Master Agreement

Master Agreement

I. MASTER AGREEMENT

This master agreement updated as of December 1, 2021 (the “Master Agreement”) is entered into between, either: (i) Glooko, Inc., a Delaware corporation, located at 411 High Street, Palo Alto, California, 94301 (“Glooko Inc.”); or (ii) Glooko AB, a company registered in Sweden under company registration number 556668-4675, located at Nellickevägen 20, 412 63 Gothenburg, Sweden (“Glooko AB”), (according to Section 24 below) (each individually the “Company”) and the Client listed on a duly executed Order Form as defined below (“Client”), as of the date of the final signature on such Order Form (“Effective Date”). Any individual entering into this Agreement warrants that he/she has authority to enter into this Agreement on behalf of the party for whom it is indicated and has authority to enter into a
binding agreement on behalf of such party with respect to the matters as stated herein. Any long form negotiated agreement regarding the subject matter herein entered into between Company and Client shall supersede these Master Agreement terms.

1. Order Forms. During the Term of the Agreement, defined below, Company and Client may enter into order forms or booking forms (each, an “Order Form”) for the purchase of software licenses, hosting services, professional services, and hardware, as applicable (collectively, the “Deliverables”). Each Order Form is expressly subject to and incorporated into this Master Agreement and together they are collectively referred to as the “Agreement”. Company objects to and rejects all additions, exceptions, or changes to the Agreement, whether contained in any purchase order, request for
proposal (“RFP”), request for quote (“RFQ”), or other form received from Client or elsewhere. The inclusion of a purchase order, RFP, RFQ, or other Client number on any Order Form or a Company invoice is for reference purposes only and is not an acceptance by Company of any terms or conditions contained therein or elsewhere.

2. Fees. Client shall pay Company for the Deliverables it purchases as detailed in each Order Form entered into between the parties. Payment is due thirty (30) days from the date of each invoice. Except as otherwise agreed to in an Order Form, Company reserves the right to increase its fees and rates for the Deliverables upon the completion of an initial term and any subsequent renewal term. Any undisputed amount past due more than thirty (30) days, shall earn interest on the overdue balance at the rate of one and one-half percent (1.5%) per month or the maximum permitted by law, whichever is less, plus all expenses of collection.

3. Suspension. Non-payment or late payment of undisputed fees is a material breach of the Agreement, and shall entitle Company, in its sole discretion, to (i) withhold performance and discontinue service until all amounts due are paid in full; or (ii) terminate the Agreement with immediate effect by providing Client with written notice. Company reserves the right, in its sole discretion, to withhold performance and discontinue service upon detection of potential illegal use by Client, or for law enforcement actions.

4. Taxes. The fees payable under the Agreement shall not include local, state or federal sales, use, value-added, excise or personal property or other similar taxes or duties now in force or enacted in the future imposed on the transaction and/or the delivery of the Deliverables, all of which Client shall be responsible for and pay in full except those taxes based on the net income of Company. If Client claims tax exempt status, certificate of such status should be submitted to Company prior to execution of an Order Form.

5. Term and Termination.

5.1 Term. The term of the Agreement begins on the Effective Date and lasts until terminated in accordance with this Section.

5.2 Termination. A party may terminate the Agreement: (i) for cause upon thirty (30) days written notice to the other party of a material breach if such breach remains uncured at the expiration of such period; (ii) for cause if the other party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors; (iii) if there are no active Order Forms in effect, by sending written notice to the other party.

5.3 Effect of Termination. Upon termination, Company shall discontinue provision of services. Termination will not relieve Client of the obligation to pay any fees due or payable to Company prior to the effective date of termination, including annual fees, implementation fees, training fees, subscription fees, or any other fees or payments that Client has committed to under the Agreement.

6. Transition Services. At the request of Client, for up to ninety (90) days after termination of the Agreement, Company agrees to provide Client with support and transition services at its then-current rates. The provisions of the Agreement will remain in effect for the agreed upon transition assistance period and will apply to all transition assistance services provided by Company during such period.

7. Client Cooperation. Client acknowledges that its timely provision of appropriate personnel, equipment, assistance, cooperation, and complete and accurate information and data from its officers, agents, and employees, and suitably configured computer products are essential to Company’s performance under the Agreement. Company shall not be liable for any deficiency in its performance if such deficiency results from Client’s failure to provide full cooperation. Client agrees that it is responsible for providing and maintaining its own Internet access and all necessary telecommunications equipment, software and other materials at its own location necessary for its use of the Deliverables. A list of compatible web browsers supported by Company in its provision of the Deliverables are available at https://support.glooko.com, as may be amended and updated by Company from time to time in its sole discretion.

8. Security. Company maintains commercially reasonable security measures to prevent unauthorized access to all data, computer hardware and other equipment and/or software used by Company to provide the Deliverables under which Company documents, implements and maintains the physical, administrative, and technical safeguards necessary to: (a) comply with applicable law; and (b) protect the confidentiality, integrity, and availability, of all data and information controlled by it. Company shall maintain written security management policies and procedures to identify, prevent, detect, contain, and correct violations of measures taken to protect the confidentiality, integrity, and availability, of all data and information controlled by it. Client shall be solely responsible for the security of Client’s own internal information technology and physical office space operating environments. Client shall immediately notify Company of any other breach of security in its use of the Deliverables or in its own systems and environments.

9. Privacy Program. Company has implemented and maintains a privacy program that complies with all applicable laws. Company complies with its privacy notices and policies that relate to the use, collection, transfer, processing, access, protection, storage, or destruction of any type of personal data collected by it. Company’s Privacy Notice is available at https://www.glooko.com/privacy, as may be amended and updated by Company from time to time in its sole discretion.

