Master Subscription Agreement

THIS AGREEMENT GOVERNS YOUR ACQUISITION AND USE OF OUR SERVICES. BY ENTERING INTO THIS AGREEMENT, YOU AGREE TO THE TERMS OF THIS AGREEMENT, INCLUDING THOSE ADDITIONAL TERMS AND CONDITIONS AND POLICIES REFERENCED HEREIN. IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY AND ITS AFFILIATES TO THESE TERMS AND CONDITIONS, IN WHICH CASE THE TERMS “YOU” OR “YOUR” SHALL REFER TO SUCH ENTITY AND ITS AFFILIATES. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH THESE TERMS AND CONDITIONS, YOU MUST NOT ACCEPT THIS AGREEMENT AND MAY NOT USE THE SERVICES. DEPENDING ON YOUR LOCATION, YOU MAY BE SUBJECT TO ADDITIONAL OR DIFFERENT PROVISIONS SET FORTH IN ONE OR MORE EXHIBITS OR APPENDICES TO THIS AGREEMENT, WHICH MAY BE UPDATED BY THE COMPANY FROM TIME-TO-TIME.

1. Definitions.

In addition to defined terms contained elsewhere in this Agreement, the following terms shall have the meaning given to them in this Section 1:

1. “Affiliate” of a Person means any other Person that directly or indirectly, through one or more intermediaries, controls, is controlled by, or is under common control with, such Person. The term “control” (including the terms “controlled by” and “under common control with”) means the direct or indirect power to direct or cause the direction of the management and policies of a Person, whether through the ownership of voting securities, by contract, or otherwise.

2. “Agreement” means this Master Subscription Agreement, together with any and all exhibits of appendices referenced herein. 

3. “Authorized User” means an individual who is authorized by You to use the Services, for whom You have ordered the Service, and to whom You (or We at Your request) have supplied a user identification and password. Authorized Users may include, for example, Your employees, consultants, contractors and agents.

4. “End User” means an individual whose device contacts Your RepeatMD Platform. End Users may include, for example, individuals who enter Your location with their phone or tablets and those who log onto the platform, or those who interact with your platform via web or mobile device virtually.

5. “End User Data” means the electronic data and information (in any format or media) entered, submitted by or otherwise made accessible to Us by an End User or an End User’s device that is collected and processed by Us in connection with provision of the Services. For the avoidance of doubt, End User Data does not include any Public Data.

6. “Fees” include Platform Subscription Fees, Credit Card Processing Fees, Service Fees, and other fees as specified in Services Order Form.

7. “Intellectual Property Rights” means any and all common law, statutory and other industrial property rights and intellectual property rights (whether registered or unregistered), including copyrights, trademarks, trade secrets and other rights in confidential information (including discoveries, ideas, inventions, know-how, and processes), rights in database protection, patents and other proprietary rights issued, honored or enforceable under any applicable laws anywhere in the world, and all moral rights related thereto and any goodwill associated therewith.

8. “Licensee” means the entity entering into this Agreement and its representatives.

9. “Licensee Locations” means the unique business locations specified in the Services Order Form for which the Purchased Services will be used.

10. “Marketplace Transactions” means the purchases, refunds, and other transactions on the Platform, which are subject to Credit Card Processing Fees, Service Fees, and other applicable taxes, fees, etc. facilitated by the Merchant of Record.

11. “Merchant of Record” or “MoR” for the Purchased Services is RepeatMD, Inc.

12. “Payment Method” means a current, valid, accepted method of payment, as may be updated from time to time and which may include payment through your account with a third party.

13. “Person” means an individual, corporation, partnership, joint venture, limited liability entity, governmental authority, unincorporated organization, trust, association, or other entity.

14. “Platform” means Our proprietary platform, which is made available via our website and mobile application. “Your RepeatMD Platform” means the white-labeled version of the Platform We have provided to You in exchange for the payment of the applicable Fees. 

15. “Platform Administrator” means the duly authorized individual(s) of Licensee to make decisions on behalf of Licensee. Platform Administrators shall be the individual that signed this Agreement on behalf of Licensee, unless otherwise specified in the applicable Services Order Form.

16. “Platform Buildout Cost” or “PBOC” means the upfront amount paid by the Licensee to the Company to set up the Purchased Services, including provisioning and configuring Your RepeatMD Platform, allocation of onboarding resources, the production and shipping of print marketing material toolkit to Licensee, among others, to set up the Purchased Services. 

17. “Platform Subscription” means Your subscription to the Purchased Services through a pricing plan of Your choice for Your access and use of the platform as specified in the Services Order Form.

18. “Platform Subscription Fee” means the fee payable by You to Us for access to the Purchased Services under these terms and any relevant Services Order Forms.

19. “Portal Privacy Policy” means the privacy policy applicable to and contained in the Platform.

20. “Portal Terms of Use” means the terms of use on or otherwise applicable to the Platform.

21. “Public Data” shall mean data (in any format or media) that is generally available and in the public domain (through no act or omission of a party), and that is not proprietary to, or subject to exclusive ownership by, any party.

22. “Purchased Services” or “Services” means Our Platform and related products and services that You subscribe to, and/or any new services or features that We may introduce as a service to which You may subscribe to and any updates to the services, including individually and collectively, any software, mobile applications, or related products or services. These Purchased Services include but are not limited to End User engagement offerings which assist in rewarding an End User for visiting or receiving treatments, helping to drive referrals, facilitating the purchasing and financing of End User treatments, and assisting with automating End User retention, among others.

