DARBY, INC
PLATFORM SUBSCRIPTION TERMS

‍ This Platform Subscription Agreement (“Agreement”) is effective as of the date of execution of the first Order Form (“Start Date”) by and between Darby, Inc. (“Darby”), and the Customer identified on the Order Form (“Customer” or “you”), for the provision of services through the Darby platform in accordance with the following terms and conditions. 

UPON EXECUTING AN ORDER FORM THAT REFERENCES THIS AGREEMENT, OR, BY OTHERWISE ACCEPTING THIS AGREEMENT, CUSTOMER AGREES TO BE BOUND BY THE TERMS AND CONDITIONS OF THIS AGREEMENT. If you do not agree to the terms of this Agreement, Darby is not willing to grant any right to use or access the Platform to you. When used herein the term “Agreement” includes the body of this Agreement, all Order Forms, and all addendums, exhibits, and attachments hereto or referenced herein. In the event of any irreconcilable conflict between the following body of this Agreement and/or an Order Form, addendum, exhibit, schedule, or other attachment, the terms set forth in the body of this Agreement will govern, subject to the terms of any Business Associate Agreement between the Parties. Darby and Customer may be referred to in this Agreement individually as a “Party” and together as the “Parties.” For purposes of this Agreement, “Order Form” means one or more duly signed and executed Darby subscription order forms which reference this Agreement and all Order Forms are hereby incorporated herein.

‍IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT AND WARRANT THAT YOU HAVE THE NECESSARY AUTHORITY TO BIND SUCH ENTITY AND ITS AFFILIATES TO THE TERMS AND CONDITIONS OF THIS AGREEMENT, IN WHICH CASE THE TERM “CUSTOMER” SHALL HEREAFTER REFER TO SUCH ENTITY AND ITS AFFILIATES. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH THESE TERMS AND CONDITIONS, YOU ARE HEREBY NOT PERMITTED AND MAY NOT USE THE PLATFORM (OR ANY OTHER TECHNOLOGY, SERVICES, CONTENT, OR PRODUCTS OFFERED BY DARBY) IN ANY MANNER.

1. Term. The term of this Agreement shall commence upon the earlier of the Effective Date or Customer’s first use of the Platform and continue in full force until the expiration or termination of all outstanding Order Forms in accordance with the subscription period set forth on the relevant Order Form (the “Term”). 
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‍2. Platform
2.1 Platform Access. Subject to the terms and conditions of this Agreement, including Customer’s payment of all relevant fees, Darby grants to Customer a non-exclusive, non-transferable, non-sublicensable subscription for Customer and its End Users to access and use Darby’s hosted application as identified on an Order Form between the Parties (the “Platform”) and Documentation (as defined below) during the Term solely for Customer’s internal business purposes. For purposes of this Agreement, “End Users” means Customer’s employees, contractors, representatives, clinicians, practitioners, and health care professionals, who are authorized to access and use the Platform on Customer’s behalf, and for which Customer will remain liable and responsible. Customer may, as agreed to in writing by Darby, offer access to the Platform to any affiliates, subsidiaries, parent corporations, or affiliate entities and Customer shall be responsible and liable for all access and use by such entities. 

2.2 Restrictions. Customer and its End Users may only use the Platform as described in this Agreement and in the then-current documentation, specifications, and instructions regarding the Platform, including online help screens contained within the Platform, made generally available by Darby to its customers and modified from time to time (the “Documentation”). Customer is responsible for ensuring its End Users comply with all relevant terms of this Agreement, and any failure to comply will constitute a breach by Customer. Except as expressly authorized by this Agreement, Customer will not, and will not allow any End User or other third party to, (a) permit any third party to access or use the Platform other than an End User, (b) decompile, disassemble, modify, translate, distribute, reverse engineer, or otherwise attempt to derive the trade secrets embodied in the Platform, except to the extent expressly permitted by Applicable Law, (c) rent, sell, or lease any rights in the Platform in any form to any person, (d) use the Platform or any Darby Confidential Information to develop a competing product or service, (e) use the Platform, or allow the transfer, transmission, export, or re-export of the Platform or portion thereof, in violation of any export control laws or regulations administered by the U.S. Commerce Department or any other government agency, or (f) remove, minimize, block, or modify any copyright, trademark, proprietary rights, disclaimer, digital watermark, or warning notice included on or embedded in any part of the Documentation or Platform, including any screen displays, or any other materials provided by Darby hereunder. Under no circumstances will Darby be liable or responsible for any use, or any results obtained by the use, of the Platform in conjunction with any content, services, software, or hardware that are not provided by Darby, including any services or advice provided by Customer and its applicable End Users, including health care services, insurance claims processing, or medical advice, where applicable. All such use will be at Customer’s sole risk and liability and Customer, and not Darby, shall be solely responsible for its provision of health care services, insurance claims processing, and medical advice. Darby reserves the right to modify the Platform for any reason, without notice and without liability to Customer or any End User, to comply with Applicable Law and to otherwise modify and update the Platform from time to time, provided Darby does not materially reduce the functionality of the Platform as set forth in the Documentation during any subscription period.