10. Business Continuity and Disaster Recovery Plan. Company maintains an adequate business continuity and disaster recovery plan in place that minimizes the impact of disruptions to its critical business processes, provides coordinated responses to potential or actual disruptions, and coordinates restoration activities once a disruption has ended. The business continuity plans shall address critical business processes, products and services that address loss of facilities, people, equipment and third-party providers supporting any critical services. Company shall restore the production capability of critical information technology infrastructure (including but not limited to data centers, hardware, software and power systems) and critical voice, data and e-commerce communications links no later than 24 hours after the point of failure (the “Recovery Time Objective”). The maximum amount of data lost after a failure event, defined by the maximum amount of time between such a failure event and a complete database update, shall be no more than eight (8) hours (the “Recovery Point Objective”). Company shall assess and update its business continuity plan on an annual basis. Such assessment and update shall consider the nature and extent of the services then being performed by Company in light of current business and technology risk. Plans shall provide for remediation within timeframes reasonably commensurate with the level of risk posed by the deficiency. Upon experiencing a business disruption, Company shall notify Client as soon as is practical following any material disruption in service that implicates its business continuity plan or the declaration of a disaster.

11. Modifications. Company may from time to time develop enhancements, updates, improvements, modifications, extensions and other changes to the Deliverables (“Modifications”). Company has the right to implement such Modifications in its sole discretion at any time provided that such Modifications do not have a material adverse effect on the functionality or performance of the Deliverables.

12. Functionality. The functionality, operation and scope of all of the Deliverables shall conform to the then current Company-issued documentation respecting each Deliverable.

13. Feedback. Client, from time to time, may submit comments, information, questions, data, ideas, description of processes, or other information provided to Company in its use of the Deliverables (“Feedback”). For any and all Feedback, Client grants to Company a non-exclusive, worldwide, perpetual, irrevocable license to use, exploit, reproduce, incorporate, distribute, disclose, and sublicense any Feedback in its products and services. Client represents that it holds all intellectual or proprietary rights necessary to grant to Company such license, and that the Feedback will not violate the personal, proprietary or intellectual property rights of any third party.

14. No Practice of Medicine. Client acknowledges and agrees that Company is not engaged in the practice of medicine and that Company does not provide medical advice, diagnoses or treatments through the provision of the any of the Deliverables to Client under the Agreement.

15. Compliance with Laws. Each party shall comply with all applicable laws and government regulations in its performance under the Agreement.

16. Publicity Rights. 1. In the event Client purchases white labeling of the Deliverables or any brand attribution or linking within the Deliverables, Client grants Company a limited, nonexclusive, non-transferrable, royalty free right to display its name, logo and trademarks in such Deliverables during the Term, in the manner expressly agreed to between the parties.

17. Confidentiality. Except as expressly permitted in this Section, neither party will, without the prior written consent of the other party, disclose any Confidential Information of the other party to any third party. Information will be considered Confidential Information of a party if either (i) it is disclosed by a party to the other party in tangible form and is conspicuously marked “Confidential”, “Proprietary” or the like; (ii) it is disclosed by a party to the other party in non-tangible form and is identified as confidential at the time of disclosure; (iii) it is disclosed under circumstances in which a reasonable person would consider the information confidential or proprietary; (iv) its proprietary nature is apparent from the context, contents, or nature of the information disclosed; or (v) it contains the disclosing party’s customer lists, customer information, technical information, pricing information, pricing methodologies, or information regarding the disclosing party’s business planning or business operations. In addition, notwithstanding anything in the Agreement to the contrary, the terms of the Agreement will be deemed Confidential Information of Company. Other than the terms and conditions of the Agreement, information will not be deemed Confidential Information hereunder if such information: (i) is known to the receiving party prior to receipt from the disclosing party directly or indirectly from a source other than one having an obligation of confidentiality to the disclosing party; (ii) becomes known (independently of disclosure by the disclosing party) to the receiving party directly or indirectly from a source other than one having an obligation of confidentiality to the disclosing party; (iii) becomes publicly known or otherwise ceases to be secret or confidential, except through a breach of the Agreement by the receiving party; or (iv) is independently developed by the receiving party without the use of the disclosing party’s Confidential Information. Each party will secure and protect the Confidential Information of the other party (including, without limitation, the terms of the Agreement) in a manner consistent with the steps taken to protect its own trade secrets and confidential information, but not less than a reasonable degree of care. Each party may disclose the other party’s Confidential Information where (i) the disclosure is required by applicable law or regulation or by an order of a court or other governmental body having jurisdiction after giving reasonable notice to the other party with adequate time for such other party to seek a protective order; (ii) if in the opinion of counsel for such party, disclosure is advisable under any applicable securities laws regarding public disclosure of business information; or (iii) the disclosure is reasonably necessary and is to that party or its affiliates’, employees, officers, directors, attorneys, accountants and other advisors, or the disclosure is otherwise necessary for a party to exercise its rights and perform its obligations under the Agreement, so long as in all cases the disclosure is no broader than necessary and the person or entity who receives the disclosure agrees prior to receiving the disclosure to keep the information confidential. Each party is responsible for ensuring that any Confidential Information of the other party that the first party discloses pursuant to this Section (other than disclosures pursuant to clauses (i) and (ii) above that cannot be kept confidential by the first party) is kept confidential by the person receiving the disclosure. The parties agree that each party shall remain the exclusive owner of its own respective Confidential Information disclosed hereunder and all patent, copyright, trade secret, trademark and other intellectual property rights therein. Each party shall, upon the request of the other party, return all tangible or intangible manifestations of Confidential Information received pursuant to the Agreement (and all copies and reproductions thereof), provided the other party may retain one copy in a secure location for the purpose of evidencing compliance with the Agreement.

18. Indemnity. Client shall defend, indemnify and hold harmless Company, its subsidiaries, affiliates, officers, directors, agents, employees and assigns, from and against any and all claims, suits, proceedings, losses, damages, liabilities, costs and expenses (including, without limitation, reasonable attorneys’ fees) (collectively, “Losses”) suffered or incurred by them in connection with a third party claim arising out of: (i) Client’s breach of the Agreement; (ii) Client’s use of the Deliverables; or (iii) Client’s failure to comply with laws, rules, regulations or professional standards. Company shall defend, indemnify and hold harmless Client, its subsidiaries, affiliates, officers, directors, agents, employees and assigns, from and against any and all Losses suffered or incurred by them in connection with a third party claim arising out of: (i) breach of the Agreement, (ii) its gross negligence or willful misconduct; (iii) Company’s breach of or failure to comply with laws, rules, regulations or professional standards.

