XEVANT PLATFORM GENERAL TERMS & CONDITIONS

These Xevant Platform General Terms and Conditions (“General Terms”) apply to and are part of the Xevant Platform Master Services Agreement to which they are attached (the “Agreement”).

1. Definitions.

Any capitalized terms used but not defined in these General Terms will have the meanings (if any) specified on the cover page(s) of the Agreement. The following definitions apply in addition to those set forth elsewhere in this Agreement.

1.1. “Aggregated Statistics” means data and information related to Client’s use of the Xevant Platform or Services (each as defined below) that are utilized by Xevant in an aggregate, anonymized, or other non-identifying manner, including to compile statistical and performance information related to the provision and operation of the Xevant Platform and the Services.

1.2. “Anonymized Client Data” means information or data collected from clients that has been stripped of personally identifiable information. For the purposes of this Agreement, anonymization involves removing or obfuscating any data elements that could directly or indirectly identify a specific individual. Personally identifiable information includes without limitation names, addresses, email addresses, and other information that could identify an individual.

1.3. “Client Data” means, other than Aggregated Statistics, the data or information provided by a Service User or uploaded to the Xevant Platform by a Service User and any data that is generated as a result of interaction by a Service User with the Xevant Platform, including metadata, data tables, reports, and other data (including personal data), all for the period they are being processed in connection with the Services on the Xevant Platform.

1.4. “Deliverables” means all documents, work product, customized software, and other materials or projects that are delivered to Client hereunder or prepared by or on behalf of Xevant in the course of performing the Services, including each customized module and any items identified in Service Order and each additional Service Order executed by each of Client and Xevant.

1.5. “Documentation” means all generally available documentation, as updated from time to time, relating to the Services produced and made available by Xevant, including all user manuals, operating manuals, and other instructions, specifications, documents, and materials, in any form or media, that describe any component, feature, requirement, or other aspect of the Services, including any functionality, testing, operation, or use thereof.

1.6. “Intellectual Property” means all intellectual property and industrial property rights and assets, however arising, pursuant to the laws of any jurisdiction throughout the world, whether registered or unregistered, including but not limited to trademarks, domain names, software, works of authorship, copyrights, copyright registrations and applications, trade secrets, confidential or proprietary information, know-how, databases and data collections, patents, and patent applications.

1.7. “Service Order” means: (a) the initial order form as executed by the Parties and attached to this Agreement, and any service order(s) included or referenced therein, or (b) any subsequent order form that is executed by the Parties and that references this Agreement, and any service order(s) included or referenced therein.

1.8. “Services” means: (a) analytics, reporting, and other services and functions that Xevant provides through the Xevant Platform; and (b) all professional and other services to be provided by Xevant under this Agreement (which may include, for example, clinical, formulary or rebate optimization, report design and development, implementation, training; all as more specifically set forth on an applicable Service Order. The aforementioned is not intended to be a complete list of services offered. Reference should be made to the Service Order.

1.9. “Service Users” means Client’s employees, consultants, and contractors who access or use the Services.

1.10. “Xevant Platform” means the pharmacy benefits analytics platform marketed under the brand name Xevant and/or X4, consisting generally of customizable modules for various analytics and reporting functions, which Xevant typically offers for use on a hosted software-as-a-service (SaaS) basis.

2. Service Order.

Xevant agrees to provide the Services as further described in each Service Order. Additional Service Orders will be deemed issued and accepted only if signed by an authorized representative of each Party, and upon such issuance and acceptance will be considered a part of this Agreement.

3. Client Obligations.

Client agrees to (a) cooperate with Xevant in its performance of the Services (including, without limitation, by fulfilling any specific responsibilities of Client that may be set forth in the applicable Service Order), and (b) respond promptly to any reasonable requests from Xevant for instructions, information, or approvals required by Xevant to provide the Services. Client acknowledges that Xevant’s ability to provide the Services may be delayed or otherwise affected if Client does not comply with its obligations set forth in this section. Client has the sole responsibility for the accuracy, quality, integrity, legality, reliability, and appropriateness of Client Data.

4. Fees and Payment.

4.1. Fees. In consideration for the provision of the Services by Xevant and the rights granted to Client under this Agreement, Client agrees to pay Xevant the fees set forth in the order form associated with each applicable Service Order (“Fees”).

