Software Terms and Conditions

The below appearing terms (the “Terms”) supplement the master agreement entered into with Glooko, Inc., Glooko AB or Monarch Medical Technologies, LLC, as applicable (collectively, the “Company”), or any other agreement entered into with Company upon which the above hyperlink appears (each a “Master Agreement”). The Terms, as may be updated by Company from time to time, form an integral part of the Master Agreement and are expressly incorporated into and governed by such Master Agreement. Unless otherwise indicated below, capitalized terms used herein have the meanings ascribed to them in the Master Agreement. These Terms shall apply to Company’s provision of the services or deliverables described hereunder at all times.

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. When applicable, 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. 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. The 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.

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. 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 misappropriates 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. 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 grants Company a non-exclusive right to collect and use anonymized, de-identified and aggregated data, and derivatives thereof, and all 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. U.S. 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.

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

17. 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.