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Terms of Use, Master Services Agreement, and Security

TERMS OF USE AND SECURITY

Effective date: 2023-05-01

Last update: 2023-12-06

Brellium Inc.



Brellium Inc., a Delaware corporation at 33 Irving Place Floor 3, New York, NY 10003


  1. The Effective Date and Term


This Agreement is effective on signing date (“Effective Date”).


The Initial Term shall be for twelve (12) months commencing on the Effective Date. This Agreement and the term hereof shall commence on the Agreement Effective Date and shall continue thereafter for the period of months set forth in the initial Sales Order, unless and until terminated as specifically provided in this Agreement. Thereafter the Agreement shall automatically renew for successive 12 months , unless a party gives the other party notice of intent not to renew sixty days prior to the expiration of the then current term. “Term” shall mean the initial term set forth in the Sales Order plus any renewal periods


d. The Training


Brellium shall provide Customer with the following training: Remote go-live training + Technical and Customer Support: Online and by telephone and e-mail.

Financial and License Summary



Monthly Platform Usage Fees and Maintenance:


Fees described in the payment page. Term of deal is 12 months, automatically renewing. Should either party not want to renew, the other party must be notified within 2 months of renewal date, otherwise the terms will auto-renew.



This Agreement Customer is made and entered into as of the date of the last signature below by and between Brellium, Inc., a Delaware corporation with a principal place of business at 33 Irving Place, New York, New York 10003 (hereinafter, “Brellium”) and Customer, who submitted payment.




The MSA Terms and Conditions and Exhibits A-D set forth below are included herein by this reference.




IN WITNESS WHEREOF, the parties hereby indicate their acceptance of the terms of this Agreement, including the documents set forth above that are attached hereto and the documents referenced by hyperlink above, by causing their duly authorized officers or representatives to execute this document as of the Effective Date.


MASTER SERVICES AGREEMENT TERM AND CONDITIONS



1.0 LICENSE GRANT



1.1 Grant of License. Subject to the terms and conditions of this Agreement, including the monthly software as a service Subscription Fee, Brellium hereby grants to Customer a limited, non-exclusive, non-transferable, non-assignable right and license, without the right to sublicense, to use the Platform (as defined below and in a Sales Order) as a service and Upgrades for the number of Providers and Authorized Users set forth in one or more Sales Orders (each a “Subscription”) during the Term unless earlier terminated in accordance with Section 5.2 hereof. Except as expressly provided herein, any attempts to sublicense, sell, pledge, assign, or transfer any of the rights or this license in violation of the permitted uses shall be void from the beginning.



BY USING BRELLIUM’S PLATFORM, CUSTOMER REPRESENTS THAT



  1. BY USING BRELLIUM, CUSTOMER HAS READ, UNDERSTANDS, AND AGREES TO BE BOUND BY THIS AGREEMENT, (2) CUSTOMER IS OF LEGAL AGE TO FORM A BINDING CONTRACT WITH BRELLIUM, AND (3) CUSTOMER HAS THE AUTHORITY TO ENTER INTO THESE TERMS OF USE. THE TERM “CUSTOMER” HEREIN REFERS CUSTOMER AND TO THE HEALTHCARE PROVIDER WHO IS PROVIDING TOOLS TO A PATIENT, PRESCRIBING OR ORDERING THE USE OF THE TOOLS BY A PATIENT, OR USING THE TOOLS IN ANY WAY. IF CUSTOMER DOES NOT AGREE TO BE BOUND BY THE AGREEMENT, CUSTOMER MAY NOT ACCESS OR USE THE PLATFORM, TOOLS, SERVICES, OR PATIENT DATA (AS DEFINED IN EXHIBIT D).



1.2 Permitted Uses. Customer shall have the right to use Brellium’s platform solely in connection with the internal business operations of Customer. The Usage Fee for Brellium is specified in each applicable Sales Order.



1.3 Restrictions on Use of Platform. Other than as expressly permitted under this Agreement, Customer shall not and shall not authorize, assist, or permit others to (i) use, copy, modify, sell, perform, or distribute the Platform (electronically or otherwise) or any copy, adaptation, transcription, translation, or merged portion thereof; (ii) translate, reverse compile, reverse assemble, or reverse engineer the Platform, in whole or part, or any derivative works thereof; (iii) disclose or copy the Platform or any derivative works thereof; (iv) transfer, lease, assign, or sublicense the Platform without the prior written consent of Brellium; or (v) use the Platform in connection with any service bureau work, multiple-user license, or time-sharing arrangement. The foregoing in this section 1.3(iii) notwithstanding, Brellium acknowledges that Customer has developed its own quality assurance process and that Customer must have the ability to revert to such technology and make improvements thereto. Such improvements shall not violate section 1.3(iii) herein so long as such improvements are for Customer’s own use and not provided to any third party.


2.2 Fees for Services. Customer shall pay the fees for implementation and training of the Platform (the “Implementation

and Training Services”) and fees for other consulting or design services performed by Brellium for Customer (“Professional Services”) as set forth in the Sales Order or any subsequent Sales Order.



2.3 Expenses. Subject to the conditions set forth in this Section 2.3, Customer shall reimburse the following travel and travel-related expenses, if any, incurred by employees or subcontractors of Brellium during the implementation, and training of the Platform: (a) all travel expenses to and from their home to the worksite of Customer; (b) meal expenses while traveling to the worksite of Customer; (c) lodging expenses while working at the worksite of Customer; and (d) miscellaneous travel related expenses incurred as a result of traveling to the worksite of Customer (e.g., parking and tolls). In order for any such travel and travel-related expenses to be reimbursed by Customer, the following conditions must be met by Brellium: (a) all such travel and travel-related expenses ƒmust be pre-approved by Customer in writing; (b) Customer must be provided with written receipts for any such travel and travel-related expenses, which must itemize such expenses and confirm the dates on which such expenses were incurred; and (c) all travel-related expenses must be for non -local Brellium employees or subcontractors (i.e., residing more than sixty (60) miles from Customer’s address) traveling to Customer’s worksite.



2.4 Invoices . Brellium will invoice Customer consistent with the payment milestones described in the Sales Order. All invoices are due and payable as set forth in the Sales Order. Any Fee due with a payment milestone not explicitly set forth in the Sales Order, shall be due thirty (30) days after receipt of the invoice. Any invoice not paid when due will be deemed late and will accrue late charges as of the date due. Late charges will be at a rate of 1.5% per month, or the maximum rate allowed under law, whichever is lower from the date such payment was due until the date paid. Customer agrees that it will notify Brellium in writing of any dispute with any invoice within fifteen (15) days of the invoice date. Brellium agrees to promptly review the dispute and respond with either a correction of the invoice or an explanation of the basis of finding the invoiced charge is correct.



2.5 Taxes. The amounts payable to Brellium as specified herein are exclusive of any and all applicable taxes, duties, or levies assessed by applicable governmental authorities. All such applicable taxes, duties, and levies (exclusive of any taxes based upon Brellium's income) shall be assumed by and paid for by Customer.



3.0 SERVICES



3.1 Training and Implementation Services. Brellium shall perform and provide to Customer the Implementation and Training Services as described in the Sales Order. Fees for Implementation and Training Services shall be billed by Brellium, and paid by Customer, in accordance with the Sales Order.



1.4 Verification. Brellium may audit Customer’s use of the Platform to verify compliance with the terms of this Agreement. Brellium shall bear all costs and expenses related to any such audits.



1.5 Copyright Notices. Customer agrees not to remove or destroy any copyright notices, proprietary markings, or confidential legends placed upon or contained within the Platform.



1.6 No Implied License. Except for the express software as a service Subscription license granted herein, no licenses are granted by implication, estoppels, or otherwise.


1.7 Support. Brellium is committed to maintaining high service standards and agrees to adhere to the following response and resolution time service levels: Response to Customer inquiries and service requests, including support needs, will be provided within 24 hours. For critical issues that significantly impact Customer business operations, an initial response will be issued within 4 hours during business hours (9:00 AM to 5:00 PM EST, Monday to Friday, excluding public holidays). Resolution times may vary based on the complexity of the issue, with ongoing communication provided regarding progress. Customers can escalate unresolved issues via email to support@brellium.com, following which the matter will be promptly addressed by our escalation management team. This service level is subject to periodic review and mutual adjustments to reflect evolving service needs. It is noted that this service level does not cover issues arising from factors beyond Brellium's control, such as natural disasters or Customer's own system failures.



2.0 FEES AND OTHER EXPENSES



2.1 Usage Fees. Customer shall pay the Usage Fee for the Platform as described in and pursuant to the payment terms set forth in an applicable Sales Order.




3.2 Professional Services. Brellium shall perform and provide to Customer the Professional Services as described in the Sales Order. Fees for Professional Services shall be billed by Brellium, and paid by Customer, in accordance with the Sales Order.



3.3 Support. Brellium shall provide Support Services for the Platform in accordance with Exhibit A hereto so long as the Usage Fees due and payable under this Agreement have been paid.



3.4 Quality Assurance and Tools and Services. Should Customer purchase Quality Assurance Tools and Services pursuant to a Sales Order, Brellium shall provide such Tools and Services pursuant to the terms and conditions in such Sales Order and the Quality Assurance Tools and Services Terms of Use attached hereto as Exhibit D.




4.0 USE AND DISCLOSURE OF CONFIDENTIAL INFORMATION



4.1 Use and Disclosure of Confidential Information. Each party may use the other party’s Confidential Information only to the extent reasonably necessary to perform such party’s obligations hereunder and/or to receive the full benefit of the rights granted to such party hereunder, and neither party shall disclose the other party’s Confidential Information, other than (i) to such party’s permanent employees and persons under such party’s control, including, but not limited to, third party independent contractors who need to know the other party’s Confidential Information to perform their duties to the other party; or (ii) as required by applicable law or court order.



4.2 Standard of Care. Each party shall hold the other party’s Confidential Information in strict confidence and use the same degree of care to prevent disclosure or unauthorized use of any of the other party’s Confidential Information as it would provide to protect its own valuable proprietary information, but in no event less than a reasonable degree of care.



4.3 Copies. Neither party shall make any copies of any of the other party’s Confidential Information, except as reasonably necessary to perform such party’s obligations hereunder and/or to receive the full benefit of the rights granted to such party hereunder.



4.4 Disclosure by Law. If a party is required by applicable law or by interrogatories, requests for information or documents, subpoena, or similar process to disclose any of the other party’s Confidential Information, unless the party is prohibited from doing so or there is a clear indication of illegal conduct or risk of harm, such party shall provide the other party with prompt written notice of such request or requirement so that the other party may seek an appropriate protective order and/or waive such party’s compliance with the provisions of this Agreement. If, in the absence of a protective order or the receipt of a waiver hereunder, a party nonetheless is compelled to disclose any of the other party’s Confidential Information or else stand liable for contempt or suffer other liability, such party may disclose only that portion of the other party’s Confidential Information which such party deems necessary to fulfill the applicable legal requirements.


5.0 TERM AND TERMINATION



5.1 Term. This Agreement and the term hereof shall commence on the Agreement Effective Date and shall continue thereafter for the period of months set forth in the initial Sales Order, unless and until terminated as specifically provided in this Agreement. Thereafter the Agreement shall automatically renew for successive periods equal to the initial term, unless a party gives the other party notice of intent not to renew sixty days prior to the expiration of the then current term. “Term” shall mean the initial term set forth in the Sales Order plus any renewal periods. Should Customer order subsequent Subscriptions pursuant to subsequent additional Sales Orders, the Term shall be extended by the number of months set forth in such subsequent Sales Order beginning on the Sales Order Effective Date of such Sales Order and thereafter shall renew as set forth above. Each Subscription shall renew independently, and the Term of this Agreement shall not expire or terminate as set forth herein until all Subscriptions have terminated.



5.2 Termination. In the event of a Default, the non-defaulting party may terminate this Agreement by providing written notice of termination to the defaulting party in accordance with Section 10.3 hereof. Such termination shall be effective immediately upon the receipt of such termination notice to the defaulting party.



