Terms of Service

1. DEFINITIONS

The terms in this Section 1 shall have the meanings under this Agreement as described below:

1.1 “Authorized User” means an individual who is authorized by you to access and use the Service within your organization. Authorized Users may include, for example, your employees, consultants, and contractors.

1.2 “Client Data” means any and all data that is: (1) provided by you directly to Metriport (whether through the Service or in connection with your business relationship with us); (2) processed by Metriport in connection with your Authorized Users’ use of the Service, and (3) accessed by you in connection with your interaction with the Service. Client Data does not, for clarity, include Usage Data or Feedback, each as defined in Section 4.

1.3 “Documentation” means any documentation made available by Metriport pertaining to the Service including, as applicable, any online user guides or technical information relating to the Service, in each case, as may be updated or amended by or on behalf of Metriport from time to time.

1.4 “Fees” means all fees, charges, and other amounts set forth in the Order for the Service.

1.5 “Order” means an order for access to the Service executed by the parties. Each Order, once executed, shall be incorporated into this Agreement. In the event of a conflict between terms, the terms of this Agreement shall govern unless the Order specifically references a particular section name and number within this Agreement with the express intent to modify the terms therein.

1.6 “Service” or “Service” means, as further described in an Order, Metriport’s medical or device-specific application programming interface and all proprietary software, products, services and updates related thereto that Metriport makes available pursuant to the terms of this Agreement and any Orders.

1.7 “Term” shall have the meaning set forth in Section 6.1.

2. OUR SERVICE

2.1 Grant of Access. On the condition you pay all Fees and otherwise comply with your obligations under this Agreement, and subject further to additional terms of Third-Party Products made available to you in connection with the Service, Metriport hereby grants to you a limited, revocable, non-exclusive, non-transferable (except as provided in Section 12.9), right to access and use the Service set forth under one or more Orders and related Documentation solely in connection with your internal business purposes. You may procure additional Services during the Term by entering additional Orders with Metriport. Other than as expressly granted in this Agreement, no other rights or licenses to Metriport Materials (defined below) are granted. If you do not comply with the terms of this Agreement, Metriport reserves the right to revoke, suspend, or limit your right to access to the Service. Any use of the Service that exceeds the rights expressly granted in this Agreement is strictly prohibited and constitutes a violation of this Agreement, which may result in the suspension or termination of your right to access and use the Service.

2.2 Modification. You agree that Metriport has the right to change, modify, add to, or discontinue any aspect or feature of the Service at any time without any obligation to give you advance notice of any changes; provided, however, Metriport will use commercially reasonable efforts to ensure it does not materially degrade or diminish the features or functionality of the Service. From time to time, Metriport may release upgrades, fixes, or new versions of the Service, although these upgrades may not be consistent across all platforms and devices.

2.3 Removal of Access. Metriport reserves the right to reasonably suspend or refuse access to the Service for any Authorized User in the event that: (1) you or your Authorized User breach or violate this Agreement or other incorporated agreements or guidelines; (2) Metriport discontinues the Service; (3) there is a technical or security issue or problem that requires temporary suspension; or (4) you or your Authorized User engage in fraudulent or illegal activities or a material breach of your obligations under the terms of this Agreement. You further agree that such measures may be taken in Metriport’s sole but reasonable discretion and without any liability to you or any third party.

2.4 Defects and Availability. Metriport uses commercially reasonable efforts to maintain the Service; however, Metriport is not responsible for any unanticipated defects or failures associated with the Service or any damages to you (either direct or indirect) that may result from any such defects or failures. Metriport is not obligated to provide you support for, and shall not be responsible or liable for, any errors in the Service or any damages resulting from your failure to use the Service in accordance with the Documentation. The Service may be inaccessible or inoperable for any reason including, without limitation: (1) equipment malfunctions; (2) periodic maintenance procedures or repairs which may be undertaken from time-to-time by Metriport or its third-party service providers; or (3) any other causes beyond Metriport’s reasonable control. You further understand that the Service is provided over the Internet, so the quality and availability of the Service may be affected by factors outside of Metriport’s control. The Service is not intended to be available 100% of the time and Metriport does not make any guarantees regarding the reliability or availability of the Service and will not be liable to you or any third party for damages or losses related to the Service being unavailable.