2.3 Support. During the Term, Darby will provide Customer with reasonable email and scheduled live video support in connection with Customer’s authorized use of the Platform during Darby then-current business hours. Darby will use commercially reasonable efforts to correct reproducible failures of the Platform to perform in substantial accordance with its then current Documentation. 

2.4 Subsequent Versions and New Offerings. If, during the Term, Darby makes available to its customers generally any future update, version, or release of the Platform, Darby shall provide the update, version, or release to Customer at no additional charge. For the avoidance of doubt, Darby may charge additional fees for functions, features, or modules not included in the version of the Platform marketed by Darby and provided to Customer as of the Effective Date of this Agreement.

2.5 Availability. Darby shall take commercially reasonable measures to ensure the Platform is available for access and use by Customer and End Users at all times, except during regularly scheduled and emergency maintenance. In the event the Platform is unavailable, Darby shall take commercially reasonable measures to correct the interruption as promptly as practicable. 

2.6 Customer Responsibilities. Customer and its End Users shall be responsible for obtaining and maintaining any equipment and ancillary services needed to connect to, access, or otherwise use the Platform, including hardware, devices, software, operating systems, networking, web servers, telecommunication and Internet connections, and the like. Customer shall also be responsible for maintaining the security of the foregoing equipment and services and Customer login information, passwords, and files. Customer is responsible for all uses of Customer and End User accounts with or without Customer’s knowledge or consent.

2.7 Customer Data. Customer is responsible for all data Customer or its End Users places on the Platform (“Customer Data”). Darby does not endorse, approve, monitor, or vet any Customer Data placed on or generated through the Platform or otherwise made available through or to Darby or the Platform in any way. All Customer Data is the responsibility of Customer, and Darby shall not be liable for any reason for the contents, legality, appropriateness, accuracy, integrity, or use of any Customer Data.

2.8 Beta Functionality. Darby may designate certain new functionality or technical features of the Platform to be made available as “Beta Functionality.” Beta Functionality will be at an early stage of development and therefore operation and use of the Beta Functionality may be unpredictable and lead to operational malfunctions with respect to the Platform. Customer acknowledges and agrees that: (a) the Beta Functionality will be experimental and will not have been fully tested; (b) the Beta Functionality may not meet Customer requirements; (c) the use or operation of the Beta Functionality may not be uninterrupted or error free; (iv) Customer’s use of the Beta Functionality will be for purposes of evaluating and testing the new technical features and functionality of Darby products and services and providing feedback to Darby; and (v) Customer will inform its End Users regarding the nature of the Beta Functionality. Customer’s use of the Beta Functionality will be subject to all of the terms and conditions set forth herein relating to the Platform. Customer will promptly report any errors, defects, or other deficiencies in the Beta Functionality to Darby. NOTWITHSTANDING ANY OTHER PROVISION OF THIS AGREEMENT, BETA FUNCTIONALITY IS PROVIDED “AS-IS” AND “AS-AVAILABLE,” WITHOUT WARRANTIES OR INDEMNITIES OF ANY KIND. Customer waives any and all claims, now known or later discovered, that Customer may have against Darby and its suppliers and licensors arising out of Customer’s use of the Beta Functionality.

3. Platform Fees 
‍3.1 Fees and Payment Terms. Customer agrees to pay the fees associated with the Platform, as set forth in the relevant Order Form. Fees are due regardless of whether or not Customer has collected fees from its customers, patients, or third-party payors, and shall not be subject to any offset or deduction of any kind for any reason related Customer’s collected fees. Except as specifically provided hereunder, all fees are non-refundable and all Orders Forms are non-cancelable. Customer will pay all invoices within ten (10) days of invoice date. Payments not made in accordance with this Agreement will be subject to late charges equal to the lesser of (a) ten percent (10%) per annum (calculated and compounded on a monthly basis) of the overdue amount, or (b) the maximum amount permitted under Applicable Law. Darby may increase fees for any renewal subscription period under an Order Form by providing sixty (60) days advanced notice to Customer prior to the commencement of the applicable renewal period. 

3.2 Taxes. Customer shall be responsible for those sales, use, and similar taxes associated with its use of the Platform, excluding taxes based on Darby’s real property, personal property, income, or personnel.

3.3 Other Darby Products and Services. All other Darby products and services requested by Customer shall be provided upon mutual agreement of the Parties and shall be subject to Customer’s payment of Darby’s then-current fees and expenses.

4. No Provision of Medical Advice or Services. Darby provides a technology platform for professional service providers, including health care organizations and suppliers, to capture and transfer data. Notwithstanding anything contained herein to the contrary, the Parties acknowledge and agree that Darby does not, and shall not, provide health care, clinical, treatment, or diagnostic services and that Darby does not practice medicine or provide insurance claims processing services. All clinical and health care planning, management, insurance, claims coding and processing, and other health care decisions shall be made by the appropriate members of the Customer’s professional and provider care team. Darby does not provide, and any use of the Platform by Customer or End User does not constitute, any medical advice, legal advice, or representations in any way regarding any legal or medical issues associated with Customer or End Users or goods or services offered or purchased by Customer or End Users, including any compliance obligations or steps necessary to comply with any international, federal, state, and local laws, statutes, regulations, and rules, or the directives, orders, policies, guidelines, and codes of practice and conduct issued by any government or third party. Customer should seek legal counsel regarding any legal and compliance issues, and should not rely on any materials or content associated with the Platform or its Documentation in determining Customer’s compliance obligations under law. Customer and all End Users understand and agree Darby is not providing, and the use of the Platform does not amount to the provision of, medical services. Use of the Platform is not a substitute for medical treatment and does not guarantee any specific outcome. Without limiting the generality of the foregoing, Darby specifically disclaims and does not guarantee that use of the Platform will ensure appropriate medical treatment, insurance claims processing, or treat the transmission of any disease or condition. 

