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hc1 Workforce Advisor Subscription Services Agreement, July 3, 2020

THIS SUBSCRIPTION SERVICES AGREEMENT (THE “AGREEMENT”) GOVERNS YOUR ACQUISITION AND USE OF OUR SERVICES. BY ACCEPTING THIS AGREEMENT WHEN EXECUTING AN ORDER FORM THAT REFERENCES THIS AGREEMENT, 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 THESE TERMS AND CONDITIONS, IN WHICH CASE THE TERMS “CUSTOMER” SHALL REFER TO SUCH ENTITY AND ITS AFFILIATES SIGNING AN ORDER FORM. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH THESE TERMS AND CONDITIONS, YOU MUST NOT ACCEPT THIS AGREEMENT AND MAY NOT USE THE SERVICES. CUSTOMER SHOULD CAREFULLY READ THE FOLLOWING TERMS BEFORE EXECUTING AN ORDER FORM. Capitalized terms not defined elsewhere in this Agreement shall have the meaning given to them in the Support and Service Level Agreement posted at https://www.hc1.com/support/.

Capitalized terms not otherwise defined herein shall have the meaning given to them in Section 15.10 (Definitions) below.

This Agreement was is effective between Customer and hc1.com Inc. (“hc1”) as of the date Customer accepts this Agreement, which acceptance shall occur on the Effective Date of the first Order Form signed by Customer and hc1.

hc1 and Customer hereby agree as follows:

1. Subscription Service. Subject to the terms and conditions of this Agreement and any applicable Order Form(s), and during the Term, hc1 hereby grants to Customer a non-exclusive, terminable, non-transferable right and license to access and use the Services pursuant to this Agreement solely for Customer and its Affiliates’ internal business operations and for no other use or purpose.

Customer acknowledges and agrees that the Deliverables are not intended to be a test report under CLIA, and may not be appropriate for clinical decision making, patient care, and similar purposes that need to occur in real-time. Customer acknowledges and agrees access to the Service, and the information contained therein is not a substitute for professional judgment of health care professionals in diagnosing and treating patients. hc1 does not assume any liability or responsibility for damage or injury (including death) to any persons or property arising from any use of or reliance upon any information, idea, or instruction accessed by User through Deliverables.

2. Order Forms. The Service shall be ordered by Customer or its Affiliate(s) pursuant to Order Forms. Each Order Form is attached hereto as “Exhibit A” and shall include, at a minimum, a listing of the Service and Professional Services being ordered and the fees therefor.

3. Term, Fees, Payment & Taxes.

3.1 Term of Agreement. Unless otherwise specified on the Order Form or earlier terminated pursuant to Section 4 hereof, the term of this Agreement shall be for twelve (12) months commencing on the initial Order Form Effective Date (the “Initial Term”). Thereafter, the Term shall be extended as set forth in subsequent Order Forms (each successive renewal term, a “Renewal Term” and collectively, the “Term”). If Customer and hc1 have not approved an Order Form regarding the upcoming Renewal Term prior to the expiration of the then-current Term, the Term shall be automatically extended for successive Renewal Terms of twelve (12) months each, unless either party provides written notice of non-renewal to the other at least ninety (90) days before such expiration.

3.2 Fees and Payment. Customer shall pay hc1 the fees for the Service (“Subscription Fees”), as specified in each Order Form. All payments shall be made in United States Dollars (USD). Purchase of additional subscriptions of the Service, or purchase of additional Users during a Term, will co-terminate with and be prorated through the end of the then-current Term. Subscription Fees on all subsequent Order Forms and for all Renewal Terms shall be set at then-current hc1 pricing.

3.3 Taxes. Subscription Fees do not include any local, state, federal or foreign taxes, levies, or duties of any nature, including value-added, sale, use, or withholding taxes (“Taxes”). Customer is responsible for paying all Taxes, excluding only taxes based on hc1’s net income. If hc1 has the legal obligation to pay or collect Taxes for which Customer is responsible under this Section, the appropriate amount shall be invoiced to and paid by Customer unless Customer provides hc1 with a valid tax exemption certificate authorized by the appropriate taxing authority.

3.4 Late Payments. Late payments shall be subject to a service charge equal to 1.5% of the amount due (calculated on a monthly basis) or the maximum amount allowed by law, whichever is less.

