Opeeka Master Agreement

1. Definitions.  Capitalized terms used and not otherwise defined in this Agreement shall have the following meanings:

1.1 “Affiliate” means, with respect to a Party, any entity that, directly or indirectly, controls, is controlled by, or is under common control with such Party, and “control” means the direct or indirect possession of the power to direct or to cause the direction of the management and policies of the entity.

1.2 “Agreement” means this Agreement, all applicable Orders and Schedules, and all exhibits and amendments to the foregoing. Each Schedule together with the terms of this Agreement, and any exhibits and amendments to such Schedule, is a separate and independent contractual obligation of the Parties from any other Schedule, and termination of one Service Schedule shall not be deemed to terminate any other Schedule.

1.3 “Applicable Law” means any and all applicable laws, statutes, ordinances, rules, regulations, directives, edicts and similar governmental requirements of all international, federal, provincial, state, county, city, and borough departments, bureaus, boards, agencies, offices, commissions and other subdivisions thereof, or any other governmental, public, or quasi-public authority (inside and outside the U.S.) with jurisdiction over a Party’s business or activities hereunder.

1.4 “Authorized User” means Customer or Customer’s employees, consultants, contractors, and agents who are authorized by Customer to access and use the Opeeka Technology under the rights granted to Customer by Opeeka pursuant to this Agreement, and (a) have been given user credentials as established by Opeeka, including, without limitation, Opeeka having issued each such user an authorized user name and password; and (b) have agreed to use the applicable Opeeka Technology in compliance with the terms and conditions of this Agreement.

1.5 “Customer” means the individual, organization, or entity entering into this Agreement and, with respect to an applicable organization or entity, any Affiliate of such organization or entity that is authorized to enter into an Order.

1.6 “Customer Data” means, collectively: (a) Service Recipient Data (as defined herein); and

(b) any other data, photos, images, information, material, or other content that Customer or its Authorized Users upload, post, store, distribute or use in connection with the use of the Opeeka Technology and/or the Services under this Agreement.

1.7 “Customer Systems” means Customer’s information technology infrastructure, including computers, software, hardware, databases, electronic systems, and networks, whether operated by Customer or through the use of third party services.

1.8 “Data Element” means all data fields related to a Service Recipient’s record, except those stored as part of the profile demographic data (which includes name, address, phone, email, birth date, race/ethnicity, client identifiers (unlimited), natural support names & contact, collaboration names & start and end dates, Helper (i.e., staff) assignment to clients. Each question included on an assessment is one data element.

1.9 “Documentation” means the user manuals, technical manuals, and other documentation relating to the Opeeka Technology that are provided to Customer by Opeeka pursuant to this Agreement and which describe the functionality, components, features, or requirements of the Opeeka Technology, including any aspect of the installation, configuration, integration, operation, use, support, or maintenance thereof.

1.10 “Harmful Code” means any software, hardware, device or other technology, including any virus, worm, malware, or other malicious computer code, the purpose or effect of which is intended to permit unauthorized access to, or to destroy, disrupt, disable, distort, or otherwise harm or impede any (a) computer, software, firmware, hardware, system, or network; or (b) any application or function of any of the foregoing or the security, integrity, confidentiality, or use of any data processed thereby.

1.11 “Intellectual Property Rights” means, on a worldwide basis, any and all patents (including originals, divisionals, continuations, continuations-in-part, extensions, utility models and re-issues), patent applications, copyrights (including all registrations and applications therefor), trade secrets, trademarks, and service marks (including all registrations and applications therefor), tradenames, logos, business identifiers, internet domain names, moral rights, and all other proprietary and intellectual property rights.

1.12 “Opeeka Technology” means all Software, including, as applicable, SaaS Solutions or other Software or technology solutions, provided under this Agreement pursuant to an Order.

1.13 “Order” means an order and/or automatic recurring payment authorization submitted by Customer and accepted by Opeeka pursuant to which Customer purchases or licenses any Opeeka Technology and/or Services pursuant to this Agreement. Each Order shall be subject to, and incorporate by reference, this Agreement, 1.14

1.14 “Professional Services” means implementation, consulting and development services, including without limitation, technical services to facilitate setup and deployment of the Opeeka Technology.

1.15 “Professional Services Schedule” means a Schedule setting forth the terms and conditions for Opeeka’s performance of Professional Services.

1.16 “Reports” means any dashboards, databases, or any other report formats that are a feature or functionality made available to Authorized Users of the Opeeka Technology.

1.17 “SaaS Solution” means a centrally-hosted Software application that is delivered to Customer through the Internet or another network and managed and maintained by Opeeka.

1.18 “SaaS Solution Schedule” means a Schedule setting forth the terms and conditions for Opeeka’s provision of a SaaS Solution.

1.19 “Schedule(s)” means a schedule setting forth the additional terms and conditions that are applicable to the Opeeka Technology and/or Services to be provided pursuant to an applicable Order, including each of the Professional Services Schedule, SaaS Solution Schedule, Supplemental Terms Schedule, Support Services Schedule, and any other schedule(s), and any amendments thereto, incorporated into an applicable Order or otherwise executed by the Parties and which reference this Agreement.

1.20 “Service Recipient” means an individual client of Customer that receives services from Customer and for which Customer is using the Opeeka Technology to monitor that individual client.

1.21 “Service Recipient Data” means any data, photos, images, information, medical information, other health-care related information, material, records, or any other personal information about or related to a Service Recipient that Customer or its Authorized Users upload, post, store, distribute or use in connection with using the Opeeka Technology and/or Services under this Agreement.

1.22 “Services” means the services provided by Opeeka or its contractors to Customer under this Agreement, including without limitation, Professional Services, Support Services, and such other services as may be mutually agreed to by the Parties.

1.23 “Software” means (a) the object-code version(s) of Opeeka’s proprietary software programs and related applications which monitor and track the wellbeing of a person or of a population of people; (b) Updates to such software provided to paid subscribers of Support Services; and (c) any complete or partial copies of the foregoing.

1.24 “Supplemental Terms Schedule” means a Schedule setting forth the terms and conditions that are supplemental to, or that supersede or amend, the terms and conditions set forth in this Agreement and/or an applicable Schedule.

1.25 “Support Services” means the maintenance and support services to be provided with respect to the Opeeka Technology licensed under this Agreement, as identified in an applicable Order, which Support Services will be provided in accordance with the applicable Support Services Schedule.

1.26 “Support Services Schedule” means a Schedule setting forth the terms and conditions for Opeeka’s provision of Support Services.

1.27 “Third Party Products” means software provided or services performed by third parties independently of the Opeeka Technology and, that interoperate with the Opeeka Technology.

1.28 “Update” means any fixes, error corrections, enhancements and subsequent releases to the Software and associated Documentation which are made commercially available by Opeeka to paid subscribers of the Opeeka Technology. Updates shall not include any releases, enhancements, functionality, modules, programs or products that Opeeka licenses separately or charges for separately from Support Services.

1.29 “Work Product” means any software, data, documentation, graphics, text, code, inventions, pictures, audio, video, animations, enhancements, improvements, methods, processes, works of authorship, work-flow methods or other material or any portions of the foregoing that Opeeka creates, whether alone or jointly, while performing the Services, including, without limitation, any Deliverables. For the avoidance of doubt, Work Product excludes: (a) the Opeeka Technology; (b) Updates; and (c) all modifications, alterations, derivative works and enhancements to the foregoing, and all copies thereof.

2. Master Agreement.

2.1 Orders. At any time following the Effective Date, Customer and Opeeka may enter into one or more Orders pursuant to which Customer will purchase or license applicable Opeeka Technology and/or Services. Opeeka shall not have any obligation to provide any Opeeka Technology and/or Services to Customer until such time that Customer has submitted and Opeeka has accepted an Order for such Opeeka Technology and/or Services. Customer may request additional Opeeka Technology and/or Services at any time during the Term by submitting a request to Opeeka, subject to Opeeka and Customer entering into an Order setting forth the terms and conditions that will be applicable to such additional Opeeka Technology and/or Services. Unless otherwise mutually agreed to by the Parties in writing, all Orders, and the Opeeka Technology and/or Services provided thereunder, are subject to this Agreement.

2.2 Affiliates. As applicable, each Party’s Affiliates may enter into Orders which shall be governed by this Agreement. Where an Order is entered into by an Affiliate, references in this Agreement or any Schedule to “Opeeka” refer to the applicable Opeeka Affiliate, references to “Customer” refer to the applicable Customer Affiliate, and reference to “Parties” or “Party” shall be construed accordingly. Customer shall remain responsible at all times for the use of the Opeeka Technology and/or Services, and compliance with all terms and conditions of this Agreement, by its Affiliates.

2.3 Order of Precedence. If there is any conflict among any elements of this Agreement, the descending order of precedence with respect to a particular Product or Service will be (unless expressly stated otherwise for any particular terms): the Order, the Schedules, and this Agreement.

3. Rights and Licenses; Access.

3.1 Rights Grants. Subject to the terms and conditions of this Agreement and any restrictions set forth herein, Opeeka shall grant Customer the rights and licenses for each applicable Product and the related Documentation as set forth in the applicable Schedule. Except as otherwise specified in a Schedule, licenses to the Opeeka Technology and Documentation shall be non-exclusive, non-sublicensable, and non-transferable.

3.2 Third Party Products. The Opeeka Technology and Services may rely on or require that Customer accesses and uses Third Party Products. If Customer elects to use the Opeeka Technology or Services with Third Party Products, Customer agrees that it shall be solely responsible for ensuring that it has the necessary rights and authorizations to use the applicable Third Party Products with the Opeeka Technology and/or Services. Opeeka will not be liable to Customer or any third party in connection with Customer’s use of any Third Party Products, including, without limitation, if any changes in Third Party Products cause the unavailability of any Opeeka Technology and/or Services or any feature or function thereof.

3.3 Protection of Authentication Methods. Customer may be granted access to the Opeeka Technology and/or Services during the Term by way of authentication mechanisms and/or log-in credentials provided by Opeeka. Any such mechanisms or log-in credentials may not be shared or re-assigned to different individuals, and Customer is responsible for maintaining the security and confidentiality of all user log-in credentials provided by Opeeka to prevent unauthorized access to the Opeeka Technology and/or Services by Customer or its current or former Authorized Users. Customer is fully liable for all use of the Opeeka Technology and/or Services under its log-in credentials, including any use by a user not authorized by Customer who accesses the Opeeka Technology and/or Services using Customer’s log-in credentials. Opeeka may terminate a password and require use of a new password if it believes that an applicable password is being used without authorization. Customer agrees to promptly notify Opeeka of any unauthorized use of its log-in credentials or other breach of security relating to the Opeeka Technology and/or Services of which it becomes aware.

3.4 Changes to Opeeka Technology and Services. Opeeka reserves the right, in its sole discretion, to make any changes to the Opeeka Technology and/or Services that it deems necessary or useful to: (a) maintain or enhance the quality or delivery of the Opeeka Technology and/or Services, the competitive strength of or market for the Opeeka Technology and/or Services, or the Opeeka Technology and/or Services’ cost efficiency or performance; or (b) to comply with Applicable Law.