5. Medical Records; Data Hosting and Storage; HIPAA. Customer is solely responsible for retaining, storing, and creating backups for any and all Customer Data that Customer or an End Users enters into or generates through use of the Platform. Customer is solely responsible for creating, storing, and maintaining any and all records, including any digital images and including medical records, to the extent Customer is a health care professional. The Parties agree that Darby bears no responsibility for maintaining or preserving any Customer Data, End User data, or data related to the services provided to Customer or End Users through or in connection with the Platform, including End User data provided to Customer through use of the Platform. Customer understands, acknowledges and agrees it is solely responsible for preserving and making adequate backups of its data. Nothing in this Agreement limits or restricts Darby’s ability to create its own records of the data and services provided or accessed through the Platform to the fullest extent permitted by law. Darby and Customer each agree to comply with all Applicable Law relating to the maintenance, uses, and disclosures of protected health information, including the Health Insurance Portability and Accountability Act of 1996 and its implementing regulations to the extent applicable to each Party. The Parties will comply with the terms of any Business Associate Agreement (“BAA”) entered into between the Parties, to the extent Darby is functioning as a “business associate” to Customer. In the event of any conflict between the terms of this Agreement and those set forth in the BAA, the terms of the BAA shall prevail with respect to protected health information.

6. Billing and Collection. With respect to any service for which a claim for payment or reimbursement may be submitted to a patient, health plan, governmental agency, third party payer and/or other financially-responsible parties, Customer and not Darby shall have the sole and exclusive responsibility to bill and collect from such patients, health plans, governmental agencies, third party payors and other financially-responsible parties. Darby may not, and shall not, bill any patient, governmental agencies, or third party payor for Customer or any End User’s use of the Platform or the services rendered by or to Customer or any End User. In billing and collecting for services associated with the Platform, Customer shall be responsible for all billing, coding, documentation, claims submission, and collections associated with its operations, including the determination of whether or not the use of the Platform is covered by health plans, governmental agencies, third party payors, or other financially-responsible parties, to the extent applicable to Customer’s business and use of the Platform. Darby shall not be responsible to refund, offset, or indemnify Customer for any claim denials, audits, adjustments, or overpayments in connection with Customer’s billing related to the Platform. Customer shall comply with all billing laws, regulations, instructions, interpretative guidelines and other requirements established by governmental and commercial payors when billing for the Platform. Customer further agrees to hold Darby harmless and indemnify Darby from any responsibility or claim of any kind relating to Customer’s billing and collection of fees for the Platform.

7. Representations and Warranties
‍7.1 Customer Warranty. Customer represents and warrants that: (a) it has full power, capacity, and authority to enter into this Agreement and to grant the licenses set forth herein; (b) the Customer Data does not and will not infringe the intellectual property, publicity, or privacy rights of any person and is not defamatory, obscene, or in violation of applicable international, foreign, federal, state, or local laws, rules, or regulations (including applicable policies and laws related to spamming, privacy, or consumer protection) (collectively, “Applicable Law”); (c) its use of the Platform will be in compliance with all Applicable Law; (d) neither Customer nor any End Users shall make any representations with respect to Darby, the Platform, or this Agreement (including that Darby is a warrantor or co-seller or provider of any Customer services); and (e) neither Customer nor any of its respective officers, directors, employees, or contractors is or has ever been: (i) convicted of a criminal offense related to health care or the provision of items and services payable by a federal or state health care program (for example, Medicare and Medicaid); (ii) assessed civil money penalties for an offense related to health care or to the provision of items or services payable by a federal or state health care program; (iii) excluded from participation in any federal or state health care program; or (iv) excluded by any federal agency from receiving federal contracts. Customer shall notify Darby immediately of any breach of any representation or warranty in this Section or any other Section under this Agreement or of any information or situation which could reasonably lead to a breach of this Section.

7.2 Darby Warranty. Darby represents and warrants that (a) it has the full power, capacity, and authority to enter into and perform this Agreement and to make the grant of rights contained herein, (b) the Platform will substantially comply with the Documentation; (c) it shall use commercially reasonable efforts to screen the Platform for viruses, Trojan horses, worms, and other similar intentionally harmful or destructive code; and (d) it shall comply with Applicable Law in performing this Agreement. In the event of a breach of the warranty in this Section, Darby’s sole and exclusive liability and Customer’s sole and exclusive remedy will be for Darby to correct the defect in the Platform or, in the event Darby is unable through reasonable efforts to correct the defect in the Platform within sixty (60) calendar days from receipt of notice from Customer of the failure of the Platform to comply with the warranty, Customer may elect to terminate this Agreement and receive a pro-rated refund of any pre-paid, unused recurring fees for the non-conforming aspect of the Platform.