4.2. Payment. Fees will be invoiced and paid in accordance with the payment schedule and terms specified in the Service Order. Where other payment terms are not specified in the Service Order, Fees are due no later than thirty (30) days after delivery of invoice. All Fees will be paid in U.S. dollars in immediately available funds via wire transfer, Automated Clearing House (ACH) or other electronic funds transfer reasonably acceptable to Xevant, and Client is responsible for any associated third-party fees such as ACH transfer fees and any applicable currency conversion fees.

4.3. Expenses. To the extent (if any) that the Service Order provides for reimbursement of expenses, Client shall reimburse Xevant for all reasonable expenses incurred in accordance with Service Order, within thirty days (30) days of receipt by Client of an invoice from Xevant accompanied by relevant receipts.

4.4. Sales, Use, and Other Taxes. Client shall pay any and all taxes, fees, tariffs, duties, or other similar levies imposed or required by any government, governmental unit, or similar authority with respect to the Fees or any other payments in connection with the Services (excluding Xevant’s income taxes). All payments shall be made free and clear without withholding for any and all present and future taxes or other levies imposed by any taxing authority; provided, however, Xevant may in its discretion, or as required by law, bill Client for any applicable taxes or levies and remit such amounts to the applicable taxing authority. In such case, Client shall pay amounts in addition to the applicable Fees as are necessary in order that the net amount received by Xevant, above any tax or levy so charged and withheld, equals the applicable Fees. If the obligation to pay such taxes or duties is legally imposed on Xevant, or Xevant is later assessed by any taxing authority, then Client shall promptly reimburse Xevant for such taxes or duties plus any interest and penalties suffered by Xevant.

4.4. Sales, Use, and Other Taxes. Client shall pay any and all taxes, fees, tariffs, duties, or other similar levies imposed or required by any government, governmental unit, or similar authority with respect to the Fees or any other payments in connection with the Services (excluding Xevant’s income taxes). All payments shall be made free and clear without withholding for any and all present and future taxes or other levies imposed by any taxing authority; provided, however, Xevant may in its discretion, or as required by law, bill Client for any applicable taxes or levies and remit such amounts to the applicable taxing authority. In such case, Client shall pay amounts in addition to the applicable Fees as are necessary in order that the net amount received by Xevant, above any tax or levy so charged and withheld, equals the applicable Fees. If the obligation to pay such taxes or duties is legally imposed on Xevant, or Xevant is later assessed by any taxing authority, then Client shall promptly reimburse Xevant for such taxes or duties plus any interest and penalties suffered by Xevant.

4.5. Late Payments. All late payments will bear interest at the lesser of the rate of 1.5% per month or the highest rate permissible under applicable law, calculated daily and compounded monthly. Client shall also reimburse Xevant for all reasonable costs incurred in collecting any late payments, including, without limitation, attorneys’ fees. In addition to all other remedies available under this Agreement or at law, which Xevant does not waive by the exercise of any rights hereunder, Xevant shall be entitled to suspend the provision of any Services if Client fails to pay any Fees when due hereunder and such failure continues for three (3) days following written notice thereof.

4.6. Fee Changes. For any Renewal Term, as defined below, Xevant may change the Fees that apply to any or all of the Services by written notice to Client, provided that such notice is given at least thirty (30) days before the deadline for non-renewal of this Agreement.

5. Term.

This Agreement will remain in effect for the initial period specified on the cover page of this Agreement (unless sooner terminated pursuant to Section 6 below) (the “Initial Term”). This Agreement will automatically renew for succeeding terms of (unless otherwise specified) one (1) year each (each a “Renewal Term,” and together with the Initial Term, the “Term”) unless either Party gives written notice to the other at least ninety (90) days prior to the expiration of any Term of its intention not to renew this Agreement.

6. Termination.

6.1. Termination for Breach. Either Party may terminate this Agreement, effective upon written notice to the other Party (the “Defaulting Party”), if the Defaulting Party: (a) materially breaches this Agreement, and such breach is incapable of cure, or with respect to a breach capable of cure, the Defaulting Party does not cure such breach within fifteen (15) business days after receipt of written notice of such breach; (b) becomes insolvent; (c) voluntarily becomes the subject of any insolvency proceeding, whether under the United States Bankruptcy Code or other applicable insolvency law; (d) involuntarily becomes the subject of any insolvency proceeding, whether under the United States Bankruptcy Code or other applicable insolvency law, that is not dismissed within sixty (60) days; (e) makes any assignment for the benefit of a Party’s creditors; (f) consents to or is subject to the appointment of a receiver, liquidator, or trustee of any of a party’s assets; (g) generally fails to pay its obligations as they come due; or (h) experiences the liquidation, dissolution, or winding up of its business.