5.3 Rights upon termination. All Platform licenses granted hereunder, and other services provided hereunder shall terminate upon termination of this Agreement. Termination of this Agreement shall not limit either party from pursuing other remedies available to it (except where a sole remedy is specified), including  injunctive  relief, nor shall such termination relieve Customer's obligation to pay all fees, expenses, and costs that have accrued or are otherwise owed by Customer to Brellium.



5.4 Survival . The provisions of Sections 1.3, 1.5, 4.1-4.5, 5.2-5.5, 6.0, 7.3, 8.2, -8.4 , 9.1-9.2, and 10.1-10.17 hereof shall survive the termination of this Agreement.



5.5 PHI and Confidential Information. Brellium shall provide, at Customer’s expense, commercially- reasonable assistance to Customer to permit Customer to retrieve Customer’s PHI and Customer’s Confidential Information from the Platform, and to do so within 30 days of its receipt of a written request for such Confidential Information and PHI provided that Customer has, at that time, paid all fees and charges due and outstanding at and resulting from termination. Customer shall destroy all copies of the Platform in its possession and shall certify to Brellium that it has destroyed all copies of the Platform within 30 days of termination of this Agreement.



6.0 INTELLECTUAL PROPERTY



All trademarks, service marks, patents, copyrights, trade secrets, know-how, and other proprietary rights in or related to the Platform, each Subscription, Documentation, Upgrades, customizations, and the provision of computer programming services provided pursuant to this Agreement, in any format, (the “Intellectual Property”) are and will remain the sole and exclusive property of Brellium, whether or not specifically recognized or perfected under applicable law. Brellium shall own all rights, title and interest, including all patent, trademark, copyright, trade secret, all intellectual property rights, in and to any improvements to the Platform, Documentation, Upgrades, and customizations, in any format, even when such changes result from Customer’s request. To the extent, if any, that ownership in the customizations does not automatically vest in Brellium by virtue of this Agreement or otherwise, Customer hereby transfers and assigns (and, if applicable, shall cause Customer’s affiliates to transfer and assign) to Brellium all rights, title, and interest in the customizations. Customer shall not assert any ownership rights in the Platform, Documentation, Upgrades, and customizations. Customer shall not take any action that could adversely affect Brellium’s rights to the Platform, Documentation, Upgrades, and customizations.



7.0 REPRESENTATIONS AND WARRANTIES



7.1 Warranty as to No Viruses or Malicious Codes. Brellium warrants and represents to Customer that the Platform does not contain any virus, worm, time bomb, trap door, disabling device, automatic restraint, trojan horse, cookies, contaminants, commands, or other codes designed to: (a) discontinue Customer’s effective use of the Platform; (b) erase, destroy, corrupt, or modify any data of Customer, Customer’s employees, agents, and/or patients, or any Authorized User, without the express written consent of Customer; or (c) bypass any internal or external software security measure to obtain access to any hardware or software of Customer or Customer’s employees, agents, and/or patients, without the express written consent of Customer.



7.2 Other Representations and Warranties. Brellium represents and warrants to Customer as follows:



7.2.1 That all of the services to be provided by Brellium hereunder will be performed in a professional manner by qualified personnel or qualified contractors; and



7.2.2 In providing the Platform and Upgrades and in performing services hereunder, Brellium and its employees, agents, and contractors shall comply with all applicable Federal, state, and local laws and regulations, including, without limitation, HIPAA (as defined below) and the rules and regulations promulgated thereunder, and all applicable United States import and export laws, statutes, and regulations, including, but not limited to, the Export Administration Regulations and International Traffic in Arms Regulations.



7.3 WARRANTY DISCLAIMER. THE PLATFORM IS PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS. BRELLIUM DOES NOT WARRANT THAT THE PLATFORM WILL BE UNINTERRUPTED OR ERROR-FREE OR THAT THE PLATFORM OR ANY SERVICES WILL MEET CUSTOMER'S REQUIREMENTS. EXCEPT AS OTHERWISE EXPRESSLY PROVIDED IN THIS AGREEMENT, BRELLIUM SPECIFICALLY DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, WITH RESPECT TO



THE PLATFORM, THE DOCUMENTATION, THE PERFORMANCE OF THE PLATFORM, THE RESULTS OBTAINED THEREFROM, AND/OR ANY MATERIALS OR SERVICES FURNISHED TO CUSTOMER UNDER THIS AGREEMENT, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OR MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT. THERE IS NO WARRANTY AGAINST INTERFERENCE WITH THE ENJOYMENT OF THE PLATFORM, DOCUMENTATION, OR SERVICES PROVIDED HEREUNDER.



CUSTOMER AGREES THAT BRELLIUM WILL NOT, UNDER ANY CIRCUMSTANCES, BE RESPONSIBLE OR LIABLE, DIRECTLY OR INDIRECTLY, FOR ANY DEVICES, GOODS, SERVICES, INFORMATION, RESOURCES AND/OR CONTENT AVAILABLE ON OR THROUGH ANY THIRD-PARTY SITES OR THIRD PARTY MANUFACTURERS, OR FOR ANY DAMAGES OR LOSSES CAUSED OR ALLEGED TO BE CAUSED BY OR IN CONNECTION WITH YOUR USE OR RELIANCE ON THE DEVICES, CONTENT, OR BUSINESS PRACTICES OF ANY THIRD-PARTY.



8.0 LIABILITY AND INDEMNIFICATION



8.1 Intellectual Property Infringement. Brellium agrees to and shall defend, indemnify, and hold harmless Customer and all of its directors, officers, employees, servants, agents, successors, and assigns from and against any claim, suit, demand, action, loss, cause of action, damages, cost, judgment, penalty, fine, liability and expense (including, without limitation, reasonable and actual attorneys’ fees and expenses) arising out of, resulting from, or alleging any claim that the Platform, Upgrades, customizations or any component thereof, infringes any patent or copyright, trade secret, trademark, trade dress, or any other intangible property or proprietary right of any third party. Customer shall give Brellium prompt written notice of such claims relating thereto. Brellium shall have sole control of the defense of such action and all related settlement negotiations, and Customer shall provide Brellium with all reasonably necessary assistance, information, and authority to perform the foregoing at Brellium’s sole expense.



If a temporary or final injunction is obtained against Customer’s use of the Platform or Upgrades, or any component thereof, by reason of infringement of any patent or copyright, trade secret, trademark, trade dress, or any other intangible property or proprietary right, Brellium, at its option and expense, shall either: (a) procure for Customer the right to continue to use of the Platform and Upgrades, and the component parts thereof; or (b) replace or modify for Customer the Platform and Upgrades, and the component parts thereof, so that it no longer infringes or they no longer infringe such patent or copyright, trade secret, trademark, trade dress, or any other intangible property or proprietary right, so long as the functions, performance, or other aspects of the Platform and Upgrades, and the component parts thereof, are not materially impaired and continue to conform to the applicable specifications and the performance requirements under this Agreement. If neither of the foregoing alternatives is commercially practicable, Brellium shall have the right to require Customer cease using the Platform, and Brellium shall cease charging Customer all applicable Usage Fees, and the license granted for such Platform shall terminate with no continuing obligation or liability of Brellium to Customer.



8.2 Indemnification by Customer. Customer agrees to and shall defend, indemnify, and hold harmless Brellium and all of its directors, officers, employees, servants, agents, successors, and assigns from and against any claim, suit, demand, action, loss, cause of action, damages, cost, judgment, penalty, fine, liability and expense (including, without limitation, reasonable attorneys’ fees and expenses) arising out of or resulting from: (i) Customer’s breach of any of the provisions under this Agreement; or (ii) Customer’s violation of any law, statute, ordinance, order, rule or regulation. Brellium shall provide Customer with (a) prompt written

notice of any such claim of which Brellium becomes aware; (b) all reasonable assistance and documentation in Brellium’s possession requested by Customer to defend such claim; and (c) control over the defense and settlement of such claim, provided that Customer shall not agree to any settlement or other disposition that imposes any obligation on Brellium.




8.4 LIMITATION OF LIABILITY. EXCEPT IN THE CASE OF GROSS NEGLIGENCE OR CRIMINAL ACTIVITY, BRELLIUM’S LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT IS LIMITED TO THE SUM OF THE FEES PAID BY CUSTOMER DURING THE ONE-YEAR PERIOD IMMEDIATELY PRECEDING THE DATE THE ALLEGED LIABILITY AROSE. IN NO EVENT WILL BRELLIUM HAVE ANY LIABILITY TO CUSTOMER FOR ANY CONSEQUENTIAL OR INCIDENTAL DAMAGES TO CUSTOMER, INCLUDING BUT NOT LIMITED TO LOST PROFITS, LOSS OF BUSINESS, INTERNAL COSTS OF INVESTIGATION AND/OR REMEDIATION, LOSS OF USE OR OF DATA, ANY UNAUTHORIZED ACCESS TO, ALTERATION, THEFT OR DESTRUCTION OF CUSTOMER’S COMPUTERS, COMPUTER SYSTEMS, DATA FILES, PROGRAMS OR INFORMATION, OR FOR ANY INDIRECT, SPECIAL OR CONSEQUENTIAL DAMAGES HOWEVER CAUSED AND UNDER ANY THEORY OF LIABILITY AND WHETHER OR NOT BRELLIUM HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE. THE PARTIES AGREE THAT THE TERMS IN THIS LIMITATION OF LIABILITY SECTION REPRESENT A REASONABLE ALLOCATION OF RISK BETWEEN THE PARTIES.


8.5 PAYER CLAWBACKS. In the event of any payer clawbacks arising from the services provided under this Agreement, the Customer shall first undertake all reasonable and necessary efforts to contest such clawbacks using all available means, with Brellium providing reasonable support as necessary. Following these efforts, Brellium commits to a diligent review process to ascertain the root cause of such clawbacks. If determined by Brellium, in our sole discretion, that the clawback resulted directly from an error or oversight in our services, Brellium agrees to bear the financial responsibility for such clawbacks, limited to an amount not exceeding the total contract value. This liability does not extend to clawbacks resulting from client-provided erroneous or incomplete requirements, specifications, or directions; changes in payer policies or regulations post-service provision; or errors in client or third-party provided patient data. This clause represents the sole remedy for errors attributable to Brellium's services and is in lieu of any other legal or equitable remedies. The Client is required to promptly notify Brellium of any potential or actual payer clawback claims, providing detailed documentation of the efforts made to contest the clawback and reasonable assistance in investigating and addressing such claims.



9.0 DATA



9.1 (a) Data Protection. Customer grants to Brellium an irrevocable, nonexclusive, perpetual, world-wide, royalty-free right and license to use all Data for any purpose permitted by law, including, without limitation (i) analysis and incorporation of the Data in databases, reports, comparative data sets, scores or scoring systems generated therefrom; and (ii) creation and distribution of works and derivative works based on the Data. Any Data that contains an element that by itself, or in combination with any other data elements allows re-identification of a person, is considered PHI under this Agreement. Brellium will perform the extraction of Data that is collected, stored or generated through the use of the Platform without charge and without impairing any operation or function of the System. Customer acknowledges that Brellium is reliant on Customer to give written approval and give direction as to the extent to which Brellium is entitled to access PHI. Consequently, Brellium will not be liable for any claim brought by a Patient arising from any action or omission by Brellium, to the extent that such action or omission resulted directly from Customer’s instructions. In accordance with applicable law, Customer shall be solely responsible for obtaining any and all consents and authorizations necessary to use, disclose and process PHI from Patients and any other persons whose PHI is to be provided under this Agreement.



  1. EHR Access. During the Term, Customer shall ensure that Brellium has access to Customer’s EHR/PM system so that Brellium can perform set-up, trouble shooting, reporting, and other administrative tasks. The Customer is responsible for paying any fees levied by the EHR/PM system, including but not limited to, per-session note fees and implementation/integration fees.



10.0  GENERAL



10.1 No Partnership Between the Parties. This Agreement is entered into by Brellium and Customer with the mutual understanding that they are unrelated parties. Nothing in this Agreement is intended by the parties nor shall be construed by Brellium, Customer, or any other party to create a partnership, joint venture, or agency relationship between them. Rather, in performing the services to be rendered hereunder, Brellium is an independent contractor of Customer and performs similar services for other parties. Each party shall be solely responsible for payment of all compensation owed to its employees, as well as employment related taxes.



