Plan Administration Agreement

PLEASE READ THIS PLAN ADMINISTRATION AGREEMENT (THE “AGREEMENT”) BEFORE USING THE PRODUCTS AND SERVICES OFFERED BY CLERRI LLC (“COMPANY”). BY EXECUTING AN ORDER AND USING COMPANY’S PRODUCT AND SERVICE OFFERINGS, YOU (THE “CLIENT” AND, TOGETHER WITH COMPANY, THE “PARTIES” AND, EACH, A “PARTY”) SIGNIFY ACCEPTANCE OF AND AGREE TO THE TERMS AND CONDITIONS OF THIS AGREEMENT, INCLUDING THE LIMITATIONS OF LIABILITY AND WARRANTY DISCLAIMERS CONTAINED HEREIN. IF YOU DO NOT AGREE TO THE TERMS AND CONDITIONS OF THIS AGREEMENT, DO NOT ACCESS OR USE COMPANY’S PRODUCTS OR SERVICES.

THIS AGREEMENT APPLIES TO PRODUCTS AND SERVICES PROVIDED BY COMPANY TO CLIENT AS MAY BE SET FORTH FROM TIME TO TIME IN ONE OR MORE ORDERS ENTERED INTO BETWEEN COMPANY AND CLIENT (EACH, AN “ORDER”). THIS AGREEMENT INCLUDES THE GENERAL TERMS AND CONDITIONS, AS WELL AS THE TERMS AND OTHER DOCUMENTATION REFERENCED HEREIN (THE “ADDITIONAL TERMS”), WHICH SUCH ADDITIONAL TERMS ARE INCORPORATED HEREIN BY REFERENCE.

WHEREAS, Company designs, develops and administers discount health care programs that provide plan members with access to discounted pricing for services rendered by contracted providers;

WHEREAS, Client owns and operates one or more practice locations and employs and/or contracts with licensed health care providers for the purpose of providing health care services to patients; and

WHEREAS, the Parties now seek to enter into an agreement pursuant to which (i) Company shall, in exchange for an administrative fee, administer a discount membership plan to be utilized by Client, and (ii) Client and its employed and contracted health care providers shall participate in such discount membership plan and will provide services at a discounted rate to plan members in accordance with the terms and conditions of this Agreement.

NOW, THEREFORE, for and in consideration of the mutual covenants and conditions referenced and exchanged herein, the sufficiency and receipt of which are hereby acknowledged, the Parties hereto, intending to be legally bound, covenant and agree as follows:

1. DEFINITIONS.

1. Administrative Fees: The fees payable to Company in exchange for administrative services provided hereunder.

2. Services: Health care services rendered by a Provider to a Member. For the purposes of this Agreement, “Services” may include, without limitation, dental services, aesthetic services, vision services, and/or urgent care services, as applicable to services performed by Provider(s) under the Plan.

3. Discount Health Care Program: An arrangement in which an entity offers individuals access to discounts on medical services in exchange for fees, not including an insurance policy, certificate of coverage or other product that is otherwise regulated by state insurance departments. A “discount health care program” may also be referred to as a “discount medical program”, “health discount plan”, or similar term under applicable state law.

4. Effective Date: The date upon which the Parties enter into an Order incorporating this Agreement by reference.

5. Fee Schedule: One or more schedules of applicable fees to be charged to Members for Services rendered under the Plan.

6. Marketing Materials: Collectively, all Plan marketing materials furnished to Client by Company under the Agreement, including Plan Website.

7. Member: An individual enrolled in Plan.

8. Membership Fees: Membership fees received by Company for each Plan membership enrolled or renewed during the Term.

9. Membership Platform: A web-based administrative dashboard and ecommerce platform allowing Client and Providers to (i) access real-time plan metrics and reporting regarding the Plan, (ii) assist Members with enrollment in Plan, (iii) verify eligibility of members, and (iv) view Plan documents and information.

10. Member Terms: The terms and conditions governing each Member’s participation in the Plan.

11. Plan: A Discount Health Care Program administered by Company pursuant to which Providers render Services to Members, then charge and collect from the Members, as payment in full for such Services, no more than the amount specified in the Fee Schedule.