6.2. Termination for Non-Payment. Notwithstanding anything to the contrary in this Section 6, Xevant may terminate this Agreement before the expiration date of the Term on written notice to Client if Client fails to pay any amount when due hereunder and such failure continues for thirty (30) days after Client’s receipt of written notice of nonpayment.

6.3. Payment upon Termination. In the event of any termination under this Section 6, Client will pay Xevant all Fees for the Services and Deliverables performed up to the effective date of termination. No expiration or termination will affect Client’s obligation to pay all Fees that may have become due before such expiration or termination or entitle Client to any refund. Xevant reserves the right to withhold payment in the event of Client’s non-performance under this Agreement.

6.4. Effect of Termination. On the date of any termination or expiration of this Agreement, Xevant shall cease to provide the Services to Client and Client shall immediately discontinue use of the Services, the Xevant Platform, and the Deliverables, and Xevant may immediately terminate Client’s and Service User’s access to the Services, the Xevant Platform, and the Deliverables. Following any notice Client shall continue to provide Xevant with all data necessary to perform the Services until the termination date, including without limitation rebate submissions, or any other files required to be submitted in order for Xevant to complete its performance obligations during the time between the notice of termination and the date of termination. All Confidential Information provided by either Party in connection with the Rebate Services shall, except for Confidential Information required by law to be retained by a Party, be immediately returned to the Disclosing Party or such Receiving Party shall certify to the Disclosing Party that such materials have been destroyed, except that Xevant shall be entitled to retain copies of Confidential Information to the extent required by standard document retention policies.

7. Platform Use, Data, and Intellectual Property Rights.

7.1. Access and Usage Rights. Subject to Client’s compliance with the terms and conditions of this Agreement, including Client’s payment of the Fees, Xevant hereby grants to Client a limited, nonexclusive, non-transferable, non-sublicensable right during the Term to (a) access the functionality of the Xevant Platform, or portions or features thereof (as indicated in the applicable Service Order), solely through the interface(s) furnished or specified by Xevant; (b) make reasonable use of the Services and Deliverables, (c) use and print the Documentation in furtherance of such use, and (d) permit up to the authorized number of Service Users to do any of the foregoing solely for Client’s benefit; all in a manner contemplated by this Agreement (including any limitations or restrictions set forth in Section 7.3 or the applicable Service Order) and as reasonably necessary to use the Services.

7.2. Restrictions and Limitations. Client shall not, and shall ensure that its Service Users do not: (a) copy, modify, distribute, resell, rent, lease, sublicense, convey, make available to third parties (other than Service Users as permitted herein), translate, disassemble, reverse engineer, or decompile any portion of the Xevant Platform, Services, Deliverables, Documentation, or any associated software, technology, or other Intellectual Property; (b) tamper with or attempt to circumvent the security of the Xevant Platform, Services or Deliverables; (c) remove, alter, or obscure Xevant’s branding, proprietary rights markings, or notices on or in the Xevant Platform, Services, Deliverables, or Documentation; or (d) access or use the Xevant Platform, Services, Deliverables, or Documentation for any unlawful or infringing purpose, or for benchmarking or competitive analysis of Xevant’s products or services, or for purposes of developing, using, or providing any competing product or service, or for any other purpose that is to Xevant’s detriment or commercial disadvantage.

7.3. Ownership of Intellectual Property. As between the Parties, Xevant is, and shall be, the sole and exclusive owner of all right, title, and interest in and to the Xevant Platform, Services, Deliverables, and Documentation, and all Intellectual Property (including but not limited to software) associated with or required for the operation or provision of the Xevant Platform, Services, Deliverables, or Documentation, and any other proprietary rights and interests comprising and used to support or operate the Xevant Platform, Services or Deliverables. Client acknowledges and agrees that Client does not have, and will not acquire pursuant to or as a result of this Agreement, any ownership interest, license, lease, or other right or interest in or with respect to any of the foregoing, except for the limited, non-exclusive access, usage, or other rights expressly provided in Section 7.2. All other rights in the foregoing are reserved by Xevant. The Xevant Platform, Services, Deliverables, and Documentation shall not be a “work made for hire” as defined in 17 U.S.C. §101.

