CoachCare

CoachCare Master Subscription Agreement

This Master Subscription Agreement (“Agreement”) governs the acquisition and use of the Lexington Wellness Holdings Inc. d/b/a CoachCare (collectively with its employees and affiliates, “CoachCare”) patient tracking and engagement software, mobile application, analytics tools and other related components of the CoachCare technology platform (the “Services”) by the person, in the case of an individual accepting this Agreement on his or her own behalf, or the legal entity, in the case of an individual accepting this Agreement on behalf of a company or other legal entity (“You” or “Your”). By accepting this Agreement, by clicking a box indicating acceptance or by executing an ordering document or online order specifying the Services to be provided hereunder including any addenda and supplements thereto (an “Order Form”) You agree to the terms of this Agreement. If You are entering into this Agreement on behalf of a company or other legal entity, You represent that You have the authority to bind such entity and its affiliates to this Agreement, in which case the terms You and Your shall be construed to include such entity and its affiliates.

Our Responsibilities

Provision of Purchased Services. CoachCare will (a) make the Services available to You pursuant to this Agreement and any applicable Order Forms, (b) provide standard support to you at no additional charge, (c) use commercially reasonable efforts to make the online Services available 24 hours a day, 7 days a week, except for: (i) planned downtime and (ii) any unavailability caused by circumstances beyond CoachCare’s reasonable control, including but not limited to, an act of God, act of government, flood, fire, earthquake, civil unrest, act of terror, strike or other labor problem, Internet service provider failure or delay, or denial of service attack.

Protection of Your Data. CoachCare will maintain administrative, physical, and technical safeguards for protection of the security, confidentiality and integrity of Your data in compliance with HIPAA and HITECH regulations and any other applicable laws and regulations. Those safeguards will include, but will not be limited to, measures for preventing access, use, modification or disclosure of Your data by CoachCare’s personnel except (a) to provide the Services and prevent or address service or technical problems, (b) as compelled by law, or (c) as You expressly permit in writing.

Beta Services. From time to time, CoachCare may make Beta services available to You at no charge. You may choose to try such services or not in Your sole discretion. Beta services are intended for evaluation purposes and not for production use, are not supported, and may be subject to additional terms. Beta services are not considered “Services” under this Agreement, however, all restrictions, CoachCare’s reservation of rights and Your obligations concerning the Services shall apply equally to Your use of Beta services. Unless otherwise stated, any Beta services trial period will expire upon the earlier of one year from the trial start date or the date that a version of the Beta services becomes generally available without the applicable Beta services designation. CoachCare may discontinue Beta services at any time in CoachCare’s sole discretion and may never make them generally available. CoachCare will have no liability for any harm or damage arising out of or in connection with a Beta service.

Use of the Services

Subscriptions. Unless otherwise provided in the applicable Order Form, (a) Services are purchased as subscriptions, (b) subscriptions for Services may be added during a subscription term at the same pricing as the underlying subscription pricing, prorated for the portion of that subscription term remaining at the time the subscriptions are added, and (c) any added subscriptions will terminate on the same date as the underlying subscriptions.

Access to the Services. Services are subject to the following restrictions: You will not (a) make any Service available to anyone other than registered users or use any Service for the benefit of anyone other than you unless expressly stated otherwise in an Order Form, (b) sell, resell, license, sublicense, distribute, make available, rent or lease any Service except as specifically stated in an Order Form, (b) use a Service to store or transmit infringing, libelous, or otherwise unlawful or tortious material, or to store or transmit material in violation of third-party privacy rights, (c) use a Service to store or transmit malicious code, (d) interfere with or disrupt the integrity or performance of any Service, (e) attempt to gain unauthorized access to any Service or its related systems or networks, (f) permit direct or indirect access or use of any of CoachCare’s intellectual property except as permitted under this Agreement, (g) modify, copy, or create derivative works based on a Service or any part, feature, function or user interface thereof, (h) frame or mirror any part of any Service, other than framing on Your own intranets or otherwise for Your own internal business purposes, or (i) disassemble, reverse engineer, or decompile a Service, or access it to (1) build a competitive product or service, (2) build a product or service using similar ideas, features, functions or graphics of the Service, (3) copy any ideas, features, functions or graphics of the Service or (4) determine whether the Services are within the scope of any patent. Any use of the Services in breach of this Agreement, by You that in CoachCare’s judgment threatens the security, integrity or availability of CoachCare’s services, may result in immediate suspension of the Services.

