Proactive Health Policies

‍Remote Patient Monitoring Terms and Conditions

‍

These Remote Patient Monitoring Terms and Conditions (the “Terms and Conditions”) apply to and govern the provision and use of the remote patient monitoring platform, software, devices, staffing, and related services (collectively, the “Services”) provided by Proactive Health, Inc. (“Proactive Health”) solely with respect to healthcare providers or organizations that have entered into a Master Remote Patient Monitoring Agreement (“Agreement”) with Proactive Health (each, a “Provider”).

1. General. These Terms and Conditions are incorporated into and form part of the Agreement, as though fully set forth therein, and are effective as of the effective date of such Agreement. The Agreement also includes Exhibits that are specific to the Provider relationship, including without limitation, Exhibit “Statements of Work ”, Exhibit “Fees”, and Exhibit “Business Associate Agreement ”, which are attached to the Agreement and incorporated by reference. In the event of any conflict between these Terms and Conditions and any executed Statement of Work, Business Associate Agreement, or other exhibit or addendum incorporated into the Agreement, the terms of the Agreement and the applicable controlling documen t shall govern for its subject matter. Proactive Health may amend or update these Terms and Conditions from time to time to reflect changes in the Services, applicable law, or business practices. Such changes will be posted at www.proactivehealth.tech/legal, and where material, Proactive Health will provide Provider with written notice at least thirty (30) days prior to their effective date. Continued use of the Services after the effective date of any amendment constitutes Provider’s acceptance of the updated Terms and Conditions. No amendment will apply retroactively to reduce Proactive Health’s obligations or materially diminish Provider’s rights under an existing Statement of Work unless agreed by both parties in writing. These Terms and Conditions do not apply to any person or entity that has not entered into the Agreement. Provider’s access to or us e of the Services constitutes acceptance of these Terms and Conditions.

2. Proactive Health Platform

2.1. Platform Access. During the Term (as defined in the Agreement) and subject to Provider’s payment of all relevant fees, Proactive Health grants Provider a non-exclusive, non-transferable, non-sublicensable right to access and use the Proactive Health hosted software and technological aspects of the Services for Provider’s internal business purposes pursuant to and in accordance with the pr ovisions of these Terms and Conditions. Provider may, as agreed to in writing by Proactive Health, offer access to the Services to any affiliates, subsidiaries, parent corporations, or affiliate entities and Provider shall be responsible and liable for all access and use by such entities. If Provider is required to install and download software from Proactive Health in connection with the Services, Proactive Health grants Provider, during the Term, a limited, personal, non-exclusive, non-transferable, non-sublicensable right to use the software solely in support of Provider’s authorized use of the Services, during the Term and in accordance with the provisions of these Terms and Conditions. If Provider is required to agree to any third-party software licenses, Provider shall be responsible for complying with the terms and conditions of those third-party software licenses and shall maintain such licenses during the Term. Proactive Health does not control and is not responsible for any third-party software or services accessed or used by Provider in connection with Provider’s use of the Services. The ability to use third-party software in connection with the Services does not imply any endorsement by Proactive Health and Proactive Health makes no representations or warranties with respect to any third-party software.

2.2. Devices. Proactive Health may provide certain devices to be utilized with the Proactive Health Platform ("Devices"). Proactive Health does not sell the Devices to Provider; rather, Proactive Health retains ownership of the Devices (including for accounting purposes on its balance sheet) and makes Devices available to Provider and/or Users at no additional charge unless otherwise expressly set forth in an applicable Statement of Work or other ordering document signed by the parties. Provider shall use the Devices solely in connection with Provider’s authorized use of the Services and in accordance with any instructions and documentation provided by Proactive Health and/or the Device manufacturer. Provider is responsible for providing the relevant Users with all information, notices, and disclosures required by applicable law and, if necessary, obtaining all consents, permissions, and authorizations necessary for the collection and transmission of information by the Devices to the Proactive Health Platform and, as applicable, the Device manufacturer. Proactive Health will provide reasonable troubleshooting support for Devices to help ensure connectivity and data transmission, as described in the applicable Statement of Work. Provider acknowledges that the Devices may be manufactured by third parties and may be subject to separate manufacturer terms, conditions, and warranties, if any. PROACTIVE HEALTH DOES NOT ENDORSE OR MAKE ANY REPRESENTATIONS, WARRANTIES, OR GUARANTEES WITH RESPECT TO THE DEVICES AND ANY WARRA NTIES, IMPLIED OR EXPRESS, ARE PURPOSEFULLY AND ENTIRELY DISCLAIMED. Provider shall be responsible for complying with all terms and conditions, disclaimers, warning notices, and other documentation and instructions provided with Devices or issued by Device manufacturers.

2.3. Support. During the Term, Proactive Health will provide Provider with reasonable support in connection with Provider’s authorized use of the Services in accordance with the relevant Statement of Work. Proactive Health will provide Provider with Service updates and bug fixes that Proactive Health in its sole discretion makes generally available to its other similarly situated customers at no charge. However, Provider shall not be entitled to receive updates or new releases that include new or different functionality for which Proactive Health imposes an additional charge to its customers. New or different functionality may be purchased by Provider, in its discretion, at Proactive Health then current pricing. Proactive Health will use commercially reasonable efforts to correct reproducible failures of the Services to perform in substantial accordance with the then current Documentation.