4. Customer Obligations.

4.1 Restrictions. All rights in the Opeeka Technology, Documentation and Services not expressly granted to Customer in this Agreement, a Schedule, or an Order are hereby reserved to Opeeka and its licensors. Without limiting the foregoing, Customer agrees that it will not:

(a) access or use any portion of the Opeeka Technology or Documentation not expressly licensed and paid for by Customer;

(b) cause or permit de-compilation or reverse engineering or disassembly of all or any portion of the Opeeka Technology or create derivative works based on the Opeeka Technology or Documentation, or any portions thereof, or otherwise attempt to derive or gain access to the source code of the Opeeka Technology, or any portions thereof;

(c) input, upload, transmit, or otherwise provide to or through the Opeeka systems, any information or materials that are unlawful or injurious, or contain, transmit, or activate any Harmful Code;

(d) transfer the Opeeka Technology to a software database platform, operating system or environment not specified in the Documentation or use all or any portion of the Opeeka Technology or Documentation with any other computer software programs, except as may be specifically provided for in the Documentation and/or applicable Schedule;

(e) export or use the Opeeka Technology or Documentation in violation of U.S or other Applicable Laws, including the U.S. Department of Commerce export administration regulations;

(f) use, or authorize or permit any third party to use or access, the Opeeka Technology or Documentation, except as expressly permitted in this Agreement;

(g) translate, modify or transmit the Opeeka Technology or Documentation, except as expressly permitted in this Agreement;

(h) reproduce or copy the Opeeka Technology or Documentation, or any portion thereof, except as expressly permitted in this Agreement, or delete, fail to reproduce or modify any patent, copyright, trademark or other proprietary rights notices which appear on or in the Opeeka Technology or Documentation;

(i) directly or indirectly market, sell, sublicense, relicense, distribute, disclose, transfer, use, rent or lease the Opeeka Technology or Documentation, or any portion thereof, for third party use, third party training, facilities management or time-sharing, use as an application service provider, or for service bureau use;

(j) access or use the Opeeka Technology 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 that violates any Applicable Law;

(k) bypass or breach any security device or protection used by the Opeeka Technology or access or use the Opeeka Technology other than by an Authorized User through the use of his or her own then valid access;

(l) damage, destroy, disrupt, disable, impair, interfere with, or otherwise impede or harm in any manner the Opeeka Technology, or Opeeka’s provision of Services, in whole or in part;

(m) upload, store, distribute, or otherwise use any data, material, information or any other Customer Data (as defined herein) via the Opeeka Technology if doing so would violate: (i) any Intellectual Property Right; (ii) any privacy rights of any individuals, including any Service Recipient; or (iii) any other Applicable Laws; or

(n) access or use the Opeeka Technology for purposes of competitive analysis of the Opeeka Technology, the development, provision, or use of a competing software service or product or any other purpose that is to Opeeka’s detriment or commercial disadvantage or otherwise access or use the Opeeka Technology beyond the scope of the authorization granted pursuant to this Agreement.

4.2 Corrective Action and Notice. If Customer becomes aware of the occurrence of any actual or threatened activity prohibited by Section 4.1, Customer shall, and shall cause its Authorized Users to, immediately: (a) take all reasonable and lawful measures within their respective control that are necessary to stop the activity or threatened activity and to mitigate its effects (including, where applicable, by discontinuing and preventing any unauthorized access to the Opeeka Technology and/or Services and permanently erasing from their systems and destroying any data to which any of them gained unauthorized access); and (b) notify Opeeka of any such actual or threatened activity.

4.3 Customer Systems; Cooperation and Assistance. As between the Parties, Customer shall be responsible for setting up, maintaining, and operating in good repair all Customer Systems on or through which the Opeeka Technology and/or Services are accessed or used. Except as otherwise expressly provided in a Schedule, Customer has and will retain sole control over the operation, maintenance, and management of, and all access to and use of, the Customer Systems, and sole responsibility for access to and use of the Opeeka Technology by or through the Customer Systems or other means controlled by Customer or any Authorized User, including any results obtained from any use of the Opeeka Technology, and conclusions, decisions, or actions based on such use. Customer further acknowledges and agrees that the provision of the Opeeka Technology and/or Services by Opeeka depends on Customer’s timely cooperation and assistance as reasonably requested by Opeeka from time to time. Customer agrees to cooperate and provide reasonable access to Customer’s materials, data and information as required pursuant to an Order, Schedule and/or as otherwise necessary for the provision of the Opeeka Technology and/or Services to Customer, including, if required by Opeeka, remote access to the Customer Systems. Without prejudice to any other right or remedy available to Opeeka, Opeeka will not be liable for any failure to comply with any timetable or any other obligation under this Agreement, if such failure is as a result of Customer’s failure to perform or delay in performing its obligations or dependencies under this Agreement in a timely manner.

4.4 Responsibility for Authorized Users. Customer acknowledges and agrees that with respect to the use of the Opeeka Technology and/or Services by Customer’s Authorized Users: (a) Customer shall be jointly and severally liable for all Authorized Users’ access to and use of the Opeeka Technology and/or Services; and (b) Customer will hold harmless, indemnify and defend Opeeka against all claims and will pay all costs, damages and attorneys’ fees, arising out of or resulting from: (i) any acts or omissions of any Authorized User in connection with use of the Opeeka Technology and/or Services; (ii) any statements, claims, representations or warranties made by Customer to Authorized Users about the Opeeka Technology and/or Services; and (iii) Authorized Users’ access to and use of the Opeeka Technology and/or Services. Customer acknowledges and agrees that Opeeka may have direct contact with Authorized Users. Customer is required to immediately notify Opeeka of each Authorized User that is no longer authorized to access and use the Opeeka Technology in order to allow Opeeka to terminate any applicable user names and/or passwords which may have been issued to that particular Authorized User and to otherwise terminate access to the Opeeka Technology by the applicable Authorized User. If Opeeka becomes aware of any violations or breach of this Agreement by Customer or by any Authorized User, Opeeka has the right, in its discretion, to: (A) suspend access to the Opeeka Technology while it investigates such violation or breach; (B) terminate a particular Authorized User’s right to access and use the Opeeka Technology; and/or (C) terminate this Agreement.

5. Services.

5.1 Support Services. Provided that Customer has paid all applicable fees, Opeeka will provide the Support Services specified in the applicable Order in accordance with the applicable business terms for such Support Services set forth in the applicable Order.

5.2 Professional Services. Provided that Customer has paid all applicable fees, and if requested and as available, Opeeka will provide Customer with Professional Services in accordance with an applicable Order, which Professional Services shall be performed pursuant to mutually agreeable Statements of Work in accordance with the Professional Services Schedule.

5.3 Subcontractors. Customer acknowledges and agrees that Opeeka may from time to time in its discretion engage third parties to provide the Services.

6. Prices, Ordering, Payment.

6.1 Fees; Invoicing. Customer shall pay the applicable fees for the Opeeka Technology and/or Services purchased by Customer in accordance with the fee schedule set forth in the applicable Order. Except as otherwise specified in the Order or a Schedule and all payment obligations are non-cancellable, non-refundable and non-contingent. If Customer’s Order reflects user-based pricing (per user per month), the quantity of registered users will be audited by Opeeka within five (5) days of the end of each calendar month.  If the number of Customer’s Authorized Users exceeds the number of users reflected on the last Order, the total fees for the next period will be automatically increased to reflect the fees associated with the additional Authorized User(s), and if an annual fee has been paid by Customer in advance, Opeeka will bill Customer for the fees associated with the additional Authorized Users for the remainder of the applicable annual period.  Customer may not set-off any amounts owing to Customer against any payments owing to Opeeka hereunder. Payments which are not received when due shall bear interest at the lesser of 1.5% per month or the maximum amount permitted under Applicable Law commencing with the date payment was due. If Opeeka initiates any legal proceedings to collect those amounts, Opeeka shall be entitled to recover its reasonable attorney fees and costs from Customer, including those incurred prior to and at arbitration, trial or other proceeding, and in any appeal. In addition, in the event Customer fails to timely pay any fees or charges when due, Opeeka may, in its discretion, suspend or terminate Customer’s access to applicable Opeeka Technology and/or Services, and Opeeka may change its credit terms for Opeeka Technology and/or Services ordered pursuant to subsequent Schedules. Customer will continue to be charged for applicable Opeeka Technology and/or Services during any period of suspension. Opeeka may increase the fees pursuant to an Order in accordance with the terms set forth in the applicable Order.

6.2 Taxes and Duties. Excluding taxes based on Opeeka’s net income, Customer is liable and responsible for paying all federal, state and local sales, foreign withholding, value added, use, property, excise, service and other taxes, and all duties and customs fees relating to Customer’s receipt or use of the Opeeka Technology and Services, whether or not Opeeka invoices Customer for such taxes, duties or customs fees, unless Customer timely provides Opeeka with a valid tax exemption or direct pay certificate showing Customer is exempt from such payments. If Opeeka is required to pay any such taxes, duties or customs fees, Customer shall reimburse Opeeka for such amounts.

6.3 Purchase Orders. If Customer’s internal procedures require that a purchase order be issued as a prerequisite to payment of any amounts due to Opeeka, Customer will timely issue such purchase order and inform Opeeka of the number and amount thereof. Customer agrees that the absence of a purchase order, other ordering document or administrative procedure may not be raised as a defense to avoid or impair the performance of any of Customer’s obligations hereunder, including payment of amounts owed to Opeeka. No additional, supplemental or contrary terms on any purchase order shall conflict with the terms and conditions of this Agreement, and all such additional, supplemental and contrary terms are hereby expressly rejected.

7. Representations and Warranties; Disclaimers.

7.1 Mutual Representations and Warranties. Each Party represents and warrants that (a) as applicable, it is duly organized, validly existing, and in good standing in the jurisdiction of its formation; (b) it has full power and authority to enter into this Agreement and perform its obligations hereunder; (c) this Agreement constitutes a valid and binding obligation of each Party that is enforceable in accordance with its terms; and (d) the entering into and performance of this Agreement by such Party does not and will not: (i) violate, conflict with, or result in a material default under any other contract, agreement, indenture, decree, judgment, undertaking, conveyance, lien, or encumbrance to which such Party is a party or by which it or may become subject or bound, or (ii) violate any Applicable Law.

