Master Service Agreement

PLEASE READ THE FOLLOWING TERMS AND CONDITIONS (THE “TERMS”), WHICH ALONG WITH ANY APPLICABLE ORDER FORM REFERENCING THESE TERMS (AN “ORDER”) AND ALL SUPPLEMENTAL TERMS THAT MAY BE PRESENTED TO YOU FOR YOUR REVIEW AND ACCEPTANCE (COLLECTIVELY, THE “AGREEMENT”) CONSTITUTE THE AGREEMENT BETWEEN THE ENTITY ACCESSING OR USING THE SERVICE (“YOU” or “CUSTOMER”), AND TURQUOISE HEALTH CO. (“TURQUOISE”). THIS AGREEMENT REPRESENTS THE ENTIRE AGREEMENT CONCERNING THE SERVICE BETWEEN THE PARTIES AND IT SUPERSEDES ANY PRIOR PROPOSAL, REPRESENTATION, OR UNDERSTANDING BETWEEN THE PARTIES. TURQUOISE AND CUSTOMER ARE HEREINAFTER JOINTLY DEFINED AS THE “PARTIES” OR INDIVIDUALLY A “PARTY”.

BY EXECUTING AN ORDER THAT REFERENCES THESE TERMS, OR BY ACCESSING OR USING, OR SUBSCRIBING TO USE, THE SERVICE, YOU ARE ACCEPTING AND AGREEING TO BE BOUND BY AND TO COMPLY WITH ALL THE TERMS AND CONDITIONS OF THIS AGREEMENT (PERSONALLY AND ON BEHALF OF ANY COMPANY OR OTHER LEGAL ENTITY THAT YOU REPRESENT WHEN USING THE SERVICE OR THAT YOU NAME AS THE USER WHEN YOU CREATE AN ACCOUNT), AND YOU REPRESENT AND WARRANT THAT YOU HAVE THE RIGHT, AUTHORITY, AND CAPACITY TO ENTER INTO THIS AGREEMENT AND TO BIND ANY SUCH COMPANY OR LEGAL ENTITY TO THIS AGREEMENT. EACH ORDER IS INCORPORATED HEREIN BY REFERENCE. IF YOU DO NOT AGREE WITH ALL OF THE PROVISIONS OF THIS AGREEMENT, YOU MAY NOT ACCESS AND/OR USE THE SERVICE.

Turquoise may change these Terms from time to time at its sole discretion, and if it makes any material changes, it will attempt to notify You by sending You an email to the last email address You provided to Turquoise and/or posting a notice on Turquoise’s website. Therefore, You agree to promptly notify Turquoise of any changes in your email address. Any material changes to these Terms will be effective upon the (1) earlier of your acceptance of the new Terms or (2) next renewal date of the Agreement pursuant to the applicable Order. Notwithstanding the previous sentence, if you are an Invitee (as defined below), changes to the Terms will be effective immediately.

1. Definitions

• “Access Credentials” means login information, passwords, security protocols, and policies through which Authorized Users access the Service.
• “Affiliate” of a Party means: (a) any entity that such Party controls; (b) any entity that controls such Party; or (c) any entity under common control with such Party. To “control,” for purposes of this definition, means owning or otherwise controlling more than 50% of the voting interests of an entity.
• “Authorized User” means an employee or contractor of Customer who is authorized by Customer to access and use the Service on Customer’s behalf, and who has been issued a Service account by Customer that is associated to a unique email address with a domain name owned or controlled by Customer.
• “Customer Data” means all data, content, and information submitted by Authorized Users into the Service and the Customer-specific output that is generated by Authorized Users’ use of the Service.
• “Documentation” means the user manuals, specifications, and policies, as may be updated from time to time, that describe the functionality, features, operation, or use of the Service and that are made available by Turquoise to Customer.
• “Order” means all written order forms entered into by the parties hereunder and referencing this Agreement, identifying the applicable Service to be made available by Turquoise, and containing the pricing, subscription term, and other specific terms and conditions applicable to the Services.
• “Professional Services” means any professional services related to Customer’s use of the Service, such as consulting, implementation, or training services, provided by Turquoise to Customer as expressly identified in the Order.
• “Service” means Turquoise’s software-as-a-service platform (excluding Customer Data), the provision by Turquoise of the Turquoise Data through such platform, and any other products purchased via an Order. References to the “Service” in this Agreement include the Documentation.
• “Turquoise Data” means publicly available data that has been modified and aggregated by Turquoise using custom data elements, including machine learning programming, to create certain inventions, compilations, creative works, and data sets that are protected by copyright and other intellectual property laws, and made available by Turquoise to Customer through the Service.

