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End User license agreement

Application End User License Agreement

Last updated 10/31/2023

This End User License Agreement ("Agreement") is a binding agreement between you ("you") and HealthMotivate Digital ("Company"). This Agreement governs your use of the Company's HealthMotivate mobile application, (including all related documentation, the "Application"). The Application is licensed, not sold, to you.

BY CLICKING THE "AGREE" BUTTON, YOU (A) ACKNOWLEDGE THAT YOU HAVE READ AND UNDERSTAND THIS AGREEMENT; (B) REPRESENT THAT YOU ARE 18 YEARS OF AGE OR OLDER/OF LEGAL AGE TO ENTER INTO A BINDING AGREEMENT; AND (C) ACCEPT THIS AGREEMENT AND AGREE THAT YOU ARE LEGALLY BOUND BY ITS TERMS. IF YOU DO NOT AGREE TO THESE TERMS, DO NOT USE THE APPLICATION AND DELETE IT FROM YOUR MOBILE DEVICE.

1.  License Grant.  Subject to the terms of this Agreement, Company grants you a limited, non-exclusive, and nontransferable license to:

(a) download, install, and use the Application for your personal, non-commercial use on a single mobile device owned or otherwise controlled by you ("Mobile Device") strictly in accordance with the Application's documentation; and

(b) access, download, and use on such Mobile Device the Content and Services (as defined in Section 7) made available in or otherwise accessible through the Application, strictly in accordance with this Agreement and the Terms of Use applicable to such Content and Services as set forth in Section 7.

2.  License Restrictions.  You shall not:

(a) copy the Application, except as expressly permitted by this license;

(b) modify, translate, adapt, or otherwise create derivative works or improvements, whether or not patentable, of the Application;

(c) reverse engineer, disassemble, decompile, decode, or otherwise attempt to derive or gain access to the source code of the Application or any part thereof;

(d) remove, delete, alter, or obscure any trademarks or any copyright, trademark, patent, or other intellectual property or proprietary rights notices from the Application, including any copy thereof;

(e) rent, lease, lend, sell, sublicense, assign, distribute, publish, transfer, or otherwise make available the Application, or any features or functionality of the Application, to any third party for any reason, including by making the Application available on a network where it is capable of being accessed by more than one device at any time; or

(f) remove, disable, circumvent, or otherwise create or implement any workaround to any copy protection, rights management, or security features in or protecting the Application.

3.  Reservation of Rights.  You acknowledge and agree that the Application is provided under license, and not sold, to you. You do not acquire any ownership interest in the Application under this Agreement, or any other rights thereto other than to use the Application in accordance with the license granted, and subject to all terms, conditions, and restrictions, under this Agreement. Company and its licensors and service providers reserve and shall retain their entire right, title, and interest in and to the Application, including all copyrights, trademarks, and other intellectual property rights therein or relating thereto, except as expressly granted to you in this Agreement.

4.  Registration.  Prior to accessing the Application, you must register for an account with Company (“Account”). When applying for an Account, you must provide complete and accurate information and ensure that all information that you provide to Company via the Application (as well as any additional information we may require to, among other things, verify your identity) is complete, accurate, and up-to-date at all times.

5.  Account Security.  Your access to the Application will be controlled by logon identifiers and passwords (“Login Information”). You shall not share your Login Information, and you shall be fully responsible for maintaining the security and confidentiality of all Login Information and for any and all activity that takes place under your Login Information. You shall notify Company immediately, and in no event within one (1) hour, in the event that you know, or reasonably should know, that you Login Information has been obtained, accessed, or viewed by an authorized third party or has otherwise been compromised.

6.  Collection and Use of Your Information.  You acknowledge that when you download, install, or use the Application, Company may use automatic means (including, for example, cookies and web beacons) to collect information about your Mobile Device and about your use of the Application. You also may be required to provide certain information about yourself as a condition to downloading, installing, or using the Application or certain of its features or functionality, and the Application may provide you with opportunities to share information about yourself with Company, including User Content as set forth in Section 7(b). All information we collect through or in connection with this Application is subject to our Privacy Policy. By downloading, installing, using, and providing information to or through this Application, you consent to all actions taken by us with respect to your information in compliance with the Privacy Policy.

7.  Content and Services.

(a)  Company Content . The Application may provide you with access to Company's website located at http://healthmotivate.digital (the "Website") and products and services accessible thereon, and certain features, functionality, and content accessible on or through the Application may be hosted on the Website or through Company's third-party contractors (collectively, "Content and Services"). Your access to and use of such Content and Services are governed by the Application and Services Terms of Use and the Privacy Policy, which are incorporated herein by this reference. Your access to and use of such Content and Services may require you to acknowledge your acceptance of such Terms of Use and Privacy Policy and/or to register with the Website or otherwise with the Company, and your failure to do so may restrict you from accessing or using certain of the Application's features and functionality. Any violation of such Terms of Use will also be deemed a violation of this Agreement.