23. “Purchased Service Data” means all electronic data, information, text, messages or other materials, including of Licensee uses and End Users, submitted to the Purchased Services in connection with Your access and use of the Purchased Services.

24. “RepeatMD”, “We,” “Us” the “Company” or “Our” means RepeatMD, Inc., a Delaware corporation. If You are using the Platform in Canada, then “RepeatMD” refers to RepeatMD Canada, Inc., an Ontario corporation. 

25. “RepeatMD Privacy Policy” means the privacy policy for RepeatMD available at https://www.repeatmd.com/privacy-policy.

26. “RepeatMD Business Associate Addendum” means the Business Associate Addendum for RepeatMD available at https://www.repeatmd.com/business-associates-addendum.

27. “Services Order Form” means an order form referencing this Agreement and executed or approved by You and Us with respect to Your Platform Subscription, which may detail, among other things, the associated Fees and other details of the Platform Subscription.

28. “Territory” means, in general, the United States and Canada and, as to You, the states, localities, or other jurisdictions that encompass the Licensee Locations.  

29. “You” , “Your” or “Client” means the Licensee.

30. “Your Data” means electronic data and information submitted by or for You to the Services or collected and processed by or for You using the Services. For the avoidance of doubt, Your Data does not include any Public Data.

2. Right to Use the Purchased Services.

1. Provision of Purchased Services. Following Your payment of the Platform Buildout Cost or other upfront amounts due as specified in the Services Order Form, we agree to use commercially reasonable efforts to make the Purchased Services available to You pursuant to this Agreement and the applicable Services Order Form.

2. Applicability. This Agreement and all terms contained herein govern Your right to access and use the Purchased Services during the Term.

3. Right to Use the Purchased Services. Subject to Your compliance with the terms included herein and solely during the Term, We grant You a non-exclusive, non-transferable, non-sublicensable, non-assignable (except to the extent expressly permitted in this Agreement), and revocable right to access and use the Purchased Services that You have subscribed to for Your own internal business purposes, solely in the Territory.

4. Platform Subscriptions. Unless otherwise provided in the applicable Services Order Form, (i) Purchased Services are purchased as subscriptions, (ii) additional subscriptions may be added during a subscription term at the same pricing set forth in the Subscription Terms in the Services Order Form, prorated for the portion of that subscription term remaining at the time the subscriptions are added, and (c) any added subscriptions will terminate on the same date as the underlying subscriptions, as set forth in the Services Order Form.

5. End User Privacy. In connection with the Services, We may collect End User Data or other information about or related to End Users, and We may share certain data regarding End Users with You. You represent and warrant that You will (i) use the End User Data or any derivatives thereof in accordance with all applicable laws, including privacy, data protection, and data security laws, and (ii) upon request, You will direct any End User to the full text of the then-current Portal Privacy Policy. You understand that (i) the Portal Privacy Policy may be revised periodically by Us and (ii) You are responsible for reviewing the Portal Privacy Policy to check for changes. You acknowledge and agree that You will comply in all respects with the then-current Portal Privacy Policy, and that You are solely responsible for any noncompliance with Your obligations in the Portal Privacy Policy.

6. End User Terms of Use. Upon request, You agree to direct any End User to the full text of the then-current Portal Terms of Use. You understand that (i) the Portal Terms of Use may be revised periodically by Us in our sole discretion; (ii) You are responsible for reviewing the Portal of Use to check for changes; and (iii) You agree to abide by the terms of the then-current Portal Terms of Use.

7. Usage Restrictions. You acknowledge and agree that We have no obligation to monitor or police the content of communications or data of You or End Users, and that We are not responsible for the content of any such communications or transmissions. You will not (i) make the Services available to, or use the Services for the benefit of, anyone other than You or Your Authorized Users, (ii) sell, resell, license, sublicense, distribute, rent or lease the Services, or include the Services in a service bureau or outsourcing offering, (iii) store or transmit infringing, libelous, or otherwise unlawful or tortious material through the Services, (iv) store or transmit material in violation of third-party intellectual property, proprietary, privacy, or similar rights through the Services, (v) store or transmit malicious code through the Services, (vi) interfere with or disrupt the integrity or performance of the Services or third-party data contained therein, (vii) attempt to gain unauthorized access to the Services or their related systems or networks, (viii) permit direct or indirect access to or use of the Services in a way that circumvents a contractual usage limit, (ix) copy or duplicate the Services or any part, feature, function or user interface thereof, (x) frame or mirror any part of the Services, other than framing on Your own intranets or otherwise for Your own internal business purposes, (xi) access, use, or copy the Services in order to build a competitive product or service, (xii) reverse engineer, disassemble, decompile, decode, adapt, or otherwise attempt to derive or gain access to any software component of the Services, (xiii) modify, translate, or otherwise create derivative works of the Services, (xiv) remove, alter, cover, or obscure, or otherwise allow the removal, alteration, covering, or obscuring of, any RepeatMD trademarks or other Intellectual Property Rights (include trade names or service marks) that appear on the Services, (xv) promote, market, or sell any products or services that are competitive with the Services, or (xvi) use the Services at any business locations other than the Licensee Locations.

