SOFTWARE LICENSE AND MARTTI HOSTING SOLUTION TERMS OF USE

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This Software License and Martti Hosting Solution Terms of Use (the “Terms of Use”) provides the relevant terms and conditions governing Client’s connection to the Martti Hosting Solution and the software license to access The Martti Hosting Solution. The Terms of Use are an integral part of the Martti Solution Agreement (the “Agreement”) and the corresponding SOW or SOWs (as the case may be) and are incorporated therein.

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1.0 DEFINITIONS. Unless expressly provided otherwise in these Terms of Use:

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“De-identified Data” means health information that is in Company’s control, but not subject to restriction or use or disclosure under HIPAA.

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“Documentation” means all legends, notices, or other identifying marks and manuals, technical specifications, or user instructions regarding functionality, operation, installation, training, maintenance, and use generally made available by Company to Client with respect to the then current version of The Martti Solution, as modified or updated by Company from time to time.

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“FDA” means the United States Food and Drug Administration of the United States Department of Health and Human Services and any successor agency or entity that may be established hereafter.

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“The Martti Solution” The Martti Solution includes Product, the Software, the Martti Hosting Solution and the Services as requested by Client and more fully set forth in an SOW.

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“Product” means the equipment and hardware product(s) used by Client pursuant to these Terms of Use. Product may include Client supplied vendor products or peripheral supply items to be used in connection with The Martti Solution.

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“Software” means the Company’s: (i) proprietary code and third-party code embedded in the Product, provided on other tangible medium, or delivered in electronic form; (ii) proprietary code and third-party software hosted for use by Clients or third parties, if applicable; and (ii) any Updates or Upgrades.

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“Update” means a new release of the licensed software that contains bug fixes or minor software enhancements indicated by a change in the version number to the right of the first decimal point (e.g., Version 3.5 to 3.6).

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“Upgrade” means a major release of the licensed software that delivers new or enhanced functionality, indicated by a change in the version number to the left of the first decimal point (e.g., Version 2.x to 3.x).

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“Martti Hosting Solution” means the Company’s back-end hosted applications and data services, solely with respect to its utilization by Client for Client’s purpose of providing healthcare solutions to patients using Martti.

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“Patient” or “Individual” or “Member” means the person whom the Client has authorized to access or use the Product or the Martti Solution at any given time.

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“Service(s)” means the hosted service consisting of access to the Martti Hosting Solution and related support services delivered by personnel trained in Client’s proprietary business methods.

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2.0 SOFTWARE LICENSE.

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2.1 Grant of License. During the term of the Agreement, Company hereby grants Client a limited, non-assignable, non-exclusive, non-sublicensable, non-transferable, revocable right and license to access and use the Software, solely for Client’s internal use of The Martti Solution and permitted uses as set forth in these Terms of Use. Such license may include bug fixes, latest upgrades, updates, improvement, security measures, new versions and other modifications to the Software or technology provided by Company to Client. Company accepts no liability for unauthorized use, access, or processing of the Software.

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2.2 Permitted Access and Use. Client shall access and use the Software exclusively for authorized and legal purposes consistent with the Applicable Law (as defined in the Agreement), and these Terms of Use. Client is solely responsible and liable for ensuring the appropriate use of the Software by itself or by its representatives, contractors, sub-contractors, employees, agents or any other person legally authorized by Client (as the case maybe).

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2.3 License Restrictions. Except as expressly permitted in these   Terms of Use, Client shall not (a) sell, resell, distribute, host, lease, rent, license or sublicense the Software or any portion thereof, including, without limitation, to provide processing services to third parties; (b) delete or permit to be deleted any identifying marks, copyright or proprietary right notices of Client from the Software;  (c) shall not copy, display, adapt, reverse engineer, decompile, disassemble, modify or create derivative works of, in whole or in part, any of the software; (d) allow access to, provide, divulge, or make available Software to any third parties; (e) modify, adapt, tamper with, or otherwise make any change to the Software or any part thereof; create internet links or from the Software; or use the Software in a manner not authorized under these   Terms of Use, or in violation of the Applicable Law;  (f) use the Software in a manner that could reasonably be expected to damage or interfere with proper functioning of the Software; or (g) permit or authorize any party to do any of the foregoing. Unauthorized copying of the Software or any aspect of the user interfaces or business methodology constituting a part of the Services, or failure to comply with the restrictions in these Terms of Use (or other breach of the license herein) will result in automatic termination of the Agreement and Client agrees will cause immediate, irreparable harm to Company, its affiliates and/or their licensors for which monetary damages would be an inadequate remedy and that injunctive relief without the necessity of bond will be an appropriate remedy for such breach.