19. Mechanics of Indemnity. The indemnifying party’s obligations are conditioned upon the indemnified party: (i) giving the indemnifying party prompt written notice of any claim, action, suit or proceeding for which the indemnified party is seeking indemnity; (ii) granting control of the defense and settlement to the indemnifying party; and (iii) reasonably cooperating with the indemnifying party at the indemnifying party’s expense.

20. LIMITATION OF LIABILITY. NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED IN THE AGREEMENT, COMPANY AND ITS SHAREHOLDERS, AFFILIATES, DIRECTORS, MANAGERS, EMPLOYEES OR OTHER REPRESENTATIVES SHALL NOT BE LIABLE TO CLIENT, AUTHORIZED USERS OR ANY THIRD PARTY FOR ANY INDIRECT, INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES (INCLUDING ATTORNEYS’ FEES OR LOST PROFITS) THAT RESULT FROM OR ARE RELATED TO THE AGREEMENT, INCLUDING BUT NOT LIMITED TO, PERSONAL INJURY, PAIN AND SUFFERING, EMOTIONAL DISTRESS, LOSS OF REVENUE, LOSS OF PROFITS, LOSS OF BUSINESS OR ANTICIPATED SAVINGS, LOSS OF USE, LOSS OF GOODWILL, LOSS OF DATA, DELAY OR INTERRUPTION IN OPERATION OR TRANSMISSION COMMUNICATION FAILURE, LOSS OF CONNECTIVITY, NETWORK OR SYSTEM OUTAGE INTERRUPTION, UNAVAILABILITY OF OR OPERATION IN COMBINATION WITH A THIRD PARTY NETWORK OR SYSTEM AND WHETHER CAUSED BY TORT (INCLUDING NEGLIGENCE), BREACH OF CONTRACT OR OTHERWISE, EVEN IF FORESEEABLE, EVEN IF COMPANY HAS BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGES. IN ANY EVENT, COMPANY’S AGGREGATE LIABILITY TO CLIENT FOR DAMAGES, COSTS, AND EXPENSES SHALL NOT EXCEED THE AMOUNTS RECEIVED BY COMPANY FROM CLIENT IN THE TWELVE MONTHS PRECEDING THE EVENT GIVING RISE TO SUCH DAMAGES. The provisions of this Section allocate the risks under the Agreement between Company and Client. The parties agree that the limitations of liability set forth in this Section shall survive and continue in full force and effect despite any failure of consideration or of an exclusive remedy. The parties acknowledge that the fees have been set and the Agreement entered into in reliance upon these limitations of liability and that all such limitations form an essential basis of the bargain between the parties.

21. Relationship of the Parties. The parties are independent contractors. The Agreement does not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between the parties. Each party will be solely responsible for payment of all compensation owed to its employees, as well as all employment-related taxes.

22. Waiver. The waiver by either party of a breach of any provision of the Agreement will not operate or be interpreted as a waiver of any other or subsequent breach.

23. Severability. If any provision of the Agreement is held to be invalid or unenforceable for any reason, it shall be deemed omitted and the remaining provisions will continue in full force without being impaired or invalidated in any way. The parties agree to replace any invalid provision with a valid provision that most closely approximates the intent and economic effect of the invalid provision.

24. Company Contracting Entity. References to “Company” are references to the applicable contracting entity specified in the table below in this Section (the “Table”). The Deliverables are provided by that contracting entity. In the Table, “Client Location” refers to where the Client is located (according to applicable Order Form, if any) and determines which row of the Table applies to such Client.

Table

Client Location

Company

Governing Law and Arbitration Body

Insurance

United States and Canada

Glooko, Inc., a Delaware corporation, located at 411 High Street, Palo Alto, CA, 94301

California; Judicial Arbitration and Mediation Services, Inc.

a) Umbrella Liability insurance with limits of not less than $1,000,000 each accident;
b) Workers Compensation and Employers Liability insurance meeting minimum statutory requirements;
c) Commercial General Liability insurance with limits of not less as follows:
(1) $1,000,000 Each Occurrence;
(2) $2,000,000 General Aggregate;
d) $1,000,000 Personal & Advertising Injury;
e) $1,000,000 Damage to Premises Rented;
f) Medical & Biotechnology Products Liability
insurance with limits of not less than $10,000,000 each occurrence and $10,000,000 general aggregate;
g) Errors & Omissions / Cyber Liability with limits of not less than $10,000,000 each occurrence and $10,000,000 general aggregate; and
h) Automobile Liability insurance with limits of not less than $1,000,000 each accident.

Company’s insurance shall be underwritten by an insurance company, which holds an A- or better rating from A.M. Best.

Anywhere outside the United States and Canada

Glooko AB, a company registered in Sweden under company registration number 556668-4675, located at Nellickevägen 20, 412 63 Gothenburg, Sweden

Sweden; Arbitration Institute of the Stockholm Chamber of Commerce.

Company has reasonable and appropriate insurance coverages which it shall maintain throughout the Term.

25. Sponsored Accounts. If Client’s use of the Deliverables is sponsored or provided by a third party (a “Sponsored Account”), except as otherwise may be prohibited, all data, and derivatives thereof, and related information, including, but not limited to, information about devices, systems, related software, services, or peripherals generated by and associated with Client’s use of the Sponsored Account may be shared with such third party. Should a Sponsored Account be cancelled or terminated, Client may contract directly with Company for use of the Deliverables subject to Company’s then-current fees.

26. Notices. All notices, approvals or waivers required to be given under the terms of the Agreement (other than routine operational communications), shall be in writing, and if to Client shall be sent to the Client’s address that appears on an applicable Order Form, and if sent to Glooko, Inc, shall be sent to: Glooko, Inc., 411 High St., Palo Alto, CA 94301, Attn: Legal Department, and if to Glooko AB, shall be sent to: Glooko AB, Nellickevägen 20, 412 63 Gothenburg, Sweden, Attn: Legal Department. All notices, approvals or waivers shall be sent via one of the following methods and shall be deemed to have been received: (i) on the day given delivered by hand (securing a receipt evidencing such delivery); or (ii) on the second day after such notice is sent by a nationally recognized overnight or two (2) day air courier service, full delivery cost paid; or (iii) on the fifth day after such notice was mailed, registered mail, prepaid, return receipt requested.