(b)  User Content . “User Content” means all content (including without limitation, text, photos, graphics, audio, video, and other materials, including physiological information about you) that you upload, post, send, submit, transmit, make available, or otherwise transfer to or through the Application. Company does not prescreen User Content, is not responsible for the content of any User Content, and makes no guarantees as to the validity, accuracy, or legal status of any User Content. Company may, at any time, with or without notice, block, interrupt, delete, or otherwise remove, disable or restrict access to, or refuse to display or transmit any User Content. You grant, transfer and assign to Company, and Company retains, all rights in, and ownership of, the User Content, including but not limited to any results, data, analyses, reports, derivatives, and any other information or documentation related to the User Content, and may use and disclose User Content in accordance with Company's Privacy Policy. For example, Company may use and disclose to third parties your User Content to provide, improve, enhance, develop, and modify the Application, to carry out management of Company's business, for research and development purposes, to market and promote Company and the Application, and for other commercial purposes.

(c)  Account Information . “Account Information” means all information associated with your Account, including without limitation User Content. You agree to update your Account Information, as necessary, to ensure that it remains current, accurate, and complete. You authorize us to verify your Account Information at any time. If any of your Account Information is untrue, inaccurate, incomplete, or not current, we retain the right, in our sole discretion, to suspend or terminate your Account and your access to the Application. We value and respect your privacy, and we will only use your Account Information as permitted by this Agreement, the Application and Services Terms of Use, and the Privacy Policy. You acknowledge and that some or all of your Account Information may be accessed, viewed by, and/or disclosed to third parties in accordance with the terms of this Agreement.

(d)  Representation and Warranty . You represent and warrant to Company: (a) that you have the right (and have obtained any and all necessary permissions, consents, and authorizations) to grant, transfer, and assign all rights granted in this Agreement (b) that the use of your User Content by Company (and third parties to which Company discloses the User Content) will not infringe the intellectual property rights of any third party; (c) that none of your User Content will contain third-party copyrighted material or material that is subject to other third-party intellectual property rights unless you have written permission from the rightful owner of the materials (or you are otherwise legally entitled) to upload, post, send, submit, transmit, make available, or otherwise transfer such materials as part of your User Content, and to grant all other rights granted in this Agreement; and (d) that you have the written consent, release, and/or permission of each and every identifiable person in your User Content to use (and to grant us the rights granted in this Agreement) the person's name, image, photo, portrait, voice, sound-alike, likeness, and persona in connection with your User Content.

(e)  Security of Login Credentials . You acknowledge that you are responsible for any activities that occur through your Account, whether or not authorized by you. You agree to immediately notify us of any security breach associated with your login credentials or your Account and of any unauthorized use of your Account. We will not be liable for any losses (to you or others) caused by any unauthorized use of your Account, and you acknowledge that you may be liable for the losses of Company or others due to such unauthorized use.

(f)  Protected Health Information . To the extent that Company is engaged by a third party Covered Entity, as that term is defined by the Health Insurance Portability and Accountability Act of 1996, as amended, and its associated regulations (collectively, “HIPAA”), to create, receive, maintain, or transmit your Protected Health Information (“PHI”), as that term is defined by HIPAA, Company will comply with HIPAA as it relates to your PHI.

8.  Geographic Restrictions.  The Content and Services are based in the United States and provided for access and use only by persons located in the United States. You acknowledge that you may not be able to access all or some of the Content and Services outside of the United States and that access thereto may not be legal by certain persons or in certain countries. If you access the Content and Services from outside the United States, you are responsible for compliance with local laws.

9.  Updates.  Company may from time to time in its sole discretion develop and provide Application updates, which may include upgrades, bug fixes, patches, other error corrections, and/or new features (collectively, including related documentation, "Updates"). Updates may also modify or delete in their entirety certain features and functionality. You agree that Company has no obligation to provide any Updates or to continue to provide or enable any particular features or functionality. Based on your Mobile Device settings, when your Mobile Device is connected to the internet either:

(a) the Application will automatically download and install all available Updates; or

(b) you may receive notice of or be prompted to download and install available Updates. You shall promptly download and install all Updates and acknowledge and agree that the Application or portions thereof may not properly operate should you fail to do so. You further agree that all Updates will be deemed part of the Application and be subject to all terms and conditions of this Agreement.