12. Plan Website: Plan website developed and administered by Company.

13. Practice Location: Any physical office location in which one or more Providers render Services to Members.

14. Provider: A licensed health care provider who shall participate in Plan and provide Services to Members in accordance with the terms of this Agreement.

2. AGREEMENT TERM.

1. Term. This Agreement shall begin on the Effective Date and shall continue for the initial term set forth in the applicable Order (the “Initial Term”). Upon expiration of the Initial Term, this Agreement shall automatically renew for successive renewal terms of the duration set forth in the applicable Order (each such renewal term, a “Renewal Term,” and together with the Initial Term, the “Term”), unless either Party delivers written notice to the other Party of its intent not to renew at least sixty (60) days prior to the expiration of the then-current Term.

2. Termination for Breach. If either Party breaches any material term of this Agreement, the non-breaching Party shall provide the Party alleged to be in breach with written notice of the alleged breach. If such breach has not been cured by the breaching Party within thirty (30) days following such notice, the non-breaching Party shall have the right to immediately terminate this Agreement for cause upon written notice to the breaching Party.

3. Termination upon Mutual Consent. The Parties may terminate this Agreement and Company’s provision of the Plan and Plan-related services to Client upon mutual written consent.

4. Change in Laws; Frustration of Purpose. Either Party may terminate this Agreement and Company’s provision of the Plan and Plan-related services pursuant to Section 12.d.

5. Effect of Termination. The rights and obligations of the Parties under Section 5.l and Sections 8 through 12 shall survive expiration or termination of this Agreement.

3. MEMBERSHIP TIER.

1. Client shall select a Membership Platform tier (“Tier”) at implementation. Pricing, services, and terms and conditions applicable to each Tier shall be made available to Client during Tier selection and are subject to change. Client shall have the option to change to another available Tier at any time. Current pricing for each Tier may be listed on the Order if applicable.

4. ADMINISTRATIVE FEES; PAYMENT MECHANICS.

1. Administrative Fees. Company’s Administrative Fees for services provided to Client under this Agreement are set forth on the Order. Administrative Fees may be assessed as follows: (i) as a percentage or flat fee deducted from Membership Fees collected by Company; and/or (ii) as a flat fee based on participating Practice Locations and/or Tier selected by Client, which may be deducted from Membership Fees collected or billed to Client at Company’s discretion.

2. Distribution of Membership Fees; Offset. Company shall distribute to Client, at least monthly, all Membership Fees collected by Company for each enrollment or renewal of a Plan membership; provided, that Company shall deduct Administrative Fees from such distributions, if any, as fully set forth in the Order. In addition, Company shall deduct from the distribution of Membership Fees all other deductions and offsets contemplated in this Section 4.

3. Refunds and Chargebacks. If any payment of Membership Fees is refunded or overturned due to (a) Member cancellation, (b) a credit card dispute or “chargeback”, or (c) a check returned for insufficient funds, then Company (x) shall cancel the associated Plan membership; (y) shall not pay Membership Fees to Client with respect to such membership; and (z) shall offset Membership Fees, if any, that have already been paid to Client with respect to such membership against future payments of Membership Fees otherwise payable by Company to Client. In the case of chargebacks and returned checks, Company shall offset any associated fees, penalties or surcharges paid or payable by Company against future payments of Membership Fees to Client.

4. Payment Processing Fee. Company shall charge a payment processing fee to Client for each payment transaction processed hereunder equal to two and three-quarters percent (2.75%) of the transaction amount plus thirty cents ($0.30) per transaction (the “Payment Processing Fees”). Payment Processing Fees shall be assessed on the total amount of each payment transaction and deducted from Membership Fees prior to distribution to Client’s payment account(s). International credit cards will include an additional one percent (1.0%) processing fee, and may include an additional one percent (1.0%) processing fee if foreign currency needs to be exchanged between the international credit card issuer and the merchant bank. In addition, Client will be charged two dollars ($2) per month for each connected merchant account maintained for Client. In the event that fees charged to Company for payment processing services are increased during the Term for any reason, Company may modify the Payment Processing Fees payable hereunder upon thirty (30) days’ advance written notice to Client.