7.3 Disclaimer of Warranties. EXCEPT AS PROVIDED IN SECTION 7.2 (DARBY WARRANTY), THE PLATFORM IS PROVIDED “AS IS,” “AS-AVAILABLE,” WITH ALL FAULTS, AND WITHOUT WARRANTY OF ANY KIND. EXCEPT AS PROVIDED IN SECTION 7.2 (DARBY WARRANTY), DARBY AND ITS VENDORS AND LICENSORS DISCLAIMS ALL OTHER WARRANTIES, EXPRESS AND IMPLIED, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, QUIET ENJOYMENT, QUALITY OF INFORMATION, OR NON-INFRINGEMENT. DARBY DOES NOT WARRANT THAT THE PLATFORM WILL MEET CUSTOMER’S REQUIREMENTS, OR THAT THE PLATFORM IS COMPATIBLE WITH ANY PARTICULAR HARDWARE OR SOFTWARE, OR THAT THE OPERATION OF THE PLATFORM WILL BE UNINTERRUPTED OR ERROR-FREE, OR THAT DEFECTS IN THE PLATFORM WILL BE CORRECTED. FURTHERMORE, DARBY DOES NOT WARRANT OR MAKE ANY REPRESENTATION REGARDING THE USE OR THE RESULTS OF THE USE OF THE PLATFORM IN TERMS OF THEIR CORRECTNESS, ACCURACY, QUALITY, RELIABILITY, SECURITY, APPROPRIATENESS FOR A PARTICULAR TASK OR APPLICATION, CURRENTNESS, OR OTHERWISE. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY DARBY OR DARBY’S AUTHORIZED REPRESENTATIVES SHALL CREATE A WARRANTY OR IN ANY WAY INCREASE THE SCOPE OF THIS WARRANTY. THE PLATFORM MAY BE USED TO ACCESS AND TRANSFER INFORMATION OVER THE INTERNET. CUSTOMER ACKNOWLEDGES AND AGREES THAT DARBY AND ITS VENDORS AND LICENSORS DO NOT OPERATE OR CONTROL THE INTERNET AND THAT: (A) VIRUSES, WORMS, TROJAN HORSES, AND OTHER UNDESIRABLE DATA OR SOFTWARE MAY BE TRANSFERRED OVER THE INTERNET; AND (B) UNAUTHORIZED USERS SUCH AS HACKERS MAY ATTEMPT TO OBTAIN ACCESS TO AND DAMAGE CUSTOMER’S DATA, WEBSITES, PROPERTIES, COMPUTERS, OR NETWORKS. DARBY WILL NOT BE RESPONSIBLE FOR SUCH ACTIVITIES. DARBY DOES NOT WARRANT ANY DATA GENERATED THROUGH THE PLATFORM WILL BE ACCURATE OR COMPLETE. CUSTOMER IS RESPONSIBLE FOR PRESERVING AND MAKING ADEQUATE BACKUPS OF ITS DATA.

8. Proprietary Rights; Customer Data
‍8.1 Platform. Darby shall own and retain all right, title and interest in and to (a) the Platform, all improvements, enhancements, customizations, configurations, or modifications thereto, (b) any software, applications, inventions, or other technology developed in connection with the Platform or support services, (c) any and all ideas, processes, techniques, designs, architecture, and “know-how” embodying the Platform, (d) the Documentation, and (e) all intellectual property rights related to any of the foregoing. Under no circumstances will Customer be deemed to receive title to any portion of the Platform, title to which at all times will vest exclusively in Darby. This is not a “work made for hire” agreement, as that term is defined in Section 101 of Title 17 of the United States Code. Customer will preserve the Platform from any liens, encumbrances, and claims of any individual or entity. Customer will not use any Darby intellectual property, data, or Confidential Information to contest the validity of any intellectual property rights of Darby or its licensors, and any such use of the foregoing will constitute a material, non-curable breach of this Agreement.

8.2 Platform Data. As between Customer and Darby, Customer shall own all right, title, and interest in and to the Customer Data. Customer grants Darby a non-exclusive, world-wide, royalty-free license to use the Customer Data for purposes of performing this Agreement. Customer shall retain a copy of Customer Data outside the Platform. Customer is responsible for obtaining all rights, permissions, and authorizations with respect to the Customer Data for use as contemplated under this Agreement. 

8.3 Feedback. Customer may provide suggestions, comments, or other feedback (collectively, “Feedback”) to Darby with respect to Darby products and services. Feedback is voluntary and Darby is not required to hold it in confidence. Darby may use Feedback for any purpose without obligation of any kind. Darby may use any technical information it derives from providing its products and services relating to problem resolution, troubleshooting, product functionality, enhancements, and fixes, for its knowledge base. To the extent a license is required under Customer’s intellectual property rights to make use of the Feedback, Customer grants Darby an irrevocable, non-exclusive, perpetual, fully-paid-up, royalty-free license to use the Feedback in connection with Darby’s business, including the enhancement of Darby’s products and services. 