27. Dispute Resolution. The United Nations Convention on Contracts for the International Sale of Goods shall not apply to the Agreement. Any contract dispute or claim arising out of, or in connection with, the Agreement shall be finally settled by binding arbitration in the applicable jurisdiction appearing in Section 24. Judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction. The parties agree that, any provision of applicable law notwithstanding, they will not request, and the arbitrator shall have no authority to award punitive or exemplary damages against any party. In the event that any arbitration, action or proceeding is brought in connection with the Agreement, the prevailing party shall be entitled to recover its costs and reasonable attorneys’ fees. Notwithstanding the foregoing, nothing herein shall preclude either party from seeking injunctive relief in any state or federal court of competent jurisdiction without first complying with the arbitration provisions of this Section.

28. Survival. Company and Client’s respective obligations hereunder which by their nature would continue beyond the termination or expiration of the Agreement shall survive.

29. Assignment. The Agreement shall be binding upon the parties’ respective successors and permitted assigns. Neither party may assign any of its rights or obligations under the Agreement without the prior written consent of the other party, except that Company may assign its rights and obligations without consent to a successor or a party which has purchased all or substantially all of its relevant assets or business.

30. Force Majeure. Neither party will be liable to the other for failure to meet its obligations under the Agreement where such failure is caused by events beyond its reasonable control such as fire, failure of communications networks, riots, civil disturbances, embargos, storms, acts of terrorism, pestilence, war, floods, tsunamis, earthquakes or other acts of God.

31. Updates Company may modify all or any parts of the Agreement, for example, to reflect changes to the law or changes to Company’s Deliverables, in its sole discretion from time to time. Client should look at the Agreement regularly. By continuing to use or access the Deliverables after any revisions are in effect, Client agrees to be bound by the revised Agreement and related terms respecting the Deliverables.

32. Data Processing Agreement and Glooko Standard Contractual Clauses. This Master Agreement incorporates the Glooko Standard Contractual Clauses (the “Clauses”) found here: https://glooko.com/dataprocessingagreement/ provided that (i) Glooko AB is processing personal data on behalf of the Client, and (ii) there is no individually negotiated and signed data processing agreement in place between the Client and Glooko AB.

33. Business Associate Agreement This Master Agreement incorporates Company’s Business Associate Agreement found here: https://glooko.com/businessassociateagreement/ when Glooko, Inc. is processing protected health information on behalf of a Client who is a Covered entity under the Health Insurance Portability and Accountability Act, and there is no other Business Associate Agreement in place between the Client and Glooko, Inc.

34. Entire Agreement. The Agreement, including all additional policies and documentation appearing herein via website hyperlinks, and any subsequent document duly executed by both parties which terms is expressly incorporated by reference into the Agreement, constitutes the entire agreement between the parties. The Agreement supersedes all prior and contemporaneous agreements, understandings, negotiations and discussions, whether oral or written, and there are no warranties, representations and/or agreements among the parties in conjunction with the subject matter hereof except as set forth in the Agreement.

II. SOFTWARE TERMS AND CONDITIONS

1. License Grant. Company hereby grants to Client a non-transferable, non-exclusive, revocable, limited, right and license during the Term of the Agreement, to allow its Authorized Users (as defined below) to access and use, over public and private networks, the Company provided software modules purchased by Client (the “Software”) in an applicable Order Form, strictly for the internal business purposes of its medical practice. Company owns and retains all right, title and interest in and to the Software. The Software is provided to Client for use only as expressly set forth in the Agreement, and Client will not use the Software in whole or in part for any other use or purpose whatsoever.

2. Documentation. Company grants Client a non-exclusive, non-transferable, limited, revocable, internal right and license to Client to access and use the Company’s user manuals, videos, web training, checklists, and all other product documentation and instructions made available to Client relating to its use of the Software (collectively, the “Documentation”). Client may make and distribute copies of the Documentation for use by Authorized Users in connection with use of the Deliverables in accordance with the Agreement, but no more than the amount reasonably necessary. Any permitted copy of the Documentation must contain the same copyright and other proprietary notices that appear in the Documentation.

3. Permitted Medical Use. Client agrees that only appropriately licensed medical professionals that participate in Client’s medical practice (each, a “Physician”) shall assess, diagnose, and recommend treatment for each person seeking health care and who has a patient-physician relationship with a Physician in accordance with the applicable requirements of laws, regulations, state law and licensure boards (each, a “Patient”). Client shall take all actions required to ensure that its use of the Software is in compliance with all applicable laws, rules, regulations and professional standards. Neither party shall interfere with, control, or otherwise influence the physician-patient relationship established between a Physician and a Patient. COMPANY SHALL HAVE NO OBLIGATION, RESPONSIBILITY OR LIABILITY FOR ANY PHYSICIAN’S PROVISION OF PROFESSIONAL SERVICES.

4. Authorized Users. Client shall permit authorized users for whom it has purchased access for in an Order Form to access and use the features and functions of the Software it has purchased in the Agreement (each, an “Authorized User”). Authorized User’s may be any of Client’s employed Physicians, Patient, or any provider of medical or health services, including, but not limited to a diabetes educator, a physician assistant, nurse, physical therapist, psychotherapist, or any third-party contractor employed, paid or retained by Client whom it permits to access and use the Software on its behalf. Client shall be solely responsible for verifying the identity and authenticity of all if its Authorized Users. For any of Client’s third party Authorized Users, it shall ensure that such third parties are expressly bound by written agreement no less protective of Company than the terms herein before permitting such third parties to access and use the Software. Client shall take all reasonable precautions to ensure that the Software is utilized by its Authorized Users in a manner consistent with applicable ethical and legal requirements. Each Authorized User shall create a unique user identification and login credential for it to access and use the Software (the “User ID”). User IDs shall not be shared or used by more than one Authorized User at a time. Client is solely responsible for ensuring its Authorized Users maintain the confidentiality of log-in accounts and passwords, and credentials. Company shall not be liable for any activities undertaken by anyone using any Authorized User’s log-in accounts, passwords or credentials. Client shall immediately notify Company of any non-permitted use, or any unauthorized use of the log-in accounts, passwords or credentials known to Client.