User Access. Any individual that accesses the Services in any manner (a “User”) is subject to the following restrictions (a) each User must register using a unique email address and password, (b) a User’s password may not be shared with any other individual, (c) each User must abide by Terms of Service, Privacy Policy, HIPAA BAA and any similar policy governing use of the Services then published on www.coachcare.com (“Use Policies”), and (d) each User may access and use the Services only for the intended purpose of the Services.

Your Responsibilities. You will (a) be responsible for Users’ compliance with this Agreement, Use Policies and Order Forms, (b) be responsible for the accuracy, quality and legality of Your data, the means by which you acquired Your data and Your use of data with the Services, (c) use commercially reasonable efforts to prevent unauthorized access or use, and (d) use the Services only in accordance with this Agreement, Use Policies, Order Forms and applicable laws and government regulations.

Fees and Payment

Fees. You will pay all fees specified in Order Forms. Except as otherwise specified herein or in an Order Form, (i) fees are based on Services subscriptions purchased and not actual usage, (ii) payment obligations are non-cancelable and fees paid are non-refundable, and (iii) quantities purchased cannot be decreased during the relevant subscription term.

Invoicing and Payment. You will provide CoachCare with valid and updated credit card information, or with a valid purchase order or alternative document reasonably acceptable to CoachCare. If You provide credit card information, You authorize CoachCare to charge such credit card for all Services listed in the Order Form for the initial subscription term and any renewal subscription term(s). Such charges shall be made in advance based on the frequency stated in the applicable Order Form. If the Order Form specifies that payment will be by a method other than a credit card, CoachCare will invoice You in advance and otherwise in accordance with the relevant Order Form. Unless otherwise stated in the Order Form, invoiced charges are due net 30 days from the invoice date. You are responsible for providing complete and accurate billing and contact information to CoachCare and notifying CoachCare of any changes to such information.

Overdue Charges. If any invoiced amount is not received by CoachCare by the due date, then without limiting CoachCare’s rights or remedies, (a) those charges may accrue late interest at the rate of 1.5% of the outstanding balance per month, or the maximum rate permitted by law, whichever is lower, and/or (b) CoachCare may condition future subscription renewals and Order Forms on payment terms shorter than those specified in Section 3.2 (Invoicing and Payment).

Suspension of Service and Acceleration. If any amount owing by You under this or any other agreement for Services is 30 or more days overdue (or 10 or more days overdue in the case of amounts You have authorized CoachCare to charge to Your credit card), CoachCare may, without limiting CoachCare’s other rights and remedies, accelerate Your unpaid fee obligations under such agreements so that all such obligations become immediately due and payable, and suspend Services to You until such amounts are paid in full. Other than for customers paying by credit card or direct debit whose payment has been declined, CoachCare will give You at least 10 days’ prior notice that Your account is overdue before suspending services to You.

Payment Disputes. CoachCare will not exercise its rights under Section 3.3 (Overdue Charges) or 3.4 (Suspension of Service and Acceleration) above if You are disputing the applicable charges reasonably and in good faith and are cooperating diligently to resolve the dispute.

Taxes. CoachCare’s fees do not include any taxes, levies, duties or similar governmental assessments of any nature, including, for example, value-added, sales, use or withholding taxes, assessable by any jurisdiction whatsoever (collectively, “Taxes”). You are responsible for paying all Taxes associated with Your purchases hereunder. If CoachCare has the legal obligation to pay or collect Taxes for which You are responsible under this Section 3.6, CoachCare will invoice You and You will pay that amount unless You provide CoachCare with a valid tax exemption certificate authorized by the appropriate taxing authority.

Future Functionality. You agree that Your purchases are not contingent on the delivery of any future functionality or features, or dependent on any oral or written public comments made by CoachCare regarding future functionality or features.

Term and Termination

Term of Agreement. This Agreement commences on the date You first accept it and continues until all subscriptions hereunder have expired or have been terminated.

Term of Purchased Subscriptions. The term of each subscription shall be one year unless a different term is specified in the applicable Order Form. Except as otherwise specified in an Order Form, subscriptions will automatically renew for additional periods equal to the expiring subscription term or one year (whichever is shorter), unless either party gives the other notice of non-renewal at least 30 days before the end of the relevant subscription term. Notwithstanding anything to the contrary, any renewal in which subscription volume for any Services has decreased from the prior term will result in re-pricing at renewal without regard to the prior term’s per-unit pricing.