8.4 Usage Data. Subject to compliance with the BAA, Darby shall have the right to collect, copy, and analyze data and other information relating to the provision, use, and performance of various aspects of the Platform and related systems and technologies (including information concerning Customer Data and data derived therefrom), and Darby may (a) use such information and data to improve and enhance the Platform and for other development, diagnostic, and corrective purposes in connection with the Platform and other Darby offerings, and (b) disclose such data solely in aggregated or other de-identified form in connection with its business. No rights or licenses are granted except as expressly set forth herein. 

8.5. Third Party Data. The Platform and Documentation may contain material, data, or information provided by third parties (“Third Party Data”). Darby does not control Third Party Data and is not responsible for its content. Darby’s inclusion of Third Party Data in the Platform does not imply any endorsement of the information and Darby makes no representations or warranties with respect to any Third Party Data. 

9. Confidentiality
‍9.1 Confidential Information. Each Party (the “Receiving Party”) understands that the other Party (the “Disclosing Party”) has disclosed or may disclose business, technical, or financial information relating to the Disclosing Party’s business (hereinafter referred to as “Confidential Information” of the Disclosing Party). Confidential Information of Darby includes non-public information regarding features, functionality, and performance of the Platform. The Receiving Party agrees: (a) to take reasonable precautions to protect Confidential Information, and (b) not to use (except in provision of the Platform, or as otherwise permitted herein) or divulge to any third person any Confidential Information. The Disclosing Party agrees that the foregoing shall not apply with respect to any information after that the Receiving Party can document (i) is or becomes generally available to the public, (ii) was in its possession or known by it prior to receipt from the Disclosing Party, (iii) was rightfully disclosed to it without restriction by a third party, (iv) was independently developed without use of any Confidential Information of the Disclosing Party, or (v) is required to be disclosed by law, provided such disclosure is made in accordance with Section.

9.2 (Compelled Disclosures). Each Party’s Confidential Information shall remain the sole and exclusive property of that Party. Customer shall keep the details of all Order Forms private and confidential and shall not disclose these details except when required by law or by any regulatory or governmental authority of competent jurisdiction, or by any court of competent jurisdiction.9.2 Compelled Disclosures. To the extent required by applicable law or by lawful order or requirement of a court or governmental authority having competent jurisdiction over the Receiving Party, the Receiving Party may disclose Confidential Information in accordance with the law or order or requirement, subject to the following conditions: as soon as possible after becoming aware of the law, order or requirement and prior to disclosing Confidential Information pursuant thereto, the Receiving Party will so notify the Disclosing Party in writing and, if possible, the Receiving Party will provide the Disclosing Party notice not less than five (5) business days prior to the required disclosure. The Receiving Party will use reasonable efforts not to release Confidential Information pending the outcome of any measures taken by the Disclosing Party to contest, otherwise oppose or seek to limit such disclosure by the Receiving Party and any subsequent disclosure or use of Confidential Information that may result from such disclosure. The Receiving Party will cooperate with and provide assistance to the Disclosing Party regarding such measures. Notwithstanding any such compelled disclosure by the Receiving Party, such compelled disclosure will not otherwise affect the Receiving Party’s obligations hereunder with respect to Confidential Information so disclosed.

9.3 Non-Exclusive Equitable Remedy. Each Party acknowledges and agrees that due to the unique nature of Confidential Information there can be no adequate remedy at law for any breach of its obligations hereunder, that any such breach or threatened breach may allow a Party or third parties to unfairly compete with the other Party resulting in irreparable harm to such Party, and therefore, that upon any such breach or any threat thereof, each Party will be entitled to appropriate equitable remedies, and may seek injunctive relief from a court of competent jurisdiction without the necessity of proving actual loss, in addition to whatever remedies either of them might have at law or equity. Any breach of this Section 9 (Confidentiality) will constitute a material breach of this Agreement and be grounds for immediate termination of this Agreement in the exclusive discretion of the non-breaching Party.

9.4 Confidentiality of the Agreement. Except as permitted under Section 9.2 (Compelled Disclosure) above, no Party shall disclose the terms of this Agreement to any third party without the other Party’s prior written consent, except that, subject to confidentiality obligations no less restrictive than those set forth in this Agreement, a Party may disclose the existence and terms of this Agreement to third parties for purposes of providing due diligence information to potential investors in or financing resources to such Party.

9.5 Return or Destruction of Confidential Information. Upon termination or expiration of this Agreement, at the Disclosing Party’s option, the Receiving Party shall return to the Disclosing Party or certify as destroyed all Confidential Information of the Disclosing Party. Notwithstanding the foregoing, the Receiving Party will not be required to remove copies of the Disclosing Party’s Confidential Information from its backup media and servers, where doing so would be commercially impracticable. In addition, the foregoing destruction and return obligation will be subject to any retention obligations imposed on Receiving Party by law or regulation.

