Falcon Health Services Agreement

IMPORTANT: PLEASE READ THIS AGREEMENT CAREFULLY

BY CLICKING "I AGREE" OR OTHERWISE ACCEPTING THESE TERMS IN CONNECTION WITH YOUR PURCHASE, YOU ("CUSTOMER") AGREE TO BE BOUND BY THIS SERVICES AGREEMENT WITH FALCON HEALTH, INC. IF YOU DO NOT AGREE TO THESE TERMS, DO NOT CLICK "I AGREE" AND DO NOT PURCHASE OR USE THE SERVICES.

SERVICES AGREEMENT

This Services Agreement (the "Agreement") is effective upon Customer's acceptance via the online checkout process.

SERVICES. Falcon Health's Provider Targeting Platform allows customers to develop target lists of potential participant providers to recruit. The platform consists of primary care physicians, primary care nurse practitioners and physician assistants which have been derived by Falcon Health algorithms of the CMS database.

PAYMENT

Fees. As compensation for the Services, Customer shall pay Falcon Health the fees presented during the online checkout process ("Fee Schedule"). Payment in full is required before receiving access to the Software.

TERM. The term of this Agreement will begin on the Effective Date and continue as presented during the online checkout process.

PROPRIETARY RIGHTS

Falcon Health Intellectual Property. As between Falcon Health and Customer, all right, title and interest, including all Intellectual Property Rights, in the Falcon Health Marks, Software, and any other Falcon Health property or materials furnished or made available as part of the Services, and all modifications and enhancements of the same ("Falcon Health Intellectual Property"), belong to and are retained solely by Falcon Health. Nothing in this Agreement is intended to or may be construed to transfer any such rights in any part of the Services to Customer other than as explicitly provided for in this Agreement. "Intellectual Property Rights" means any patent, invention, discovery, know-how, moral, technology, software, copyright, authorship, trade secret, trademark, trade dress, service mark, confidentiality, proprietary, privacy, intellectual property or similar rights) that are now or hereafter protected or legally enforceable under state and/or Federal common laws or statutory laws or laws of foreign jurisdictions.

Developments. Except as otherwise explicitly set forth in this Agreement, all inventions, works of authorship, and developments conceived, created, written, or generated by or on behalf of Falcon Health, whether solely or jointly, in connection with the Services ("Falcon Health Developments") and all Intellectual Property Rights in the same, shall be the sole and exclusive property of Falcon Health.

CONFIDENTIALITY

Confidential Information Defined. "Confidential Information" means any and all non-public technical and non-technical information disclosed by one Party (the "Disclosing Party") to the other Party (the "Receiving Party") in any form or medium, that the Disclosing Party identifies as confidential or that by the nature of the circumstances surrounding the disclosure and/or receipt ought to be treated as confidential and proprietary information. Confidential Information includes, without limitation:

(a) techniques, inventions (whether or not patented or patentable), know-how, processes, algorithms, software programs, software source and object codes and documents, APIs, and other creative works (whether or not copyrighted or copyrightable);

(b) financial information, Customer lists, business forecasts, and marketing plans and information;

(c) the business relationships and affairs of either party and its clients, patients, and referral sources;

(d) the internal policies and procedures of either Party;

(e) proprietary or confidential information of any third party who may disclose such information to Disclosing Party or Receiving Party in the course of Disclosing Party's business; and

(f) the terms of this Agreement.

In addition, Confidential Information excludes PHI, which must be protected via a BAA to be executed by the Parties.

Exceptions. The term "Confidential Information" shall not include any information which, as evidenced by Receiving Party's records:

(i) was known by the Receiving Party prior to receipt from the Disclosing Party either itself or through receipt directly or indirectly from a source with no obligation of confidentiality to the Disclosing Party;

(ii) was developed by the Receiving Party without use of the Disclosing Party's Confidential Information, or

(iii) becomes publicly known or otherwise ceases to be secret or confidential, except as a result of a breach of this Agreement or any obligation of confidentiality by the Receiving Party.

Confidential Information Terms. The Receiving Party will, at all times, both during the term and thereafter, keep in confidence and trust all of the Disclosing Party's Confidential Information. The Receiving Party will not use the Disclosing Party's Confidential Information other than as necessary to fulfill the Receiving Party's obligations or to exercise the Receiving Party's rights under this Agreement.

