VocalMD

1. Services

(a) VocalMD will provide the Services to medical providers who subscribe to the Services electronically via the Site. Upon your electronic signature to this Agreement, VocalMD grants you the non-exclusive, nontransferable right to use the Services. You may not copy or modify, create derivative works in respect of, enhance, otherwise alter or distribute any aspects of the Services. Your rights to use the Services are conditional on your compliance with the terms of this Agreement

(b) Unless otherwise specified, your Services Term shall continue on a month-to-month basis. Either party may terminate at any time and without penalty upon thirty (30) days written notice.

(c) We make every reasonable effort to ensure that our Services will continuously operate, but we make no warranty or representation that the Services will be available at all times or successfully operate. Access to and operation of the Services is dependent on services, equipment, and third parties over whom we have no control, such as internet service providers. You agree that we have no liability regarding access to or operation of the Services for any reason.

2. Compliance & Data Use

(a) You hereby represent and warrant that you are appropriately credentialed as a medical provider as required by applicable laws and regulations, this may include but is not limited to a medical license, medical certification, board certification, nursing degree, social work degree, or other professional allied health certification. If you are registering as a specialist, you further represent and warrant that you are a Board Certified physician in the specified field in which you practice. You also hereby represent and warrant to notify VocalMD in writing immediately should your credentialing or license to practice in the specified field as a physician or medical provider expire or otherwise be terminated. This Agreement shall terminate automatically upon such termination or expiration of your license or credentials, and you agree not to use the Services if your licensing or credentialing is not active or in good standing

(b) You will maintain, at your own cost, and keep in force, adequate policies providing comprehensive general liability, professional liability and other insurance, as may be necessary to insure you or your agents and employees against any claim or claims for damages arising out of the rendering of or failure to render professional services, including any professional services rendered over the Services. The policy limits of professional malpractice coverage shall be no less than one million ($1,000,000) dollars per occurrence and three million ($3,000,000) dollars in the aggregate.

(c) In order for VocalMD to provide Services, you grant VocalMD the right to extract, transmit, store and use information and data related to the Services including but not limited to medical notes and patient information (collectively “Data”). We strive to protect the security and privacy of the Data, and shall protect the Data in compliance with. You hereby represent, warrant and covenant that you have the right to provide any such Data to VocalMD via the Services in compliance with all applicable law.

(d) You agree to comply with all applicable laws, including all privacy, data security, and data protection laws and regulations, including HIPAA. You agree that you are the controller of any personal information provided to VocalMD, and that VocalMD is the processor of that information

(e) You agree that any medical or professional services or advice (“Professional Advice”) you receive from any physician, specialist physician or other licensed provider (collectively, “Other Professionals”) through use of the Services is solely and exclusively for your own use in making decisions regarding the treatment and care of your patients, and You will use or rely upon any such Professional Advice in your sole and exclusive discretion and professional judgment. You agree that You have all responsibility and liability for your use or reliance upon any Professional Advice received from Other Professionals through the Services, and no such Other Professional bears any part or portion of any responsibility or liability for any Professional Advice rendered to you or on behalf of any of your patients.

(f) You agree to comply with abide by all applicable laws regarding the sending of electronic messages, including the CAN SPAM Act of 2003 and HIPAA.

(g) You agree that for the purposes of any Services that involve the collection, processing, storage, or disclosure of California residents’ or households’ personal information, VocalMD is a service provider, as defined by the California Consumer Privacy Act, California Civil Code 1798.100-1798.199. VocalMD understands and agrees that to the extent that the California Consumer Privacy Act applies to work that VocalMD performs for you, VocalMD is prohibited from retaining, selling, using, or disclosing California residents’ personal information that it receives pursuant to the Services it provides under this Agreement for any purpose other than for the specific purpose of performing the Services provided for in this Agreement, any order form, any contract, or as otherwise permitted by the California Consumer Privacy Act, including retaining, selling, using, or disclosing the California resident’s personal information for a commercial purpose other than providing the Services specified in this Agreement or any order form. This paragraph does not apply to the collection, use, retention, sale, or disclosure of personal information that is de-identified or aggregate consumer information. For the avoidance of doubt, any terms used in this paragraph are as defined by the California Consumer Privacy Act.

