems with any Third-Party Offering at any time provided that Company shall make commercially reasonable efforts to provide notice. For clarity, this Agreement governs Purchaser’s use of and access to the Company Systems, even if accessed through an integration with a Third-Party Offering. Purchasers and all Users shall comply at all times with the YouTube Terms of Service. TO THE EXTENT PURCHASER OR A USER USES FEATURES IN THE COMPANY SYSTEMS THAT INTEGRATES WITH A THIRD-PARTY OFFERING AND PURCHASER OR A USER REQUESTS THAT COMPANY INTEGRATE WITH SUCH THIRD-PARTY OFFERING’S BETA OR PRE-RELEASE FEATURES (“THIRD PARTY BETA RELEASES”), COMPANY WILL HAVE NO LIABILITY ARISING OUT OF OR IN CONNECTION WITH COMPANY’S PARTICIPATION IN SUCH THIRD-PARTY BETA RELEASES OR PURCHASER’S USE OF SUCH INTEGRATED FEATURES.  

4.3.3.    Additional Performance Licenses. The Company Systems may allow Purchaser to play, show, display, or otherwise perform certain Third-Party Content such as music and other media. Conducting these activities may be restricted without acquiring appropriate licensing under copyright or other applicable law. Licenses for these performances are not included with the Company Systems or as part of this Agreement. Purchaser acknowledges and agrees that Company has no responsibility or liability for any use of Third-Party Content or for acquiring licensing under such copyright or applicable law. 

4.3.4.   Spiro100 Terms. If the Order Summary grants the Purchaser rights to access Spiro100, any use of Spiro100 Content shall be governed by the terms provided in Exhibit B.  

4.4.    End of Life. From time to time and at the sole discretion of the Company, certain Company Systems, Company Software, Technology, or Hardware may be designated an End-Of-Life date (“Obsolete Company System”). Obsolete Company Systems include, but are not limited to, Company Systems, Company Software, Technology, and Hardware that is running the Microsoft Windows 7 operating system or earlier versions of the Microsoft Windows operating system. The Company reserves the right to uninstall and prevent further access to any software-related Obsolete Company Systems and/or electronically disable Hardware and prevent the Purchaser from accessing, using, or interacting with Company Hardware. If an applicable Order Summary includes an ongoing or advance payment for subscription access to certain Obsolete Company Systems (“Subscription”), such Subscription will continue with limited website access. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT, COMPANY WILL HAVE NO WARRANTY, INDEMNITY, SERVICES, SUPPORT, OR OTHER OBLIGATIONS WITH RESPECT TO OBSOLETE COMPANY SYSTEMS, INCLUDING BUT NOT LIMITED TO, BREACH OF SECURITY LEADING TO ANY ACCIDENTAL, UNAUTHORIZED OR UNLAWFUL LOSS, DISCLOSURE, DESTRUCTION, LOSS, ALTERATION, UNAUTHORIZED DISCLOSURE OF, OR ACCESS TO PURCHASER DATA TRANSMITTED, STORED OR OTHERWISE PROCESSED BY COMPANY. 

4.5.    Access and Accounts. Purchaser may access the Company Systems solely through an account (“Account”) established for Purchaser. Purchaser will be permitted to establish user identifications and passwords through which its Use Sites, agents, employees, independent contractors, affiliates, and other end users such as residents (“Users”) may access the Company Systems under an Account (each, an “Account ID”). Purchaser will ensure that all information about each User provided to Company in connection with establishing each Account ID is accurate and complete and will maintain that information as accurate and complete throughout the Term. Purchaser may allow its Users to access and use the Company Systems solely for purposes of exercising the rights granted to Purchaser under this Agreement. Users may be required to agree to separate terms and conditions applicable to the Company Systems. Purchaser is and will remain responsible for all use of the Company Systems and Documentation by each User and for compliance by each User with the applicable terms. Purchaser will ensure the security and confidentiality of each Account ID and will take all appropriate actions to prevent unauthorized or accidental access to or use of the Company Systems. Purchaser will notify Company immediately of any such unauthorized or accidental access or use of the Company Systems or if any Account ID is lost, stolen, or otherwise compromised. Purchaser is and will remain fully responsible for all costs, fees, liabilities, or damages incurred through any access to or use of the Company Systems through Purchaser’s Account, directly or indirectly, or by any User, and that any use of Purchaser’s Account will be deemed to have been completed by Purchaser. In no event will Company be liable for the foregoing obligations or any failure by Purchaser to fulfill such obligations.

4.6   Restrictions. As further detailed in Section 8.1, Purchaser acknowledges that the Company Systems, as well as the databases, software, content, hardware, hosting and other technology, systems, and networks used by or on behalf of Company and its third-party providers to operate the Company Systems, and the structure, organization, and underlying data, information, and software code thereof (collectively, the “Technology”), constitute valuable intellectual property of Company and its third-party providers. Without limiting the other obligations of Purchaser under this Agreement, and as a condition to the rights granted herein, Purchaser will not, and will not permit any User or other third party to: (a) use, access, or attempt to access the Technology, Documentation, or any portion thereof except as expressly provided in this Agreement; (b) use the Technology or Documentation in any unlawful manner or in any other manner that could damage, disable, overburden or impair the Technology; (c) use automated scripts to collect information from or otherwise interact with the Technology or Documentation; (d) copy, alter, modify, reproduce, or create derivative or improvements to the works of the Technology or Documentation; (e) distribute, sell, resell, lend, loan, lease, license, sublicense or transfer any rights to access or use the Technology or otherwise make the Technology or Documentation available 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; (f) reverse engineer, disassemble, decompile, or otherwise attempt to derive the method of operation of the Technology; (g) attempt to bypass, breach, circumvent, or overcome any technological protection measures intended to restrict access to any portion of the Technology; (h) interfere with the operation or hosting of the Technology; (i) use the Technology or Documentation in any manner or for any purpose that infringes, misappropriates, or otherwise violates any Intellectual Property right or other right of any third party, or to transmit, distribute, redirect, or store material that, as reasonably determined by Company, is inappropriate, obscene, defamatory, libelous, threatening, abusive, hateful or which contains or incites violence; (j) alter, obscure, or remove any copyright, trademark, or any other notices that are provided on or in connection with the Technology or Documentation; (k) input, upload, transmit, or otherwise provide to or through the Technology, any information or materials that are unlawful or injurious, or contain, transmit, or activate any harmful code; damage, destroy, disrupt, disable, impair, interfere with, or otherwise impede or harm in any manner the Technology, in whole or in part; (l) access or use the Technology for purposes of competitive analysis, 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; (m) combine the Technology or any part thereof with, or incorporate the Technology or any part thereof in, any other programs not authorized by Company; (n) provide any other person, including any subcontractor, independent contractor, affiliate or service provider of Purchaser, with access to or use of the Technology or Documentation, unless otherwise granted access by Purchaser as a User; (o) use the Technology or Documentation in violation of any law, regulation or rule; (p) use the Technology or Documentation for purposes of competitive analysis of the Technology, the development of a competing software product, or service or any other purpose that is to the Company’s commercial disadvantage; or (q) otherwise access or use the Technology beyond the scope of the authorization granted under herein.

4.7.    Outside Content. Purchaser acknowledges that, given the nature of the Company Systems, it may be possible for Users to use the Company Systems or the Hardware to access third party digital content that is not Company Content or a Third Party Offering. Purchaser is responsible for maintaining throughout the Term of this Agreement appropriate technical and organizational measures to protect Purchaser Data and each device provided to Purchaser as part of a Company Systems. COMPANY SHALL NOT BE RESPONSIBLE OR LIABLE FOR ANY DAMAGES ARISING FROM OUTSIDE CONTENT ACCESSED BY USERS VIA THE COMPANY SYSTEMS OR HARDWARE.

4.8.    Use Sites.

4.8.1.    Purchaser shall only use the Company Systems at the Use Sites identified in the applicable Order Summary. In the event no Use Sites are named in the applicable Order Summary, the parties shall mutually agree in writing which Use Sites shall contain Company Systems. If Purchaser wishes to change a Use Site, Purchaser must notify Company of the modified Use Sites and obtain Company’s prior written approval before initiating such transfer, provided however that in the event of a removal of a Use Site, Purchaser must (a) remove a Use Site pursuant to Section 14.8 and (b) shall remain responsible for all rights and obligations herein up until the date of removal of the applicable Use Site. Email notification of such changes is acceptable. If Purchaser fails to provide Company with such notice, Purchaser shall be responsible for all costs and expenses incurred by Company for Services on such Use Site until the point where such notice is correctly provided, plus any additional amounts that would have been owed if Company had been provided notice prior to the removal. Any transfer of ownership of a Use Site must comply with the rights and obligations set forth in Sections 14.7 and 14.8.

4.8.2.    Multiple Use Sites. If Purchaser provides for access and use of Company Systems, Hardware, and/or Services to at least ten (10) Use Sites (the “Multiple Use Site Threshold”) then the following terms regarding the addition of a Use Site apply: 

4.8.2.1.    Order Summary Changes. Purchaser may add a Use Site under this Agreement by email notice to Company with the following items, each as applicable: (a) legal entity name of the Use Site if different from the Purchaser’s, (b) address of the Use Site, (c) contact person who is responsible for the new Use Site, and (d) the Company Systems, Hardware, and/or Services to be provided at the new Use Site(s).  In addition, and only if agreed to by the Parties, the email must include any applicable Upgrade Services, Maintenance and Support Services, or Professional Services to be provided by Company for new Use Sites as contemplated by the email request. Such email request shall be deemed accepted upon Company’s email confirmation of such change. Unless otherwise mutually agreed to by the Parties: (a) Order Summary Effective Date shall be the day that the Company sends email confirmation of such change, and (b) the Initial Order Summary Term and any renewal periods shall be handled in accordance with Section 3. Purchaser acknowledges and agrees that by adding an additional Use Site(s) pursuant to this Section, Purchaser shall be responsible for the access and use of Company Systems, Hardware, and/or Services at such Use Site(s). This Section 4.8.2.1 shall supersede and replace the Order Summary execution process outlined in Section 2. 

4.8.2.2.   Meeting the Multiple Use Site Threshold. Unless otherwise agreed to in the initial Order Summary, if Purchaser does not initially meet the Multiple Use Site Threshold (i.e., executes an Order Summary for less than ten (10) Use Sites), but, during the Term of the Agreement, the Purchaser executes additional Order Summary(ies) that allow Purchaser to meet or exceed the Multiple Use Site Threshold, the rights and obligations set forth in this Section 4.8.2 shall apply. However, and unless otherwise agreed to, if, on the initial applicable Order Summary, a Purchaser meets or exceeds the Multiple Use Site Threshold (i.e., has ten (10) or more Use Sites), but during the Term of the Agreement, the Purchaser falls below the Multiple Use Site Threshold, then the Purchaser shall continue to have the rights and obligations as outlined in this Section 4.8.2 for the duration of the Term.

4.8.2.3.     Payment and Fees. Unless otherwise agreed to between the parties, the invoice and payment of the Fees (as defined below) for access and use of Company Systems, Hardware, and/or Services shall be sent to, and paid by, the Purchaser for all Use Sites. Any changes required to the Fees (as defined below) by new Use Site(s) shall be reflected in the next billing cycle as determined by the applicable Order Summary. Purchaser may prepay for all Fees owed under any Order Summary. All other payment terms as outlined in Section 6 shall apply.

5.    SERVICES. If Purchaser enters into an Order Summary that describes any Upgrade Services, Maintenance and Support Services, or other Professional Services (collectively, the “Services”), Company will use commercially reasonable efforts to provide those Services to Purchaser during the Term. All such Services are provided subject to the terms and conditions of this Agreement. Company has no obligation to provide any of the following Services unless specified in an Order Summary. Services are not available for Obsolete Company Systems, even if specified in an Order Form.  