5. Patient Use. Patients can subscribe to use the Software directly and upload certain data from devices used to monitor and manage their diabetes that are compatible with the Software (“Approved Devices”). In their use of the Software, the Patient has control of their personally identifiable information, personal data, and personal health information that they upload into the Software, including information from any Approved Device used to monitor glucose levels or any other device or data source (the “Patient Data”). Patient shall have the ability to control which third parties they give their Patient Data access to.

6. Restrictions. Client shall not, and shall not permit or enable any third party to:

(i) copy, modify, decompile, disable, impair, destroy, disassemble, reverse engineer or attempt to reconstruct, identify or discover any source code, underlying ideas, underlying user interface techniques or algorithms of the Software by any means, or disclose any of the foregoing;

(ii) except as expressly set forth in the Agreement, provide, host, rent, lease, lend, or use the Software for timesharing, subscription, or similar purposes;

(iii) sublicense, resell, transfer or assign the Software or any of the rights or licenses granted under the Agreement;

(iv) use any data mining or similar data gathering and extraction methods in connection with the Software;

(v) use the Software for research purposes (including but not limited to clinical research), unless entered into an Order Form specifically allowing such use;

(vi) use the Software for storage, possession, or transmission of any information, the possession, creation or transmission of which violates any applicable law, including without limitation, those laws regarding stolen materials, obscene materials or child pornography;

(vii) upload or share any content that is unlawful, harmful, threatening, abusive, tortious, defamatory, libelous, vulgar, lewd, profane, invasive of another’s privacy, or hateful;

(viii) upload, transmit, store, or make available any content or code that contains any viruses, malicious code, malware, or any components designed to harm or limit the functionality of the Software;

(ix) transmit content over the Software that infringes upon or misappropriates the Intellectual Property Rights or privacy rights of any third party (“Intellectual Property Rights” means copyright, moral rights, trademark, trade dress, patent, trade secret, unfair competition, right of privacy, right of publicity, and any other proprietary rights);

(x) enable or allow others to use the services or Software using its account information;

(xi) access or attempt to access the services or Software by any means other than the interface Company provides or authorizes; or

(xii) circumvent any access or use restrictions put into place to prevent certain uses of the Software.

7. Not for Emergency Use. Client understands the Software is intended to assist it in streamlining its operations of a medical practice and that the Software is not designed for use in any medical emergencies. Client shall inform its Patients that the Service is not designed for emergency use.

8. No Patient Referrals. Nothing in the Agreement shall be construed as an offer for payment by one party to the other party or any affiliate of the other party of any cash or other remuneration, whether directly or indirectly, overtly or covertly, for any Patient referrals or for recommending or for arranging, purchasing, leasing or ordering any item or service.

9. Restrictions on Sharing Data. Client shall not: (i) publicly share or publish reports or analysis that enable comparison of Approved Devices; or (ii) commercialize any product offerings utilizing the Patient Data and/or any non-public data respecting the Approved Devices (or any data contained therein). Client shall only use the Software for Patients from whom it has obtained sufficient consent, when legally required. During the Term, Client may request written permission for any use of data other than contemplated herein. Company shall review such requests on a case-by-case basis, and either approve or deny requests in its sole discretion.

10. Third Party Links. Company may place links, icons or displays within the Software. The inclusion of a link does not imply endorsement of the linked site by Company. Company does not take responsibility for the content or information contained on those other sites and does not exert any editorial or other control over those other sites. Company does not take responsibility for the privacy policies and practices of these third-party links. Company disclaims any warranty or liability for damage or loss resulting from Client’s use of any non-Company content or resources, including any external hyperlinks, advertisements, promotions, referrals, websites, or any other external resources which are found on or made available through the Software. Company disclaims any warranties or liability for the quality, accuracy, currency, reliability, availability, or legality of such non-Company content.

11. IP Infringement Indemnity. 1. Company shall defend, indemnify and hold harmless Client, its subsidiaries, affiliates, officers, directors, agents, employees and assigns, from and against any and all Losses suffered or incurred by them in connection with a third-party claim arising out of any actual or threatened claim that the Software infringes upon or 1misappropriates any copyright, patent, trademark, trade secret, or other proprietary or other rights of any third party. Company shall have no obligation to indemnify Client to the extent the alleged infringement arises out of (i) the use of the Software in combination with other data products, processes or materials not provided by Company and such infringement would not have occurred but for Client’s combination; or (ii) any Client content. Should the Software as used by Client become, or in Company’s opinion be likely to become, the subject of an infringement claim, Company shall at its option and sole expense either: (i) procure for Client the right to continue to use the Software as contemplated hereunder, or (ii) modify the Software to eliminate any such claim that might result from its use hereunder or (iii) replace the Software with an equally suitable, compatible and functionally equivalent non-infringing Software at no additional charge to Client. If none of these options is reasonably available to Company, then the Agreement may be terminated at the option of either party hereto without further obligation or liability on the part of either party hereto except that Company agrees to promptly refund to Client the pro-rata portion of any unused fees prepaid by Client.

12. Limitation. Company assumes no liability, and shall have no liability, for any infringement claim based on (i) Client’s access to and/or use of the Software following notice of an infringement claim; (ii) any modification of the Software by Client or at its direction; (iii) Client’s combination of the Software with third party programs, services, data, hardware, or other materials; or (iv) any trademark or copyright infringement involving any marking or branding not applied by Company or involving any marking or branding applied at Client’s request.

13. Open Source Software. 1. Certain items of Software may be provided to Client subject to “open source” or “free software” licenses (“Open Source Software”). Some of the Open Source Software is owned by third parties. The Open Source Software is not subject to the terms and conditions of the Agreement. Instead, each item of Open Source Software is licensed under the terms of the end-user license that accompanies such Open Source Software. Nothing in the Agreement limits Client’s rights under, or grants Client rights that supersede, the terms and conditions of any applicable end user license for the Open Source Software. If required by any license for particular Open Source Software, Company makes such Open Source Software, and Company’s modifications to that Open Source Software, available by written request at the notice address specified on the Order Form.