2.5 Free Trial. When you register for the Service, Metriport may provide you a limited, revocable, non-exclusive, non-transferable right to use the Service for a limited time for free or under a freemium model (“Free Trial Period”). The term for the Free Trial Period will begin on the date of your registration for the Service and will continue for a period set forth in the Order, unless extended by Metriport in its sole discretion or sooner terminated in accordance with the termination or suspension rights set forth in this Agreement. Upon completion of the Free Trial Period, you will be presented with the option to terminate your access to the Service or convert to one of the paid Service plans by providing payment information in addition to the information you provided to Metriport upon registration.

2.6 Third-Party Products. The Service may permit access to Third-Party Products. “Third-Party Products” means any products, content, services, information, websites, or other materials that are owned by third parties and are incorporated into or accessible through the Service. For purposes of this Agreement, such Third-Party Products are subject to their own terms and conditions presented to you for acceptance within the Service by website link or otherwise. If you do not agree to abide by the applicable terms for any such Third-Party Products, then you should not install, access, or use such Third-Party Products. You further acknowledge and agree that Metriport will not be responsible or liable, directly, or indirectly, and you hold Metriport harmless for any damage or loss caused by your use of or reliance upon any such Third-Party Products. For the avoidance of doubt, by agreeing to the terms of this Agreement, you also agree to the latest version of the terms for the specific Third-Party Products set forth under Exhibit A.

2.7 Ownership of Intellectual Property. As between you and Metriport, all images, trademarks, service marks, logos and icons displayed on the Service, or the Metriport website are the property of Metriport. All Metriport patents, copyrights, moral rights, trade secrets, trademarks, service marks, publicity rights, and other proprietary rights (collectively, “Intellectual Property Rights”) and all systems, databases, information, data, documents, materials, and works which provided, used, or made available in connection with the Service and Intellectual Property Rights therein and thereto (collectively, the “Metriport Materials”) shall be and remain at all times the property of Metriport and its third-party licensors. You are not acquiring any Intellectual Property Rights in or to the Metriport Materials other than a non-exclusive right to access and use the Service solely in accordance with the terms of this Agreement. The Metriport Materials may not be reproduced, recreated, sublicensed, modified, accessed, or used in any manner or disseminated or distributed to any other party in violation of this Agreement.

3. CLIENT RESPONSIBILITIES

3.1 Account Registration. When accessing the Service for the first time, you will be required to provide certain requested information during a registration process that will determine your access privileges. Once Metriport receives such information, you will be provided with an account and login information, including a username and password, that will allow you to access the Service as either a data provider, data purchaser, or both. As the Client account owner, you and your Authorized Users (who have been authorized by you to use the Service) are the only persons authorized to access and use your account. You and your Authorized Users are responsible for maintaining the confidentiality of your username and password and you are fully responsible for all activities that occur under your username and password by all Authorized Users. You agree that you will provide truthful and accurate information during the registration process. Metriport may refuse to grant you a particular username for any reason, including, without limitation, if Metriport has reason to believe that such username impersonates someone else, is protected by trademark or other proprietary rights, or is vulgar or otherwise offensive.

3.2 Unauthorized Use and Information Changes. You must immediately notify Metriport if your registration information changes, or you learn of or have reason to suspect any unauthorized use of your account or any other breach of security. You are responsible for any damages to Metriport or the Service resulting from unauthorized access to the Service from your account and Metriport will have no liability to you or any third party for damages or loss related to such unauthorized access or use.

3.3 Representations. You hereby represent and warrant that: (1) you have the legal capacity and authority to enter into and perform your obligations under this Agreement; (2) you will comply with the terms and conditions of this Agreement and any other agreement to which you are subject that is related to your use of the Service or any part thereof; (3) you have provided and will maintain accurate and complete information, including, without limitation, your legal name, email address, and any other information Metriport may reasonably require; and (4) your access to and use of the Service or any part thereof will not constitute a breach or violation of any other agreement, contract, terms of use or any law or regulation to which you are subject.