7.2 Disclaimers.

(a) WARRANTY DISCLAIMER. EXCEPT FOR THE WARRANTIES EXPRESSLY SET FORTH HEREIN AND IN EACH APPLICABLE SCHEDULE, AND EXCEPT TO THE EXTENT PROHIBITED BY APPLICABLE LAW, ALL OPEEKA TECHNOLOGY AND SERVICES ARE PROVIDED ON AN “AS IS” BASIS. THE WARRANTIES SET FORTH IN THIS SECTION 7 AND IN THE SCHEDULES ARE THE EXCLUSIVE WARRANTIES OFFERED BY OPEEKA AND ALL OTHER WARRANTIES, EXPRESS, IMPLIED, STATUTORY OR OTHERWISE ARE EXPRESSLY DISCLAIMED, INCLUDING, BUT NOT LIMITED TO, ALL WARRANTIES ARISING FROM COURSE OF DEALING, USAGE OR TRADE PRACTICE, AND ANY AND ALL WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT. OPEEKA DOES NOT WARRANT THAT THE OPEEKA TECHNOLOGY AND/OR SERVICES WILL (I) MEET THE REQUIREMENTS OF CUSTOMER; (II) BE SECURE, TIMELY, OR UNINTERRUPTED; (III) BE ERROR FREE OR THAT ANY DEFECTS WILL BE CORRECTED; (IV) BE FREE OF HARMFUL CODE OR OTHER HARMFUL COMPONENTS, OR (V) BE COMPATIBLE WITH OR OPERATE IN COMBINATION WITH ANY HARDWARE OR SOFTWARE EXCEPT TO THE EXTENT EXPRESSLY SET FORTH IN THE DOCUMENTATION. OPEEKA MAKES NO REPRESENTATIONS OR WARRANTIES ABOUT ANY THIRD PARTY PROVIDER OF TECHNICAL INFRASTRUCTURE THAT IS OWNED OR OPERATED BY SUCH THIRD PARTY AND USED BY OPEEKA IN CONNECTION WITH PROVIDING THE OPEEKA TECHNOLOGY (“INFRASTRUCTURE PROVIDER”) OR ANY OTHER THIRD PARTY SERVICE PROVIDER, OR ANY THIRD PARTY PRODUCTS, AND OPEEKA WILL NOT BE LIABLE FOR ANY MATERIALS OR SERVICES PROVIDED BY AN INFRASTRUCTURE PROVIDER OR ANY OTHER THIRD PARTY SERVICE PROVIDER, OR ANY THIRD PARTY PRODUCTS. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES SO PORTIONS OF THE ABOVE EXCLUSIONS MAY NOT APPLY.

(b) CUSTOMER DATA DISCLAIMER. OPEEKA HAS NOT MADE, AND DOES NOT MAKE DURING THE TERM OF THIS AGREEMENT, ANY GUARANTEES, REPRESENTATIONS, OR WARRANTIES WHATSOEVER REGARDING THE ACCURACY, COMPLETENESS, RELIABILITY OR ANY OTHER USES OF THE CUSTOMER DATA, INCLUDING WITHOUT LIMITATION ANY SERVICE RECIPIENT DATA, THAT CUSTOMER OR AUTHORIZED USERS MAY UPLOAD, POST, STORE, DISTRIBUTE, CREATE REPORTS FROM, OR USE IN ANY OTHER WAY IN CONNECTION WITH ANY OF THE OPEEKA TECHNOLOGY AND/OR SERVICES; AND OPEEKA IS NOT RESPONSIBLE FOR, AND SHALL NOT BE LIABLE IN ANY WAY UNDER ANY PRINCIPLES OF LAW OR EQUITY, FOR ANY EVALUATIONS, ANALYSIS, TREATMENTS, RECOMMENDATIONS, REPORTS, OR ANY OTHER USES OR IMPLEMENTATION THAT MAY ARISE OUT OF OR BE DERIVED FROM ANY USE BY CUSTOMER, AUTHORIZED USERS OR ANY OTHER PARTY OF ANY OF THE CUSTOMER DATA, INCLUDING ANY OF THE SERVICE RECIPIENT DATA.

(c) MEDICAL SERVICES DISCLAIMER. OPEEKA DOES NOT OFFER NOR DOES IT PROVIDE ANY MEDICAL SERVICES OR ANY OTHER HEALTH CARE ADVICE OR SERVICES OF ANY KIND WHATSOEVER. ANY CONTENT PROVIDED BY OPEEKA THROUGH THE OPEEKA TECHNOLOGY AND/OR SERVICES IS FOR INFORMATIONAL PURPOSES ONLY AND CUSTOMER AND ALL AUTHORIZED USERS SHOULD CONSULT WITH A LICENSED PHYSICIAN OR OTHER QUALIFIED HEALTH CARE PROVIDER REGARDING ALL QUESTIONS OR CONCERNS REGARDING ANY MEDICAL CONDITION, DIAGNOSIS, OR TREATMENTS.

8. Confidentiality.

8.1 Confidentiality. Each Party (the “Receiving Party”) acknowledges that it will have access to Confidential Information and Trade Secrets of the other Party (the “Disclosing Party”). For purposes of this Agreement, “Trade Secrets” means information, without regard to form, which: (a) derives economic value, actual or potential, from not being generally known to, and not being readily ascertainable by proper means by, other persons who can obtain economic value from its disclosure or use; and (b) is the subject of efforts that are reasonable under the circumstances to maintain its secrecy; and “Confidential Information” means information, other than Trade Secrets, that is of value to Disclosing Party and is treated as confidential. Opeeka’s Trade Secrets and Confidential Information include, without limitation, the Opeeka Technology, object and source code for the Software, and any associated Documentation; information concerning Opeeka’s plans for Opeeka Technology, functionality, or service offerings; business policies and practices; information identified as proprietary or confidential by Opeeka; any agreements and the terms, conditions and pricing contained in this Agreement; information received from others that Opeeka has agreed to keep confidential or not disclose; Opeeka’s research activities and plans, marketing and sales plans, strategic plans, forecasts, pricing and pricing strategies, methods of operation, internal controls, security procedures, and client lists; unpublished financial information; and information presented to Customer in focus groups, guide groups or other advisory groups sponsored by Opeeka. The Receiving Party agrees to use the Trade Secrets and Confidential Information of the Disclosing Party solely for purposes of performing its obligations or exercising its rights under this Agreement. The Receiving Party agrees to discuss the Trade Secrets and Confidential Information of the Disclosing Party only with, and to transmit the Trade Secrets and Confidential Information only to, those officers, employees and consultants of the Receiving Party who have a need to know the Trade Secrets or Confidential Information for the purposes set forth herein and who have agreed in writing to be bound by the terms of this Agreement. The Parties acknowledge and agree that the terms of any previously executed confidentiality or nondisclosure agreements shall remain in effect with respect to the information exchanged thereunder.

8.2 Security Precautions. The Receiving Party shall take commercially reasonable security precautions to prevent unauthorized use and disclosure of the Trade Secrets and Confidential Information of the Disclosing Party and shall use at least the same degree of care the Receiving Party employs with respect to its own Trade Secrets and Confidential Information, but in no event less than a reasonable standard of care.

8.3 Duration and Exceptions. With regard to Confidential Information, the obligations in this Section 8 shall continue for the Term of this Agreement and for a period of five (5) years thereafter. With regard to Trade Secrets, the obligations in this Section 8 shall continue for so long as such information constitutes a trade secret under Applicable Law, but in no event less than the Term of this Agreement and for a period of five (5) years thereafter. The Receiving Party’s obligations with respect to Trade Secrets and Confidential Information of the Disclosing Party shall not apply to the extent such Trade Secrets or Confidential Information: (a) are previously known to the Receiving Party without restriction on disclosure; (b) cease to be secret or confidential except by reason of a breach of this Agreement by the Receiving Party; (c) are independently developed by the Receiving Party without reference to the Trade Secrets or Confidential Information of the Disclosing Party; or (d) were received by the Receiving Party from a third party without obligations of confidence and without breach of this Agreement. In addition, the Receiving Party may disclose Trade Secrets and Confidential Information of the Disclosing Party to the extent such disclosure is required by Applicable Law or by any governmental authority, provided the Receiving Party notifies the Disclosing Party, if permitted by law, of the applicable legal requirements before such disclosure occurs so as to enable the Disclosing Party to obtain such protection as may be available to preserve the confidentiality of such information.

8.4 Use of the Internet. The Parties understand and acknowledge that the Internet and communications over it may not be secure, and that connecting to it provides the opportunity for unauthorized access to computer systems, networks, and all data stored therein. The information and data transmitted through the Internet or stored on any equipment through which Internet information is transmitted may not remain confidential and neither Party makes any representation or warranty regarding privacy, security, authenticity, non-corruption or destruction of any such information. Use of any information transmitted or obtained over the Internet is at each Party’s own risk and neither Party shall be responsible to the other for any adverse consequence or loss whatsoever arising from use of the Internet.

9. Intellectual Property Rights and Data.

9.1 Opeeka’s Intellectual Property. Opeeka (or its licensors) retains all right, title and interest in and to the Opeeka Technology, Documentation, and Opeeka Confidential Information, all portions thereof, and all Intellectual Property Rights therein, and all Updates, modifications, alterations, derivative works, and enhancements thereto, and all copies thereof (the “Opeeka IP Assets”). Except as specified in this Agreement, a Schedule, or an Order, Customer does not acquire any rights, express or implied, in the Opeeka IP Assets, and has no right to commercialize or transfer any Opeeka IP Assets, in whole or in part, or any modifications, alterations, derivative works or enhancements thereto. No license, right, or interest in any Opeeka trademark, trade name or service mark is granted pursuant to this Agreement. In addition, except as otherwise set forth in a Schedule or an Order, title to all Work Product will at all times remain the sole and exclusive property of Opeeka. Upon request, Customer agrees to execute such documents as may be reasonably requested by Opeeka to secure Opeeka’s rights in and to the Opeeka IP Assets and Work Product. Customer shall not take any action anywhere in the world that is inconsistent with Opeeka’s exclusive rights to, and exclusive ownership of, the Opeeka IP Assets and Work Product.

9.2 Customer Data. The parties acknowledge that as between Customer and Opeeka, the Customer Data is owned by Customer. Customer hereby agrees that Opeeka has, and Customer hereby grants to Opeeka, a non-exclusive, worldwide, perpetual, assignable, sub-licensable, transferable, fully paid up right and license to use (in a de-identified format) any Customer Data or any other data provided by Customer or any Authorized Users through the Opeeka Technology and/or Services, as required for Opeeka to provide the Opeeka Technology and/or Services to Customer and its Authorized Users, and otherwise in the normal course of Opeeka’s business for statistical purposes, societal trend analysis, or for any other type of commercial/business analysis. With respect to the use of Customer Data in connection with Opeeka’s business, Opeeka will redact applicable Customer Data in a manner that ensures that (a) such Customer Data cannot be associated with Customer and any Service Recipients cannot be associated with a Service Recipient; and (b) use of such Customer Data will not result in disclosure of Customer’s Confidential Information. Customer shall have sole responsibility for the accuracy, quality, integrity, legality, reliability, timeliness, appropriateness, and intellectual property ownership or right to use all Customer Data, and, except as may be required pursuant to an applicable Schedule, Opeeka shall not be responsible or liable for the deletion, correction, destruction, damage, loss or failure to store Customer Data for any reason, or Customer’s sharing of Customer Data in violation of the Health Insurance Portability and Accountability Act of 1996 (“HIPAA”), or any patient rights or otherwise in violation of any other Applicable Law.

9.3 Data Privacy and Security Measures. Each Party agrees to comply with all Applicable Laws applicable to such Party concerning data security and privacy of financial, health, and personal information, including, to the extent applicable, the California Consumer Privacy Act and the regulations promulgated thereunder, the Federal “Privacy of Consumer Financial Information” Regulation, HIPAA, the California Confidentiality of Medical Information Act, Fair Credit Reporting Act, California Financial Information Privacy Act, Driver’s Privacy Protection Act of 1994, and the Gramm-Leach-Bliley Act of 1999. With respect to Protected Health Information, as such term is defined pursuant to HIPAA, the privacy and security of such Protected Health Information shall be governed exclusively by the Opeeka Business Associate Agreement, which is attached hereto as Schedule 4 and shall is incorporated herein by reference, and Customer and Opeeka shall comply with the terms of the Opeeka Business Associate Agreement.