7.4. Xevant’s Right to Maintain Client Data. Subject to the terms and conditions of this Agreement, Client hereby grants Xevant a limited, royalty-free, non-exclusive, non-transferable, and non-sublicensable license to store and process the Client Data as necessary to provide the Services as set forth in this Agreement for so long as Client or any Service User processes (or requests processing of) Client Data on the Xevant Platform. Client agrees that Xevant may collect, analyze, use, copy, sell, or reproduce Anonymized Client Data in Xevant’s sole discretion. For clarity, Anonymized Client Data will not contain personal or personally identifiable data. Xevant acknowledges and agrees that Xevant does not have or acquire pursuant to or as a result of this Agreement, any ownership interest, license, lease, or other right or interest in or with respect to the Client Data, other than as expressly provided in this section.

7.5. Aggregated Statistics. Notwithstanding anything to the contrary in this Agreement, Xevant may monitor Client’s use of the Services and collect and compile Aggregated Statistics. All right, title, and interest in Aggregated Statistics, and all Intellectual Property rights therein, belong to and are retained solely by Xevant. Client acknowledges that Xevant may compile Aggregated Statistics based on Client Data input into the Xevant Platform. Client agrees that Xevant may (a) make Aggregated Statistics publicly available in compliance with applicable law, and (b) use Aggregated Statistics to the extent and in the manner permitted under applicable law; provided that such Aggregated Statistics do not identify Client or Client’s Confidential Information.

7.6. Service Users. Client is responsible for all use of the Xevant Platform or Services by Service Users (or by any other person accessing or using the Xevant Platform or Services under Client’s account or access credentials), and for any other acts or omissions of Service Users (or such other persons) in relation to the Services, Xevant Platform, Deliverables, or Documentation, as if they were the acts or omissions of Client itself. Client acknowledges and agrees that its Service Users are not intended third-party beneficiaries under this Agreement and that Xevant has no duties to any person other than Client under this Agreement. Client shall indemnify Xevant against any use of the Xevant Platform or Services by a Service User in breach of this Agreement and any claims by Service Users that Xevant has duties to such Service Users arising under or with respect to the Service provided under this Agreement.

7.7. Compliance with Law. Client and its Service Users shall not use the Xevant Platform, the Services, the Deliverables, or the Documentation in any way that violates any applicable law (including, without limitation, any laws regarding the export of data to and from the United States or other countries).

7.8. Suspension of Services. Xevant reserves the right to suspend services immediately upon breach of this Agreement or misuse of the Services, including without limitation delayed payment, suspicious use or login activity, activity that poses a risk to the integrity of the Services, or breach or suspected breach of Section 7.2.

8. Confidentiality.

8.1. Confidential Information. Each Party (the “Disclosing Party”) may from time to time during the term of this Agreement disclose to the other Party (the “Receiving Party”) certain non-public, commercially proprietary, confidential, or sensitive information, know-how, and trade secrets (including information regarding product plans, insurance plan designs, formulary development and strategies, products or services in “beta” or other preliminary versions, and any other information a reasonable person should understand to be confidential), which is disclosed by or on behalf of the Disclosing Party or its Affiliates to the Receiving Party or its Affiliates, directly or indirectly, in writing, orally, or by inspection of tangible objects, and whether such information is disclosed before or after the Effective Date specified on the Agreement (“Confidential Information”); provided, however, that Confidential Information does not include any information that: (a) is or becomes generally available to the public other than as a result of Receiving Party’s breach of this Section 8; (b) is or becomes available to the Receiving Party on a non-confidential basis from a third-party source, provided that such third party is not and was not prohibited from disclosing such Confidential Information; (c) was in Receiving Party’s possession, without restrictions on use or disclosure, prior to Disclosing Party’s disclosure hereunder; or (d) was or is independently developed by Receiving Party without using any Confidential Information. For the avoidance of doubt, Confidential Information of Xevant includes this Agreement and its terms (including any pricing offered by Xevant to Client hereunder).