4. Termination. Either party may immediately terminate this Agreement and all Order Forms issued hereunder in the event the other party commits a material breach of any provision of this Agreement, which breach is not cured within thirty (30) days of written notice from the non-breaching party. Such notice by the complaining party shall expressly state all of the reasons for the claimed breach in sufficient detail to provide the allegedly breaching party a meaningful opportunity to cure such alleged breach. Upon termination or expiration of this Agreement for any reason, Customer and/or its Affiliate(s) shall have no rights to continue use of the Service. If this Agreement is terminated by Customer for any reason other than a material breach by hc1, Customer agrees that hc1 shall be entitled to all of the fees including, without limitation, the Subscription Fees, due under this Agreement for the then-current Term. If this Agreement is terminated as a result of a breach on hc1’s part, hc1 shall refund the pro-rata portion of any Subscription Fees paid by Customer to hc1 under this Agreement for the terminated portion of the Term.

5. Users, Passwords, Access, and Notification. Customer shall authorize access to and assign unique passwords and usernames to the number of Users purchased by Customer on the Order Form. User logins are for designated Users and cannot be shared or used by more than one (1) User, but any User login may be reassigned to another User as needed. Customer will be responsible for the confidentiality and use of User’s passwords and usernames.

6. Customer’s Lawful Conduct. Customer shall comply with all applicable laws regarding the transmission of technical data exported from the United States and the country in which its Users are located. Except as permitted by this Agreement, no part of the Service may be copied, reproduced, distributed, republished, displayed, posted or transmitted in any form or by any means. Customer agrees not to access the Service by any means other than through the interfaces that are provided by hc1. Customer shall not do any “mirroring” or “framing” of any part of the Service specific to the Service or create Internet links to the Service which include log-in information, usernames, passwords, and/or secure cookies. Customer shall ensure that all access and use of the Service by Users is in accordance with the terms and conditions of this Agreement, including but not limited to those Users that are contractors and agents, and Customer’s Affiliates. Any action or inaction of Customer’s employees, contractors, agents are deemed those of Customer, and Customer is responsible for such actions and inaction.

7. Confidentiality. For purposes of this Agreement, “Confidential Information” shall include the terms of this Agreement, Customer Data, each party’s proprietary technology, intellectual property, trade secrets, business processes and product information, designs and issues and any information (whether or not reduced to writing or designated as confidential). Confidential Information shall not include: (a) information which is known publicly; (b) information which is generally known in the industry before disclosure; (c) information which has become known publicly, without fault of the receiving party, subsequent to disclosure by the disclosing party; or (d) information which the receiving party receives from a third party without a duty of confidentiality, where such third party had the lawful right to disclose such information to the receiving party. Each receiving party agrees (a) to keep confidential all Confidential Information, (b) not to use or disclose Confidential Information, except to the extent necessary to perform its obligations or exercise its rights under this Agreement or as directed by the disclosing party, (c) to protect the confidentiality thereof in the same manner as it protects the confidentiality of similar information and data of its own (at all times exercising at least a reasonable degree of care in the protection of such Confidential Information), and (d) to only make Confidential Information available to authorized persons of the receiving party on a “need to know” basis. Receiving party may disclose Confidential Information on a need to know basis to its contractors and service providers who have executed written agreements requiring them to maintain such information in strict confidence and use it only to facilitate the performance of their services in connection with the performance of this Agreement. Notwithstanding the foregoing, this Section will not prohibit the disclosure of Confidential Information to the extent that such disclosure is required by law or order of a court or other governmental authority or regulation.

All title and intellectual property rights in and to the Customer Data are owned exclusively by Customer. Upon signing, Customer acknowledges and agrees to hc1 providing Customer Data to third parties, provided the individual associated to the Customer Data has consented for his/her data to be shared as a part of the Service. Customer service marks, logos, and product and service names are marks of Customer (the “Customer Marks”). Customer grants hc1 during the Term the right to display the Customer Marks on its websites and marketing and other promotional materials. Customer acknowledges and agrees that in connection with the Service, hc1, as part of its standard service offering, makes backup copies of the Customer Data in Customer’s account and stores and maintains such data for a period of time consistent with hc1 standard business processes.