9.4 Customer Sharing of Data. Certain features and functionality of the Opeeka Technology may allow Customer to share Customer Data, including, without limitation, Protected Health Information, with third party organizations or entities that also use the Opeeka Technology. Customer acknowledges and agrees that (a) Customer’s use of such features and functionality is in Customer’s sole discretion, and Customer shall be solely responsible for ensuring that Customer has correctly selected Customer’s preferences regarding the sharing of Customer Information; (b) Customer assumes any and all risk associated with the sharing of Customer Data through such features and functionality; (c) Customer is solely responsible for ensuring that it obtains and documents all applicable rights, consents, permissions, and release agreements, as required by law or otherwise, as necessary to share Customer Data through such features and functionality; and (d) Customer shall be solely liable and responsible for, and hereby assumes all liability and responsibility for, the sharing of Customer Data through such features and functionality.

9.5 Restricted Rights. The Opeeka Technology was developed at private expense, are commercial, and are published and copyrighted. Except as required by law or legal process, the Opeeka Technology may be transferred to the U.S. government only with the prior written consent of an officer of Opeeka and solely with “Restricted Rights” as that term is defined in FAR 52.227-19(b)(2) (or DFAR

252.227-202.32 (c)(1) if the transfer is to a defense-related agency) or subsequent citation. If Customer is an agency of the United States government or licensing the Opeeka Technology for operation on behalf of the United States government, the Opeeka Technology is licensed to Customer with rights no greater than those set forth in Federal Acquisition Regulation 52.227-1 9(c)(2) or DFAR 252.227-7202.32 (c)(1) if the Customer is a defense-related agency or subsequent citation.

10. Indemnification.

10.1 Indemnification by Opeeka. Opeeka will indemnify, defend, and hold harmless Customer and its Affiliates and their respective officers, directors, employees, agents, and representatives from and against any losses, damages, costs, liabilities, judgments and other expenses (including reasonable attorney’s fees) arising out of any third party claim against an indemnified Party insofar as such claim arises out of or relates to (a) an allegation that the Opeeka Technology infringes such third party’s patent, copyright, trade secret or other Intellectual Property Rights; or (b) arises from any gross negligence or willful misconduct on the part of Opeeka or Opeeka personnel in the performance of the Services; provided, however, that if a claim, lawsuit or liability results from or is contributed to by the actions or omissions of Customer, or its Authorized Users or employees, agents or contractors, Opeeka’s obligations under this provision shall be reduced to the extent of such actions or omissions based upon the principle of comparative fault.

10.2 Injunctions Obtained by Third Parties. If a third party infringement claim, of which Opeeka is notified in accordance with Section 10.5 (or of which Opeeka is otherwise aware or believes is likely) results, or in Opeeka’s opinion is likely to result, in an injunction prohibiting Customer from continued use of the Opeeka Technology that is the subject matter of the claim, then Opeeka shall, in its sole discretion and at its expense: (a) procure for Customer the right to continue to use the Opeeka Technology that is the subject matter of the claim; (b) replace or modify the Opeeka Technology that is the subject matter of the claim to make it non-infringing, but, where reasonably possible, preserving the functionality of such Opeeka Technology; or (c) terminate the license for the infringing Opeeka Technology, and return a prorated portion of the license fees paid by Customer for the infringing Opeeka Technology.

10.3 Exceptions to Duties to Defend and Indemnify. Notwithstanding any other provisions hereof, Opeeka shall have no obligation to indemnify or defend Customer for any third party claim pursuant to this Section 10, nor be required to pay losses, damages or expenses under this Section 10, if Customer agrees to settle any such claim without the prior written consent of Opeeka, or if the claim arises out of, in whole or in part: (a) a modification of the Opeeka Technology by anyone other than Opeeka; (b) use of the Opeeka Technology other than in accordance with the Documentation or the terms of this Agreement; (c) any Third Party Products; (d) use of the Opeeka Technology in combination with any third party hardware, software, database or materials where, absent such combination, the Opeeka Technology would not be infringing; or (e) Customer’s negligence or willful misconduct. This Section 10 states Opeeka’s sole obligation, and Customer’s sole and exclusive remedy, with respect to infringement of Intellectual Property Rights.

10.4 Indemnification by Customer. Customer shall indemnify, defend, and hold harmless Opeeka and its Affiliates, and their respective officers, directors, employees, agents, licensors, owners and representatives from and against any losses, damages, costs, liabilities, judgments and other expenses (including reasonable attorney’s fees) arising out of any third party claim, demand, suit, or proceeding against an indemnified Party insofar as such claim arises out of or relates to (a) any gross negligence or willful misconduct on the part of Customer or any Authorized User; (b) Customer’s or any Authorized User’s use of the Opeeka Technology and/or Services in a manner not authorized or contemplated by this Agreement or the Documentation; or (c) any Customer Data (including without limitation any Service Recipient Data), including, without limitation, any claim by a third party that any such Customer Data may infringe, violate or misappropriate any Intellectual Property Rights or proprietary rights of such third party, or any claim that Customer’s or any Authorized User’s processing,  sharing or other use  of any Customer Data in connection with the use of the Opeeka Technology and/or Services violates HIPAA or any patient rights or otherwise violates any other Applicable Law.

10.5 Indemnification Procedure. The indemnifying Party’s obligations as set forth above are subject to the following: (a) the indemnified Party will promptly notify the indemnifying Party in writing of any threatened or actual claim (provided that failure to provide prompt notice will not relieve the indemnifying Party of any liability under this Section 10 except to the extent the indemnifying Party has suffered actual material prejudice due to such failure); (b) the indemnifying Party will have sole control of the defense or settlement of any claim, provided that the indemnifying Party shall not settle any such claim without the indemnified Party’s consent unless such settlement releases the indemnified Party from liability for such claim; and (c) the indemnified Party will reasonably cooperate (at the indemnifying Party’s expense) with the indemnifying Party to facilitate the settlement or defense of any claim.

11. Limitation on Liability.

11.1 EXCLUSION OF DAMAGES. IN NO EVENT SHALL OPEEKA OR ANY OF ITS AFFILIATES OR THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES, SHAREHOLDERS, AGENTS OR REPRESENTATIVES, BE LIABLE TO CUSTOMER, ANY AUTHORIZED USER, OR ANY OTHER PERSON OR ENTITY FOR ANY SPECIAL, INDIRECT, INCIDENTAL, PUNITIVE, EXEMPLARY, LIQUIDATED, OR CONSEQUENTIAL DAMAGES OF ANY KIND, NOR FOR ANY LOST PROFITS, REVENUES, INCOME, BUSINESS, ANTICIPATED SAVINGS, DATA, REPUTATION, OR ANY LOSSES OF AN ECONOMIC OR FINANCIAL NATURE, REGARDLESS OF WHETHER SUCH LOSSES MAY BE DEEMED AS CONSEQUENTIAL OR ARISING DIRECTLY AND NATURALLY FROM THE INCIDENT GIVING RISE TO THE CLAIM, AND REGARDLESS OF WHETHER SUCH LOSSES ARE FORESEEABLE OR WHETHER OPEEKA HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSSES.

11.2 LIMITATION OF LIABILITY. OPEEKA’S TOTAL AGGREGATE LIABILITY TO CUSTOMER OR ANY OTHER PERSON OR ENTITY FOR ANY AND ALL CLAIMS AND DAMAGES ARISING FROM OR OUT OF THIS AGREEMENT REGARDLESS OF THE FORM OR CAUSE OF ACTION OR THE ALLEGED BASIS OF THE CLAIM (WHETHER ARISING UNDER CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY OR OTHERWISE) SHALL IN NO EVENT EXCEED THE FEES PAID BY CUSTOMER TO OPEEKA DURING THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE DAY THE ACT OR OMISSION OCCURRED THAT GAVE RISE TO THE APPLICABLE CLAIM.

12. Insurance.

During the Term of this Agreement Opeeka shall obtain and maintain, at its sole cost and expense, with reputable insurer(s) with an A.M. Best rating of at least “A”, the following insurance:

12.1 General Liability. General liability with a limit of not less than USD $1,000,000 per occurrence and USD $2,000,000 in the aggregate.

12.2 E&O Liability. Errors and omissions liability insurance coverage with a combined limit of not less than USD $2,000,000.

12.3 Workers’ Compensation. Statutory workers’ compensation insurance for all of Supplier’ s Personnel, as required by Applicable Law.

Upon Customer’s reasonable request, Opeeka shall provide to Customer a certificate evidencing such insurance.

13. Term and Termination.

13.1 Term. The term of this Agreement shall commence on the Effective Date and shall continue until all outstanding Orders have been expired or been terminated in accordance with their terms, or this Agreement is otherwise terminated in accordance with the provisions set forth herein (the “Term”). The term for each applicable Order shall be set forth within the applicable Order.

13.2 Termination for Cause. Either Party may terminate this Agreement and any and all outstanding Orders if the other Party breaches this Agreement or any Schedule or Order and fails to correct the breach within thirty (30) days following receipt of written notice from the non- breaching Party. In addition, Opeeka may terminate this Agreement immediately if Customer (a) becomes insolvent or is generally unable to pay, or fails to pay, its debts as they become due; (b) files or has filed against it, a petition for voluntary or involuntary bankruptcy or otherwise becomes subject, voluntarily or involuntarily, to any proceeding under any domestic or foreign bankruptcy or insolvency law; (c) makes or seeks to make a general assignment for the benefit of its creditors; or (d) applies for or has appointed a receiver, trustee, custodian, or similar agent appointed by order of any court of competent jurisdiction to take charge of or sell any material portion of its property or business.

13.3 Termination or Suspension of Services. In the event Customer fails to timely pay any fees, Opeeka may in its sole discretion suspend or terminate Customer’s access to applicable Opeeka Technology and/or Opeeka’s provision of applicable Services immediately without notice.

13.4 Effect of Termination. Upon termination of this Agreement for any reason, (a) all outstanding payment obligations owed to Opeeka by Customer shall become immediately due and owing; (b) except with respect to any rights or licenses that survive termination pursuant to this Agreement, Customer shall immediately cease, and shall cause its Authorized Users to immediately cease, using the Opeeka Technology and return all copies thereof to Opeeka, as applicable; and (c) Customer shall cease identifying itself as a licensee or authorized user of the Opeeka Technology or any Services. In addition, in the event of any termination by Customer pursuant to Section 13.2, or termination by Opeeka pursuant to Section 13.3, Opeeka shall be entitled to retain all pre-paid fees and Customer shall not be entitled to a refund of any pre-paid fees, and, if not already paid, Customer shall pay to Opeeka all amounts to be paid to Opeeka by Customer during the twelve (12) month period immediately subsequent to the date of termination, or if less than twelve (12) months remains in the applicable Term, such remaining time period. Further, Customer shall return to Opeeka or destroy all copies of Opeeka’s Trade Secrets and Confidential Information in every form that are within Customer’s custody or control. Upon request of Opeeka, Customer agrees to certify in writing to Opeeka that it and each of its Affiliates have performed the foregoing obligations. This Section 13.4 and Sections 1, 8, 9, 10, 11, 14 and 15, and any other Sections that by their terms, nature, or context are intended to survive, shall survive expiration or termination of this Agreement.

