HEALTHNOTES® TERMS OF SERVICE AGREEMENT

Healthnotes, Inc. (“HNI,” “we,” “us,” or “our”) provides these terms of service (“Terms”) to cover (a) your use of and access to Vitature, and (b) all services provided on or through the Healthnotes website (“Site”), including, but not limited to, your use of and access to all information, documents, files, text, graphics, and software products (collectively, (a) and (b) constitute the “Services”).

By accessing and using the Site, and/or clicking the “I Agree” button when you register an account in Vitature, you acknowledge that you have read and understood the Terms and that you accept and agree to be legally bound by the terms and conditions contained in the Terms. If you are using the Site on behalf of an organization, you are agreeing to these Terms for that organization and promising that you have the authority to bind that organization to these Terms. In that case, “you” and “your” will refer to that organization. If you do not agree to these Terms, you should not access or use the Site, and you will not be able to register an account.

  1. USE OF THE SERVICES

1.1 Except as otherwise stated in the Terms, and provided that you are in compliance with the Terms, you have the non-exclusive, worldwide, revocable, limited right to access and use the Services unless earlier terminated in accordance with the Terms, solely for your internal business operations. You may allow Your Users to use the Services for this purpose, and you are responsible for their compliance with the Terms.

1.2 We may update the Services to reflect changes in, among other things, laws, regulations, rules, technology, industry practices, patterns of system use, and availability of third-party content. HNI updates to the Services will not materially reduce the level of performance, functionality, security, or availability of the Services during your access to the Services. We will endeavor to provide you notice of changes to the Services, and your continued use of the Services will constitute acceptance of such changes.

1.3 You may not, and may not cause or permit others to: (a) use the Services to harass any person; cause damage or injury to any person or property; publish any material that is false, defamatory, harassing, or obscene; violate privacy rights; promote bigotry, racism, hatred, or harm; send unsolicited bulk email, junk mail, spam, or chain letters; infringe property rights; or otherwise violate applicable laws, ordinances, or regulations; (b) perform or disclose any benchmarking, availability, or performance testing of the Services; (c) perform or disclose network discovery, port and service identification, vulnerability scanning, password cracking, remote access, or penetration testing of the Services; or (d) violate or infringe the intellectual property rights of HNI or any third party (collectively (a)-(d) constitutes the “Acceptable Use Policy”). In addition to other rights that we have in the Terms, we have the right to take remedial action if the Acceptable Use Policy is violated, and such remedial action may include suspending or terminating your access to the Services or removing or disabling access to material that violates the Acceptable Use Policy.

  1. OWNERSHIP RIGHTS AND RESTRICTIONS

2.1 You or your licensors retain all ownership and intellectual property rights in and to Your Content. We or our licensors retain all ownership and intellectual property rights in and to the Services, derivative works thereof, and anything developed or delivered by or on behalf of us under the Terms. Using our Services does not give you any ownership of any intellectual property rights in our Services or the content you access through the Services.

2.2 You grant us the right to host, use, access, process, display, transmit, and create derivative works of Your Content to provide the Services pursuant to and in accordance with the Terms, or to perform testing or analytics on the Services. You have sole responsibility for the accuracy, quality, integrity, legality, reliability, and appropriateness of Your Content, and for obtaining all rights related to Your Content required by HNI to perform the Services.

2.3 You may not, and may not cause or permit others to: (a) modify, make derivative works of, disassemble, decompile, reverse engineer, reproduce, republish, or copy any part of the Services (including data structures or similar materials produced by programs); (b) access or use the Services to build or support, directly or indirectly, products or services competitive to the Services or HNI; or (c) license, sell, transfer, assign, distribute, outsource, permit timesharing or service bureau use of, commercially exploit, or make available the Services to any third party, except as permitted by the Terms.

  1. PROTECTION OF YOUR CONTENT

3.1 In performing the Services, HNI will use commercially reasonable efforts to comply with the HNI Privacy Policy applicable to the Services. However, if there is any conflict between the HNI Privacy Policy and these Terms, the Terms shall prevail. The current version of the HNI Privacy Policy is available at https://www.healthnotes.com/hpp and may change from time to time.