3. Fees and Payment for Purchased Services.

1. Fees. You agree to pay all fees specified in the Services Order Form for the entirety of the Term without offset or deduction of any kind.

2. Payment for Platform Subscription Fee. You agree to maintain a valid payment method on file for the duration of the Term. We will charge this payment method each month, on the monthly anniversary day of the Subscription Start Date (e.g., if you signed up on the 17th of a month, you will be charged monthly on the 17^th of each following month) for the Platform Subscription Fee specified in the Services Order Form. Payment is made in advance for the following month’s use of the Purchased Services. If you do not maintain an active, valid payment method, if a payment is not successfully settled, due to expiration, insufficient funds, or otherwise, You will be in material breach of this Agreement and will be subject to the terms outlined in Section 9 and You remain responsible for any uncollected amounts.

3. Payment for Credit Card Processing Fees and Service Fee. For Marketplace Transactions on the Platform, Clients will receive the amount charged to the End User, net of the Fees outlined in the Services Order Form.

4. Client Marketplace Transaction Payout Account. All Clients will be required as a condition of onboarding, to set up an account with Stripe Connect (or an equivalent service at Our direction and sole discretion) to facilitate normal course duties consistent with Our role as Merchant of Record related to Marketplace Transactions (such account, the “Marketplace Transaction Payout Account”), including but not limited to Client payouts, End User refunds, disputes, and sales tax reversals. You acknowledge that these transactions and adjustments will be processed automatically through the Platform as part of the normal course of the Purchased Services throughout the Term. In addition, in the event of nonpayment of the Platform Subscription Fee, amounts may be withheld at Our sole discretion, and Your use of the Purchased Services may be impacted or suspended until such breach is cured as is detailed more fully in this Agreement. In the event of a dispute relating to or a refund impacting Your Marketplace Transaction Payout Account (such as disputes or refunds regarding charges initiated thereon), you authorize us to take any actions that we deem reasonably necessary to resolve such matters (including, without limitation, reversing the charge on Your account and requiring You to compensate Us for any processing or other fees we incurred in connection with such disputed or refunded charge), and to the extent we incur or sustain any Losses that are related thereto, you agree to indemnify, defend, and hold us harmless from and against all such Losses. 

5. Taxes. Our Fees do not include any taxes, levies, duties or similar governmental assessments or charges of any nature, including, for example, value-added, sales, use, or withholding taxes, assessable by any jurisdiction whatsoever (collectively, “Taxes”). You are responsible for paying all Taxes associated with Your purchases hereunder. If We have the legal obligation to pay or collect Taxes for which You are responsible under this Section (3)(e), these amounts will be collected from your Platform Subscription Fee and Marketplace Transactions unless You provide Us with a valid tax exemption certificate authorized by the appropriate taxing authority. As a marketplace facilitator, We may be obligated to collect sales tax on taxable transactions on your behalf, and remit these amounts to the applicable tax jurisdiction. We may collect sales tax on any transactions to fulfill our Tax-related obligations based on the type of End User service offered and/or the location of the End-User. You may elect to explicitly opt out of this on an item-level basis, however if You choose to do so, You hereby agree to indemnify, defend, and hold Us harmless for and from any sales tax liability arising from this explicit opt out and represent and warrant that You will pay the applicable sales tax directly to the jurisdiction. 

6. Future Functionality. You agree that Your purchase is not contingent on the delivery of any future functionality or features, or dependent on any oral or written public comments made by Us regarding future functionality or features. We reserve the right to change, update, improve, or otherwise alter the features and functionality of the Services at any time.

4. Proprietary Rights and Licenses.

1. Reservation of Rights. Subject to the limited rights expressly granted hereunder, We reserve all right, title and interest in and to the Purchased Services, including all Intellectual Property Rights therein and thereto. Our Intellectual Property Rights include, without limitation, all rights associated with the Purchased Services and, and the online, web-based applications and Platform provided by Us. Except for the limited rights and licenses expressly granted under this Agreement, nothing in this Agreement grants, by implication, waiver, estoppel, or otherwise, to Licensee or any other Person any Intellectual Property Rights or other right, title, or interest in or to the Purchased Services. 

2. License by You. You grant Us and Our Affiliates a worldwide, fully paid-up license to host, copy, transmit, process and display Your Data and End User Data created by or for You using the Purchased Services, as necessary for Us to provide the Purchased Services in accordance with this Agreement. In addition, You grant Us a fully-paid and royalty-free, irrevocable, perpetual, with the right to sublicense through multiple tiers of sublicensees, right and license to use, access, maintain, reproduce, and distribute Your Data and End User Data, in all cases, for purposes of improving Our products and services, developing and marketing new or other products and services, and to determine Your interest in other products or services we may develop in the future, in all instances, subject to and in accordance with the RepeatMD Privacy Policy, as it may be updated from time to time. It is Your obligation to review the RepeatMD Privacy Policy from time to time to check for changes. All updates to the RepeatMD Privacy Policy will be effective on the date they are posted without prior notice to You. Without limiting the foregoing, We may (i) disclose Your Data and End User Data to Our service providers to process and supplement End User Data for the purpose of providing the Purchased Services in accordance with this Agreement, (ii) use or disclose End User Data to help Our clients learn more about their current and prospective customers, and to assist them in communications and marketing activities; and/or (iii) use or disclose without restriction End User Data that has been de-identified or aggregated for any purpose.

