MASTER SERVICES AGREEMENT

This MASTER SERVICES AGREEMENT (this “Agreement”, as defined below) sets forth the terms and conditions to be incorporated into any applicable Order Form(s) between Modern Health Arizona P.L.L.C., an Arizona professional limited liability company, on behalf of itself and its Affiliates (collectively, “Modern Health”) and the entity executing such Order Form(s) for the Services (“Customer”). Customer and Modern Health may each be referred to herein individually as a “Party” and together as the “Parties,” as the context requires.

1.              DEFINITIONS.

“Affiliate” of a Person means any other Person that directly or indirectly, through one or more intermediaries, controls, is controlled by, or is under common control with or common management with, such Person, where “control” means the direct or indirect ownership of a majority of the voting securities of such Person. Additionally, Modern Life Inc., a Delaware corporation and Modern Health’s business support service provider, shall be deemed Modern Health’s Affiliate.

“Agreement” means this Agreement, which sets forth all general terms with respect to the business relationship between Modern Health and Customer, any Order Form entered into by the Parties pursuant to this Agreement, and any addenda, exhibits, schedules or amendments thereto.

“AI System” means a software system utilizing deep learning, machine learning, neural networks, or similar artificial intelligence technologies that is designed to operate with a level of autonomy, may exhibit adaptiveness after deployment and infers from the input it receives how to generate outputs such as predictions, content, recommendations, or decisions.

“Documentation” means documentation made available to Customer and Participants, in all forms, relating to the Services, the Platform, or other products and offerings made available to Customer and/or Participants, including but not limited to, any processes, written materials, questionnaires, other data or information, service descriptions, protocols, frequently asked questions, user manuals, on-line help files, online terms of use, and any applicable privacy notices.

“Eligibility File” means a digital file submitted by or for Customer to Modern Health that contains for all Participants, at a minimum, their first name, last name, work email address, and country. For Participants residing in the United States, the Eligibility File must also include their state and zip-code.

“Law” means any statute, law, regulation or other requirement of any federal, state, local, or foreign government applicable to the performance of this Agreement.

“Order Form” means an Order Form detailing the Services ordered by Customer from Modern Health as mutually agreed by the Parties from time to time, which shall become a part of and governed by this Agreement.

“Participants” means Customer’s employees and, if applicable, other individuals designated by Customer who are eligible to receive the Services, as detailed in applicable Order Form.

“Person” means an individual, corporation, partnership, joint venture, limited liability company, governmental authority, unincorporated organization, trust, association, or other entity.

“Platform” means the proprietary technology platform made available by Modern Health: (i) to Participants to obtain the Services, and (ii) through which Customer can access the Reports described in Section 2.2 (Periodic Reports) below and other features and functionality as offered by Modern Health from time to time.

“Providers” means individuals engaged by Modern Health to provide clinical and/or wellness Services, including licensed and certified psychiatrists, psychotherapists, psychologists, psychiatric nurse practitioners, professional counselors, licensed clinical social workers, marriage and family therapists, and equivalent licensed professionals, as well as certified coaches and other providers.

“Services” means: (i) professional and/or wellness services described herein and in the applicable Order Form that are provided by Providers to Participants; and/or (ii) Platform-related, implementation, and associated services described herein and in the applicable Order Form that are provided by Modern Health to Customer and Participants.

2.              OBLIGATIONS OF MODERN HEALTH.

2.1.           Services.

(a)    Clinical/Wellness Services. Modern Health shall provide professional clinical and/or wellness Services to Participants in accordance with the terms and conditions of this Agreement. For clarity, Participants (and if applicable, their dependents) will lose access to the Services upon termination of their employment or contractual engagement with Customer for any reason, and Modern Health will not provide Customer with any refund as a result thereof. Notwithstanding the foregoing, Modern Health and Customer may agree to provide access to the Services to Participants (and if applicable, their dependents) eligible to receive the Services after termination of their employment or contractual relationship with Customer pursuant to the Consolidated Omnibus Budget Reconciliation Act of 1985 (COBRA).