3.4 Restrictions. You may not, and you shall ensure your Authorized Users do not, directly or indirectly: (1) license, sublicense, sell, resell, transfer, assign, distribute, or otherwise commercially exploit or make available to any third party any portion of our Service in any way; (2) copy, modify, adapt, alter, translate, create derivative works, reverse engineer, decompile, disassemble, or otherwise attempt to learn the source code, communications protocol, structure, or ideas upon which the Service is based; (3) use the Service or any data, content, or information accessed through the Service to develop a competing service or product; (4) use any device, software, or routine intended to damage or otherwise interfere with the proper functioning of the Service, servers, data centers, or networks connected to the Service or take any other action that interferes with any other person’s use of the Service; (5) decrypt, transfer, create Internet links to the Service, or “frame” or “mirror” the Service on any other server or wireless or Internet-based device; (6) use or merge the Service or any component thereof with other software, databases, or services not provided or approved by Metriport; (7) circumvent or attempt to circumvent any electronic protection measures in place to regulate or control access to the Service, or remove, obscure, or alter any notices or indications of any Intellectual Property Rights, any trade names, trademarks, service marks, logos, trade dress, and any other distinctive or proprietary symbols, labels, designs, or designations, or any electronic notices; (8) use the Service for any fraudulent or otherwise unlawful purposes or in violation of this Agreement; (9) develop, distribute, or sell any software or other functionality capable of launching, being launched from, or otherwise integrated with the Service; (10) use any bot, spider, or other automatic or manual device or process for the purpose of harvesting or compiling information on the Service for any reason; (11) access or attempt to access any other authorized user’s account or use the Service in a way that prevents or inhibits another authorized user from enjoying the Service; (12) use any data, content, or information made available through the Service in any manner that misappropriates any trade secret or infringes any copyright, trademark, patent, rights of publicity, or other proprietary right of any party; (13) introduce into the Service any virus, rogue program, Trojan horse, worm or other malicious or intentionally destructive code, software routines, or equipment components designed to permit unauthorized access to or disable, erase, or otherwise harm the Service, or perform any such actions; (14) introduce into the Service any back door, time bomb, drop dead device, or other software routine designed to disable a computer program automatically with the passage of time or under the positive control of an unauthorized person; (15) delete, modify, hack, or attempt to change or alter the Service, any data, content, or information made available through the Service, or any notices on the Service; (16) connect to or access any Metriport computer system or network other than the Service; (17) impersonate any other person or entity to use or gain access to the Service; or (18) conduct or otherwise participate in any distributed denial-of-service attack or similar malicious attack intended or designed to artificially delay, disrupt or otherwise adversely affect the Service or any other Authorized User’s access to or use of the Service. Metriport reserves the right to fully investigate and prosecute violations of any of the above. Metriport may involve and cooperate with law enforcement authorities in prosecuting Authorized Users who violate this Agreement.

4. DATA RIGHTS, USES, AND LIMITATIONS

4.1 Client Data. As between Metriport and you, you will at all times retain ownership of Client Data. You hereby grant to Metriport a nonexclusive, worldwide, royalty-free, fully paid, transferable license to host, cache, record, copy, view, and display Client Data for the purpose of providing the Service to you and for internal use by Metriport (such as for the billing, activation, provision, maintenance, upgrades, updates, deactivation and/or use of the Service and/or related products and/or services). You shall have sole responsibility for the accuracy, quality, integrity, legality, reliability, appropriateness, and right to use such Client Data. Metriport does not guarantee the security or availability of Client Data and is not responsible for any loss of damage to Client Data. You acknowledge and agree that you bear sole responsibility for adequately controlling, processing, storing, and backing up Client Data. Metriport reserves the right, but not the obligation, to refuse to post or to remove any information or materials, in whole or in part, that Metriport believes to be unacceptable, undesirable, or in violation of this Agreement or the rights of third parties.

4.2 Client Data Representations. You represent, warrant, and covenant that you will not publish, post, upload, record, or otherwise distribute or transmit any Client Data or other material that: (1) infringes or would infringe any copyright, patent, trademark, trade secret or other Intellectual Property Rights or proprietary right of any party, or any rights of publicity or privacy of any party; (2) violates any law, statute, ordinance, or regulation; (3) is inappropriate, profane, defamatory, libelous, obscene, indecent, threatening, harassing, or otherwise unlawful; (4) is harmful to minors or otherwise pornographic; (5) is materially false, misleading, or inaccurate; and/or (6) contains information for which you not have the right to permit Metriport or third party data purchasers to access and process. You further represent and warrant that you have acquired all legally required consents, releases, and authorizations (freely given and fully informed) from all persons, as applicable, necessary to provide Client Data to Service. You will indemnify, defend, and hold Metriport harmless from and against any and all claims, allegation, investigations, administrative actions, private rights of action, and all damages, fines, fees, losses, penalties, and costs (including reasonable attorney and special witness fees) arising from or related to a claimed breach of state or federal data privacy or wiretapping laws caused by your failure to gain proper consent for the use of Client Data in connection with Metriport’s Service. The foregoing indemnification shall survive termination or expiration of this Agreement.