8.2. Protection of Confidential Information. The Receiving Party shall: (a) protect and safeguard the confidentiality of the Disclosing Party’s Confidential Information with at least the same degree of care as the Receiving Party would use to protect its own Confidential Information, but in no event with less than a commercially reasonable degree of care; (b) not use the Disclosing Party’s Confidential Information, or permit it to be accessed or used, for any purpose other than to exercise its rights or perform its obligations under this Agreement; and (c) not disclose any such Confidential Information to any person or entity, except to the Receiving Party’s representatives who need to know the Confidential Information to assist the Receiving Party, or act on its behalf, to exercise its rights or perform its obligations under this Agreement. Notwithstanding the foregoing, the Receiving Party may disclose Confidential Information of the Disclosing Party if required to do so under applicable law, rule, or order, provided that the Receiving Party, to the extent legally permissible, provides the Disclosing Party with prior written notice of the required disclosure so that the Disclosing Party may seek a protective order or other appropriate remedy, and provided further that the Receiving Party discloses no more Confidential Information of the Disclosing Party than is reasonably necessary in order to respond to the required disclosure.

8.3. Equitable Remedies. The Parties recognize that the unauthorized disclosure, duplication, reproduction, or use of the Confidential Information by a Receiving Party would cause irreparable harm to the Disclosing Party and that monetary damages will be inadequate to compensate the Disclosing Party for such breach. Consequently, in the event of an actual or threatened breach by the Receiving Party of the provisions of this Section 8, the Disclosing Party will be entitled to seek injunctive relief or other equitable relief against the Receiving Party on the basis of there being an inadequate remedy at law or other reason. The Parties further agree to waive any requirement for the security or posting of any bond in connection with such remedy.

9. Representations, Warranties, and Disclaimers.

9.1. Mutual Representations. Each Party represents and warrants to the other Party that: (a) this Agreement constitutes a valid and binding agreement enforceable against such Party in accordance with its terms, and (b) no authorization or approval from any third party is required in connection with such Party’s execution and delivery of this Agreement, or its performance of this Agreement.

9.2. Client Warranty. Client hereby represents and warrants that: (a) it has and will have the legal right to possess, provide, and transmit all Client Data stored on and/or transmitted through the Xevant Platform or Services (and to have Xevant do the same in connection with providing the Services); (b) Client will not access or utilize (or allow access or utilization of) the Xevant Platform or Services in any manner or for any purpose prohibited by this Agreement; and (c) if Client discovers any unauthorized access or use of the Xevant Platform, Services, or Deliverables, or any other violation of Section 7.3, it will promptly notify Xevant and take commercially reasonable actions to resolve the problem as soon as reasonably possible.

9.3. Xevant Limited Warranties. Xevant warrants that it shall perform the Services: (a) materially in accordance with the Documentation and any applicable specifications set forth it the Service Order, (b) in a timely, professional, and workmanlike manner, and (c) using personnel of commercially reasonable skill, experience, and qualifications. In the event of a breach of the warranty in the preceding sentence, Xevant shall use reasonable efforts to correct the breach and, if Xevant does not materially correct the breach within 30 days after being notified by Client of such breach, Client may terminate the applicable Services and receive a prorated refund of any prepaid and unused Fees for such terminated Services. This Section 9.3 states Xevant’s entire liability and Client’s sole remedy for a breach of the warranty in this Section 9.3.

9.4. No Other Warranties. EXCEPT FOR THE LIMITED WARRANTIES SET FORTH IN SECTION 9.3, THE SERVICES AND THE XEVANT PLATFORM, DELIVERABLES, AND DOCUMENTATION ARE PROVIDED “AS IS”, AND XEVANT HEREBY DISCLAIMS ALL WARRANTIES, ORAL OR WRITTEN, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT, AND ANY WARRANTIES ARISING FROM COURSE OF DEALING, COURSE OF PERFORMANCE, OR USAGE OF TRADE. CLIENT ACKNOWLEDGES AND AGREES THAT IT HAS NOT ENTERED INTO THIS AGREEMENT ON THE BASIS OF ANY REPRESENTATIONS OR PROMISES NOT EXPRESSLY CONTAINED HEREIN.