(b)   Platform Services. Subject to the terms and conditions of this Agreement and the Documentation, Customer and Participants will be provided with access to the Platform in order to obtain the Services, except during periods of scheduled maintenance, inoperability, or inaccessibility. In the event that the Platform is not available for use by Participants, Modern Health will use commercially reasonable efforts to correct the interruption as promptly as practicable. Customer acknowledges that it is obtaining only a limited right to use, and to authorize Participants to access and use, the Services on the Platform. Customer agrees that Modern Health or its suppliers retain all right, title and interest (including all patent, copyright, trade secret and other intellectual property rights) in and to the Platform, including any and all related and underlying software (including mobile applications, extensions and interfaces), databases, technology, together with all copies, modifications and derivative works thereof; the Documentation; and all system performance data. Modern Health reserves all rights to the Platform not expressly granted in this Agreement.

2.2.           Periodic Reports. Modern Health shall make available to Customer certain categories of aggregated, anonymized, and de-identified service reports containing information derived from Modern Health’s provision of the Services to Participants (“Reports”). The Reports may be used by Customer, provided that Customer does not use any data contained in Reports for purposes of attempting to re-identify any Person and does not share the Reports with any third party that is a competitor of Modern Health. Customer acknowledges and agrees that Modern Health uses technology services provided by Looker (a Google Cloud Service) and may generally use Other Technology (as defined in Section 14.2 (Other Technology) below), to generate or provide access to Reports; Customer agrees to abide by any and all terms and conditions applicable to the use of such Other Technology provided by Modern Health to Customer.

2.3.           Use of AI Systems. Modern Health shall: (a) comply with all applicable Laws in its use of AI Systems in connection with this Agreement, including current or future Laws related to discriminatory bias; (b) ensure that its use of AI Systems complies with all confidentiality and data privacy and security requirements in this Agreement; (c) maintain and apply a risk management framework for the governance of AI Systems that reflects established principles of responsible and ethical use of artificial intelligence; (d) monitor the AI Systems to regularly validate their continued proper performance; (e) not use Personal Data (as defined in the Data Processing Addendum located at https://www.modernhealth.com/dpa in effect as of the effective date of the applicable Order Form (the “DPA”)) collected as part of the Services to train AI Systems; (f) reasonably cooperate with Customer in responding to any governmental or regulatory requests directed to Customer regarding Modern Health's use of AI Systems; and (g) upon written request, provide Customer with information regarding Modern Health's use of AI Systems that is reasonably necessary for Customer to comply with applicable Laws.

3.              OBLIGATIONS OF CUSTOMER.

3.1.           Compensation. Customer shall compensate Modern Health for the Services, as set forth on the applicable Order Form. Customer shall remit the entire amount payable to Modern Health, and Modern Health will be responsible for disbursing all amounts due to Providers for the Services.

3.2.           Payment Terms. Unless otherwise specified in an Order Form, Customer will pay all amounts due within thirty (30) days of the date of the applicable invoice.  Any amount not paid when due will be subject to finance charges equal to one and one-half percent (1.5%) of the unpaid balance per month or the highest rate permitted by applicable Law, whichever is less, determined and compounded daily from the date due until the date paid.  Customer agrees that it will reimburse Modern Health for any reasonable costs or expenses (including, but not limited to, attorneys’ fees) incurred by Modern Health to collect any amount not paid when due. 

3.3.           Expense Reimbursement. In addition to the payment of fees in accordance with Section 3.1 (Compensation) above, Customer shall reimburse Modern Health for any expenses incurred by Modern Health or Providers during the Term (as defined below) in furtherance of the Services which are pre-approved in writing by Customer or fall within the scope of a budget mutually agreed to by the Parties, including travel, meals and accommodations, with reimbursement to be on an as-incurred basis upon submission by Modern Health of vouchers or receipts.

3.4.           Taxes. Other than net income taxes imposed on Modern Health, Customer will bear all taxes, duties, and other governmental charges (collectively, “Taxes”) resulting from this Agreement. Customer will pay any additional Taxes as are necessary to ensure that the net amount received by Modern Health after all Taxes are paid equals the amount Modern Health would have been entitled to in accordance with this Agreement if such Taxes were not imposed.