5.1.    Upgrade Services. Except as may be set forth in an Order Summary or, as applicable, an Exhibit hereto, the Fees do not include any updates, upgrades, modifications, changes, additions, or improvements to the Company Systems (“Upgrade Services”). If Purchaser requests Upgrade Services at any time during the Term, Company may agree to provide such Upgraded Services, and reserves the right to charge Purchaser reasonable additional Fees for such Upgraded Services. Company shall have the right to provide Upgrade Services at any time in its own discretion. Company further has the right to require that Purchaser allow Company to update, upgrade, modify, change, add, remove, or improve software components of the Company Systems at any time as Company determines is necessary for the continued operation of the Company Systems. Any updates, upgrades, modifications, changes, additions, or improvements to the Company Systems provided by Company as part of any Upgrade Services will be treated as part of the Company Systems for purposes of this Agreement.

5.2.    Maintenance and Support Services. Except as may be set forth in an Order Summary or any applicable Exhibits hereto, the Fees do not include any maintenance, support, implementation, or training relating to the Company Systems (“Maintenance and Support Services”). Notwithstanding the foregoing, should Company elect to provide Purchaser with any Maintenance and Support Services, such Maintenance and Support Services will be provided pursuant to the rates for those Maintenance and Support Services set forth in each applicable Order Summary, or, if no rates are set forth in an applicable Order Summary, Company’s then-current terms and fees for such Maintenance and Support Services. Purchaser may not obtain maintenance, support, implementation, or training services for the Company Systems from any third party without Company’s express written consent, and Purchaser will be solely responsible for performing all other maintenance, support, implementation, or training services not specified in an Order Summary. Maintenance and Support Services will be provided during the hours of 7:30 a.m. to 5:00 p.m., Mountain Standard Time, Monday through Friday.

5.3.    Professional Services. Company will perform any additional professional or consulting services relating to the Company Systems (“Professional Services”) if specified in any Order Summary mutually agreed to by both parties under this Agreement. Company will perform all Professional Services at the rates for those Professional Services set forth in each applicable Order Summary, or, if no rates are set forth in an applicable Order Summary, at Company’s then-current rates for those Professional Services.

5.4.    Availability of Company Systems. Subject to the terms and conditions of this Agreement, Company will use commercially reasonable efforts to make the Company Systems available to Purchaser at least 99% of the time in each calendar month during the term of this Agreement, excluding the following down time due to: (a) equipment malfunctions; (b) periodic maintenance procedures or repairs which Company may undertake from time to time; (c) malfunctions and other failures relating to the web sites or services of third parties affecting the Company Systems or the Purchaser Data; (d) causes beyond the control of Company, including, without limitation, interruption or failure of telecommunication or digital transmission links, hostile network attacks and network congestion or other failures; or (e) use of the Company Systems by Purchaser in a manner not authorized in this Agreement or the applicable Documentation. Company does not guarantee the timeliness or availability of the Company Systems. In the event the availability of the Company Systems falls below 99% in any given month, a credit will be issued for 5% of Purchaser’s monthly recurring fees. Service level credits may not exceed one (1) month of recurring fees annually. Company has no obligation to issue any service credit unless: (i) Purchaser reports the availability to Company immediately on becoming aware of it; and (ii) requests such service credit in writing within ten (10) days after the end of the relevant month.  This Section 5.4 sets forth Company's sole obligation and liability and Purchaser's sole remedy for any violation of this Section.

6.    FEES AND PAYMENT.

6.1.    Fees. Purchaser shall pay all amounts specified in each Order Summary (“Fees”).  During the Term, Purchaser will be billed in advance an amount equal to charges as indicated in the applicable invoice or Order Summary.  All other charges for Services and expenses incurred during a month will be billed at the end of the month in which the Services were provided.  Payment by Purchaser for all Fees is due upon receipt of each invoice, and in no event shall such payment be received later than thirty (30) days after the invoice, except in cases where the Order Summary dictates otherwise.  All payments will be made in U.S. dollars and are non-refundable. 

6.2.    Additions. Notwithstanding restrictions and obligations outlined in Section 4.8, fees related to Use Sites may be added at any time during a calendar month and will be charged in full for that billing period.  Because Purchaser is billed in advance, if Purchaser increases its Use Sites during a calendar month, Purchaser will receive an invoice reflecting the Use Site count with overage charges incurred from the previous month and prorated over the number of months remaining in the Term.

6.3.    Price Change. Except as set forth in Section 6.4 of this Agreement, after the first twelve (12) month period following the Effective Date, Company may increase the Fees at any time; provided, however, that any such increase will not occur more than once in a consecutive twelve (12) month period.

6.4.    Prepayment. Purchaser may initially prepay greater than one (1) year of Fees and, in doing so, suspend any increase in Fees as outlined in Section 6.3 above, until the expiration of the Initial Order Summary Term.  After the Initial Order Summary Term, Company may increase the Fees at any time; provided, however, that any such increase will not occur more than once in a consecutive twelve (12) month period.

6.5.    Payment Method. By providing credit card information, Purchaser agrees authorizes Company to charge all Fees by automatic payment using a credit card (virtual, one-time credit cards not permitted or included) or ACH direct pull on the same date of each calendar month (or the closest prior date, if there are fewer days in a particular month) during the Term for all Fees accrued as of that date (if any) in accordance with the applicable Order Summary.  Purchaser acknowledges and agrees that the amount billed and charged each month may vary depending on Purchaser’s use of the Company Systems and may include Subscription Fee adjustments charged in advance for the remainder of Purchaser’s applicable billing period and overage fees for the prior month. Any other payment method will incur an additional payment fee at Company’s discretion. All Fees will be non-refundable once paid to Company (including upon any termination or suspension of this Agreement). Until paid in full, all past due amounts will bear an additional charge of the lesser of 3% per month or the maximum amount permitted under applicable law. Failure of Purchaser to fully pay any Fees when due shall be deemed a material breach and justify the immediate suspension of Purchaser’s access to the Company Systems and provision of Services or, in Company’s discretion, the termination of this Agreement. Any such suspension does not relieve Purchaser from paying all amounts due under this Agreement for the remainder of the Term. Hardware will not be released for shipment and any Services will not be scheduled or rendered until all Fees due are paid in full.  Purchaser shall reimburse Company for all costs incurred by Company in collecting any late payments or interest, including attorneys' fees, court costs, and collection agency fees. Purchaser may terminate the Term or any applicable Order Summary Term in accordance with Section 7. Upon any termination or expiration of the Term or any applicable Order Summary Term, Company will charge Purchaser’s credit card (or invoice Purchaser directly) for any outstanding fees for Purchaser’s use of the Company Systems prior to such termination, after which Company will not charge Purchaser’s credit card for any additional fees for the terminated Term or any applicable Order Summary Term.

6.6.    Taxes. All Fees and other amounts payable by Purchaser under this Agreement are exclusive of taxes and similar assessments. As applicable, Purchaser shall, in addition to the other amounts payable under this Agreement, pay all sales, use, value-added or other taxes, whether federal, state or local, however named, arising out of the transactions contemplated by this Agreement, except that Purchaser shall not be liable for taxes based on Company’s aggregate income. 

6.7.    No Deductions or Setoffs. All amounts payable to Company under this Agreement shall be paid by Purchaser to Company in full without any setoff, recoupment, counterclaim, deduction, debit, or withholding for any reason. Purchaser shall not, and acknowledges that it will have no right, under this Agreement, any other agreement, document or law, to withhold, offset, recoup or debit any amounts owed (or to become due and owing) to Company whether under this Agreement or otherwise, against any other amount owed (or to become due and owing) to it by Company, whether relating to Company breach or non-performance of this Agreement or any other agreement between Purchaser, and Company or any of its affiliates, or otherwise.

6.8.    Expenses. Purchaser shall reimburse Company for expenses incurred during the provision of Services. Expenses are billed based on actual costs incurred. Any estimated expenses will, if necessary, be included in each Order Summary.

6.9.    Audit.

6.9.1.    Audit Procedure. Company or its nominee (including its accountants and auditors) may, in Company's sole discretion, inspect and audit Purchaser's use of the Company Systems under this Agreement at any time during the Term and for three (3) years following the termination or earlier expiration of this Agreement. Purchaser shall make available all such books, records, equipment, information, and personnel, and provide all such cooperation and assistance, as may be requested by or on behalf of Company with respect to such audit. 

6.9.2.    Cost and Results of Audit. If the audit determines that Purchaser's use of the Company Systems exceeded the usage permitted by this Agreement, Purchaser shall pay to Company all amounts due for such excess use of the Company Systems, plus interest on such amounts, as calculated pursuant to Section 6.5. If the audit determines that such excess use equals or exceeds 5% of Purchaser's permitted level of use, Purchaser shall also pay to Company all costs incurred by Company in conducting the audit. Purchaser shall make all payments required under this Section 6.9 within ten (10) days of the date of written notification of the audit results.

7.    TERMINATION.

7.1.    Termination for Cause. Either party may terminate this Agreement for cause if (a) the other party breaches any material term or condition of this Agreement and fails to cure such breach within thirty (30) days after receipt of written notice of the same, or in the case of failure to pay Fees pursuant to Section 6, within ten (10) days; (b) the other party becomes insolvent or is the subject of a voluntary petition in bankruptcy or any voluntary proceeding relating to insolvency, receivership, liquidation or composition for the benefit of creditors; or (c) the other party becomes the subject of an involuntary petition in bankruptcy or any involuntary proceeding relating to insolvency, receivership, liquidation or composition for the benefit of creditors.  Notwithstanding the foregoing, if a material breach by Purchaser, by its nature, cannot be cured, Company may terminate this Agreement immediately.

7.2.    Suspension. Without limiting Company’s termination or other rights hereunder, Company reserves the right to immediately suspend Purchaser’s, any User’s, or any other party’s access to the Company Systems, and terminate this Agreement or any Order Summary, without incurring any resulting obligation or liability, if Company believes, in its sole discretion, that (a) use of the Company Systems may be in violation of this Agreement or applicable law; (b) the continued access to or use of the Company Systems may present a security risk, or otherwise place Company, the Technology, any other Company customer, or any third party at risk of harm, loss, or liability; (c) Purchaser's account is fifteen (15) days or more overdue; (d) Purchaser has breached Section 4.6 (Restrictions); or (e) Company has received a judicial or other governmental demand or order, subpoena, or law enforcement request that expressly or by reasonable implication requires Company to do so. This Section 7.2 does not limit any of Company’s other rights or remedies, whether at law, in equity, or under this Agreement. 

7.3.    Effect of Termination. Upon termination or expiration of this Agreement or any Order Summary for any reason: , including the removal or Transfer of a Use Site: (a) Company will have the right to immediately cease providing and/or disable access to all Company Systems and Services under this Agreement or applicable Order Summary; (b) all rights, licenses, consents, and authorizations granted to Purchaser under this Agreement, applicable Order Summary, or other related agreement will immediately terminate; (c) Purchaser will immediately cease all use of and access to all Company Systems and Services; (d) all Fees and other amounts then owed by Purchaser under this Agreement will become immediately due and payable to Company, and Purchaser grants Company a security interest in Hardware for any unpaid amounts; and (e) Purchaser will immediately either return to Company or, at Company’s discretion, destroy any software or content on the Company Systems, Technology, and Documentation then in Purchaser’s possession or control. Upon termination or expiration, Company shall have the right to remotely access the Company Systems, the Hardware, or any feature within the Company Systems, and shut down the Company Systems or remove software or content from the Company Systems. Further, Purchaser shall (i) promptly return to Company, or at Company's written request destroy, all documents and tangible materials containing, reflecting, incorporating, or based on Company Content, materials, and Company's Confidential Information; (ii) permanently erase all Company Content, materials, and Company's Confidential Information from all systems Purchaser directly or indirectly controls; and (iii) certify in writing by an officer of Purchaser that it has fully complied with its obligations under this Section. 

7.4.    Termination/Non-Renewal Procedure.  In order to terminate or provide notice of non-renewal under this Agreement, Purchaser shall provide all notice to Company via lifeloop.com/cancellation or any such future site or method as outlined by Company in its sole discretion. Any notice required by Purchaser for termination or non-renewal not provided as outlined in this Section shall be null, void, and without effect.