2. Turquoise Responsibilities

2.1. Provision of the Service. Subject to the terms and conditions of this Agreement and during the Term, Turquoise will make the Service available to Customer for use by Authorized Users solely for the internal business operations of Customer. Turquoise hereby grants to Customer a non-exclusive, non-transferable (except in accordance with Section 11.3), and non-sublicensable right to access and use the Service as made available by Turquoise.

2.2. Data License. During the Term (as defined below), and subject to the terms of this Agreement, including payment of the fees set forth in any Order, Turquoise hereby grants to Customer a non-exclusive, non-transferable (except in accordance with Section 11.3), and non-sublicensable right to internally use the Turquoise Data.

2.3. Updates and Upgrades. The terms of this Agreement will also apply to updates and upgrades of the Service subsequently provided by Turquoise to Customer. Turquoise may update the functionality, user interfaces, usability, and Documentation from time to time in its sole discretion as part of its ongoing mission to improve the Service. Turquoise may provide ongoing updates to the Turquoise Data and may notify Customer of any changes. However, Turquoise makes no representations or warranties that any particular information or data will be a part of the Turquoise Data and incurs no obligation herein to furnish any specific updates.

2.4. Protection of Customer Data. Turquoise will maintain commercially reasonable administrative, physical, and technical safeguards designed to prevent unauthorized access to or use of Customer Data under the control of Turquoise.

2.5. Compliance with Laws. Turquoise will comply with all laws applicable to Turquoise’s provisioning of the Service to its customers generally (i.e., without regard to the specific nature of the Customer Data or Customer’s particular use of the Service).

2.6. Support. As part of the Service, Turquoise will provide Customer with Turquoise’s standard support, Documentation, and other online resources to assist Customer in its use of the Service.

2.7. Professional Services. If Professional Services are purchased in the Order, Turquoise will provide to Customer such Professional Services in accordance with the Order. Unless stated otherwise in the Order, any timelines provided in connection with Professional Services are good faith projections and not guarantees.

3. Access to and Use of the Service

3.1. Access Credentials. Customer will safeguard, and ensure that all Authorized Users safeguard, the Access Credentials. Customer will notify Turquoise immediately if it learns of any unauthorized use of any Access Credentials or any other known or suspected breach of security regarding the Service or any Turquoise Data.

3.2. Business Associate Agreement. Customer shall not use the Service for accessing, sharing, transmitting, storing, or otherwise processing Protected Health Information (“PHI”) as defined under the Health Insurance Portability and Accountability Act of 1996, as amended, and regulations promulgated thereunder (HIPAA) without first executing a Business Associate Agreement with Turquoise (the “Business Associate Agreement”). Each of Turquoise and Customer will comply with the terms and conditions of the obligations set forth in the Business Associate Agreement entered into by the Parties. In the event that Turquoise discovers that Customer is using the Service for processing PHI, Turquoise shall notify Customer for the purposes of ensuring that a Business Associate Agreement is in place or to address the Customer’s inadvertent disclosure of PHI through the Service.

3.3. Customer Responsibilities. Customer will: (a) obtain any permissions and consents required for Customer and Authorized Users to access Turquoise Data and Customer Data in connection with the Service; (b) be responsible for Authorized Users’ compliance with this Agreement; (c) be responsible for the accuracy, appropriateness, and legality of Customer Data; (d) use commercially reasonable efforts to prevent unauthorized access to or use of the Service and Turquoise Data, and promptly notify Turquoise of any such unauthorized access or use; and (e) use the Service and Turquoise Data only in accordance with applicable laws and government regulations.