3.5.           Use Restrictions; Unauthorized Use. Except as otherwise explicitly permitted herein or mandated by applicable Law, Customer will not, and will not permit or authorize Participants or other third parties to: (a) rent, lease, or otherwise permit third parties to use the Services, Platform, or Documentation; (b) use the Services to provide services to third parties (e.g., as a service bureau); (c) reverse engineer, decompile, disassemble, or otherwise attempt to derive source code or other trade secrets from the Services or any software included therein; or (d) circumvent or disable or otherwise attempt to evade or interfere with any security or other technological features or measures of the Services or Platform. Customer shall use reasonable efforts to prevent any unauthorized use of the Services, Platform, or Documentation and immediately notify Modern Health in writing of any unauthorized use that comes to Customer’s attention, whether by a Participant or other third party. Customer acknowledges and agrees that Modern Health has the right to limit or terminate access to the Services and the Platform to any Participant who violates the Documentation, and Customer will reasonably cooperate and assist with any actions taken by Modern Health to prevent or terminate unauthorized use thereof.

3.6.           Eligibility File.  The Eligibility File is used by Modern Health to enable it to provide the Services, including communicating with Participants about the availability of the Services and verification of eligibility for the Services when a Participant attempts to access the Services.  Customer or its authorized third party will provide an Eligibility File to Modern Health in a format reasonably requested by Modern Health.  Customer represents and warrants that the Eligibility File constitutes enrollment information provided by Customer in its capacity as an employer, and that no business associate agreement between the Parties is required because such enrollment information is not considered protected health information under the Health Insurance Portability and Accountability Act of 1996. Modern Health is not able to, and shall not be obligated to, provide the Services if the Eligibility File is not provided to it. Further, Modern Health shall not be obligated to provide the Services to any Participants that are located outside the territories in which Modern Health or its Providers operate. Customer represents and warrants that it has the necessary legal bases to provide Modern Health with the Eligibility File for the purposes described in this Agreement. To the extent the Eligibility File contains personal data or personal information (as such terms are defined by applicable Law), the Parties agree to comply with the terms of the DPA.

3.7.           Ownership of MH Content. In the course of delivering the Services, Modern Health may deliver to Customer, or provide Customer with access to certain audio, video or other audio-visual content, or written materials (the “MH Content”). Unless otherwise expressly agreed to in writing by the Parties, all title and intellectual property rights (including without limitation, copyrights, patents, trademarks, and trade secrets) in and to the MH Content is owned exclusively by Modern Health, its Affiliates or licensors. Modern Health reserves all rights pertaining to the MH Content not specifically granted herein. Modern Health hereby grants Customer a limited, non-exclusive, non-transferable, non-sublicensable right and license to the MH Content during the Term solely for its internal business purposes; no license is granted whatsoever to distribute or publicly perform or display any MH Content to any third parties, nor to create any derivative works of the MH Content. At the expiration of the Term, Customer shall destroy or return to Modern Health any copies of MH Content in its possession, and upon request shall certify in writing to Modern Health that it has done so. 

4.              TERM. This Agreement will commence upon the effective date of the applicable Order Form and continue unless terminated earlier in accordance with the terms hereof (“Term”). The start date and end date of the Services provided under an Order Form shall be set forth in such Order Form. Except as may be otherwise set forth in an Order Form, this Agreement will automatically terminate sixty (60) days after the termination or expiration of all Order Forms.

5.              TERMINATION; EFFECT OF TERMINATION.

5.1.           Termination for Material Breach. Either Party may terminate this Agreement if the other Party does not cure a material breach of this Agreement within thirty (30) days of receiving written notice of the material breach. If Customer fails to timely pay any fees, Modern Health may, without limitation to any of its other rights or remedies, suspend performance of the Services starting on the first day following such failure until it receives all amounts due.

5.2.           Additional Termination Rights. Either Party may terminate this Agreement immediately if the other Party: (a) terminates or suspends its business; (b) becomes subject to any bankruptcy or insolvency proceeding under Federal or state statute; (c) becomes insolvent or subject to direct control by a trustee, receiver or similar authority; or (d) has wound up or been liquidated, whether voluntarily or otherwise.

5.3.           Post-Termination Obligations. If this Agreement or an Order Form is terminated for any reason specified in this Section: (a) Customer will pay to Modern Health immediately any fees or other amounts that have accrued prior to the effective date of the termination, (b) all liabilities accrued prior to the effective date of the termination will survive, and (c) Customer will provide Modern Health with a written certification signed by an authorized Customer representative certifying that Customer has ceased all use of the Services and Documentation.