3. Limits on Your Use and Disclosure of End User Data. Without limiting any other provision here, You shall not, directly or indirectly, use, copy, modify, or otherwise access End User Data for purposes of competing against Us, including for purposes of creating a product or services that competes with the Purchased Services or the Platform. 

4.  License by You to Use Feedback. If You, any End User, or any Authorized User sends or transmits any communications or materials to Us suggesting or recommending changes or improvements to the Services, including without limitation, new features or functionality relating thereto, or any comments, questions, suggestions, or the like (“Feedback”), We and our Affiliates are free to use such Feedback irrespective of any other obligation or limitation between the parties governing such Feedback

5. License by You for Us to Disclose Business Relationship. You grant to Us and Our Affiliates a worldwide, fully paid-up and royalty-free license and right to use any of Your trademarks, brand names, and/or logos for the limited purpose of disclosing that RepeatMD provides services to You including any marketing materials such as print, media, public relations, and advertising. The license set forth in this Section (4)(e) shall be valid only during the period of time in which RepeatMD provides Services to You and shall expire at the termination of this Agreement.

6. License to Send Marketing Communications on Behalf of Client. As part of the Purchased Services, We may help run promotions for You. You grant us the right to send automated messaging, including by text/SMS, email, and by notifications within the Platform to End Users as part of the Purchased Services. You are solely responsible for the marketing campaigns you choose to run using the app, whether or not we provide assistance in setting them up. We make no representations, warranties, or guarantees, express or implied, regarding the performance, success, or outcomes of such campaigns and we bear no responsibility or liability, financial or otherwise, for their results.

7. Remedies for Infringement Claims Related to the Services. If We receive information about an infringement or misappropriation claim related to the Services, We may in Our discretion and at no cost to You (i) modify the Services so that they no longer infringe or misappropriate, without breaching Our warranties under this Agreement, (ii) obtain a license for Your continued use of the Services in accordance with this Agreement, or (iii) terminate Your subscriptions for the Purchased Services upon thirty (30) days’ written notice and refund You any prepaid Fees covering the remainder of the term of the terminated subscriptions. Notwithstanding any contrary provision in this Agreement, You agree that Your exclusive remedy for any infringement or misappropriation relating to the Services is set forth in this Section (4)(g) and that if We provide any of the remedies set forth in this Section (4)(g), You agree that such action satisfies Our obligations under this Agreement, and You are not eligible for further relief whatsoever.

8. New Products and Services. Now and in the future, RepeatMD may develop, test, integrate, and otherwise market new products and services that are designed to improve Your and End-User’s experience, including products or services that leverage artificial intelligence powered applications, machine learning, or other machine-based systems that are designed to operate with varying levels of autonomy and otherwise infer or generate recommendations (collectively, “Experimental Products”). Subject to the terms of this Agreement, You explicitly consent to Our use of Experimental Products on or in connection with the Platform or Services. RepeatMD makes no representations or warranties, express or implied, regarding the accuracy or recommendations of or from Experimental Products. You also acknowledge and agree that We may use Experimental Products to conduct Learning (defined below). As used herein, “Learning” means the process by which RepeatMD improves, refines, or further develops know-how, patterns, techniques, or methodologies used to improve, refine, or develop its products and services, or the outcome, content, or products resulting from such process; Learning also means the manner in which Experimental Products use, retain, derive from, extract from, or otherwise refer to Your Data to train, develop, improve, or enhance artificial intelligence or machine learning models, algorithms, or software. 

5. Confidentiality.

1. Definition of Confidential Information. “Confidential Information” means all information disclosed or otherwise made available by a party (“Disclosing Party”) to the other party (“Receiving Party”), whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure. Except as otherwise specifically provided in this Agreement, Your Confidential Information includes Your Data; Our Confidential Information includes, without limitation, the Services, the Fees, and Our Intellectual Property Rights (as applicable); and Confidential Information of each party includes the terms and conditions of this Agreement and all Service Order Forms (including pricing), as well as business and marketing plans, technology and technical information, product plans and designs, business processes, development tools and processes, computer printouts, computer programs, design drawings and manuals, and improvements, patents, copyrights, trade secrets or other intellectual property of any kind of nature, plans for future development and new product concepts, contemplated products, research, development, and strategies disclosed by such party. However, Confidential Information does not include any information that (i) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party, (ii) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party, (iii) is received from a third party who rightfully possess the information without confidential or proprietary restrictions, or (iv) was independently developed by the Receiving Party.

2. Protection of Confidential Information. Except as otherwise specifically provided in this Agreement, each party covenants and agrees that it will not publish, communicate, divulge, or disclose to any Person any Confidential Information of any other party, except as necessary in the performance of the terms of this Agreement. Each party covenants and agrees that it will not use any Confidential Information of any other party except as necessary to fulfill its obligations or exercise its rights under this Agreement, and only for such purposes and only for the time that it is necessary to do so. The Receiving Party will use the same degree of care that it uses to protect the confidentiality of its own confidential information of like kind (but not less than a commercially reasonably standard of care), and agrees (i) not to use any Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement, and (ii) except as otherwise authorized by the Disclosing Party in writing, to limit access to Confidential Information of the Disclosing Party to those of its and its Affiliates’ employees, service providers and contractors who need that access for purposes consistent with this Agreement and who have signed confidentiality agreements with the Receiving Party containing protections no less stringent than those herein, or to its Affiliates, legal counsel, and other professional representatives. 