Either Party may disclose the other Party's Confidential Information upon the order of any competent court or government agency; provided that, prior to disclosure and to the extent possible, the receiving Party must:

(i) assert the confidential nature of the Confidential Information to the agency;

(ii) immediately notify the Disclosing Party in writing of the order or request; and

(iii) cooperate fully with the Disclosing Party in protecting against any such disclosure and/or narrowing the scope of the compelled disclosure.

Each Party agrees to secure and protect the other Party's Confidential Information with the same degree of care and in a manner consistent with the maintenance of such Party's own Confidential Information (but in no event less than reasonable care). The Receiving Party will not disclose Confidential Information of the Disclosing Party to any person or entity other than its officers, employees, affiliates and agents who need access to such Confidential Information in order to effect the intent of this Agreement and who are subject to confidentiality obligations at least as stringent as the obligations set forth in this Agreement.

Injunctive Relief. The Parties agree that any unauthorized disclosure of Confidential Information may cause immediate and irreparable injury to the Disclosing Party and that, in the event of such breach, the Receiving Party will be entitled, in addition to any other available remedies, to seek immediate injunctive and other equitable relief, without bond and without the necessity of showing actual monetary damage.

PROVIDER TARGETING PLATFORM LICENSE

Subject to the terms and conditions of this Agreement, Falcon Health hereby grants to Licensee during the Term a limited, nonexclusive, and non-assignable license, without right of sublicense, to use the Software solely for the internal use of Licensee for the analysis of providers under Medicare risk sharing programs.

The Software is not intended to be used as a basis to deny any medical claim, make a payment or treatment decision, or in connection with any clinical decision. In no event shall Licensee represent, state, or imply to any party that any payment or treatment decision is based on the Software, nor shall Licensee represent, state or imply to any party that Falcon Health, its affiliates or employees is in any way responsible or involved in any payment or treatment decision.

Falcon Health shall not be liable to Licensee or any third party for any claims or damages arising out of any party's use of the Software in any manner for which they were not intended or inconsistent with the restrictions set forth herein. Licensee agrees to indemnify and hold Falcon Health, its affiliates and their employees, harmless from any third-party claims resulting from or arising out of Licensee's use of the Software other than those claims for which Falcon Health is obligated to indemnify Licensee hereunder. Licensee shall be solely responsible for ensuring that Software is used only in accordance with this Agreement and consistent with their intended purpose.

Licensee may not:

1. use the Software or any Output for the benefit of third parties;
2. license, rent, lease, sell, assign, or otherwise transfer or convey the Software or the license grants contained herein to any third parties;
3. disclose or provide access to any part of the Software to any third party without Falcon Health's prior written consent;
4. alter, merge, modify or adapt the Software or the Documentation in any way;
5. use the Software to provide services which are competitive in nature to Falcon Health's services or
6. share or disclose the Output with any third-party without Falcon Health's prior written consent.

"Output" means any reports, data exports, or analytics generated through use of the Software.

Usage Data. Falcon Health may collect and use de-identified, aggregated usage data derived from Customer's access and use of the Services for the purpose of maintaining, improving, and enhancing the Services, developing new services or products, and for other lawful business purposes. Such data shall not identify Customer or any individual and shall not contain any PHI unless separately agreed to under a Business Associate Agreement.

TERMINATION

Customer may terminate this Agreement at any time. Upon termination:

(i) Falcon Health's obligation to perform Services shall cease;

(ii) Customer shall not be entitled to any refund or reimbursement of fees previously paid to Falcon Health under this Agreement.

Falcon Health may immediately terminate this Agreement upon notice in the event of Customer's breach or misuse of the Services or violation of applicable law. In the event Falcon Health terminates, a pro-rata portion of any fees paid will be reimbursed to Customer.

REPRESENTATIONS & WARRANTIES

Mutual Representations and Warranties. Each Party represents, warrants, and covenants that:

(a) it has the full power and authority to enter into this Agreement and to perform its obligations hereunder, without the need for any consents, approvals, or authorizations not yet obtained;

(b) its acceptance of and performance under this Agreement will not violate any oral or written agreement with any third party or any obligation owed to any third party; and

(c) it will comply with all applicable local, state, and national laws and regulations, including, without limitation, those related to PHI, Covered Entities, and Business Associates as defined under HIPAA, as well as any other laws or regulations regarding data privacy and the transmission of personal data.