6.              CONFIDENTIALITY. 

6.1.           Confidential Information. Each Party shall retain in confidence all non-public information, irrespective of the form thereof, disclosed or made available by the other Party pursuant to this Agreement which is either designated in writing as proprietary and/or confidential or which should reasonably be understood to be confidential by the receiving Party (“Confidential Information”); provided that the foregoing definition does not include information and/or materials that: (a) have come within the public domain through no fault of or action by the receiving Party or its representatives; (b) are discovered or created by the receiving Party without use of, or reference to, the Confidential Information of the disclosing Party, as shown in records of the receiving Party; or (c) are otherwise known to the receiving Party through no wrongful conduct of the receiving Party. Notwithstanding any failure to so designate them, the Services and Documentation shall be Modern Health’s Confidential Information unless explicitly indicated otherwise herein, the Eligibility File shall be the Confidential Information of Customer, and the terms and conditions of this Agreement shall be the Confidential Information of both Parties.

6.2.           Obligations. Each Party agrees to: (a) preserve and protect the confidentiality of the other Party’s Confidential Information using the same level of care with which it protects its own similar Confidential Information, or, in any event, no less than a reasonable level of care; (b) refrain from using the other Party’s Confidential Information for any purpose other than as provided in this Agreement; and (c) not disclose such Confidential Information to any third party, except to employees and subcontractors as is reasonably required in connection with the exercise of its rights and obligations under this Agreement (and only to the extent that such employees or subcontractors are subject to binding use and disclosure restrictions at least as protective as those set forth herein). Each Party agrees to promptly notify the other Party of: (x) any unauthorized disclosure or use of any Confidential Information and to assist the other Party in remedying such unauthorized use or disclosure by taking such steps as are reasonably requested, and (y) any instance in which Confidential Information is required to be disclosed by Law or court order; provided that in such instance of a required disclosure, the receiving Party shall provide prompt notice thereof and reasonable assistance to enable the disclosing Party to seek a protective order or otherwise prevent or restrict such disclosure; and provided, further, that a Party may disclose any Confidential Information to its agents, attorneys and other representatives (provided such recipients are subject to confidentiality obligations at least as protective as those set forth herein) or any court of competent jurisdiction as required to resolve any dispute between the Parties. Within thirty (30) days after the expiration or termination of this Agreement, if either Party has any of the other Party’s Confidential Information in its possession, such Party shall either destroy such Confidential Information or return it to the other Party. Further, the confidentiality provisions of this Agreement shall take precedence over the provisions of any non-disclosure or similar agreements the Parties may have entered into prior or subsequent to this Agreement in relation to the subject matter hereof.

6.3.           Injunctive Relief. In addition to any other remedy to which it may be entitled, the disclosing Party shall be entitled to seek an injunction or other equitable remedy to prevent or enjoin breaches of this Section 6 (Confidentiality) by the receiving Party or any of its representatives.

7.              REPRESENTATIONS AND WARRANTIES; DISCLAIMER.

7.1.           Representations and Warranties. Each Party represents and warrants that: (a) it is duly organized, validly existing and in good standing as a corporation or other entity as represented herein, under the Laws of its jurisdiction of incorporation, organization or chartering; (b) it has the full right, power and authority to enter into this Agreement, to grant the rights and licenses granted herein and to perform its obligations under this Agreement; (c) this Agreement will constitute the legal, valid and binding obligation of such Party, enforceable against such Party in accordance with its terms; (d) it will discharge its obligations under this Agreement in accordance with all applicable Laws; and (e) it shall obtain at its own cost any and all necessary consents, licenses, approvals and permits required in connection with its responsibilities under this Agreement.

7.2.           Additional Modern Health Representations and Warranties. Modern Health represents and warrants to Customer that (a) the Services shall be provided in a professional and workmanlike manner; (b) the Services and the Platform shall conform in all material respects with the specifications for such Services and the Platform set forth in the applicable Order Form and the Documentation; and (c) it shall be responsible for payment of all salaries and social security, unemployment and other taxes related to its employees.