3.4. Usage Restrictions. Customer may not: (a) make the Service or any Turquoise Data available to, or use the Service or any Turquoise Data for the benefit of, anyone other than Customer and the Authorized Users; (b) upload, post, transmit, or otherwise make available to the Service any content that (i) is unlawful or tortious, or (ii) Customer does not have a right to make available under any applicable law or under contractual or fiduciary relationships, or that infringes, misappropriates, or otherwise violates any intellectual property, privacy, publicity, or other proprietary rights of any person; (c) sublicense, resell, time share, or similarly exploit the Service or any Turquoise Data; (d) upload, post, transmit, or otherwise make available any content or information designed to interrupt, interfere with, destroy or limit the functionality of any computer software or hardware or telecommunications equipment; (e) reverse engineer, modify, adapt, or hack the Service, or otherwise attempt to gain unauthorized access to the Service or its related systems or networks, or any Turquoise Data; or (f) access the Service to build a competitive product or service.

3.5 Turquoise Data Restrictions. Unless otherwise authorized pursuant to an Order or other agreement between Turquoise and Customer, Customer shall not (a) directly or indirectly, use any Turquoise Data for any purpose other than its own internal business operations or (b) access or use any Turquoise Data to create a product or service that competes with any Turquoise products or services, including the Turquoise Data.

4. Fees

4.1. Fees, Invoicing, and Payment. Customer will pay all fees specified in the Order. Payment obligations are non-cancelable and, except as expressly set forth herein, fees paid are non-refundable. All fees will be invoiced by Turquoise in accordance with the terms set forth in the Order. Full payment for invoices issued must be received within the applicable time period set forth in the Order. If any fees owed by Customer (excluding amounts disputed in reasonable and good faith) have not been paid by the applicable due date, Turquoise reserves the right to apply a finance charge of 1.5% per month on any outstanding balance, or the maximum permitted by law, whichever is lower, and be reimbursed for all expenses of collection.

4.2. Taxes. The fees are exclusive of, and Customer will be solely responsible for, all applicable taxes in connection with this Agreement, including any sales, use, excise, value-added, goods and services, consumption, and other similar taxes or duties (but excluding taxes based on Turquoise’s net income). Should any payment for the services provided by Turquoise be subject to withholding tax by any taxing authority, Customer will reimburse Turquoise for such withholding tax.

4.3. Auditing Rights and Required Records. Customer agrees to maintain complete and accurate records during the Term and for a period of one (1) year after the termination or expiration of this Agreement with respect to matters necessary for accurately determining Customer’s compliance with this Agreement. Turquoise may, at its own expense, on reasonable prior notice, periodically inspect and audit Customer's records and systems to determine Customer’s compliance with this Agreement, provided that if such inspection and audit reveals that Customer has breached any term of this Agreement, Customer shall reimburse Turquoise for the costs of the audit. Such inspection and auditing rights will extend throughout the Term and continue for a period of two (2) years after the termination or expiration of this Agreement.

5. Proprietary Rights

5.1. Turquoise Property. Subject to the limited rights expressly granted to Customer hereunder, Turquoise reserves and retains, and as between Turquoise and Customer, Turquoise exclusively owns, all rights, title, and interest in and to the Service and Turquoise Data, including all modifications, derivative works, upgrades, and updates thereto, and all related intellectual property rights therein. Customer further acknowledges and agrees that: (a) the Turquoise Data is an original compilation protected by United States copyright laws; (b) Turquoise has dedicated substantial resources to collect, manage, and compile the Turquoise Data; and (c) the Turquoise Data constitutes valuable trade secrets of Turquoise. No rights are granted by Turquoise hereunder other than as expressly set forth herein. If Customer or any Authorized User provides Turquoise any feedback or suggestions regarding the Service or any Turquoise Data, then Customer grants Turquoise an unlimited, irrevocable, perpetual, sublicensable, royalty-free license to use any such feedback or suggestions for any purpose without any obligation or compensation to Customer or any Authorized User. Unless otherwise set forth in the Order, Turquoise retains exclusive ownership of all work product created by Turquoise in connection with its performance of Professional Services.

5.2. Customer Data. Customer grants to Turquoise and its Affiliates a worldwide, non-exclusive, limited term license to access, use, copy, distribute, perform, and display Customer Data, and provide necessary access to third party service providers acting on Turquoise’s behalf, such as Turquoise’s hosting services provider, only: (a) to provide, maintain, and update the Service; (b) to prevent or address service or technical problems or at Customer's request in connection with support matters; (c) as compelled by law; or (d) as expressly permitted in writing by Customer. Subject to the limited licenses granted herein, Turquoise acquires no right, title, or interest under this Agreement in or to any Customer Data.