4.3 Privacy. You are responsible for compliance with all privacy laws and regulations applicable to your use of the Service, including the access, use and disclosure of Client Data, and providing any required privacy notice(s) or consent pop-up banners. You represent and warrant that you will only use the Service to access Client Data if you have a need to access such Client Data for Treatment purposes as defined by 45 CFR § 164.501 of the Health Insurance Portability and Accountability Act of 1996 (“HIPAA”). To the extent required by law and to the extent Metriport meets the definition of a Business Associate under HIPAA in providing the Service to you, you agree to these linked terms: https://docs.google.com/document/d/118dPTLvZ7Qya00rWvdkPlDl1KDlTAaJG/edit?usp=sharing&ouid=110132358193534913878&rtpof=true&sd=true

4.4 Usage Data and Aggregated Statistics. Metriport may generate de-identified data, statistics, and other performance or usage-related information (collectively, “Usage Data”) in the course of providing the Service to you, which may be derived from (but will not include) Client Data. You acknowledge and agree that, as between you and Metriport, all Usage Data is and shall be and remain the property of Metriport. Metriport may use, aggregate, and share Usage Data for the purposes of providing the Service, conducting research, preparing industry benchmarking reports, product development, and other commercial uses subject to applicable law. Metriport will ensure that Client and its Authorized Users cannot be identified through the Usage Data or any derivative thereof.

4.5 Feedback. Metriport welcomes comments, feedback, information, or materials regarding the Service or any of the other Metriport products or services (collectively, “Feedback”). By submitting Feedback to Metriport, you agree to assign, and hereby irrevocably assign to Metriport, all right, title, and interest, on a worldwide basis, in and to the Feedback and all copyrights, moral rights, and other Intellectual Property Rights embodied in such. Metriport will be free to use, copy, distribute, publish, and modify the Feedback on an unrestricted basis, without compensation to you.

5. FEES AND PAYMENT

5.1 Payment Terms. You agree to pay to Metriport all applicable Fees due for the Service in accordance with terms of this Agreement and the Order, with any applicable Taxes required. All payment obligations under this Agreement are non-cancelable and non-refundable. Any payments more than thirty (30) days past due will bear a late payment fee of 1.5% interest per month or the highest amount permitted by law, whichever is less. You agree to be responsible for payment for all activity by Authorized Users who access or use the Service through your account. You are responsible for your own costs and expenses related to using the Service such as charges for Internet access, third party software licenses, or other data transmission fees.

5.2 Taxes. Fees are exclusive of all invoice and bank processing fees, taxes, levies, or duties imposed by taxing authorities, and you are responsible for payment of all such fees, taxes, levies, or duties, excluding only United States income (federal or state) taxes imposed on Metriport, including by way of example and not limitation, import duties and fees, sales, use, transfer, excise, value-added, and gross receipts (“Taxes”). In the event you are required to withhold any portion of service fees due to payments to banks or taxing authorities, (1) you agree to do so and to indemnify Metriport for any liability resulting from your failure to make such withholdings, and (2) Metriport reserves the right to adjust the pricing of the Service so that you are responsible for payment to Metriport of the full amount for the Service, net of any such withholdings, so that the net amounts received by Metriport after such withholdings is equal to what was invoiced.

5.3 Payment method; Authorization. Until all amounts due have been paid in full, you agree to keep your payment information current and authorize Metriport to charge such payment method (including but not limited to credit card, debit card, wire transfer and/or automated clearing house) provided by you, all amounts due under this Agreement, including without limitation, usage beyond the amount specified in the applicable Order.

5.4 Invoicing. Except regarding the Free Trial Period or as otherwise specified in an Order, Metriport bills Clients in advance monthly or once a year for recurring annual plans. All amounts due shall be paid in US dollars. Metriport may invoice you electronically or by paper invoice. You must notify Metriport within thirty (30) days of the receipt of the invoice of any billing errors thereon. If you do not notify Metriport within this time, Metriport will not be required to correct the error and/or adjust your account and you hereby waive any claim, allegation, or contention with respect to such invoice. Metriport will not issue refunds for Fees paid for your Service account, even for periods of inactivity.

5.5 Rate Change. Metriport reserves the right to change the price of the Service upon notice to you. Such notice may be provided at any time by posting the changes to our website, to your account, or via email. Metriport will not be liable to you or to any third party for any modifications, price changes, or suspension or discontinuation of the Service.

6. TERM AND TERMINATION

6.1 Term. You will be bound for the entire Term of this Agreement. “Term” is defined as the period beginning on the Effective Date and continuing until terminated in writing by either party or when terminated in accordance with Section 6.2 below. Except as otherwise specified in any Order, at the end of any Term, subscriptions will automatically renew for additional Terms equal to the expiring Term length, unless either party gives the other party notice of non-renewal at least thirty (30) days before the end of the applicable Term.