5. Minimum Monthly Member Fee. Beginning six (6) months after each Practice Location’s activation date on the Membership Platform, if a Practice Location utilizing the “Basic” Tier has less than 25 active memberships, Company will have the option to charge a minimum monthly member fee equivalent to Company’s Administrative Fee for a maximum of twenty-five (25) active memberships at the then-current rate. The minimum monthly member fee will be calculated at the end of each calendar month as follows: (Administrative Fee) x (25 – (# active memberships on last calendar day of month)). For example, a Practice Location with 20 active memberships at the end of the month and a $4.00 Administrative Fee will be charged $4.00 x (25 – 20) = $20. For the avoidance of doubt, the minimum monthly member fee is not applicable to “Pro” Tier Practice Locations or any Practice Location with 25 or more active memberships.

6. Increase in Administrative Fees. The Administrative Fees may be adjusted annually by Company in an amount not to exceed the sum of (A) U.S. Consumer Price Index for all Urban Consumers, as published by the U.S. Bureau of Labor Statistics plus (B) two percent (2%). Company will provide written notice of any increase to the Administrative Fees, which such increase will take effect immediately upon written notice by Company to Client.

7. Taxes. To the extent Company is obligated to pay any sales, use or similar taxes with respect to its receipt of Membership Fees, Client is responsible for the payment of all such taxes. If Company is obligated to remit taxes directly to an applicable taxing authority, Company shall deduct the amount of such taxes from the Membership Fees distributed to Client hereunder. For clarity, in no event shall Client be responsible for any taxes imposed on Company’s income.

8. Right to Deduct. All fees and taxes described in this Section 4 shall be automatically deducted from Membership Fees distributed to Client hereunder.

9. No Minimum Balance Requirements. Client shall not be required to maintain a minimum balance in payment account(s) maintained by Company on Client’s behalf; however, in the event that a payment account exhibits a negative balance, Company will initiate a withdrawal back from Client’s connected bank account in the amount of such negative balance, and Client hereby authorizes Company to initiate such withdrawal.

10. Membership Platform. Client shall have access to reporting regarding payment of Membership Fees via the Membership Platform, including the total number of enrolled and renewed memberships, cancellations, chargebacks, and associated fees.

11. Entire Payment. Once distribution of Membership Fees, as deducted and offset pursuant to this Section 4, has been made to Client with respect to an enrollment or renewal, Company shall have no further payment obligation to Client with respect to such enrollment or renewal.

12. Obligation to Pay Providers. As between Company and Client, it is Client’s sole responsibility to determine the portion of Membership Fees that are payable to Providers, if any, and to pay such amount to Providers in accordance with the terms agreed between Client and the Providers.

5. CLIENT RESPONSIBILITIES, OBLIGATIONS, DUTIES and WARRANTIES.

1. Authority. Client represents and warrants that it is authorized to (i) contract on behalf of all Providers who shall participate in Plan, and (ii) ensure participation of Providers in Plan in accordance with the terms and conditions of this Agreement.

2. Provider Contact Information. During implementation, Client shall furnish Provider information to Company, including names, telephone numbers, Practice Location addresses, and office websites (collectively, the “Provider Contact Information”). Client and/or Providers shall provide prompt updates to such Provider Contact Information. Client represents, warrants and covenants that it has obtained, and will continue to obtain, all consents and has provided all notices, in each case to the extent required pursuant to applicable laws, rules and regulations, to provide Provider Contact Information to Company for use in marketing and administering the Plans. Client agrees to allow Company to publish information regarding Client and Providers in Plan marketing materials and on the Plan Website, and to otherwise allow Members and potential Members to search for Client and Provider names, locations, and prices.

3. Utilization Data. Upon request from Company, Client shall furnish to Company, at least quarterly, deidentified health care utilization data from participating Providers for both Members and non-Members for the purpose of analyzing Plan utilization. All utilization data provided by Client to Company hereunder shall be anonymized and deidentified prior to Client providing such data to Company so that such data does not qualify as “protected health information,” “personal information” or like term under applicable laws, rules, or regulations. Alternatively, Client may provide Company with access to the practice management system (“PMS”) serving Client and Providers for the purpose of obtaining this data, in which case the Parties shall cooperate to facilitate such access and to minimize costs to both Parties and disruption to Client operations.