Termination. A party may terminate this Agreement for cause (i) upon 30 days written notice to the other party of a material breach if such breach remains uncured at the expiration of such period, or (ii) if the other party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors.

Refund or Payment upon Termination. If this Agreement is terminated by You in accordance with Section 4.3 (Termination), CoachCare will refund You any prepaid fees covering the remainder of the term of all Order Forms after the effective date of termination. If this Agreement is terminated by CoachCare in accordance with Section 4.3, You will pay any unpaid fees covering the remainder of the term of all Order Forms. In no event will termination relieve You of Your obligation to pay any fees payable to CoachCare for the period prior to the effective date of termination.

Your Data Portability and Deletion. Upon request by You made within 30 days after the effective date of termination or expiration of this Agreement, CoachCare will make Your data available to You for export or download. After such 30-day period, CoachCare will have no obligation to maintain or provide any data and will thereafter delete or destroy all copies of Your data in CoachCare’s systems or otherwise in CoachCare’s possession or control, unless legally prohibited.

Surviving Provisions. The sections titled “Fees and Payment,” “Proprietary Rights and Licenses,” “Confidentiality,” “Disclaimers,” “Mutual Indemnification,” “Limitation of Liability,” “Refund or Payment upon Termination,” “Your Data Portability and Deletion,” “Surviving Provisions” and “General Provisions” will survive any termination or expiration of this Agreement.

Proprietary Rights and Licenses

Reservation of Rights. Subject to the limited rights expressly granted hereunder, CoachCare and its affiliates and licensors reserve all of their rights, title and interests in and to the Services, including all of their related intellectual property rights. No rights are granted to You hereunder other than as expressly set forth herein.

Legal Authority for Software Accounts. You constitute and appoint CoachCare to act for and on Your behalf as Your true and lawful agent for and in Your name, place and stead in the United States and any other applicable territories, either in writing, electronically, or by other authorized means, to create and manage App Store® accounts, Google PlayTM accounts and any other applicable software accounts for the purposes of making the Services available to you.

License to Host Your Data. You grant CoachCare and its applicable contractors a worldwide, limited-term license to host, copy, display and use Your data as reasonably necessary for CoachCare to provide, and ensure proper operation of, the Services and associated systems in accordance with this Agreement. Subject to the limited licenses granted herein, CoachCare acquires no right, title or interest from You or Your licensors under this Agreement in or to any of Your data.

License to Use Feedback. You grant to CoachCare a worldwide, perpetual, irrevocable, royalty-free license to use and incorporate into CoachCare’s services any suggestion, enhancement request, recommendation, correction or other feedback provided by You or Users relating to the operation of CoachCare’s services.

Confidentiality

Definition of Confidential Information. “Confidential Information” means all information disclosed by a party (“Disclosing Party”) to the other party (“Receiving Party”), whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure. Your Confidential Information includes Your data; CoachCare’s Confidential Information includes the Services; and Confidential Information of each party includes the terms and conditions of this Agreement and all Order Forms (including pricing), as well as business and marketing plans, technology and technical information, product plans and designs, and business processes disclosed by such party. However, Confidential Information does not include any information that (i) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party, (ii) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party, (iii) is received from a third party without breach of any obligation owed to the Disclosing Party, or (iv) was independently developed by the Receiving Party.

Protection of Confidential Information. The Receiving Party will use the same degree of care that it uses to protect the confidentiality of its own confidential information of like kind (but not less than reasonable care) to (i) not use any Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement and (ii) except as otherwise authorized by the Disclosing Party in writing, limit access to Confidential Information of the Disclosing Party to those of its and its affiliates’ employees and contractors who need that access for purposes consistent with this Agreement and who have signed confidentiality agreements with the Receiving Party containing protections not materially less protective of the Confidential Information than those herein. Neither party will disclose the terms of this Agreement or any Order Form to any third party other than its affiliates, legal counsel and accountants without the other party’s prior written consent, provided that a party that makes any such disclosure to its affiliate, legal counsel or accountants will remain responsible for such affiliate’s, legal counsel’s or accountant’s compliance with this “Confidentiality” section. Notwithstanding the foregoing, CoachCare may disclose the terms of this Agreement and any applicable Order Form to a subcontractor to the extent necessary to perform CoachCare’s obligations to You under this Agreement, under terms of confidentiality materially as protective as set forth herein.