10.2 Governing Law and Venue; Arbitration . This Agreement shall be deemed to have been entered into and to be performed in the State of Delaware, and shall be governed, construed, and enforced in accordance with the laws of the State of Delaware. Excepting non-payment of undisputed invoiced amounts due to Brellium, in the event of a dispute between the parties, they agree to negotiate in good faith for a period of thirty (30) days in order to resolve the dispute. In the event that any dispute, claim, question or disagreement arising from or related to this Agreement or a breach of this Agreement cannot be settled by the parties’ good faith negotiations, either party may, by written notice to the other, demand arbitration of the matter. The arbitration will be conducted in accordance with the Commercial Arbitration Rules (“Rules”) of the American Arbitration Association (“ AAA”), except to the extent that the AAA Rules conflict with or are modified by the provisions of this Section, in which event the provisions of this Section will control. The parties will attempt to select a single arbitrator by mutual agreement. If they are unable to do so, the parties may request the AAA to select a single arbitrator that is a retired judge. The decision of the arbitrator will be binding and conclusive. Judgment upon any award rendered by the arbitrator may be entered in any court in Delaware having jurisdiction. Any such arbitration will be held in a reasonably convenient location acceptable to both parties in Delaware. The arbitrator may apportion some of a party’s legal fees to the other party based on the extent to which the party prevailed and the extent to which each party complied with the arbitrator’s guidelines for conduct of the arbitration. THE PARTIES HERETO HEREBY IRREVOCABLY WAIVE ANY AND ALL RIGHT TO TRIAL BY JURY IN RESPECT TO ANY ACTION, SUIT, PROCEEDING, CLAIM OR COUNTERCLAIM BROUGHT BY OR UNDER THIS AGREEMENT OR ITS INTERPRETATION. Provided, however, Brellium reserves all rights to pursue injunctive relief in a court of law outside the arbitration process set forth above in the event of a claim relating to use of the Platform that is in violation of the US Copyright Act or for use by Customer, its representatives or assigns of the Platform outside the scope permitted under Section 1 hereof.



10.3 Notice. Any and all notices, designations, consents, offers, acceptances, or other communications required herein shall be given to either party, in writing, by receipted personal delivery or deposited in certified mail addressed to the addressee as set forth on the signature page hereto for each respective party (unless notice of a change of address is furnished by a party to the other party hereto) and to the attention of the CEO and with return receipt requested, effective upon receipt.



10.4 Waivers. No failure or delay on the part of a party to this Agreement in exercising any right, power, or privilege hereunder shall operate as a waiver, thereof, nor shall a single or partial exercise of any right, power, or privilege preclude any other further exercise of any other right, power, or privilege. In no event shall the making by Customer of any payment to Brellium constitute or be construed as a waiver by Customer of any breach of this Agreement, or any default which may then exist, on the part of Brellium, and the making of any such payment by Customer while any such breach or default shall exist, shall in no way impair or prejudice any right or remedy available to Customer in respect to such breach or default.

10.5 Disregarding Titles . The titles of the sections in this Agreement are inserted for the convenience of reference only and shall be disregarded when construing or interpreting any of the provisions of this Agreement.



10.6 Counterparts; Electronic Signature. This Agreement may be executed in any number of counterparts and by either party hereto on separate counterparts, each of which, when so executed and delivered, shall be an original, but all such counterparts shall together constitute one and the same instrument. One or more counterparts of this Agreement may be delivered by facsimile or electronically, with the intention that delivery by such means shall have the same effect as delivery of an original counterpart thereof. The parties intend that delivery of a counter-part of this Agreement electronically shall constitute a binding original of the Agreement.



10.7 Amendment. Modifications, amendments, or waivers of any provision of this Agreement may be made only by the written mutual consent of both of the parties hereto.



10.8 Assignment. Any license granted hereunder by Brellium is solely to Customer and none of the rights granted hereunder may be assigned, sold, sublicensed, or otherwise transferred by Customer or by operation of law without the prior written consent of Brellium, which may not be unreasonably withheld. Brellium may assign its rights and delegate its duties hereunder at any time without the consent of Customer.



10.9 Successors and Assigns. This Agreement shall be binding upon and inure to the benefit of each of the successors and permitted assigns of the parties hereto.



10.10 Export/Import Administration. Customer represents and warrants that if Customer assigns or transfers the Platform pursuant to the terms of this Agreement to any foreign national, or person or entity outside of, or for use outside of, the United States of America, Customer agrees hereby to comply fully with all applicable export / import laws and regulations of the United States of America or other countries.



10.11 Completeness of the Agreement. This Agreement, the attached Exhibits and Sales Orders, and the additional and supplementary documents incorporated herein by specific reference contain all the terms and conditions agreed upon by Brellium and Customer and no other agreements, oral or otherwise, regarding the subject matter of this Agreement or any part thereof shall have any validity or bind either Brellium or Customer.



10.12 Severability . If any provision of this Agreement is declared by any court having competent jurisdiction to be invalid, such provision shall be deemed deleted and shall not affect the validity of the remainder of this Agreement, which shall continue in full force and effect. If the removal of such provision would result in the illegality and/or unenforceability of this Agreement, this Agreement shall terminate as of the date in which the provision was declared invalid.



10.13 No Third-Party Beneficiaries. There are no intended third-party beneficiaries of this Agreement and the undersigned are the only parties to this Agreement.



10.14 Order of Precedence. The Agreement shall be comprised solely of the following documents. In the event of an inconsistency or conflict in terms, precedence shall be given in the order indicated:



  1. These Terms and Conditions;



  1. Exhibits;

  2. Sales Order(s); and



  1. Any Amendments to the Agreement in reverse chronological order.



10.15 Non-Solicitation. Customer and its Providers and Authorized Users shall not directly or indirectly solicit for or offer employment or otherwise induce employment of any employee or contractor of Brellium that Customer or an Affiliate became aware of as a result of the performance of this Agreement, or communicate in any manner with such employees about offering employment opportunities with any third party, during the Term and for a period of two (2) years after the expiration or earlier termination of this Agreement. Notwithstanding the foregoing, Customer and Affiliates are not prohibited from engaging in any general advertising and hiring any employee of Brellium who responds to such general solicitations, so long as the solicitation is indirect and general in nature and does not specifically and solely target any of Brellium’s employees.



10.16 Force Majeure. Brellium shall have no liability to Customer under this Agreement if it is prevented from or delayed in performing its obligations under this Agreement, or from carrying on its business, by acts, events, omissions or accidents beyond its reasonable control, including, without limitation, strikes, lock- outs or other industrial disputes (whether involving the workforce of Brellium or any other party), failure of a utility service or transport or telecommunications network, act of God, war, riot, civil commotion, malicious damage, compliance with any law or governmental order, rule, regulation or direction, accident, breakdown of plant or machinery, fire, flood, storm or default of suppliers or sub-contractors, provided that Customer is notified of such an event and its expected duration.



11.0  CERTIFICATION OF AUTHORITY TO SIGN THE AGREEMENT



The persons signing this Agreement on behalf of the parties hereto certify by said signatures that they are duly authorized to sign this Agreement on behalf of said parties and that this Agreement has been authorized by said parties.



12.0  DEFINITIONS



The following definitions shall apply to this Agreement, including all schedules, exhibits, and Sales Orders:



12.1 Authorized Patient. “Authorized Patient” means a Patient/Consumer who registers to use the Platform, accepts the Patient Terms of Use, has a direct, patient relationship with Customer, and has created a username and password with or received such from Customer to access the Platform.



12.2 Authorized Users. “Authorized Users” means the number of Customer’s Authorized Users that may access the Platform pursuant to a Subscription, as specified in the Sales Order.



12.3 Business Associate Agreement. “Business Associate Agreement” means the agreement located at https://brellium.com/baa containing provisions required by HIPAA to protect confidentiality of the Protected Health Information of Customer’s patients. By default, all covered entities that use Brellium in trial or in production are automatically covered under the Business Associate Agreement.



12.4 Confidential Information. “Confidential Information” means any information relating to, or disclosed in the course of, this Agreement, which is designated as ‘confidential’ or ‘proprietary’ or some similar designation or information which is or should be reasonably understood to be confidential or proprietary to the disclosing party. Confidential Information includes but is not limited to the Platform, Brellium software, the Documentation, the terms and pricing under this Agreement, trade secrets, business strategies, specifications, technical data, and all Sales Orders and Statements of Work. Confidential Information shall not include information (a) already known to either party at the time of receipt thereof from the other; (b) that was readily available to the general public at the time of receipt thereof from the other; (c) that subsequently becomes known to the general public through no fault or omission on the part of the party receiving such information;



  1. that is subsequently disclosed by a third party which has a bona fide and legal right to make such disclosure; or (e) that is required to be disclosed by a court of competent jurisdiction or other governmental authority or pursuant to applicable law, provided that the receiving party shall give prompt notice to the disclosing party prior to any such disclosure and reasonably assist the disclosing party in seeking a protective order.

12.5 Data.  “Data” means all (a) data that is collected, stored, or generated through the use of the Platform, and (b) Brellium requested data that is not collected, stored, nor generated through the use of any Platform functionality, in each case requested by Brellium and subsequently transmitted to or retrieved by Brellium for storage, provided that Data does not include data that is Protected Health Information or Customer’s Confidential Information.



12.6 Default. “Default” means (A) a party’s material breach of any of its obligations hereunder which is not cured within thirty (30) days after receiving written notice of such default from the other party pursuant to Section 10.3 herein; (B) Customer’s failure to pay any undisputed fee within twenty (20) days of the due date; (C) the dissolution of a party; (D) a party has a receiver, trustee, custodian, or similar agent appointed to or take possession of any of its property or business; (E) a party ceases to operate business in the ordinary course for more than ten (10) consecutive days; (F) a party files or has filed against it a petition (or other document) under any bankruptcy law or similar law that has not been dismissed within ninety (90) calendar days after the filing of such petition (or document); (G) a party undergoes any dissolution, liquidation, composition, financial reorganization, or recapitalization with creditors and such action impairs the party’s ability to perform under this Agreement; or (H) a party makes a general assignment or trust mortgage for the benefit of its creditors



12.7 Documentation. “ Documentation” means the user manual(s) for use of the Platform, whether provided in hard copy or electronically.



12.8 Error. "Error" means a reproducible failure of the Platform to perform in accordance with the Documentation.



12.10 Implementation and Training Services. “Implementation and Training Services” have the meaning described in Section 2.2.



12.11 Patient Terms of Use. “Patient Terms of Use” means the terms and conditions each Authorized Patient shall enter into directly with Brellium through the Platform in the form prescribed by Brellium as amended from time to time.



12.12 Personally Identifiable Information. “Personally Identifiable Information” or “PII” means data which relate to an Authorized Patient who can be identified from those data, or from those data and other information which is in the possession of or is likely to come into the possession of Brellium.



12.13 Platform . “Platform” means the executable version of Brellium’s software as a service platform with the specific functional features described in the Sales Order attached hereto and any Upgrades.



12.14 Professional Services. “Professional Services” have the meaning described in Section 2.2.



12.15 Protected Health Information. “Protected Health Information” or “PHI” shall have the meaning ascribed to it in Title II, Subtitle F of the Health Insurance Portability and Accountability Act ("HIPAA").



12.16 Providers. “Providers” means the number of Customer’s Physicians or Mid-Level Providers that may access the Platform pursuant to a Subscription, as specified in the Sales Order.



12.17 Sales Order. “Sales Order” means an order form provided by Brellium to Customer pursuant to which Customer orders Services or a Subscription.



12.18 Statement of Work. “Statement of Work” means a written document created and signed by authorized representatives of each party after execution of the Agreement which may include additional customization of the Platform pursuant to a Subscription beyond the Subscription identified in the applicable Sales Order.



12.19 Subscription(s) “Subscription” has the meaning set forth in Section 1.1 above.



12.20 Subscription Fee and Usage Fee. “Subscription Fee” and   “Usage Fee” are terms used interchangeably and mean the fees paid by Customer to license via software as a service the Platform as defined herein and in applicable Sales Order(s). Payment of Subscription  Fees  also  entitles  Customer  to  receive  Support Services for each such Subscription.