7.3.           Disclaimer. EXCEPT FOR THE EXPRESS REPRESENTATIONS AND WARRANTIES STATED IN THIS AGREEMENT, MODERN HEALTH MAKES NO ADDITIONAL REPRESENTATION OR WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED OR OTHERWISE, AS TO ANY MATTER WHATSOEVER. MODERN HEALTH EXPRESSLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUALITY, ACCURACY, TITLE, AND NON-INFRINGEMENT. NOTWITHSTANDING ANYTHING SET FORTH HEREIN, MODERN HEALTH MAKES NO WARRANTY AGAINST INTERFERENCE WITH THE ENJOYMENT OF THE SERVICES. MODERN HEALTH DOES NOT WARRANT THAT THE SERVICES ARE ERROR-FREE OR THAT OPERATION OF THE SERVICES WILL BE SECURE OR UNINTERRUPTED. MODERN HEALTH DOES NOT WARRANT THAT ANY INFORMATION PROVIDED THROUGH THE SERVICES IS OR WILL BE ACCURATE OR COMPLETE, NOR THAT ANY INFORMATION PROVIDED THROUGH THE SERVICES WILL ALWAYS BE AVAILABLE. MODERN HEALTH IS NOT RESPONSIBLE FOR UNAUTHORIZED ACCESS TO, OR DISCLOSURE OF, ANY UNENCRYPTED DATA PROVIDED BY CUSTOMER TO MODERN HEALTH WHILE SUCH DATA IS IN TRANSIT TO OR FROM THE SYSTEMS OR NETWORKS CONTROLLED BY MODERN HEALTH.

8.              INDEMNIFICATION.

8.1.           Indemnification by Modern Health. Modern Health will indemnify and hold Customer and its Affiliates (as applicable, each a “Customer Indemnified Party”) harmless from and against liabilities, losses, damages, orders, judgments, claims and costs and expenses (including reasonable attorneys’ fees) (collectively, “Losses”) incurred by such Customer Indemnified Party in connection with any third party claims to the extent such Losses are a result of (a) any breach of this Agreement by Modern Health, (b) any negligent or more culpable act or omission (including willful misconduct) of Modern Health in connection with the performance of this Agreement, or (c) the use of the Platform as permitted under this Agreement infringing or misappropriating any third party patent, copyright, trademark, or trade secret right.

8.2.           Indemnification by Customer. Customer shall indemnify and hold Modern Health and its Affiliates (as applicable, each a “Modern Health Indemnified Party”) harmless from and against Losses incurred by such Modern Health Indemnified Party in connection with any third party claims to the extent such Losses are a result of (a) Customer’s failure to properly provide the Eligibility File, or (b) Customer’s violation of applicable Law.

8.3.           Indemnification Procedures. If any third party claim is commenced against a Party entitled to indemnification hereunder (the “Indemnified Party”), prompt notice thereof shall be given by the Indemnified Party to the other Party (the “Indemnifying Party”), provided that a failure or delay in providing such notice shall not relieve the Indemnifying Party of any liability hereunder unless, and only to the extent that, the defense of such third party claim is prejudiced by such failure or delay.  The Indemnifying Party may elect to assume and thereafter conduct the defense of such third-party claim by promptly providing the Indemnified Party with notice to such effect. If the Indemnifying Party assumes such defense, the Indemnified Party may also participate in such defense with counsel of its choice and at its expense and shall otherwise reasonably cooperate with the Indemnifying Party in such defense.  Neither the Indemnified Party nor the Indemnifying Party shall enter into any settlement of, or consent to the entry of any judgment arising from, any such third party claim without the other’s prior written consent (which consent shall not be unreasonably withheld), provided that the Indemnifying Party shall not be required to obtain the Indemnified Party’s consent for any such settlement or judgment that provides for the unconditional release of the Indemnified Party in connection therewith and solely involves the payment of monetary damages for which the Indemnified Party will be indemnified hereunder.