14. Dispute Resolution; Governing Law.

14.1 Initial Dispute Resolution. Any dispute, controversy or claim arising out of or relating to this Agreement, including the breach, termination, or validity thereof (each, a “Dispute”), shall be resolved in accordance with the terms of this Section 14. The Parties agree to send written notice to the other Party of any Dispute (a “Dispute Notice”). After the other Party receives the Dispute Notice, the Parties agree to undertake good faith negotiations between themselves to resolve the Dispute. The senior executives of both Parties will meet at a mutually acceptable time and place, and thereafter as often as they reasonably deem necessary, to attempt in good faith to resolve the Dispute.

14.2 Escalation to Mediation. If the Parties cannot resolve any Dispute after at least three (3) good faith negotiation sessions in accordance with Section 14.1, either Party may initiate mediation and escalate the applicable Dispute to a neutral third party mediator mutually agreed to by the Parties. The Parties agree (a) to act in good faith in selecting a neutral mediator and in scheduling the mediation proceedings; (b) to use commercially reasonable efforts in participating in the mediation; and (c) that the mediator’s fees and expenses, and the mediator’s costs incidental to the mediation, will be shared equally between the Parties. Except with respect to the mediator’s fees, the Parties shall bear their own fees, expenses, and costs in connection with the mediation. The Parties further agree all written or oral offers, promises, conduct, and statements made in the course of the mediation are confidential, privileged, and inadmissible for any purpose in any litigation, arbitration or other proceeding involving the Parties. However, evidence that is otherwise admissible or discoverable shall not be rendered inadmissible or non- discoverable as a result of its use in the mediation.

14.3 Other Remedies. If the Parties cannot resolve a Dispute through good faith negotiations pursuant to Section 14.1, or subsequently through mediation pursuant to Section 14.2, then once an impasse is issued by the mediator either Party may seek any remedies that may be available to it.

14.4 Injunctive Relief. The Parties acknowledge that the provisions of this Agreement that protect Intellectual Property Rights and Confidential Information, including Sections 8 and 9, are essential for the protection of the Parties and that any breach or threatened breach of such sections may cause immediate and irreparable damage to the non-breaching Party, for which monetary relief would be inadequate or impossible to ascertain. Accordingly, notwithstanding Sections 14.1-14.2, the Parties agree that upon the existence of any breach or threatened breach thereof, the non-breaching Party shall be entitled to seek injunctive or other equitable relief restraining the breaching Party from committing such breach or threatened breach. In addition, the non-breaching Party shall be entitled to any other remedies that may be available to it, at law or in equity.

14.5 Governing Law; Choice of Forum. The laws of the State of California shall govern this Agreement, without reference to conflicts of law rules or principles. Customer and Opeeka irrevocably agree and consent to exclusive venue in the federal and state courts located in the State of California and the County of Sacramento, for any claim or dispute arising out of or in relation to this Agreement. The Parties specifically disclaim the application of the UN Convention on Contracts for the International Sale of Goods to the interpretation or enforcement of this Agreement.

15. Miscellaneous.

15.1 Force Majeure. Except with respect to any payment obligations hereunder, neither Party shall be responsible for failure to fulfill its obligations hereunder or liable for damages resulting from delay in performance as a result of war, fire, strike, riot or insurrection, natural disaster, epidemic, pandemic, delay of carriers, governmental order or regulation, complete or partial shutdown of facilities, unavailability of equipment, software, or services from suppliers, default of a subcontractor or vendor to the Party (if such default arises out of causes beyond the reasonable control of such subcontractor or vendor), the acts or omissions of elected officials, and/or other occurrences beyond the Party’s reasonable control (each, a “Force Majeure Event”), and delivery and performance dates will be extended to the extent of any delays resulting from any such Force Majeure Event. Each Party will promptly notify the other upon becoming aware that any such Force Majeure Event has occurred or is likely to occur and will use commercially reasonable efforts to minimize any resulting delay in or interference with the performance of its obligations under this Agreement.

15.2 Assignment. Customer may not assign, transfer, or otherwise delegate any of its rights, duties, or obligations under this Agreement in whole or in part to any individual, firm or corporation without the prior written consent of Opeeka, which consent shall not be unreasonably withheld or delayed, and any attempted assignment (whether by operation of law or otherwise) shall be void. This Agreement shall be binding upon and shall inure to the benefit of the Parties hereto and their successors and permitted assigns.

15.3 Independent Contractors. It is understood that Opeeka is an independent contractor and that neither party shall be deemed an agent of the other party for any purpose whatsoever. Nothing in this Agreement shall be construed to create an agency, joint venture, partnership or other form of business association between the Parties. Neither Party has the right or authority to make any contract, representation or binding promise of any nature on behalf of the other Party, and neither Party shall hold itself out as having such right or authority.

15.4 No Waiver; Amendments. The failure on the part of either Party to exercise any right or remedy hereunder will not operate as further waiver of such right or remedy in the future or any other right or remedy. This Agreement may not be amended except by a writing duly signed by authorized representatives of each of the Parties.

15.5 Headings. The headings in this Agreement are for purposes of reference only and are not intended to affect the meaning or interpretation of this Agreement.

15.6 Severability; Interpretation. In the event that any provision of this Agreement is held invalid or unenforceable in any circumstances by a court of competent jurisdiction, the remainder of this Agreement, and the application of such provision in any other circumstances, will not be affected thereby. This Agreement has been negotiated at arm’s length, and the Parties have participated fully in the review and revision of this Agreement. Accordingly, any rule of law (including without limitation California Civil Code Section 1654 or any other similar applicable federal or state law or statute) or legal decision that would require interpretation of any ambiguities to be resolved against the drafting Party shall not apply in interpreting this Agreement, and is hereby waived.

15.7 Counterparts. This Agreement may be signed in separate identical counterparts, which shall together constitute one original and complete agreement. A true faxed copy or a scanned portable document format (PDF) file of this executed Agreement shall serve as an original.

15.8 Notices. All official notices (including any notices regarding breach, termination, renewal, etc.) required or permitted hereunder shall be in writing and shall be delivered personally or sent by certified, registered mail or next day express mail or courier, postage prepaid. Any such notice shall be deemed given (a) when so delivered personally; (b) the day after, when sent by next day express mail or courier; or

(c) three (3) days after, when sent by certified or registered mail, as follows:

(i) If to Customer, to it at:

1. 1. The email address you provide to us when you submit an Order to us, as the Customer or authorized Customer representative.
   2. The address provided by Customer as part of Customer’s billing contact information, as provided in applicable Order or in Account Data.

(ii) If to Opeeka at:

Opeeka, Inc.

ATTN: Finance Department 111 Woodmere Rd., Suite 190

Folsom, CA 95630

In addition, routine notices, consents and approvals given under this Agreement may be delivered in writing as provided above or through electronic mail or other electronic record addressed to the Parties identified herein, as may be more fully provided in the applicable Schedules or Orders.

15.9 Non-Exclusivity. Opeeka shall not be limited or precluded in any way from providing the Opeeka Technology or Services of any kind to any entity as it, in its sole discretion, deems appropriate.

15.10 No Third Party Beneficiaries. This Agreement is made and entered into for the sole protection and benefit of the Parties hereto, and no other person or entity shall be a direct or indirect beneficiary of, or shall have any direct or indirect cause of action or claim in connection with, this Agreement.

15.11 Marketing. Customer agrees that Opeeka may reference Customer’s status as a user of the Opeeka Technology and Services, and use any written or digital testimonials provided by Customer or its Authorized Users on Opeeka’s website, in Opeeka’s marketing materials, and in Opeeka’s sales presentations. Customer hereby grants Opeeka a non-exclusive license to use Customer’s trademarks,service marks, and trade names in connection with such usage. In addition, Customer agrees to provide Opeeka with the marketing assistance as reasonably requested by Opeeka or otherwise set forth in a Schedule or Order.

15.12 Entire Agreement. This Agreement (including the Schedules, Orders, and any other attachments which are hereby incorporated herein or therein by reference) constitutes the final and entire agreement between the Parties, and supersedes all prior written and oral agreements, understandings, or communications with respect to the subject matter of this Agreement.

Schedule 1

Opeeka SaaS Solution Schedule

This Opeeka SaaS Solution Schedule (the “SaaS Solution Schedule”) is hereby made a part of the Opeeka Master Agreement (the “Master Agreement”) between Opeeka and the Customer identified on the Order to which this SaaS Solution Schedule relates. In the event any provisions of this SaaS Solution Schedule contradict or are inconsistent with the provisions of the Master Agreement, the provisions of this SaaS Solution Schedule shall prevail and govern with respect to the SaaS Solution provided pursuant to this SaaS Solution Schedule. All capitalized terms used in this SaaS Solution Schedule and not otherwise defined in this SaaS Solution Schedule shall have the meanings ascribed thereto in the Master Agreement or Order, as applicable.

1. Definitions.

1.1 “Permitted Use” means the internal use only by Customer and/or its Authorized Users of: (a) the Subscribed SaaS Solution for the sole purpose of collecting, gathering, compiling, storing, dash-boarding, retrieving and otherwise analyzing data about Service Recipients and formatting or preparing Reports of any such data; and (b) any Documentation for the sole purpose of obtaining guidance regarding the proper use of the features and functionalities of the SaaS Solution.

1.2 “Subscribed SaaS Solution” means the SaaS Solution for which Customer has purchased a subscription as set forth in the applicable Order, and all Updates implemented by Opeeka as part of the applicable Support Services purchased by Customer.

1.3 “Subscription Type” means the type of subscription purchased by Customer as set forth in the applicable Order.

2. Delivery and Acceptance. If Opeeka is engaged by Customer to provide Professional Services in connection with the implementation of the Subscribed SaaS Solution, the Subscribed SaaS Solution will be delivered and accepted in accordance with the terms of the Professional Services Schedule and applicable Statement of Work. Otherwise, Opeeka shall deliver the Subscribed SaaS Solution to Customer by electronic delivery, by providing the applicable Subscribed SaaS Solution on Opeeka’s network, or otherwise providing electronic access. Delivery and acceptance of the Subscribed SaaS Solution shall be deemed to have occurred as of the date electronic access to the Subscribed SaaS Solution is first provided to Customer.

3. Right to Access and Use the Subscribed SaaS Solution. Subject to the terms and conditions of the Master Agreement, and the payment of the applicable fees, Opeeka grants to Customer a limited, non-exclusive, non- transferable, non-sublicensable, revocable right, during the term of the applicable Order: (a) to access and use the Subscribed SaaS Solution and Documentation for the Permitted Use, subject to the Subscription Type limitations; and (b) to make a reasonable amount of copies of the Documentation required to enable Customer to access and use the Subscribed SaaS Solution as authorized by this SaaS Solution Schedule. The license granted herein does not grant any rights whatsoever to the source code of the Subscribed SaaS Solution. During the term of the applicable Order, Opeeka agrees to host the Subscribed SaaS Solution and make it available to Customer via the Internet or other data transmission system, pursuant to the terms and conditions of the Master Agreement and the applicable Order.

4. Customer Data. During the term of the applicable Order, Customer grants to Opeeka a limited, revocable, non-exclusive, non-sublicensable, non-transferable license to capture, copy, store, transmit, maintain, access and display the Customer Data solely to the extent necessary to provide the Subscribed SaaS Solution to Customer. In the event the Master Agreement is terminated (other than by reason of Customer’s breach) or expires, Opeeka will make available to Customer a file of the Customer Data in its possession, if any, within thirty (30) days following Customer’s request; provided such request is made within thirty (30) days following termination or expiration of the Agreement. Opeeka reserves the right to (a) withhold, remove and/or discard Customer Data in its possession, if any, in the event Customer breaches the Agreement, including, without limitation, non-payment of fees and charges; and (b) purge and delete Customer Data, if any, in its possession if Customer fails to request such Customer Data within thirty (30) days following termination or expiration of the Agreement.