7.5.    Surviving Terms.  The following Sections will survive termination or expiration of this Agreement for any reason: 4.4 (End-Of-Life), 6 (Fees and Payment), 7.4 (Effect of Termination), this 7.6 (Surviving Terms), 8 (Ownership), 10.4 (Disclaimer), 11 (Indemnification), 12 (Limitation on Liability), 13 (Confidentiality), 14.1 (Equitable Relief); 14.2 (Disputes); 14.3 (Governing Law and Venue), 14.4 (Export Controls); 14.5 (Force Majeure), 14.6 (Notice), and 14.16 (Additional Terms).

8.    OWNERSHIP.

8.1.    Intellectual Property Rights.  Company, its affiliates, and its third-party providers retain all right, title, and interest in and to the Technology, Company Systems, and Documentation, all additions, improvements, updates, versions, or other modifications thereto, and all IPR (as defined below) therein or related thereto. Purchaser does not receive any ownership interest in or to any of the foregoing, and except as expressly granted in this Agreement, Company grants no rights or licenses to Purchaser (whether by implication, estoppel, or otherwise) in or to the Company Systems, Services, or any IPR therein or relating thereto. All names and logos associated with the Company, Company Systems, Documentation, and Services are trademarks of Company (or its third-party providers) and no right or license is granted to Purchaser to use them. Any rights not expressly granted to Purchaser hereunder are reserved by Company. Purchaser will not remove or alter any proprietary rights legend on the Company Systems. For purposes of this Agreement, “IPR” means any and all intellectual property rights, proprietary rights, rights of publicity, rights of privacy, and any and all other legal rights protecting data, information, or intangible property throughout the world, including, without limitation, any and all copyrights, trademarks, service marks, trade secrets, patent rights, moral rights, sui generis rights in databases, and contract rights.

8.2.    Recommendations.  From time to time, Purchaser may, in its sole discretion, submit comments, questions, recommendations, suggestions or other feedback of new Company products or services (“Feedback”). Purchaser acknowledges and agrees that Company may freely use or exploit Feedback for any purpose without the need to compensate or attribute ownership interest to the Purchaser. 

9.    DATA.

9.1.    Purchaser Data. As between Purchaser and Company, Purchaser retains ownership of all data, information, and other content provided to Company or through the Company Systems by or on behalf of Purchaser in connection with Purchaser’s use of the Company Systems (“Purchaser Data”). Purchaser is solely responsible for all Purchaser Data, including the accuracy, quality, integrity, legality, reliability, and appropriateness thereof, and Company assumes no responsibility for any Purchaser Data. Purchaser will obtain and maintain all authorizations, approvals, permissions, consents, and other rights necessary for Company to use and process all Purchaser Data in the performance of the Services and any other obligations of Company under this Agreement. Purchaser shall not upload any Purchaser Data through the Company Systems or otherwise provide Purchaser Data to Company that includes any data for which Purchaser does not have all rights, power and authority necessary to upload such data, or for which Purchaser has not obtained the appropriate consent to collect, use or process as contemplated by the Agreement. Purchaser will maintain an adequate back-up of all Purchaser Data and Company will not be responsible or liable for any deletion, correction, destruction, damage, loss, or failure to store or back-up any of Purchaser Data.

9.2.    Company use of Purchaser Data. Subject to Exhibit B, Purchaser hereby grants all such rights and permissions in or relating to Purchaser Data as is necessary or useful to Company and third-party providers to: (a) perform their obligations under this Agreement; (b) enforce this Agreement; and (c) exercise their rights under this Agreement.

9.3.    Aggregated Anonymous Data.  Company may capture, analyze, use, and disclose data and information related to Purchaser’s and Users’ use and performance of the Company Systems, Technology, and Accounts (“Aggregated Anonymous Data”).  All Aggregated Anonymous Data will be owned by Company and may be used by Company or its permitted service providers, for any lawful business purpose during and after the term of this Agreement, including the improvement or monitoring of the Company Systems. For clarity, this Section does not give Company the right to identify Purchaser as the source of any Aggregated Anonymous Data.

9.4.    Data Privacy. Both parties shall comply with the terms of the Data Processing Addendum attached hereto as Exhibit B, and if applicable, the Business Associate Agreement Addendum attached hereto as Exhibit C. 

9.5     No Sensitive Personal Data. Purchaser understands and agrees that (a) the Company Systems are not suitable for the processing of Sensitive Personal Data (defined herein); (b) Company is not a payment card processor and; (c) except as expressly recited in this Agreement, the Company Systems are not PCI DSS compliant. Except as otherwise expressly agreed between the parties in writing, Purchaser hereby represents and warrants that it will not use the Company Systems to collect, store, process or transmit any Sensitive Personal Data. Except for Company’s obligations as a processor pursuant to the Data Processing Addendum, Purchaser shall be solely responsible for any Sensitive Personal Data it or its Users inadvertently submitted to the Company Systems, and Company will treat such submissions as Purchaser Data as defined in this Agreement such that Company is not subject to any additional obligations that apply to Sensitive Personal Data. Purchaser shall immediately notify Company should it become aware that Sensitive Personal Data has been Processed (as defined by the Data Processing Addendum) via the Company Systems. “Sensitive Personal Data” means any of the following: (i) credit, debit or other payment card data subject to the Payment Card Industry Data Security Standards (“PCI DSS”); (ii) patient, medical or other protected health information regulated by the Health Insurance Portability and Accountability Act; or (iii) "Sensitive Personal Data," “Sensitive Personal Information,” or "Special Categories," as defined by applicable law.

10.    REPRESENTATIONS AND WARRANTIES.

10.1.    General. Each party represents, warrants, and covenants to the other party that: (a) it has and will continue to have during the Term, all rights, power, and authority necessary to enter into this Agreement and perform all of its obligations under this Agreement; (b) the performance of its obligations under this Agreement does not violate any federal, state, or local laws, rules, and regulations applicable to such party performance, any rights of any third party, or any agreement by which such party is bound; (c) it will procure all rights, certificates, licenses, permits, or other approvals required for its performance under this Agreement; (d) the execution of this Agreement by its representative whose signature is set forth at the end of this Agreement has been duly authorized by all necessary corporate or organizational action of such party; and (e) when executed, this Agreement constitutes the legal, valid, and binding obligation of such party, enforceable against such party in accordance with its terms.

10.2.    Company System.  Company represents and warrants to Purchaser that Company will use commercially reasonable efforts to maintain and verify that the Company Systems operate in substantial conformity with the applicable Documentation and with any other levels of performance specified in an applicable Order Summary. Purchaser should provide prompt, written notice of any nonconformity. In any event, Company’s sole obligation and Purchaser’s sole and exclusive remedy in the event of any failure of the Company Systems to comply with any such performance levels will be for Company to, at its option: (a) remedy the failure; or (b) refund Purchaser the portion of any Fees applicable to the portion of the Company Systems subject to the failure. This Section does not entitle Purchaser to any Services for the Company that are not described in an Order Summary. Any and all warranties under this Section shall be deemed waived by Purchaser as null and void, and Company shall have no obligation to Purchaser under any such warranties, if Purchaser or a User: (i) fails to properly maintain and service the Company Systems; (ii) uses the Company Systems in a manner contrary to the Documentation; or (iii) makes any alteration, addition, improvement, modification or attachment to the Company Systems that is not authorized or approved by Company. This Section 10.2 states Company’s entire obligation and liability and Purchaser’s sole remedy with respect to breach of warranty under this Agreement.

10.3.    Additional Purchaser Representations, Warranties, and Covenants. Purchaser represents, warrants, and covenants to Company that Purchaser owns or otherwise has and will have the necessary rights and consents in and relating to the Purchaser Data so that, as received by Company and processed in accordance with this Agreement, Company does not and will not infringe, misappropriate, or otherwise violate any IPR, or any privacy or other rights of any third party or violate any applicable law. Purchaser further represents and warrants that it understands that certain Company Systems may only work on certain hardware, and that Purchaser not procuring such hardware and therefore lack of access to certain features in the Company Systems does not relieve Purchaser of its obligations to pay for such Company Systems. 

10.4.    DISCLAIMER. PURCHASER ACKNOWLEDGES THAT THE COMPANY SYSTEMS, HARDWARE, TECHNOLOGY, SERVICES, DOCUMENTATION, AND ANYTHING ELSE PROVIDED UNDER THIS AGREEMENT ARE PROVIDED BY COMPANY AND ITS THIRD-PARTY PROVIDERS STRICTLY “AS IS” AND “AS AVAILABLE.” EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, COMPANY MAKES NO REPRESENTATIONS OR WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, OR STATUTORY, IN CONNECTION WITH THIS AGREEMENT OR THE COMPANY SYSTEMS, HARDWARE, TECHNOLOGY, SERVICES, AND DOCUMENTATION, INCLUDING, WITHOUT LIMITATION, ANY WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE, MERCHANTABILITY, TITLE, NON-INFRINGEMENT, AVAILABILITY OR ERROR-FREE OPERATION, THAT THE COMPANY SYSTEMS, HARDWARE, TECHNOLOGY, SERVICES, AND DOCUMENTATION WILL MEET PURCHASERS’ OR ANY OTHER PERSON'S REQUIREMENTS, OPERATE WITHOUT INTERRUPTION OR WITHOUT REQUIRED HARDWARE, ACHIEVE ANY INTENDED RESULT, BE COMPATIBLE OR WORK WITH ANY SOFTWARE, SYSTEM, OR OTHER SERVICES, OR BE SECURE, ACCURATE, COMPLETE, FREE OF HARMFUL CODE, OR ERROR FREE. ALL THIRD-PARTY MATERIALS, INCLUDING, BUT NOT LIMITED TO THE THIRD-PARTY OFFERINGS, ARE PROVIDED "AS IS" AND ANY REPRESENTATION OR WARRANTY OF OR CONCERNING ANY THIRD-PARTY MATERIALS IS STRICTLY BETWEEN PURCHASER AND THE THIRD-PARTY OWNER OR DISTRIBUTOR OF THE THIRD-PARTY MATERIALS. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY COMPANY, ITS EMPLOYEES, DISTRIBUTORS, DEALERS, OR AGENTS WILL INCREASE THE SCOPE OF, OR CREATE ANY NEW WARRANTIES IN ADDITION TO THE WARRANTIES EXPRESSLY SET FORTH IN THIS AGREEMENT.

11.    INDEMNIFICATION.

11.1.    By Purchaser. Purchaser will indemnify, defend, and hold harmless Company and its affiliates, subcontractors, officers, directors, employees, and agents (collectively, “Company Indemnitees”) from and against any and all claims, demands, actions, proceedings or suits (“Claims”) brought against any Company Indemnitee and any related liabilities, losses, damages and expenses, settlements, costs (including court costs and reasonable attorneys’ fees and costs to enforce this indemnification clause) (“Losses”) of any kind arising out of, relating to, or resulting from: (a) use of or access to the Company Systems or Services by Purchaser or any User not in accordance with this Agreement; (b) Purchaser’s gross negligence or willful misconduct; (c) Purchaser’s material breach of any representation, warranty, covenant or obligation in this Agreement or any Exhibits hereto, or failure to comply with any applicable laws; (d) Purchaser Data; and (e) any other materials or information (including any documents, data, specifications, software, content, or technology) provided by or on behalf of Purchaser or any Authorized User, including Company's compliance with any specifications or directions provided by or on behalf of Purchaser or any Authorized User to the extent prepared without any contribution by Company.