5.3. Analyses. Customer acknowledges and agrees that Turquoise may, during and after the Term, (i) compile statistical and other information related to the performance, operation, and use of the Service, and (ii) collect, use, and analyze information derived from Customer Data in de-identified form (collectively “Analyses”), to create statistical analyses, to improve and enhance the Service, and for research and development purposes in connection with the Service or any other Turquoise offerings. Turquoise retains all right, title, and interest, including all intellectual property rights, in and to Analyses.

6. Confidentiality

6.1. Definition. “Confidential Information” means all confidential 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, including all copies thereof. Confidential Information of Customer includes Customer Data, Confidential Information of Turquoise includes the Service (including its software and content, other than Customer Data), Turquoise Data, and the work product created from its performance of any Professional Services, and Confidential Information of each Party includes the terms of this Agreement. However, Confidential Information will not include any information that: (a) is or becomes generally available to the public without breach of any obligation owed to the Disclosing Party; (b) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party; (c) is received from a third party without breach of any obligation owed to the Disclosing Party; or (d) was independently developed by the Receiving Party without use of or reliance on the Confidential Information of the Disclosing Party.

6.2. Protection. The Receiving Party will: (a) use the same degree of care that it uses to protect the confidentiality of its own confidential information of like kind (but in no event less than reasonable care); (b) not use any Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement; and (c) except as otherwise authorized by the Disclosing Party in writing, limit access to Confidential Information of the Disclosing Party to those of the Receiving Party’s and its Affiliates’ employees, contractors, and agents who need such access for purposes consistent with this Agreement and who are subject to confidentiality obligations at least as restrictive as those herein. The Receiving Party will provide prompt written notice to the Disclosing Party of any unauthorized use or disclosure of the Disclosing Party’s Confidential Information. Upon request of the Disclosing Party during the Term, the Receiving Party will promptly return, or at the Disclosing Party’s option destroy, any or all Confidential Information of the Disclosing Party in the Receiving Party’s possession or under its control.

6.3. Compelled Disclosure. The Receiving Party may disclose Confidential Information of the Disclosing Party if it is compelled by law to do so, provided that the Receiving Party gives the Disclosing Party prior notice of such compelled disclosure (to the extent legally permitted) and reasonable assistance, at the Disclosing Party's expense, if the Disclosing Party wishes to contest the access or disclosure.

7.Representations, Warranties, and Disclaimers

7.1. Mutual Representations. Each Party represents that: (a) it is duly organized, validly existing, and in good standing under its jurisdiction of organization and has the right to enter into this Agreement; (b) the execution, delivery, and performance of this Agreement are within the corporate powers of such Party and have been duly authorized by all necessary corporate action on the part of such Party, and constitute a valid and binding agreement of such Party; and (c) the execution, delivery and performance of this Agreement does not and will not contravene or conflict with or constitute a default or violation of any terms of any other agreement to which such Party is a party.

7.2. Turquoise Warranties. Turquoise warrants to each Customer that: (a) the Service will perform materially in accordance with the applicable Documentation; and (b) Turquoise will perform Professional Services in a professional manner. If Turquoise breaches any of the foregoing warranties in this Section, Customer’s exclusive remedy and Turquoise’s entire liability will be the correction of the breach, or if Turquoise cannot substantially correct the breach within a commercially reasonable amount of time, Customer may terminate this Agreement and Turquoise will refund to Customer any prepaid fees covering the period remaining in the Term after the effective date of such termination.

7.3. Customer Warranties. Customer warrants that it has obtained and will maintain all rights, consents, and permissions necessary for Customer to access and use the Service and Turquoise Data, and to make available the Customer Data to Turquoise for its use as contemplated herein. Customer represents and warrants that Customer has been granted a license through the American Medical Association (“AMA”) or is otherwise permitted independently of this Agreement to utilize any Current Procedural Terminology (“CPT”) or related coding data (“CPT Data”) in the manner that Customer is using or accessing the CPT Data, and that Customer is not relying on any license Turquoise may possess in relation to any CPT Data and hereby waives any claim against or claim to indemnification from Turquoise relating to Customer’s receipt, accessing, or use of any CPT Data.