4. No Use with Third-Party Payor Programs. Company and Client agree that the Plan shall not be used in conjunction with any third-party payor program, including government and private third-party payor programs (e.g., Medicaid, private insurance), and Providers shall be prohibited from enrolling any patient who is a participant in such payor program(s) where applicable laws, rules, regulations, or provider agreements prohibit the Provider from offering additional discounts to such patient.

5. Non-Circumvent. Client shall not solicit any Member or Provider to discontinue participation in the Plan or assist any other person or entity in soliciting any Member or Provider to discontinue participation in the Plan. Without limiting the foregoing, Client shall not export or otherwise use any data or information regarding the Plan for purposes of purchasing or implementing a substitute Discount Health Care Program.

6. Marketing Materials; No Representations or Warranties. Client shall not vary, discharge, waive or modify the Marketing Materials, the Member Terms, or any advertising or other Plan materials furnished by Company without Company’s written consent. Without limiting the foregoing, Client shall not make any representations or warranties regarding the Plan to Providers or Members that are inconsistent with the Marketing Materials provided by Company.

7. Member Pricing and Payments. Client acknowledges and agrees that Client and Providers shall accept the amount specified in the then-current Fee Schedule as payment in full for Services rendered to Members at time of service, and will not charge Members more than the amount listed in the Fee Schedule for any Services rendered.

8. Receipt of Membership Fees. Client shall direct all current and prospective Members to submit payment for the Membership Fees in the manner directed by Company. If Client nevertheless receives payment for Membership Fees directly from a current or prospective Member, Client shall promptly transfer such amount to Company.

9. Payment for Services. Client and Providers shall be solely responsible for collection of payment for Services provided to Members. Company shall not pay Client or Providers any fees for Services. Client may, in its sole discretion, offer extended payment terms on Services provided to the Member.

10. Responsibility for Services. Client acknowledges that Company shall not have nor exercise any control or direction over the methods by which Providers render Services to Members. Professional standards of practice and the professional duties of the Provider shall be determined in accordance with applicable provisions of law and other rules and regulations of any and all governmental authorities relating to licensure and regulation of the Provider.

11. Practice and Equipment; Licensure and Certifications; Professional Insurance.

    1. Client represents and warrants that each Provider shall be licensed to provide the Services in accordance with applicable state laws, and shall maintain all professional and regulatory licenses and certifications required to provide Services to Members during the Term of this Agreement. Client shall notify Company immediately in the event of any change in licensure or certification status of any Provider.

    2. Client agrees to maintain all professional and regulatory licenses and certifications required to provide Services to Members, and shall give a minimum of thirty (30) days’ notice to Company of any impending material change, cancellation, or modification in licensure or certification standing.

    3. Client represents and warrants that (i) Client and/or Providers shall provide all services, products, equipment, staff, and billing necessary to provide Services to Members, and (ii) Client and Providers shall maintain adequate professional liability and malpractice insurance coverage during the Term of this Agreement. Client and/or Provider shall be solely responsible for all taxes, licenses, permits, reports, insurance, bonds, and any other documents or actions necessary to provide Services in compliance with any and all applicable federal and state laws.

    4. Client represents and warrants that Providers shall provide Services to Members (i) without discrimination against any Member on the basis of participation in Plan, source of payment, age, sex, ethnicity, religion, sexual preference, health status or disability, (ii) which shall be identical in all respects to those services rendered to non-Members, and (iii) which are in accordance with all applicable laws and generally accepted and customary professional and ethical standards.

12. Post-Termination Obligations. In order to ensure that all Members who have paid to enroll in a Plan receive the benefit of such enrollment for the full membership term, Client acknowledges that, upon termination or expiration of this Agreement and/or discontinuation of Plan for any reason, Providers shall be required to (i) honor all existing Plan memberships that have been enrolled or renewed prior to the effective date of termination, and (ii) continue to render Services to Members in accordance with the Fee Schedule and the terms and conditions of this Agreement, in each case until all such existing memberships have expired.