3.2 If you set up an account through our Services—specifically, Vitature—your profile information will remain confidential in accordance with paragraph 3.1 of this section, UNLESS you choose to make your profile information public by adding it to a directory available to all users of Vitature; OR, you send Your Content via Vitature to another, specific user at your initiation or at the request of the other user. You agree that you will treat any data, documents, or information that you receive from another user as confidential. However, HNI cannot and does not guarantee that users who receive confidential information from you through Vitature will, in fact, treat Your Content as confidential. If you agree to exchange Your Content with a specific user, only that user will be able to see such content.

3.3 HNI will use, at a minimum, industry standard technical and organizational security measures to transfer, store, and process Your Content. These measures are designed to protect the integrity of Your Content and guard against the unauthorized or unlawful access to, use, and processing of Your Content. We and our affiliates may perform certain aspects of the Services (e.g., administration, maintenance, support, disaster recovery, data processing, etc.) from locations, and/or through use of subcontractors, worldwide.

3.4 You are responsible for any security vulnerabilities, and the consequences of such vulnerabilities, arising from Your Content, including any viruses, Trojan horses, worms, or other harmful programming routines contained in Your Content, or from your use of the Services in a manner that is inconsistent with the Terms or the Acceptable Use Policy.

3.5 You may disclose or transfer, or instruct us to disclose or transfer, Your Content to a third party through the Services or in some other manner. Upon such disclosure or transfer, HNI is no longer responsible OR LIABLE for the security or confidentiality of such content by the third party, including Your Content that you authorize to transfer through the Services in accordance with paragraph 3.2.

  1. WARRANTIES, DISCLAIMERS, AND EXCLUSIVE REMEDIES

4.1 You represent that you have the power and authority to agree to the Terms. We warrant that we will perform the Services using commercially reasonable care and skill. If the Services provided to you were not performed as warranted, you must promptly provide us with a written notice that describes the deficiency in the Services (including, as applicable, the service request number notifying us of the deficiency in the Services).

4.2 EXCEPT FOR THE EXPRESS REPRESENTATIONS AND WARRANTIES STATED IN THIS SECTION 4, HNI DOES NOT MAKE ANY REPRESENTATIONS OR WARRANTIES OF ANY KIND WHETHER EXPRESS, IMPLIED (EITHER IN FACT OR BY OPERATION OF LAW), OR STATUTORY, AS TO ANY MATTER WHATSOEVER. WE EXPRESSLY DISCLAIM ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUALITY, ACCURACY, TITLE, AND NON-INFRINGEMENT. HNI DOES NOT WARRANT AGAINST INTERFERENCE WITH THE ENJOYMENT OF THE SERVICES OR AGAINST INFRINGEMENT. WE DO NOT WARRANT THAT THE SERVICES WILL BE PERFORMED ERROR-FREE OR UNINTERRUPTED, THAT WE WILL CORRECT ALL ERRORS RELATING TO THE SERVICES, OR THAT THE SERVICES WILL MEET YOUR REQUIREMENTS OR EXPECTATIONS. WE ARE NOT RESPONSIBLE FOR ANY ISSUES RELATED TO THE PERFORMANCE, OPERATION, OR SECURITY OF THE SERVICES THAT ARISE FROM YOUR CONTENT OR THIRD-PARTY CONTENT OR SERVICES PROVIDED BY THIRD PARTIES.

4.3 FOR ANY BREACH OF THE SERVICES WARRANTY, YOUR EXCLUSIVE REMEDY AND OUR ENTIRE LIABILITY SHALL BE THE CORRECTION OF THE DEFICIENT SERVICES THAT CAUSED THE BREACH OF WARRANTY, OR, IF WE CANNOT SUBSTANTIALLY CORRECT THE DEFICIENCY IN A COMMERCIALLY REASONABLE MANNER, YOU MAY TERMINATE THE DEFICIENT SERVICES.