7.4. Disclaimer. EXCEPT FOR THE EXPRESS WARRANTIES PROVIDED TO THE CUSTOMERS IN SECTION 7.2, THE SERVICE, TURQUOISE DATA, TURQUOISE AI-POWERED TOOLS, AND ALL RELATED COMPONENTS AND INFORMATION ARE PROVIDED ON AN “AS IS” BASIS WITHOUT ANY WARRANTIES OF ANY KIND, AND TURQUOISE EXPRESSLY DISCLAIMS ANY AND ALL OTHER WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. TURQUOISE DOES NOT WARRANT THAT THE SERVICE OR TURQUOISE DATA WILL BE UNINTERRUPTED OR ERROR-FREE. TURQUOISE SPECIFICALLY MAKES NO, AND HEREBY DISCLAIMS ALL, REPRESENTATIONS, WARRANTIES, AND COVENANTS REGARDING, AND ALL LIABILITY FOR, THE ACCURACY, QUALITY, TRUTHFULNESS, COMPLETENESS, OR LEGALITY OF ANY TURQUOISE DATA, OR THAT ANY DATA, INFORMATION, OR MATERIALS THEREIN OR WITHIN THE SERVICE, OR THE RESULTS GENERATED BY THE USE THEREOF, WILL MEET CUSTOMER’S REQUIREMENTS OR ACHIEVE ANY RESULTS. TURQUOISE IS NOT RESPONSIBLE FOR THE SELECTION OF PATIENTS, PROVIDERS, OR PAYORS, ANY PAYOR COVERAGE OR REIMBURSEMENT DETERMINATIONS, OR ANY PATIENT INJURY RESULTING FROM ANY MEDICAL SERVICE IN CONNECTION WITH THE USE OF THE SERVICE. NOTHING IN THIS AGREEMENT MAY BE CONSTRUED TO MAKE TURQUOISE A PARTY TO A CONTRACT OR TRANSACTION PROCESSED THROUGH THE SERVICE. ALTHOUGH TURQUOISE MAY DESIGNATE CERTAIN PROVIDERS AS “VERIFIED PROVIDERS,” TURQUOISE DOES NOT ASSUME ANY RESPONSIBILITY OR LIABILITY FOR ANY DATA OR INFORMATION PROVIDED OR NOT PROVIDED BY SUCH PROVIDERS. THE SERVICE MAY INCLUDE THE USE OF ARTIFICIAL INTELLIGENCE WHICH SHALL BE SUBJECT TO THE SUPPLEMENTAL TERMS AVAILABLE ON THE TURQUOISE WEBSITE.

7.5. Informational Purposes Only. WHILE TURQUOISE MAY PROVIDE ELECTIVE SERVICE PRICING INFORMATION THROUGH THE SERVICE AND/OR TURQUOISE DATA, SUCH INFORMATION IS SOLELY INFORMATIONAL. THE SERVICE MAY INCLUDE THE ABILITY TO INTERACT AND CONTRACT WITH OTHER USERS OF THE SERVICE. TURQUOISE DOES NOT TAKE PART IN, AND TURQUOISE ASSUMES NO RESPONSIBILITY OR LIABILITY FOR, THE INTERACTION BETWEEN USERS. TURQUOISE DOES NOT HAVE CONTROL OVER THE INTEGRITY OR ANY ACTIONS OR INACTIONS OF ANY USERS OF THE SERVICE. WITH REGARD TO CONTRACTS BETWEEN USERS FOR SPECIFIC PROCEDURES AND RELATED PAYMENT RESPONSIBILITIES, TURQUOISE IS NOT RESPONSIBLE FOR THE SELECTION OF PATIENTS, PROVIDERS, OR PAYORS, ANY PAYOR COVERAGE OR REIMBURSEMENT DETERMINATIONS, OR ANY PATIENT INJURY RESULTING FROM ANY MEDICAL SERVICE IN CONNECTION WITH THE USE OF THE SERVICE OR ANY TURQUOISE DATA. ALTHOUGH TURQUOISE MAY DESIGNATE CERTAIN PROVIDERS AS “VERIFIED PROVIDERS,” TURQUOISE DOES NOT ASSUME ANY RESPONSIBILITY OR LIABILITY FOR ANY DATA OR INFORMATION PROVIDED OR NOT PROVIDED BY SUCH PROVIDERS. NEITHER TURQUOISE NOR ITS AFFILIATES OR LICENSORS IS RESPONSIBLE FOR THE CONDUCT, WHETHER ONLINE OR OFFLINE, OF ANY USER OF THE SERVICE.