13. Exclusive Plan Provider. Client acknowledges and agrees that, in connection with configuring, implementing and administering a Plan for Client, Company shall be providing Confidential Information to Client and investing considerable expense in the creation of a Plan that is customized to meet the needs of Client and its Providers, including creation of custom Marketing Materials and Fee Schedules. For the foregoing reasons, Client agrees that Plan will be the sole Discount Health Care Program product that is offered and/or marketed to patients or otherwise participated in by Client, its affiliates, subsidiaries, officers, directors and Providers throughout the Term of this Agreement. For the avoidance of doubt, nothing herein is intended to prohibit either (i) Company from offering or maintaining any Discount Health Care Program other than Plan in any state, or (ii) Client from contracting with any affiliate of Company for any purpose related to the provision of Discount Health Care Program services.

6. PLAN ADMINISTRATION OBLIGATIONS. Company shall use commercially reasonable efforts to provide the following services to assist in the configuration, implementation and administration of the Plan (the “Administration Services”):

1. Company shall develop and maintain Membership Platform and the Plan Website, which shall advertise, describe, and offer the Plan. Membership Platform shall include an enrollment platform allowing Providers to assist patients with enrollment in Plan directly from the Provider’s office.

2. Company shall provide customer support services to Members, including email support and a toll-free dedicated phone number during Company’s regular business hours, excluding observed holidays. Customer support hours and observed company holidays are subject to change at Company’s discretion to support operational business needs.

3. Company shall supply unique logins on an as-needed basis to Client and Providers to access Membership Platform.

4. Company shall provide initial and continuing online training to Providers regarding Plan and Membership Platform. Continued trainings shall be provided on an as-needed basis at the discretion of Company. Company shall cover all the costs associated with initial and continued Provider trainings.

5. In addition to the above, Company shall provide additional Administrative Services consistent with the Tier selected by Client during the implementation process. Additional services to be provided within each Tier are subject to change at Company’s discretion, and Client shall have the option to change Tiers at any time during the Term, subject to applicable pricing changes and terms and conditions.

6. Company shall not have nor exercise any control or direction over the methods by which the Providers render Services to Members. Professional standards of practice and the professional duties of Providers shall be determined in accordance with applicable provisions of law and other rules and regulations of any and all governmental authorities relating to licensure and regulation of the Providers.

7. USE OF MARKS.

1. Plan Name and Marks. The name under which the Plan will be marketed (“Name”) and any other trademarks, service marks, trade dress, trade names, brand names, logos, or domain names developed by Company and used for any purpose under this Agreement, including the Name (collectively, the “Marks”), shall at all times be and remain the property of Company. To the extent the Marks incorporate the name or trademarks or other intellectual property (collectively, “IP”) associated with Client or its related Providers, Client hereby grants Company a non-exclusive license throughout the Term to use such IP as incorporated in the Marks for the purposes of marketing the Plan and otherwise in furtherance of the relationship contemplated in this Agreement. Company’s use of Client’s IP will comply with any usage guidelines that may be provided by Client from time to time, and all goodwill arising out of the use of such IP shall inure to the benefit of Client. Client will provide specimens of its IP in the format and file size as requested by Company from time to time.

2. Registration of Marks; Infringement. The Parties agree and acknowledge that (i) with the exception of the registered trademarks "CLERRI", “MEMBERSY” and “KLEER”, Company does not hold exclusive right, title or interest in or to any of the Marks in any territory or jurisdiction, and (ii) Company has no plans to pursue state or federal registration of any or all of the Marks due to the prohibitive costs associated with such registration. In the event that use of one or more of the Marks by Company and/or Client is challenged by any third party claiming rights in the Mark(s) for any reason, Company reserves the right to discontinue use of one or more Marks for any purpose hereunder in its sole discretion, in which case Company shall cooperate with Client to develop a new name and/or accompanying marks for use with Plan, which shall be adopted only upon mutual written agreement of the Parties.