4.4 TO THE EXTENT NOT PROHIBITED BY LAW, THESE WARRANTIES ARE EXCLUSIVE AND THERE ARE NO OTHER EXPRESS OR IMPLIED WARRANTIES OR CONDITIONS INCLUDING FOR SOFTWARE, HARDWARE, SYSTEMS, NETWORKS, OR ENVIRONMENTS OR FOR MERCHANTABILITY, SATISFACTORY QUALITY AND FITNESS FOR A PARTICULAR PURPOSE.

  1. LIMITATION OF LIABILITY

5.1 IN NO EVENT WILL HNI OR ITS AFFILIATES BE LIABLE FOR ANY INDIRECT, CONSEQUENTIAL, INCIDENTAL, SPECIAL, PUNITIVE, OR EXEMPLARY DAMAGES, OR ANY LOSS OF REVENUE, PROFITS, SALES, DATA, DATA USE, GOODWILL, OR REPUTATION.

5.2 IN NO EVENT SHALL THE AGGREGATE LIABILITY OF HNI AND OUR AFFILIATES ARISING OUT OF OR RELATED TO THE TERMS AND ANY SERVICES, WHETHER IN CONTRACT, TORT, OR OTHERWISE, EXCEED THE TOTAL AMOUNTS ACTUALLY PAID FOR THE SERVICES DURING THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO SUCH LIABILITY. IF, THEREFORE, YOU ACCESS THE SERVICES FOR FREE, HNI’s TOTAL LIBABILITY SHALL BE ZERO (0) DOLLARS.

  1. INDEMNIFICATION

6.1 If a third party makes a claim against either you or HNI (“Recipient” which may refer to you or us depending upon which party received the Material) that any information, design, specification, instruction, software, service, data, hardware, or material (collectively, “Material”) furnished by either you or HNI (“Provider” which may refer to you or us depending on which party provided the Material) and used by the Recipient infringes the third party’s intellectual property rights, the Provider, at the Provider’s sole cost and expense, will defend the Recipient against the claim and indemnify the Recipient from the damages, liabilities, costs, and expenses awarded by the court to the third party claiming infringement or the settlement agreed to by the Provider, if the Recipient does the following:

  1. notifies the Provider promptly in writing, no later than thirty (30) days after the Recipient receives notice of the claim (or sooner if required by applicable law);
  2. gives the Provider sole control of the defense and any settlement negotiations; and
  3. gives the Provider the information, authority, and assistance the Provider needs to defend against or settle the claim.

6.2 If the Provider believes or it is determined that any of the Material may have violated a third party’s intellectual property rights, the Provider may choose to either modify the Material to be non-infringing (while substantially preserving its utility or functionality) or obtain a license to allow for continued use, or if these alternatives are not commercially reasonable, the Provider may end the license for, and require return of, the applicable Material and refund any unused, prepaid fees the Recipient may have paid to the other party for such Material. If such Material is third-party technology and the terms of the third-party license do not allow us to terminate the license, then we may, upon thirty (30) days prior written notice, end the Services associated with such Material and refund any unused, prepaid fees for such Services.

6.3 The Provider will not indemnify the Recipient if the Recipient: (a) alters the Material or uses it outside the scope of use identified in the Provider’s user or program documentation, or (b) uses a version of the Material which has been superseded, if the infringement claim could have been avoided by using an unaltered current version of the Material which was made available to the Recipient. The Provider will not indemnify the Recipient to the extent that an infringement claim is based upon any Material not furnished by the Provider. HNI will not indemnify you to the extent that an infringement claim is based on third-party content, or any Material from a third-party portal or other external source, that is accessible or made available to you within or by the Services (e.g., product sales and marketing data from third-party data providers; scientific research from third-party data providers; a third-party web page accessed via a hyperlink, etc.), or any Material you receive through the Services from or pertaining to another user of the Services, including any content that is exchanged in the manner described in paragraph 3.2 of these Terms.

