Terms&Conditions of Use

SOFTWARE AS A SERVICE AGREEMENT

1. Online Platform. Licensee may access the System through an online platform accessed via a computer and web browser (the “Online Platform”), provided, however, that the computer and web browser meet the hardware and software requirements outlined in Exhibit A. Licensee will have the ability to make the Online Platform available to End Users.


2. Data Storage: Data Storage: Licensee’s Data will be hosted by ilumivu subject to the confidentiality and data security provisions of this Agreement.


3. Mobile Phone Application. Licensee will be able to collect Data from End Users through an application installed on End Users’ mobile phones (the “Mobile Phone Application”), provided, however, that the End User’s mobile phone meets the software and hardware requirements outlined in Exhibit A. Data from the Mobile Phone Application will be transmitted to the Online Platform for storage and access.


4. Licensee acknowledges that:
   
   
   
   1. the System operates via a network (including the Internet), the maintenance and performance of which is outside of ilumivu’ s control, and ilumivu disclaims any liability for unavailability of the System due to network latency or unavailability; and
   
   
   2. the System does not offer absolute protection against the transmission of viruses, hacking or other attempts to gain unauthorized access to Licensee’s network, systems or Data. Licensee acknowledges and agrees that it will install and maintain appropriate security solutions to avoid such unauthorized access, including, without limitation, adequate firewall, intrusion detection, anti-virus and security solutions as required by applicable law. Licensee shall not introduce any virus, spyware, malware or other malicious code to the System that may affect the System or ilumivu’ s network or computing environments.
   
   
   3. Licensee is solely responsible for acquiring, installing, operating and maintaining the hardware and software environment specified on Exhibit A.
   
   
   
   

1. Capacity. For the purpose of this Agreement, Data usage and storage are limited to 20GB.


2. Access: Each designated Administrator from Licensee’s organization (per Section 5(b) below)will receive a password and account designation upon delivery of access to the System. Licensee is wholly responsible for maintaining the confidentiality of passwords and account designations and wholly liable for all activities occurring thereunder. ilumivu will not be liable for any loss or damage arising from Licensee’s failure to comply with this subsection, including any loss or damage arising from Licensee's failure to: (1) immediately notify ilumivu of any unauthorized use of a password or account or any other breach of security; and (2) ensure that each End User exits from such End User’s account at the end of each session.


3. Responsibility. All Data will be the sole responsibility of Licensee. Neither Licensee nor any End User may transmit Data or otherwise conduct or participate in any activities on or using the System that are prohibited by law in any applicable jurisdiction, including laws governing the encryption of the System, the export of technology, the transmission of obscenity, or the permissible uses of intellectual property. Licensee shall obtain any and all necessary rights and permissions prior to inputting or allowing any End User to input any Data into the System, including all rights and permissions required for ilumivu to use and transfer the Data in accordance with applicable law.

1. Compliance. Licensee shall act in accordance with this Agreement at all times and will be responsible for the acts and omissions of all End Users. Licensee shall inform all End Users that their use of the System is subject to all restrictions on use set forth herein.


2. Licensee Administration of the System. Licensee may specify one or more End Users as Administrators through the Admin Console (a feature within the System). Administrators will have Admin Account(s) and will be responsible for administering the End User Accounts. Licensee is responsible for: (i) maintaining the confidentiality of the passwords, End User Accounts, and Admin Account(s); (ii) designating Administrators; and (iii) ensuring that all activities that occur in connection with the End User Accounts and Admin Account(s) comply with this Agreement. Ilumivu will have no responsibility for the administrative functions set forth in this subsection.


3. End User Consent. Licensee is solely responsible for obtaining and maintaining any and all End User consents and authorizations required by law relating to Licensee’s use of the System, including, without limitation, End User consent to the uploading and transmission over the System of any Data related to such End User.


4. Unauthorized Use. Licensee shall use commercially reasonable efforts to prevent unauthorized access to or use of the System and shall immediately terminate any unauthorized use or access. Licensee shall promptly notify ilumivu of any unauthorized use of, or access to, the System of which it becomes aware.