3. Restrictions. Provider and its employees and contractors, the healthcare professionals offering remote care management services, and the patients receiving such services (collectively, the “Users”) may only use the Services in accordance with the then curren t documentation, specifications, and instructions regarding the Services made generally available by Proactive Health to its providers and modified from time to time (the “Documentation”) and these Terms and Conditions. Provider is responsible for ensuring its Users comply with all relevant terms of these Terms and Conditions and any failure to comply will constitute a breach by Provider. Except as expressly authorized by these Terms and Conditions, Provider will not, and will not allow any User or other third-party: (i) to permit any third-party to access or use the Services other than a User, (ii) to decompile, disassemble, reverse engineer, or otherwise attempt to derive the trade secrets embodied in the Services, except to the extent expressly permitted by applica ble law, (iii) to use the Services, or any Proactive Health Confidential Information to develop a competing product or service, (iv) to use any Services in violation of any export control laws or regulations administered by the U.S. Commerce Department or any other government agency, (v) to remove, minimize, block, or modify any copyright, trademark, proprietary rights, disclaimer, digital watermark, or warning notice included on or embedded in any part of the Services or Documentation, including any screen displays, etc., or any other products or materials provided by Proactive Health hereunder, (vi) to use the Services in a manner that violates privacy rights or that constitutes infringement of the intellectual property or other proprietary rights, (vii) to use the Services for fraudulent or illegal purposes, and/or (viii) to use the Services or in any manner that otherwise violates Proactive Health policies, applicable laws, ordinances or regulations. Under no circumstances will Proactive Health be liable or responsible for any use, or any results obtained by the use, of the Services in conjunction with any services, software, c ontent, or hardware that are not provided by Proactive Health. All such use will be at Provider’s sole risk and liability.

4. Provider Content and Branded (White Label) Solution. Subject to applicable fees and pursuant to a Statement of Work, which the parties will enter into if they decide to pursue this option, Proactive Health may offer to Provider a solution enabling Users to access the Services via a Provider branded webpage and/or mobile application (“Branded Solution”). The Branded Solution will include suc h attribution as Proactive Health may prescribe in Proactive Health’s sole discretion (e.g. “powered by Proactive Health”). The attribution will be placed in a location satisfactory to Proactive Health in Proactive Health’s sole discretion. Provider is responsible for all Provider Content (as defined in these Terms and Conditions ) placed on the Branded Solution and elsewhere even if no Branded Solution is provided. Provider agrees that it is the information content provider for all Provider Content, and that pursuant to Section 230 of the Communications Decency Act, Proactive Health shall not be treated as the publisher or speaker of any Provider Content. Proactive Health does not endorse, approve, monitor, or vet any Provider Content placed on the Branded Solution or otherwise made available th rough Proactive Health in any way. All Provider Content is Provider’s responsibility, and Proactive Health shall not be liable for any reason for anything posted by Provider or any Provider Content.

5. Beta Functionality. Proactive Health may designate certain new functionality or services to be made available in connection with the Services as “Beta Functionality.” If the parties agree to include Beta Functionality, the specific beta functions will be id entified in a Statement of Work or other ordering document. Beta Functionality will be at an early stage of development and therefore operation and use of the Beta Functionality may be unpredictable and lead to erroneous results. Beta Functionality will not be appropriate for production use. Provider acknowledges and agrees that: (i) the Beta Functionality will be experimental and will not have been fully test ed; (ii) the Beta Functionality may not meet Provider’s requirements; (iii) the use or operation of the Beta Functionality may not be uninterrupted or error free; (iv) Provider’s use of the Beta Functionality will be for purposes of evaluating and testing the new functionality and services and providing feedback to Proactive Health; and (v i) Provider will inform its Users regarding the nature of the Beta Functionality. Provider’s use of the Beta Functionality will be subject to all of the terms and conditions set forth herein relating to the Services. Provider will promptly report any errors, defects, or other deficiencies in the Beta Functionality to Proactive Health. NOTWITHSTANDING ANY OTHER PROVISION OF THESE TERMS AND CONDITIONS, BETA FUNCTIONALITY IS PROVIDED “AS -IS” AND “AS -AVAILABLE,” WITHOUT WARRANTIES OF ANY KIND. Provider waives any and all claims, now known or later discovered, that Provider may have against Proactive Health and its suppliers and licensors arising out of Provider’s use of the Beta Functionality.

6. Availability. Proactive Health shall take commercially reasonable measures to ensure the Proactive Health Platform is available for access and use by Provider at all times, except during regularly scheduled and emergency maintenance. In the event the Proactive Health Platform and/or the Services, generally, are unavailable, Proactive Health shall take commercially reasonable measures to correct the interruption as promptly as practicable.

7. Connectivity; Internet. Provider and Users are solely responsible for obtaining and maintaining any equipment and ancillary services needed to connect to, access, or otherwise use the Services, including all hardware, software, operating systems, networking, web servers, and telecommunication or Internet connections, and paying for all equipment and telecommunications costs, fees and services required for Provider’s and Users’ access. Provider shall also be responsible for maintaining the security of the foregoing equipment and services and Provider and User login information, passwords, and files. Provider is responsible for all uses of User accounts with or without Provider’s knowledge or consent. Proactive Health shall not be responsible for not performing, or for a delay or interruption in performing, the Services if due to a network communications error, failure, or interruption beyond the control of Proactive Health.

8. No Provision of Medical Advice or Services. Proactive Health provides a technology platform for healthcare professionals and patients to communicate with each other. Proactive Health does not provide any medical advice, legal advice, billing advice, or representations in any way regarding any legal or medical issues associated with Provider or Users, or goods or services offered or purchased by Provider or Users, including, but not limited to, any compliance obligations or steps necessary to comply with any state or federal laws and regulations. Provider should seek legal counsel regarding any legal and compliance issues, and should not rely on any materials or content associated with the Services in determining Provider’s compliance obligations under law. Provider understands and agrees Proactive Health is not providing, to Provider or anyone else, medical, clinical, or legal services. Provider is solely responsible for preserving and making adequate backups of its data. To the extent Proactive Health provides auxiliary/clinical staff services to Provider, such staff will be provided to perform under the appropriate clinical supervision of the Provider, as required by federal and state law, and within the Prov ider’s workforce. Provider accepts and acknowle dges its responsibility to obtain all necessary informed consents from patients to receive services, as well as supervise and oversee staff as it relates services provided to and for Provider. Such services shall be specified in a Statement of Work.