12.21 Support  Services. “Support  Services”  means  the  Support

services described in Exhibit A.



12.22 Upgrades. “Upgrades”  means,  solely with respect  to the

executable version of the Platform, any subsequent error

corrections, bug fixes, enhanced and improved versions and all

modifications and improvements of the current functionality of such Platform or prior Upgrade that work solely within the functionality of the Platform as may be created and made available from time to time by Brellium in its discretion.



13.0  MARKETING AND PROMOTIONAL USE

13.1 The Customer hereby grants Brellium (the "Vendor") the non-exclusive right to use the Customer's name, logo, and relevant project details in the Vendor's marketing and promotional materials. This includes, but is not limited to, the Vendor's website, case studies, presentations, promotional videos, and other marketing collateral.

13.2 The Vendor agrees to ensure that any information displayed or disclosed shall be accurate and in no way misleading regarding the nature of the relationship between the Customer and the Vendor or the services rendered.

13.3 The Customer may, upon written request to the Vendor, review and approve any specific use of its name, logo, or project details, which approval shall not be unreasonably withheld. If the Customer does not respond within fourteen (14) days of receiving such request, the use shall be deemed approved.

13.4 The Vendor acknowledges and agrees that all rights in and to the Customer's name and logo are the exclusive property of the Customer, and nothing in this clause shall be construed as a transfer or assignment of any rights to the Vendor, except for the limited rights expressly granted herein.

13.5 The Customer reserves the right to request the removal or modification of any marketing or promotional material that they believe is inaccurate, misleading, or otherwise objectionable. Upon such request, the Vendor shall promptly comply and make the necessary amendments.

13.6 The Customer agrees to cooperate with Brellium in the creation of a case study detailing their use and experience of Brellium's services/products. This cooperation shall commence no later than three (3) months following the initiation of this contract and continue until completion of the case study. The Customer is required to provide relevant information, feedback, and data as reasonably requested by Brellium. The format, content, and scope of the case study will be determined by Brellium, in consultation with the Customer, who agrees to provide honest and accurate information. The Customer grants Brellium the right to use the case study in its marketing and promotional materials, respecting any confidentiality and proprietary interests as outlined in this contract. Any sensitive information shared during the case study creation will be kept confidential by both parties, except as necessary for the case study's development and use. Brellium will provide a draft of the case study for the Customer's review and approval before public use or dissemination, with the understanding that the Customer will not unreasonably withhold or delay such approval.


EXHIBIT A SUPPORT SERVICES AGREEMENT

Support Services Performance Standards

1.0 SCOPE OF SUPPORT SERVICES



Brellium shall provide the Support Services as described in this Exhibit with respect to Subscription(s) throughout the term of the Agreement so long as Customer has paid the Subscription Fee. Capitalized terms not elsewhere defined in this Exhibit shall have the meanings ascribed to them in the Agreement.



During the term of this Agreement, Brellium agrees to provide Customer with a staffed help desk during normal business hours (Monday-Friday, 8:00 AM

– 5:00 PM ET; excluding holidays). Customer agrees to appoint up to three



(3) Authorized Support Contacts who are authorized to contact Brellium Support Team directly on behalf of Customer. Support is available to address Errors Customer is experiencing. Problems that are reported that are not Errors that result in Customer approved time being spent by Brellium are billable at standard Consulting Fee rates.



2.0 REMEDIAL ERROR CORRECTIONS



Customer shall promptly notify Brellium of any Errors in the Platform or the Documentation. Brellium shall use its best efforts to respond to and correct all Errors within the timeframes set forth below. Brellium will track Customer's reported Errors by date, description of Error, and status (pending, In-progress, and closed). Customer will be granted access to web-based solution in use by Brellium to view and follow real-time issues tracking. This will include, but is not limited to reported Errors, descriptions, current status, and comments and/or notes.



3.0 UPGRADES



Brellium will regularly provide Upgrades to keep it compatible with updates and changes to federal standard operating environments and to correct any material defects. Brellium will make modifications, bug fixes, updates, and new versions of the Platform released by Brellium and available to Customer at no additional charge other than the stated Subscription Fee. This does not include possible implementation fees.



4.0 CUSTOMIZATIONS



Any customizations (each a “Customization”) requested by Customer and agreed to by Brellium, and any support or modifications thereof, will be charged at the Professional Services rates or in accordance with the terms of a specific written Sales Order or Statement of Work provided by Brellium and accepted by Customer. Testing of Customizations prior to implementation as a part of the Platform shall be the responsibility of Customer.



5.0 PERFORMANCE STANDARDS



5.1 Definitions.



"Fix" means the repair or replacement of object or executable code versions of the Platform to remedy an Error.



"Telephone Support" means telephone or email technical support


assistance provided by Brellium to the Authorized Support Contact concerning the installation and use of the then-current release of the Platform.



"Workaround" means a change in the procedures followed or data supplied by Customer to avoid an Error without substantially impairing use of the Platform.



5.2 Error Correction Standards.



During the Term, Brellium will exercise commercially reasonable efforts to Fix a reported Error (as defined in the Support Services Severity Matrix below) for the current release of the Platform in accordance with the severity level reasonably assigned to such Error by Brellium. The severity level of the Error will be determined by Brellium as soon as practicable under the circumstances, with the goal being one (1) hour of the report of a critical, high impact incident via phone. Customer is responsible for providing sufficient information to allow Brellium to readily reproduce all reported Errors. Customer must minimally include the following information: date the error occurred, the users(s) and names of users impacted, application screen name, specific error experienced (what is happening), expected screen functionality, and specific replication steps. Additional information may also be required based on the type of error. The parties understand that certain Errors manifest themselves in an intermittent and/or seemingly random fashion, cannot reasonably be discovered by extensive testing, and must be analyzed by developers to determine the cause. If Brellium believes that a problem reported by Customer may not be due to an Error in the Platform, Brellium will so notify Customer.



5.3 Compatibility; Prior Version Support.



Brellium shall ensure that each Upgrade is compatible with each preceding version of the Platform, including Customizations.



5.4 Exclusions.



Brellium will have no obligation under this Agreement to support: (i) altered or damaged Platform components or any portion of a Platform component incorporated with or into other Platform applications; (ii) Errors, bugs, or operational problems in the Platform caused by Customer’s negligence, abuse or misapplication of the Platform, or arising out of other causes beyond the control of Brellium; or (iii) Errors, bugs, or operational problems in the Platform resulting from the combination of the Platform with such other programming utilized by Customer which is not compatible with the Platform. Brellium shall not be responsible for Customer’s computer network or for any connectivity or other related issues that prevent Customer from gaining access to the Platform.



THESE TERMS AND CONDITIONS DEFINE A SERVICE ARRANGEMENT AND NOT A PRODUCT WARRANTY. BRELLIUM DOES NOT WARRANT THAT THE PLATFORM WILL BE ERROR-FREE. ALL PRODUCTS AND MATERIALS RELATED THERETO ARE SUBJECT EXCLUSIVELY TO THE WARRANTIES SET FORTH IN THE MASTER SERVICES AGREEMENT BETWEEN THE PARTIES. THESE TERMS AND CONDITIONS DO NOT CHANGE OR SUPERSEDE ANY PROVISION OF ANY SUCH AGREEMENT.













BRELLIUM INC. -- CONFIDENTIAL AND PROPRIETARY -- UNAUTHORIZED REPRODUCTION OR DISTRIBUTION PROHIBITED







End of Terms of Use



Revision History



June 1, 2023

Terms of Use, Master Services Agreement, and Security

TERMS OF USE AND SECURITY

Effective date: 2023-05-01

Last update: 2023-12-06

Brellium Inc.



Brellium Inc., a Delaware corporation at 33 Irving Place Floor 3, New York, NY 10003


  1. The Effective Date and Term


This Agreement is effective on signing date (“Effective Date”).


The Initial Term shall be for twelve (12) months commencing on the Effective Date. This Agreement and the term hereof shall commence on the Agreement Effective Date and shall continue thereafter for the period of months set forth in the initial Sales Order, unless and until terminated as specifically provided in this Agreement. Thereafter the Agreement shall automatically renew for successive 12 months , unless a party gives the other party notice of intent not to renew sixty days prior to the expiration of the then current term. “Term” shall mean the initial term set forth in the Sales Order plus any renewal periods


d. The Training


Brellium shall provide Customer with the following training: Remote go-live training + Technical and Customer Support: Online and by telephone and e-mail.

Financial and License Summary



Monthly Platform Usage Fees and Maintenance:


Fees described in the payment page. Term of deal is 12 months, automatically renewing. Should either party not want to renew, the other party must be notified within 2 months of renewal date, otherwise the terms will auto-renew.



This Agreement Customer is made and entered into as of the date of the last signature below by and between Brellium, Inc., a Delaware corporation with a principal place of business at 33 Irving Place, New York, New York 10003 (hereinafter, “Brellium”) and Customer, who submitted payment.




The MSA Terms and Conditions and Exhibits A-D set forth below are included herein by this reference.




IN WITNESS WHEREOF, the parties hereby indicate their acceptance of the terms of this Agreement, including the documents set forth above that are attached hereto and the documents referenced by hyperlink above, by causing their duly authorized officers or representatives to execute this document as of the Effective Date.


MASTER SERVICES AGREEMENT TERM AND CONDITIONS



1.0 LICENSE GRANT



1.1 Grant of License. Subject to the terms and conditions of this Agreement, including the monthly software as a service Subscription Fee, Brellium hereby grants to Customer a limited, non-exclusive, non-transferable, non-assignable right and license, without the right to sublicense, to use the Platform (as defined below and in a Sales Order) as a service and Upgrades for the number of Providers and Authorized Users set forth in one or more Sales Orders (each a “Subscription”) during the Term unless earlier terminated in accordance with Section 5.2 hereof. Except as expressly provided herein, any attempts to sublicense, sell, pledge, assign, or transfer any of the rights or this license in violation of the permitted uses shall be void from the beginning.



BY USING BRELLIUM’S PLATFORM, CUSTOMER REPRESENTS THAT



  1. BY USING BRELLIUM, CUSTOMER HAS READ, UNDERSTANDS, AND AGREES TO BE BOUND BY THIS AGREEMENT, (2) CUSTOMER IS OF LEGAL AGE TO FORM A BINDING CONTRACT WITH BRELLIUM, AND (3) CUSTOMER HAS THE AUTHORITY TO ENTER INTO THESE TERMS OF USE. THE TERM “CUSTOMER” HEREIN REFERS CUSTOMER AND TO THE HEALTHCARE PROVIDER WHO IS PROVIDING TOOLS TO A PATIENT, PRESCRIBING OR ORDERING THE USE OF THE TOOLS BY A PATIENT, OR USING THE TOOLS IN ANY WAY. IF CUSTOMER DOES NOT AGREE TO BE BOUND BY THE AGREEMENT, CUSTOMER MAY NOT ACCESS OR USE THE PLATFORM, TOOLS, SERVICES, OR PATIENT DATA (AS DEFINED IN EXHIBIT D).



1.2 Permitted Uses. Customer shall have the right to use Brellium’s platform solely in connection with the internal business operations of Customer. The Usage Fee for Brellium is specified in each applicable Sales Order.



1.3 Restrictions on Use of Platform. Other than as expressly permitted under this Agreement, Customer shall not and shall not authorize, assist, or permit others to (i) use, copy, modify, sell, perform, or distribute the Platform (electronically or otherwise) or any copy, adaptation, transcription, translation, or merged portion thereof; (ii) translate, reverse compile, reverse assemble, or reverse engineer the Platform, in whole or part, or any derivative works thereof; (iii) disclose or copy the Platform or any derivative works thereof; (iv) transfer, lease, assign, or sublicense the Platform without the prior written consent of Brellium; or (v) use the Platform in connection with any service bureau work, multiple-user license, or time-sharing arrangement. The foregoing in this section 1.3(iii) notwithstanding, Brellium acknowledges that Customer has developed its own quality assurance process and that Customer must have the ability to revert to such technology and make improvements thereto. Such improvements shall not violate section 1.3(iii) herein so long as such improvements are for Customer’s own use and not provided to any third party.