11.2.    By Company. Company will defend and indemnify Purchaser from and against any Claims brought against any Purchaser by a third party, and any related Losses, that arise out of or are in connection with (a) Company’s material breach of a representation, obligation, or any other provision in this Agreement; (b) Company’s gross negligence or more culpable act or omission of Company (including any reckless or willful misconduct) in connection with the performance of its obligations under this Agreement; and (c) a claim that the use by Purchaser of any Company Software infringes or misappropriates the IRP of such third party. If Purchaser is, or Company reasonably believes that Purchaser will become subject to any such third-party claim, Company may at its option: (a) procure the right for Purchaser to continue using such Company Software; (b) replace or modify such Company Software, in whole or in part, so that it no longer infringes; or (c) terminate this Agreement and provide Purchaser a pro-rated refund of any pre-paid unused Fees applicable to such Company Software (if any). Company’s obligations under this Section will not apply to any Claim arising from: (i) other software, hardware, systems, network, or technology not provided by Company as part of any Company Systems ; (ii) any modifications or changes to any Company Systems by or on behalf of Purchaser or Users, whether or not in violation of this Agreement; (iii) Purchaser Data; (iv) access to or use of any Company Systems other than as permitted by this Agreement; or (v) use, installation, integration, incorporation, or combination of any Company Systems with or into any other software, hardware, system, network, or technology. THIS SECTION CONSTITUTES COMPANY’S SOLE AND EXCLUSIVE LIABILITY, AND PURCHASER’S SOLE AND EXCLUSIVE REMEDY, FOR ANY INFRINGEMENT OR MISAPPROPRIATION OF IPR OR ANY OTHER RIGHTS RELATING TO THE COMPANY SYSTEMS.  

11.3.    Indemnification Process. A party requesting indemnification under this Section (“Indemnified Party”) shall promptly give the other party (“Indemnifying Party”) notice of any such claim. At the Indemnified Party’s option, the Indemnified Party may grant the sole control of the defense and/or settlement of any claim (provided that Indemnifying Party shall not enter into any settlement that admits liability on behalf of the Indemnified Party or imposes any obligations on the Indemnified Party without the prior written consent of the Indemnified Party, other than payment of amounts indemnified hereunder or, in the case of an Infringement Claim, cessation of use of the allegedly infringing item) and provide reasonable assistance as requested by the Indemnifying Party at the Indemnifying Party’s sole expense.

12.    LIMITATION ON LIABILITY.

12.1.    Exclusion of damages. IN NO EVENT WILL COMPANY OR ANY OF ITS LICENSORS, AFFILIATES, SERVICES PROVIDER, OR SUPPLIERS BE LIABLE UNDER OR IN CONNECTION WITH THIS AGREEMENT, ANY ORDER SUMMARY OR RELATED DOCUMENTS, OR THEIR SUBJECT MATTER, FOR ANY LOSS OF PRODUCTION, LOSS OF PROFITS, LOSS OF BUSINESS, FINES OR PENALTIES, COSTS OF PROCUREMENT OF SUBSTITUTE SERVICES OR TECHNOLOGY, BREACH OF DATA OR THE SYSTEM, LOSS OF USE OR DATA, INABILITY TO USE OR LOSS, INTERRUPTION OR DELAY IN THE SERVICES, COST OF REPLACEMENT OF GOODS OR SERVICES, LOSS OF GOODWILL OR REPUTATION, INTERRUPTION OF BUSINESS, OR ANY INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, ENHANCED, PUNITIVE OR CONSEQUENTIAL DAMAGES OF ANY KIND, UNDER ANY THEORY OF LIABILITY, WHETHER IN CONTRACT, WARRANTY, EQUITY, OR TORT (INCLUDING NEGLIGENCE AND STRICT LIABILITY) OR OTHERWISE, EVEN IF COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR SUCH LOSSES OR DAMAGES WERE OTHERWISE FORESEEABLE, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE. IN JURISDICTIONS WHERE LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES IS NOT PERMITTED, COMPANY’S LIABILITY WILL BE LIMITED TO THE MAXIMUM EXTENT PERMITTED BY LAW.

12.2.    Cap on Monetary Liability. EXCEPT FOR EACH PARTY’S INDEMNIFICATION OBLIGATIONS AND VIOLATIONS OF SECTION 13, TO THE FULLEST EXTENT PERMITTED BY LAW, IN NO EVENT WILL EITHER PARTY’S, OR ANY OF THEIR LICENSORS, SERVICES PROVIDER, OR SUPPLIERS, TOTAL AGGREGATE LIABILITY ARISING UNDER, RELATED TO, OR IN CONNECTION WITH THIS AGREEMENT, WHETHER ARISING UNDER OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, OR ANY OTHER LEGAL OR EQUITABLE THEORY, EXCEED THE FEES PAID OR PAYABLE HEREUNDER IN THE THREE (3) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING CAUSE TO SUCH LIABILITY. PURCHASER AGREES THAT THE FEES REFLECT THE ALLOCATION OF RISK SET FORTH IN THIS AGREEMENT AND ACKNOWLEDGE THAT COMPANY WOULD NOT ENTER INTO THIS AGREEMENT WITHOUT THESE LIMITATIONS ON ITS LIABILITY. THE FOREGOING LIMITATIONS APPLY EVEN IF ANY REMEDY FAILS OF ITS ESSENTIAL PURPOSE. NOTWITHSTANDING ANYTHING CONTAINED HEREIN TO THE CONTRARY, THE AGGREGATE LIABILITY OF COMPANY AS IT RELATES TO INDEMNIFICATION OBLIGATIONS AND VIOLATIONS OF SECTION 13 IS FIVE HUNDRED THOUSAND DOLLARS ($500,000.00).

13.    CONFIDENTIALITY.

13.1.    Confidentiality Obligations. By virtue of this Agreement, each party may have access to the Confidential Information of the other party. For purposes of this Agreement, “Confidential Information” means any data or information in any form or medium regarding a party’s business or affairs, including customer information, Technology, trade secrets, know-how, non-public marketing information, financial information, data (including software code), business concepts, business strategy, processes, methods, systems, know-how, devices, formulas, product specifications, marketing methods, prices,  customer lists, and any other data or information received or otherwise obtained under this Agreement, whether in oral, written, or electronic form, that is either: (a) designated as confidential; (b) of a nature such that a reasonable person would recognize it as confidential; or (c) disclosed under circumstances such that a reasonable person would know to treat it as confidential. For the avoidance of doubt, all Company Software, Technology, Company Content, and Documentation regardless of the form, including all copies and extracts thereof, shall be the Confidential Information of Company. Each party agrees to  (i) not use the Confidential Information for any purpose other than in the performance and fulfillment of the receiving party’s obligations or in the exercise of the receiving party’s rights under this Agreement; and (ii) protect and safeguard the confidentiality of the other party’s Confidential Information in the same manner as such party protects its own Confidential Information of a similar nature, and in no event with less than reasonable care. Each party will return to the other party, or destroy, all Confidential Information in such party’s possession or control, and permanently erase all electronic copies of all Confidential Information promptly upon the written request of the disclosing party or upon termination of this Agreement.

13.2.    Restrictions on Use and Disclosure. Neither party shall use or disclose any Confidential Information of the other party for any purpose other than exercising its rights and performing its obligations under this Agreement. Neither party shall disclose any Confidential Information of the other party to any third party, except to the receiving party’s employees, agents, or contractors (which may include advisors, accountants, and attorneys) who have a need to know such Confidential Information for purposes of this Agreement; provided that any employee, agent, or contractor is bound by a duty of confidentiality at least as protective of the Confidential Information as the terms of this Agreement. 

13.3.    Compelled Disclosure.  Notwithstanding the foregoing, Confidential Information may be disclosed by a receiving party to the limited extent required in order to comply with the order of a court or other governmental body, or as otherwise necessary to comply with applicable law, provided that before disclosing such information the receiving party must: (a) provide the disclosing party with sufficient advance notice of the agency’s request for the information to enable the disclosing party to exercise any rights it may have to challenge or limit the request for such Confidential Information; and (b) provide reasonable assistance 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 13.3, 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.

13.4.    Exceptions. Notwithstanding the foregoing, the restrictions on use and disclosure of Confidential Information set forth in this Section 13 shall not apply to the extent that such Confidential Information: (a) was rightfully known to the receiving party without restriction on use or disclosure prior to such information’s being disclosed or made available to the receiving party in connection with this Agreement, as shown by the receiving party’s written records; (b) was or becomes generally known by or available to the public other than by the receiving parties, 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, to the receiving party’s knowledge, was not or is not, at the time of such receipt, under any obligation to maintain its confidentiality; or (d) was or is independently developed by the receiving party without reference to, use of, or benefit from any Confidential Information, as shown by the receiving party’s written records.

14.    Miscellaneous.

14.1.    Equitable Relief. Purchaser acknowledges and agrees that due to the unique nature of the Company Systems, related Technology, and Confidential Information, a breach or threatened breach of Purchaser's obligations under this Agreement would cause Company irreparable harm for which there can be no adequate remedy at law. Accordingly, Purchaser agrees that in the event of such breach or threatened breach of this Agreement, Company will be entitled to seek equitable relief, including a restraining order, an injunction, specific performance and any other relief that may be available from any court, without any requirement to post a bond or other security, or to prove actual damages or that monetary damages are not an adequate remedy. Such remedies are not exclusive and are in addition to all other remedies that may be available at law, in equity or otherwise.

14.2.    Disputes. Except as otherwise provided herein and disputes for non-payment of fees, the parties will attempt to resolve all disputes, controversies, or claims arising under, out of, or relating to this Agreement, including the formation, validity, binding effect, interpretation, performance, breach or termination, of this Agreement and the arbitrability of the issues submitted to arbitration hereunder and non-contractual claims relating to this Agreement (each, a “Dispute”), in accordance with the procedures set forth in this Section. If any Dispute cannot be resolved through negotiations between the parties within five (5) days of notice from one party to the other of the Dispute, such Dispute will be finally settled through binding arbitration in Denver, Colorado before one arbitrator. The arbitration will be administered by JAMS pursuant to its Comprehensive Arbitration Rules and Procedures and in accordance with the Expedited Procedures in those Rules. Judgment on the Award may be entered in any court having jurisdiction. This clause will not preclude parties from seeking provisional remedies in aid of arbitration from a court of appropriate jurisdiction. 

14.3.    Governing Law and Venue. The interpretation of the rights and obligations of the parties under this Agreement, including, any disputes arising out of or related to this Agreement, will be governed by the laws of the State of Colorado, U.S.A. without regard to its choice of law principles or rule that would require or permit the application of the laws of any other jurisdiction. Subject to Section 14.2 (Disputes), all disputes or actions rising from or relating to this Agreement shall be submitted exclusively to the jurisdiction of the state and federal courts located in Denver, Colorado, U.S.A., and the parties hereby irrevocably submit to the personal jurisdiction of such courts. Subject to Section 14.2 (Disputes), each party irrevocably and unconditionally waives any right it may have to a trial by jury in respect of any legal action arising out of or relating to this Agreement or the transactions contemplated hereby.

14.4.    Export Controls. The Company Systems and Hardware, including without limitation software and content, and related technology are subject to U.S. export control laws and regulations and may be subject to export or import regulations in other countries. Purchaser agrees to strictly comply with all such laws and regulations and acknowledges that it has the responsibility to obtain such licenses to export, re-export, or import as may be required. In no event will the Purchaser export Company Systems or Hardware to United States government sanctioned entities or any other entities on United States government denied or restricted party lists, including entities on Part 744 of the Export Administration Regulations. Purchaser will defend, indemnify, and hold Company and all third-party providers harmless from any and all claims, losses, liabilities, damages, fines, penalties, costs, and expenses (including attorney’s fees) arising from or relating to any breach by Purchaser of its obligations under this Section.

14.5.    Force Majeure. In no event will either party be held responsible or liable for failure or delay in the performance of any obligation under this Agreement (except for payment obligations) if such failure or delay is due to acts of God, war, terrorism, strikes, boycotts, labor disputes, cyber attack, fire or other loss of facilities, accident or any other cause beyond its control (each, a “Force Majeure”). If the performance of any obligation under this Agreement is prevented, restricted, or interfered with by reason of a Force Majeure event, that party’s performance will be excused from such performance to the extent of such Force Majeure event, provided that the nonperforming party will take reasonable steps to avoid or remove such causes of nonperformance and will continue performance hereunder with dispatch whenever such causes are removed.