9. Medical Records; Data Hosting and Storage; HIPAA. Provider is solely responsible for capturing and retaining any and all information regarding Users and is solely responsible for creating, storing, and maintaining any and all medical records, including any digital images. The parties agree that Proactive Health bears no responsibility for maintaining or preserving any Provider Content, User data, or data related to any Services provided to Provider or Users, including, but not limited to, User data provided to Provider utilizing such Services. Notwithstanding, t he parties agree that Proactive Health will use, disclose, or ot herwise maintain patient information in accordance with the Business Associate Agreement (“BAA”) set forth in Exhibit “Business Associate Agreement”. Provider understands, acknowledges and agrees it is solely responsible for preserving and making adequate backups of its data. Nothing in these Terms and Conditions limits or restricts Proactive Health’s ability to create its own records of the Services. Proactive Health and Provider each agree to comply with all applicable federal and state laws and regulations relating to the maintenance, uses and disclosures of protected health information (including any heightened requirements for mental health or substance abuse reco rds), including without limitation the Health Insurance Portability and Accountability Act of 1996, as codified at 42 USC § 1320d through d -8, as amended by the Health Information Technology for Economic and Clinical Health Act, as incorporated in the American Recovery and Reinvestment Act of 2009, and any current and future regulations promulgated thereunder, including those published at 45 C.F.R. Parts 160, 162, and 164, all collectively referred to herein as the “HIPAA Requirements.” In the event of any conflict between the terms of the Agreement or these Terms and Conditions and those set forth in the BAA, the terms of the BAA shall prevail with respect to the confidential treatment of protected health information, as defined in the HIPAA Requirements.

10. Intellectual Property and Proprietary Rights.

10.1. Proactive Health IP. Proactive Health’s “Intellectual Property” shall mean the Services (which is defined to include the Proactive Health Platform) Documentation, and all discoveries, ideas, concepts, designs, inventions (e.g., compositions of matter, machines, processes, algorithms, models, protocols, formulae, methods of doing business), source code, improvements, works, works of authorship (e.g., computer programs and associated documentation, drawings, flow charts, schematics and other works subject to copyright, design right or other like protection), trade secrets, patents, registered designs, works, copyrights, registrations, applications, and other intellectual property of Proactive Health. Proactive Health’s Intellectual Property shall also include its technology, knowledge and work product relating to the Services and Documentation, including formulation, design, ideas, inventions, innovations, discoveries, concepts, processes, techniques, architecture, user interfaces, know -how, engineering and research data, proprietary clinical service protocols, algorithms, database design and architecture, templates and associated macros, expert-developed content for patient care management, monitoring and reporting, medical record databases, preclinical and clinical data, specifications, drawings, diagrams, descriptions, reports, and records. Provider understands, acknowledges and agrees it has no right to transfer or reproduce the Services, in whole or in part, or prepare any derivative works with respect to, or disclose Confidential Information pertaining to any Services or Intellectual Property. Provider further acknowledges and agrees that Proactive Health owns all right, title, and interest in and to the Services, Documentation, and Intellectual Property including any changes or modifications or improvements made thereto in connection with or independe nt of these Terms and Conditions. Under no circumstances will Provider be deemed to receive title to any portion of the Services or Intellectual Property, title to which at all times will vest exclusively in Proactive Health. This includes any suggestions or requests for changes or modifications or improvements made by Provider to Proactive Health, in writing or otherwise, it being agreed and understood that any such changes or modifications or improvements are derivative of the Proactive Health’s proprietary Services, and “know-how.” Provider will preserve all Services, and Intellectual Property from any liens, encumbrances, and claims of any individual or entity. Provider will not use any Confidential Information disclosed by Proactive Health to Provider to contest the validity of any intellectual property rights of Proactive Health or its licensors. Any such use of Proactive Health’s Confidential Information or data will constitute a material, non-curable breach of these Terms and Conditions.

10.2. Provider Content. Provider grants Proactive Health a non-exclusive, world -wide, royalty -free license to use the data and other information input by Provider on the Proactive Health Platform (the “Provider Content”) for purposes of performing these Terms and Conditions, as directed or instructed by Provider and its Users (e.g., in the context of support requests), Proactive Health policies, and/or applicable law. Provider will be responsible for obtaining all rights, permissions, and authorizations with respect to the Provider Content for use as contemplated under these Terms and Conditions. Except for the license granted in this Section, nothing contained in these Terms and Conditions will be construed as granting Proactive Health any right, title, or interest in the Provider Content. Provider shall retain a copy of Provider Content outside the Services. Provider shall comply with all intellectual property, marketing laws, advertising laws, privacy laws, and all other laws and regu lations related to the Provider Content and shall comply with all legal duties applicable to Provider. Provider shall provide the relevant Users with all information or notices Provider is required by applicable privac y and data protection law to provide and, if necessary, obtain the consent of or provide choices to such Users as required by such laws. Proactive Health and Provider shall apply reasonable technical, organizational and administrative security measures to keep Provider Content protected in accordance with industry standa rds. Provider is solely responsible for the configuration of its Service account and configuration, operation, performance and security of its equipment, networks and other computing resources, including its gateways or other devices and networks used to connec t to the Services. This section states Proactive Health’s exclusive obligations with respect to Provider Content.