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2.4 Proprietary Rights. Company retains all right, title and interest in the Software, including, without limitation, all copies thereof and all rights to patents, copyrights, trademarks, trade secrets and other intellectual property rights inherent therein and/or appurtenant thereto.  Client shall not, by virtue of these Terms of Use or otherwise, acquire any proprietary rights whatsoever in the Software, such Software being confidential information of Company and the sole and exclusive property of Company.  Any right not expressly granted to Client by the Agreement or Terms of Use is hereby expressly reserved by Company. Company shall retain all right, title and interest in all the extensions, inventions, improvements, developments, database, patches, discoveries etc. (collectively as “Derivatives”), whether or not patentable, arising out or in connection with Software licensed by Company under the Agreement and these Terms of Use.

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2.5 Software Warranty Disclaimer. The Software is provided to Client “as is”.  Company expressly disclaims, and Client hereby expressly waives, all warranties, express or implied, including, without limitation, warranties of title, warranties of merchantability and fitness for a particular purpose, warranties of non-infringement and warranties as to any results to be obtained from any use of the Software or information derived therefrom. Company does not warrant that the Software will meet Client’s requirements or that the operation of the Software will be uninterrupted or error-free, or that errors in the Software will be corrected.

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2.6 Company Software Infringement Indemnity. Company will defend and hold harmless Client, and its affiliates against any third-party claim that Client’s use of the Software infringes a valid U.S. patent, copyright, trade secret or other intellectual property right. If a final injunction is obtained against the Client’s use of the Software, or if in the opinion of Company the Software is likely to become the subject of a successful claim, Company may (i) procure for Client the right to continue using the Software, (ii) replace or modify the Software so that it becomes non-infringing, or (iii) if neither (i) or (ii) are reasonably available, grant the Client a credit therefor and terminate the Agreement and any or all Statement of Work without further obligation or liability.

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2.7 Client Indemnification: Notwithstanding anything to the contrary in the Agreement or these Terms of Use, Client shall indemnify, defend, and hold harmless the Company and its affiliates, directors, officers and employees from and against any and all Claims arising, directly or indirectly, from or with respect to access and use of the Software by Client or its representatives, employees, agents, contractors, sub-contractors, or by any other person legally authorized by Client: (a) integration with any hardware, system, network, service, or other integration whatsoever that is neither provided by Company nor authorized by Company in the Agreement or these Terms of Use; or (b) access and use of Software outside the purpose, scope or manner authorized by the Agreement or these Terms of Use or the SOW or the additional SOW’s, (c) access and use of Software in any manner contrary to Company’s instructions or specification set forth in the Agreement or these Terms of Use; or (d) unauthorized disclosure or copying of Software or Company’s Confidential Information or any portion thereof or failure to comply with restrictions of access and use of the Software.

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3.0 ACTIVATION AND CONFIGURATION OF MARTTI HOSTING SOLUTION. Company or its designee shall facilitate configuration and activation of Client’s account within the Martti Hosting Solution pursuant to the applicable SOW. The configuration and activation of the Martti Hosting Solution is based upon information furnished to Company by Client. Client agrees to implement the technical, connectivity, networking, environment, infrastructure, support, and mobile device management requirements in relation to Software as listed in “Technical Specifications and Requirements” of these Terms of Use. Client will be responsible for complying with those procedures, and for ensuring that their respective agents and employees do so on their behalf.

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3.1 Restricting Access to the Martti Hosting Solution. Upon reasonable prior notice, Company may restrict access to the Martti Hosting Solution, if, in Company’s reasonable judgment, use of the Martti Hosting Solution by Client: (i) presents a significant and material security risk; (ii) violates applicable laws, governmental regulations, or court or government agency order; or (iii) violates or infringes any intellectual property right.

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3.2 Client Requirements. In order for Company and its designees to perform its obligations under these Terms of Use (including warranty obligations), Client agrees to:

3.2.1 Be solely responsible for procuring any and all Vendor Products it requires for use in connection with The Martti Solution.

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3.2.2 Obtain and maintain all licenses, permits, and other approvals necessary for installation and use (each as applicable) of The Martti Solution provided under the Agreement or the applicable SOW or these Terms of Use.

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3.2.3 Obtain all applicable Patient or Individual consents prior to using The Martti Solution in accordance with the Health Insurance Portability and Accountability Act of 1996, as amended and supplemented (“HIPAA”).

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3.2.4 Provide Company with all required modifications to the Martti Hosting Solution configuration due to inaccuracies or incompleteness of the information furnished by Client, changes in Client’s requirements, or for other reasons attributable to Client.

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3.2.5 Provide Company or its designee reasonable access as necessary to perform Services.