6.2 Termination of Service. Either party may terminate this Agreement at any time, in whole or in part, for any reason, provided that if you terminate, you shall be obligated to pay any Fees accrued prior to the date of termination. You may terminate this Agreement by providing written notice of termination to the contact set forth in the Order. Upon termination of this Agreement, all rights and Services provided by Metriport to you in this Agreement shall cease immediately. Termination of this Agreement shall not limit Metriport from pursuing remedies available to Metriport, including but not limited to injunctive relief, for a failure to pay outstanding Fees or in connection with any other breach of this Agreement. Metriport may also permanently or temporarily terminate, suspend, or otherwise refuse to permit your use of the Service upon reasonable prior written notice without incurring liability as a result thereof, if in our sole determination, you violate, or are reasonably likely to violate, this Agreement, including without limitation, by your nonpayment of Fees.

7. CONFIDENTIAL INFORMATION; MUTUAL NON-DISCLOSURE

7.1 Each party to this Agreement may furnish the other party with certain non-public, proprietary information (the “Confidential Information”). For the purposes of this Agreement, Confidential Information is defined as:

1. Disclosed information that is marked or identified as “confidential” at the time of disclosure, or which constitutes the trade secrets of a party under the governing law of this Agreement.

2. The source code and object code of the Service, the pricing structure for the Service and Service provided to you, and any other proprietary information owned by Metriport, and which is provided or disclosed to you at any time.

3. Disclosed information relating to any unreleased products or service offerings

4. The terms and conditions of this Agreement; and

5. The Service.

7.2 Confidential Information shall not include information that:

1. is or becomes part of the public domain or is generally publicly known through no improper action by the receiving party subsequent to the time of the disclosing party’s communication thereof to the receiving party;

2. was rightfully in the receiving party’s possession or known by the receiving party prior to receipt from the disclosing party;

3. is rightfully disclosed without restriction to the receiving party by a third party without violation of any confidentiality covenant by such third party;

4. is independently developed by the receiving party without use of the Confidential Information of the disclosing party; or

5. its disclosure is required by court, regulation or government order and the disclosing party has been given notice of such order and the receiving party reasonably cooperates with the disclosing party in limiting such disclosure to the minimum required, unless a court has ordered that the disclosing party not be given notice.

7.3 Each party agrees to hold the other party’s Confidential Information in confidence and not to use it for any purpose other than the purposes permitted under this Agreement. Each party agrees to use the same standard of care to protect Confidential Information as it uses to protect its own similar confidential and proprietary information, but not less than a reasonable standard of care. Confidential Information of the other party may only be disclosed to those affiliates, employees, contractors, and advisors of you or of Metriport, as applicable, on a need-to-know basis and who agree to be bound by confidentiality restrictions at least as restrictive as those contained in this Agreement. Confidential Information remains at all times the property of the disclosing party. Unless otherwise explicitly set forth herein, no licenses or rights under any patent, copyright, trademark, or trade secret are granted or are to be implied with respect to Confidential Information.

8. NO WARRANTY; DISCLAIMER

8.1 General Disclaimer. METRIPORT MAKES NO WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING WITHOUT LIMITATION, MERCHANTABILITY, FITNESS FOR A PARTICULAR USE AND NON-INFRINGEMENT. THE SERVICE IS PROVIDED BY METRIPORT AND ITS LICENSORS “AS IS” AND “AS AVAILABLE.” YOU ASSUME ALL RISK FOR YOUR USE OF THE SERVICE. IN NO EVENT DOES METRIPORT GUARANTEE ANY RESULTS OR OUTCOMES BASED ON USE OF THE SERVICE OR OTHERWISE. METRIPORT DOES NOT WARRANT THAT THE SERVICE OR ANY PORTION THEREOF, IS ACCURATE, ERROR OR BUG FREE, THAT YOUR USE OF THE SERVICE WILL BE UNINTERRUPTED, OR THAT THE SERVICE’S OPERATION WILL NOT NEGATIVELY AFFECT OTHER SOFTWARE OR HARDWARE. THIS SECTION 8.1 APPLIES TO THE MAXIMUM EXTENT ALLOWED BY APPLICABLE LAW. THE SERVICE IS OFFERED BY METRIPORT FROM ITS FACILITIES IN THE UNITED STATES OF AMERICA. METRIPORT MAKES NO REPRESENTATIONS THAT THE SERVICE IS APPROPRIATE OR AVAILABLE FOR USE IN OTHER COUNTRIES. THOSE WHO ACCESS OR USE THE SERVICE FROM OTHER JURISDICTIONS DO SO AT THEIR OWN RISK AND ARE RESPONSIBLE FOR COMPLIANCE WITH ALL APPLICABLE LAWS, INCLUDING BUT NOT LIMITED LAWS RELATED TO THE COLLECTION OF DATA FROM YOUR WEBSITE’S VISITORS AND USERS.