10.3. Usage Data. Subject to any applicable restrictions under HIPAA, Proactive Health shall have the right to collect and analyze data and other information relating to the provision, use, and performance of various aspects of the Services and related systems and technologies (including information concerning Provider Content and data derived therefrom), and Proactive Health may (a) use such information and data to improve and enhance the Services and for other development, diagnostic, and corrective purposes in connection with the Services and other Proactive Health offerings, and (b) disclose such data solely in aggregated or other de -identified form in connection with its business, provided such data does not include (directly or by inference) any information identifying Provider or any identifiable individual. No rights or licenses are granted except as expressly set forth herein.

10.4. Third Party Data. The Services and Documentation may contain material, data, or information provided by third parties (“Third Party Data”). Proactive Health does not control Third Party Data and is not responsible for its content. Proactive Health’s inclusion of Third Party Data in the Services does not imply any endorsement of the information and Proactive Health makes no representations or warranties with respect to any Third Party Data.

11. Feedback. Provider may provide suggestions, comments or other feedback (collectively, “Feedback”) to Proactive Health’s Services. Feedback is voluntary. Proactive Health may use Feedback for any purpose without obligation of any kind. To the extent a license is required under Provider’s intellectual property rights to make use of the Feedback, Provider grants Proactive Health an irrevocable, non- exclusive, perpetual, fully-paid-up, royalty-free license to use the Feedback in connection with Proactive Health’s business, including the enhancement of the Services.

12. Fees and Financial Terms. Fees. Provider shall pay Proactive Health the fees associated with the Services in accordance with the payment provisions set forth in Exhibit “Fees” and any additional fees set forth in any Statements of Work (“Fees”). Fees shall be calculated and invoiced on a “paid-on- paid” basis, meaning that Proactive Health’s Fees are contingent upon Provider’s actual collection of reimbursement for the Services from patients, health plans, governmental agencies, third-party payors, or other financially -responsible parties. Proactive Health shall only invoice Provider for Services corresponding to claims for which Provider has received payment. Except as specifically provided hereunder, all Fees are non-refundable. Following the Initial Term, Proactive Health may increase Fees, in any SOW, Exhibit or otherwise covered by the Agreement or these Terms and Conditions, for any Renewal Term by providing sixty (60) days advanced notice to Provider prior to the commencement of the applicable Renewal Term. Provider may terminate the Agreement on written notice to Proactive Health within thirty (30) days of its receipt of notice from Proactive Health to adjust the Fees; provided, however, that if Provider fails to object to the adjustment in writing with in the foregoing thirty (30) days then Provider will be deemed to have agreed to the adjustment and Exhibit “Fees” shall be automatically amended to reflect the Fee adjustment.

12.1. Payment Terms; Invoicing and Reconciliation. The parties shall follow the invoicing and reconciliation process set forth below:

a) Provider shall submit claims to applicable patients, health plans, governmental agencies, third-party payors, or other financially-responsible parties for Services rendered during a given month (“Service Month”) no later than the fifth (5th) business day of the month immediately following the Service Month.

b) Provider shall use commercially reasonable efforts to collect payment on submitted claims within thirty (30) days following claims submission (“Collection Period”).

c) Within ten (10) business days following the end of each Collection Period, Provider shall provide Proactive Health with a reconciliation report identifying which claims have been paid and the amounts collected (“Reconciliation Report”). Provider shall gran t Proactive Health access to Provider’s billing software as set forth in Section 13 to verify the accuracy of each Reconciliation Report.

d) Proactive Health shall invoice Provider within five (5) business days of receipt of each Reconciliation Report, and such invoice shall reflect only those claims for which Provider has received payment as shown in the Reconciliation Report.

e) In each subsequent month, the parties shall conduct an additional reconciliation to account for any claims from prior Service Months that have been newly paid or for which payment status has changed. Proactive Health may issue supplemental invoices or credits, as applicable, to reflect such changes.

f) Provider shall pay Proactive Health’s invoices no later than fifteen (15) calendar days from the invoice date. Failure to timely pay shall constitute a material breach of these Terms and Conditions by Provider, and overdue payments shall bear interest at a rate of one and one half percent (1.5%) per month (or such lesser rate as may be the maximum permissible under law). Proactive Health shall have the right to immediately suspend or cease all Services if Provider fails to timely pay Fees as required hereunder.

12.2. Taxes. In addition to any other payments due under these Terms and Conditions, Provider agrees to pay, indemnify, and hold Proactive Health harmless from any sales, use, transfer, privilege, tariffs, excise, and all other taxes and all duties, whether international, national, state, or local, however designated, which are levied or imposed by reason of Provider’s receipt of the Services un der the Agreement; excluding, however, income taxes on profits which may be levied against Proactive Health.

13. Billing and Collection. Provider shall have the sole and exclusive responsibility to bill and collect from all patients, health plans, governmental agencies, third-party payors, and other financially-responsible parties for Services rendered. Proactive Health may not, and shall not, bill any patient, governmental agency, or third-party payor for the Services rendered to Provider or any User under these Terms and Conditions. In billing and collecting for the Services, Provider shall be responsible for all bi lling, coding, documentation, claims submission, and collections associated with the Services, including the determination of whether or not the Services are covered by health plans, governmental agencies, third-party payors, or other financially -responsible parties. Provider shall use commercially reasonable efforts to maximize collections and shall not unreasonably delay or fail to pursue payment on submitted claims. Proactive Health shall not be responsible to refund, offset, or indemnify Provider for an y claim denials, audits, adjustments, or overpayments in connection with Provider’s billing of the Services; provided, however, that if a claim for which Proactive Health has invoiced Provider is subsequently denied, adjusted, or results in an overpayment that Provider is required to return, Provider shall notify Proactive Health an d the parties shall reconcile such amounts in the next monthly reconciliation. Provider shall comply with all billing laws, regulations, instructions, interpretative guidelines, incident-to rules, and other requirements established by governmental and commercial payors when billing for the Services. Provider further agrees to hold Proactive Health harmless and indemnify Proactive Health from any responsibility or claim of any kind relating to Provider's billing and collection of fees for the Services. Provider shall grant Proactive Health access to Provider’s billing software for the limited purpose of allowing Proactive Health to view reports and data related to insurance billing a nd insurance collections, including for verification of Reconciliation Reports as described in Section 12.1. Such access shall be read -only unless otherwise agreed in writing and shall not permit Proactive Health to alter, submit, or delete any billing records. Provider represents that it has the authority to grant such access and that the access provided will comply with all applicable laws, regulations, and third-party software licensing requirements.