10. Indemnification
‍10.1 By Darby. Darby agrees to defend, indemnify, and hold harmless Customer and its directors, officers, agents, employees, members, subsidiaries, and successors in interest from and against any claim, action, investigation, proceeding, liability, loss, damage, fine, cost, or expense, including attorneys’ fees, experts’ fees, and court costs, arising out of any claim by a third party that Customer’s authorized use of the Platform infringes that third party’s United States patent, copyright, or trade secret. Customer shall: (a) give Darby prompt written notice of any claim; and (b) allow Darby to control, and fully cooperate with Darby (at Darby’s sole expense) in, the defense and all related negotiations. Darby shall not enter into any stipulated judgment or settlement that purports to bind Customer without Customer’s express written authorization, which shall not be unreasonably withheld or delayed. Darby shall have no obligation to indemnify Customer to the extent the claimed infringement arises from or is based on (i) the Customer Data, (ii) use of the Platform in combination with any hardware, software, products, data, or other materials not provided by Darby, or (iii) violation of law or this Agreement by Customer or any End Users (the “Excluded Claims”). Customer agrees that if its use of the Platform becomes, or in Darby’s opinion is likely to become, the subject of an infringement claim, Customer shall permit Darby either to procure the right for Customer to continue to use the Platform or to replace or modify the Platform with technology of comparable quality and performance capabilities to become non-infringing. If in Darby’s sole discretion, neither alternative is reasonably possible, Darby may elect to immediately terminate this Agreement and return a prorated portion of any pre-paid, unused fees for the Platform. The provisions of this Section 10.1 (By Darby) state the sole and exclusive obligations and liability of Darby and its licensors and suppliers, and Customer’s sole and exclusive remedy for any claim of intellectual property infringement arising out of or relating to this Agreement, and are in lieu of any implied warranties of non-infringement and title, all of which are expressly disclaimed.

10.2 By Customer. Customer agrees to defend, indemnify, and hold harmless Darby and its directors, officers, agents, employees, members, subsidiaries, and successors in interest from and against any claim, action, investigation, proceeding, liability, loss, damage, fine, cost, or expense, including attorneys’ fees, experts’ fees, and court costs, arising out of (a) any claim by a third party that the Customer Data infringes the intellectual property, publicity, or privacy rights of any person, or (b) any violation of Applicable Law by Customer. Darby shall: (i) give Customer prompt written notice of any claim; and (ii) allow Customer to control, and fully cooperate with Customer (at Customer’s sole expense) in, the defense and all related negotiations. Customer shall not enter into any stipulated judgment or settlement that purports to bind Darby without Darby’s express written authorization, which shall not be unreasonably withheld or delayed.

11. Disclaimer of Consequential Damages; Limitation of Liability. IN NO EVENT SHALL DARBY, ITS VENDORS, OR LICENSORS BE LIABLE TO CUSTOMER OR ANY THIRD PARTY FOR ANY LOSS OF PROFITS, LOSS OF SALES, TRADING LOSSES, LOSS OF BUSINESS, BUSINESS INTERRUPTION, LOSS OF DATA, OR LOSS OF BUSINESS INFORMATION, OR OTHER INDIRECT, INCIDENTAL, CONSEQUENTIAL, OR SPECIAL LOSS OR DAMAGE, INCLUDING EXEMPLARY AND PUNITIVE, OF ANY KIND OR NATURE ARISING OUT OF OR CONNECTED IN ANY WAY WITH DARBY’S PERFORMANCE UNDER THIS AGREEMENT, OR USE OF OR INABILITY TO USE THE PLATFORM, OR FOR ANY CLAIM BY ANY OTHER PARTY, EVEN IF DARBY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE TOTAL LIABILITY OF DARBY AND ITS VENDORS AND LICENSORS TO CUSTOMER OR ANY THIRD PARTY ARISING OUT OF THIS AGREEMENT OR USE OF THE PLATFORM IN CONNECTION WITH ANY CLAIM OR TYPE OF DAMAGES, LOSSES, AND CAUSES OF ACTION (WHETHER IN CONTRACT, TORT, OR OTHERWISE), SHALL NOT EXCEED THE AMOUNT OF THE FEES ACTUALLY PAID DURING THE SIX (6) MONTHS IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO THE LIABILITY BY CUSTOMER FOR THE SERVICES OR PORTION OF THE PLATFORM GIVING RISE TO THE LIABILITY. THIS LIMITATION OF LIABILITY SHALL APPLY EVEN IF THE EXPRESS WARRANTIES SET FORTH ABOVE FAIL OF THEIR ESSENTIAL PURPOSE.

12. Termination 
12.1 Default. Each Party shall have the right to terminate this Agreement upon thirty (30) days written notice (or with ten (10) days notice in the case of nonpayment) in the event the other Party materially breaches any provision hereof and fails to cure such breach in the foregoing notice period. This Agreement may be terminated upon written notice by either Party, immediately, if (a) a receiver is appointed for the other Party or its property, (b) the other Party becomes insolvent or unable to pay its debts as they mature in the ordinary course of business, makes a general assignment for the benefit of its creditors, or suspends the transaction of its usual business for a period in excess of thirty (30) days, (c) any proceedings (whether voluntary or involuntary) are commenced against the other party under any bankruptcy or similar law and such proceedings are not vacated or set aside within sixty (60) calendar days from the date of commencement thereof, or (d) either Party is listed by a federal agency as being disbarred, excluded, terminated, or otherwise ineligible for federal program participation.