5. Restrictions. Customer may not, and may not permit others to: (a) use the Subscribed SaaS Solution in excess of the Subscription Type restrictions and quantities of Subscribed SaaS Solution licenses purchased; (b) attempt to circumvent any license restrictions or Subscription Type limitations; (c) transfer, assign or permit the sharing of license keys or product codes to a third party; or (d) make available to any third party any output of the Subscribed SaaS Solution, including benchmarking results.

6. Use by Authorized Users. Customer shall be allowed to permit use of the Subscribed SaaS Solution by Authorized Users. The Subscribed SaaS Solution may only be used by the Authorized Users in accordance with the terms and conditions set out in the Master Agreement and for the benefit of Customer or its Affiliates.

7. Security Measures. The Subscribed SaaS Solution may contain technological measures designed to prevent unauthorized or illegal use of the Subscribed SaaS Solution. Customer acknowledges and agrees that: (a) Opeeka may use these and other lawful measures to verify compliance with the terms of this SaaS Solution Schedule and the Master Agreement and enforce Opeeka’s rights, including all Intellectual Property Rights, in and to the Subscribed SaaS Solution; and (b) Opeeka may deny any individual access to and/or use of the Subscribed SaaS Solution if Opeeka, in its reasonable discretion, believes that such use of the Subscribed SaaS Solution would violate any provision of this SaaS Solution Schedule or the Master Agreement, regardless of whether Customer designated that person as an Authorized User.

8. Retention of Rights. The Subscribed SaaS Solution is licensed, not sold, and the licenses granted pursuant to this SaaS Solution Schedule do not convey any right, title or ownership in the Subscribed SaaS Solution to Customer other than the limited rights and licenses set out herein. The Subscribed SaaS Solution and Documentation shall remain Opeeka’s property. All Intellectual Property Rights evidenced by or embodied in or related to the Subscribed SaaS Solution, and to any Updates thereto, are and shall be owned solely by Opeeka. Opeeka reserves all rights not expressly granted hereunder.

9. Opeeka Limited Warranty. Opeeka warrants to Customer that during the term of the applicable Order, the Subscribed SaaS Solution will operate in substantial conformity with the functional specifications set out in the applicable Documentation. The foregoing warranty shall not apply to the extent any breach of the foregoing warranty is caused by: (a) use of the Subscribed SaaS Solution other than in accordance with the Agreement and the Documentation; (b) any error, defect or non-conformance which cannot be reproduced; or (c) Third Party Products.

10. Remedies. For any breach of the warranty contained in Section 9, Opeeka shall, as Customer’s sole and exclusive remedy: (a) repair or replace the non-conforming Subscribed SaaS Solution after receiving notice from Customer of such nonconformance; or (b) in the event such repair or replacement is commercially impractical, refund the amount of fees paid by Customer for the non-conforming Subscribed SaaS Solution.

11. Fees. Customer shall pay Opeeka applicable fees relating to the Subscribed SaaS Solution in accordance with the terms set forth in the Order.

Schedule 2

Opeeka Support Services Schedule

This Opeeka Support Services Schedule (the “Support Services Schedule”) is hereby made a part of the Opeeka Master Agreement (the “Master Agreement”) between Opeeka and the Customer identified on the Order to which this Support Services Schedule relates. In the event any provisions of this Support Services Schedule contradict or are inconsistent with the provisions of the Master Agreement, the provisions of this Support Services Schedule shall prevail and govern with respect to the Support Services provided pursuant to this Support Services Schedule. All capitalized terms used in this Support Services Schedule and not otherwise defined in this Support Services Schedule shall have the meanings ascribed thereto in the Master Agreement or Order, as applicable.

1. Definitions.

1.1 “Designated Employees” means up to two (2) employees within Customer’s organization who have been trained in the use and functionality of the applicable Opeeka Technology and are conversant with the operation of the applicable Opeeka Technology.

1.2 “Error” means a reproducible failure of the standard, unmodified Opeeka Technology to comply in a material respect with the applicable specifications set forth in the Documentation.

1.3 “Help Desk Support Hours” means 8AM to 5PM Monday-Friday pacific US excluding US holidays.

2. Error Corrections. Opeeka shall diagnose, verify and correct or replace any Error after Customer notifies Opeeka of the Error.

3. Telephone Assistance. Customer will be responsible for providing first line support to its Authorized Users in connection with the Opeeka Technology. Opeeka will allow the Designated Employees to contact Opeeka with technical questions or issues with respect to the Opeeka Technology and to report system outages or failures. The Designated Employees shall assist Opeeka in resolving issues with the Opeeka Technology. Opeeka shall provide assistance via email or phone as appropriate for the Opeeka Technology during the Help Desk Service Hours to the Designated Employees including explanations of trouble shooting methods, Error reporting, support of the Opeeka Technology, and installation instructions.

4. Updates. Provided that Customer is up to date with all applicable payment obligations, Opeeka shall provide Customer with all Updates it generally provides to its customers of the applicable Opeeka Technology.

5. Support Service Levels. Opeeka will provide, maintain and support the Opeeka Technology in accordance with commercially reasonable support service levels, including with respect to uptime requirements, response times, and resolution times. If Customer’s Order includes data connections to third party Electronic Record system(s) and/or file transfer(s) from non-Opeeka Technology, Opeeka will provide, maintain and support the connections and file transfers in accordance with commercially reasonable support service levels. Any technical issues triggered by a change in Customer’s data schema, structure, or format or any technical issues triggered by a change in connectivity requirements to Customer’s external data sources may result in additional fees.

6. Customer Responsibilities.

• Customer shall report all suspected Errors through the Designated Employees to Opeeka’s technical Support Services staff in accordance with the terms set forth herein. Reports will include, at a minimum,

(a) reasonably detailed documentation and explanation to substantiate Errors and to assist Opeeka in its efforts to diagnose, reproduce and correct Errors; and (b) the Designated Employee’s name and telephone or email data and reasonably continuous access to the Designated Employee.

• Customer shall assist Opeeka in Opeeka’s efforts to resolve confirmed Errors reported by Customer as reasonably necessary for Opeeka to perform its obligations pursuant to this Support Services Schedule.

• Only the Designated Employees may request Support Services. Customer shall answer its Authorized Users’ support questions.
• Customer shall ensure that any communications or documentation distributed by it to its Authorized Users clearly and conspicuously states that Authorized Users should call Customer for technical support for the Opeeka Technology. Opeeka will have no obligation to furnish any assistance, information or documentation directly to Authorized Users. If Opeeka’s technical Support Services staff are being contacted by Customer’s Authorized Users then, upon Opeeka’s request, Customer shall cooperate to stop such contact. Support Services for Customer’s Authorized Users shall be billed as out-of-scope.

Schedule 3

Opeeka Professional Services Schedule

This Opeeka Professional Services Schedule (the “Professional Services Schedule”) is hereby made a part of the Opeeka Master Agreement (the “Master Agreement”) between Opeeka and the Customer identified on the Order to which this Professional Services Schedule relates. In the event any provisions of this Professional Services Schedule contradict or are inconsistent with the provisions of the Master Agreement, the provisions of this Professional Services Schedule shall prevail and govern with respect to the Professional Services provided pursuant to this Professional Services Schedule. All capitalized terms used in this Professional Services Schedule and not otherwise defined in this Professional Services Schedule shall have the meanings ascribed thereto in the Master Agreement or Order, as applicable.