3. Compelled Disclosure. In the event that Receiving Party is legally compelled to disclose any Confidential Information of the other Disclosing Party, the Receiving Party will, unless prohibited by applicable law, provide the Disclosing Party with prompt written notice of such request(s) to enable the Disclosing Party, at its sole cost and expense, to seek a protective order or take other lawful steps to protect and preserve the confidential nature of the Confidential Information, and the Receiving Party will cooperate with such efforts by the Disclosing Party, including by delaying the disclosure to the extent lawfully permitted to do so to permit the Disclosing Party the opportunity to engage in such efforts. Each party agrees that it will furnish only that portion of the Confidential Information which is legally required and will exercise reasonable efforts to obtain reliable assurance that confidential treatment will be accorded to that portion of the Confidential Information and other information which is being disclosed. Each party shall promptly notify the other party upon discovery of any loss or unauthorized disclosure or other processing of the Confidential Information of the other party. The Parties agree that to the extent any of their respective regulators have the right to examine the relationship between the Parties described in this Agreement, along with the records associated with such relationship, subject to any privacy requirements applicable to either party or its Affiliates, or to the individual customers of either party, the parties shall (i) provide advance notice of such examination; and (ii) reasonably cooperate with each other in making relevant records available.

4. Return or Destruction. Upon request by the Disclosing Party, the Receiving Party shall (i) return or destroy, as the Disclosing Party may direct, and in the manner reasonably directed by the Disclosing Party, all material in any medium that contains, refers to, or relates to the Disclosing Party’s Confidential Information, and (i) retain no copies except one copy solely to the extent, if any, required compliance with record retention requirements under applicable law; provided, however, that no Party will be obligated to erase Confidential Information subject to a license granted herein or contained in an archived computer system backup made in accordance with such Party’s security and/or disaster recovery procedures, provided that such archived copy will (x) eventually be erased or destroyed in the ordinary course of such Party’s data processing procedures and (y) will remain fully subject to the obligations of confidentiality and security stated herein.

6. Representations, Warranties, Exclusive Remedies and Disclaimers.

1. Each party represents and warrants to the other party that is has full power and authority to enter into this Agreement, carry out the transactions set forth herein, and to perform its obligations hereunder. 

2. You represent and warrant to RepeatMD that: (i) You own or otherwise have the necessary rights and consents in and to Your Data and End User Data so that, as received by Us hereunder, they do not and will not infringe, misappropriate, or otherwise violate any Intellectual Property Rights, privacy rights, or any other rights of any Person or otherwise violate applicable law (including any law relating to data privacy, data security, or protection of personal information); (ii) at all times during the Term of this Agreement, You shall comply with all applicable federal, state, and local laws; (iii) neither Your grant of the rights and licenses hereunder, nor your performance under this Agreement, does or will at any time require the consent, approval, or authorization of any governmental or regulatory authority or other third party, require the provision of any payment or other consideration by You to any third party, or conflict with or result in any breach or default under any other agreement to which You are subject; and (iv) Your use of the Services and execution of this Agreement does not and will not conflict with Your obligations to any third parties.

3. EXCEPT AS EXPRESSLY PROVIDED HEREIN, REPEATMD MAKES NO REPRESENTATIONS OR WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND REPEATMD SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT AND ANY IMPLIED WARRANTY ARISING FROM COURSE OF PERFORMANCE, COURSE OF DEALING, OR USAGE OF TRADE. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, PURCHASED SERVICES (INCLUDING EXPERIMENTAL PRODUCTS) ARE PROVIDED “AS IS,” EXCLUSIVE OF ANY WARRANTY WHATSOEVER. 

7. Indemnification.

1. You will indemnify, defend, and hold harmless RepeatMD and its Affiliates, together with Our agents, employees, officers, attorneys, shareholders, directors, and/or partners (the “Indemnified Parties” and each an “Indemnified Party”) from and against any and all losses, claims, demands, suits, proceedings, damages, liabilities, penalties, costs (including reasonable attorneys’ fees and costs) (collectively, “Losses”) incurred by or asserted against any Indemnified Party arising from, related to, or based upon: (i) the services (including any treatments or care) You provide to any End User or other third-party; (ii) Your access or use of Your Data or End User Data; (iii) your material breach of this Agreement or any other agreement between You and an End User; (iv) Your or any of Your subcontractor’s access, use, storage, or processing of any protected health information (as defined under applicable law) or personal information, including any actual or reasonably suspected unauthorized access to or disclosure, loss or use of, such information; (v) Your infringement or misappropriation of the Intellectual Property Rights of any Person; (vi) the violation or alleged violation of applicable law, including but not limited to in connection with the performance of services for End Users or related to a claim by an End-User or other Person asserting the violation of applicable laws relating to consumer protection, product liability, franchise and distribution, or any other similar or related matter of public policy. For the avoidance of doubt, Your obligation to indemnify includes both direct claims and third-party claims.