9.5. Internet Delays. THE SERVICE MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT WITH USING THE INTERNET AND ELECTRONIC COMMUNICATIONS. XEVANT IS NOT RESPONSIBLE FOR DELAYS, DELIVERY FAILURES, OR OTHER DAMAGES RESULTING FROM SUCH PROBLEMS.

10. Indemnification.

10.1. Indemnification by Xevant. Xevant shall indemnify, defend, and hold Client harmless from and against any and all third party claims, losses, damages, suits, fees, judgments, costs, and expenses which arise out of or relate to a claim brought or sanction sought arising from allegations by such third party that the Services provided by Xevant hereunder, when used in accordance with this Agreement, infringe, misappropriate, or otherwise violate U.S. patent, copyright, trademark, or any other Intellectual Property right of any third party (an “IP Claim”). Notwithstanding the foregoing, Xevant shall not be obligated to indemnify or hold Client harmless to the extent any IP Claim arises from: (a) the combination, operation, or use of any Services with equipment, devices, or software not supplied by or on behalf of Xevant, to the extent such claims would or could have been avoided if the Services had not been so combined, operated, or used; (b) Client’s use of the Services in a manner that violates the terms of this Agreement or is contrary to Xevant’s applicable Documentation or reasonable written instructions; (c) alterations or modifications to the Services which are not performed by or on behalf of Xevant, to the extent such claims would or could have been avoided if the Services had not been so altered or modified; or (d) incorporation by or on behalf of Xevant into the Service of, or alterations, modifications, or changes based solely on, and in compliance with, Client’s written designs, specifications, or instructions, provided that Xevant did not otherwise have reasonable knowledge that such designs, specifications, or instructions would or could result in an IP Claim.

10.2. Mitigation. Notwithstanding Section 10.1 or anything to the contrary in this Agreement, in the event of an IP Claim, or if Xevant reasonably suspects that the Services are likely to become the subject of an IP Claim, Xevant may (a) procure for Client the right to continue using the Services; (b) replace or modify the Services to be non-infringing, provided such replacement or modification will not materially degrade the functionality of the Services; or (c) terminate this Agreement or the affected Services and refund to Client any prepaid Fees associated with the terminated Services, prorated for the remainder of the then-current term after the date of termination.

10.3. Indemnification by Client. Client shall indemnify, defend, and hold Xevant harmless from and against any and all third party claims, losses, damages, suits, fees, judgments, costs, and expenses which arise out of or relate to a claim brought or sanction sought arising from allegations by such third party (a) that the Client Data, or any use of the Client Data in accordance with this Agreement, violates any applicable law governing the use of such Client Data, or (b) based on Client’s (i) use of the Services outside the purpose, scope or manner of use authorized by this Agreement or the Documentation, or in any manner contrary to Xevant’s reasonable instructions; (ii) use of the Services in combination with data, software, hardware, equipment, or technology not provided by Xevant or authorized by Xevant in writing; or (iii) modifications to the Services not made by Xevant, or (c) that arises from any facts or allegations that, if true, would constitute a breach by Client of any representation, warranty, covenant, or obligation under this Agreement.

10.4. Indemnification Procedures. Promptly upon receipt by a person or entity entitled to indemnification under Section 10.1 or 10.3 (for purposes of this section, an “Indemnitee”) of notice of a third party claim for which indemnification is sought, the Indemnitee shall give prompt written notice to the other Party (for purposes of this section, the “Indemnifying Party”) of such claim, and the Indemnitee shall provide the Indemnifying Party (at its request and expense) with all reasonably requested information and cooperation for the defense or settlement of the claim. The Indemnifying Party shall have the right to control the defense of claims subject to indemnification hereunder with counsel selected in its discretion; provided, however, if the Indemnifying Party fails to assume the defense of any third party claim subject to indemnification hereunder within a reasonable period of time, then the Indemnitee may assume the defense of any such third party claim subject to indemnification hereunder at the cost and expense of the Indemnifying Party. In any event, the Indemnitee shall have the right to participate in the defense of any claim for which it is requesting indemnification hereunder with its own counsel and at its own cost. Neither Party shall settle a claim that imposes obligations on, or restricts the operations of, the other Party without the written consent of such other Party, which consent shall not be unreasonably withheld or delayed.