14. Warranties.

14.1. Provider Warranty. Provider represents and warrants that (a) it has full power, capacity, and authority to enter into these Terms and Conditions and to grant the license set forth in Section 9.2 (Provider Content); (b) any Provider Content provided by Provider for use in connection with the Services does not and will not infringe the intellectual property, publicity, or privacy rights of any pe rson and is not defamatory, obscene, or in violation of applicable foreign, federal, state and local laws, rules and regulations (including but not limited to applicable policies and laws related to spamming, such as CAN -SPAM, privacy, and consumer protection); (c) its use of the Services will be in compliance with all applicable law; (d) neither Provider nor any Users shall make any representations with respect to Proactive Health, the Services, the Agreement, or these Terms and Conditions (including, without limitation, that Proactive Health is a warrantor or co-seller or provider of any of Provider’s services); and (e) neither Provid er nor any of its respective officers, directors, employees, or contractors is or has ever been: (i) convicted of a criminal offense related to health care or the provision of items and services payable by a federal or state health care program (for example, Medicare and Medicaid); (ii) assessed civil money penalties for an offense related to health care or to the provision of items or services payable by a federal or state health care program; (iii) excluded from p articipation in any federal or state healt h care program; or (iv) excluded by any federal agency from receiving federal contracts. Provider shall notify Proactive Health immediately of any breach of any representation or warranty in this section or any other section under the Agreement or these Terms and Conditions or of any information or situation which could reasonably lead to a breach of this section.

14.2. Proactive Health Warranty. During the Term, Proactive Health represents and warrants the Services will substantially comply with the specifications, if any, described in the then current Documentation. In the event of a breach of the warranty, Proactive Health’s sole and exclusive liability and Provider’s sole and exclusive remedy will be to provide restored or replacement service which conforms to this warranty. In the event Proactive Health is unable through reasonable efforts to provide restored or replacement service within thirty (30) calendar days from receipt of notice from Provider of the failure of the Services to comply with the warranty, Provider may e lect to terminate the Agreement and receive a pro -rated refund of any pre -paid, unused recurring fees for the non-conforming aspect of the Services.

14.3. Disclaimer of Warranties. EXCEPT AS PROVIDED IN SECTION 13.2 (PROACTIVE HEALTH WARRANTY), THE SERVICES, SOFTWARE AND/OR DEVICE LICENSED AND/OR PURCHASED BY PROVIDER THROUGH PROACTIVE HEALTH, COVERED BY THESE TERMS AND CONDITIONS, ARE PROVIDED “AS IS” AND “AS -AVAILABLE,” WITH ALL FAULTS, AND WITHOUT WARRANTIES OF ANY KIND. EXCEPT AS PROVIDED IN SECTION 13.2 (PROACTIVE HEALTH WARRANTY), PROACTIVE HEALTH AND ITS VENDORS AND LICENSORS DISCLAIM ALL OTHER WARRANTIES, EXPRESS AND IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUIET ENJOYMENT, QUALITY OF INFORMATION, TITLE, AND NON -INFRINGEMENT. PROVIDER EXPRESSLY AGREES AND ACKNOWLEDGES THAT USE OF THE SERVICES IS AT PROVIDER’S SOLE RISK. PROACTIVE HEALTH DOES NOT WARRANT THAT THE SERVICES WILL MEET PROVIDER’S REQUIREMENTS, OR THAT THE SERVICES ARE COMPATIBLE WITH ANY PARTICULAR HARDWARE OR SOFTWARE, OR THAT THE OPERATION OF THE SERVICES WILL BE UNINTERRUPTED OR ERROR -FREE, OR THAT DEFECTS IN THE SERVICES WILL BE CORRECTED. FURTHERMORE, PROACTIVE HEALTH DOES NOT WARRANT OR MAKE ANY REPRESENTATION REGARDING THE USE OR THE RESULTS OF THE USE OF THE SERVICES IN TERMS OF THEIR CORRECTNESS, ACCURACY, QUALITY, RELIABILITY, SECURITY, APPROPRIATENESS FOR A PARTICULAR TASK OR APPLICATION, CURRENTNESS, OR OTHERWISE. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY PROACTIVE HEALTH OR ITS AUTHORIZED REPRESENTATIVES WILL CREATE A WARRANTY OR IN ANY WAY INCREASE THE SCOPE OF PROACTIVE HEALTH’S OBLIGATIONS HEREUNDER. THE SERVICES MAY BE USED TO ACCESS AND TRANSFER INFORMATION OVER THE INTERNET. PROVIDER ACKNOWLEDGES AND AGREES THAT PROACTIVE HEALTH AND ITS VENDORS AND LICENSORS DO NOT OPERATE OR CONTROL THE INTERNET AND THAT: (I) VIRUSES, WORMS, TROJAN HORSES, OR OTHER UNDESIRABLE DATA OR SOFTWARE; OR (II) UNAUTHORIZED USERS (E.G., HACKERS) MAY ATTEMPT TO OBTAIN ACCESS TO AND DAMAGE PROVIDER’S DATA, WEBSITES, COMPUTERS, OR NETWORKS. PROACTIVE HEALTH WILL NOT BE RESPONSIBLE FOR SUCH ACTIVITIES. PROACTIVE HEALTH DOES NOT WARRANT ANY DATA PROVIDED BY PROACTIVE HEALTH OR THROUGH THE SERVICES WILL BE ACCURATE OR COMPLETE. PROVIDER IS RESPONSIBLE FOR PRESERVING AND MAKING ADEQUATE BACKUPS OF ITS DATA.