Disclaimer. EXCEPT FOR THE EXPRESS WARRANTIES SET FORTH IN THIS SECTION, THE SERVICES, SUPPORT, DOCUMENTATION, AND ANY OTHER SERVICES, DATA, AND CONTENT (INCLUDING THIRD-PARTY SERVICES AND ALL THIRD-PARTY ITEMS, PRODUCTS, DEVICES, AND MATERIALS) ARE PROVIDED ON AN "AS IS" BASIS. CUSTOMER'S USE AND PURCHASE OF THE SERVICES ARE AT ITS OWN RISK. FALCON HEALTH DISCLAIMS ANY AND ALL OTHER EXPRESS, STATUTORY, AND IMPLIED WARRANTIES, INCLUDING, WITHOUT LIMITATION, WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, AND ACCURACY (OF DATA OR ANY OTHER INFORMATION OR CONTENT), AS WELL AS ANY WARRANTIES ARISING FROM A COURSE OF DEALING, USAGE, OR TRADE PRACTICE.

Basis of the Bargain. CUSTOMER ACKNOWLEDGES AND AGREES THAT FALCON HEALTH HAS OFFERED ITS SERVICES AND ENTERED INTO THIS AGREEMENT IN RELIANCE ON THE WARRANTY DISCLAIMERS AND LIMITATIONS OF LIABILITY SET FORTH HEREIN. THE WARRANTY DISCLAIMERS AND LIMITATIONS OF LIABILITY REPRESENT A REASONABLE AND FAIR ALLOCATION OF RISK BETWEEN CUSTOMER AND FALCON HEALTH, AND THEY FORM AN ESSENTIAL BASIS OF THE BARGAIN BETWEEN THE PARTIES. CUSTOMER FURTHER ACKNOWLEDGES AND AGREES THAT FALCON HEALTH WOULD NOT BE ABLE TO PROVIDE THE SERVICES ON AN ECONOMICALLY REASONABLE BASIS WITHOUT THESE LIMITATIONS.

INDEMNIFICATION

Indemnification by Customer. Customer shall indemnify, defend, and hold harmless Falcon Health and its officers, directors, employees, and agents ("Falcon Health Indemnified Parties") from and against any and all damages, liabilities, penalties, interest, fines, losses, costs, and expenses (including reasonable attorneys' fees and expenses) ("Losses"), arising directly or indirectly out of or relating to any claim, action, or proceeding ("Claim") brought by a third party based on:

(i) the improper use or operation of the Services by Customer, except to the extent such Losses result from Falcon Health's gross negligence or willful misconduct;

(ii) a breach of this Agreement by Customer;

(iii) any violation of applicable laws, rules, or regulations by Customer; or

(iv) the negligent acts or willful misconduct of Customer or its personnel.

Customer shall be responsible for all Losses incurred by the Falcon Health Indemnified Parties from any such Claim, whether through settlement or final judgment.

Indemnification by Falcon Health. Subject to limitations of liability set forth in this Agreement, Falcon Health agrees to defend Customer and its officers, directors, employees and agents (a "Customer Indemnified Party") from and against any Losses resulting from or arising out of a successful claim that the Services infringes or misappropriates the patent, trade secret, trademark, copyright or other Intellectual Property Rights of any third party (an "Infringement Claim"). Falcon Health will pay all Losses (whether by settlement or award of by a final judicial judgment) incurred by the Customer Indemnified Parties from any such Claim. Customer acknowledges and agrees that the remedies set forth in this paragraph 11(c) constitute Customer's only available remedies and Falcon Health Health's only obligation with respect to an Infringement Claim. Subject to limitations of liability set forth in this Agreement, Falcon Health agrees to defend Customer and its officers, directors, employees and agents (a "Customer Indemnified Party") from and against any Losses resulting from or arising out of a successful claim that the Services infringes or misappropriates the patent, trade secret, trademark, copyright or other Intellectual Property Rights of any third party (an "Infringement Claim"). Falcon Health will pay all Losses (whether by settlement or award of by a final judicial judgment) incurred by the Customer Indemnified Parties from any such Claim. Customer acknowledges and agrees that the remedies set forth in this paragraph 11(c) constitute Customer's only available remedies and Falcon Health Health's only obligation with respect to an Infringement Claim.