5. Restrictions on Use. Unless ilumivu specifically agrees in writing, Licensee will not, and Licensee will use commercially reasonable efforts to make sure a third party does not: (i) sell, resell, lease or the functional equivalent, the System to a third party (unless expressly authorized in this Agreement); (ii) attempt to reverse engineer the System or any component; (iii) attempt to create a substitute or similar service through use of, or access to, the System; (iv) use the System for High Risk Activities; or (v) use the System to store or transfer any Licensee Data that is controlled for export under Export Control Laws.

1. By Licensee. Licensee will, at its own expense, respond to questions and complaints from End Users or third parties relating to Licensee’s or End Users' use of the System. Licensee will use commercially reasonable efforts to resolve support issues before escalating them to ilumivu.


2. By ilumivu. If Licensee cannot resolve a support issue consistent with the procedure outlined in the subsection above, then Licensee may escalate the issue to ilumivu. ilumivu shall use commercially reasonable efforts to respond to support issues escalated to it, including with respect to the System downtime.

1. ilumivu shall take reasonable measures to preserve the confidentiality of any and all Data containing Confidential Information.


2. The Licensee shall not, without written consent of ilumivu, share the System or documentation regarding the System, including, without limitation, quotes, agreements, contracts, user manuals, project proposals or anything otherwise identified as Confidential Information, with third parties.


3. ilumivu shall take reasonable measures to prevent unauthorized access to or use of any Data or personally identifiable information relating to Licensee or End Users (“Personally Identifiable Information”) that ilumivu may possess, collect, process or obtain access to during the course of this Agreement, including in connection with the disposal of any paper or electronic media on which Data or Personally Identifiable Information is stored. ilumivu shall promptly notify Licensee of any actual or alleged misuse or misappropriation of, or unauthorized access to, Data or Personally Identifiable Information of which ilumivu becomes aware (“Security Breach”), and shall cooperate with Licensee as reasonably required to prevent, investigate, cease or mitigate any such Security Breach. ilumivu shall not use any Data or Personally Identifiable Information except in connection with performing its obligations under this Agreement. ilumivu shall not disclose any such information to third parties except with the express written consent of Licensee.

1. Except as expressly set forth herein, this Agreement does not grant either Party any rights, implied or otherwise, to the other's Data or any of the other's intellectual property. As between the Parties, Licensee owns all Intellectual Property Rights in Data, and ilumivu owns all Intellectual Property Rights in the System.


2. All source code, methods, names, screens, data structures, programs, systems, and other components and materials developed or created by ilumivu, including, without limitation, any documentation and notes associated with the System, even if developed and/or applied by ilumivu at the request of Licensee, are owned solely by ilumivu and may be used by ilumivu in contracting with other licensees of ilumivu products or services.

1. Representations. Each Party represents that it has full power and authority to enter into the Agreement. Each Party warrants that it will comply with all laws and regulations applicable to its access to or provision or use of the System, as applicable (including applicable security breach notification law).


2. Warranty Disclaimer. ILUMIVU’S WARRANTIES SET FORTH IN THIS AGREEMENT ARE EXCLUSIVE AND ARE IN LIEU OF ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, ALL OF WHICH ILUMIVU DISCLAIMS. Without limiting the foregoing, Licensee acknowledges that the System is not designed or intended for use in High Risk Activities. ilumivu specifically disclaims any express or implied warranty of merchantability or fitness for High Risk Activities.

1. Term. This Agreement will remain in effect for the period of 1 year from date of License's first use of the system (the “Term”), unless sooner terminated as set forth herein.


2. Termination with Cause. ilumivu may terminate this Agreement and/or disable any End User’s
   access to the System if Licensee materially breaches this Agreement and fails to cure such breach within 10 days after receipt of written notice of such breach. Notwithstanding the foregoing, ilumivu may immediately terminate this Agreement and/or disable any End User’s access to the System in the event of (i) illegal or fraudulent use of the System by Licensee or an End User or (ii) a breach of Section 2 by Licensee or an End User.