(h) VocalMD shall have the right to use such deidentified Data at its discretion to track the medical histories and activities of your patients on a deidentified basis and to create and provide information and analytics about your patients. VocalMD may also share individual and attributable Data with commercial payers or its customers. VocalMD shall also have the right to track your Data, and to provide information and analytics about such Data to our clients. While you will have choices as to how to connect with other providers through the Services, VocalMD may also use the deidentified Data to audit individual provider practices of its Subscribers to ensure quality patient outcomes.

(i) VocalMD may use one or more third-party services, including text messaging service providers to collect and store Data, each of which will abide by the terms of this Agreement and our Privacy Policy.

3. Fees and Payment to Medical Providers

(a). VocalMD does not charge medical providers any fees to access the system.

(b). VocalMD reimburses Medical Providers a fee per month based on the number of patients they respond to and whether or not they respond. If VocalMD Medical Providers accept incoming requests and never respond, no fees will be paid. VocalMD will send Medical Providers monthly payments to the account or address listed in their profile. VocalMD recommends all Medical Providers discuss this reimbursement with their accountants regarding tax liability, as all payments are on a 1099 basis and no income taxes are withheld. Any fees that have not been disbursed at the end of a month will be promptly paid at the end of the next month. No additional fees or charges will be paid. VocalMD reserves the right to change the Medical Provider fee upon written notification to the emails on file. VocalMD reserves the right to send payments to the Provider’s employer in lieu of to the address on file, in case of employment contracts that stipulate no outside contractual work is allowed.

4. Ownership of Services and Confidentiality.

(a) VocalMD (and/or its affiliates, third-party licensors, and/or suppliers) retain all right, title and interest in and to the Services. The Services are licensed, not sold, and all rights not expressly granted in this Agreement are reserved by VocalMD (and/or its affiliates, third-party licensors, and suppliers). The Services and accompanying written materials and collateral (if any)(collectively, “Materials”) are protected by United States copyright laws and international treaty provisions. VocalMD and its licensors and suppliers own and retain all right, title and interest in and to the Services and Materials, including all copyrights, patents, trade secret rights, trademarks and other intellectual property rights therein. You acknowledge that your possession, installation, or use of the Services does not transfer to you any title to the intellectual property in the Services, and that you will not acquire any rights to the Services except as expressly set forth in this Agreement.

(b) You agree with VocalMD that the Services contain information or material which is proprietary to VocalMD (and/or its other subscribers and third-party suppliers) (“ConfidentialInformation”), which is not generally known other than by VocalMD, and which you may obtain knowledge of through, or as a result of the relationship established hereunder with VocalMD.Without limiting the generality of the foregoing, Confidential Information includes, but is not limited to, the following types of information, and other information of a similar nature (whether or not reduced to writing or still in development): anonymous health and medical data, trends, designs, concepts, ideas, inventions, specifications, techniques, discoveries, models, data, source code, object code, documentation, diagrams, flow charts, research, development, methodology, processes, procedures, know-how, new product or new technology information, strategies and development plans (including prospective trade names or trademarks). You also agree and acknowledge that such Confidential Information has been developed and obtained by VocalMD (and/or its affiliates, third-party licensors, and suppliers) by the investment of significant time, effort and expense, and provides VocalMD with a significant competitive advantage in its business. You agree that you shall not make use of the Confidential Information for your own benefit or for the benefit of any person or entity other than VocalMD, except as expressly authorized in this Agreement and not for any other purpose. You agree to hold in confidence, and not to disclose or reveal to any person or entity, the Services or any other Confidential Information concerning the Services other than to such persons as VocalMD shall have specifically agreed in writing to permit you to so disclose. You agree and acknowledge the purpose of this paragraph is to protect VocalMD’s ability to limit the use of the Services generally to licensees, and to prevent use of Confidential Information concerning the Services by other developers or vendors of apps.

(c) You alone are responsible for any text, images, files or other information that you submit, transmit to, through or in connection with the Services (collectively, “Your Content”). You warrant and represent that Your Content is appropriate to the Services. Your Content must comply with the terms of this Agreement and with all applicable laws and regulations concerning personal information, advertising, marketing, deceptive or unfair trade practices, and any other applicable laws.

(d) You assume all risks associated with Your Content, including anyone’s reliance on its advice, quality, accuracy, or reliability, or any disclosure by you of information in Your Content that makes you or your customers personally identifiable. You may not imply that Your Content is in any way sponsored or endorsed by VocalMD.