9.              LIMITATIONS OF LIABILITY.

9.1.           Cap on Liability. Notwithstanding anything to the contrary herein, each Party’s maximum aggregate liability arising from or related to this Agreement shall not in any event exceed an amount equal to the average annual fees paid or payable to Modern Health in connection with this Agreement (the “General Cap”). The General Cap shall not apply to liabilities resulting from a breach by a Party of its obligations under Section 6 (Confidentiality) or the DPA, for which liabilities a Party’s maximum aggregate liability shall not in any event exceed the greater of $500,000 and an amount equal to two times (2X) the average annual fees paid or payable to Modern Health in connection with this Agreement (the “Data Cap”) (it being understood and agreed that liabilities subject to the General Cap shall not apply toward the Data Cap and vice versa).  The limitations in this Section shall apply to any and all liabilities of any nature whatsoever and to all legal theories of recovery, failure of essential purpose, strict or statutory liability, contribution or any other cause of action and regardless of whether such cause of action is asserted as a direct claim, a third party claim or otherwise), provided that such limitations shall not apply to any liability resulting from (a) any fraudulent, criminal or willful and intentional misconduct by a Party, (b) Modern Health’s indemnification obligations under Section 8.1(c) (IP Infringement), (c) a breach by Customer of any of its payment obligations under this Agreement or (d) any other liability which may not be limited under applicable Law.  Any Losses incurred by a Party as a result of any third-party claim arising from or related to this Agreement that is made by the other Party’s Affiliates (and including in the case of Customer, any Participant) shall apply toward the General Cap or Data Cap (as applicable).

9.2.           Consequential Damages. Notwithstanding anything to the contrary herein, to the extent permitted by Law, in no event shall either Party be liable for any loss of anticipated savings, harm to reputation, impaired goodwill or lost productivity, lost profits or revenue, diminution in value or consequential, indirect, incidental, special, punitive or exemplary damages suffered by the other Party arising from or related to this Agreement, regardless of the applicable legal theory of recovery or the foreseeability thereof (and whether or not such Party was advised of the possibility thereof).

10.            Insurance. Modern Health shall, at its own expense, maintain the following insurance coverages with insurers rated A-VIII or better in the A.M. Best Key Rating Guide for Property and Casualty Insurance Companies: (a) workers’ compensation and related insurance as prescribed by applicable Law; (b) employer’s liability insurance with limits of $1,000,000 for bodily injury per occurrence; (c) general liability insurance in the amount of $1,000,000 per occurrence and $2,000,000 in the aggregate; (d) professional liability insurance in the amount of $2,000,000 in the aggregate and (e) cyber liability insurance in the amount of $5,000,000 in the aggregate. Upon Customer’s written request, Modern Health shall provide Customer with certificates of insurance evidencing such coverages.

11.            EFFECT OF NEW LAWS AND CHANGE OF CONDITIONS. The Parties agree to renegotiate this Agreement in good faith upon the occurrence of any of the following events: (a) if any Party would be materially and adversely affected by continued performance as a result of change in Law which require it to comply with a Law contrary to the Party’s prior reasonable understanding; (b) any material portion or provision of this Agreement is declared in violation of any Law by any competent court or state or federal agency; or (c) Customer or Modern Health receives notice from any federal or state agency that, in such agency’s opinion, any material provision or provision of this Agreement is in violation of any Law. The Party affected under this Section must promptly notify the other Party of the change, required compliance, official notice, or evidence of violation, and its desire to renegotiate this Agreement in order to address the occurrence of one or more of the events enumerated in this Section. If the Parties hereto are unable to agree in good faith on a modification to such portion or provision of this Agreement pursuant to this Section, which modification does not materially alter a material benefit of the original Agreement enjoyed by either Party, and if an amendment to this Agreement is not executed within thirty (30) days of receipt of the renegotiation notice, the Party adversely affected shall have the right to immediately terminate this Agreement upon written notice.

12.            FORCE MAJEURE. Notwithstanding anything to the contrary herein, neither Party shall be liable for, nor be deemed to be in breach hereof as a result of, any failure to comply with its obligations under this Agreement (except for any of Customer’s payment obligations under this Agreement) to the extent attributable to any act of God, flood, fire, earthquake, hurricane, act of war or other hostility, act of terrorism, governmental action or inaction, civil unrest, national emergency, epidemic, strike or other labor dispute, act or omission by a third party or a third party product or service, power, telecommunication or other service outage or any other cause or circumstance beyond the reasonable control of such Party, provided that nothing in this Section shall limit or otherwise affect Modern Health’s obligation to execute its business continuity and disaster recovery program.  The affected Party shall give the other Party prompt notice of any such event and use commercially reasonable efforts to end and minimize the effects thereof.