3. Termination without Cause. Either Party may terminate this Agreement for any reason or noreason upon ninety (90) days prior written notice, provided, however, that if Licensee terminates without cause pursuant to this subsection, Licensee is not permitted to a refund of any fees paid under this Agreement. If ilumivu terminates without cause pursuant to this subsection, ilumivu shall provide a pro-rata refund of the unearned fees actually paid by Licensee applicable to the period following termination.


4. Accessibility. Licensee will have no access to the System or any Data after the Term has ended. Licensee may download all Data prior to the end of the Term. If this Agreement is terminated before the end of the Term due to Licensee’s breach, ilumivu will provide, upon Licensee’s written request and payment of professional services fees at the rate outlined in Exhibit C, a copy of all Data to Licensee. If this Agreement is terminated before the end of the Term due to ilumivu’s breach, ilumivu will provide, upon Licensee’s written request, a copy of all Data.


5. Extensions. The Term may be extended by a separate agreement between the Parties either (i) for the continuing provision of the System, or (ii) for the sole purpose of Data access without End User accessibility

1. By Licensee. Licensee will indemnify and hold harmless ilumivu, its subsidiaries and affiliated companies and their shareholders and directors, and any officers, employees, agents, representatives, members, and managers of all the foregoing entities, from and against all liabilities, damages, and costs (including settlement costs and reasonable attorneys' fees) arising out of a thirdparty claim regarding: (i) Data; (ii) infringement or misappropriation of any Intellectual Property Rights of a third party by Licensee’s Brand Features (including any domain names purchased or propagated by ilumivu for Licensee); or (iii) Licensee’s use of the System, including, without limitation, Licensee’s use of the System that results in any third-party claim of improper medical or behavioral health care advice or treatment.


2. By ilumivu. ilumivu will indemnify, defend, and hold harmless Licensee from and against all liabilities, damages, and costs (including settlement costs and reasonable attorneys' fees) arising outof a third-party claim that Licensee’s use of the System infringes or misappropriates any U.S. patent, copyright, trade secret, trademark, or intellectual property right of such third party. Notwithstanding the foregoing, in no event will ilumivu have any obligations or liability under this Section arising from: (i) Licensee’s use of the System in a modified form or in combination with materials not furnished by ilumivu, or (ii) any Data provided by Licensee, End Users, or other third parties.


3. Possible Infringement.
   
   
   1. Repair, Replace, or Modify. If ilumivu reasonably believes the System infringes a third party's Intellectual Property Rights, ilumivu may (or in the event of a final determination of infringement,shall): (a) obtain the right for Licensee, at ilumivu’s expense, to continue using the System; (b) provide a non-infringing functionally equivalent replacement; or (c) modify the System so that it no longer infringes.
   
   
   2. Suspension or Termination. If ilumivu does not believe the foregoing options are commercially reasonable, then ilumivu may suspend or terminate Licensee’s use of the impacted portion(s) of the System. If ilumivu terminates the impacted portion(s) of the System, ilumivu shall provide a pro-rata refund of the unearned fees actually paid by Licensee applicable to the period following termination of such portion(s) of the System.


4. General. The Party seeking indemnification will promptly notify the other Party of the claim and cooperate in defending the claim. The indemnifying Party has full control and authority over the defense, except that: (a) any settlement requiring the non-indemnifying Party to admit liability or to pay any money will require that Party's prior written consent, such consent not to be unreasonably withheld or delayed; and (b) the non-indemnifying Party may join in the defense with its own counsel at its own expense. THE INDEMNITIES ABOVE ARE EACH PARTY'S ONLY REMEDY UNDER THIS AGREEMENT FOR VIOLATIONS OF A THIRD PARTY'S INTELLECTUAL PROPERTY RIGHTS.

1. Assignment. Neither Party may assign or transfer any interest in this Agreement, without the prior consent of the other Party; provided, however, that Licensee’s consent will not be needed for ilumivu to assign or transfer this Agreement in a change of control as set forth in the nextsubsection.


2. Change of Control. Upon a change of control (for example, through a stock purchase or sale, merger, or other form of corporate transaction) the Party experiencing the change of control will provide written notice to the other Party within thirty days after the change of control.