(e) We have the right to use Your Content as specified in this Agreement and for purposes of meeting our obligations hereunder to provide the Services to you.

5. Disclaimer

(a) TO THE FULLEST EXTENT PERMITTED BY LAW, THE SERVICES ARE PROVIDED ON AN“AS IS” BASIS AND VOCALMD AND ITS AFFILIATES, THIRD PARTY LICENSORS, VENDORS, AND AGENTS HEREBY DISCLAIM ALL REPRESENTATIONS OR WARRANTIES, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, NON-INFRINGEMENT, AND FITNESS FOR ANY PURPOSE. VOCALMD MAKES NO REPRESENTATION OR WARRANTY RELATED TO THE RELIABILITY, ACCURACY OR COMPLETENESS OF THE SERVICES, NOR DOES IT GUARANTEE THAT THE SERVICES WILL BE SECURE, TIMELY,UNINTERRUPTED, ERROR-FREE OR MEET SUBSCRIBER’S EXPECTATIONS.

6. Termination.

(a) You may terminate your Subscription at any time by providing us with thirty (30) days’ advance written notice of termination. Additionally, we may close your account, suspend your ability to use certain portions of the Services, or your ability to use certain portions of the Services, and/or ban you or third parties altogether from the Services for any or no reason, and without notice or liability of any kind. Any such action could prevent you or third parties from accessing your account, the Services, Your Content, the Data, or any other related information. We reserve the right to modify, update, or discontinue the Services at our sole discretion, at any time, for any or no reason, and without notice or liability.

7. Indemnification and Limitations of Liability.

(a) You shall indemnify, defend and hold harmless us and our affiliates, directors, officers, employees, shareholders and agents, from and against any and all liabilities, claims, damages, injuries or losses arising out of or relating to your use of the Services (including any third party claims related to negative patient outcomes or medical malpractice with respect to theServices), the use or storage of the Data, your operations (including without limitation by any patient), your breach of the Agreement or compliance with any applicable law, including privacy, data security or data protection laws and regulations. This section shall survive the completion, expiration, termination or cancellation of this Agreement. VocalMD may at its own expense participate in the defense and settlement of any claim with its own counsel, and you may not settle a claim without VocalMD’s prior written consent (not to be unreasonably withheld).

(b) TO THE FULLEST EXENT PERMITTED BY LAW, IN NO EVENT WILL VocalMD BE LIABLE(A) FOR ANY LOSS OF USE, LOST DATA, FAILURE OF SECURITY MECHANISMS,PRIVACY OR DATA PROTECTION BREACH, INTERRUPTION OF BUSINESS, OR ANY INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES OF ANY KIND(INCLUDING LOST PROFITS OR LOST DATA), REGARDLESS OF THE FORM OF ACTION,WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE, EVEN IF INFORMED OF THE POSSIBILITY OF SUCH DAMAGES IN ADVANCE OR (B) IN ANY EVENT, FOR ANY DAMAGES OR LIABILITIES EXCEEDING ONE HUNDRED U.S. DOLLARS ($100). SUBSCRIBER ACKNOWLEDGES AND AGREES THAT THIS PARAGRAPH REFLECTS A REASONABLE ALLOCATION OF RISK AND THAT VOCALMD WOULD NOT ENTER INTO THIS AGREEMENT WITHOUT THESE LIABILITY LIMITATIONS. (c) THE PROVISIONS OF THIS SECTION 7 WILL SURVIVE NOTWITHSTANDING ANY LIMITED REMEDY’S FAILURE OF ESSENTIAL PURPOSE AND ANY TERMINATION OF THE AGREEMENT.

8. Miscellaneous.

(a) This Agreement constitutes the entire agreement and understanding between you and VocalMD and supersedes prior agreements between you and VocalMD.

(b) This Agreement will be governed by the laws of the Delaware, and any action based on or alleging a breach of this Agreement must be brought in a state or federal court in state of Delware, and the Parties hereby consent to the exclusive jurisdiction of such courts.

(c) We may modify this Agreement’s terms and conditions at any time with notice to you and continued use of the Services after a change in this Agreement or after implementation of any other new policy constitutes acceptance of such change or policy.