15. Insurance; Indemnification.

15.1. Insurance. During the Term, Provider shall maintain general and professional liability insurance in amounts of not less than One Million Dollars ($1,000,000.00) per occurrence and Three Million Dollars ($3,000,000.00) in the aggregate, or in any greater minimum amount if required by State law, to ensure coverage of Provider and its Users. Upon the receipt of any notice of cancellation, termination, or material change of such policy, Provider shall promptly notify Proactive Health in writing.

15.2. Proactive Health Indemnity. Proactive Health shall defend and indemnify Provider and its directors, officers, agents, employees, members, subsidiaries, and successors in interest (each a “Provider Indemnitee”) and hold each Provider Indemnitee harmless from any and all claims, losses, deficiencies, damages, liabilities, costs, and expenses (including but not limited to reasonable attorneys’ fees, experts’ fees, and court costs) incurred by a Provider Indemnitee as a result of any claim by a third-party that Provider’s authorized use of the Services infringes that third-party’s United States patent, copyright, or trade secret rights. Provider shall: (i) give Proactive Health prompt written notice of any claim; and (ii) allow Proactive Health to control, and fully cooperate with Proactive Health (at Proactive Health’s sole expense) in, the defense and all related negotiations. Proactive Health shall not enter into any stipulated judgment or settlement that purports to bind Provider without Provider’s express written authorization, which shall not be unreasonably withheld or delayed. Proactive Health shall have no obligation to indemnify Provider to the extent the claimed infringement arises from or is based on (a) the Provider Content, (b) specifications provided by Provider or its agents, (c) use of the Services in combination with any hardware, software, products, data, or other materials not provided by Proactive Health, or (d) misuse of the Services (the “Excluded Claims”). Provider agrees that if its use of the Services becomes, or in Proactive Health’s opinion is likely to become, the subject of an infringement claim, Provider shall permit Proactive Health either to procure the right for Provider to continue to use the Services or to replace or modify the Services with technology of comparable quality and performance capabilities to become non-infringing. If in Proactive Health’s sole discretion, neither alternative is reasonably possible, Proactive Health may elect to immediately terminate the Agreement and return a prorated portion of any pre -paid, unused fees for the Services. The provisions of this Section 14.2 (Proactive Health Indemnity) state the sole and exclusive obligations and liability of Proactive Health and its licensors and suppliers, and Provider’s sole and exclusive remedy for any claim of intellectual property infringement arising out of or relating to the Agreement or these Terms and Conditions, and are in lieu of any implied warranties of non-infringement and title, all of which are expressly disclaimed.

15.3. Provider Indemnity. Provider shall defend and indemnify Proactive Health and its directors, officers, agents, employees, members, subsidiaries, and successors in interest (each “Proactive Health Indemnitee”) and hold each Proactive Health Indemnitee harmless from any and all claims, losses, deficiencies, damages, liabilities, costs, and expenses (including but not limited to reasonable attorneys’ fees, experts’ fees, and court costs) incurred by a Proactive Health Indemnitee as a result of any claim by a third-party arising from or related to any (i) breach of the Agreement or these Terms and Conditions or violation of law by Provider or any User, (ii) any claim Provider Content infringes the intellectual property, publicity, or privacy rig hts of any person, and (iii) the Excluded Claims. Provider additionally indemnifies and holds Proactive Health Indemnitees harmless for any and all losses, liabilities, damages, claims, costs, penalties, expenses, and fees (including, but not limited to, reasonable attorneys’ fees, disbursements of counsel, and costs of investigation, li tigation, third-party discovery, and settlement) arising out of or in connection with the introduction by Provider or any User (whether inadvertent or purposeful) of any com puter virus or malicious computer program into Proactive Health ’s computing systems, website code, or the unauthorized access of Provider or User data as result of unauthorized access to any of Proactive Health’s computing systems or data. Proactive Health shall: (i) give Provider prompt written notice of any claim; and (ii) allow Provider to control, and fully cooperate with Provider (at Provider’s sole expense) in, the defense and all related negotiations. Provider shall not enter into any stipulated judgment or settlement that purports to bind Proactive Health without Proactive Health ’s express written authorization, which shall not be unreasonably withheld or delayed.