8. Indemnification

8.1. Turquoise Indemnification. Turquoise will defend Customer and its Affiliates from and against any lawsuit or proceeding brought by a third party to the extent alleging that Customer’s use of the Service as permitted hereunder infringes or misappropriates such third party’s intellectual property rights, and Turquoise will indemnify Customer and its Affiliates for any damages and any reasonable attorneys’ fees finally awarded against them arising from such lawsuit or proceeding; provided, however, that Turquoise will have no liability under this Section to the extent any such lawsuit or proceeding arises from: (a) Customer Data; (b) Customer’s or any of its Affiliates’ or Authorized Users’ negligence, misconduct, or breach of this Agreement; or (c) any modification or combination of the Service that is not performed or approved by Turquoise or specifically set out in the Documentation.

8.2. Customer Indemnification. Customer will defend Turquoise and its Affiliates from and against any lawsuit or proceeding brought by a third party to the extent alleging that any Customer Data infringes, misappropriates, or otherwise violates the rights, including privacy and publicity rights, of any other party, or that Customer’s or any Authorized User’s particular use of the Service violates applicable law, and Customer will indemnify Turquoise and its Affiliates for any damages and any reasonable attorneys’ fees finally awarded against them arising from such lawsuit or proceeding.

8.3. Procedures. The indemnified party will provide the indemnifying party with: (a) prompt written notice of any matter that is subject to indemnification hereunder; (b) the right to assume the exclusive defense and control of any such matter (provided that the indemnified party may participate in the defense at its own expense); and (c) cooperation with any reasonable requests assisting the indemnifying party’s defense of such matter. The indemnifying party may not settle any such lawsuit or proceeding without the indemnified party’s prior written consent.

8.4. Exclusive Remedy. This Section 8 states the indemnifying party’s sole liability, and the indemnified party’s exclusive remedy, for any type of claim described in this Section 8.

9. Limitation of Liability

9.1. Exclusion of Certain Damages. IN NO EVENT WILL EITHER PARTY HAVE ANY LIABILITY TO THE OTHER PARTY OR TO ANY OTHER PARTY FOR ANY LOST PROFITS OR REVENUES OR FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, COVER, OR PUNITIVE DAMAGES, WHETHER OR NOT THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE FOREGOING DISCLAIMER WILL NOT APPLY TO THE EXTENT PROHIBITED BY APPLICABLE LAW.

9.2. Liability Cap Applicable to Customers. EXCEPT FOR CUSTOMER’S LIABILITY FOR ITS PAYMENT OBLIGATIONS UNDER SECTION 4, OR CUSTOMER’S LIABILITY FOR ITS INDEMNIFICATION OBLIGATIONS UNDER SECTION 8, OR CUSTOMER’S LIABILITY FOR ITS BREACH OF ITS CONFIDENTIALITY OBLIGATIONS UNDER SECTION 6, OR CUSTOMER’S LIABILITY FOR ITS WILLFUL MISCONDUCT, IN NO EVENT WILL CUSTOMER’S AGGREGATE LIABILITY RELATING TO THIS AGREEMENT EXCEED THE TOTAL AMOUNT ACTUALLY PAID BY CUSTOMER TO TURQUOISE HEREUNDER IN THE 12 MONTHS PRECEDING THE DATE ON WHICH THE FIRST CLAIM GIVING RISE TO LIABILITY AROSE. MULTIPLE CLAIMS WILL NOT ENLARGE THIS LIMITATION.