6.4 This section 6 provides our, and your, exclusive remedy for any infringement claims or damages.

  1. TERM AND TERMINATION

7.1 We may suspend or terminate your or Your Users’ access to, or use of, the Services if we believe that: (a) there is a significant threat to the functionality, security, integrity, or availability of the Services or any content, data, or applications in the Services; (b) you or Your Users are accessing or using the Services to commit an illegal act or violate any provision of these Terms; or (c) there is a violation of the Acceptable Use Policy. When reasonably practicable and lawfully permitted, we will provide you with advance notice of any such suspension or termination. In the case of a suspension, we will use reasonable efforts to re-establish the Services promptly after we determine that the issue causing the suspension has been resolved. During any suspension period, we may restrict your access to the Services or Your Content.

7.2 If we terminate your access to the Services, we will permanently delete all of Your Content, except Your Content that you exchanged with another user. You agree that sending any of Your Content to another user means that the user will continue to have access to it via the Services, even after termination, unless such access is otherwise in violation of these Terms.

7.3 Provisions that survive termination or expiration of the Terms are those relating to limitation of liability, indemnification, payment and others which by their nature are intended to survive.

  1. SERVICE MONITORING, ANALYSES, AND HNI ENABLING SOFTWARE

8.1 We continuously monitor the Services to facilitate HNI’s operation of the Services; to help resolve your service requests; to detect and address threats to the functionality, security, integrity, and availability of the Services as well as any content, data, or applications in the Services; and to detect and address illegal acts or violations of the Acceptable Use Policy. HNI monitoring tools do not collect or store any of Your Content residing in the Services, except as needed for such purposes. HNI does not monitor, and does not address issues with, non-HNI software provided by you or any of Your Users that is stored in, or run on or through, the Services. Information collected by HNI monitoring tools (excluding Your Content) may also be used to assist in managing HNI’s product and service portfolio, to help HNI address deficiencies in its products and Services, and for license management purposes.

8.2 We may (i) compile statistical and other information related to the performance, operation, and use of the Services, and (ii) use data from the Services in aggregated form for security and operations management, to create statistical analyses, and for research and development purposes (clauses i and ii are collectively referred to as “Service Analyses”). We may make Service Analyses publicly available; however, Service Analyses will not incorporate Your Content or confidential information in a form that could serve to identify you or any individual, and Service Analyses do not constitute Personal Data. We retain all intellectual property rights in Service Analyses.

  1. EXPORT

9.1 Export laws and regulations of the United States and any other relevant local export laws and regulations apply to the Services. Such export laws govern use of the Services (including technical data) and any Services deliverables provided under the Terms. You and we each agree to comply with all such export laws and regulations (including “deemed export” and “deemed re-export” regulations). You agree that no data, information, software programs, and/or materials resulting from Services (or direct product thereof) will be exported, directly or indirectly, in violation of these laws, or will be used for any purpose prohibited by these laws including, without limitation, nuclear, chemical, or biological weapons proliferation, or development of missile technology.

9.2 You acknowledge that the Services are designed with capabilities for you and Your Users to access the Services without regard to geographic location, and to transfer or otherwise move Your Content between the Services and other locations such as Your Users’ workstations. You are solely responsible for the authorization and management of user accounts across geographic locations, as well as export control and geographic transfer of Your Content.

  1. FORCE MAJEURE

HNI shall not be responsible for failure or delay of performance if caused by: an act of war, hostility, or sabotage; act of God; pandemic; electrical, internet, or telecommunication outage that is not caused by us; government restrictions (including the denial or cancelation of any export, import, or other license); or other event outside of our reasonable control. You and we both will use reasonable efforts to mitigate the effect of a force majeure event.

  1. GOVERNING LAW AND JURISDICTION

The Terms are governed by the substantive and procedural laws of the State of Oregon, and you and HNI agree to submit to the exclusive jurisdiction of, and venue in, the courts in Multnomah County, Oregon in any dispute arising out of or relating to the Terms or Services. The Uniform Computer Information Transactions Act does not apply to the Terms or Services.

  1. NOTICE

12.1 You must promptly send all notices, requests, claims, demands, and other communication pursuant to the Terms in writing and they shall either be delivered by certified mail, postage prepaid, or sent by a nationally recognized overnight courier service, to the address listed below for HNI, and are deemed given when received. HNI will send notice pursuant to the Terms to you via email, first class, airmail, overnight carrier, or your account email address, and such notice is deemed given when sent. Healthnotes, Inc., 80 SE Madison, Suite 410, Portland, OR 97214, Attention: Contracts Department.