11. HIPAA.

The Parties acknowledge and agree that any Protected Health Information (including ePHI, “PHI”) that may be exchanged or disclosed during the Agreement is subject to the requirements of the Health Insurance Portability and Accountability Act of 1996 (HIPAA), as amended, and its implementation regulations, and the Business Associate Agreement attached to this Agreement (if any).

12. LIMITATION OF LIABILITY.

NOTWITHSTANDING ANY OTHER PROVISION HEREOF, IN NO EVENT WILL XEVANT BE LIABLE UNDER OR IN CONNECTION WITH THIS AGREEMENT UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE, FOR ANY: (a) CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, ENHANCED, OR PUNITIVE DAMAGES; (b) COSTS OF SUBSTITUTE GOODS OR SERVICES, OTHER INCREASED COSTS, DIMINUTION IN VALUE, OR LOST BUSINESS, PRODUCTION, REVENUES, OR PROFITS; (c) LOSS OF GOODWILL OR REPUTATION; OR (d) USE, INABILITY TO USE, LOSS, INTERRUPTION, DELAY OR RECOVERY OF ANY DATA, OR BREACH OF DATA OR SYSTEM SECURITY. IN NO EVENT WILL XEVANT’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE EXCEED THE TOTAL AMOUNTS PAID TO XEVANT UNDER THIS AGREEMENT IN THE 12-MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO THE CLAIM OR $10,000, WHICHEVER IS LESS. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT, XEVANT’S TOTAL LIABILITY UNDER THE INDEMNIFICATION PROVISIONS OF THIS AGREEMENT WILL BE CAPPED AT ONE MILLION DOLLARS. CLIENT ACKNOWLEDGES THAT XEVANT HAS SET ITS PRICES AND ENTERED INTO THIS AGREEMENT IN RELIANCE ON THE FOREGOING WAIVERS OF DAMAGES AND LIMITATIONS OF LIABILITY, AND THE PARTIES AGREE THAT THEY WILL APPLY EVEN IF ANY LIMITED REMEDY FAILS OF ITS ESSENTIAL PURPOSE.

13. General.

13.1. Notices. All notices, requests, consents, claims, demands, waivers, and other communications to be given hereunder by any Party to the other must be in writing and addressed to the other Party at its address set forth on the cover page of this Agreement (or to such other address that the receiving Party may designate from time to time in accordance with this Section 13.1). Unless otherwise agreed herein, all notices must be delivered by personal delivery in writing, or by mail, registered or certified, postage pre-paid with return receipt requested, or confirmed email. Except as otherwise provided in this Agreement, a notice is effective only (a) on receipt by the receiving Party, and (b) if the Party giving the notice has complied with the requirements of this section. Client agrees to keep Xevant current as to Client’s business and mailing addresses and other relevant contact information, including telephone numbers and email addresses for appropriate points of contact for purposes of this Agreement.

13.2. Additional Attachments. The Parties acknowledge that the Agreement may contain or incorporate by reference additional riders, addenda, or other attachments (“Additional Attachments”), including those that are specific to certain types of Services, as indicated on the Agreement’s cover page. Such Additional Attachments are meant to supplement, rather than replace, these General Terms; provided, however, that to the extent of any direct conflict, the terms of an Additional Attachment will take precedence over the conflicting provisions in these General Terms for purposes of the particular Services or other subject matter to which the Additional Attachment pertains.

13.3. Entire Agreement. This Agreement, including its cover page(s), these General Terms, and any Scope(s) of Work and Additional Attachments, constitutes the sole and entire agreement of the Parties pertaining to the subject matter hereof and supersedes all other prior and contemporaneous agreements and understandings of the Parties in connection therewith. Each Party acknowledges in particular that no oral or other representations, inducements, promises or agreements have been made by either Party hereto, or anyone acting on behalf of any Party hereto, that are not embodied herein. Attachments and exhibits shall be incorporated into this Agreement in their entirety. This Agreement may only be modified through a written agreement signed by both Parties. The headings, captions and sections contained in this Agreement are inserted for convenience only and shall not be used to interpret or construe any provisions of this Agreement.