2. If the claim subject to indemnification is brought or asserted against an Indemnified Party by a Person who is not a party to this Agreement, then promptly after receipt of any written claim or notice of any action giving rise to a claim for indemnification, the Indemnified Party will notify You of the claim or action.  No failure to so notify You will relieve the You or Your indemnification obligations, except to the extent that the failure or delay is prejudicial.  The Indemnified Party will provide You with reasonable cooperation and assistance in the defense or settlement of any claim and grant You control over the defense and settlement of the same, provided, however, that (i) the Indemnified Party reserves the right to control the defense of any claim subject to indemnity hereunder (in which case, all such costs shall constitute Losses), (ii) if the Indemnified Party does not elect to control the defense of the claim, then any Indemnified Party shall be entitled to participate in the defense of the claim and to employ counsel at its own expense to assist in the handling of the claim, and (iii) You shall not agree to any settlement without the prior written consent of the Indemnified Party, unless such settlement (a) is solely for a cash payment, (b) requires no admission of liability or wrongdoing on the part of any Indemnified Party, (c) imposes no affirmative obligation on any Indemnified Party, (d) imposes no restriction on Our business, (e) provides that the parties to such settlement shall keep the terms of the settlement confidential, and (f) provides for a full and complete release of all Indemnified Parties. 

8. Limitation of Liability.

1. IN NO EVENT WILL THE AGGREGATE LIABILITY OF EITHER PARTY ARISING OUT OF OR RELATED TO THIS AGREEMENT, UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE, EXCEED THE AMOUNT PAID BY LICENSEE HEREUNDER IN THE 12 MONTHS PRECEDING THE INCIDENT OR CLAIM AT ISSUE. THE ABOVE LIMITATIONS WILL NOT APPLY TO: (A) LICENSEE’S RECKLESS OR NEGLIGENT ACTS OR OMISSIONS; (B) LICENSEE’S PAYMENT OBLIGATIONS UNDER THIS AGREEMENT; (C) LICENSEE’S INDEMNIFICATION OBLIGATIONS UNDER SECTION 7; (D) EITHER PARTY’S LIABILITY FOR ANY BREACH OF ITS CONFIDENTIALITY OBLIGATIONS UNDER SECTION 5; OR (E) EITHER PARTY’S LIABILITY FOR ITS INFRINGEMENT OR MISAPPROPRIATION OF ANY PROPRIETARY RIGHTS OF THE OTHER PARTY.

2. EXCEPT FOR (A) LICENSEE’S RECKLESS OR NEGLIGENT ACTS OR OMISSIONS; (B) LICENSEE’S PAYMENT OBLIGATIONS UNDER THIS AGREEMENT; (C) LICENSEE’S INDEMNIFICATION OBLIGATIONS UNDER SECTION 7; (D) EITHER PARTY’S LIABILITY FOR ANY BREACH OF ITS CONFIDENTIALITY OBLIGATIONS UNDER SECTION 5; OR (E) EITHER PARTY’S LIABILITY FOR ITS INFRINGEMENT OR MISAPPROPRIATION OF ANY PROPRIETARY RIGHTS OF THE OTHER PARTY, IN NO EVENT WILL EITHER PARTY BE LIABLE UNDER OR IN CONNECTION WITH THIS AGREEMENT UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE, FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, ENHANCED, OR PUNITIVE DAMAGES REGARDLESS OF WHETHER EITHER PARTY WAS ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES OR SUCH LOSSES OR DAMAGES WERE OTHERWISE FORESEEABLE. THE FOREGOING WILL NOT APPLY TO THE EXTENT PROHIBITED BY LAW.

9. Term, Termination, and Suspension.

1. Unless otherwise contained in a Services Order Form, a Platform Subscription is valid for a period of twelve (12) months from the Subscription Start Date set forth in a Services Order Form (“Initial Subscription Term”) and shall renew automatically for consecutive twelve (12) month periods thereafter (each a “Renewal Subscription Term”) unless terminated earlier by either Party in accordance with this Agreement. For the purposes of this Agreement, “Term” shall mean the Initial Subscription Term and any Renewal Subscription Term(s).

2. Unless otherwise contained in a Services Order Form, to discontinue renewal of or otherwise modify a Platform Subscription, a Platform Subscription may only be cancelled or modified effective at the end of the then-current Term. To prevent renewal at the end of Your twelve (12) month Initial Subscription Term or any Renewal Subscription Term, You must notify Us in writing at least ninety (90) days prior to the expiration of that Term. For the avoidance of doubt, subscriptions cannot be cancelled mid-Term, and notwithstanding any discontinuation or cessation of Your use of the Services during the Term, You will remain responsible for payment of all Fees until expiration of the applicable Term. Additionally, for avoidance of doubt, a request from any Client representative other than an approved Platform Administrator will not be approved, and attempts will be made by Company to get in contact with a Platform Administrator to verify and approve the request. If no contact is made with a Platform Administrator, the request will not be approved.

3. Either Party may terminate the relevant Subscription(s) or this Agreement for the other Party’s material breach of this Agreement where such material breach, if capable of cure, has not been cured within thirty (30) days of notice by the aggrieved party to the defaulting party. Where the aggrieved party reasonably believes a material breach cannot be cured, this Agreement may be terminated with immediate effect.