8. CONFIDENTIAL INFORMATION.

1. Confidentiality. In connection with this Agreement, either Party may disclose to the other Party certain information regarding its business affairs, products, services, technology, plans, concepts, internal processes, and documents, in each case regardless of whether or not marked, designated or otherwise identified as “confidential” (collectively, “Confidential Information”). With respect to Company, its Confidential Information shall include all information regarding the marketing, design, and selling of Discount Health Care Programs or otherwise related to Company’s business. Confidential Information does not include information that, at the time of disclosure is: (a) in the public domain through no action by the receiving Party; (b) known to the receiving Party at the time of disclosure without restriction on use or disclosure; (c) rightfully obtained by the receiving Party on a non-confidential basis from a third party; or (d) independently developed by the receiving Party without use of, or reference to, the disclosing Party’s Confidential Information. Neither Party shall disclose the other Party’s Confidential Information to any person or entity, except to the receiving Party’s employees or consultants who have a need to know the Confidential Information to exercise its rights or perform its obligations hereunder. In addition, neither Party shall use the disclosing Party’s Confidential Information for any purpose other than exercising its rights and performing its obligations pursuant to this Agreement or as otherwise agreed by the disclosing Party.

2. Feedback. If Client or any of its employees or contractors sends or transmits any communications or materials to Company by mail, email, telephone, or otherwise, suggesting or recommending changes to the Plan or related technology, including new features or functionality relating thereto, or any comments, questions, suggestions, or the like (“Feedback”), Company is free to use such Feedback for any and all lawful purposes.

3. Return or Destruction. On the expiration or termination of this Agreement, each receiving Party shall cease using and permanently and irretrievably erase or destroy all of the disclosing Party’s Confidential Information, whether in written, electronic, or other form or media.

9. WARRANTY DISCLAIMER. THE PLANS AND OTHER SERVICES OFFERED BY COMPANY ARE PROVIDED “AS IS” AND COMPANY HEREBY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE. WITHOUT LIMITING THE FOREGOING, COMPANY MAKES NO WARRANTY OF ANY KIND THAT THE PLAN WILL INCREASE PATIENT VOLUME, REVENUES, PROFITABILITY OR OTHERWISE RESULT IN ECONOMIC BENEFIT TO CLIENT OR PROVIDERS.

10. LIMITATION OF LIABILITY.

1. WAIVER OF CERTAIN DAMAGES. IN NO EVENT WILL COMPANY, ITS AFFILIATES, AND RELATED ENTITIES (COLLECTIVELY, THE “COMPANY PARTIES”) BE LIABLE UNDER OR IN CONNECTION WITH THIS AGREEMENT UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE, FOR ANY: (A) CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, ENHANCED, OR PUNITIVE DAMAGES; (B) INCREASED COSTS, DIMINUTION IN VALUE OR LOST BUSINESS, PRODUCTION, REVENUES, OR PROFITS; (C) LOSS OF GOODWILL OR REPUTATION; (D) USE, INABILITY TO USE, LOSS, INTERRUPTION, DELAY OR RECOVERY OF ANY DATA; OR (E) COST OF REPLACEMENT GOODS OR SERVICES, IN EACH CASE REGARDLESS OF WHETHER COMPANY WAS ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES OR SUCH LOSSES OR DAMAGES WERE OTHERWISE FORESEEABLE.

2. MAXIMUM LIABILITY. IN NO EVENT WILL THE COMPANY PARTIES’ AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE EXCEED THE TOTAL AMOUNT OF ADMINISTRATIVE FEES RETAINED BY COMPANY IN THE TWELVE (12) MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO THE CLAIM.

11. INDEMNIFICATION.

1. Company Indemnification. Company shall indemnify, defend and hold harmless Client from and against any and all losses, damages, liabilities, costs (including reasonable attorneys’ fees) (”Losses”) incurred by Client resulting from any third-party claim, suit, action, or proceeding (”Third-Party Claim”) that Client’s permitted use of Membership Platform infringes or misappropriates such third party’s US patents, copyrights, or trade secrets, provided that Client promptly notifies Company in writing of the claim, cooperates with Company, and allows Company sole authority to control the defense and settlement of such claim. If such a claim is made or appears possible, Client agrees to permit Company, at Company’s sole discretion, to (A) modify or replace Membership Platform, or component or part thereof, to make it non-infringing, or (B) obtain the right for Client to continue to use Membership Platform in substantially the same manner as contemplated in this Agreement. If Company determines that neither alternative is reasonably available, Company may terminate Client’s access to Membership Platform and provide an alternative method for Client to access data regarding the Plan.