8. Transmission and Processing of Customer Data; Use of Certain Data. Customer understands that Customer’s use of the Service may require the processing and transmission of Customer Data by Customer, hc1, or their subcontractors. hc1 is not responsible for any Customer Data which are delayed, lost, altered, intercepted or stored during the transmission of any data by means of third-party networks (other than third parties providing computing or storage services on behalf of hc1). Customer shall promptly notify hc1 of a loss or suspected loss or unauthorized access of the Customer Data. Without limiting Customer’s rights and remedies under this Agreement, Customer acknowledges that Customer Data and information regarding Customer’s account will be processed by hc1 and stored and processed using online hosting services selected by hc1, such as Amazon Web Services. Customer further acknowledges that certain Customer employees require access to Customer Data to perform services on behalf of Customer, and Customer approves this limited access. hc1 may access, use, aggregate, and disclose Customer’s De-Identified Data alone or with that of other Users or customers of the Service or Professional Services, as well as other non-personal data generated by the operation of the Service in connection with improving the Service, establishing benchmarks, and other uses which are not prohibited by law, provided that in no event may hc1 or the Reseller publish or disclose such data to third parties without removing Customer’s name, and all other information which could identify the Customer, from such data. As used herein, (a) “Customer Data” means all electronic data or information submitted to the Service by Customer or its Users, (b) “De-Identification” or “De-Identified” means the de-identification of data in accordance with 45 C.F.R. §164.514(a)-(c), as the same may be amended or succeeded from time to time, and (c) “De-Identified Data” means data that has been De-Identified.

9. hc1 Intellectual Property Rights. Customer agrees that all rights, title, and interest in and to all intellectual property rights in the Service are owned exclusively by hc1 or its licensors. Except as provided in this Agreement, the license granted to Customer does not convey any rights in the Service, express or implied, or ownership in the Service or any intellectual property rights thereto.

10. Restrictions. Customer is responsible for all activities conducted under its User logins and for its Users’ compliance with this Agreement. Customer’s use of the Service shall not include service bureau use, outsourcing, renting, reselling, sublicensing, concurrent use of a single User login, or time-sharing of the Service. Customer shall not and shall not permit any third party to (a) copy, translate, create derivative works of, reverse engineer, reverse assemble, disassemble, or decompile the Service or any part thereof or otherwise attempt to discover any source code of modify the Service in any manner or form, (b) for data provided in a de-identified dataset, attempt to re-identify the data, (c) use unauthorized modified versions of the Service, including (without limitation) for the purpose of building a similar or competitive product or service or for the purpose of obtaining unauthorized access to the Service, (d) use the Service in a manner that is contrary to applicable law or in violation of any third party rights or privacy or intellectual property rights, (e) publish, post, upload or otherwise transmit Customer Data that contains any virus, Trojanhorses, worms, timebombs, corrupted files or other computer programming routines that are intended to damage, detrimentally interfere with, surreptitiously intercept or expropriate any systems, data, personal information or property of another, or (f) use or knowingly permit the use of any security testing tools in order to probe, scan or attempt to penetrate or ascertain the security of the Service.

11. Suspension/Termination. hc1 reserves the right to suspend Customer’s and any Customer Affiliates’ access to and/or use of the Service for any accounts (a) for which any payment is due but unpaid but only after hc1 has provided Customer a delinquency notice, and at least thirty (30) days have passed since the transmission of the first notice, or (b) for which Customer has not paid for the Renewal Term and has not notified hc1 of its desire to renew the Service by the expiration of the then-current Term. The suspension is for the entire account, and Customer understands that such suspension would, therefore, include Customer Affiliate sub-accounts. Customer agrees that hc1 shall not be liable to Customer or to any Customer Affiliate or other third party for any suspension of the Service pursuant to this Section.

12. Warranties.

12.1 Excluded Provider Warranty. Each party represents and warrants that it is not now and at no time has been excluded from participation in any federally funded health care program, including Medicare and Medicaid. Each party shall immediately notify the other of any actual exclusion from any federally funded health care program, including Medicare and Medicaid. Each party further represents and warrants that, to its knowledge, none of its employees are now excluded from participation in any federally funded health care program, including Medicare and Medicaid. In the event that either party is excluded from participation in any federally funded health care program during the Term of this Agreement, this Agreement shall, as of the effective date of such exclusion or breach, automatically terminate.

12.2. Disclaimer of Warranties. The Service is provided “as is” without warranty of any kind, except as otherwise expressly provided herein, hc1 disclaims all warranties and conditions with regard to the Service, including all implied warranties and conditions of merchantability and fitness for a particular purpose. hc1 cannot guarantee that Customer’s access to the Service will be uninterrupted or error-free.