14.6.    Notice. All notices, reports, consents, authorizations, and approvals to be given by a party under this Agreement will be in writing and will either be via: (a) hand-delivery; (b) reputable overnight mail service; (c) email; or (d) certified mail, return receipt requested, to the other party at its respective addresses set forth above. All notices will be effective upon receipt (or when delivery is refused), or 3 business days after being deposited in the mail as required above, whichever occurs sooner. Either party may change its address for notice by giving notice of the new address to the other party.

14.7.    Assignment & Transfer. Notwithstanding the Use Site restrictions in Section 4.8 above, this Agreement, together with all related Order Summary and other related documents, and any rights and obligations hereunder may not be transferred or assigned by Purchaser, whether by operation of contract, law or otherwise, without Company’s prior written consent, and any attempted assignment without such consent shall be null and void. No assignment, delegation, or transfer will relieve Purchaser of any of its obligations or performance under this Agreement. For the avoidance of doubt, Purchaser hereby agrees that, without the prior written consent of Company, Purchaser shall not, directly or indirectly, sell, offer to sell, give, pledge, encumber, assign, grant any option for the sale of or otherwise transfer or dispose of, or enter into any agreement, arrangement or understanding to sell, any Use Sites, Company System, Hardware, or Services (collectively a, “Transfer”). Any such Transfers must be conducted in accordance with Section 14.8. 

14.8.    Third Party Transfer.  Purchaser must notify Company a minimum of thirty (30) days prior to any request to Transfer Company Systems at any or all Purchaser Use Sites to non-Purchaser third party (“Purchaser Assignee”) and provide Company with sufficient contact information of the Purchaser Assignee.  Such notification shall only be accepted via Purchaser form submission on lifeloop.com/ownershipchange. In the event of a Transfer of Company Systems, (a) Purchaser Assignee must execute an agreement that is identical to this Agreement (except to reflect the name of Purchaser Assignee) within thirty (30) days of receipt of notification of a Transfer request; and (b) upon execution of an agreement with the Purchaser Assignee, this Agreement shall terminate with respect to the Transferred Use Site, except for any payment obligations of outstanding Fees and the sections identified in Section 7.6. The Purchaser Assignee may not change the current contract quantities or terms and must contract for a minimum of twelve (12) months or through the end of the existing current contract term, whichever is longer. Until the effective date of the Transfer, the Purchaser shall remain liable for all obligations contained within this Agreement, including any payment obligations of outstanding Fees with respect to such Use Site. The Purchaser agrees to provide reasonable assistance to the Company during the Transfer of the related Use Site. If Purchaser Assignee fails to execute such an agreement within thirty (30) days, it will result in the Company suspending all access to Company Systems, Hardware, and Services. The Purchaser shall remain responsible for all Fees owed, and Company will issue an invoice to Purchaser for all remaining Fees owed through the remainder of the Term, provided, however, that if Purchaser meets the Multiple Use Site Threshold, Purchaser shall only be responsible for Fees due up until the effective date of the Transfer.  Payment on such invoice will be due on net 30-day terms. 

14.9.    Relationship of the Parties.  The parties are independent contractors, and nothing in this Agreement will be construed as creating an employer-employee relationship, a partnership, or a joint venture between the parties. Neither party is an agent of the other nor is neither party authorized to make any representation, contract, or commitment on behalf of the other party.

14.10.    Attorney Fees.  In the event of any action, suit, litigation, or other proceeding between the parties arising out of or relating to this Agreement, the prevailing party shall be entitled to reasonable attorneys’ fees and other reasonable costs incurred in connection therewith and in pursuing collection, appeals, and other relief to which that party may be entitled. 

14.11.    Marketing.  Purchaser hereby grants Company permission to use Purchaser’s name or logo for marketing purposes, including but not limited to website, public press releases, marketing material, and customer stories. 

14.12.    Government Agency.  Company provides the Company Systems, including related software and technology, for federal government end use as a “Commercial Item” as that term is defined at 48 C.F.R. §2.101, consisting of “Commercial Computer Software” and “Commercial Computer Software Documentation”, as those terms are used in 48 C.F.R. §12.212 or 48 C.F.R. §227.7202. Consistent with 48 C.F.R. §12.212 or 48 C.F.R. §227.7202-1 through 227.7202-4, as applicable, the Company Systems are provided to the Purchaser with only those restricted rights as provided under the terms and conditions of this Agreement. If a government agency has a need for rights not conveyed under these terms, it must negotiate with Company to determine if there are acceptable terms for transferring such rights, and a mutually acceptable written addendum specifically conveying such rights must be included in any applicable contract or agreement.

14.13.    Severability.  If any term or provision of this Agreement is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction. Upon such determination that any term or other provision is invalid, illegal, or unenforceable, the parties hereto shall negotiate in good faith to modify this Agreement so as to affect the original intent of the parties as closely as possible in a mutually acceptable manner in order that the transactions contemplated hereby be consummated as originally contemplated to the greatest extent possible.

14.14.    Counterparts. This Agreement and any Order Summary may be executed in counterparts, each of which is deemed an original, but all of which together are deemed to be one and the same agreement. A signed copy of the Agreement or a Order Summary delivered by facsimile, email, or other means of electronic transmission is deemed to have the same legal effect as delivery of an original signed copy of the Agreement and/or Order Summary.

14.15.    Entire Agreement.  This Agreement includes the Exhibits, attachments, and referenced policies herein, and each Order Summary entered into by the parties hereunder, all of which are hereby incorporated into and made a part of this Agreement. This Agreement represents the entire agreement between the parties with respect to the subject matter hereof and supersedes any and all prior and contemporaneous oral and written communications between the parties in relation to the subject matter of this Agreement. Purchaser acknowledges that the Company Systems include on-line, subscription-based products, and that in order to provide improved customer experience, Company may make changes to the Company Systems, and Company will update the applicable Documentation accordingly. 

14.16.    Amendment; Waiver.  This Agreement or any Order Summary may be modified or amended by Company with 30-day notice to Purchaser. All waivers under this Agreement must be in writing and signed by an authorized representative of the waiving party. Any waiver, delay to exercise, or failure to exercise any right, power, or privilege arising under this Agreement will not be deemed a waiver of any other provision or of such provision on any other occasion. The preprinted terms of a purchase order or any other similar document will not apply to or modify this Agreement.

14.17.    Additional Term.  The words “include,” “includes” and “including” means “include,” “includes” or “including,” in each case, “without limitation.” Except as provided for in this Agreement, no term of this Agreement will be construed to confer any third-party beneficiary rights on any non- party.  The parties intend this Agreement to be construed without regard to any presumption or rule requiring construction or interpretation against the party drafting an instrument or causing any instrument to be drafted. The Exhibits, schedules, attachments, and appendices referred to herein are an integral part of 

LIFELOOP MASTER SERVICES AGREEMENT EXHIBITS

EXHIBIT A:   

Spiro100 Addendum to the Agreement for Distributor Client

This Spiro100 Addendum (the “Spiro100 Terms”) to the Agreement, is intended to add additional terms with respect to videos, media, and other digital content owned by Spiro100, and licensed by Company for use by Purchaser. The Spiro100 Content is part of the “Third-Party Content” as defined in the Agreement. Terms not defined herein shall have their meaning set forth in the Agreement.

PLEASE READ THIS LEGAL DOCUMENT CAREFULLY.  TV Free Media, LLC dba Spiro100 (“Spiro100”) owns health, fitness, and wellness videos, media, products, services, and other digital content (the “Spiro100 Content”) that LifeLoop has licensed for use by Purchaser. Purchaser either has access to a portion of the Spiro100 Content-- 18 videos, media, and other digital content (the “Abridged Content”) for use on the LifeLoop platform, or if the Purchaser has access to the Enterprise tier from LifeLoop, the Purchaser will have access to all of the Spiro100 Content licensed by LifeLoop (the “Full Spiro100 Content”). The Spiro100 Content is designed for educational and entertainment purposes only.  Any references to the Spiro100 Content below are inclusive of both the Abridged Content and Full Spiro100 Content. These Spiro100 Terms and the Spiro100 Privacy Policy (available here) form a legally binding agreement, and govern Purchaser’s and Purchaser’s employees, Purchaser’s residents, and other end users (collectively “Users”) access to and use of the Spiro100 Content. 

BY PURCHASER ACCESSING OR USING THE SPIRO100 CONTENT AND/OR ALLOWING USERS ACCESS TO OR USE OF THE SPIRO100 CONTENT, PURCHASER AGREES TO BE BOUND AND ABIDE BY THESE SPIRO100 TERMS, PRIVACY POLICY AND ANY AMENDMENTS THERETO. PLEASE READ THESE TERMS CAREFULLY BEFORE USING THE SPIRO100 CONTENT. THESE SPIRO100 TERMS CONTAIN A BINDING ARBITRATION PROVISION AND CLASS ACTION WAIVER (SECTION 7). EXCEPT FOR CERTAIN TYPES OF DISPUTES DESCRIBED IN SECTION 7 BELOW, OR WHERE PROHIBITED BY LAW, BY ENTERING INTO THESE TERMS PURCHASER EXPRESSLY AGREES THAT DISPUTES BETWEEN PURCHASER AND SPIRO100 WILL BE RESOLVED BY BINDING, INDIVIDUAL ARBITRATION, AND PURCHASER HEREBY WAIVES ITS RIGHT TO PARTICIPATE IN A CLASS ACTION LAWSUIT OR CLASS-WIDE ARBITRATION. IF PURCHASER DOES NOT AGREE TO THESE SPIRO100 TERMS, PLEASE IMMEDIATELY CEASE USE OF THE SPIRO100 CONTENT. IF PURCHASER DOES NOT AGREE TO THESE TERMS PURCHASER IS EXPRESSLY PROHIBITED FROM ACCESSING OR USING THE SPIRO100 CONTENT.

1.    License. Subject to Purchaser’s compliance with these Spiro100 Terms and the Agreement, the license granted is for the exclusive use of Purchaser and its Users. This license includes the right to view the Abridged Content or, when electing the Enterprise Tier, the Full Spiro100 Content available on the LifeLoop platform. With the exception of Purchaser’s Users, this license may not be assigned or sublicensed to anyone else. Purchaser agrees not to reproduce, redistribute, sell, create derivative works from, decompile, reverse engineer, or disassemble the Spiro100 Content.

2.     Indemnity. Purchaser agrees to indemnify, defend, and hold harmless Spiro100 and its members, directors, officers, principals, partners, instructors, independent contractors, employees, contractors, affiliates, assignees, representatives, and agents and LifeLoop (each an “Indemnified Party” and collectively the “Indemnified Parties”) from and against all claims, damages, losses and costs that arise from or relate to (i) Purchaser’s and/or Purchaser’s User(s)’ use of the Spiro100 Content; (ii) any third-party use of the Spiro100 Content on Purchaser’s premises and/or with Purchaser’s credentials; and/or (ii) Purchaser’s violation of these Spiro100 Terms or the Agreement.

a.    Purchaser acknowledges that all forms of physical exercise shown in the Spiro100 Content constitute strenuous physical exercise and pose the risk of injury and/or physical or mental exhaustion to Purchaser and/or Users. Purchaser acknowledges that Spiro100 is unable to, and is not responsible for, evaluating each User who will access the Spiro100 Content to determine whether the Spiro100 Content is appropriate for such User and/or whether such User should seek the advice of a physician prior to engaging in the physical exercise, regimen, routine, and/or program, including use of any suggested equipment, shown in the Content. Purchaser further acknowledges that the instructors may suggest physical adjustments, movements, modifications, and/or use of equipment in the Spiro100 Content, and it is not Spiro100’s responsibility to determine if any such suggested adjustment, movement, modification, and/or suggested equipment is appropriate for each User’s level of ability, and physical and mental condition.

b.    Purchaser expressly assumes any and all liability that may arise from any person’s, including but not limited to any User’s, use of, or access to, the Spiro100 Content on your premises and/or with your credentials. Purchaser shall defend, indemnify, and hold harmless the Indemnified Parties, from and against any and all losses, liabilities, damages, judgments, awards, expenses, claims, actions, lawsuits and costs, including reasonable attorneys’ fees and other expenses (the “Indemnified Harm”), that arise from or relate to Purchaser’s and/or User’s use of or access to the Spiro100 Content, including but not limited to, any and all claims, damages, liabilities, costs, and expenses, including court costs and reasonable attorneys’ fees, brought by or on behalf of any User, or by any User’s representative(s), estate, family member(s), or other person(s), or any third-party, asserting a claim of injury and/or damage from any such User’s use of or access to the Spiro100 Content.

c.    Spiro100 and/or each Indemnified Party shall promptly notify Purchaser of any claim or litigation to which the indemnity set forth in this section applies. Purchaser agrees to respond to any demand for defense, indemnification, and/or hold-harmless from Spiro100 and/or any Indemnified Party within ten (10) days of receipt of such notice. Purchaser agrees to defend all actions to which such indemnity applies and to conduct the defense thereof at Purchaser’s sole expense, and by Purchaser’s counsel, which such counsel shall be satisfactory to the Indemnified Parties. Further, each Indemnified Party reserves the right to control any litigation that may arise from any such demand. Failure of Purchaser to comply with the terms set forth in this section shall constitute a material breach of these Terms.