Procedure. Each Party shall provide to the other Party prompt notice of any Claim for which they are seeking indemnification. The indemnified Party may have counsel reasonably acceptable to the indemnifying Party observe the proceedings at the indemnified Party's expense, provided the indemnifying Party retains sole control of the defense of the Claim. The indemnified Party has the right to approve any settlement that affirmatively places on the indemnified Party an obligation that has a material adverse effect on the indemnified Party other than requiring the indemnified Party to cease using all or a portion of the Services or to pay sums eligible for indemnification under this Agreement. Such approval shall not be unreasonably withheld.

LIMITATIONS OF LIABILITY

Limits on Liability. IN NO CASE WILL FALCON HEALTH BE LIABLE FOR ANY AGGREGATE AMOUNT GREATER THAN THE AMOUNTS PAID AND PAYABLE BY CUSTOMER TO FALCON HEALTH UNDER THIS AGREEMENT DURING THE TWELVE (12) MONTH PERIOD PRECEDING THE DATE ON WHICH THE CLAIM FIRST ACCRUED, WITHOUT REGARD TO WHETHER SUCH CLAIM IS BASED IN CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR OTHERWISE.

MISCELLANEOUS

Waiver; Severability. A Party's right to enforce a provision of this Agreement may only be waived in writing and signed by the Party against which the waiver is to be enforced. Failure to enforce any provision of this Agreement in any one instance will not be construed as a waiver of future performance of that provision, and the Party's obligations under that provision will continue in full force and effect. The provisions of this Agreement are severable. The invalidity or unenforceability of any term or provision in any jurisdiction will be construed and enforced as if it has been narrowly drawn so as not to be invalid, illegal or unenforceable to the extent possible and will in no way affect the validity or enforceability of any other terms or provisions in that jurisdiction or of this entire Agreement in that jurisdiction.

Force Majeure. If any Party is unable to perform any of its obligations under this Agreement (with the exception of payment obligations) because of any cause beyond the reasonable control of and not the fault of the Party invoking this Section 13(g), including any act of God, fire, casualty, flood, earthquake, war, strike, lockout, epidemic or pandemic, destruction of production facilities, riot, insurrection or material unavailability, the other Party may terminate this Agreement upon notice to the non-performing Party.

Governing Law & Venue. This Agreement and each Party's rights and obligations will be governed by and construed in accordance with the laws of the State of California without giving effect to conflicts of law principles. Each Party hereby submits to the jurisdiction of any court in the State of California.

Assignment. Neither Party may assign or transfer this Agreement without the prior written consent of the other Party; provided, however, that Falcon Health may assign or transfer this Agreement without Customer's consent to any of Falcon Health's affiliates, subsidiaries, entities controlled by or under common control with Falcon Health, or in the event of a merger, change of control or sale of substantially all of its assets. This Agreement will bind the Parties and their respective successors and permitted assigns and will inure to the benefit of the Parties and their respective permitted successors and assigns.

Relationship of the Parties. The sole relationship between the Parties is solely that of independent contractors. This Agreement will not create a joint venture, partnership, agency, employment or other relationship between the Parties.

Survival. Any term of this Agreement that contemplates performance after termination of this Agreement will survive expiration or termination and continue until fully satisfied.

Dispute Resolution. In case of disputes in connection with the negotiation, execution, interpretation, performance or non-performance of this Agreement, the Parties agree to seek non-binding mediation, which shall be conducted remotely by a single mediator selected by the Parties. If the Parties fail to agree on the mediator within thirty (30) days of the date one of them invokes this provision, either Party may apply to the American Arbitration Association to make the appointment. The mediator shall conduct the proceedings pursuant to the rules of the American Arbitration Association, as they exist at the time of the dispute. In the event that any such mediation does not produce a settlement, unless the dispute is otherwise settled, the dispute shall be determined by binding and final arbitration in California, by three (3) arbitrators selected by the Parties (or by the American Arbitration Association if the Parties cannot agree) in accordance with the law of the State of California and the rules of the American Arbitration Association.

Entire Agreement. This Agreement, including all applicable Attachments, constitutes the entire agreement between the Parties relating to this subject matter and supersedes all prior or simultaneous understandings, representations, discussions, negotiations, and agreements, whether written or oral.

Counterparts. This Agreement may be executed in one or more counterparts. Each counterpart will be an original, but all such counterparts will constitute a single instrument.

Intending to be legally bound, the Parties have caused this Agreement to be executed as of the Effective Date by their respective duly authorized officers.