16. Confidentiality. The terms and provisions of the Agreement shall be confidential and shall not be disclosed by Provider to anyone without first obtaining the written consent of Proactive Health, except in the ordinary course of business to agents of the parties who have agreed to maintain the confidentiality of such matters. Each party (as a “Receiving Party”) agrees not to make the Confi dential Information, as defined below, of the other party (as the “Disclosing Party”) available in any form to any third-party or use the Disclosing Party’s Confidential Information except as permitted hereunder, and agrees to take all reasonable steps to ensure that the Di sclosing Party’s Confidential Information is not disclosed or distributed by its employees, agents or contractors in violation of the provisions of the Agreement or these Terms and Conditions. “Confidential Information” shall mean, with respect to a party hereto, all information or material which (i) gives that party some competitive business advantage or the opportunity of obtaining such advantage or the disclosure of which could be detrimental to the interests of that party; or (ii) from all the relevant circumstances should reasonably b e assumed to be confidential. Confidential Information of Proactive Health includes, but is not limited to, non-public information regarding features, functionality, and performance of the Services. Each party’s Confidential Information shall remain the sole and exclusive property of that party. Neither party shall have any obligation with respect to information which the party can document as: (i) gener ally known to the public by any means other than a breach of the obligations of a receiving party; (ii) previously known to the receiving party or rightly received by the receiving party from a third-party; (iii) independently developed by the receiving pa rty, or (iii) required to be disclosed pursuant to a subpoena or other similar order of any court or government agency, provided, however, that the Receiving Party upon receiving such subpoena or order shall (a) promptly inform the Disclosing Party in writing and provide a copy thereof, (b) cooperate with the Disclosing Party in limiting disclosure of the Disclosing Party’s Confidential Information, and (c) shall only disclose t hat Confidential Information necessary to comply with such subpoena or order. Each party acknowledges that due to the unique nature of the other party’s Confidential Information, the Disclosing Party will not have an adequate remedy in money or damages in the event of a ny unauthorized use or disclosure of its Confidential Information. In addition to any other remedies that may be available in law, in equity or otherwise, the Disclosing Party shall be entitled to seek injunctive relief to prevent such unauthorized use or disclosure. On the Disclosing Party’s written request or upon expi ration or termination of the Agreement for any reason, the Receiving Party will promptly return or destroy, at the Disclosing Party’s option, all originals and copies of all documents and materials it has received containing the Disclosing Party’s Confidential Information and certify in writin g that all such documents and materials have been delivered to the Disclosing Party or destroyed, as requested by the Disclosing Party.

17. Limitation of Liability and Damages. NEITHER PROACTIVE HEALTH NOR ITS VENDORS AND LICENSORS WILL HAVE ANY LIABILITY TO PROVIDER OR USER OR ANY THIRD PARTY FOR ANY LOSS OF PROFITS, SALES, TRADING LOSSES, BUSINESS, DATA, OR OTHER INDIRECT, INCIDENTAL, CONSEQUENTIAL, OR SPECIAL LOSS OR DAMAGE, INCLUDING EXEMPLARY AND P UNITIVE, OF ANY KIND OR NATURE RESULTING FROM OR ARISING OUT OF THE AGREEMENT OR THESE TERMS AND CONDITIONS, INCLUDING USE OF OR INABILITY TO USE THE SERVICES, EVEN IF PROACTIVE HEALTH HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE TOTAL AGGREGATE LIABILITY OF PROACTIVE HEALTH AND ITS VENDORS AND LICENSORS TO PROVIDER OR USER OR ANY THIRD PARTY ARISING OUT OF THE AGREEMENT OR THESE TERMS AND CONDITIONS OR USE OF THE SERVICES IN CONNECTION WITH ANY CLAIM OR TYPE OF DAMAGE (WHETHER IN CONTRACT OR TORT, INCLUDING NEGLIGENCE) WILL NOT EXCEED THE TOTAL FEES PAID HEREUNDER BY PROVIDER DURING THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE EVENT GIVING RISE T O THE LIABILITY. THIS LIMITATION OF LIABILITY WILL APPLY EVEN IF THE EXPRESS WARRANTIES SET FORTH ABOVE FAIL OF THEIR ESSENTIAL PURPOSE.

18. General Provisions.

18.1. Affiliates, Subcontractors and Vendors. Some or all of the Services, including support, may be provided by Proactive Health ’s affiliates, agents, subcontractors, and information system vendors. The rights and obligations of Proactive Health may be, in whole or in part, exercised or fulfilled by the foregoing entities.

18.2. Publicity. Proactive Health may identify Provider as a Provider in its customer listings, web sites, and other promotional materials. In addition, Proactive Health may issue a press release regarding the parties’ relationship under this Agreement.

18.3. Force Majeure. Except for the payment of money as described in the Terms and Conditions, neither party will be liable for any failure or delay in performance under this Agreement which is due to any event beyond the reasonable control of such party, including without limitation, fire, explosion, unavailability of utilities or raw materials, Internet delays and failures, telecommunications failures, unavailability of components, labor difficulties, war, riot, act of God, export control regulation, laws, judg ments or government instructions.

18.4. Entire Agreement; Amendment. This Agreement includes and incorporates all exhibits referenced herein and appended hereto on or after the Effective Date and sets forth the entire agreement between the parties with regard to the subject matter hereof. This Agreement may only be amended in a writing signed by both Parties; provided Exhibit “Fees” may be automatically amended with respect to any upcoming Renewal Term in accordance with the Terms and Conditions. No other agreements, representations, or warranties have been made by either party to the other with respect to the subject matter of this Agreement, except as referenced herein.

18.5. Governing Law, Venue, and Limitation of Actions. This Agreement will be construed according to, and the rights of the parties will be governed by, the law of the State of Delaware, without reference to its conflict of laws rules. Exclusive forum and venue shall be in state or federal courts in Wilmingt on, Delaware. The parties waive any objections or defenses it may have based upon an inconvenient forum.

18.6. Compliance with Laws. Both parties agree to comply with all applicable local, state, national and foreign laws, rules, and regulations, including, but not limited to, all applicable data protection, privacy, anti -spam, export and import laws and regulations, in connection with their performance, access and/or use of the Services under this Agreement. Proactive Health does not guarantee the Services are appropriate and/or available for use in any particular context or location and Provider is responsible for compliance with all applicable laws. Proactive Health reserves the right to modify the Services for any reason, without notice and without liability to Provider or any User, to comply with applicable law.