3. Force Majeure. Neither Party will be liable for inadequate performance to the extent caused by a condition that was beyond the Party's reasonable control, including, without limitation, natural disaster, act of war or terrorism, riot, labor condition, governmental action, or Internet disturbance.


4. No Waiver. Failure to enforce any provision of this Agreement will not constitute a waiver.


5. Severability. If any provision of this Agreement is found unenforceable, the balance of the Agreement will remain in full force and effect.


6. No Agency. This Agreement does not create an agency, partnership or joint venture between the Parties.


7. No Third-Party Beneficiaries. There are no third-party beneficiaries to this Agreement.


8. Equitable Relief. Nothing in this Agreement will limit either Party's ability to seek equitablerelief.


9. Amendments. Any amendment must be in writing and expressly state that it is amending this Agreement.


10. Survival. The following sections will survive expiration or termination of this Agreement:Section 6, 7, 13, 14, 15, 16 and 17.


11. Entire Agreement. This Agreement and all documents referenced herein constitute the Parties' entire agreement relating to its subject matter and supersede any prior or contemporaneous agreements on that subject matter.


12. Counterparts. The Parties may enter into this Agreement in counterparts, including facsimile, PDF or other electronic copies, which taken together will constitute one instrument.


13. Governing Law, Jurisdiction and Venue: This Agreement and all rights of the Parties will be governed by, and construed in accordance with, the laws of the State of North Carolina.

Exhibit A: HARDWARE AND SOFTWARE REQUIREMENTS

• Basic survey functionality may work on older versions of Android and iOS, but we only offer support and customizations for the above versions going forward.


• Non-cellular devices (i.e. some tablets) may experience problems receiving alerts while the device is in deep sleep mode. Non-cellular devices may be used at Licensee's own risk and are not considered "supported" for the purposes of this Agreement. Cellular devices (i.e. phones) will receive alerts as designed.

Exhibit B: FUNCTIONALITY

• Structuring of assessments into three levels


• Creating multiple question types


• Editing question and answer text


• Programming skip logic / conditional branching


• Shared editing with multiple users under one license

• Create a unique account for each study participant or client


• Schedule sets of assessments to be completed on a momentary, repeating or fixed schedule basis


• Program the availability window of each assessment


• Program certain access rights via the mobile app on a per account basis


• Provide participants or clients a unique code that can be entered into an Android-based or iOS-based mobile app.


• Access data sent back to the platform from participants' mobile apps as individual reports or aggregated datasets for each assessment


• Aggregated datasets can be downloaded as CSV files by licensee

• Are free for licensees and their End Users to download


• Can be synced to the platform with the unique mobile code generated for each user account


• In order to sync with the platform the local device must be connected to the internet via either WiFi or cellular connections


• Display the assessments assigned to that mobile code


• Alert the user to complete the survey at the times specified on the platform by the licensee


• The app can continue to be used even if the local device is not connected to the internet, it will store up to 60 alert times with any one sync event


• Store all data entered by the End User on the local device


• Transmit all data entered on the local device to the platform when the End User presses the Sync button Additionally, for Professional and Premium license types only, the licensee may also:


• Alert the user to complete the survey when they exit or enter the radius of a prespecified geolocation (GEO-fencing)


• Collect data from internal phone sensors including timestamps for when the screen is on/off and when it is locked/unlocked.

• The collection of the following data types from the Garmin device into the mEMA App:
  
  
  
  • Heart rate (instantaneous)
  
  
  • Inter-beat-interval (instantaneous)
  
  
  • Stress (instantaneous)
  
  
  • Pulse Ox (instantaneous)
  
  
  • Floors Climbed (cumulative daily)
  
  
  • Steps (cumulative daily)
  
  
  • Calories burned (cumulative daily)
  
  
  • Intensity minutes (cumulative daily)
  
  
• The mEMA app to automatically send a survey alert when any of these metrics goes above or below a level (personalized to the End User) set by the licensee.

Exhibit C: PROFESSIONAL SERVICES FEE