1. Services. Upon request by Customer, Opeeka will provide resources to perform Professional Services to the extent such Professional Services are identified in a mutually agreed upon Statement(s) of Work (each, an “SOW” or “Statement of Work”) which shall describe the project assumptions, specifications, scope, work plan, responsibilities, duration and fees for such Professional Services, which SOW(s) shall reference the Master Agreement and be sequentially numbered. Opeeka will perform the Implementation Services at the locations, at the times, and otherwise pursuant to the specifications set forth in the applicable Statement of Work. Except for Services expressly set forth in a mutually agreed Statement of Work, Customer is responsible for any and all other service and implementation requirements that Customer may have with respect to the Products.
2. Change Orders. From time to time, either Party may propose certain changes to the scope, design, format or timing of the Professional Services (each, a “Requested Change”) by delivering written notice of such Requested Change to the other Party. In the event Customer submits a Requested Change to Opeeka, Opeeka shall promptly provide Customer with a written response (a “Change Response”) to such Requested Change reasonably detailing whether the Requested Change is feasible and any material issues involved in the implementation of such Requested Change (including, without limitation, the estimated time and expense required to implement the Requested Change and any foreseen adverse effects such Requested Change may have on the provision of the Professional Services). In the event Opeeka submits a Requested Change to Customer, Opeeka will also provide Customer with an estimate of any material issues involved in the implementation of such Requested Change (including, without limitation, the estimated time and expense required to implement the Requested Change and any foreseen adverse effects such Requested Change may have on the Services). Requested Changes, and any amendments necessary to the Order or Master Agreement in connection therewith, shall be negotiated in good faith by the Parties. A Requested Change will be implemented only if a written change order is executed by authorized representatives of both Parties (a “Change Order”).
3. Acceptance. With respect to any Work Product and/or Opeeka Technology that is subject to acceptance, as specified in the applicable Statement or Work, upon Opeeka’s completion of the Services as contemplated by the Statement of Work, Customer shall, within seven (7) calendar days of such completion (“Review Period”), inspect the Work Product and/or Opeeka Technology for material compliance with the specifications set forth in the Statement of Work regarding the features and functionality of such Work Product and/or Opeeka Technology (the “Specifications”). In the event Customer discovers any material non-compliance with the Specifications (a “Material Non-Conformity”), Customer must, before the expiration of the Review Period, provide Opeeka with written notice of such Material Non- Conformity with a sufficiently detailed description of the Material Non-Conformity to allow Opeeka to cure the same (“Material Non-Conformity Notice”). The Work Product and/or Opeeka Technology shall be deemed accepted (“Acceptance”) by Customer upon the earlier of the following to occur: (i) the Review Period expires without Customer providing any applicable written Material Non-Conformity Notice; or (ii) Customer has confirmed to Opeeka that Customer has otherwise accepted the Work Product and/or Opeeka Technology. In the event Customer does provide Opeeka with a written Material Non-Conformity Notice, Opeeka has the right to take efforts to cure such Material Non-Conformity within thirty (30) business days of Opeeka’s receipt of Customer’s written Material Non-Conformity Notice (“Cure Period”). Opeeka has the right, by the end of the applicable Cure Period, to rectify and otherwise cure the Material Non-Conformity (so that the Work Product and/or Opeeka Technology is in material compliance with the Specifications). Customer shall then have another right of inspection in accordance with, and subject to, the terms and conditions of this Section 3. All other aspects of each cure and re-delivery by Opeeka shall also be subject to the terms and conditions of this Section 3.
4. Cooperation. Each Party will select and identify an authorized representative in the applicable Statement of Work (each, a “Project Coordinator”) who will be responsible for coordinating the applicable Party’s obligations set forth in the applicable Statement of Work. Either Party may replace its Project Coordinator upon notice to the other Party. Customer shall cooperate and provide information as is reasonably necessary or desirable for the timely completion of the Professional Services. Customer shall at all times make available its functional and/or information technology personnel as reasonably required or desirable for Opeeka to perform the Professional Services, and Customer shall timely fulfill its obligations and responsibilities set forth in each SOW. To the extent required or as specified in any SOW or work plan, Customer shall provide Opeeka with access to its facilities, software, systems, data, information and support materials to perform the Professional Services. Customer acknowledges that Opeeka’s performance hereunder is contingent on Customer’s timely and effective performance of Customer’s responsibilities and Customer’s timely decisions and approvals. If Customer fails to provide required information and/or make decisions as agreed or in a reasonably expeditious and timely manner, and such failure results in a delay in delivery of any Work Product and/or Opeeka Technology or to the overall project, Opeeka shall not be liable for such delay, and Customer agrees to extend the time frame for delivery of the Work Product and/or Opeeka Technology or project, as applicable, on a day for day basis and compensate Opeeka for any additional work required as a result of such delay.
5. Project Control. Opeeka shall have the sole right to supervise, manage, contract, direct, procure, perform, or cause to be performed, all Professional Services performed by it pursuant to an SOW. Opeeka will endeavor to honor a request for a specific consultant, subject to staffing or scheduling considerations; provided, however, Opeeka reserves the right to determine the assignment of its personnel. Opeeka may subcontract all or a portion of the Professional Services to a qualified third party. In recognition that Opeeka personnel may perform similar services for third parties, the Agreement shall not prevent Opeeka from providing services or developing materials that may be perceived as competitive with those developed or provided hereunder, subject to the confidentiality provisions of the Agreement.
6. Opeeka Limited Warranty. Opeeka warrants to Customer that Opeeka will perform, or procure the performance of, the Professional Services in a timely, professional and workmanlike manner. For any breach of the foregoing warranty, Opeeka shall, as Customer’s sole and exclusive remedy, re-perform the Professional Services which were not performed as warranted at no additional charge after receiving notice from Customer of such nonconformance within thirty (30) days following the date such Professional Services were performed.
7. Fees and Expenses. Except as otherwise specified in a Statement of Work, Customer shall pay Opeeka on a time and materials basis. The Professional Services fees and billable rates will be identified in the applicable Statement of Work. The Professional Services fees will be adjusted to reflect any changes in the scope of work set forth in a Change Order, as applicable. In addition, Customer agrees to reimburse Opeeka for any actual, reasonable travel and out-of-pocket expenses incurred in performing Professional Services pursuant to a Statement of Work.
8. Invoicing and Payment. Except as otherwise specified in a Statement of Work, Opeeka will invoice Customer monthly for Services performed by Opeeka during the preceding calendar month. Except as otherwise specified in a Statement of Work, Customer shall pay to Opeeka all fees, charges and expenses due and owing pursuant to such Statement of Work in U.S. dollars to the address or account designated on the invoice within thirty (30) days following Opeeka’s invoice date. Customer may not set-off any amounts owing to Customer against any payments due to Opeeka hereunder.
9. Ownership of Work Product. Customer acknowledges and agrees that, except as may be otherwise specifically set forth in an applicable Statement of Work, all Work Product and all Intellectual Property Rights in the Work Product shall be the sole and exclusive property of Opeeka. Opeeka hereby grants Customer a limited, non-transferable, non-sublicensable, non-exclusive license to make use of the Work Product for Customer’s internal business purposes during the term of the applicable Order to which the applicable Statement of Work relates. Except as may be otherwise specifically set forth in an applicable Statement of Work, in the event that any right, title or interest to any Work Product, or part thereof, may not, by operation of law, vest in Opeeka or is determined to be a “work made for hire” for any reason, then Customer hereby irrevocably conveys, transfers and assigns to Opeeka, in perpetuity and throughout the world, all right, title and interest, without further consideration, in and to such Work Product, and any and all related Intellectual Property Rights arising therefrom or embodied therein. The assignment of the Work Product under this Professional Services Schedule includes all rights of paternity, integrity, attribution and withdrawal and any other rights known as, or substantially similar to, “moral rights.” To the extent such moral rights may not be assigned under applicable law, Customer hereby waives such moral rights and consents to any action in connection therewith, including any violation of such moral rights, in the absence of such consent. In no event will Opeeka be precluded from developing for itself or for others any materials and work product which is similar to the Work Product. In addition, Opeeka will be entitled to freely use its general knowledge, skills and experience, and any ideas, concepts, processes, know-how and techniques developed by Opeeka while performing the Professional Services.
10. Additional Services. Any services performed by Opeeka at the request of Customer that are outside of the scope of any Professional Services described in an applicable SOW may be added to such SOW pursuant to an amendment to such SOW, or shall be subject to a new SOW entered into by the Parties, and in either case shall be governed by the terms set forth in this Professional Services Schedule.

Schedule 4

BUSINESS ASSOCIATE AGREEMENT

THIS BUSINESS ASSOCIATE AGREEMENT (“BAA”), contains the terms and conditions that govern your purchase and use of the Services (as defined in the Master Agreement), and is a contract by and between you or the entity or organization that you represent (“Covered Entity”) and Opeeka, Inc. (“Business Associate”), and is effective as of the date you submit an Order (as defined in the Master Agreement) to Opeeka and Opeeka accepts your Order (the “Effective Date”). Covered Entity and Business Associate may be referred to in this BAA individually as “Party” and collectively as “Parties.”

RECITALS

A. Covered Entity and Business Associate have entered into the Agreement pursuant to which Business Associate has agreed to perform certain services for Covered Entity (the “Services”). In connection with the Services, Covered Entity may need to disclose certain information to Business Associate, or Business Associate may need to access, create, receive, maintain, transmit, or use, on behalf of Covered Entity, certain information of which some may constitute Protected Health Information (defined below) (“PHI”).

B. Covered Entity and Business Associate intend to protect the privacy and provide for the security of PHI in compliance with the HIPAA Rules (defined below) and HITECH Act (defined below).

C. Covered Entity and Business Associate desire to enter into this BAA to satisfy certain requirements of the HIPAA Rules and HITECH Act.

AGREEMENT

NOW, THEREFORE, in consideration of the mutual promises and covenants contained in this BAA and for the mutual benefit provided to each Party under the Agreement, the Parties agree as follows:

1.DEFINITIONS

1.1 The following terms have the same meanings as those terms in the HIPAA Rules and the HITECH Act: Breach, Business Associate, Covered Entity, Data Aggregation, Designated Record Set, Disclosure (or Disclose), Electronic PHI, Health Care Operations, Individual, Minimum Necessary, Notice of Privacy Practices, PHI, Required By Law, Secretary, Security Incident, Subcontractor, Unsecured PHI, and Use.

1.2“HIPAA Rules” means the Privacy, Security, Breach Notification, and Enforcement Rules at 45 C.F.R. Part 160 and Part 164.

1.3 “HITECH Act” means the Health Information Technology for Economic and Clinical Health Act of 2009 and its implementing regulations.

2. OBLIGATIONS OF BUSINESS ASSOCIATE

2.1 Permitted Use and Disclosure. Business Associate is not to Use or Disclose PHI other than as required to perform the Services. However, Business Associate may also Use and Disclose PHI for Business Associate’s proper management and administration and (ii) to carry out Business Associate’s legal responsibilities, provided that such Disclosure for Business Associate’s proper management and administration or to carry out Business Associate’s legal responsibilities is either Required By Law or Business Associate obtains reasonable assurances from the person to whom the PHI is Disclosed that (a) it will be held confidentially and Used or further Disclosed only as Required By Law or for the purpose for which it was Disclosed to such person, and (b) the person will notify Business Associate of any instances of which such person is aware, in which the PHI’s confidentiality has been breached.

2.2 Safeguards. Business Associate will have in place appropriate administrative, technical, and physical safeguards to protect the privacy of PHI, and will reasonably safeguard PHI (i) from any intentional or unintentional non-permitted Use or Disclosure violative of the HIPAA Rules, and (ii) to limit incidental Uses or Disclosures made pursuant to an otherwise permitted or required Disclosure.

2.3 Reporting Breach of Privacy Obligations. Business Associate will report to Covered Entity in writing any PHI Use or Disclosure not permitted by this BAA, including the Breach of Unsecured PHI. Unless a law enforcement delay applies pursuant to 45 C.F.R. § 164.412, Business Associate will notify Covered Entity’s Privacy Officer or other designated individual not more than five (5) calendar days after Business Associate discovers such non-permitted Use or Disclosure, or Breach of Unsecured PHI. The Business Associate’s notification will include, to the extent possible, 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.

2.4 Mitigation of Harmful Effects. Business Associate agrees to mitigate, to the extent practicable, any harmful effect of a PHI Use or Disclosure by Business Associate in violation of this BAA.

2.5 Agents and Subcontractors. In accordance with 45 C.F.R. §§ 164.502(e)(1)(ii) and 164.308(b)(2), if applicable, Business Associate will ensure that any Subcontractors or agents who create, receive, maintain, or transmit PHI on Business Associate’s behalf in connection with Business Associate’s performance of Services, agree to the same restrictions, conditions, and requirements that apply to Business Associate with respect to such PHI.

2.6 Amendment of PHI. Upon Business Associate’s receipt of a written request by an Individual to amend that Individual’s PHI, Business Associate will notify Covered Entity within ten (10) business days. To the extent Business Associate maintains a Designated Record Set on behalf of Covered Entity, Business Associate will make any amendment to PHI in a Designated Record Set as directed or agreed to by Covered Entity, pursuant to 45 C.F.R. § 164.526, or take other measures as necessary to satisfy Covered Entity’s obligations under 45 C.F.R. § 164.526.

2.7 Accounting of Disclosures. Business Associate will maintain and make available the information required to provide an accounting of certain Disclosures to Covered Entity, as necessary to satisfy Covered Entity’s obligations under 45 C.F.R. § 164.528. In the case of an electronic health record maintained or hosted by Business Associate on behalf of Covered Entity, the accounting period will be three (3) years, and the accounting will include Disclosures for treatment, payment and Health Care Operations, in accordance with the applicable effective date of Section 13402(a) of the HITECH Act. In the event the request for an accounting is delivered directly to Business Associate, Business Associate will forward such request to Covered Entity within five (5) business days of receipt.

2.8 Government Access to Records. Business Associate will make its internal practices, books and records relating to the Use and Disclosure of PHI available to Covered Entity, or to the Secretary, for purposes of determining Covered Entity’s compliance with the HIPAA Rules and HITECH Act.

2.9 Judicial and Administrative Proceedings. In the event Business Associate receives a subpoena, court or administrative order or other discovery request or mandate for release of PHI, Business Associate will notify Covered Entity in writing prior to responding to such request to enable Covered Entity to object. Business Associate will notify Covered Entity of the request as soon as reasonably practicable.

2.10 Access by Individuals. Business Associate will, within ten (10) business days following Covered Entity’s request, make available to Covered Entity for inspection and obtaining copies of, PHI that is in Business Associate’s custody or control, and which is maintained in a Designated Record Set, so that Covered Entity may meet its access obligations under 45 C.F.R. § 164.524.