10.  Third-Party Materials.  The Application may display, include, or make available third-party content (including data, information, applications, and other products, services, and/or materials) or provide links to third-party websites or services, including through third-party advertising ("Third-Party Materials"). You acknowledge and agree that Company is not responsible for Third-Party Materials, including their accuracy, completeness, timeliness, validity, copyright compliance, legality, decency, quality, or any other aspect thereof. Company does not assume and will not have any liability or responsibility to you or any other person or entity for any Third-Party Materials. Third-Party Materials and links thereto are provided solely as a convenience to you, and you access and use them entirely at your own risk and subject to such third parties' terms and conditions.

11.  Term and Termination.

(a) The term of Agreement commences when you acknowledge your acceptance below and will continue in effect until terminated by you or Company as set forth in this Section 11.

(b) You may terminate this Agreement by deleting the Application and all copies thereof from your Mobile Device.

(c) Company may terminate this Agreement at any time without notice. In addition, this Agreement will terminate immediately and automatically without any notice if you violate any of the terms and conditions of this Agreement.

(d) Upon termination:

(i) all rights granted to you under this Agreement will also terminate; and

(ii) you must cease all use of the Application and delete all copies of the Application from your Mobile Device and account.

(e) Termination will not limit any of Company's rights or remedies at law or in equity.

12.  Disclaimer of Warranties.  THE APPLICATION IS PROVIDED TO YOU "AS IS" AND WITH ALL FAULTS AND DEFECTS WITHOUT WARRANTY OF ANY KIND. TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, COMPANY, ON ITS OWN BEHALF AND ON BEHALF OF ITS AFFILIATES AND ITS AND THEIR RESPECTIVE LICENSORS AND SERVICE PROVIDERS, EXPRESSLY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, WITH RESPECT TO THE APPLICATION, INCLUDING ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT, AND WARRANTIES THAT MAY ARISE OUT OF COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE, OR TRADE PRACTICE. WITHOUT LIMITATION TO THE FOREGOING, COMPANY PROVIDES NO WARRANTY OR UNDERTAKING, AND MAKES NO REPRESENTATION OF ANY KIND THAT THE APPLICATION WILL MEET YOUR REQUIREMENTS, ACHIEVE ANY INTENDED RESULTS, BE COMPATIBLE, OR WORK WITH ANY OTHER SOFTWARE, APPLICATIONS, SYSTEMS, OR SERVICES, OPERATE WITHOUT INTERRUPTION, MEET ANY PERFORMANCE OR RELIABILITY STANDARDS, OR BE ERROR-FREE, OR THAT ANY ERRORS OR DEFECTS CAN OR WILL BE CORRECTED. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF OR LIMITATIONS ON IMPLIED WARRANTIES OR THE LIMITATIONS ON THE APPLICABLE STATUTORY RIGHTS OF A CONSUMER, SO SOME OR ALL OF THE ABOVE EXCLUSIONS AND LIMITATIONS MAY NOT APPLY TO YOU.

13.  Limitation of Liability.  TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL COMPANY OR ITS AFFILIATES, OR ANY OF ITS OR THEIR RESPECTIVE LICENSORS OR SERVICE PROVIDERS, HAVE ANY LIABILITY ARISING FROM OR RELATED TO YOUR USE OF OR INABILITY TO USE THE APPLICATION OR THE CONTENT AND SERVICES FOR:

(a) PERSONAL INJURY, PROPERTY DAMAGE, LOST PROFITS, COST OF SUBSTITUTE GOODS OR SERVICES, LOSS OF DATA, LOSS OF GOODWILL, BUSINESS INTERRUPTION, COMPUTER FAILURE OR MALFUNCTION, OR ANY OTHER CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, OR PUNITIVE DAMAGES.

(b) DIRECT DAMAGES IN AN AGGREGATE AMOUNT THAT EXCEED FIVE HUNDRED AND NO/100 DOLLARS ($500).

THE FOREGOING LIMITATIONS WILL APPLY WHETHER SUCH DAMAGES ARISE OUT OF BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE AND REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE OR COMPANY WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. SOME JURISDICTIONS DO NOT ALLOW CERTAIN LIMITATIONS OF LIABILITY SO SOME OR ALL OF THE ABOVE LIMITATIONS OF LIABILITY MAY NOT APPLY TO YOU.

14.  Indemnification.  You agree to indemnify, defend, and hold harmless Company and its officers, directors, employees, agents, affiliates, successors, and assigns from and against any and all losses, damages, liabilities, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs, or expenses of whatever kind, including attorneys' fees, arising from or relating to your use or misuse of the Application or your breach of this Agreement, including but not limited to the content you submit or make available through this Application.