8.2 Data Disclaimer. WE ARE NOT RESPONSIBLE FOR UNAUTHORIZED ACCESS TO YOUR CLIENT DATA, FACILITIES OR EQUIPMENT BY INDIVIDUALS OR ENTITIES USING THE SERVICES OR FOR UNAUTHORIZED ACCESS TO, ALTERATION, THEFT, CORRUPTION, LOSS OR DESTRUCTION OF YOUR CLIENT DATA FILES, PROGRAMS, PROCEDURES, OR INFORMATION THROUGH THE SERVICES, WHETHER BY ACCIDENT, FRAUDULENT MEANS OR DEVICES, OR ANY OTHER MEANS. YOU ARE SOLELY RESPONSIBLE FOR VALIDATING THE ACCURACY OF ALL OUTPUT AND REPORTS, AND FOR PROTECTING YOUR CLIENT DATA AND PROGRAMS FROM LOSS BY IMPLEMENTING APPROPRIATE SECURITY MEASURES, INCLUDING ROUTINE BACKUP PROCEDURES. YOU HEREBY WAIVE ANY DAMAGES OCCASIONED BY LOST OR CORRUPT DATA, INCORRECT REPORTS, OR INCORRECT DATA FILES RESULTING FROM PROGRAMMING ERROR, OPERATOR ERROR, EQUIPMENT OR SOFTWARE MALFUNCTION, SECURITY VIOLATIONS, OR THE USE OF THIRD-PARTY PRODUCTS. WE ARE NOT RESPONSIBLE FOR THE CONTENT OF ANY CLIENT DATA TRANSMITTED OR RECEIVED THROUGH OUR PROVISION OF THE SERVICES.

8.3 Medical Disclaimer. METRIPORT IS NOT ENGAGED IN RENDERING MEDICAL, CLINICAL, OR OTHER HEALTH-RELATED ADVICE. IF MEDICAL OR OTHER EXPERT ASSISTANCE IS REQUIRED, THE SERVICES OF A COMPETENT MEDICAL PROFESSIONAL SHOULD BE SOUGHT. CLIENT AND AUTHORIZED USERS ASSUME ALL RESPONSIBILITIES AND OBLIGATIONS WITH RESPECT TO ANY DECISIONS MADE OR ADVICE GIVEN AS A RESULT OF THE USE OF THE SERVICE AND FOR THE SELECTION OF THE SERVICE TO ACHIEVE CLIENT’S INTENDED RESULTS. YOU FURTHER AGREE THAT AS THE TREATING PHYSICIAN OR OTHER HEALTH CARE PROVIDER, YOU HAVE VERIFIED REQUISITION BENEFIT OR REQUISITION HISTORY INFORMATION WITH EACH PATIENT AND/OR THE PATIENT’S REPRESENTATIVES BEFORE SUCH INFORMATION IS RELIED UPON OR UTILIZED IN DIAGNOSING OR TREATING THE PATIENT. METRIPORT DOES NOT AND CANNOT INDEPENDENTLY VERIFY OR REVIEW THE INFORMATION TRANSMITTED THROUGH THE SERVICE FOR ACCURACY AND COMPLETENESS. THE SERVICE IS NOT INTENDED TO SERVE AS A REPLACEMENT FOR A WRITTEN REQUISITION WHERE NOT APPROVED AS SUCH BY THE APPROPRIATE GOVERNMENTAL AUTHORITIES OR WHERE SUCH WRITTEN REQUISITION IS REQUIRED FOR RECORD KEEPING PURPOSES, OR APPLICABLE REQUISITION DOCUMENTATION. USE OF THE SERVICE IS NOT A SUBSTITUTE FOR A HEALTHCARE PROVIDER’S STANDARD PRACTICE OR PROFESSIONAL JUDGMENT. ANY DECISION WITH REGARD TO THE APPROPRIATENESS OF TREATMENT, OR THE VALIDITY OR RELIABILITY OF INFORMATION, IS SOLELY YOUR RESPONSIBILITY. METRIPORT IS NOT RESPONSIBLE FOR DATA ERRORS WITHIN THE SERVICE, REGARDLESS OF THEIR SOURCE.