3.    No Warranties. THE SPIRO100 CONTENT IS CONTINUALLY UNDER DEVELOPMENT AND, TO THE FULL EXTENT PERMITTED BY LAW, SPIRO100 MAKES NO WARRANTY OF ANY KIND, IMPLIED OR EXPRESS, AS TO ITS ACCURACY, COMPLETENESS OR APPROPRIATENESS FOR ANY PURPOSE. IN THAT REGARD, DEVELOPMENTS IN MEDICAL RESEARCH MAY IMPACT THE HEALTH, FITNESS AND NUTRITIONAL ADVICE THAT APPEARS IN THE CONTENT. NO ASSURANCE CAN BE GIVEN THAT THE ADVICE CONTAINED IN THE SPIRO100 CONTENT WILL ALWAYS INCLUDE THE MOST RECENT FINDINGS OR DEVELOPMENTS WITH RESPECT TO THE PARTICULAR MATERIAL. Spiro100 reserves the right to modify the Spiro100 Content, including, but not limited to updating, adding to, enhancing, modifying, removing, or altering any Spiro100 Content, at any time, in its sole discretion. Spiro100 has no obligation to screen or monitor any Spiro100 Content and does not guarantee that any Spiro100 Content available is suitable for all Users or that it will continue to be available for any length of time. Spiro100 provides the Spiro100 Content on an “AS IS” and “AS AVAILABLE” basis. Purchaser and Purchaser’s Users therefore use the Spiro100 Content at Purchaser’s own risk. To the extent permitted by law, Spiro100 expressly disclaims any and all warranties of any kind, whether express or implied, including, but not limited to implied warranties of merchantability, fitness for a particular purpose, non-infringement, quiet enjoyment, and any other warranty that might arise under any law. To the extent that another party may have access to or view Spiro100 Content on the LifeLoop device, Purchaser is solely responsible for informing such party of all disclaimers and warnings in these Spiro100 Terms. To the fullest extent permitted by law, Spiro100 and the members, directors, officers, principals, partners, instructors, independent contractors, employees, agents, contractors, affiliates, distributors, licensors, and representatives of Spiro100 disclaim all warranties, express or implied, in connection with the Spiro100 Content and your use thereof.  Spiro100 makes no and disclaims all, warranties and/or representations, express or implied, concerning your use of or access to the Spiro100 Content, including, but not limited to: (i) any errors, mistakes, or inaccuracies of the Spiro100 Content; (ii) any personal injury or property damage of any nature, resulting from your use of or access to the Spiro100 Content; (iii) any interruption or cessation of transmission of Spiro100 Content to or from the Website; (iv) any bugs, viruses, trojan horses, or the like which may be transmitted to or through the LifeLoop platform; and/or (v) any errors or omissions in any Spiro100 Content, or for any loss or damage of any kind that occurs as a result of the use of the Spiro100 Content.

TO THE EXTENT ANY DISCLAIMER OR LIMITATION OF LIABILITY DOES NOT APPLY, TO THE FULLEST EXTENT PERMITTED BY LAW, ALL APPLICABLE EXPRESS, IMPLIED, AND STATUTORY WARRANTIES WILL BE LIMITED IN DURATION TO A PERIOD OF 30 DAYS AFTER THE DATE ON WHICH PURCHASER FIRST USED THE SPIRO100 CONTENT, AND NO WARRANTIES SHALL APPLY AFTER SUCH PERIOD.

4.     Limitation on Liability.  Spiro100’s total liability to Purchaser for all claims, in the aggregate, will not exceed the amount actually paid by LifeLoop on behalf of Purchaser to Spiro100 over the 12 months preceding the date Purchaser’s first claim(s) arose. If Purchaser is in a jurisdiction that does not allow the exclusion or limitation of liability for consequential or incidental damages, the above limitation does not apply to Purchaser. To the fullest extent permitted by law, Spiro100, and its members, directors, officers, principals, partners, instructors, independent contractors, employees, agents, contractors, affiliates, distributors, licensors, and representatives: (i) shall not be liable for any direct, indirect, incidental, special, exemplary, punitive, or consequential damages, including but not limited to damages for loss of profits, economic or pure economic losses, goodwill, use, data, service interruption, computer damage, system failure, inability to use the Spiro100 Content or other intangible losses, even if a limited remedy set forth herein is found to have failed its essential purpose, arising from, or directly or indirectly resulting from, any: (i) errors, mistakes, or inaccuracies of the Spiro100 Content; (ii) personal injury or property damage of any nature, resulting from Purchaser’s or Purchaser’s User’s use of or access to the Spiro100 Content; (iii) interruption or cessation of transmission of Spiro100 Content; (iv) bugs, viruses, trojan horses, or the like, which may be transmitted to or through the LifeLoop platform; and/or (v) any errors or omissions in any Spiro100 Content or for any loss or damage of any kind that occurs as a result of the use of any Spiro100 Content, whether based on warranty, contract, tort, or any other legal theory, and whether or not Spiro100 is advised of the possibility of such damages. To the extent that one or any aspect of Spiro100’s limitations set out above does not apply, all remaining aspects survive. The exclusions and limitations of damages set forth above are fundamental elements of the basis of the bargain between Spiro100 and Purchaser.

5.    Intellectual Property. Purchaser acknowledges that the Spiro100 Content contains text, software, scripts, graphics, photos, sounds, music, videos, interactive features, and other content that is protected by copyrights, patents, trademarks, trade secrets or other proprietary rights, and that these rights are valid and protected in all forms, media and technologies existing now or hereafter developed. All Spiro100-generated Content, and content provided to Spiro100 by its partners and licensors, is copyrighted individually and/or as a collective work under the U.S. copyright laws and all applicable international copyright (or equivalent) laws in all jurisdictions; further, as between Purchaser and Spiro100, Spiro100 owns a copyright in the selection, coordination, arrangement and enhancement of all content in the Spiro100 Service.

6.    ARBITRATION CLAUSE & CLASS ACTION WAIVER – IMPORTANT – PLEASE REVIEW AS THIS MAY AFFECT PURCHASER’S LEGAL RIGHTS. APPLICABLE TO THE FULL EXTENT PERMITTED BY LAW.

a.    Mandatory Arbitration of Disputes. We each agree that any dispute, claim, or controversy arising out of or relating to these Spiro100 Terms or the breach, termination, enforcement, interpretation, or validity thereof or the use of the Spiro100 Content (collectively, “Disputes”) will be resolved solely by binding, individual arbitration and not in a class, representative or consolidated action or proceeding. Purchaser and Spiro100 agree that the U.S. Federal Arbitration Act (or equivalent laws in the jurisdiction in which the Spiro100 entity that you have contracted with is incorporated) governs the interpretation and enforcement of these Spiro100 Terms and that Purchaser and Spiro100 are each waiving the right to a trial by jury or to participate in a class action. This arbitration provision shall survive termination of these Terms.

b.    Exceptions and Opt-out. As limited exceptions to Section 8(a) above: (i) Purchaser may seek to resolve a Dispute in small claims court if it qualifies; and (ii) we each retain the right to seek injunctive or other equitable relief from a court to prevent (or enjoin) the infringement or misappropriation of our intellectual property rights. In addition, Purchaser will retain the right to opt out of arbitration entirely and litigate any Dispute if Purchaser provides written notice of the desire to do so by regular mail sent to the attention of Spiro100’s Legal Department at the Spiro100 address set out below within thirty (30) days following the date Purchaser first agrees to these Spiro100 Terms.

c.    Conducting Arbitration and Arbitration Rules. The arbitration will be conducted by the American Arbitration Association (“AAA”) under its Consumer Arbitration Rules (the “AAA Rules”) then in effect, except as modified by these Terms. The AAA Rules are available at adr.org or by calling 1-800-778-7879. A party who wishes to start arbitration must submit a written Demand for Arbitration to AAA and give notice to the other party as specified in the AAA Rules. The AAA provides a form Demand for Arbitration at www.adr.org. If the claim is for U.S. $10,000 or less, Purchaser may choose whether the arbitration will be conducted solely on the basis of documents submitted to the arbitrator, through a telephonic or video-conference hearing, or by an in-person hearing as established by the AAA Rules. If Purchaser’s claim exceeds U.S. $10,000, the right to a hearing will be determined by the AAA Rules. Any arbitration hearings will take place in San Diego, California. The parties agree that the arbitrator shall have exclusive authority to decide all issues relating to the interpretation, applicability, enforceability, and scope of this arbitration agreement.

Arbitration Costs. Payment of all filing, administration and arbitrator fees will be governed by the AAA Rules. Spiro100 will pay for all filing, administration and arbitrator fees and expenses if the Dispute is for less than U.S. $10,000, unless the arbitrator finds the Dispute to be frivolous. 

d.    Class Action Waiver. PURCHASER AND SPIRO100 AGREE THAT EACH OF US MAY BRING CLAIMS AGAINST THE OTHER ONLY IN AN INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. Further, if the parties’ dispute is resolved through arbitration, the arbitrator may not consolidate another person’s claims with your claims and may not otherwise preside over any form of a representative or class proceeding. 

e.    With the exception of any of the provisions above, if an arbitrator or court of competent jurisdiction decides that any part of these Spiro100 Terms is invalid or unenforceable, the other parts of these Spiro100 Terms will still apply.

7.    Governing Law and Jurisdiction. These Terms shall be governed by the laws of the State California, United States of America, without regard to principles of conflicts of law.  Subject to the agreements in Section 6 above, exclusive jurisdiction for all Disputes that are not required to be arbitrated will be the state and federal courts located in San Diego, California, United States of America, and Purchaser consents to the jurisdiction of those courts.

8.    Interpretation/Severability/Waiver/Remedies. Headings are for convenience only and shall not be used to construe these Spiro100 Terms. If any term of these Spiro100 Terms is found invalid or unenforceable by any court of competent jurisdiction, that term will be severed from these Spiro100 Terms. No failure or delay by Spiro100 in exercising any right hereunder will waive any further exercise of that right. The waiver of any such right or provision will be effective only if in writing and signed by a duly authorized representative of Spiro100. Spiro100’s rights and remedies hereunder are cumulative and not exclusive.

9.    Successors/Assignment. These Spiro100 Terms are binding upon and will inure to the benefit of both parties and their respective successors, heirs, executors, administrators, personal representatives, and permitted assigns. Purchaser may not assign or transfer these Terms without Spiro100’s prior written consent. Spiro100 may assign its rights, obligations and/or these Spiro100 Terms at any time in its sole discretion without notice to Purchaser.

10.    Modification. Spiro100 may update these Spiro100 Terms at any time, in our sole discretion by providing amended Spiro100 terms to LifeLoop. If Purchaser continues to use the Spiro100 Content after LifeLoop has posted updated Spiro100 Terms, Purchaser will agree to be bound by the updated Spiro100 Terms. If Purchaser does not agree to be bound by the updated Spiro100 Terms, then Purchaser may not use the Spiro100 Content anymore. Because the Spiro100 Content is evolving over time Spiro100 may change or discontinue all or any part of the Spiro100 Content, at any time and without notice, at Spiro100’s sole discretion.