13.            AUDIT RIGHTS. Customer or its designees, at Customer’s sole cost and expense, shall have the right, once every twelve (12) months during the Term, with reasonable advance notice to Modern Health and during normal business hours, to review and audit Modern Health’s records solely as they relate to the performance of the Services. The scope, place, time and duration of each audit will be mutually agreed by the Parties, and such audit shall be conducted in a manner reasonably designed to protect the confidential information of Modern Health’s other customers.  All third-party auditors shall sign confidentiality agreements reasonably acceptable to Modern Health prior to conducting such audits.

14.            MISCELLANEOUS.

14.1.        Relationship of the Parties. This Agreement shall not be construed as creating an agency, partnership, joint venture or any other form of association, for tax purposes or otherwise, between the Parties, and the Parties shall at all times be and remain independent contractors.

14.2.        Other Technology. Customer acknowledges that Modern Health may make available to Customer and/or Participants third-party apps and other technology in connection with the Services (“Other Technology”), for example, Zoom to conduct video visits for clinical/wellness visits with Providers. Customer and/or Participants may have to create their own account with the provider of such Other Technology, and Customer’s and/or Participant’s access to and use of such Other Technology through their own account shall be governed solely by the terms and conditions for such Other Technology. Modern Health is not responsible or liable for, and makes no representations as to any aspect of such Other Technology. Modern Health cannot guarantee the continued availability of such Other Technology features. Modern Health is not liable for any damage or loss caused by or in connection with Customer’s and/or Participant’s use of Other Technology.

14.3.        Notices. All notices and other communications under this Agreement shall be in writing and shall be deemed to have been given by email upon sending to the address below, along with a courtesy paper copy delivered by mail or overnight courier.   Such communications must be sent to the respective Party at the addresses indicated below (or at such other address for a Party as shall be specified in a notice given in accordance with this Section).

If to: Modern Health:
by email: legal@modernhealth.com

With a courtesy copy to:
Modern Health Arizona, P.L.L.C.
650 California Street, Fl. 7, Office 07-128
San Francisco, CA 94108
Attn: Legal Department

 

If to Customer, at the address provided to Modern Health in the corresponding Order Form.                            

 

14.4.        Export Controls. Customer acknowledges that the Services may be subject to U.S. export control Laws, including the Export Administration Regulations (“EAR”) maintained by the U.S. Department of Commerce and trade and economic sanctions maintained by the Treasury Department’s Office of Foreign Assets Control (“OFAC”). Customer agrees, and to require all Participants, to comply with all applicable U.S. and international export control Laws, as well as end-user, end-use, and destination restrictions imposed by U.S. and other governments. None of the Services may be downloaded or otherwise exported or re-exported: (a) into any country for which the United States has a trade embargo, or (b) to anyone on the U.S. Treasury Department’s list of Specially Designated Nationals or the U.S. Commerce Department’s Table of Denial Orders. Customer represents and warrants that it is not located in, under the control of, or a national or resident of any such country or on any such list. This export control clause shall survive termination or cancellation of this Agreement.

14.5.        Assignment. Neither Party may assign its right, duties, and obligations under this Agreement without the other Party’s prior written consent, not to be unreasonably withheld or delayed, except (a) that a Party may assign this Agreement without the other Party’s consent to an Affiliate or a successor (including a successor by way of merger, acquisition, sale of all or substantially all assets, or operation of Law) if the Affiliate or successor agrees to assume and fulfill all of the assigning Party’s obligations under this Agreement, and (b) Modern Health may assign any or all of its duties under this Agreement to Modern Life, Inc. or a professional entity that receives administrative and management support services exclusively from Modern Life Inc., namely Modern Life CA, Inc., Modern Health New Jersey, L.L.C. or Modern Health California, P.C., provided that, in each case, the successor shall agree to assume and fulfill all of Modern Health’s obligations under this Agreement.

14.6.        Third Party Beneficiaries. This Agreement is for the sole benefit of the Parties and their respective successors and permitted assigns, and nothing herein, express or implied, is intended to or shall confer upon any other Person any legal or equitable right, benefit or remedy of any nature whatsoever, under or by reason of this Agreement.

14.7.        Survival. The rights and obligations of the Parties which, by their nature, should survive termination or expiration of this Agreement, will survive any such termination or expiration of this Agreement.