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3.2.6 Promptly place service calls to Company in accordance with these Terms of Use and the applicable SOW and designate a Client representative with the necessary skills to assist Company Innovations in the diagnosis of service problems.

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3.2.7 Restrict or prevent access to the Software or to Company’s Confidential Information to any person who is not trustworthy and willing and able to comply with the provisions of the Agreement and the applicable SOW.

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3.2.8 Comply with all applicable laws and regulations, including FDA

4.0 DATA OWNERSHIP.

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4.1 Ownership. All patient information and Confidential Information provided or submitted by or on behalf of Client to Company and/or the Software transmitted to or received, processed, or accessed by Company in the course of Company’s performance of the Agreement, these Terms of Use, and/or through the Company network in connection with the Software (“Client Data”) that exists in Company’s network at any given time is the property of Client. Client Data includes Protected Health Information (as defined under HIPAA).

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4.2 Limited Data License. Subject to the conditions set forth in these Terms of Use and the Agreement, Client hereby grants to Company and, to the extent necessary for the provision and performance of the Services, its employees and representatives a limited, revocable-at-will, non-exclusive, non-transferable (except as expressly permitted herein) limited license to Client Data and to receive and use such data as necessary to carry out its obligations contemplated by the Agreement for Client’s benefits, proper management or administration.

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4.3 Company Rights to De-Identified Data. Client agrees that Company may access and use De-identified Data without restriction in compliance with all applicable privacy or data protection statutes, rules or regulations. Client agrees that Company may aggregate accessed De-Identified Data to facilitate analytics, generating insights or development of proactive models.

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4.4 Data Privacy and Security. Company will not view, de-encrypt, or otherwise access an individual’s Protected Health Information (“PHI”) or an individual’s individually identifiable health Information (“PII”) (as those terms are defined in HIPAA) unless such access is consented to by Client or a Patient or Individual of Client. Company will maintain, implement and enforce safety and security procedures in accordance with Company’s security policies in effect from time to time.

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5.0 INDEMNIFICATION

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5.1 Conditions Precedent to Indemnification. An indemnifying Party’s obligations hereunder are conditioned on (i) the indemnified Party providing reasonably prompt notification in writing of a claim subject to indemnification; (ii) the indemnifying Party having sole control of the defense or settlement of the claim; (iii) the indemnified Party fully and timely cooperating and providing all requested authority, information, and assistance to the indemnifying Party to defend any such suit or proceeding properly (at the expense of the indemnifying Party). The indemnified Party may participate in any such suit or proceeding through counsel of its choice at its own expense; however, costs associated with the indemnified Party’s counsel shall not be deemed damages or costs for purposes of the indemnifying Party’s indemnity hereunder. The indemnifying Party will not be responsible for any costs or expenses of, or be bound by, any settlement or compromise incurred or made by indemnified Party, nor may such settlement or compromise be used in any way against the indemnifying Party, without the indemnifying Party’s prior written consent.

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5.2 Apportionment of Damages and Costs. In the event of a lawsuit or other proceeding subject to indemnification under the Agreement or these Terms of Use, each Party reserves the right to seek apportionment or reimbursement of defense costs and expenses incurred defending against a claim based on the acts, omissions, negligence, professional malpractice, infringement, or other fault of the each Party or its officers, directors, employees, members, agents, or representatives, and each Party’s obligation to pay any damages or costs finally awarded against the other Party, its officers, directors, employees, members, agents, or representatives under such circumstances shall be limited to those damages and costs allocated to the other Party in accordance with the apportionment of fault between the Parties in the lawsuit.

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6.0 Limitation of Liability. These Terms of Use and applicable SOW or SOWs (as the case may be) shall govern all terms governing limitation of liability and exclusions to limitations of liability.

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7.0 Warranty Disclaimer. EXCEPT AS PROVIDED IN THE AGREEMENT (AND APPLICABLE SOFTWARE LICENSE AND TERMS OF USE), COMPANY DOES NOT MAKE OR OFFER ANY OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING ANY IMPLIED WARRANTIES CONCERNING MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.

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8.0 Trademarks, Logos and Branding. Company and Client will each retain sole responsibility for development, administration and management of branding and licensing programs for their own marks and brands. Neither party shall use the other party’s name, logos, or trademarks to market its products without the other party’s express written permission. Furthermore, Company and Client agree both parties to have internal policies regarding the publicity of their name, trade or service marks, logo and other commercial uses of their corporate names. Prior to publication of any material, including, but not limited to electronic publications, under these Terms of Use or the Agreement, either party will obtain the prior written consent of the other party. All marketing related material developed as a part of these Terms of Use must comply with applicable policies of each party.