EXHIBIT B: Data Processing Terms

This Data Processing Addendum (“Addendum”) is entered into by and between Company and Purchaser and is effective as of the Agreement’s Effective Date.

This Addendum forms a part of the Master Services Agreement between Company and Purchaser, dated March 20th, 2024 (the “Agreement”) related to Company’s provision of the Company Systems, Technology, Services, or other products or services (the “Agreement Services”). Except as modified herein, the terms of the Agreement and any applicable Order Summary shall remain in full force and effect.

The parties hereby agree that the terms and conditions set out below shall be added as an Addendum to the Agreement.

1. Definitions. For purposes of this Addendum, the following terms will have the meanings set forth below. Capitalized terms used but not otherwise defined in this Addendum will have the meaning given to them in the Agreement.

1.1 “Affiliate” means an entity that owns or controls, is owned or controlled by, or is under common control or ownership with, either Purchaser or Company respectively. “Control,” for purposes of this definition, means the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of an entity, whether through ownership of voting securities, by contract or otherwise.
1.2 “Purchaser Personal Data” means any Personal Data Processed by Company or a Subprocessor on behalf of Purchaser under the Agreement.
1.3 “Data Protection Laws” means any laws, that apply to the Processing of Purchaser Personal Data by Company under the Agreement.
1.4 “Data Subject” means any living identified or identifiable person to whom Personal Data relates.
1.5 “Deidentified Information” means information that cannot reasonably be used to infer information about, or otherwise be linked to, a particular Data Subject.
1.6 “Personal Data” means Purchaser information Processed by Company under the Agreement that is linked, reasonably linkable, or relates to an identified or identifiable natural person.
1.7 “Process” or “Processing” means any operation or set of operations that is performed upon Personal Data, whether or not by automatic means, such as access, collection, recording, organization, storage, adaptation or alteration, retrieval, consultation, use, disclosure by transmission, dissemination or otherwise making available, alignment or combination, blocking, return or destruction. The terms “Process”, “Processes” and “Processed” will be construed accordingly.
1.8 “Processor” means any person or entity which Processes Purchaser Personal Data, including as applicable any “service provider” or “contractor” as those terms are defined by applicable Data Protection Laws.
1.9 “Security Incident” means any confirmed accidental, unauthorized, unintended, or unlawful processing, access to, exfiltration, theft, disclosure, destruction, loss, alteration, compromise, and/or malicious infection of Purchaser Personal Data transferred, transmitted, stored, or otherwise Processed by Company or any of its Subprocessors or third parties that Process Personal Data on Company's behalf.
1.10 “Subprocessor” means any Processor (including any third party and any Company Affiliate) appointed by or on behalf of Company who may Process Purchaser Personal Data.

2. Processing of Purchaser Personal Data

2.1 Purchaser agrees to make Purchaser Personal Data available to Company for the limited and specified purpose of providing the Agreement Services. Purchaser represents and warrants that, if required, it has provided notice that the Purchaser Personal Data is being Processed consistent with the Data Protection Laws. The subject-matter and details of Company’s Processing (including the duration of the Processing, the nature and purpose of the Processing, the types of Purchaser Personal Data and categories of Data Subjects) are set forth in Appendix 1 attached to this Addendum.

2.2 With regard to the Processing of Purchaser Personal Data, Company is acting as a Processor. Company will (a) Process Purchaser Personal Data under the Agreement in compliance with Data Protection Laws, including providing the same level of privacy protection as required by applicable Data Protection Laws; and (b) notify Purchaser if Company determines it can no longer meet its obligations under applicable Data Protection Laws, in which case Purchaser may, upon thirty (30) days' notice, take reasonable and appropriate steps to stop and remediate unauthorized Processing of Purchaser Personal Data.

2.3 Company will only Process Purchaser Personal Data for the purposes of providing the Agreement Services and only in accordance with Purchaser's documented instructions, which may be specific instructions or standing instructions of general application in relation to the performance of Company's obligations under this Addendum, unless otherwise required under Data Protection Laws to which Company is subject, in which case Company shall notify Purchaser prior to such Processing unless prohibited by law. Company shall be responsible for its compliance with Data Protection Laws and Purchaser's instructions when Processing Purchaser Personal Data. Company will inform Purchaser immediately if, in its opinion, an instruction does not comply with Data Protection Laws.

2.4 Company will not:

2.4.1 retain, use, or disclose Purchaser Personal Data for any purpose other than for the specific business purpose of performing the Agreement Services. Company will not Process Purchaser Personal Data outside the direct business relationship between Purchaser and Company, including retaining, using, or disclosing Purchaser Personal Data for a commercial purpose other than providing the Agreement Services or as required by law;

2.4.2 “sell” or “share” (as those terms are defined by applicable Data Protection Laws) Purchaser Personal Data; or

2.4.3 combine Purchaser Personal Data with Personal Data Company receives from or on behalf of another person or entity or collects from its own interactions with a Data Subject except to perform a business purpose as defined in regulations adopted pursuant to Cal. Civ. Code 1798.185(a)(10).

2.5 If Company receives Deidentified Information from Purchaser, or creates Deidentified Information at Purchaser’s instruction, Company will (a) take reasonable measures to ensure the Deidentified Information cannot be associated with a Data Subject or household; (b) publicly commit to maintain and use the Deidentified Information in deidentified form; and (c) not attempt to reidentify the Deidentified Information except for the sole purpose of determining whether the Company’s deidentification processes satisfy the requirements of applicable Data Protection Laws.

2.6 Notwithstanding any other provision in this Section, Company may internally use Purchaser Personal Data to build or improve the quality of the Agreement Services it provides to Purchaser.

3. Company Personnel. Company will take reasonable steps to ensure that access to Purchaser Personal Data is limited to those of its Affiliates, employees, agents, and subcontractors who (a) have a need to know or otherwise access Purchaser Personal Data to enable Company to perform its obligations under the Agreement and this Addendum; and (b) who are bound in writing by confidentiality obligations sufficient to protect the confidentiality of Purchaser Personal Data in accordance with the terms of this Addendum.

4. Security Measures.

4.1 Company shall implement and maintain appropriate technical and organizational safeguards designed to protect Purchaser Personal Data from unauthorized access, destruction, use, modification, or disclosure.

4.2 Company shall notify Purchaser without undue delay after becoming aware of a Security Incident and shall co-operate with Purchaser and take such reasonable commercial steps as are directed by Purchaser to assist in the investigation, mitigation, and remediation of a Security Incident.

5. Subprocessors

5.1 Purchaser agrees that Company may engage Subprocessors to Process Purchaser Personal Data on Company’s behalf. The Subprocessors currently engaged by Company and authorized by Purchaser are listed in Appendix 1.

5.2 Company shall give Purchaser prior written notice of the appointment of any new Subprocessor, including full details of the Processing to be undertaken by the Subprocessor, and Purchaser must inform Company of any objection to such new Subprocessor within seven (7) days of such notice.

5.3 With respect to any authorized Subprocessor, Company will:

5.3.1 enter into a written agreement with each Subprocessor containing the same obligations imposed on Company under this Addendum and applicable Data Protection Laws with respect to Purchaser Personal Data; and

5.6.2 remain liable to Purchaser for the acts or omissions of its Subprocessors.

6. Data Subject Requests. Company shall inform Purchaser if it receives a request from a Data Subject to exercise their rights under Data Protection Laws. Company will provide such assistance, including taking any appropriate technical and organizational measures, as Purchaser requests to help Purchaser fulfill its obligations under Data Protection Laws to respond to Data Subject Requests. Notwithstanding its obligations under this Section, Company is not obligated to respond to a Data Subject Request directly from a Data Subject and does not otherwise assume any liability or responsibility for responding to Data Subject Requests.

7. Deletion or Return of Purchaser Personal Data. Upon termination of the Agreement or Purchaser's request, Company will, at Purchaser's option: either (a) return all Purchaser Personal Data to Purchaser; or (b) securely destroy all Purchaser Personal Data. Upon Purchaser's request, Company will provide a signed certification that Purchaser Personal Data has been returned and, if applicable, securely destroyed, unless retention is required by law. If required to retain Purchaser Personal Data by law, then Company will provide written notice of such to Purchaser and store the data solely on encrypted backup or archive locations and continue to safeguard such data in accordance with this Addendum.

8. Compliance and Audits. Company will make available to Purchaser all information necessary to demonstrate Company’s compliance with this Addendum, as well as any applicable Data Protection Laws, and will, at Purchaser’s expense, allow for audits in order to assess Company’s compliance.

9. Changes in Data Protection Laws. If any variation is required to this Addendum as a result of a change in or subsequently applicable Data Protection Laws, the parties agree to discuss and negotiate in good faith any variations to this Addendum necessary to address such changes, with a view to agreeing and implementing those or alternative variations as soon as practicable.

10. Liability. Each party's liability under or in connection with this Addendum is subject to the limitations on liability contained in the Agreement, to the extent permitted by law. Company shall not have any liability to Purchaser to the extent the basis of liability arises from failure by Purchaser to obtain any necessary consents to collect, use, transfer, or otherwise Process Purchaser Personal Data, or failure by Purchaser to fully comply with the Agreement, this Addendum, or applicable Data Protection Laws.

11. General Terms. Should any provision of this Addendum be invalid or unenforceable, then the remainder of this Addendum will remain valid and in force. The invalid or unenforceable provision will be either: (a) amended as necessary to ensure its validity and enforceability, while preserving the intent of the provision as closely as possible or, if this is not possible; or (b) construed in a manner as if the invalid or unenforceable part had never been contained therein. This Addendum and the other portions of the Agreement will be read together and construed, to the extent possible, to be in concert with each other. In the event of any conflict between the Agreement and this Addendum, this Addendum will govern with respect to the subject matter of this Addendum.

Appendix 1

Details of Processing

1. Subject Matter of Processing
   The subject-matter of Processing of Purchaser Personal Data by Company is the performance of the Agreement Services.

2. Nature and Purpose of Processing
   Purchaser Personal Data will be Processed as necessary to perform the Agreement Services and will be subject to the following basic Processing activities (please specify):

☑ Receiving data, including collection, accessing, retrieval, recording, and data entry

☑ Holding data, including storage, organization and structuring

☑ Using data, including analyzing, consultation, testing, automated decision making and profiling

☑ Updating data, including correcting, adaptation, alteration, alignment and combination

☑ Protecting data, including restricting, encrypting, and security testing

☑ Sharing data, including disclosure, dissemination, allowing access or otherwise making available

☑ Erasing data, including destruction and deletion

☐ Other (please provide details of other types of processing): and may be subject to the following Processing activities:

3. Duration of Processing
   Subject to section 8 of the Addendum, Company will Process Purchaser Personal Data for the duration of the Agreement, unless otherwise agreed upon in writing.

4. Types of Personal Data
   The Processing will involve the following types of Personal Data (please specify):
   Resident profiles include First Name, Last Name, DOB, profile photo, phone number, email, and room number (optional).

5. Special Categories of Data (if applicable)
   The Processing will involve the following special categories of data (please specify):

Personal data which reveals:

☐ racial or ethnic origin

☐ political opinions

☐ religious or philosophical beliefs

☐ trade union membership

☐ genetic data

☐ biometric data (if used to identify a natural person)

☐ health

☐ sex life or sexual orientation

☐ criminal convictions and offences

☑ none of the above

6. List of Subprocessors
   The following table sets out the list of Subprocessors that Purchaser has specifically authorized as of the Effective Date.
   
   

Exhibit C: Business Associate Agreement Addendum

If Company is acting as a Business Associate as part of the Services, this Business Associate Addendum (this “Addendum”) shall be considered automatically entered into as of the date of the Effective Date as defined above between Company (“Business Associate”) and Purchaser, on behalf of itself and its affiliates (“Covered Entity”) (each a “Party” and collectively the “Parties”). This Addendum forms a part of the terms of the Master Service Agreement between the Parties (“Agreement”).