12.2 We may also give notice relating to changes in our Services by means of a general notice on the Site or within the applicable Services, or if the change affects Services specific to you, to the email used in your registration for the Site.

  1. ASSIGNMENT

You may not assign your rights under the Terms, or give or transfer the Services, or any interest in the Services, to another individual or entity.

  1. OTHER

14.1 We are an independent contractor, and you agree that no partnership, joint venture, or agency relationship exists between HNI and you.

14.2 Our business partners and other third parties, including any third parties with which the Services have integrations, or that use the Services, or are retained by you to provide consulting services, implementation services, or applications that interact with the Services, are independent of HNI and are not HNI’s agents. We are not liable for, bound by, or responsible for any problems with the Services or Your Content arising due to any acts of any such business partner or third party, unless the business partner or third party is providing Services as our subcontractor and, if so, then only to the same extent as we would be responsible for our resources under the Terms.

14.3 If any term or provision of the Terms is found to be invalid or unenforceable, the remaining terms or provisions will remain effective, and such term or provision shall be replaced with another one consistent with the purpose and intent of the Terms.

14.4 Except for actions for breach of HNI’s proprietary rights, no action, regardless of form, arising out of or relating to the Terms, may be brought by HNI or you more than two (2) years after the cause of action has accrued.

14.5 Prior to agreeing to the Terms, you are solely responsible for determining whether the Services meet your technical, business, or regulatory requirements. You remain solely responsible for your regulatory compliance in connection with your use of the Services.

14.6 Upon forty-five (45) days written notice and no more than once every twelve (12) months, HNI may audit your compliance with the Terms. You agree to cooperate with HNI’s audit and to provide reasonable assistance and access to information. Any such audit shall not unreasonably interfere with your normal business operations.

  1. ENTIRE AGREEMENT

15.1 You agree that the Terms and the information which is incorporated into the Terms by written reference (including reference to information contained in a URL or referenced policy), is the complete agreement for the Services and supersedes all prior or contemporaneous agreements or representations, written or oral, regarding such Services. However, if you execute any other agreement with HNI, the terms of that additional agreement (“Additional Terms”) will, in addition to these Terms, govern the use of the services named in the Additional Terms. If there is any conflict between these Terms and any Additional Terms, then the Additional Terms shall take precedence with respect to the services named in the Additional Terms.

15.2 The Terms may not be modified and the rights and restrictions in the Terms may not be altered or waived except in a writing signed or accepted online by authorized representatives of you and of HNI. Failure to enforce any provision of the Terms does not constitute a waiver by HNI. No third party beneficiary relationships are created by the Terms.

  1. AGREEMENT DEFINITIONS

16.1 “HNI Enabling Software” means any software agent, application, or tool that HNI makes available to you for download specifically for purposes of facilitating your access to, operation of, and/or use with, the Services.

16.2 “Personal Data” means any information relating to an identified or identifiable natural person that you or Your Users provide to us as part of the Services. An identified or identifiable natural person is one who can be identified, directly or indirectly, in particular by reference to an identification number or to one or more factors specific to their physical, physiological, mental, economic, cultural, or social identity.

16.3 “Program Documentation” refers to the user manuals, help windows, and readme files for the Services and any HNI Enabling Software.

16.4 “Your User” or “Your Users” mean those employees, contractors, and end users, as applicable, authorized by you or on your behalf to use the Services in accordance with the Terms. For Services that are specifically designed to allow your clients, agents, customers, suppliers, or other third parties to access the Services to interact with you, such third parties will be considered Your Users subject to the terms and conditions of the Terms.

16.5 “Your Content” means all software, data, text, images, audio, video, photographs, non-HNI or third-party applications, and other content and material, in any format, provided by you or any of Your Users that is stored in, or run on or through, the Services. For the avoidance of doubt, Services provided under the Terms, HNI Enabling Software, all other HNI products and services, HNI intellectual property, and all derivative works thereof, do not constitute “Your Content.”