13. Limitation of Liability. IN NO EVENT SHALL EITHER PARTY BE LIABLE TO ANYONE FOR LOST PROFITS OR REVENUE OR FOR INCIDENTAL, CONSEQUENTIAL, PUNITIVE, COVER, SPECIAL, RELIANCE OR EXEMPLARY DAMAGES, OR INDIRECT DAMAGES OF ANY TYPE OR KIND HOWEVER CAUSED, WHETHER FROM BREACH OF WARRANTY, BREACH OR REPUDIATION OF CONTRACT, NEGLIGENCE, GROSS NEGLIGENCE, WILLFUL MISCONDUCT OR ANY OTHER LEGAL CAUSE OF ACTION FROM OR IN CONNECTION WITH THIS AGREEMENT (AND WHETHER OR NOT THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES) TO THE MAXIMUM EXTENT PERMITTED BY LAW AND SHALL IN NO EVENT EXCEED THE DIRECT DAMAGE LIMITATIONS AS SET FORTH IN THIS SECTION 13 BELOW.

Except with regard to amounts due under this Agreement, liability arising out of or in connection with the Service, any Professional Services or Deliverables, liability resulting from gross negligence or willful misconduct, or claims subject to indemnification as set forth in Section 13 hereof, the maximum liability one party may have to the other party whatsoever arising out of or in the connection with any license, use or other employment of the Service, whether such liability arises from any claim based on breach or repudiation of contract, breach of warranty, negligence, tort, or otherwise, shall in no case exceed Three Million Dollars ($3,000,000).

14. Indemnification.

14.1 Infringement. hc1 shall, at its own expense and subject to the limitations set forth in this Section, defend Customer from and against any and all allegations, threats, claims, suits, and proceedings brought by third parties (collectively “Claims”) alleging that the Service, as used in accordance with this Agreement, infringes third party copyrights, trade secrets or trademarks and shall indemnify and hold Customer harmless from and against liability, damages and costs finally awarded or entered into in settlement (including, without limitation, reasonable attorneys’ fees) (collectively, “Losses”) to the extent based upon such a Claim. If a Claim of infringement is brought or threatened, hc1 shall, at its sole option and expense, use commercially reasonable efforts either (a) to procure a license that will protect Customer against such Claim without cost to Customer, (b) to modify or replace all or portions of the Service as needed to avoid the alleged infringement, such update or replacement having substantially similar or better capabilities, or (c) if (a) and (b) are not commercially feasible, terminate this Agreement and refund to Customer a pro-rata refund of the Subscription Fees paid for under this Agreement for the terminated portion of the Term. The rights and remedies granted to Customer under this Section 14.1 state hc1’s entire liability, and Customer’s exclusive remedy, with respect to any claim of infringement of the intellectual property rights of a third party.

14.2 Indemnification Procedures and Survival. In the event of a potential indemnity obligation under this Section, the indemnified party shall (a) promptly notify the indemnifying party in writing of such Claim, (b) allow the indemnifying party to have sole control of its defense and settlement (provided that the indemnifying party shall make no admission of fault or wrongdoing or other statement reflecting negatively on the indemnified party without the indemnified party’s prior express written consent), and (c) upon request of the indemnifying party, cooperate in all reasonable respects, at the indemnifying party’s cost and expense, with the indemnifying party in the investigation, trial, and defense of such Claim and any appeal arising therefrom. The indemnification obligations under this Section are expressly conditioned upon the indemnified party’s compliance with this Section 14.2 except that failure to notify the indemnifying party of such Claim shall not relieve that party of its obligations under this Section, but such Claim shall be reduced to the extent of any damages attributable to such failure. The indemnification obligations contained in this Section shall survive termination of this Agreement for one (1) year.

15. General Provisions.

15.1 Assignment. Neither party may assign this Agreement without written consent of the other; provided, however, that hc1 may assign this Agreement and delegate its obligations hereunder to any of its affiliates, or to a successor, by way of merger or consolidation or the acquisition of substantially all of the business and/or assets relating to the subject matter of this Agreement, without Customer’s prior written consent. Subject to the foregoing, this Agreement shall be binding on and inure to the benefit of the parties hereto and their respective successors and permitted assigns.