14.8.        Governing Law. This Agreement shall be governed by and construed in accordance with the internal Laws of the State of Delaware without giving effect to any choice or conflict of laws provision or rule (whether of the State of Delaware or any other jurisdiction) that would cause the application of Laws of any jurisdiction other than those of the State of Delaware.

14.9.        Dispute Resolution. The Parties agree to meet and confer in good faith and to use their best reasonable efforts to resolve any problems, claims, disputes, or controversies arising out of or related to this Agreement (“Dispute”) promptly by negotiation between executives who have authority to settle the controversy. In the event a Dispute is not resolved by the Parties pursuant to the process above within fifteen (15) days of the provision of a notice of Dispute by either Party, the Parties agree to submit the Dispute to binding arbitration (the “Arbitration”). The Arbitration shall be held in San Francisco, California; the exact time and location shall be decided by the arbitrator(s) selected in accordance with the then current Rules of JAMS. The Arbitration shall be initiated and administered by and in accordance with the then current Rules of JAMS, or if JAMS is not in existence or otherwise unable to conduct the Arbitration in San Francisco, with the then current Commercial Rules of the American Arbitration Association. The arbitrator(s) shall apply Delaware substantive Law or federal substantive Law where state Law is preempted. The arbitrator(s) selected shall have the power to enforce the rights, remedies, duties, liabilities and obligations of discovery by the imposition of the same terms, conditions, and penalties as can be imposed in like circumstances in a civil action by a court of competent jurisdiction of the State of Delaware. The arbitrator(s) shall have the power to grant all legal and equitable remedies provided by Delaware Law and award compensatory damages provided by Delaware Law, except that punitive damages shall not be awarded. Each Party in any Arbitration hereunder shall bear its own costs and fees including expert and non-expert witness costs and any other expenses incurred directly or indirectly with said Arbitration, provided that the Parties shall each pay an equal share of the fees and expenses of the arbitrator(s).

14.10.     Interpretation. The headings in this Agreement are for reference only and shall not affect the interpretation of this Agreement. For purposes of this Agreement: (a) the words “include,” “includes” and “including” shall be deemed to be followed by the words “without limitation”; (b) the word “or” is not exclusive; and (c) the words “herein,” “hereof,” “hereby,” “hereto” and “hereunder” refer to this Agreement as a whole. Unless the context otherwise requires, references herein: (i) to Sections, Addenda and Exhibits refer to the Sections of, and Addenda and Exhibits attached to, this Agreement; (ii) to an agreement, instrument or other document means such agreement, instrument or other document as amended, supplemented and modified from time to time to the extent permitted by the provisions thereof; and (iii) to a statute means such statute as amended from time to time and includes any successor legislation thereto and any regulations promulgated thereunder. The Addenda, Exhibits and Order Forms referred to herein shall be construed with, and as an integral part of, this Agreement to the same extent as if they were set forth verbatim herein.  This Agreement constitutes the sole and entire agreement of the Parties with respect to the subject matter contained herein, and supersedes all prior and contemporaneous understandings and agreements, both written and oral, with respect to such subject matter.

14.11.     Amendments; Waiver. This Agreement may not be amended or otherwise modified unless such amendment or modification is set forth in writing, identified as an amendment or modification thereof and duly executed by an authorized representative of each of the Parties. No provision of this Agreement may be waived unless such waiver is set forth in writing, identified as a waiver thereof and signed by an authorized representative of the waiving Party. Except as otherwise provided in this Agreement, no failure or delay by a Party in exercising any right under this Agreement shall operate as a waiver thereof, nor shall any single or partial exercise thereof preclude any other or further exercise thereof or the exercise of any other right.

14.12.     Severability. If any part of this Agreement is found to be illegal, unenforceable, or invalid, the remaining portions of this Agreement will remain in full force and effect. If any material limitation or restriction on the use of the Services is found to be illegal, unenforceable, or invalid, Customer’s right to use the Services will immediately terminate without further action by or on behalf of Modern Health and Modern Health will, upon request, refund any prepaid and unused fees prorated based on the amount of the  Services used as of the applicable termination date.

For customers headquartered in California receiving services from Modern Life CA, Inc. subject to the California Knox-Keene Health Care Service Plan Act, the Parties agree to the additional terms and conditions set forth in the California Specific Addendum located at https://www.modernhealth.com/csa, in effect as of the effective date of the applicable Order Form.