18.7. Compliance. Each party agrees to comply with all applicable federal, state and local laws in performing its obligations hereunder, and Provider agrees that Provider is solely responsible for ensuring compliance with all Provider Content and Provider’s business practices, which include, but are not limited to, the federal and state anti-kickback and self-referral laws and regulations at all times during the term of this Agreement. The parties acknowledge that although Proactive Health is obligated to provide the Services as specified in this Agreement, there is no obligation of Proactive Health to refer patients to Provider or any affiliate of Provider, and there is no obligation of Provider to refer patients to any person or business entity. Notwithstanding the unanticipated effect of any of the provis ions herein, the parties intend to comply with 42 U.S.C. § 1320a-7b(b) (commonly known as the Anti-Kickback Statute), 42 U.S.C. § 1395nn (commonly known as the Stark Law) and any other federal or state law provision governing fraud and abuse or self-referrals, as such provisions may be amended from time to time. This Agreement will be construed in a manner consistent with compliance with such statutes and regulations, and the parties hereto agree to take such act ions necessary to construe and administer this Agreement accordingly. The parties hereto represent, covenant and agree that the fees due to Proactive Health under this Agreement has been determined through good faith and arm’s length bargaining to be commercially reasonable. The sole purpose of the payments to Proactive Health hereunder is to pay fair market value for Services actually rendered by Proactive Health to Provider hereunder. Proactive Health strictly and solely provides Services to healthcare professionals to enable such professionals to connect with their patients, and do not involve any provision of any Services by Proactive Health directly to any patient, customer or client of Provider. No amount paid hereunder is intended to be, nor shall be construed as, an inducement or payment for referral of, or recommending referral of, patients by Proactive Health (or its employees and agents) to Provider (or its employees or agents) or by Provider (or its employees and agents) to Proactive Health (or its employees and agents). In addition, fees charged hereunder do not include any discount, rebate, kickback, or other reduction in charge. This Agreement shall be interpreted and construed at all times in a manner consistent with applicable laws and regulations governing the financial relationships among individuals and entities that provide or arrange for the provision of items or services that are reimbursable by governmental health care programs or other third-party payors.

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

18.9. Relationship of the Parties. Proactive Health will perform its duties under this Agreement as an independent contractor. Nothing contained in this Agreement will be deemed to establish a partnership, joint venture, association, or employment relationship between the parties. With the exception of any auxiliary/clinical staff provided to Provider pursuant to a specific Statement of Work, personnel employed or retained by Proactive Health who perform non-clinical duties related to this Agreement will remain u nder the supervision, management, and control of Proactive Health.

18.10. Access to Books and Records. To the extent that the provisions of Section 1861(v)(1)(I) of the Social Security Act are applicable to this Agreement, the parties agree to make available, upon the written request of the Secretary of the Department of Health and Human Services or upon the request of the Comptroller General, or any of their duly authorized representatives, this Agreement, and other books, records and documents that are necessary to certify the nature and extent of costs incurred by them for services furnished under this Agreement. If any Services are performed by way of subcontract with another organization and the value or cost of such subcontracted Services is Ten Thousand Dollars ($10,000) or more over a twelve (12) month period, such subcont ract shall contain and the respective party shall enforce a clause to the same effect as this Section. The availability of the parties’ books, documents and records shall be subject at all times to all applicable legal requirements, including without limitation, such criteria and procedures for seeking and obtaining access that may be promulgated by the Secretary. The obligations hereunder shall extend for four (4) years after the furnishing of such services. The parties shall notify each other of any such request for records.

18.11. Assignment. Neither party may assign, transfer, or delegate this Agreement or its rights or obligations hereunder without the prior written consent of the other party, which shall not be unreasonably withheld. All the terms and provisions of this Agreement will be binding upon and inure to the benefit of the parties, their successors, assigns, and legal representatives.

18.12. Severability. If any of the provisions of this Agreement are found or deemed by a court to be invalid or unenforceable, they will be severable from the remainder of this Agreement and will not cause the invalidity or unenforceability of the remainder of this Agreement.

18.13. Waiver. All waivers hereunder must be made in writing by a duly authorized representative of the party against whom the waiver is to operate. Neither party will by mere lapse of time without giving notice or taking other action hereunder be deemed to have waived any breach by the other party of any of the provisions of this Agreement. Further, the waiver by either party of a particular breach of this Agreement by the other party will not be construed as, or constitute, a continuing waiver of such breach.

18.14. Agreement Drafted By All Parties. This Agreement is the result of arm’s length negotiations between the parties and shall be construed to have been drafted by all parties such that any ambiguities in this Agreement shall not be construed against either party.

18.15. Survival. The following terms shall survive termination, expiration, or nonrenewal of this Agreement: Sections 3, 9, 10, and 16.

18.16. Counterparts; Electronic Signatures. This Agreement may be executed in one or more counterparts, all of which together shall constitute only one agreement. If any signature is delivered by facsimile or email or is signed in any electronic format, such signature shall create a valid and bind ing obligation with the same force and effect as if such signature were handwritten. Provider acknowledges and agrees it will not contest the validity or enforceability of this Agreement and related documents, including u nder any applicable statute of frauds, because they were accepted and/or signed in electronic form. Provider further acknowledges and agrees that it will not contest the validity or enforceability of a signed facsimile or electronically transmitted copy of this Agreement and related documents on the basis that it lacks an original handwritten signature. Computer maintained records of a party when produced in hard copy form shall constitute business records and shall have the same validity as any other generally recognized business records.

Notices. Notices must be in writing and delivered by registered or certified mail (return receipt requested to the address set forth herein (as updated by notice). Notices are effective five (5) days after mailing.

‍

‍