TECHNICAL SPECIFICATIONS AND REQUIREMENTS

Client agrees to implement below technical, connectivity, networking, environment, infrastructure, support, and mobile device management requirements:

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1. Client Environment & Infrastructure. During the term, Client shall be responsible for, at its own cost and expense, procuring, installing, improving, upgrading, modifying and maintaining any computer systems, telephone equipment, networking hardware and/or software and other equipment (including those Services delivered by Company) as may be necessary to enable Company to meet its obligations herein.  This nominally includes, but is not limited to:

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1.1 Network Client shall provide at its cost a digital or data network compatible with the Services including any equipment for use at Client’s facilities. This will require at least 512K of bandwidth per simultaneous call.

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1.2 Equipment Client is solely responsible for acquiring and installing any end-point hardware or software not specified in the documentation as being provided by Company that is necessary for Client to access the services through operation of the Software.

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1.3 Solution Support. Client agrees to designate an individual for Company to coordinate with and work through as required to enable Company to optimally deliver, maintain, and support the Services.

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1.4 Mobile Device Management. Client agrees to manage all end-point devices accessing any capabilities of the Solution(s) (including those Client provides, aka BYOD) via a device management process (e.g., Mobile Device Management solution), minimally ensuring anti-virus, anti-malware, and equipment and software updates per manufacturer’s guidelines, delivered by Company as part of the Service.

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1.4.1 Client may contract with Company to provide such Service as an element of the Software for devices obtained from Company.

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1.4.2 Should Client contract with Company to deliver such services, Client shall make exclusive access to all Martti-owned devices accessing any capabilities of the Software available to Client.

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1.5 Advanced Notice. Except for Force Majeure, Client will notify Company at least 24-hrs in advance of any changes to be made to the networking or infrastructure that may impact Client’s connectivity or deliver of the Services. Company will not be responsible for any outages or hardware incompatibilities that result from such a change.

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1.6 All content developed by the Client or its affiliates, for the purpose of enhancing Software, including but not limited to any specifications, assessments, database, business process or use case workflows or training materials or Derivates shall be exclusive property of the Client. The disclosure of Confidential Information by either of the Party under the Agreement or these Terms of Use does not confer any ownership rights or license in the Confidential Information to the other Party. The provisions of this Section shall continue to apply after expiration or termination of the Agreement.

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2.To enable Company to effectively deliver the Services in a secure, high-reliability way, certain technical capabilities and functionality are required. Therefore, Client shall ensure that it makes available to Company the following:

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2.1 Access to a single point of Technical Support (24 hrs / day, 7 days per week) able to collaborate and work with Company in order to ensure the Solution(s) are optimally operational.

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2.2 Internet Connectivity with 1Mb of bandwidth and capable of supporting TLS encryption.

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2.3 Provision of a network configuration including IP addresses.

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DEVICE REQUIREMENTS

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Use of Client’s Own Devices (“End-Points”). The Client may download the MARTTI application onto certain iOS, Android, or laptop devices, at no additional charge, provided the device meets the technical specifications outlined below. MARTTI may also be accessed via web browsers as noted below.

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Supported Smartphone & Tablet Devices

• Apple:  iPhone, iPad, iPad Pro, or other device meeting iOS versions outlined below
• Android: Smartphones, Tablets, or other devices meeting Android OS versions outlined below

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Windows & Apple Desktop/Laptop Requirements:

• Computer with USB or built-in video camera with 720p or higher resolution
• Functioning Microphone
• Functioning Speakers

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Recommended Browsers:

Google Chrome 96 or newer

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Operating Systems:  

• iOS 16.4.1 or Newer
• Android 13 or Newer
• Windows: Windows 10 or Newer
• Mac OSX: Mojave 10.15 or Newer

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Display Resolution:  

1920×1080 is recommended for ideal Video Acuity

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Memory:

8 GB of RAM minimum (16 GB recommended)

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Martti Language Interpretation Service Level Agreement

During the Term, the Company shall provide the Martti Solution to the Client in accordance with the service levels set forth below, which shall be calculated at the corresponding Measurement Periods:

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Company shall track its performance with respect to the above service levels. In the event that Company fails to achieve any one of the service levels three (3) times in a quarter, or the “Service Uptime” service level falls below 99% in three separate months in a calendar year, Company shall credit the Customer an amount equal to 1% of Customer’s invoices, in the aggregate, for that quarter, unless the Client language demand mix changes in any specific language +/- 3% in the same time period. A “quarter” is defined as a three-calendar-month period beginning on any of the following dates in the calendar:  January 1, April 1, July 1, or October 1.

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Company shall credit all service level credits towards the next invoice following that quarter or, if the Agreement expires or terminates (for any reason), Company shall promptly provide the service level credits in the form of a refund.

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