2.2 Fees for Services. Customer shall pay the fees for implementation and training of the Platform (the “Implementation

and Training Services”) and fees for other consulting or design services performed by Brellium for Customer (“Professional Services”) as set forth in the Sales Order or any subsequent Sales Order.



2.3 Expenses. Subject to the conditions set forth in this Section 2.3, Customer shall reimburse the following travel and travel-related expenses, if any, incurred by employees or subcontractors of Brellium during the implementation, and training of the Platform: (a) all travel expenses to and from their home to the worksite of Customer; (b) meal expenses while traveling to the worksite of Customer; (c) lodging expenses while working at the worksite of Customer; and (d) miscellaneous travel related expenses incurred as a result of traveling to the worksite of Customer (e.g., parking and tolls). In order for any such travel and travel-related expenses to be reimbursed by Customer, the following conditions must be met by Brellium: (a) all such travel and travel-related expenses ƒmust be pre-approved by Customer in writing; (b) Customer must be provided with written receipts for any such travel and travel-related expenses, which must itemize such expenses and confirm the dates on which such expenses were incurred; and (c) all travel-related expenses must be for non -local Brellium employees or subcontractors (i.e., residing more than sixty (60) miles from Customer’s address) traveling to Customer’s worksite.



2.4 Invoices . Brellium will invoice Customer consistent with the payment milestones described in the Sales Order. All invoices are due and payable as set forth in the Sales Order. Any Fee due with a payment milestone not explicitly set forth in the Sales Order, shall be due thirty (30) days after receipt of the invoice. Any invoice not paid when due will be deemed late and will accrue late charges as of the date due. Late charges will be at a rate of 1.5% per month, or the maximum rate allowed under law, whichever is lower from the date such payment was due until the date paid. Customer agrees that it will notify Brellium in writing of any dispute with any invoice within fifteen (15) days of the invoice date. Brellium agrees to promptly review the dispute and respond with either a correction of the invoice or an explanation of the basis of finding the invoiced charge is correct.



2.5 Taxes. The amounts payable to Brellium as specified herein are exclusive of any and all applicable taxes, duties, or levies assessed by applicable governmental authorities. All such applicable taxes, duties, and levies (exclusive of any taxes based upon Brellium's income) shall be assumed by and paid for by Customer.



3.0 SERVICES



3.1 Training and Implementation Services. Brellium shall perform and provide to Customer the Implementation and Training Services as described in the Sales Order. Fees for Implementation and Training Services shall be billed by Brellium, and paid by Customer, in accordance with the Sales Order.



1.4 Verification. Brellium may audit Customer’s use of the Platform to verify compliance with the terms of this Agreement. Brellium shall bear all costs and expenses related to any such audits.



1.5 Copyright Notices. Customer agrees not to remove or destroy any copyright notices, proprietary markings, or confidential legends placed upon or contained within the Platform.



1.6 No Implied License. Except for the express software as a service Subscription license granted herein, no licenses are granted by implication, estoppels, or otherwise.


1.7 Support. Brellium is committed to maintaining high service standards and agrees to adhere to the following response and resolution time service levels: Response to Customer inquiries and service requests, including support needs, will be provided within 24 hours. For critical issues that significantly impact Customer business operations, an initial response will be issued within 4 hours during business hours (9:00 AM to 5:00 PM EST, Monday to Friday, excluding public holidays). Resolution times may vary based on the complexity of the issue, with ongoing communication provided regarding progress. Customers can escalate unresolved issues via email to support@brellium.com, following which the matter will be promptly addressed by our escalation management team. This service level is subject to periodic review and mutual adjustments to reflect evolving service needs. It is noted that this service level does not cover issues arising from factors beyond Brellium's control, such as natural disasters or Customer's own system failures.



2.0 FEES AND OTHER EXPENSES



2.1 Usage Fees. Customer shall pay the Usage Fee for the Platform as described in and pursuant to the payment terms set forth in an applicable Sales Order.




3.2 Professional Services. Brellium shall perform and provide to Customer the Professional Services as described in the Sales Order. Fees for Professional Services shall be billed by Brellium, and paid by Customer, in accordance with the Sales Order.



3.3 Support. Brellium shall provide Support Services for the Platform in accordance with Exhibit A hereto so long as the Usage Fees due and payable under this Agreement have been paid.



3.4 Quality Assurance and Tools and Services. Should Customer purchase Quality Assurance Tools and Services pursuant to a Sales Order, Brellium shall provide such Tools and Services pursuant to the terms and conditions in such Sales Order and the Quality Assurance Tools and Services Terms of Use attached hereto as Exhibit D.




4.0 USE AND DISCLOSURE OF CONFIDENTIAL INFORMATION



4.1 Use and Disclosure of Confidential Information. Each party may use the other party’s Confidential Information only to the extent reasonably necessary to perform such party’s obligations hereunder and/or to receive the full benefit of the rights granted to such party hereunder, and neither party shall disclose the other party’s Confidential Information, other than (i) to such party’s permanent employees and persons under such party’s control, including, but not limited to, third party independent contractors who need to know the other party’s Confidential Information to perform their duties to the other party; or (ii) as required by applicable law or court order.



4.2 Standard of Care. Each party shall hold the other party’s Confidential Information in strict confidence and use the same degree of care to prevent disclosure or unauthorized use of any of the other party’s Confidential Information as it would provide to protect its own valuable proprietary information, but in no event less than a reasonable degree of care.



4.3 Copies. Neither party shall make any copies of any of the other party’s Confidential Information, except as reasonably necessary to perform such party’s obligations hereunder and/or to receive the full benefit of the rights granted to such party hereunder.



4.4 Disclosure by Law. If a party is required by applicable law or by interrogatories, requests for information or documents, subpoena, or similar process to disclose any of the other party’s Confidential Information, unless the party is prohibited from doing so or there is a clear indication of illegal conduct or risk of harm, such party shall provide the other party with prompt written notice of such request or requirement so that the other party may seek an appropriate protective order and/or waive such party’s compliance with the provisions of this Agreement. If, in the absence of a protective order or the receipt of a waiver hereunder, a party nonetheless is compelled to disclose any of the other party’s Confidential Information or else stand liable for contempt or suffer other liability, such party may disclose only that portion of the other party’s Confidential Information which such party deems necessary to fulfill the applicable legal requirements.


5.0 TERM AND TERMINATION



5.1 Term. This Agreement and the term hereof shall commence on the Agreement Effective Date and shall continue thereafter for the period of months set forth in the initial Sales Order, unless and until terminated as specifically provided in this Agreement. Thereafter the Agreement shall automatically renew for successive periods equal to the initial term, unless a party gives the other party notice of intent not to renew sixty days prior to the expiration of the then current term. “Term” shall mean the initial term set forth in the Sales Order plus any renewal periods. Should Customer order subsequent Subscriptions pursuant to subsequent additional Sales Orders, the Term shall be extended by the number of months set forth in such subsequent Sales Order beginning on the Sales Order Effective Date of such Sales Order and thereafter shall renew as set forth above. Each Subscription shall renew independently, and the Term of this Agreement shall not expire or terminate as set forth herein until all Subscriptions have terminated.



5.2 Termination. In the event of a Default, the non-defaulting party may terminate this Agreement by providing written notice of termination to the defaulting party in accordance with Section 10.3 hereof. Such termination shall be effective immediately upon the receipt of such termination notice to the defaulting party.



5.3 Rights upon termination. All Platform licenses granted hereunder, and other services provided hereunder shall terminate upon termination of this Agreement. Termination of this Agreement shall not limit either party from pursuing other remedies available to it (except where a sole remedy is specified), including  injunctive  relief, nor shall such termination relieve Customer's obligation to pay all fees, expenses, and costs that have accrued or are otherwise owed by Customer to Brellium.



5.4 Survival . The provisions of Sections 1.3, 1.5, 4.1-4.5, 5.2-5.5, 6.0, 7.3, 8.2, -8.4 , 9.1-9.2, and 10.1-10.17 hereof shall survive the termination of this Agreement.



5.5 PHI and Confidential Information. Brellium shall provide, at Customer’s expense, commercially- reasonable assistance to Customer to permit Customer to retrieve Customer’s PHI and Customer’s Confidential Information from the Platform, and to do so within 30 days of its receipt of a written request for such Confidential Information and PHI provided that Customer has, at that time, paid all fees and charges due and outstanding at and resulting from termination. Customer shall destroy all copies of the Platform in its possession and shall certify to Brellium that it has destroyed all copies of the Platform within 30 days of termination of this Agreement.



6.0 INTELLECTUAL PROPERTY



All trademarks, service marks, patents, copyrights, trade secrets, know-how, and other proprietary rights in or related to the Platform, each Subscription, Documentation, Upgrades, customizations, and the provision of computer programming services provided pursuant to this Agreement, in any format, (the “Intellectual Property”) are and will remain the sole and exclusive property of Brellium, whether or not specifically recognized or perfected under applicable law. Brellium shall own all rights, title and interest, including all patent, trademark, copyright, trade secret, all intellectual property rights, in and to any improvements to the Platform, Documentation, Upgrades, and customizations, in any format, even when such changes result from Customer’s request. To the extent, if any, that ownership in the customizations does not automatically vest in Brellium by virtue of this Agreement or otherwise, Customer hereby transfers and assigns (and, if applicable, shall cause Customer’s affiliates to transfer and assign) to Brellium all rights, title, and interest in the customizations. Customer shall not assert any ownership rights in the Platform, Documentation, Upgrades, and customizations. Customer shall not take any action that could adversely affect Brellium’s rights to the Platform, Documentation, Upgrades, and customizations.



7.0 REPRESENTATIONS AND WARRANTIES



7.1 Warranty as to No Viruses or Malicious Codes. Brellium warrants and represents to Customer that the Platform does not contain any virus, worm, time bomb, trap door, disabling device, automatic restraint, trojan horse, cookies, contaminants, commands, or other codes designed to: (a) discontinue Customer’s effective use of the Platform; (b) erase, destroy, corrupt, or modify any data of Customer, Customer’s employees, agents, and/or patients, or any Authorized User, without the express written consent of Customer; or (c) bypass any internal or external software security measure to obtain access to any hardware or software of Customer or Customer’s employees, agents, and/or patients, without the express written consent of Customer.



7.2 Other Representations and Warranties. Brellium represents and warrants to Customer as follows:



7.2.1 That all of the services to be provided by Brellium hereunder will be performed in a professional manner by qualified personnel or qualified contractors; and



7.2.2 In providing the Platform and Upgrades and in performing services hereunder, Brellium and its employees, agents, and contractors shall comply with all applicable Federal, state, and local laws and regulations, including, without limitation, HIPAA (as defined below) and the rules and regulations promulgated thereunder, and all applicable United States import and export laws, statutes, and regulations, including, but not limited to, the Export Administration Regulations and International Traffic in Arms Regulations.



7.3 WARRANTY DISCLAIMER. THE PLATFORM IS PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS. BRELLIUM DOES NOT WARRANT THAT THE PLATFORM WILL BE UNINTERRUPTED OR ERROR-FREE OR THAT THE PLATFORM OR ANY SERVICES WILL MEET CUSTOMER'S REQUIREMENTS. EXCEPT AS OTHERWISE EXPRESSLY PROVIDED IN THIS AGREEMENT, BRELLIUM SPECIFICALLY DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, WITH RESPECT TO



THE PLATFORM, THE DOCUMENTATION, THE PERFORMANCE OF THE PLATFORM, THE RESULTS OBTAINED THEREFROM, AND/OR ANY MATERIALS OR SERVICES FURNISHED TO CUSTOMER UNDER THIS AGREEMENT, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OR MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT. THERE IS NO WARRANTY AGAINST INTERFERENCE WITH THE ENJOYMENT OF THE PLATFORM, DOCUMENTATION, OR SERVICES PROVIDED HEREUNDER.