4. Notwithstanding anything contained herein, either party may terminate this Agreement with notice if the other party becomes insolvent, makes or has made an assignment for the benefit of creditors, is the subject of proceedings in voluntary or involuntary bankruptcy instituted on behalf of or against such party (except for involuntary bankruptcies which are dismissed within sixty (60) days), or has a receiver or trustee appointed for substantially all of its property or assets.

5. In the event of Your actual or threatened breach of this Agreement, including any suspected unauthorized activity or non-payment of Platform Subscription Fees, We have the right to immediately suspend all or part of Your Subscription(s) for such period of time as We, in our sole discretion, deem necessary. The foregoing is without prejudice to any other remedies which We may have under applicable law. You agree to cooperate with Us in any investigation into any unauthorized activity. 

6. If this Agreement is terminated for any reason other than Our uncured material breach (including but not limited to nonpayment or other default) before the conclusion of Term, You agree to pay Us the remainder of the amounts due under the Services Order Form. 

7. We reserve the right to adjust the Platform Subscription Fee for the subsequent Renewal Subscription Term and will provide You with notice thereof at least thirty (30) days prior the end of the then-current Subscription Term. Without limiting the foregoing, we reserve the right to provide new features, functionality, and benefits on the Platform and You acknowledge and agree that (i) each Renewal Subscription Term will automatically include such new features, functionality, and benefits (including any cost increases associated therewith) and (ii) we have the right to update Your Subscription to incorporate such new features, functionality, and benefits, and You agree to pay for any associated cost increases, provided that we provide You with at least thirty (30) days prior notice; and provided further that any such cost increases shall not increase Your Fees by more than twenty percent (20%) in any particular Subscription Term.  

10. Miscellaneous.

1. Notices. All notices, permissions, approvals, and other communications which are required or permitted under this Agreement shall be in writing and shall be deemed to have been given upon: (i) the day of personal delivery, (ii) the third business day after mailing, (iii) the second business day after sending by confirmed facsimile, or (iv) the first business day after sending by email (provided email shall not be sufficient for notices of termination or an indemnifiable claim). Billing-related notices to You shall be addressed to the Licensee Billing Info contact on the Order. All other notices shall be addressed respectively (a) to RepeatMD at the contact information on the Order under Licensor and (b) to You at the contact information on the Order under Licensee.

2. Governing Law and Jurisdiction. This Agreement, together with all claims and defenses related hereto or arising from this Agreement, will be governed by and construed in accordance with the laws of the State of Delaware, without regard to its conflict of laws rules. Except for claims by RepeatMD for injunctive or equitable relief (which may be brought in any court of competent jurisdiction), the parties (a) hereby irrevocably and unconditionally submit to the jurisdiction of the state courts of New York and to the jurisdiction of the United States District Court for the Southern District of New York for the purpose of any suit, action or other proceeding arising out of or based upon this Agreement, (b) agree not to commence any suit, action or other proceeding arising out of or based upon this Agreement except in such courts, and (c) hereby waive, and agree not to assert, by way of motion, as a defense, or otherwise, in any such suit, action or proceeding, any claim that it is not subject personally to the jurisdiction of the above-named courts, that its property is exempt or immune from attachment or execution, that the suit, action or proceeding is brought in an inconvenient forum, that the venue of the suit, action or proceeding is improper or that this Agreement or the subject matter hereof may not be enforced in or by such court. 

3. Initial Dispute Resolution. Most disputes can be resolved without resorting to litigation. If You have any dispute with Us, You agree that before taking any formal action, You will contact Us at legal@repeatmd.com, and provide a brief, written description of the dispute and Your contact information. The parties agree to use their reasonable efforts to settle any dispute, claim, question, or disagreement directly through consultation with one another, and good faith negotiations shall be a condition to either party initiating a lawsuit. 

4. Class Action Waiver. Both parties agree that any claims or controversies between us must be brought against each other on an individual basis only. That means neither You nor We can bring a claim as a plaintiff or class member in a class action, consolidated action, or representative action against the other party for any matters arising out of or relating to this Agreement. 

5. Export Regulation. The Services and other technology We make available, and derivatives thereof, may be subject to export laws and regulations of the United States and other jurisdictions. Each party represents that it is not named on any U.S. government denied-party list. You shall not permit the access or use of the Services by countries or nationals of those countries to which exports are prohibited by the Export Administration Regulations, the Office of Foreign Assets Control (“OFAC”) regulations, or any applicable successor regulation thereto.

6. Anti-Corruption. Where anti-corruption laws are applicable, You acknowledge that You have not received or been offered any bribe, rebate, payoff, influence payment, kickback or other unlawful payment of funds or received or retained any funds in violation of any law, rule or regulation. If You learn of any violation of the above restriction, You will promptly notify Our Legal Department at legal@repeatmd.com.

7. Entire Agreement and Order of Precedence. This Agreement (together with all exhibits and appendices hereto) is the entire agreement between You and Us regarding Your use of Services and supersedes all prior and contemporaneous agreements, proposals or representations, written or oral, concerning its subject matter. The parties agree that any inconsistent or contradictory term or condition stated in Your purchase order or in any other of Your order documentation (excluding Services Order Form as defined herein) is void. In the event of any conflict or inconsistency among the following documents, the order of precedence shall be: (1) the applicable Services Order Form, and (2) this Agreement. Notwithstanding any other provision of this Agreement, in no event shall any terms or conditions in this Agreement or any other document be agreed, accepted, waived or modified via a “Void Contracting Method.” A “Void Contracting Method” is one in which an agreement or acceptance purportedly takes place within or through products or services or an application, website, or portal operated by or for Us through Your action (such as electronic signature, checking a box, or clicking to accept) or inaction, even if You are informed that such action or inaction will constitute agreement or acceptance. Any terms or conditions purportedly accepted or agreed via a Void Contracting Method shall be void and of no legal consequence.