1.    Background and Purpose.  In providing the Services under the Agreement (the "Services"), in limited circumstances Company may process PHI and be a Business Associate. In those circumstances,  Business Associate may be provided with, have access to, or create Protected Health Information that is subject to the federal regulations issued pursuant to the Health Insurance Portability and Accountability Act  and codified at 45 C.F.R. Parts 160 and 164 (“HIPAA Regulations”), as amended by the Health Information Technology for Economic and Clinical Health Act (“HITECH Act”) set forth in Title XIII of the American Recovery and Reinvestment Act of 2009, Public Law 111-5 (collectively, "HIPAA").  This Addendum enables the Parties to comply with the Privacy Rule (defined below), the Security Standards (defined below), and the requirements surrounding the Breach of Unsecured Protected Health Information as set forth in 45 C.F.R. Part 164, Subpart C.  This Addendum will govern only with respect to Business Associate’s receipt, use, and creation of PHI on behalf of the Covered Entity pursuant to the Agreement. 
2.    Definitions.  Unless otherwise defined in this Addendum, all capitalized terms have the same meanings set forth in the HIPAA Regulations, provided, however, that “PHI” and “ePHI” mean Protected Health Information and Electronic Protected Health Information, respectively, as defined in 45 C.F.R. §160.103, and is limited to the information Business Associate received from or created or received on behalf of Covered Entity as Covered Entity’s Business Associate. The “Privacy Rule” means the Standards for Privacy of Individually Identifiable Health Information at 45 C.F.R. Part 160 and Part 164, Subparts A and E, as amended.  “Security Standards” mean the Standards for Security of ePHI at 45 C.F.R. Part 160 and Part 164, Subparts A and C, as amended.  “Successful Security Incident” means a Security Incident that has resulted in the inappropriate use or disclosure of ePHI.
3.    Permitted Uses and Disclosures of PHI.  Except as otherwise specified in this Addendum, Business Associate may make any and all uses and disclosures of PHI necessary to perform its obligations under the Agreement or as Required by Law. Unless otherwise limited by this Addendum, Business Associate may:

3.1    use PHI in its possession for its proper management and administration and to carry out the legal responsibilities of Business Associate; 
3.2    disclose PHI in its possession to a third party for the purpose of Business Associate’s proper management and administration or to carry out the legal responsibilities of Business Associate, provided that the third party only uses or further discloses the PHI for the purpose for which it was received or as required by law, Business Associate obtains reasonable assurances from the third party regarding the confidential handling of such PHI as required under the Privacy Rule, and the third party agrees to notify Business Associate of any instance of which the third party recipient becomes aware that the confidentiality of such PHI has been breached; 
3.3    provide Data Aggregation services relating to the health care operations of the Covered Entity and as part of its business operations; 
3.4    de-identify any and all PHI obtained by Business Associate under the Agreement and use such de-identified data in accordance with the de-identification requirements of the Privacy Rule for its “Business Purposes”; and
3.5    limit its uses and disclosures of, and requests for, PHI (a) when practical, to the information making up a Limited Data Set; and (b) in all other cases subject to the requirements of 45 CFR 164.502(b), to the minimum amount of PHI necessary to accomplish the intended purpose of the use, disclosure or request. 
3.6    Covered Entity hereby authorizes Business Associate to disclose PHI to another covered entity for the health care operations activities of such covered entity in accordance with 45 C.F.R. § 164.506(c)(4).  For purposes of clarity, Business Associate will share PHI with such other covered entity only if (i) each of Covered Entity and such other covered entity either has or had a relationship with the individual who is the subject of the PHI being shared, (ii) the PHI pertains to such relationship, and (iii) the disclosure is (a) for a purpose listed in paragraphs (1) or (2) of the definition of health care operations at 45 C.F.R. § 164.501 or (b) for the purpose of health care fraud and abuse detection or compliance.

4.    Obligations of Covered Entity.  Covered Entity will:

4.1    not disclose to Business Associate more PHI than the Minimum Necessary required to enable Business Associate to carry out the services for which it is contracted to provide Covered Entity, and only when such disclosure is required and will limit Business Associate’s access to Covered Entity’s ePHI to only such PHI as is needed to carry out Business Associate’s activities required to support the Agreement and this Addendum.  The term Minimum Necessary is construed in accordance with the requirements in Section 13405 (b) of the HITECH Act, or as otherwise specified in the HIPAA Regulations;
4.2    have in place appropriate privacy and security safeguards to prevent the unauthorized use and disclosure of PHI and will use appropriate administrative, technical, and physical safeguards consistent with 45 C.F.R. §§ 164.308, 164.310 and 164.312 to protect the confidentiality, integrity, and availability of ePHI it receives from or transmits to Business Associate; will adopt, maintain, and update written policies and procedures consistent with the requirements of 45 C.F.R. § 164.316 with respect to such safeguards; and will impose appropriate sanctions against applicable employees, as appropriate, in the event such employee uses or discloses PHI in violation of the provisions of this Addendum;
4.3    notify Business Associate in writing of any: 
4.3.1    limitations in its notice of privacy practices in accordance with 45 C.F.R. § 164.520, to the extent that such limitation may affect Business Associate’s use or disclosure of PHI; 
4.3.2    restrictions to the use or disclosure of PHI to which Covered Entity is subject or to which Covered Entity has agreed in accordance with 45 C.F.R. § 164.522, to the extent that such restriction may affect Business Associate’s use or disclosure of PHI; and 
4.3.3    changes in, or revocation of, permission by an individual to use or disclose PHI, to the extent that such changes may affect Business Associate’s use or disclosure of PHI; 
4.4    obtain any authorization or consents as may be required by law for any of the uses or disclosures of PHI pursuant to the Services; and
4.5    not request Business Associate to use or disclose PHI in any manner that would not be permissible under the Privacy Rule if done by Covered Entity.  

5.    Obligations of Business Associate.  Business Associate will: 

5.1    not use or disclose PHI other than as permitted or required by the Agreement, this Addendum or as Required by Law;  
5.2    use appropriate safeguards to prevent use or disclosure of PHI other than as provided for by this Addendum.  Without limiting the foregoing, Business Associate shall implement administrative, physical, and technical safeguards consistent with 45 C.F.R. §§ 164.308, 164.310 and 164.312 that reasonably and appropriately protect the confidentiality, integrity, and availability of the ePHI that it receives, creates, transmits, or maintains on behalf of Covered Entity, and adopt, maintain, and update written policies and proceedings consistent with the requirements of 45 C.F.R. §164.316 with respect to such safeguards;
5.3    ensure that any agents and subcontractors to whom it provides PHI received from, or created or received by Business Associate on behalf of Covered Entity executes a written agreement with Business Associate that contains the same restrictions and conditions set forth in the business associate provisions of the HIPAA Regulations that apply through this Addendum to Business Associate with respect to such information although the precise wording of the conditions may differ from those of this Addendum;
5.4    if requested by Covered Entity in writing, and if the PHI in Business Associate’s possession constitutes a Designated Record Set, and if Business Associate maintains the sole copy of and has sole access to such PHI, (a) make available to the Covered Entity PHI necessary for Covered Entity to respond to individuals’ requests for access to PHI about them; and (b) make available to the Covered Entity PHI for amendment and incorporate any amendments to the PHI in accordance with the Privacy Rule.  Business Associate will perform the actions required by this Section 5.4 within the time frames specified in the Privacy Rule; 
5.5    if requested by Covered Entity in writing, and if the PHI in Business Associate’s possession constitutes a Designated Record Set, make available to the Covered Entity the information required for the Covered Entity to provide an accounting of disclosures of PHI as required by, and in the timeframes specified in, the Privacy Rule;
5.6    notwithstanding 5.4 and 5.5 above, the Parties agree that unless otherwise explicitly stated, the Parties do not intend for Business Associate to maintain any PHI in a Designated Record Set for Covered Entity.  Covered Entity agrees to provide Business Associate only copies of PHI and to retain all original documents so that Business Associate maintains no unique records in any Designated Record Set; 
5.7    upon reasonable notice, make its internal practices, books, and records relating to the use and disclosure of PHI available to the Secretary of HHS at Business Associate’s offices, for purposes of determining the Parties’ compliance with HIPAA; 
5.8    notify Covered Entity as promptly as possible under the circumstances that an access, acquisition, use, or disclosure of PHI not provided for by this Addendum or a Successful Security Incident has occurred (“Initial Notification”), or otherwise to notify Covered Entity as promptly as possible under the circumstances that a Security Incident has occurred that does not fall within the definition of Successful Security Incident. The parties acknowledge and agree that this section constitutes notice by Business Associate to Covered Entity of the ongoing existence and occurrence of attempted but Unsuccessful Security Incidents (as defined below) for which no additional notice to Covered Entity shall be required. “Unsuccessful Security Incidents” shall include, but not be limited to, pings and other broadcast attacks on Business Associate’s firewall, port scans, unsuccessful log-on attempts, denials of service and any combination of the above, so long as no such incident results in unauthorized access, use or disclosure of Electronic PHI; 
5.9    in addition to the Initial Notification and in accordance with the requirements of 45 C.F.R. § 164.410, provide the following information to Covered Entity following the discovery of a Breach of Unsecured PHI, to the extent the information is available: 
5.9.1    the identification of each individual whose Unsecured PHI has been, or is reasonably believed by Business Associate to have been, accessed, acquired, used, or disclosed during the Breach (or, if such identities are unknown at that time, the classes of such individuals); 
5.9.2    the date of discovery of the Breach of Unsecured PHI; 
5.9.3    a general description of the nature of the incident; and 
5.9.4    any other available information that Covered Entity is required to include in its notification to the individual under 45 C.F.R. § 164.404(c). If such information is not available at the time Business Associate is required by this Section to notify Covered Entity, Business Associate will provide such information to Covered Entity promptly as it becomes available. A Breach will be considered as discovered by Business Associate as of the first day on which such breach is known to Business Associate or, by exercising reasonable diligence, would have been known to Business Associate.  Business Associate will be deemed to have knowledge of a breach if the breach is known, or by exercising reasonable diligence would have been known, to any person, other than the person committing the Breach, who is an employee, officer, or other agent of Business Associate.   
5.10    use reasonable commercial efforts to mitigate any harmful effect that is known to Business Associate of a use or disclosure of PHI by Business Associate in violation of the requirements of this Agreement; 
5.11    not use or further disclose PHI in a manner that would violate HIPAA if done by the Covered Entity; 
5.12    not sell PHI or disclose PHI for purposes of marketing or fundraising;
5.13    develop and implement a workforce training program to educate workforce members on privacy and security requirements for PHI under applicable law as required; 
5.14    to the extent applicable to the Services performed pursuant to the Agreement, comply with the applicable obligations of the 2024 HIPAA Privacy Rule to Support Reproductive Health Care Privacy; and 
5.15    to the extent the Business Associate is to carry out Covered Entity's obligation under the Privacy Rule, Business Associate will comply with the requirements of the Privacy Rule that apply to Covered Entity in the performance of such obligation.

6.    Remuneration.  Except as provided herein, and solely related to de-identified PHI, Business Associate shall not receive remuneration, directly or indirectly, in exchange for PHI; provided, however, that this prohibition shall not affect payment to Business Associate by Covered Entity pursuant to the Services nor for data aggregation services and predictive analytics related to its business, which use de-identified PHI.
7.    Miscellaneous.

7.1    The terms of this Addendum will prevail in the case of any conflict with the terms of the Agreement to the extent necessary to allow the Parties to comply with the HIPAA Regulations.  
7.2    Nothing in this Addendum or the Agreement will confer upon any person other than the Parties and their respective successors or assigns, any rights, remedies, obligations, or liabilities whatsoever.
7.3    To the extent that any relevant provision of the HIPAA Regulations is materially amended in a manner that changes the obligations of the Parties or any one of them, the Parties agree to negotiate in good faith appropriate amendment(s) to this Addendum to give effect to these revised obligations.