12.2 Suspension. Darby may, in its sole discretion, immediately suspend or terminate Customer’s access to the Platform for any of the following reasons: (a) to prevent damages or risk to, or degradation of, the Platform; (b) to comply with any law, regulation, court order, or other governmental request; (c) to otherwise protect Darby from potential legal liability; or (d) in the event an invoice remains unpaid for more than forty-five (45) days from the invoice date. Darby will use reasonable efforts to provide Customer with notice prior to or promptly following any suspension. Darby will promptly restore access to the Platform as soon as the event giving rise to suspension has been resolved. This Section will not be construed as imposing any obligation or duty on Darby to monitor use of the Platform. 

12.3 Effect of Termination. Upon termination or expiration of this Agreement for any reason: (a) Customer and all End Users’ access to and use of the Platform and Documentation will cease as of the effective date of termination; (b) Darby will cease to provide the Platform; and (c) Customer will pay to Darby all fees due to Darby incurred hereunder through the effective date of termination or expiration, provided that in the event Darby terminates this Agreement under Section 12.1 (Default) above, all fees due by Customer under the relevant Order Form shall be accelerated and become due and payable immediately upon termination. Within a reasonable time after expiration or termination of this Agreement for any reason, Darby will make all Customer Data available to Customer for electronic retrieval for a period of sixty (60) days. 

12.4 Survival. The following Sections shall survive any termination or expiration of this Agreement: 3 (Platform Fees); 4 (No Provision of Medical Advice or Services); 5 (Medical Records; Data Hosting and Storage; HIPAA), 6 (Billing and Collection); 7.3 (Disclaimer of Warranties); 8 (Proprietary Rights; Customer Data); 9 (Confidentiality); 10 (Indemnification); 11 (Disclaimer of Consequential Damages; Limitation of Liability); 12.3 (Effect of Termination); 12.4 (Survival); and 13 (General). 

13. General 
‍13.1 Affiliates, Subcontractors, and Vendors. Some or all aspects of the Platform may be provided by Darby’s affiliates, agents, subcontractors, and information system vendors. The rights and obligations of Darby may be, in whole or in part, exercised or fulfilled by the foregoing entities.

13.2 Publicity. Darby has the right to (i) create, and Customer will participate in, a co-branded case study that will include responses and feedback from the Customer regarding the use of Darby’s products and services, and (ii) use Customer’s name and logo on promotional materials including, but not limited to, Darby’s website, brochures, sales materials and fundraising materials.

13.3 Independent Contractor. Darby is an independent contractor and is not an agent or employee of, and has no authority to bind, Customer by contract or otherwise. Further, it is not the intention of this Agreement or of the Parties to confer a third-party beneficiary right of action upon any third party or entity whatsoever, and nothing in this Agreement will be construed so as to confer upon any third party or entity other than the Parties hereto a right of action under this Agreement or in any manner whatsoever.

13.4 Assignment. Customer may not assign, transfer, or delegate its rights or obligations under this Agreement without the prior written consent of Darby. All the terms and provisions of this Agreement will be binding upon and inure to the benefit of the Parties, their successors, assigns, and legal representatives.

13.5 Force Majeure. Except for the payment of fees hereunder, if either Party cannot perform any of its obligations because of any act of God, court order, war, or any other cause not within the Party’s reasonable control, that begins after the Effective Date and could not be avoided through the exercise of reasonable care and diligence (a “Force Majeure Event”), then the non-performing Party will: (i) immediately notify the other Party; (ii) take reasonable steps to resume performance as soon as possible; and (iii) not be considered in breach during the duration of the Force Majeure Event. 

13.6 Governing Law; Venue. This Agreement will be governed by and construed in accordance with the laws of the State of South Carolina, without regard to its conflict of law provisions. The Parties waives any objections against and agrees to submit to the personal jurisdiction of the state and federal courts in the State of South Carolina. The Parties waive any objections or defenses it may have based upon an inconvenient forum. 

13.7 Compliance. Each Party agrees to comply with all Applicable Laws in performing its obligations hereunder, and Customer agrees that Customer is solely responsible for ensuring its own compliance with all Applicable Laws related to Customer’s business practices, which include the applicable federal and state anti-kickback and self-referral laws and regulations. The Parties acknowledge that although Darby is obligated to provide the Platform as specified in this Agreement, there is no obligation of Darby to refer patients to Customer or any affiliate of Customer, and there is no obligation of Customer to refer patients to any person or business entity. Notwithstanding the unanticipated effect of any of the provisions herein, the Parties intend to comply with 42 U.S.C. § 1320a-7b(b) (commonly known as the Anti-Kickback Statute), 42 U.S.C. § 1395nn (commonly known as the Stark Law) and any other federal or state law provision governing fraud and abuse or self-referrals, as such provisions may be amended from time to time. This Agreement will be construed in a manner consistent with compliance with such statutes and regulations, and the Parties hereto agree to take such actions necessary to construe and administer this Agreement accordingly. The Parties hereto represent, covenant, and agree that the fees due to Darby under this Agreement has been determined through good faith and arm’s length bargaining to be commercially reasonable. The sole purpose of the payments to Darby hereunder is to pay fair market value for services actually rendered by Darby to Customer through the Platform under this Agreement. No amount paid hereunder is intended to be, nor shall be construed as, an inducement or payment for referral of, or recommending referral of, patients by Darby (or its employees and agents) to Customer (or its employees or agents) or by Customer (or its employees and agents) to Darby (or its employees and agents). In addition, fees charged hereunder do not include any discount, rebate, kickback, or other reduction in charge. This Agreement shall be interpreted and construed at all times in a manner consistent with applicable laws and regulations governing the financial relationships among individuals and entities that provide or arrange for the provision of items or services that are reimbursable by governmental health care programs or other third party payors.