9. INDEMNIFICATION

9.1 Metriport Indemnification. Metriport shall defend you against any third-party claims that the Service infringes any patent, trademark, or copyright, and pay any costs and damages finally awarded by a court of competent jurisdiction or agreed upon in settlement with respect to such claims, provided Metriport is promptly notified of any and all threats, claims and proceedings related thereto and given reasonable assistance and sole control over defense and settlement. Metriport will not be responsible for any settlement it does not preapprove in writing. The foregoing obligations do not apply with respect to Client Data or portions or components of the Service which are: (1) not supplied by Metriport, (2) modified after delivery by Metriport, or (3) combined with other products, processes or materials where the alleged infringement relates to such combination. Additionally, Metriport shall have no obligation to indemnify you under this Section 9.1 where you continue any allegedly infringing activity after being notified thereof or after being informed of modifications that would have avoided the alleged infringement, or where your use of the Service is not strictly in accordance with this Agreement or with the Documentation.

9.2 Your Indemnification. You agree to defend, indemnify, and hold harmless each of Metriport, its affiliates and respective officers, employees, consultants, shareholders and representative from and against any and all claims, liabilities, damages, and/or costs (including attorneys’ and expert witness fees, costs and other expenses) arising out of or related to any actual or alleged claims involving or resulting from: (1) violation of this Agreement or applicable law, rule or regulation by you or any person accessing or using the Service by or through you; (2) infringement or misappropriation by you, or any person accessing or using the Service by or through you, of any intellectual property or privacy or other right of any person or entity (except claims of infringement or misappropriation arising solely from use of the Service as provided under this Agreement); (3) your Authorized Users, or arising out of or relating to your relationship with any of your Authorized Users; (4) Client Data for any reason; or (5) you or your Authorized Users’ breach of any applicable privacy or data protection law, rule or regulation. Metriport reserves the right, at its own expense and its sole discretion, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you.

10. LIMITATION OF LIABILITY

10.1 Limitation. IN NO EVENT WILL EITHER PARTY BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY OR PUNITIVE DAMAGES RELATED TO OR ARISING FROM THIS AGREEMENT, INCLUDING BUT NOT LIMITED TO, DAMAGES FOR LOST DATA, LOST PROFITS, OR COSTS OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, HOWEVER CAUSED UNDER ANY THEORY OF LIABILITY AND WHETHER OR NOT A PARTY WAS AWARE OR ADVISED OF THE POSSIBILITY OF SUCH DAMAGE. IN NO EVENT SHALL METRIPORT’S AGGREGATE LIABILITY UNDER THIS AGREEMENT EXCEED THE TOTAL AMOUNT PAID BY YOU TO METRIPORT FOR USE OF THE SERVICE DURING THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO SUCH LIABILITY. YOU ACKNOWLEDGE AND AGREE THAT METRIPORT WOULD NOT ENTER INTO THIS AGREEMENT UNLESS IT COULD RELY ON THE LIMITATIONS DESCRIBED IN THIS PARAGRAPH.

11. GOVERNING LAW, JURISDICTION AND DISPUTE RESOLUTION

11.1 Choice of Law. This Agreement and the rights of the parties hereunder will be governed by and construed in accordance with the laws of the State of Delaware, exclusive of conflict or choice of law rules. The parties agree that any controversy, claim or litigation arising out of or in connection with this Agreement shall be resolved in a federal or state court in County of San Francisco in the State of California, and consent to the jurisdiction of such court over the parties hereto and such controversy, claim or litigation. The parties acknowledge that this Agreement evidences a transaction involving interstate commerce.

11.2 Dispute Resolution. Before initiating any legal claim or action (except with respect to equitable relief or non-payment of fees due under this Agreement), the parties agree to refer any dispute, controversy or claim arising out of or related to this Agreement (collectively, a “Claim”) to members of the parties’ executive management (each such member a “Representative”) for resolution, which referral shall be evidenced by a written notice from either party to the other (the “Referral”). The parties’ representatives shall meet in person or via conference call within ten (10) business days of such Referral. If the parties have not reached a mutually agreeable resolution of the Claim within ten (10) business days after their initial meeting, or within an additional time period mutually agreed upon, then either party may request that such claim be submitted to a mediator agreed upon by the parties. The mediator shall assist in attempting to negotiate a resolution of the Claim. The mediation shall be non-binding unless the parties otherwise agree. Unless otherwise agreed by the mediator and parties, the mediation shall be held within twenty-one (21) days of the request for mediation. The parties must attend the mediation and act in good faith to genuinely attempt to resolve the Claim. Any information or documents disclosed by a party under this clause: (a) must be kept confidential; and (b) may only be used to attempt to resolve the Claim. Each party shall pay its own costs of complying with this Section 11.2 and shall equally share the cost of the mediator.