15.  Export Regulation.  The Application may be subject to US export control laws, including the Export Control Reform Act and its associated regulations. You shall not, directly or indirectly, export, re-export, or release the Application to, or make the Application accessible from, any jurisdiction or country to which export, re-export, or release is prohibited by law, rule, or regulation. You shall comply with all applicable federal laws, regulations, and rules, and complete all required undertakings (including obtaining any necessary export license or other governmental approval), prior to exporting, re-exporting, releasing, or otherwise making the Application available outside the US.

16.  US Government Rights.  The Application is commercial computer software, as such term is defined in 48 C.F.R. §2.101. Accordingly, if you are an agency of the US Government or any contractor therefor, you receive only those rights with respect to the Application as are granted to all other end users under license, in accordance with (a) 48 C.F.R. §227.7201 through 48 C.F.R. §227.7204, with respect to the Department of Defense and their contractors, or (b) 48 C.F.R. §12.212, with respect to all other US Government licensees and their contractors.

17.  Severability.  If any provision of this Agreement is illegal or unenforceable under applicable law, the remainder of the provision will be amended to achieve as closely as possible the effect of the original term and all other provisions of this Agreement will continue in full force and effect.

18.  Governing Law.  This Agreement is governed by and construed in accordance with the internal laws of the State of Washington without giving effect to any choice or conflict of law provision or rule. Any legal suit, action, or proceeding arising out of or related to this Agreement or the Application shall be instituted exclusively in courts of the State of Washington located in King County, Washington. You waive any and all objections to the exercise of jurisdiction over you by such courts and to venue in such courts.

19.  Waiver of Jury Trial.  You and company irrevocably and unconditionally waive, to the fullest extent permitted by applicable law, any right you or company may have to a trial by jury in any legal action, proceeding, cause of action, or counterclaim arising out of or relating to (a) this Agreement, (b) the Company website or the Application (or the use of any of the foregoing by you or any other Person), (c) the performance or non-performance by you or company of Any obligations under this Agreement, or (d) actual or alleged infringement by you, Company, or the Application of any intellectual property rights. You certify and acknowledge that:

(1) Company has not represented, expressly or otherwise, that Company would not seek to enforce the foregoing waiver in the event of a legal action;

(2) you have carefully considered the implications of this waiver;

(3) you are making this waiver knowingly and voluntarily; and

(4) you have been Induced to enter into this Agreement by, among other things, the mutual waivers in this section.

20.  Limitation of Time to File Claims.  ANY CAUSE OF ACTION OR CLAIM YOU MAY HAVE ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE APPLICATION MUST BE COMMENCED WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION ACCRUES OTHERWISE SUCH CAUSE OF ACTION OR CLAIM IS PERMANENTLY BARRED.

21.  Feedback.  We encourage you to send us messages, feedback, or data, including, for example, ideas, comments, suggestions, or questions about the Application or any other product or service (collectively, “Feedback”). You agree not to send us any information or ideas that are sensitive or confidential, and you acknowledge that any Feedback we receive from you will not be considered confidential. You grant us a worldwide, royalty-free, exclusive, transferable, sublicensable, perpetual, and irrevocable license to record, use, practice, copy, modify, adapt, create derivative works of, store, host, publish, publicly perform, publicly display, distribute, communicate, and transmit your Feedback in any and all media or distribution methods (now known or later developed), to exercise all intellectual property rights in and to your Feedback. Without limitation and notwithstanding anything to the contrary herein, we will have exclusive ownership of all present and future rights to the Feedback. We will be entitled to use the Feedback for any commercial or other purpose whatsoever (including, for example, developing, improving, producing, providing, or marketing products and services) without compensation to you or any other person sending the Feedback, and we will not be under any obligation to tell you if and how we use the Feedback.

22.  Entire Agreement.  This Agreement, the Application and Services Terms of Use, and our Privacy Policy constitute the entire agreement between you and Company with respect to the Application and supersede all prior or contemporaneous understandings and agreements, whether written or oral, with respect to the Application.

23.  Waiver  No failure to exercise, and no delay in exercising, on the part of either party, any right or any power hereunder shall operate as a waiver thereof, nor shall any single or partial exercise of any right or power hereunder preclude further exercise of that or any other right hereunder. In the event of a conflict between this Agreement and any applicable purchase or other terms, the terms of this Agreement shall govern.

24.  Updates to Agreement.  We may modify this Agreement from time to time. When we modify the Agreement, we will give you notice by posting the amended Agreement and/or amended policy on the Website and, if the changes meaningfully affect your rights or obligations, by e-mail (if you have provided us with your e-mail address as part of your creation of an Account). If you continue to access or use the Application after the Agreement is amended, you agree to be bound by the updated Agreement. If you do not accept the updated Agreement, you acknowledge that you will promptly stop using the Application.

4856-1552-9085, v. 1

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