Compelled Disclosure. The Receiving Party may disclose Confidential Information of the Disclosing Party to the extent compelled by law to do so, provided the Receiving Party gives the Disclosing Party prior notice of the compelled disclosure (to the extent legally permitted) and reasonable assistance, at the Disclosing Party's cost, if the Disclosing Party wishes to contest the disclosure. If the Receiving Party is compelled by law to disclose the Disclosing Party’s Confidential Information as part of a civil proceeding to which the Disclosing Party is a party, and the Disclosing Party is not contesting the disclosure, the Disclosing Party will reimburse the Receiving Party for its reasonable cost of compiling and providing secure access to that Confidential Information.

Representations and Warranties

Representations. Each party represents that it has validly entered into this Agreement and has the legal power to do so.

Warranty. CoachCare warrants that during an applicable subscription term (a) this Agreement, the Order Forms and the Use Policies will accurately describe the applicable administrative, physical, and technical safeguards for protection of the security, confidentiality and integrity of Your data in compliance with HIPAA and HITECH regulations and any other applicable laws and regulations, (b) CoachCare will not materially decrease the overall security of the Services, and (c) CoachCare will not materially decrease the overall functionality of the Services. For any breach of a warranty above, Your exclusive remedies are those described in the “Termination” and “Refund or Payment upon Termination” sections.

Disclaimers. EXCEPT AS EXPRESSLY PROVIDED HEREIN, NEITHER PARTY MAKES ANY WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND EACH PARTY SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. BETA SERVICES ARE PROVIDED “AS IS,” EXCLUSIVE OF ANY WARRANTY WHATSOEVER. EACH PARTY DISCLAIMS ALL LIABILITY AND INDEMNIFICATION OBLIGATIONS FOR ANY HARM OR DAMAGES CAUSED BY ANY THIRD-PARTY HOSTING PROVIDERS.

Mutual Indemnification

Indemnification by CoachCare. CoachCare will defend You against any claim, demand, suit or proceeding made or brought against You by a third party alleging that any Service infringes or misappropriates such third party’s intellectual property rights (a “Claim Against You”), and will indemnify You from any damages, attorney fees and costs finally awarded against You as a result of, or for amounts paid by You under a settlement approved by CoachCare in writing of, a Claim Against You, provided You (a) promptly give CoachCare written notice of the Claim Against You, (b) give CoachCare sole control of the defense and settlement of the Claim Against You (except that CoachCare may not settle any Claim Against You unless it unconditionally releases You of all liability), and (c) give CoachCare all reasonable assistance, at CoachCare’s expense. If CoachCare receives information about an infringement or misappropriation claim related to a Service, CoachCare may in its discretion and at no cost to You (i) modify the Services so that they are no longer claimed to infringe or misappropriate, (ii) obtain a license for Your continued use of that Service in accordance with this Agreement, or (iii) terminate Your subscriptions for that Service upon 30 days’ written notice and refund You any prepaid fees covering the remainder of the term of the terminated subscriptions. The above defense and indemnification obligations do not apply if (1) the allegation does not state with specificity that the Services are the basis of the Claim Against You; (2) a Claim Against You arises from the use or combination of the Services or any part thereof with software, hardware, data, or processes not provided by CoachCare, if the Services or use thereof would not infringe without such combination; (3) a Claim Against You arises from Services under an Order Form for which there is no charge; (4) a Claim against You is based on traditional online storefront commerce functionality that is or was in general use in the industry; or (5) a Claim Against You arises from content, a third party application or Your use of the Services in violation of this Agreement, the Use Policies or applicable Order Forms.

Indemnification by You. You will defend CoachCare and its affiliates against any claim, demand, suit or proceeding made or brought against CoachCare by a third party alleging that (a) any of Your data or Your use of Your data with the Services, (b) a third party application provided by You, or (c) the combination of a third party application provided by You and used with the Services, infringes or misappropriates such third party’s intellectual property rights, or arising from Your use of the Services in an unlawful manner or in violation of the Agreement, the Use Policies, or Order Form (each a “Claim Against CoachCare”), and You will indemnify CoachCare from any damages, attorney fees and costs finally awarded against CoachCare as a result of, or for any amounts paid by CoachCare under a settlement approved by You in writing of, a Claim Against CoachCare, provided CoachCare (a) promptly gives You written notice of the Claim Against CoachCare, (b) give You sole control of the defense and settlement of the Claim Against CoachCare (except that You may not settle any Claim Against CoachCare unless it unconditionally releases CoachCare of all liability), and (c) give You all reasonable assistance, at Your expense.