14. License to Analytical Data. Client agrees that Company will have the non-exclusive right to collect and use anonymized, de-identified and aggregated data, and derivatives thereof, and related information, including, but not limited to, information about devices, systems, related software, services, or peripherals generated by and associated with Client’s use of the Software (“Analytical Data”). Analytical Data may be used for purposes of facilitating the provision of product development, improvement, software updates, license authentication, support, reporting, analytics and other business purposes.

15. Export Control. Client agrees and warrants that it may and will not use or otherwise export or re-export the Deliverables except as authorized by United States law and the laws of the jurisdiction(s) in which the Deliverables was obtained. In particular, but without limitation, the Deliverables may not be exported or re-exported (a) into any U.S. embargoed countries or (b) to anyone on the U.S. Treasury Department’s list of Specially Designated Nationals or the U.S. Department of Commerce Denied Person’s List or Entity List or any other restricted party lists. By using any Deliverable, the Client represent and warrant that their Authorized Users are not located in any such country or on any such list. The Client also agree to not use the Deliverables for any purposes prohibited by United States law, including, without limitation, the development, design, manufacture or production of missiles, nuclear, chemical or biological weapons.

16. Government End Users. The Software and related documentation are “Commercial Items”, as that term is defined at 48 C.F.R. §2.101, consisting of “Commercial Computer Software” and “Commercial Computer Software Documentation”, as such terms are used in 48 C.F.R. §12.212 or 48 C.F.R. §227.7202, as applicable. Consistent with 48 C.F.R. §12.212 or 48 C.F.R. §227.7202-1 through 227.7202-4, as applicable, the Commercial Computer Software and Commercial Computer Software Documentation are being licensed to U.S. Government end users (a) only as Commercial Items and (b) with only those rights as are granted to all other end users pursuant to the terms and conditions herein.

17. WARRANTY. COMPANY WARRANTS THAT THE SOFTWARE WILL MATERIALLY CONFORM TO ITS THEN CURRENT FUNCTIONALITY DESCRIPTIONS.

18. DISCLAIMER OF WARRANTIES. EXCEPT AS SET FORTH IN THE WARRANTY SECTION IMMEDIATELY ABOVE, COMPANY MAKES NO WARRANTIES REGARDING THE SOFTWARE, AND COMPANY HEREBY DISCLAIMS ALL WARRANTIES, EXPRESS AND IMPLIED, STATUTORY OR OTHERWISE WITH RESPECT TO THE SERVICES, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NONINFRINGEMENT, COMPATIBILITY, AND ANY WARRANTIES ARISING OUT OF ANY COURSE OF DEALING OR USAGE OF TRADE, AND ANY CONDITIONS OF QUALITY, AVAILABILITY, RELIABILITY, BUGS OR ERRORS. COMPANY DOES NOT WARRANT THAT ACCESS TO OR USE OF THE SOFTWARE WILL BE UNINTERRUPTED OR ERROR-FREE, THAT ALL DEFECTS AND ERRORS IN THE SOFTWARE WILL BE CORRECTED, OR THAT THE SOFTWARE WILL MEET ANY PARTICULAR CRITERIA OF PERFORMANCE OR QUALITY. COMPANY DOES NOT PROVIDE ANY WARRANTIES REGARDING THE ACCURACY OF DATA OR INFORMATION PROVIDED BY THIRD PARTIES. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES AND CONDITIONS, THEREFORE SOME OF THE ABOVE EXCLUSIONS MAY NOT APPLY IF CLIENT IS LOCATED IN SUCH A JURISDICTION.

III. PROFESSIONAL SERVICES TERMS AND CONDITIONS

1. Professional Services. In addition to the regular support services Client receives as a part of its Software purchase, Client may purchase additional training, consulting, data migration, conversion, integration, implementation or other services from Company to support its use of the Software (collectively, “Professional Services”), as specified in a subsequent statement of work agreement and agreed to by both parties. All Professional Services will be performed by individuals with levels of knowledge, skill and experience commensurate with the requirements of the Agreement, and will be performed in a timely, professional and workmanlike manner in accordance with generally accepted industry practices and standards.

IV. GLOOKO INC. HARDWARE TERMS AND CONDITIONS

1. Risk of Loss. The Hardware is purchased by the Client. The risk of loss for the Hardware passes to Client upon Company’s delivery of the Hardware to the third-party carrier for shipment to Client. Fees for shipping and handling, and any insurance for the Hardware while in transit to Client, are the express responsibility of Client.

2. Use of Hardware. The use of the Hardware is subject to the availability and the operational limitations of the requisite equipment and associated facilities. For Hardware that is dependent upon cellular reception such Hardware may not work or may work partially in certain areas where reception is low.

3. Limited Warranty. Company warrants to Client that from the date of purchase the Hardware shall be free from defects in material and workmanship for twelve (12) months. Company’s sole and exclusive liability, and Client’s sole and exclusive remedy under this limited warranty, shall be repair and/or replacement of the Hardware, as determined by Company in its sole discretion. Company shall be responsible for all shipping costs incurred in connection with returns or replacements under this Section. This limited warranty is personal to the Client. Any sale, rental or other transfer or use of products covered by this warranty to or by a person other than the original user shall cause this limited warranty to immediately terminate. This limited warranty is conditioned on Client: (i) promptly notifying Company of the defect; and (ii) complying with any Company instructions or requests regarding Company’s repair or replacement of the Company Hardware, when applicable. This limited warranty does not cover:

(i) Use of the Hardware outside of or in contradiction to the instructions provided by Company;

(ii) Defects or damage from improper installation, operation, testing, maintenance, adjustment, or service, repair or modification by Client or a third party;

(iii) Acts of God, accident, negligent use or misuse, abuse, cosmetic damage resulting from normal use, or any other cause other than ordinary use;

(iv) Improper storage or operating environment, excessive or inadequate heating or air conditioning, electrical power failures, surges, electrical or electromechanical stress, water damage or other irregularities;

(v) The use of the Hardware in conjunction with accessories, ancillary products, and peripheral equipment or unauthorized third-party software or software drivers;

(vi) Hardware which has been taken apart physically or which has had any of its software accessed in an unauthorized manner.