9.3. Liability Cap Applicable to Turquoise. EXCEPT FOR TURQUOISE’S LIABILITY FOR ITS INDEMNIFICATION OBLIGATIONS UNDER SECTION 8, OR TURQUOISE’S LIABILITY FOR ITS BREACH OF ITS CONFIDENTIALITY OBLIGATIONS UNDER SECTION 6, OR TURQUOISE’S LIABILITY FOR ITS WILLFUL MISCONDUCT, IN NO EVENT WILL TURQUOISE’S AGGREGATE LIABILITY RELATING TO THIS AGREEMENT EXCEED THE TOTAL AMOUNT ACTUALLY PAID BY CUSTOMER TO TURQUOISE HEREUNDER IN THE 12 MONTHS PRECEDING THE DATE ON WHICH THE FIRST CLAIM GIVING RISE TO LIABILITY AROSE. MULTIPLE CLAIMS WILL NOT ENLARGE THIS LIMITATION.

9.4. Scope. For the avoidance of doubt, the exclusions and limitations set forth in Section 9.1, Section 9.2, or Section 9.3 will apply with respect to all legal theories of liability, whether in contract, tort, or otherwise. The Parties agree that the exclusions and limitations set forth in Section 9.1, Section 9.2 and Section 9.3 allocate the risks between the Parties under this Agreement, and that they have relied on these exclusions and limitations in determining whether to enter into this Agreement.

10. Term, Termination, and Suspension

10.1. Term of the Agreement. The term of this Agreement commences on the effective date set forth in the Order and, unless earlier terminated in accordance with the terms of this Agreement, will continue for the “Initial Term” specified in the Order (the “Initial Term”). Thereafter, this Agreement will automatically renew for successive additional periods of 1 year each (each, a “Renewal Term”) unless either Party provides the other with written notice of non-renewal at least 30 days prior to the expiration of the Initial Term or the then-current Renewal Term. Customer agrees that Turquoise may modify the fees for each Renewal Term by providing Customer with written notice of such modification at least 45 days prior to the expiration of the Initial Term or the then-current Renewal Term, as applicable. The Initial Term and each Renewal Term, if any, are collectively referred to herein as the “Term.”

10.2. Termination for Cause. Turquoise or Customer may terminate this Agreement effective after 30 days’ written notice if the other Party materially breaches this Agreement and such breach is not cured within such 30-day period. Upon any termination for cause by Customer, Turquoise will promptly refund Customer any prepaid fees covering the period remaining in the Term after the effective date of such termination. Upon any termination for cause by Turquoise, Customer will promptly pay Turquoise any unpaid fees covering the period remaining in the Term after the effective date of such termination.

10.3. Suspension. Turquoise may suspend Customer’s or any or all Authorized Users’ access to the Service, in whole in part, if: (a) Customer or any Authorized User is using the Service in violation of this Agreement or any applicable law; (b) Customer’s or any Authorized Users’ systems or accounts have been compromised or unlawfully accessed; (c) suspension of the Service is necessary, in Turquoise’s reasonable discretion, to protect the security of the Service or the infrastructure of Turquoise or its Affiliates; (d) suspension is required by applicable law; or (e) any fees owed by Customer (excluding amounts disputed in reasonable and good faith) are 30 days or more overdue, provided Turquoise has given Customer 10 or more days’ prior notice.

10.4. Effects of Termination. In no event will any termination of this Agreement relieve Customer of its obligation to pay any fees payable to Turquoise for the period of time prior to the effective date of such termination. Upon any termination of this Agreement, Customer and all Authorized Users must immediately cease all use of the Service (including all Turquoise Data). For a period of 30 days following any termination of this Agreement, Turquoise will, upon Customer’s request, provide Customer with an export of all current Customer Data in the format agreed by the Parties. After such 30-day period, Turquoise will have no obligation to maintain or provide any Customer Customer Data and Turquoise will, unless prohibited by applicable law, delete all Customer Customer Data in its systems or otherwise in its possession or under its control in accordance with Turquoise’s then-current data retention and deletion policies. Subject to this Section and the Business Associate Agreement, if applicable, upon any termination of this Agreement and the Disclosing Party’s request, the Receiving Party will promptly return, or at the Disclosing Party’s option destroy, any or all Confidential Information of the Disclosing Party in the Receiving Party’s possession or under its control.