13.4. Relationship of the Parties. The relationship between the Parties is that of independent contractors. The details of the method and manner for performance of the Services by Xevant shall be under its own control, Client being interested only in the results thereof. Xevant shall be solely responsible for supervising, controlling, and directing the details and manner of the completion of the Services. Nothing in this Agreement shall give Client the right to instruct, supervise, control, or direct the details and manner of the completion of the Services. Nothing contained in this Agreement shall be construed as creating any agency, partnership, joint venture or other form of joint enterprise, employment, or fiduciary relationship between the Parties, and neither Party shall have authority to contract for or bind the other Party in any manner whatsoever.

13.5. Severability. In the event that any provisions of this Agreement, or any portions thereof, are held to be unenforceable or invalid by any court of competent jurisdiction, the validity and enforceability of the remaining provisions or portions of this Agreement shall not be affected thereby.

13.6. Force Majeure. In no event shall either Party be liable for any failure or delay in performing an obligation under this Agreement (except for the obligations to make payments), if and to the extent such failure or delay is due to causes beyond such Party’s reasonable control, including but not limited to acts of God, flood, fire, earthquake, pandemic, extended power outages, failure of the Internet, explosion, war, terrorism, invasion, riot or other civil unrest, strikes, labor stoppages or slowdowns, or other industrial disturbances, or passage of law or any action taken by a governmental or public authority, including imposing an embargo (each a “Force Majeure Event”). If a Force Majeure Event prevents or delays performance for more than 180 days, the non-delaying Party may terminate this Agreement, effective immediately upon notice to the delaying Party.

13.7. Attorney’s Fees and Costs. If any action at law or in equity is necessary to enforce or interpret the terms of this Agreement, the prevailing Party shall be entitled to reasonable attorney’s fees, costs, and necessary disbursements incurred either before or after judgment in addition to any other relief to which such Party may be entitled.

13.8. Dispute Resolution. Neither Party will initiate any lawsuit or other legal proceedings under or in relation to this Agreement unless the initiating Party has given the other Party at least 30 days’ notice of the dispute and, if requested by the other Party, used reasonable efforts to resolve the dispute amicably during the notice period; provided, however, that the foregoing will not limit either Party’s rights to seek immediate injunctive relief for the other Party’s actual or threatened breach of confidentiality or infringement of Intellectual Property rights. Mediation, arbitration, or any other method of dispute resolution shall be initiated and conducted exclusively in Salt Lake City, Utah. Each Party hereby consents to the venue and jurisdiction of courts determined in accordance with the preceding sentence.

13.9. Governing Law, Venue, and Jurisdiction. This Agreement and all disputes between the parties shall be governed by, and construed in accordance with, the laws of the State of Utah, without giving effect to the body of laws pertaining to conflict of laws.

13.10. Survival. Any provision of this Agreement that contemplates performance or observance subsequent to termination or expiration of this Agreement (including, without limitation, payment of Fees for previously rendered Services, confidentiality, limitations of liability, and indemnification provisions) will survive termination or expiration of this Agreement and continue in full force and effect.

13.11. Assignment. Neither Party to this Agreement may assign or otherwise transfer any of its rights or obligations under this Agreement without the prior written consent of the other Party, which shall not be unreasonably, or untimely, withheld. Notwithstanding the foregoing, either Party may assign or otherwise transfer all of its rights and obligations under this Agreement in connection with a sale or other transfer of all or substantially all of such Party’s assets or equity (whether by sale of assets or stock or by merger or other reorganization), without the prior consent of and upon written notice given to the other Party. Any purported assignment of this Agreement in violation of this section will be void and without effect.

13.12. Other Engagements. Client acknowledges that its relationship with Xevant, and the rights granted to Client under this Agreement, are non-exclusive, and Xevant may provide the same or similar services to other clients during the Term.

13.13. Wavier. No waiver by any Party of any of the provisions hereof will be effective unless explicitly set forth in writing and signed by the Party so waiving. Except as otherwise set forth in this Agreement, (a) no failure to exercise, or delay in exercising, any rights, remedy, power, or privilege arising from this Agreement will operate or be construed as a waiver thereof and (b) no single or partial exercise of any right, remedy, power, or privilege hereunder will preclude any other or further exercise thereof or the exercise of any other right, remedy, power, or privilege.

13.14. Counterparts. This Agreement may be executed in one or more counterparts, all of which together are deemed one and the same agreement. This Agreement may be executed and delivered by electronic methods and upon such delivery the electronic method of signature will be deemed to have the same effect as if the original signature had been delivered to the other Party.