2.11 Security. To the extent that Business Associate creates, receives, maintains, or transmits Electronic PHI on Covered Entity’s behalf, Business Associate will:

2.11.1 Comply with the security provisions found at 45 C.F.R. § 164.308, 310, 312, and 316 in the same manner as such provisions apply to Covered Entity, pursuant to Section 13401(a) of the HITECH Act, and otherwise implement administrative, physical, and technical safeguards that reasonably and appropriately protect the confidentiality, integrity and availability of Electronic PHI.

2.11.2 Ensure that any Subcontractor or agent to whom Business Associate provides Electronic PHI agrees to implement reasonable and appropriate safeguards in writing to protect such PHI.

2.11.3 Identify and respond to suspected or known Security Incidents; document Security Incidents and their outcomes; and report to Covered Entity within five (5) business days any Security Incident of which Business Associate becomes aware and which results in a Use or Disclosure of Electronic PHI in violation of the Agreement or this BAA. For those Security Incidents that do not result in a Use or Disclosure of Electronic PHI in violation of the Agreement or this BAA, reports may be made in the aggregate on at least a quarterly basis.

2.12 Compliance with Covered Entity Obligations. To the extent Business Associate is to carry out one or more of Covered Entity’s obligation(s) under Subpart E of 45 C.F.R. Part 164, Business Associate will comply with the requirements of Subpart E that apply to Covered Entity in the performance of such obligation(s).

2.13 Compliance with Laws. Business Associate will comply with all applicable state and federal privacy and security laws relating to the security or confidentiality of PHI that it creates, receives, maintains, or transmits on Covered Entity’s behalf, including but not limited to the HIPAA Rules and the HITECH Act, as may be amended from time to time.

3. PERMITTED USE AND DISCLOSURE PROVISIONS

3.1 Permitted Uses and Disclosures.

3.1.1 Except as limited in this BAA, Business Associate may Use or Disclose PHI to perform functions, activities, or services, for or on behalf of Covered Entity as specified in the Agreement.

3.1.2 Business Associate may Use or Disclose PHI as Required by Law.

3.1.3 Business Associate agrees to make Uses, Disclosures, and requests for PHI consistent with Covered Entity’s Minimum Necessary policies and procedures and as otherwise permitted in accordance with the HIPAA Rules, section 13405(b) of the HITECH Act, and any other subsequently adopted guidance.

3.1.4 Business Associate may not Use or Disclose PHI in a manner that would violate Subpart E of 45 C.F.R. Part 164 if done by Covered Entity, except for the specific Uses and Disclosures set forth below:

(a) Business Associate may Disclose PHI for the Business Associate’s proper management and administration or to carry out Business Associate’s legal responsibilities, provided that the Disclosures (i) are Required by Law, or (ii) Business Associate obtains reasonable assurances from the person to whom the PHI is Disclosed that the PHI will remain confidential and Used or further Disclosed only as Required by Law or for the purposes for which it was Disclosed to the person, and the person notifies Business Associate of any instances of which it is aware in which the PHI’s confidentiality has been breached.

(b) Business Associate may provide Data Aggregation services relating to Covered Entity’s Health Care Operations.

(c) Business Associate may Use PHI to report violations of law to appropriate Federal and State authorities, consistent with 45 C.F.R. § 164.502(j) (1).

(d) Business Associate may Use, analyze, and Disclose PHI for the public health activities and purposes described in 45 C.F.R. § 164.512(b);

(e) Business Associate may perform de-identification of Protected Health Information on behalf of Covered Entity (“De-Identified Data”), provided that such de- identification conforms to the requirements of the HIPAA Rules. Covered Entity acknowledges and agrees that De-Identified Data is not Protected Health Information and that Business Associate may use such De-Identified Data for any lawful purposes; and

(f) Business Associate may collect, process, disclose, publish and use in any other manner such De-Identified Data in order to provide and improve Business Associate’s products and services and for other legitimate business purposes; provided, that Business Associate agrees not to sell De-Identified Data to third parties. Business Associate is and shall remain the exclusive owner of the De-Identified Data.

4. OBLIGATIONS OF COVERED ENTITY

4.1 Notification. Covered Entity will notify Business Associate of the following:

4.1.1 Any limitation(s) in its Notice of Privacy Practices in accordance with 45 C.F.R. § 164.520, to the extent that such limitation(s) may affect Business Associate’s Use or Disclosure of PHI;

4.1.2 Any 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;

4.1.3 Any restriction to the Use or Disclosure of PHI that Covered Entity has agreed to 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. Business Associate will comply with such restrictions; and

4.1.4 Any amendment required to be made in accordance with 45 C.F.R. § 164.526 to PHI that Covered Entity possesses in a Designated Record Set.

4.2 Appropriate Requests for Use or Disclosure. Covered Entity will not ask Business Associate to Use or Disclose PHI in any manner that would not be permissible under the Privacy Rule if done by Covered Entity, provided that, when the underlying Agreement includes provisions for PHI’s Use or Disclosure for Data Aggregation or management and administrative activities of Business Associate, Business Associate may Use or Disclose PHI for such purposes.

5. TERM AND TERMINATION

5.1 Term. The Term of this BAA will begin as of the Effective Date and will terminate upon termination of the Agreement or on the date Covered Entity terminates this BAA for cause as authorized in paragraph 5.2 of this Section, whichever is sooner.

5.2 Termination for Cause. Business Associate authorizes termination of this BAA by Covered Entity, if Covered Entity determines Business Associate has (i) violated a material term of the Agreement or this BAA, (ii) Covered Entity has notified Business Associate of such violation in writing, and (iii) Business Associate has not cured the breach or ended the violation within thirty (30) days of receipt of notification. If Business Associate fails to cure the breach or end the violation within the specified timeframe, or in the event the breach is reasonably incapable of cure, then Covered Entity may do the following: (a) if feasible, terminate the Agreement, including this BAA, or (b) if termination of the Agreement is infeasible, report the issue to the Department of Health and Human Services.

5.3 Effect of Termination. Upon termination of this BAA, with respect to PHI received from Covered Entity or created, maintained, or received by Business Associate on Covered Entity’s behalf, Business Associate agrees to do the following:

5.3.1 Retain only that PHI which is necessary for Business Associate to continue its proper management and administration or to carry out its legal responsibilities.

5.3.2 Return to Covered Entity or, if agreed to by Covered Entity, destroy the remaining PHI that Business Associate still maintains in any form.

5.3.3 Continue to use appropriate safeguards and comply with Subpart C of 45 C.F.R. Part 164 with respect to Electronic PHI to prevent Use or Disclosure of the PHI, other than as provided for in this Section, for as long as Business Associate retains the PHI.

5.3.4 Not Use or Disclose the PHI retained by Business Associate other than for the purposes for which such PHI was retained and subject to the same conditions set out at paragraph 3.14 above which applied prior to termination.

5.3.5 Return to Covered Entity or, if agreed to by Covered Entity, destroy the PHI retained by Business Associate when Business Associate no longer needs the PHI for Business Associate’s proper management and administration or to carry out its legal responsibilities.

5.4 Breach Pattern or Practice by Agent or Subcontractor. If Business Associate knows of a pattern of activity or practice of its agent or Subcontractor that constitutes a material breach or violation of the Subcontractor’s obligation under its contract or other arrangement with Business Associate, Business Associate will take reasonable steps to cure the breach or end the violation, as applicable, and, if such steps are unsuccessful, terminate the agreement between the Business Associate and agent or Subcontractor, if feasible.

5.5 Breach Pattern or Practice by Covered Entity. If Business Associate knows of a pattern of activity or practice of Covered Entity relating to the PHI that constitutes a material breach or violation of Covered Entity’s obligation under the HIPAA Rules, Business Associate will provide written notice to Covered Entity of such pattern of activity or practice and will meet with Covered Entity to discuss and attempt to resolve the problem or end the violation.

6. MISCELLANEOUS

6.1 Ownership. Covered Entity will retain all ownership rights to the PHI, and any information derived from such PHI, including but not limited to de-identified PHI, which Business Associate receives, has access to, or creates, in order to perform functions, activities or services on Covered Entity’s behalf.

6.2 Amendment to Comply with Law.  The Parties agree to take such action as is necessary to amend this BAA from time to time for the Parties to remain in compliance with the standards and requirements of the HIPAA Rules, HITECH Act, and other applicable state and federal privacy laws and regulations relating to the security or confidentiality of PHI.

6.3 No Third-Party Beneficiaries.  Nothing expressed or implied in the Agreement or this BAA is intended to confer upon any person other than Covered Entity, Business Associate, and their respective successors or assignees, any rights, remedies, obligations, or liabilities whatsoever.

6.4 Headings.  This BAA’s section headings are for the convenience of reference only and are not to be considered in construing this BAA.  

6.5 Regulatory References.  Any reference in this BAA to any statute, rule, regulations, or agreement, including this BAA, shall be deemed to include such statute, rule, regulation or agreement as in effect or as may be modified, varied, amended, or supplemented from time to time.

6.6 Interpretation.  The provisions of this BAA will prevail over any provisions in the Agreement that may conflict or appear inconsistent with any provision in this BAA.  This BAA and the Agreement will be interpreted as broadly as necessary to implement and comply with the HIPAA Rules and HITECH Act.  The Parties agree that any ambiguity in this BAA will be resolved in favor of a meaning that complies and is consistent with the HIPAA Rules and HITECH Act.  Except as specifically required to implement the purposes of this BAA, or to the extent inconsistent with this BAA, all other terms of the Agreement will remain in force and effect.

6.7 Survival.  Business Associate’s respective rights and obligations under paragraph 5.3 and as specifically designated otherwise in this BAA will survive the termination of this BAA.

6.8 Counterparts.  This BAA may be signed in any number of counterparts, each of which will be an original, with the same effect as if all signatures were upon the same instrument.  Delivery of an executed counterpart of the signature page to this BAA by facsimile will be effective as delivery of a manually executed counterpart of this BAA, and any Party delivering such an executed counterpart of the signature page to this BAA by facsimile to any other Party will thereafter also promptly deliver a manually executed counterpart of this BAA to such other Party, provided that the failure to deliver such manually executed counterpart will not affect the validity, enforceability, or binding effect of this BAA.

6.9 Venue; Jurisdiction.  Any suit, action or proceeding arising out of the subject matter hereof, or the interpretation, performance or breach of this BAA, will be instituted in or transferred to the state court of California, or if there is a federal jurisdiction of the dispute, in the United States District Court for the Northern District of California (the “Acceptable Forums”).  The Acceptable Forums are convenient to all Parties, and each Party irrevocably submits to the jurisdiction of the Acceptable Forums, irrevocably agrees to be bound by any judgment rendered thereby in connection with this BAA, and waives any and all objections to jurisdiction or venue that the Party may have under the laws of California or otherwise in those courts, in any such suit, action or proceeding.  Should such proceeding be initiated in any other forum, Covered Entity waives any right to oppose any motion or application made by Business Associate as a consequence of such proceeding having been commenced in a forum other than an Acceptable Forum, to transfer the action or proceeding to an Acceptable Forum.

6.10 No Modification.  No modification of this BAA will be effective unless made in writing and executed by each Party’s duly authorized representative, except as otherwise provided herein.

6.11 Notice.  All notices pursuant to this BAA will be effective in accordance with the notice terms in the Agreement.