4. DISCLAIMER OF WARRANTIES. EXCEPT AS SET FORTH IN SECTION 3 DIRECTLY ABOVE, COMPANY MAKES NO OTHER WARRANTIES REGARDING THE HARDWARE, AND COMPANY HEREBY DISCLAIMS ALL WARRANTIES, EXPRESS AND IMPLIED, WITH RESPECT TO THE HARDWARE, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NONINFRINGEMENT, COMPATIBILITY OR SECURITY. COMPANY DOES NOT WARRANT THAT ACCESS TO OR USE OF THE HARDWARE WILL BE UNINTERRUPTED OR ERROR-FREE, THAT ALL DEFECTS AND ERRORS IN THE HARDWARE WILL BE CORRECTED, OR THAT THE HARDWARE WILL MEET ANY PARTICULAR CRITERIA OF PERFORMANCE OR QUALITY. COMPANY DOES NOT PROVIDE ANY WARRANTIES REGARDING THE ACCURACY OF DATA OR INFORMATION PROVIDED BY THIRD PARTIES. THE HARDWARE IS NOT DESIGNED, MANUFACTURED, DELIVERED OR INTENDED FOR ANY USE WHERE FAILURE COULD LEAD DIRECTLY TO DEATH, PERSONAL INJURY, OR SEVERE PHYSICAL OR ENVIRONMENTAL DAMAGE. CLIENT ASSUMES RESPONSIBILITY FOR THEIR SELECTION TO ACHIEVE ITS INTENDED RESULTS, AND FOR THEIR INSTALLATION, USE, AND RESULTS OBTAINED THEREFROM.

V. GLOOKO AB HARDWARE TERMS AND CONDITIONS

1. Retention of title. Company retains full legal right and title to and complete ownership of the Hardware notwithstanding the delivery to and possession and use of such Hardware by the Client hereunder. The Client is not permitted to resell, lease, rent, distribute, transport from its premises or in any other way make any parts of, or the entire Hardware, available to any third parties. Client shall at its own cost and at its own risk return any hardware upon termination of the Agreement or any applicable Order Form.

2. Use of Hardware. The use of the Hardware is subject to the availability and the operational limitations of the requisite equipment and associated facilities. For Hardware that is dependent upon cellular reception such Hardware may not work or may work partially in certain areas where reception is low.

3. Remedy in case of defect Hardware. In case of a Hardware being defect, Company’s sole and exclusive liability, and Client’s sole and exclusive remedy, shall be repair and/or replacement of the Hardware, as determined by Company in its sole discretion. Company shall be responsible for all shipping costs incurred in connection with returns or replacements under this Section. This remedy is personal to the Client. This remedy is conditioned on Client: (i) promptly notifying Company of the defect; and (ii) complying with any Company instructions or requests regarding Company’s repair or replacement of the Company Hardware, when applicable.
The right to remedy according to this Section does not cover:

(i) Use of the Hardware outside of or in contradiction to the instructions provided by Company;

(ii) Defects or damage from improper installation, operation, testing, maintenance, adjustment, or service, repair or modification by Client or a third-party;

(iii) Acts of God, accident, negligent use or misuse, abuse, cosmetic damage resulting from normal use, or any other cause other than ordinary use;

(iv) Improper storage or operating environment, excessive or inadequate heating or air conditioning, electrical power failures, surges, electrical or electromechanical stress, water damage or other irregularities;

(v) the use of the Hardware in conjunction with accessories, ancillary products, and peripheral equipment or unauthorized third-party software or software drivers; or

(vi) Hardware which has been taken apart physically or which has had any of its software accessed in an unauthorized manner.

4. DISCLAIMER OF WARRANTIES. EXCEPT AS SET FORTH IN SECTION 3 DIRECTLY ABOVE, COMPANY MAKES NO WARRANTIES REGARDING THE HARDWARE, AND COMPANY HEREBY DISCLAIMS ALL WARRANTIES, EXPRESS AND IMPLIED, WITH RESPECT TO THE HARDWARE, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NONINFRINGEMENT, COMPATIBILITY OR SECURITY. COMPANY DOES NOT WARRANT THAT ACCESS TO OR USE OF THE HARDWARE WILL BE UNINTERRUPTED OR ERROR-FREE, THAT ALL DEFECTS AND ERRORS IN THE HARDWARE WILL BE CORRECTED, OR THAT THE HARDWARE WILL MEET ANY PARTICULAR CRITERIA OF PERFORMANCE OR QUALITY. COMPANY DOES NOT PROVIDE ANY WARRANTIES REGARDING THE ACCURACY OF DATA OR INFORMATION PROVIDED BY THIRD PARTIES. THE HARDWARE IS NOT DESIGNED, MANUFACTURED, DELIVERED OR INTENDED FOR ANY USE WHERE FAILURE COULD LEAD DIRECTLY TO DEATH, PERSONAL INJURY, OR SEVERE PHYSICAL OR ENVIRONMENTAL DAMAGE. CLIENT ASSUMES RESPONSIBILITY FOR THEIR SELECTION TO ACHIEVE ITS INTENDED RESULTS, AND FOR THEIR INSTALLATION, USE, AND RESULTS OBTAINED THEREFROM.

VI. SUPPORT SERVICES TERMS AND CONDITIONS

1. Support Services. In support of its use of the Software purchased by it, Client shall receive technical support for product related questions in accordance with Company’s then-current technical support policies. Company’s support information is available at https://support.glooko.com/ , as may be amended and updated by Company from time to time in its sole discretion. It is recommended that Authorized Users complete any purchased training prior to their use of the Software. Upon Client’s request, Company may provide additional technical support at Company’s then-current hourly rates, subject to the execution of an additional Order Form. Company shall not be responsible for general support relating to Client’s use of software or hardware provided by any entity other than Company or its affiliates. Such exclusions shall include operating systems, PC hardware, office applications, web browsers, EMR software, Client-specific authentication mechanisms, Client’s network, or any other hardware or software that Company does not control.

2. Support Availability. Company provides technical support to Client’s Authorized Users having trouble with their account via email, phone, and SMS text message (the “Support” services). Many self-service resources are also available at https://support.glooko.com/. Company encourages all of Client’s Authorized Users to first visit this link when having any trouble using the Software.