CUSTOMER AGREES THAT BRELLIUM WILL NOT, UNDER ANY CIRCUMSTANCES, BE RESPONSIBLE OR LIABLE, DIRECTLY OR INDIRECTLY, FOR ANY DEVICES, GOODS, SERVICES, INFORMATION, RESOURCES AND/OR CONTENT AVAILABLE ON OR THROUGH ANY THIRD-PARTY SITES OR THIRD PARTY MANUFACTURERS, OR FOR ANY DAMAGES OR LOSSES CAUSED OR ALLEGED TO BE CAUSED BY OR IN CONNECTION WITH YOUR USE OR RELIANCE ON THE DEVICES, CONTENT, OR BUSINESS PRACTICES OF ANY THIRD-PARTY.



8.0 LIABILITY AND INDEMNIFICATION



8.1 Intellectual Property Infringement. Brellium agrees to and shall defend, indemnify, and hold harmless Customer and all of its directors, officers, employees, servants, agents, successors, and assigns from and against any claim, suit, demand, action, loss, cause of action, damages, cost, judgment, penalty, fine, liability and expense (including, without limitation, reasonable and actual attorneys’ fees and expenses) arising out of, resulting from, or alleging any claim that the Platform, Upgrades, customizations or any component thereof, infringes any patent or copyright, trade secret, trademark, trade dress, or any other intangible property or proprietary right of any third party. Customer shall give Brellium prompt written notice of such claims relating thereto. Brellium shall have sole control of the defense of such action and all related settlement negotiations, and Customer shall provide Brellium with all reasonably necessary assistance, information, and authority to perform the foregoing at Brellium’s sole expense.



If a temporary or final injunction is obtained against Customer’s use of the Platform or Upgrades, or any component thereof, by reason of infringement of any patent or copyright, trade secret, trademark, trade dress, or any other intangible property or proprietary right, Brellium, at its option and expense, shall either: (a) procure for Customer the right to continue to use of the Platform and Upgrades, and the component parts thereof; or (b) replace or modify for Customer the Platform and Upgrades, and the component parts thereof, so that it no longer infringes or they no longer infringe such patent or copyright, trade secret, trademark, trade dress, or any other intangible property or proprietary right, so long as the functions, performance, or other aspects of the Platform and Upgrades, and the component parts thereof, are not materially impaired and continue to conform to the applicable specifications and the performance requirements under this Agreement. If neither of the foregoing alternatives is commercially practicable, Brellium shall have the right to require Customer cease using the Platform, and Brellium shall cease charging Customer all applicable Usage Fees, and the license granted for such Platform shall terminate with no continuing obligation or liability of Brellium to Customer.



8.2 Indemnification by Customer. Customer agrees to and shall defend, indemnify, and hold harmless Brellium and all of its directors, officers, employees, servants, agents, successors, and assigns from and against any claim, suit, demand, action, loss, cause of action, damages, cost, judgment, penalty, fine, liability and expense (including, without limitation, reasonable attorneys’ fees and expenses) arising out of or resulting from: (i) Customer’s breach of any of the provisions under this Agreement; or (ii) Customer’s violation of any law, statute, ordinance, order, rule or regulation. Brellium shall provide Customer with (a) prompt written

notice of any such claim of which Brellium becomes aware; (b) all reasonable assistance and documentation in Brellium’s possession requested by Customer to defend such claim; and (c) control over the defense and settlement of such claim, provided that Customer shall not agree to any settlement or other disposition that imposes any obligation on Brellium.




8.4 LIMITATION OF LIABILITY. EXCEPT IN THE CASE OF GROSS NEGLIGENCE OR CRIMINAL ACTIVITY, BRELLIUM’S LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT IS LIMITED TO THE SUM OF THE FEES PAID BY CUSTOMER DURING THE ONE-YEAR PERIOD IMMEDIATELY PRECEDING THE DATE THE ALLEGED LIABILITY AROSE. IN NO EVENT WILL BRELLIUM HAVE ANY LIABILITY TO CUSTOMER FOR ANY CONSEQUENTIAL OR INCIDENTAL DAMAGES TO CUSTOMER, INCLUDING BUT NOT LIMITED TO LOST PROFITS, LOSS OF BUSINESS, INTERNAL COSTS OF INVESTIGATION AND/OR REMEDIATION, LOSS OF USE OR OF DATA, ANY UNAUTHORIZED ACCESS TO, ALTERATION, THEFT OR DESTRUCTION OF CUSTOMER’S COMPUTERS, COMPUTER SYSTEMS, DATA FILES, PROGRAMS OR INFORMATION, OR FOR ANY INDIRECT, SPECIAL OR CONSEQUENTIAL DAMAGES HOWEVER CAUSED AND UNDER ANY THEORY OF LIABILITY AND WHETHER OR NOT BRELLIUM HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE. THE PARTIES AGREE THAT THE TERMS IN THIS LIMITATION OF LIABILITY SECTION REPRESENT A REASONABLE ALLOCATION OF RISK BETWEEN THE PARTIES.


8.5 PAYER CLAWBACKS. In the event of any payer clawbacks arising from the services provided under this Agreement, the Customer shall first undertake all reasonable and necessary efforts to contest such clawbacks using all available means, with Brellium providing reasonable support as necessary. Following these efforts, Brellium commits to a diligent review process to ascertain the root cause of such clawbacks. If determined by Brellium, in our sole discretion, that the clawback resulted directly from an error or oversight in our services, Brellium agrees to bear the financial responsibility for such clawbacks, limited to an amount not exceeding the total contract value. This liability does not extend to clawbacks resulting from client-provided erroneous or incomplete requirements, specifications, or directions; changes in payer policies or regulations post-service provision; or errors in client or third-party provided patient data. This clause represents the sole remedy for errors attributable to Brellium's services and is in lieu of any other legal or equitable remedies. The Client is required to promptly notify Brellium of any potential or actual payer clawback claims, providing detailed documentation of the efforts made to contest the clawback and reasonable assistance in investigating and addressing such claims.



9.0 DATA



9.1 (a) Data Protection. Customer grants to Brellium an irrevocable, nonexclusive, perpetual, world-wide, royalty-free right and license to use all Data for any purpose permitted by law, including, without limitation (i) analysis and incorporation of the Data in databases, reports, comparative data sets, scores or scoring systems generated therefrom; and (ii) creation and distribution of works and derivative works based on the Data. Any Data that contains an element that by itself, or in combination with any other data elements allows re-identification of a person, is considered PHI under this Agreement. Brellium will perform the extraction of Data that is collected, stored or generated through the use of the Platform without charge and without impairing any operation or function of the System. Customer acknowledges that Brellium is reliant on Customer to give written approval and give direction as to the extent to which Brellium is entitled to access PHI. Consequently, Brellium will not be liable for any claim brought by a Patient arising from any action or omission by Brellium, to the extent that such action or omission resulted directly from Customer’s instructions. In accordance with applicable law, Customer shall be solely responsible for obtaining any and all consents and authorizations necessary to use, disclose and process PHI from Patients and any other persons whose PHI is to be provided under this Agreement.



  1. EHR Access. During the Term, Customer shall ensure that Brellium has access to Customer’s EHR/PM system so that Brellium can perform set-up, trouble shooting, reporting, and other administrative tasks. The Customer is responsible for paying any fees levied by the EHR/PM system, including but not limited to, per-session note fees and implementation/integration fees.



10.0  GENERAL



10.1 No Partnership Between the Parties. This Agreement is entered into by Brellium and Customer with the mutual understanding that they are unrelated parties. Nothing in this Agreement is intended by the parties nor shall be construed by Brellium, Customer, or any other party to create a partnership, joint venture, or agency relationship between them. Rather, in performing the services to be rendered hereunder, Brellium is an independent contractor of Customer and performs similar services for other parties. Each party shall be solely responsible for payment of all compensation owed to its employees, as well as employment related taxes.



10.2 Governing Law and Venue; Arbitration . This Agreement shall be deemed to have been entered into and to be performed in the State of Delaware, and shall be governed, construed, and enforced in accordance with the laws of the State of Delaware. Excepting non-payment of undisputed invoiced amounts due to Brellium, in the event of a dispute between the parties, they agree to negotiate in good faith for a period of thirty (30) days in order to resolve the dispute. In the event that any dispute, claim, question or disagreement arising from or related to this Agreement or a breach of this Agreement cannot be settled by the parties’ good faith negotiations, either party may, by written notice to the other, demand arbitration of the matter. The arbitration will be conducted in accordance with the Commercial Arbitration Rules (“Rules”) of the American Arbitration Association (“ AAA”), except to the extent that the AAA Rules conflict with or are modified by the provisions of this Section, in which event the provisions of this Section will control. The parties will attempt to select a single arbitrator by mutual agreement. If they are unable to do so, the parties may request the AAA to select a single arbitrator that is a retired judge. The decision of the arbitrator will be binding and conclusive. Judgment upon any award rendered by the arbitrator may be entered in any court in Delaware having jurisdiction. Any such arbitration will be held in a reasonably convenient location acceptable to both parties in Delaware. The arbitrator may apportion some of a party’s legal fees to the other party based on the extent to which the party prevailed and the extent to which each party complied with the arbitrator’s guidelines for conduct of the arbitration. THE PARTIES HERETO HEREBY IRREVOCABLY WAIVE ANY AND ALL RIGHT TO TRIAL BY JURY IN RESPECT TO ANY ACTION, SUIT, PROCEEDING, CLAIM OR COUNTERCLAIM BROUGHT BY OR UNDER THIS AGREEMENT OR ITS INTERPRETATION. Provided, however, Brellium reserves all rights to pursue injunctive relief in a court of law outside the arbitration process set forth above in the event of a claim relating to use of the Platform that is in violation of the US Copyright Act or for use by Customer, its representatives or assigns of the Platform outside the scope permitted under Section 1 hereof.



10.3 Notice. Any and all notices, designations, consents, offers, acceptances, or other communications required herein shall be given to either party, in writing, by receipted personal delivery or deposited in certified mail addressed to the addressee as set forth on the signature page hereto for each respective party (unless notice of a change of address is furnished by a party to the other party hereto) and to the attention of the CEO and with return receipt requested, effective upon receipt.



10.4 Waivers. No failure or delay on the part of a party to this Agreement in exercising any right, power, or privilege hereunder shall operate as a waiver, thereof, nor shall a single or partial exercise of any right, power, or privilege preclude any other further exercise of any other right, power, or privilege. In no event shall the making by Customer of any payment to Brellium constitute or be construed as a waiver by Customer of any breach of this Agreement, or any default which may then exist, on the part of Brellium, and the making of any such payment by Customer while any such breach or default shall exist, shall in no way impair or prejudice any right or remedy available to Customer in respect to such breach or default.

10.5 Disregarding Titles . The titles of the sections in this Agreement are inserted for the convenience of reference only and shall be disregarded when construing or interpreting any of the provisions of this Agreement.



10.6 Counterparts; Electronic Signature. This Agreement may be executed in any number of counterparts and by either party hereto on separate counterparts, each of which, when so executed and delivered, shall be an original, but all such counterparts shall together constitute one and the same instrument. One or more counterparts of this Agreement may be delivered by facsimile or electronically, with the intention that delivery by such means shall have the same effect as delivery of an original counterpart thereof. The parties intend that delivery of a counter-part of this Agreement electronically shall constitute a binding original of the Agreement.



10.7 Amendment. Modifications, amendments, or waivers of any provision of this Agreement may be made only by the written mutual consent of both of the parties hereto.



10.8 Assignment. Any license granted hereunder by Brellium is solely to Customer and none of the rights granted hereunder may be assigned, sold, sublicensed, or otherwise transferred by Customer or by operation of law without the prior written consent of Brellium, which may not be unreasonably withheld. Brellium may assign its rights and delegate its duties hereunder at any time without the consent of Customer.



10.9 Successors and Assigns. This Agreement shall be binding upon and inure to the benefit of each of the successors and permitted assigns of the parties hereto.



10.10 Export/Import Administration. Customer represents and warrants that if Customer assigns or transfers the Platform pursuant to the terms of this Agreement to any foreign national, or person or entity outside of, or for use outside of, the United States of America, Customer agrees hereby to comply fully with all applicable export / import laws and regulations of the United States of America or other countries.