10.5. Survival. The sections titled “Protection of Customer Data,” “Turquoise Data Restrictions,” “Fees,” “Proprietary Rights,” “Confidentiality,” “Indemnification,” “Limitation of Liability,” “Termination for Cause,” “Effects of Termination,” “Survival,” and “General Provisions” will survive any termination of this Agreement.

11. General Provisions

11.1. Attribution. Customer agrees that Turquoise may use Customer’s name, logo, and any other trademarks or service marks provided to Turquoise by Customer (“Customer Marks”) in connection with Customer’s use of the Service and to indicate that Customer is a customer of Turquoise for the Service on Turquoise’s website, marketing materials, and in communications with existing or prospective Turquoise customers. Any such attribution will be consistent with Customer’s reasonable style guidelines or requirements as communicated to Turquoise by Customer. Customer retains ownership of all Customer Marks and hereby grants Turquoise a non-exclusive license during the Term to use the Customer Marks for the purpose of exercising Turquoise’s rights under this Section.

11.2. Force Majeure. Except for payment obligations, neither Party will be liable hereunder by reason of any failure or delay in the performance of its obligations due to events beyond the reasonable control of such Party, which may include natural disasters, fires, epidemics, pandemics, riots, war, terrorism, denial of service attacks, internet outages, labor shortages, and judicial or government action.

11.3. Assignment. Neither Party may assign any of its rights or obligations hereunder, whether by operation of law or otherwise, without the prior written consent of the other Party. Notwithstanding the foregoing, either Party may assign or transfer this Agreement in its entirety, without the consent of the other Party, in connection with a merger or sale of all or substantially all of its assets. Any purported assignment in violation of this Section will be null and void. This Agreement will bind and inure to the benefit of the Parties, their respective successors, and permitted assigns.

11.4. Governing Law; Venue. This Agreement, and any disputes arising out of or related hereto, will be governed exclusively by the internal laws of the State of California, without regard to its conflicts of laws rules or the United Nations Convention on the International Sale of Goods. The state and federal courts located in San Diego, California will have exclusive jurisdiction to adjudicate any dispute arising out of or relating to this Agreement. Each Party hereby consents to the exclusive jurisdiction of such courts. Each Party hereby waives any right to jury trial in connection with any action or litigation in any way arising out of or related to this Agreement.

11.5. Notices. All notices under this Agreement will be in writing addressed to the Parties at the addresses set forth on the Order and will be deemed to have been duly given: (a) upon receipt if personally delivered or sent by certified or registered mail with return receipt requested; and (b) the first business day after sending by email or by next day delivery by a recognized overnight delivery service.

11.6. Relationship of the Parties; Third Party Beneficiaries. The Parties are independent contractors and this Agreement does not create a partnership, franchise, joint venture, agency, fiduciary, or employment relationship between the Parties. There are no third party beneficiaries to this Agreement.

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

11.8. Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be invalid or unenforceable, such provision will be modified by the court and interpreted so as best to accomplish the objectives of the original provision to the fullest extent permitted by law, and the remaining provisions of this Agreement will remain in full force and effect.

11.9. Entire Agreement. This Agreement, including any addenda hereto and all Orders, together with the Business Associate Agreement, if applicable, constitutes the entire agreement between the Parties and supersedes all prior and contemporaneous agreements, proposals, or representations, written or oral, concerning Customer’s purchase and use of the Service (including the Turquoise Data) and any Professional Services. No modification, amendment, or waiver of any provision of this Agreement will be effective unless in writing and signed by each of the Parties. To the extent of any conflict or inconsistency between the provisions in the body of this Agreement and any addendum hereto or any Order, the terms of such addendum or Order will prevail. For the avoidance of doubt, in the event of a conflict between this Agreement and the Business Associate Agreement associated with the use or disclosure of PHI, the terms of the Business Associate Agreement shall govern and control. Notwithstanding any language to the contrary therein, no terms or conditions stated in any Customer purchase order or other Customer order documentation (excluding Orders) will be incorporated into or form any part of this Agreement, and all such terms or conditions will be null and void. As used herein, the words “include” and “including” shall be deemed to be followed by the words “without limitation.”

Contact Us

If you have any questions about these Terms and Conditions, You can contact us:

• By email: info@turquoise.health