13.8 Access to Books and Records. To the extent that the provisions of Section 1861(v)(1)(I) of the Social Security Act are applicable to this Agreement, the Parties agree to make available, upon the written request of the Secretary of the Department of Health and Human Services or upon the request of the Comptroller General, or any of their duly authorized representatives, this Agreement, and other books, records, and documents that are necessary to certify the nature and extent of costs incurred by them for services furnished under this Agreement. If any services are performed by way of subcontract with another organization and the value or cost of such subcontracted service is Ten Thousand Dollars ($10,000) or more over a twelve (12) month period, such subcontract shall contain and the respective Party shall enforce a clause to the same effect as this Section. The availability of the Parties’ books, documents, and records shall be subject at all times to all applicable legal requirements, including such criteria and procedures for seeking and obtaining access that may be promulgated by the Secretary. The obligations hereunder shall extend for four (4) years after the furnishing of such services. The Parties shall notify each other of any such request for records.

13.9 Waivers. All waivers hereunder must be made in writing by a duly authorized representative of the Party against whom the waiver is to operate, and failure at any time to require the other Party’s performance of any obligation under this Agreement shall not affect the right subsequently to require performance of that obligation. Any waiver, in whole or in part, of any provision of this Agreement will not be considered to be a waiver of any other provision. 

13.10 Severability. If any term of this Agreement is found to be unenforceable or invalid for any reason, all other terms will remain in full force and effect. 

13.11 Construction. All headings used in this Agreement are for reference purposes only and are not part of this Agreement. All personal pronouns used herein, whether used in the feminine, masculine, or neuter gender, shall include all other genders, and the singular shall include the plural and vice versa. Unless otherwise expressly stated, the words “herein,” “hereof,” and “hereunder” and other words of similar import refer to this Agreement as a whole and not to any particular Section, Subsection, or other subpart. The words “include,” “includes,” “included,” “including,” “without limitation,” or the phrase “e.g.” shall not be construed as terms of limitation and shall, in all instances, be interpreted as meaning “including, but not limited to.”

13.12 Attachments. All Order Forms and other terms and addenda that are referenced herein on or are executed by the Parties and reference this Agreement after the Effective Date are hereby incorporated by reference. 

13.13 Entire Agreement. This Agreement, as to its subject matter, exclusively and completely states the rights, duties, and obligations of the Parties and supersedes all prior and contemporaneous representations, letters, proposals, discussions, and understandings by or between the Parties. This Agreement may only be amended in a writing signed by both Parties. Any additional or conflicting terms set forth in any purchase order or similar documentation issued by Customer shall be null and void and shall not form part of the agreement between the Parties.

13.14 Notices. All notices under this Agreement will be in writing and will be deemed to have been duly given when received, if delivered personally; the day after it is sent, if sent for next day delivery by recognized overnight delivery service; and upon receipt, if sent by certified or registered mail, return receipt requested. All notices under this Agreement to Darby shall be sent to the following address:

Darby, Inc.
548 Market St PMD 54003
San Francisco, CA 94104

All notices to Customer shall be sent to the Customer address set forth in the Order Form. Either Party may change its address or designee for notification purposes by giving notice to the other of the new address or designee and the date upon which the change will become effective.

13.15 Legal Fees. If any dispute arises between the Parties with respect to the matters covered by this Agreement that leads to a proceeding to resolve such dispute, the prevailing Party in such proceeding will be entitled to receive its reasonable attorneys’ fees, expert witness fees, and out-of-pocket costs incurred in connection with such proceeding, in addition to any other relief it may be awarded.

13.16 Agreement Drafted By All Parties. This Agreement is the result of arm’s length negotiations between the Parties and shall be construed to have been drafted by all Parties such that any ambiguities in this Agreement shall not be construed against either Party. 

13.17 Counterparts. This Agreement, including any Order Form between the Parties, may be executed in one or more counterparts, each of which shall be deemed an original, and will become effective and binding upon the Parties as of the Effective Date.

13.18 Electronic Signatures and Facsimiles Binding. This Agreement and related documents may be accepted in electronic form (e.g., by an electronic or digital signature or other means of demonstrating assent) and electronic acceptance will be deemed binding between the Parties. Customer acknowledges and agrees it will not contest the validity or enforceability of this Agreement, including under any applicable statute of frauds, because they were accepted and/or signed in electronic form. Customer further acknowledges and agrees that it will not contest the validity or enforceability of an electronically transmitted or signed copy of this Agreement and related documents on the basis that it lacks an original handwritten signature. Electronically transmitted signatures shall be considered valid signatures as of the date hereof. Computer maintained records of a Party when produced in hard copy form shall constitute business records and shall have the same validity as any other generally recognized business records.