15.2 Governing Law; Jurisdiction; Venue. This Agreement shall be governed in accordance with the laws of the State of Indiana and any controlling U.S. federal law and excluding the Uniform Computer Information Transactions Act (UCITA) and the United Nations Convention on Contracts for the International Sale of Goods (CISG). Any disputes, actions, claims or causes of action arising out of or in connection with this Agreement (or the Service) shall be subject to the exclusive jurisdiction of the state and federal courts located in the Southern District of Indiana, Indianapolis Division.

15.3 Attorneys’ Fees and Costs. The prevailing party in any action to enforce this Agreement will be entitled to recover its attorneys’ fees and costs in connection with such action. In the event of any litigation or any controversy or dispute arising out of or in connection with this Agreement, its interpretations, its performance or the like, the prevailing party shall be awarded reasonable attorneys’ fees and/or costs. If any provision is held by a court of competent jurisdiction to be contrary to law, such provision shall be eliminated or limited to the minimum extent necessary so that this Agreement shall otherwise remain in full force and effect.

15.4 Manner of Giving Notice. 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 or (b) the second business day after mailing.

15.5 Amendments; Waivers. No supplement, modification, or amendment of this Agreement will be binding unless executed in writing by a duly authorized representative of each party to this Agreement. No waiver will be implied from conduct or failure to enforce or exercise rights under this Agreement, nor will any waiver be effective unless in writing signed by a duly authorized representative on behalf of the party claimed to have waived.

15.6 Third Party Beneficiaries. There are no third-party beneficiaries to this Agreement. This Agreement does not create any joint venture, partnership, agency, or employment relationship between the parties, although hc1 reserves the right to name Customer as a User of the Service.

15.7 Non-Solicitation/Non-Hire. During the Term, Customer will not directly or indirectly solicit, employ or engage the services of any of the employees and/or contractors of hc1 who were involved in providing Professional Services under or relating to this Agreement without prior written permission of hc1.

15.8 Force Majeure. Neither party shall be liable for any loss or delay (including failure to meet the service level commitments) resulting from any force majeure event, including, but not limited to, acts of God, fire, natural disaster, terrorism, labor stoppage (other than those involving hc1 employees), Internet service provider failures or delays, civil unrest, war or military hostilities or criminal acts of third parties (collectively, a “Force Majeure Event”), and any payment date or delivery of Service date shall be extended to the extent of any delay resulting from any Force Majeure Event.

15.9 Entire Agreement. This Agreement, including all exhibits, addendums, Order Form(s), and/or SOW(s) shall constitute the entire understanding between Customer and hc1 and is intended to be the final and entire expression of their agreement. The parties expressly disclaim any reliance on any and all prior discussions, emails, Requests for Proposals and/or agreements between the parties. Under no circumstances will the terms, conditions or provisions of any purchase order, invoice or other administrative document issued by Customer in connection to this Agreement be deemed to modify, alter or expand the rights, duties or obligations of the parties under, or otherwise modify this Agreement, regardless of any failure of hc1 to object to such terms, provisions or conditions. Sections 3.2, 3.3, 3.4, 7, 9, 10, 12.2, 13, 14, 15.2, 15.3, 15.4, 15.5, 15.6, 15.8, 15.9, and 15.10 of this Agreement shall survive the termination or expiration of this Agreement.

15.10 Definitions.

“Affiliates” means any entity which directly or indirectly, through one or more intermediaries, controls, or is controlled by, or is under common control with Customer, by way of majority voting stock ownership or the ability to otherwise direct or cause the direction of the management and policies of Customer.

“Customer” shall have the meaning ascribed in the first paragraph of this Agreement.

“Customer Data” means all electronic data or information submitted to the Service by Customer or its Affiliates.

“Deliverables” means the work product(s), other deliverables, and/or training materials provided by hc1 to Customer.

“Order Form” means a hc1 renewal notification or order form in the name of and executed by Customer or a Customer Affiliate and accepted by hc1, which specifies the Service and Professional Services to be provided by hc1 subject to the terms of the Agreement.

“Professional Services” means services performed by hc1’s services team, including, but not limited to, initial activation, configuration, business intelligence reporting, and training.

“Service” means hc1’s online business application suite of services and solutions as described in marketing materials or other documentation, and that is purchased by Customer from hc1 in an Order Form from time to time.

“Users” means individuals who are authorized by Customer to use the Service.