2. Client Indemnification. Client shall indemnify, hold harmless and, at Company’s option, defend the Company Parties from and against any Losses resulting from (i) any Third-Party Claim resulting from the provision of Services by Providers associated with Client; (ii) any Third-Party Claims resulting from Client’s breach of the restrictions or obligations applicable to it pursuant to this Agreement; (iii) any Third-Party Claim alleging that the use of any trademarks, logos or other creative assets of Client or the Providers by Company, including in connection with the Plan Website, infringes or misappropriates a third-party’s intellectual property rights; or (iv) any Third-Party Claim resulting from a Provider’s breach of the restrictions or obligations applicable to the Provider pursuant to this Agreement; provided, in each case that, if Company requests Client to assume the defense of any such Third-Party Claim, Client may not settle any Third-Party Claim against Company unless Company consents to such settlement, and; provided, further, that Company will have the right, at its option, to defend itself against any such Third-Party Claim at Client’s expense or to participate in the defense thereof by counsel of its own choice.

12. MISCELLANEOUS TERMS.

1. HIPAA Business Associate Addendum. In the performance of this Agreement, the Parties shall comply with the standards for privacy and security of individually identifiable health information of the Health Insurance Portability and Accountability Act of 1996, Health Information for Economic and Clinical Health Act, and the rules and regulations promulgated thereunder (including the HIPAA Omnibus regulations promulgated on January 25, 2013), all as the same may be amended from time to time (collectively, “HIPAA”), as well as other applicable state and federal laws and regulations protecting individually identifiable health information, as fully set forth in the Business Associate Addendum located at https://www.clerri.com/legal/business-associate-addendum and incorporated herein by reference.

2. Nature of Relationship. This Agreement does not create an agency or employment relationship, partnership, or joint venture between Client and Company for any purpose. The Parties acknowledge and agree that each Party is an independent contractor and, as such, is solely responsible for its acts and omissions and the consequences thereof, and is fully able and capable of assessing any risks involved in undertaking the obligations required by this Agreement. Neither Party shall have the authority to bind the other Party to any contract or other obligation.

3. Amendment; Waiver. This Agreement may be amended by Company by providing written notice to Client at least ninety (90) days before the effective date of such amendment. If Client fails to object to the amendment within fifteen (15) days of its receipt of such notice, the amendment will be deemed approved by Client. Client may not amend this Agreement without the prior written consent of the Company. No waiver by either Party of any of the provisions hereof will be effective unless explicitly set forth in writing and signed by the Party so waiving. Except as otherwise set forth in these Terms, (i) no failure to exercise, or delay in exercising, any rights, remedy, power, or privilege arising from these Terms will operate or be construed as a waiver thereof and (ii) no single or partial exercise of any right, remedy, power, or privilege hereunder will preclude any other or further exercise thereof or the exercise of any other right, remedy, power, or privilege.

4. Severability. If any court determines that any portion of this Agreement is unenforceable, it shall be deleted from this Agreement and the Agreement shall otherwise remain in effect. If any applicable law, rule or regulation comes into effect following the Effective Date that increases or otherwise changes the Parties’ compliance obligations with respect to the Plan and Plan-related services provided hereunder, the Parties shall negotiate in good faith to amend this Agreement as required to comply. If this Agreement cannot be amended in a manner that is reasonably sufficient to comply or if the Parties are unable, despite using good faith efforts, to mutually agree on an amendment to this Agreement, then either Party may terminate this Agreement immediately upon written notice to the other Party.

5. Entire Agreement. This Agreement represents the entire agreement of the Parties with respect to the transactions contemplated herein, and any prior or contemporaneous oral or written negotiations, representations or agreements of the Parties are merged herein and may not be used to vary or contradict the terms and provisions hereof.