Exclusive Remedy. This “Mutual Indemnification” section states the indemnifying party’s sole liability to, and the indemnified party’s exclusive remedy against, the other party for any type of claim described in this section.

Limitation of Liability

Limitation of Liability. IN NO EVENT SHALL THE AGGREGATE LIABILITY OF EACH PARTY TOGETHER WITH ALL OF ITS AFFILIATES ARISING OUT OF OR RELATED TO THIS AGREEMENT EXCEED THE TOTAL AMOUNT PAID BY YOU AND YOUR AFFILIATES HEREUNDER FOR THE SERVICES GIVING RISE TO THE LIABILITY IN THE TWELVE MONTHS PRECEDING THE FIRST INCIDENT OUT OF WHICH THE LIABILITY AROSE. THE FOREGOING LIMITATION WILL APPLY WHETHER AN ACTION IS IN CONTRACT OR TORT AND REGARDLESS OF THE THEORY OF LIABILITY, BUT WILL NOT LIMIT YOUR AND YOUR AFFILIATES’ PAYMENT OBLIGATIONS UNDER THE “FEES AND PAYMENT” SECTION ABOVE.

Exclusion of Consequential and Related Damages. IN NO EVENT WILL EITHER PARTY OR ITS AFFILIATES HAVE ANY LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT FOR ANY LOST PROFITS, REVENUES, GOODWILL, OR INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, COVER, BUSINESS INTERRUPTION OR PUNITIVE DAMAGES, WHETHER AN ACTION IS IN CONTRACT OR TORT AND REGARDLESS OF THE THEORY OF LIABILITY, EVEN IF A PARTY OR ITS AFFILIATES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR IF A PARTY’S OR ITS AFFILIATES’ REMEDY OTHERWISE FAILS OF ITS ESSENTIAL PURPOSE. THE FOREGOING DISCLAIMER WILL NOT APPLY TO THE EXTENT PROHIBITED BY LAW.

General Provisions

Notices. Except as otherwise specified in this Agreement, all notices related to this Agreement will be in writing and will be effective upon (a) personal delivery, (b) the second business day after mailing, or (c), except for notices of termination or an indemnifiable claim (“Legal Notices”), which shall clearly be identifiable as Legal Notices, the day of sending by email. Billing-related notices to You will be addressed to the relevant billing contact designated by You. All other notices to You will be addressed to the relevant Services system administrator designated by You. If to CoachCare, notices shall be addressed to: Account Services, CoachCare, 150 West 28th Street, Suite 502, New York, NY 10001.

Agreement to Governing Law and Jurisdiction. Each party agrees that this Agreement shall be governed by the laws of the state of New York without regard to choice or conflicts of law rules, and to the exclusive jurisdiction of the courts of the state of New York.

Entire Agreement and Order of Precedence. This Agreement is the entire agreement between the parties regarding Your use of Services and supersedes all prior and contemporaneous agreements, proposals or representations, written or oral, concerning its subject matter. Except as otherwise provided herein, no modification, amendment, or waiver of any provision of this Agreement will be effective unless in writing and signed by the party against whom the modification, amendment or waiver is to be asserted.

Assignment. Neither party may assign any of its rights or obligations hereunder, whether by operation of law or otherwise, without the other party’s prior written consent (not to be unreasonably withheld); provided, however, either party may assign this Agreement in its entirety (together with all Order Forms), without the other party’s consent to its affiliate or in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets. Notwithstanding the foregoing, if a party is acquired by, sells substantially all of its assets to, or undergoes a change of control in favor of, a direct competitor of the other party, then such other party may terminate this Agreement upon written notice. In the event of such a termination, CoachCare will refund to You any prepaid fees allocable to the remainder of the term of all subscriptions for the period after the effective date of such termination. Subject to the foregoing, this Agreement will bind and inure to the benefit of the parties, their respective successors and permitted assigns.

Relationship of the Parties. The parties are independent contractors. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between the parties.

Third-Party Beneficiaries. There are no third-party beneficiaries under this Agreement.

Waiver. No failure or delay by either party in exercising any right under this Agreement will constitute a waiver of that right.

Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, the provision will be deemed null and void, and the remaining provisions of this Agreement will remain in effect.

Copyrights and Trademarks. Apple®, the Apple logo and iPhone® are trademarks of Apple Inc., registered in the U.S. and other countries. App Store® is a service mark of Apple Inc. Android, Google and the Google PlayTM logo are trademarks of Google Inc.