8. Assignment. Neither party may assign any of its rights or obligations hereunder, whether by operation of law or otherwise, without the other party’s prior written consent (not to be unreasonably withheld); provided, however, RepeatMD may assign this Agreement in its entirety (including all Service Order Forms), without Your consent to an Affiliate or in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets. Subject to the foregoing, this Agreement will bind and inure to the benefit of the parties, their respective successors and permitted assigns.

9. Relationship of the Parties. The parties are independent contractors. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between the parties. The parties expressly waive any claim that either party is a fiduciary to the other party.

10. Amendment and Modification; Waiver. No amendment to or modification of this Agreement is effective unless it is in writing and signed by an authorized representative of each party. No waiver by any party of any of the provisions hereof will be effective unless explicitly set forth in writing and signed by the party so waiving. Except as otherwise set forth in this Agreement, (i) no failure to exercise, or delay in exercising, any rights, remedy, power, or privilege arising from this Agreement will operate or be construed as a waiver thereof, and (ii) no single or partial exercise of any right, remedy, power, or privilege hereunder will preclude any other or further exercise thereof or the exercise of any other right, remedy, power, or privilege. 

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

12. Construction. Each party has consulted with and has been represented by legal counsel of its own choice in connection with the meaning, interpretation, negotiation, drafting and effect of this Agreement, or has had the opportunity to do so. The normal rule of construction to the effect that any ambiguities are to be resolved against the drafting party shall not be employed in the interpretation of this Agreement or amendments hereto.

13. No Third-Party Beneficiaries. This Agreement is solely between the parties hereto, and no third party, including any End User or Authorized User, is a third-party beneficiary to this Agreement.

14. Force Majeure. Except for failure to pay undisputed amounts when due, neither party shall be held responsible for any delay or failure in performance of any part of this Agreement to the extent such delay or failure is caused by fire, flood, strike, civil, governmental or military authority, act of God, or other similar causes beyond its control and without fault or negligence of the delayed or non-performing Party or its subcontractors.

15. Headings. The headings used in this Agreement are for reference only and do not define, limit, or otherwise affect the meaning of any provisions hereof.

16. Rewards and Benefits. RepeatMD is not responsible for the redemption of any reward or benefit provided by You to the End User. You are solely responsible for the redemption of any offer, reward, or benefit to the End User.

17. Protection of Your Data. You are responsible for ensuring that You disclose, provide and otherwise make available to Us and our vendors, contractors, and employees any and all protected health information (as defined under HIPAA) (“PHI”) and other personal information (including as part of Your Data) in compliance with any and all applicable laws, regulation, rules, orders, decrees, mandates and resolutions regarding the collection, maintenance, use, processing, disclosure, privacy and/or security of personal information and/or PHI. You are responsible for complying with all applicable local, state and federal laws and regulations in connection with Your activities related to this Agreement. You hereby authorize Us to share Your Data, including any PHI and personal information contained therein, with any of Our vendors, subcontractors, contractors, or employees to carry out its duties in this Agreement in accordance with applicable law and Our Privacy Policy. 

18. Business Associate Addendum. If You are a covered entity under HIPAA, the RepeatMD Business Associate Addendum is incorporated into this Agreement and the parties agree to abide by the terms set forth therein. If You are not a covered entity under HIPAA, the RepeatMD Business Associate Addendum is not incorporated into this Agreement and therefore the terms therein will not be applicable to the parties. 

19. Data Retention. Following termination or expiration of a Subscription, We will retain Your data for one hundred twenty (120) days from such date of termination or expiration (“Data Retention Period”). Upon the expiration of the Data Retention Period, (i) We will no longer have an obligation to maintain or provide You or End Users access to Purchased Service Data and (ii) You will lose all access to Purchased Service Data, including all historical data, End-User Data, and any Public Data incorporated therein. Thereafter, unless required for compliance with applicable laws and regulations, or as necessary to protect, defend or establish Our rights, or defend against potential claims, We reserve the right to destroy all data in Our possession; provided, however, that We may retain Purchased Service Data to the extent required for compliance with applicable laws and regulations, or as necessary to protect, defend or establish Our rights, or defend against potential claim. You agree that You are solely responsible for exporting Purchased Service Data prior to termination of a Subscription, and if You require Our assistance for exporting Purchased Service Data during the Data Retention Period, You may be required to pay a reasonable fee to Us. 

20. Survival. Any rights, obligations, or required performance of the parties in this Agreement which, by their express terms or nature and context are intended to survive termination or expiration of this Agreement, will survive any such termination or expiration, including the rights and obligations set forth in Sections 3, 4, 5, 6, 7, 8, and 10. In addition, all of Your payment obligations accruing prior to, and relating to services or use prior to, the expiration or termination of this Agreement shall survive such expiration or termination.