6. Beta Services. From time to time, Company may, in its sole discretion, invite Client to use, on a trial basis, pre-release or beta features that are in development and not yet available to all customers (“Beta Services”). Beta Services may be subject to additional terms and conditions, which Company will provide to Client prior to use of the Beta Services. Such Beta Services and all associated conversations and materials relating thereto will be considered Company Confidential Information and subject to the confidentiality provisions in this Agreement. Client agrees that it will not make any public statements or otherwise disclose its participation in the Beta Services without Company’s prior written consent. Company makes no representations or warranties that the Beta Services will function. Company may discontinue the Beta Services at any time in its sole discretion, with or without notice to Client. IN NO EVENT SHALL COMPANY’S AND ITS LICENSORS’ AND THEIR SERVICE PROVIDERS’ MAXIMUM AGGREGATE LIABILITY TO CLIENT FOR ALL CLAIMS ARISING OUT OF OR RELATING TO THE BETA SERVICES EXCEED ONE HUNDRED DOLLARS ($100). THE FOREGOING SHALL HAVE NO IMPACT ON ANY OF CLIENT’S OBLIGATIONS TO COMPANY UNDER THE AGREEMENT. The Beta Services may not work in the same way as a final version. Company may change or not release a final or commercial version of a Beta Service in its sole discretion.

7. Force Majeure. Neither Party shall be liable or responsible to the other for delays or failures in performance resulting from acts, causes, circumstances or events beyond its reasonable control, including acts of nature and natural disasters, inclement weather, governmental actions, fire, flood, pandemic or other public health crisis, including quarantine or other employee restrictions, labor difficulties or shortages, unavailability of material or equipment from suppliers, delays due to third-party vendors, terrorism, cyber, chemical or biological attack, civil disturbances or insurrection, war, interruptions of power, supply or communications, or other similar events or occurrences.

8. Publicity. During the term of this Agreement, Company may include Client’s name and logo in its customer lists, including on its website. To the extent Client provides standard trademark usage guidelines, Company shall use Client’s name and logo in accordance with such guidelines.

9. Assignment. This Agreement shall be binding upon and inure to the benefit of the Parties and their successors and assigns. Neither Party shall assign its rights or obligations hereunder without the written consent of the other Party, which consent shall not be unreasonably withheld. Notwithstanding the foregoing, Company shall have the right to assign its rights and obligations under this Agreement without obtaining Client’s consent to (i) any of its affiliates, (ii) any purchaser of all or substantially all of its assets or the portion of its business to which the subject matter of this Agreement relates, or (iii) any successor entity resulting from any merger or consolidation of Company with or into such entity.

10. Governing Law; Venue. This Agreement will be interpreted and construed in accordance with the laws of the State of Texas, without regard to conflict of law principles. Any dispute arising out of, or related to, this Agreement shall be subject to the exclusive jurisdiction of the state and federal courts located in Travis County, Texas, and each Party hereby submits to the jurisdiction of such courts.

11. Waiver of Jury Trial, Class Action. To the extent permitted by applicable law, each Party hereby waives (i) any right it may have to a trial by jury in any legal proceeding directly or indirectly arising out of or related to this Agreement or the transactions contemplated hereby (whether based on tort, contract, or any other theory); and (ii) the right to litigate any dispute arising out of, or related to, this Agreement as a class action, either as a member of a class or as a representative.

12. Authority. Each of the Parties expressly warrants his or her authority to enter into this Agreement and to carry out its obligations as set forth herein, and that this Agreement, when executed, will be a valid and binding obligation enforceable in accordance with its terms. This Agreement may be executed in one or more counterparts, all of which shall be considered one and the same agreement.

13. Notice. Any notice required or permitted to be given under this Agreement shall be deemed to have been given when (i) personally delivered, (ii) deposited in the United States mail, by registered or certified mail, return receipt requested, postage prepaid, (iii) deposited with an internationally recognized overnight courier and addressed to the other Party, or (iv) delivered via electronic mail to the address set forth below or such other address as the Party may designate in writing.

To Client:
Using contact information set forth on the Order

To Company:
Clerri LLC
2705 Bee Caves Road, Suite 320
Austin, TX 78746
Attention: Legal
Email: [email protected]