3. Support Hours. Support is available from Monday to Friday, 8 am – 8 pm, Eastern Time (USA and Canada) and 8 am – 5 pm CET (outside USA and Canada). Support is unavailable during the weekend, during public bank holidays in the respective territories, and during all holidays observed by Company.

4. Support Duration. Company provides Support for the duration of the Term of the Agreement.

5. Support System. Company manages Support requests in its support ticket system.

6. Support Issue Classification, Escalation and Response Times: All Support issues are initially considered Priority 3 and then escalated as needed under the Issue Priority Definitions detailed below. Company’s response times for Support issues reported by Client are summarized below. When an issue is escalated, depending the nature and character of the issue being reported, it is sent to the internal personnel dedicated to addressing the issue based on its nature and character. Notwithstanding the foregoing, should an incident involve a potential data breach or breach of Company’s data security obligations, such issues are immediately escalated to Priority 0.

7. Support Issue Classifications:

Priority 0 – Code Red

  • Complete system outage, or outage in major system components which impacts ability to upload, view or share data either remotely or in clinic.
  • A security issue exists resulting in release (or threat to release) of Glooko users’ Personal Health Information (PHI) / Personally Identifiable Information (PII) to a public forum.
  • Mobile application is crashing repeatedly for 20 or more reporting users such that this set of users cannot use the application.

Priority 1 – Critical

  • Supported diabetes device data is being incorrectly received, parsed, interpreted or displayed from one or more devices.
  • A data integrity or availability issue is affecting the ability to view or update data for many to most users and customers.
  • Security vulnerability has been detected; possible or detected exposure of patient information.
  • API platform is down.

Priority 2 – Major

  • A data availability issue is affecting the ability to view or access one or more categories of data for one customer.
  • Identification of an opportunity to prevent exploitation of a security vulnerability.
  • Mobile applications are crashing repeatedly for less than 20 reporting users such that this set of users cannot use the application.
  • Part of the mobile application is not responding or not working.
  • Significant system performance is degraded.

Priority 3 – Minor

  • Minor, cosmetic issue.
  • Software issue that affects features but does not prevent normal operations.
  • Identification of an opportunity to improve data integrity or security that is not immediately time-critical.
  • Any other bug not classified as Code Red, Critical, or Major.

8. Targeted Issue Response Times

Service Level Categories

Priority 3 (minor)

Priority 2 (major)

Priority 1 (critical)

Priority 0 (code red)

Response Time (Acknowledge) and Priority Confirmation

16 business hours

8 business hours

6 hours*

6 hours*

Target Resolution (after Priority Confirmation) for Incidents in Production

To be considered for the roadmap

To be considered for the next major release

16 business hours

8 business hours

Response Time %

16 business hours

95% in 8 business hours

80% in 6 business hours

80% in 6 business hours

Corrective and Preventative Action Root Cause Analysis %

N/A

N/A

100 %**

100 %**

*Times applicable unless delaying successful incident resolution or problem investigation

**If deemed appropriate based on Company’s Quality Management System

9. Client Obligations

In order for Company to be able to resolve issues reported by Client in the response times appearing above, Client itself must undertake the below listed actions when reporting the issue to Company:

  • Validate and attempt to recreate the issue before reporting to Company;
  • Report the problem to Company within 1 day of it happening;
  • Provide any additional analysis requested by Company and reasonably cooperate with Company to identify, evaluate and resolve the issue.

10. Exclusions

Company will have no liability or any failure to meet the Targeted Issue Response Times above for issues arising from: (a) use of the Software by Client other than as authorized under the Agreement or documentation; (b) problems caused by client’s own data; (c) problems caused by Client or its Authorized User’s equipment; (d) problems caused by third party acts, or services and/or systems not provided by Company; or (e) general telecommunications problems or problems caused by other factors outside of Company’s reasonable control.

VII. SOFTWARE UPTIME

Availability. Company will make the Software Available continuously, as measured on a 24×7 basis an average of 99.9% of the time (the “Software Uptime”), excluding unavailability caused by Exceptions (as defined below). “Available” means the Software is available for access and use by Client in accordance with their full intended functionality according to its then-current documentation. For purposes of calculating Availability percentage, the following “Exceptions” described below to the Software Uptime shall not be considered time for which the Software is unavailable.

Exceptions. The below listed are all permitted Exceptions to the Software Uptime:

(i) “Emergency Maintenance Period” means the period of time elapsed during any maintenance performed on the Software, which maintenance is required as a result of conditions beyond Company’s reasonable control. Company will provide Client with at least thirty (30) minutes advance notice for emergency maintenance, when possible. Emergency maintenance may occur at any time, as Company deems necessary in its sole discretion.

(ii) “Scheduled Maintenance Period” means the period of time elapsed during any scheduled maintenance performed by Company on the Software. Company will provide Client with notice for scheduled maintenance which will affect access to the Software. Company will use commercially reasonable efforts to schedule maintenance during hours other than during regular business hours.

(iii) “Permitted Downtime” means the following:

  • Inoperability due to any scheduled or emergency maintenance (occurring during the Scheduled Maintenance Periods or Emergency Maintenance Periods);
  • Problems caused by telecommunications and/or Internet services;
  • Problems caused by software or hardware not provided or controlled by Company (such as the Amazon Web Hosting server environment where the Company software is stored and accessed, or a device manufacturer changing their specifications);
  • Problems due to Force Majeure events, as provided in the Agreement, and acts of war or nature;
  • Problems due to acts or omissions of Client, its agents, employees or contractors;
  • Problems due to defects in data provided by Client that Company could not have discovered through the exercise of reasonable diligence prior to the failure;
  • Problems due to Client’s failure to implement changes in equipment or software reasonably recommended by Company in writing as essential to maintaining service levels following a Client directed change in the operating environment;
  • Inoperability due to a Client driven increase in demand for system resources that has not allowed Company a reasonable time to accommodate;
  • Inoperability due to exceeding the maximum number of concurrent users specified within the Agreement or Order Form, as applicable; and
  • Problems due to operation under a disaster recovery plan.