10.11 Completeness of the Agreement. This Agreement, the attached Exhibits and Sales Orders, and the additional and supplementary documents incorporated herein by specific reference contain all the terms and conditions agreed upon by Brellium and Customer and no other agreements, oral or otherwise, regarding the subject matter of this Agreement or any part thereof shall have any validity or bind either Brellium or Customer.



10.12 Severability . If any provision of this Agreement is declared by any court having competent jurisdiction to be invalid, such provision shall be deemed deleted and shall not affect the validity of the remainder of this Agreement, which shall continue in full force and effect. If the removal of such provision would result in the illegality and/or unenforceability of this Agreement, this Agreement shall terminate as of the date in which the provision was declared invalid.



10.13 No Third-Party Beneficiaries. There are no intended third-party beneficiaries of this Agreement and the undersigned are the only parties to this Agreement.



10.14 Order of Precedence. The Agreement shall be comprised solely of the following documents. In the event of an inconsistency or conflict in terms, precedence shall be given in the order indicated:



  1. These Terms and Conditions;



  1. Exhibits;

  2. Sales Order(s); and



  1. Any Amendments to the Agreement in reverse chronological order.



10.15 Non-Solicitation. Customer and its Providers and Authorized Users shall not directly or indirectly solicit for or offer employment or otherwise induce employment of any employee or contractor of Brellium that Customer or an Affiliate became aware of as a result of the performance of this Agreement, or communicate in any manner with such employees about offering employment opportunities with any third party, during the Term and for a period of two (2) years after the expiration or earlier termination of this Agreement. Notwithstanding the foregoing, Customer and Affiliates are not prohibited from engaging in any general advertising and hiring any employee of Brellium who responds to such general solicitations, so long as the solicitation is indirect and general in nature and does not specifically and solely target any of Brellium’s employees.



10.16 Force Majeure. Brellium shall have no liability to Customer under this Agreement if it is prevented from or delayed in performing its obligations under this Agreement, or from carrying on its business, by acts, events, omissions or accidents beyond its reasonable control, including, without limitation, strikes, lock- outs or other industrial disputes (whether involving the workforce of Brellium or any other party), failure of a utility service or transport or telecommunications network, act of God, war, riot, civil commotion, malicious damage, compliance with any law or governmental order, rule, regulation or direction, accident, breakdown of plant or machinery, fire, flood, storm or default of suppliers or sub-contractors, provided that Customer is notified of such an event and its expected duration.



11.0  CERTIFICATION OF AUTHORITY TO SIGN THE AGREEMENT



The persons signing this Agreement on behalf of the parties hereto certify by said signatures that they are duly authorized to sign this Agreement on behalf of said parties and that this Agreement has been authorized by said parties.



12.0  DEFINITIONS



The following definitions shall apply to this Agreement, including all schedules, exhibits, and Sales Orders:



12.1 Authorized Patient. “Authorized Patient” means a Patient/Consumer who registers to use the Platform, accepts the Patient Terms of Use, has a direct, patient relationship with Customer, and has created a username and password with or received such from Customer to access the Platform.



12.2 Authorized Users. “Authorized Users” means the number of Customer’s Authorized Users that may access the Platform pursuant to a Subscription, as specified in the Sales Order.



12.3 Business Associate Agreement. “Business Associate Agreement” means the agreement located at https://brellium.com/baa containing provisions required by HIPAA to protect confidentiality of the Protected Health Information of Customer’s patients. By default, all covered entities that use Brellium in trial or in production are automatically covered under the Business Associate Agreement.



12.4 Confidential Information. “Confidential Information” means any information relating to, or disclosed in the course of, this Agreement, which is designated as ‘confidential’ or ‘proprietary’ or some similar designation or information which is or should be reasonably understood to be confidential or proprietary to the disclosing party. Confidential Information includes but is not limited to the Platform, Brellium software, the Documentation, the terms and pricing under this Agreement, trade secrets, business strategies, specifications, technical data, and all Sales Orders and Statements of Work. Confidential Information shall not include information (a) already known to either party at the time of receipt thereof from the other; (b) that was readily available to the general public at the time of receipt thereof from the other; (c) that subsequently becomes known to the general public through no fault or omission on the part of the party receiving such information;



  1. that is subsequently disclosed by a third party which has a bona fide and legal right to make such disclosure; or (e) that is required to be disclosed by a court of competent jurisdiction or other governmental authority or pursuant to applicable law, provided that the receiving party shall give prompt notice to the disclosing party prior to any such disclosure and reasonably assist the disclosing party in seeking a protective order.

12.5 Data.  “Data” means all (a) data that is collected, stored, or generated through the use of the Platform, and (b) Brellium requested data that is not collected, stored, nor generated through the use of any Platform functionality, in each case requested by Brellium and subsequently transmitted to or retrieved by Brellium for storage, provided that Data does not include data that is Protected Health Information or Customer’s Confidential Information.



12.6 Default. “Default” means (A) a party’s material breach of any of its obligations hereunder which is not cured within thirty (30) days after receiving written notice of such default from the other party pursuant to Section 10.3 herein; (B) Customer’s failure to pay any undisputed fee within twenty (20) days of the due date; (C) the dissolution of a party; (D) a party has a receiver, trustee, custodian, or similar agent appointed to or take possession of any of its property or business; (E) a party ceases to operate business in the ordinary course for more than ten (10) consecutive days; (F) a party files or has filed against it a petition (or other document) under any bankruptcy law or similar law that has not been dismissed within ninety (90) calendar days after the filing of such petition (or document); (G) a party undergoes any dissolution, liquidation, composition, financial reorganization, or recapitalization with creditors and such action impairs the party’s ability to perform under this Agreement; or (H) a party makes a general assignment or trust mortgage for the benefit of its creditors



12.7 Documentation. “ Documentation” means the user manual(s) for use of the Platform, whether provided in hard copy or electronically.



12.8 Error. "Error" means a reproducible failure of the Platform to perform in accordance with the Documentation.



12.10 Implementation and Training Services. “Implementation and Training Services” have the meaning described in Section 2.2.



12.11 Patient Terms of Use. “Patient Terms of Use” means the terms and conditions each Authorized Patient shall enter into directly with Brellium through the Platform in the form prescribed by Brellium as amended from time to time.



12.12 Personally Identifiable Information. “Personally Identifiable Information” or “PII” means data which relate to an Authorized Patient who can be identified from those data, or from those data and other information which is in the possession of or is likely to come into the possession of Brellium.



12.13 Platform . “Platform” means the executable version of Brellium’s software as a service platform with the specific functional features described in the Sales Order attached hereto and any Upgrades.



12.14 Professional Services. “Professional Services” have the meaning described in Section 2.2.



12.15 Protected Health Information. “Protected Health Information” or “PHI” shall have the meaning ascribed to it in Title II, Subtitle F of the Health Insurance Portability and Accountability Act ("HIPAA").



12.16 Providers. “Providers” means the number of Customer’s Physicians or Mid-Level Providers that may access the Platform pursuant to a Subscription, as specified in the Sales Order.



12.17 Sales Order. “Sales Order” means an order form provided by Brellium to Customer pursuant to which Customer orders Services or a Subscription.



12.18 Statement of Work. “Statement of Work” means a written document created and signed by authorized representatives of each party after execution of the Agreement which may include additional customization of the Platform pursuant to a Subscription beyond the Subscription identified in the applicable Sales Order.



12.19 Subscription(s) “Subscription” has the meaning set forth in Section 1.1 above.



12.20 Subscription Fee and Usage Fee. “Subscription Fee” and   “Usage Fee” are terms used interchangeably and mean the fees paid by Customer to license via software as a service the Platform as defined herein and in applicable Sales Order(s). Payment of Subscription  Fees  also  entitles  Customer  to  receive  Support Services for each such Subscription.



12.21 Support  Services. “Support  Services”  means  the  Support

services described in Exhibit A.



12.22 Upgrades. “Upgrades”  means,  solely with respect  to the

executable version of the Platform, any subsequent error

corrections, bug fixes, enhanced and improved versions and all

modifications and improvements of the current functionality of such Platform or prior Upgrade that work solely within the functionality of the Platform as may be created and made available from time to time by Brellium in its discretion.



13.0  MARKETING AND PROMOTIONAL USE

13.1 The Customer hereby grants Brellium (the "Vendor") the non-exclusive right to use the Customer's name, logo, and relevant project details in the Vendor's marketing and promotional materials. This includes, but is not limited to, the Vendor's website, case studies, presentations, promotional videos, and other marketing collateral.

13.2 The Vendor agrees to ensure that any information displayed or disclosed shall be accurate and in no way misleading regarding the nature of the relationship between the Customer and the Vendor or the services rendered.

13.3 The Customer may, upon written request to the Vendor, review and approve any specific use of its name, logo, or project details, which approval shall not be unreasonably withheld. If the Customer does not respond within fourteen (14) days of receiving such request, the use shall be deemed approved.

13.4 The Vendor acknowledges and agrees that all rights in and to the Customer's name and logo are the exclusive property of the Customer, and nothing in this clause shall be construed as a transfer or assignment of any rights to the Vendor, except for the limited rights expressly granted herein.

13.5 The Customer reserves the right to request the removal or modification of any marketing or promotional material that they believe is inaccurate, misleading, or otherwise objectionable. Upon such request, the Vendor shall promptly comply and make the necessary amendments.

13.6 The Customer agrees to cooperate with Brellium in the creation of a case study detailing their use and experience of Brellium's services/products. This cooperation shall commence no later than three (3) months following the initiation of this contract and continue until completion of the case study. The Customer is required to provide relevant information, feedback, and data as reasonably requested by Brellium. The format, content, and scope of the case study will be determined by Brellium, in consultation with the Customer, who agrees to provide honest and accurate information. The Customer grants Brellium the right to use the case study in its marketing and promotional materials, respecting any confidentiality and proprietary interests as outlined in this contract. Any sensitive information shared during the case study creation will be kept confidential by both parties, except as necessary for the case study's development and use. Brellium will provide a draft of the case study for the Customer's review and approval before public use or dissemination, with the understanding that the Customer will not unreasonably withhold or delay such approval.


EXHIBIT A SUPPORT SERVICES AGREEMENT

Support Services Performance Standards

1.0 SCOPE OF SUPPORT SERVICES



Brellium shall provide the Support Services as described in this Exhibit with respect to Subscription(s) throughout the term of the Agreement so long as Customer has paid the Subscription Fee. Capitalized terms not elsewhere defined in this Exhibit shall have the meanings ascribed to them in the Agreement.



During the term of this Agreement, Brellium agrees to provide Customer with a staffed help desk during normal business hours (Monday-Friday, 8:00 AM

– 5:00 PM ET; excluding holidays). Customer agrees to appoint up to three



(3) Authorized Support Contacts who are authorized to contact Brellium Support Team directly on behalf of Customer. Support is available to address Errors Customer is experiencing. Problems that are reported that are not Errors that result in Customer approved time being spent by Brellium are billable at standard Consulting Fee rates.



2.0 REMEDIAL ERROR CORRECTIONS



Customer shall promptly notify Brellium of any Errors in the Platform or the Documentation. Brellium shall use its best efforts to respond to and correct all Errors within the timeframes set forth below. Brellium will track Customer's reported Errors by date, description of Error, and status (pending, In-progress, and closed). Customer will be granted access to web-based solution in use by Brellium to view and follow real-time issues tracking. This will include, but is not limited to reported Errors, descriptions, current status, and comments and/or notes.



3.0 UPGRADES



Brellium will regularly provide Upgrades to keep it compatible with updates and changes to federal standard operating environments and to correct any material defects. Brellium will make modifications, bug fixes, updates, and new versions of the Platform released by Brellium and available to Customer at no additional charge other than the stated Subscription Fee. This does not include possible implementation fees.



4.0 CUSTOMIZATIONS



Any customizations (each a “Customization”) requested by Customer and agreed to by Brellium, and any support or modifications thereof, will be charged at the Professional Services rates or in accordance with the terms of a specific written Sales Order or Statement of Work provided by Brellium and accepted by Customer. Testing of Customizations prior to implementation as a part of the Platform shall be the responsibility of Customer.