12. MISCELLANEOUS

12.1 Independent Contractors. You understand and expressly agree that you and Metriport are independent contractors and not agents or employees of the other party. Neither you nor Metriport has any right, power, or authority to act or create any obligation, express or implied, on behalf of the other party.

12.2 Notices. Any notice given under this Agreement shall be in writing and in the English language and shall be emailed to the Metriport contact set forth in the Order, or if to you, to the email or physical address associated with your account. You hereby consent to receiving any notices relevant to the Service or this Agreement by email without requiring a handwritten signature for such notice to be effective.

12.3 Force Majeure. Neither party shall be liable for failing or delaying performance of its obligations (except for the payment of money) resulting from any condition beyond its reasonable control, including but not limited to, governmental action, acts of terrorism, natural disasters, earthquake, fire, flood, or other acts of God, labor conditions, power failures, and Internet disturbances.

12.4 Consent to Do Business Electronically. You agree not to contest the authorization for, or validity or enforceability of, electronic records and electronic signatures, or the admissibility of copies thereof, under any applicable law.

12.5 Equitable Relief. You agree that your breach of the terms and responsibilities under this Agreement would cause irreparable harm and significant injury to Metriport which would be both difficult to ascertain and for which there is no adequate remedy at law and that Metriport shall be entitled, in addition to any other rights and remedies it may have, to injunctive relief (without the requirement of posting bond), specific performance and other equitable remedies to restrain any threatened, continuing, or further breach, or other equitable relief without prejudice to any other rights and remedies Metriport may have under this Agreement.

12.6 Entire Agreement. This Agreement constitutes the entire agreement between you and Metriport with respect to the subject matter hereof and supersedes all prior agreements, both oral and written. Metriport may update this Agreement at any time without notice to you. We may revise and update this Agreement from time-to-time in our sole discretion and will make the revised version available to you by posting the updated Agreement to the Service and presenting you with a blocker card, acceptance gate, or other clickthrough notification window that you will be required to accept to access the Service or continue using the Service. Failure to accept the revised version of the Agreement will prevent you from accessing the Service. Provided your account remains active and in good standing, you may attempt to login to the Service at a later time to accept the revised version of the Agreement in your discretion.

12.7 Waiver; Severability. Either party’s failure to enforce any provision of this Agreement will not be deemed to be a waiver of its right to enforce them. If any term or provision of this Agreement will be held to be invalid, illegal, or unenforceable, the remaining terms and provisions of this Agreement will remain in full force and effect, and such invalid, illegal, or unenforceable term or provision will be deemed not to be part of this Agreement.

12.8 Publicity. You hereby consent to inclusion of your name and trademarks or service marks in Metriport Client lists that may be published as part of Metriport’s marketing and promotional efforts. Metriport may identify you as a Client when referring to lists of its Clients.

12.9 Assignment. Neither you nor Metriport may make any assignment of this Agreement or any interest herein, by operation of law or otherwise, without the prior written consent of the other; provided, however, that either party may assign its rights and obligations under this Agreement without the consent of the other party in the event the assigning party effects a corporate reorganization, consolidation, merger, or transfer of all or substantially all of its properties or assets. This Agreement shall inure to the benefit of and be binding upon the parties, their respective successors, and permitted assigns.

12.10 Survival. The provisions of this Agreement shall survive the expiration or termination of this Agreement, including, without limitation, provisions governing ownership and use of intellectual property, representations, disclaimers, warranties, liability, indemnification, governing law, jurisdiction, venue, remedies, rights after termination, and interpretation of this Agreement, will survive the expiration or termination of this Agreement for their full statutory period.

Exhibit A

Third-Party Products

• Carequality Connection (CC) Terms located at https://carequality.org/resources/

• CommonWell End User License Agreement (EULA), located at https://www.commonwellalliance.org/wp-content/uploads/2019/05/CommonWell-EULA-Version-13Jan2021-1.pdf

• eHealth Exchange Data Use and Reciprocal Support Agreement, located at https://ehealthexchange.org/dursa/

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