5.0 PERFORMANCE STANDARDS



5.1 Definitions.



"Fix" means the repair or replacement of object or executable code versions of the Platform to remedy an Error.



"Telephone Support" means telephone or email technical support


assistance provided by Brellium to the Authorized Support Contact concerning the installation and use of the then-current release of the Platform.



"Workaround" means a change in the procedures followed or data supplied by Customer to avoid an Error without substantially impairing use of the Platform.



5.2 Error Correction Standards.



During the Term, Brellium will exercise commercially reasonable efforts to Fix a reported Error (as defined in the Support Services Severity Matrix below) for the current release of the Platform in accordance with the severity level reasonably assigned to such Error by Brellium. The severity level of the Error will be determined by Brellium as soon as practicable under the circumstances, with the goal being one (1) hour of the report of a critical, high impact incident via phone. Customer is responsible for providing sufficient information to allow Brellium to readily reproduce all reported Errors. Customer must minimally include the following information: date the error occurred, the users(s) and names of users impacted, application screen name, specific error experienced (what is happening), expected screen functionality, and specific replication steps. Additional information may also be required based on the type of error. The parties understand that certain Errors manifest themselves in an intermittent and/or seemingly random fashion, cannot reasonably be discovered by extensive testing, and must be analyzed by developers to determine the cause. If Brellium believes that a problem reported by Customer may not be due to an Error in the Platform, Brellium will so notify Customer.



5.3 Compatibility; Prior Version Support.



Brellium shall ensure that each Upgrade is compatible with each preceding version of the Platform, including Customizations.



5.4 Exclusions.



Brellium will have no obligation under this Agreement to support: (i) altered or damaged Platform components or any portion of a Platform component incorporated with or into other Platform applications; (ii) Errors, bugs, or operational problems in the Platform caused by Customer’s negligence, abuse or misapplication of the Platform, or arising out of other causes beyond the control of Brellium; or (iii) Errors, bugs, or operational problems in the Platform resulting from the combination of the Platform with such other programming utilized by Customer which is not compatible with the Platform. Brellium shall not be responsible for Customer’s computer network or for any connectivity or other related issues that prevent Customer from gaining access to the Platform.



THESE TERMS AND CONDITIONS DEFINE A SERVICE ARRANGEMENT AND NOT A PRODUCT WARRANTY. BRELLIUM DOES NOT WARRANT THAT THE PLATFORM WILL BE ERROR-FREE. ALL PRODUCTS AND MATERIALS RELATED THERETO ARE SUBJECT EXCLUSIVELY TO THE WARRANTIES SET FORTH IN THE MASTER SERVICES AGREEMENT BETWEEN THE PARTIES. THESE TERMS AND CONDITIONS DO NOT CHANGE OR SUPERSEDE ANY PROVISION OF ANY SUCH AGREEMENT.













BRELLIUM INC. -- CONFIDENTIAL AND PROPRIETARY -- UNAUTHORIZED REPRODUCTION OR DISTRIBUTION PROHIBITED







End of Terms of Use



Revision History



June 1, 2023

Terms of Use, Master Services Agreement, and Security

TERMS OF USE AND SECURITY

Effective date: 2023-05-01

Last update: 2023-12-06

Brellium Inc.



Brellium Inc., a Delaware corporation at 33 Irving Place Floor 3, New York, NY 10003


  1. The Effective Date and Term


This Agreement is effective on signing date (“Effective Date”).


The Initial Term shall be for twelve (12) months commencing on the Effective Date. This Agreement and the term hereof shall commence on the Agreement Effective Date and shall continue thereafter for the period of months set forth in the initial Sales Order, unless and until terminated as specifically provided in this Agreement. Thereafter the Agreement shall automatically renew for successive 12 months , unless a party gives the other party notice of intent not to renew sixty days prior to the expiration of the then current term. “Term” shall mean the initial term set forth in the Sales Order plus any renewal periods


d. The Training


Brellium shall provide Customer with the following training: Remote go-live training + Technical and Customer Support: Online and by telephone and e-mail.

Financial and License Summary



Monthly Platform Usage Fees and Maintenance:


Fees described in the payment page. Term of deal is 12 months, automatically renewing. Should either party not want to renew, the other party must be notified within 2 months of renewal date, otherwise the terms will auto-renew.



This Agreement Customer is made and entered into as of the date of the last signature below by and between Brellium, Inc., a Delaware corporation with a principal place of business at 33 Irving Place, New York, New York 10003 (hereinafter, “Brellium”) and Customer, who submitted payment.




The MSA Terms and Conditions and Exhibits A-D set forth below are included herein by this reference.




IN WITNESS WHEREOF, the parties hereby indicate their acceptance of the terms of this Agreement, including the documents set forth above that are attached hereto and the documents referenced by hyperlink above, by causing their duly authorized officers or representatives to execute this document as of the Effective Date.


MASTER SERVICES AGREEMENT TERM AND CONDITIONS



1.0 LICENSE GRANT



1.1 Grant of License. Subject to the terms and conditions of this Agreement, including the monthly software as a service Subscription Fee, Brellium hereby grants to Customer a limited, non-exclusive, non-transferable, non-assignable right and license, without the right to sublicense, to use the Platform (as defined below and in a Sales Order) as a service and Upgrades for the number of Providers and Authorized Users set forth in one or more Sales Orders (each a “Subscription”) during the Term unless earlier terminated in accordance with Section 5.2 hereof. Except as expressly provided herein, any attempts to sublicense, sell, pledge, assign, or transfer any of the rights or this license in violation of the permitted uses shall be void from the beginning.



BY USING BRELLIUM’S PLATFORM, CUSTOMER REPRESENTS THAT



  1. BY USING BRELLIUM, CUSTOMER HAS READ, UNDERSTANDS, AND AGREES TO BE BOUND BY THIS AGREEMENT, (2) CUSTOMER IS OF LEGAL AGE TO FORM A BINDING CONTRACT WITH BRELLIUM, AND (3) CUSTOMER HAS THE AUTHORITY TO ENTER INTO THESE TERMS OF USE. THE TERM “CUSTOMER” HEREIN REFERS CUSTOMER AND TO THE HEALTHCARE PROVIDER WHO IS PROVIDING TOOLS TO A PATIENT, PRESCRIBING OR ORDERING THE USE OF THE TOOLS BY A PATIENT, OR USING THE TOOLS IN ANY WAY. IF CUSTOMER DOES NOT AGREE TO BE BOUND BY THE AGREEMENT, CUSTOMER MAY NOT ACCESS OR USE THE PLATFORM, TOOLS, SERVICES, OR PATIENT DATA (AS DEFINED IN EXHIBIT D).



1.2 Permitted Uses. Customer shall have the right to use Brellium’s platform solely in connection with the internal business operations of Customer. The Usage Fee for Brellium is specified in each applicable Sales Order.



1.3 Restrictions on Use of Platform. Other than as expressly permitted under this Agreement, Customer shall not and shall not authorize, assist, or permit others to (i) use, copy, modify, sell, perform, or distribute the Platform (electronically or otherwise) or any copy, adaptation, transcription, translation, or merged portion thereof; (ii) translate, reverse compile, reverse assemble, or reverse engineer the Platform, in whole or part, or any derivative works thereof; (iii) disclose or copy the Platform or any derivative works thereof; (iv) transfer, lease, assign, or sublicense the Platform without the prior written consent of Brellium; or (v) use the Platform in connection with any service bureau work, multiple-user license, or time-sharing arrangement. The foregoing in this section 1.3(iii) notwithstanding, Brellium acknowledges that Customer has developed its own quality assurance process and that Customer must have the ability to revert to such technology and make improvements thereto. Such improvements shall not violate section 1.3(iii) herein so long as such improvements are for Customer’s own use and not provided to any third party.


2.2 Fees for Services. Customer shall pay the fees for implementation and training of the Platform (the “Implementation

and Training Services”) and fees for other consulting or design services performed by Brellium for Customer (“Professional Services”) as set forth in the Sales Order or any subsequent Sales Order.



2.3 Expenses. Subject to the conditions set forth in this Section 2.3, Customer shall reimburse the following travel and travel-related expenses, if any, incurred by employees or subcontractors of Brellium during the implementation, and training of the Platform: (a) all travel expenses to and from their home to the worksite of Customer; (b) meal expenses while traveling to the worksite of Customer; (c) lodging expenses while working at the worksite of Customer; and (d) miscellaneous travel related expenses incurred as a result of traveling to the worksite of Customer (e.g., parking and tolls). In order for any such travel and travel-related expenses to be reimbursed by Customer, the following conditions must be met by Brellium: (a) all such travel and travel-related expenses ƒmust be pre-approved by Customer in writing; (b) Customer must be provided with written receipts for any such travel and travel-related expenses, which must itemize such expenses and confirm the dates on which such expenses were incurred; and (c) all travel-related expenses must be for non -local Brellium employees or subcontractors (i.e., residing more than sixty (60) miles from Customer’s address) traveling to Customer’s worksite.



2.4 Invoices . Brellium will invoice Customer consistent with the payment milestones described in the Sales Order. All invoices are due and payable as set forth in the Sales Order. Any Fee due with a payment milestone not explicitly set forth in the Sales Order, shall be due thirty (30) days after receipt of the invoice. Any invoice not paid when due will be deemed late and will accrue late charges as of the date due. Late charges will be at a rate of 1.5% per month, or the maximum rate allowed under law, whichever is lower from the date such payment was due until the date paid. Customer agrees that it will notify Brellium in writing of any dispute with any invoice within fifteen (15) days of the invoice date. Brellium agrees to promptly review the dispute and respond with either a correction of the invoice or an explanation of the basis of finding the invoiced charge is correct.



2.5 Taxes. The amounts payable to Brellium as specified herein are exclusive of any and all applicable taxes, duties, or levies assessed by applicable governmental authorities. All such applicable taxes, duties, and levies (exclusive of any taxes based upon Brellium's income) shall be assumed by and paid for by Customer.



3.0 SERVICES



3.1 Training and Implementation Services. Brellium shall perform and provide to Customer the Implementation and Training Services as described in the Sales Order. Fees for Implementation and Training Services shall be billed by Brellium, and paid by Customer, in accordance with the Sales Order.



1.4 Verification. Brellium may audit Customer’s use of the Platform to verify compliance with the terms of this Agreement. Brellium shall bear all costs and expenses related to any such audits.



1.5 Copyright Notices. Customer agrees not to remove or destroy any copyright notices, proprietary markings, or confidential legends placed upon or contained within the Platform.



1.6 No Implied License. Except for the express software as a service Subscription license granted herein, no licenses are granted by implication, estoppels, or otherwise.


1.7 Support. Brellium is committed to maintaining high service standards and agrees to adhere to the following response and resolution time service levels: Response to Customer inquiries and service requests, including support needs, will be provided within 24 hours. For critical issues that significantly impact Customer business operations, an initial response will be issued within 4 hours during business hours (9:00 AM to 5:00 PM EST, Monday to Friday, excluding public holidays). Resolution times may vary based on the complexity of the issue, with ongoing communication provided regarding progress. Customers can escalate unresolved issues via email to support@brellium.com, following which the matter will be promptly addressed by our escalation management team. This service level is subject to periodic review and mutual adjustments to reflect evolving service needs. It is noted that this service level does not cover issues arising from factors beyond Brellium's control, such as natural disasters or Customer's own system failures.



2.0 FEES AND OTHER EXPENSES



2.1 Usage Fees. Customer shall pay the Usage Fee for the Platform as described in and pursuant to the payment terms set forth in an applicable Sales Order.




3.2 Professional Services. Brellium shall perform and provide to Customer the Professional Services as described in the Sales Order. Fees for Professional Services shall be billed by Brellium, and paid by Customer, in accordance with the Sales Order.



3.3 Support. Brellium shall provide Support Services for the Platform in accordance with Exhibit A hereto so long as the Usage Fees due and payable under this Agreement have been paid.



3.4 Quality Assurance and Tools and Services. Should Customer purchase Quality Assurance Tools and Services pursuant to a Sales Order, Brellium shall provide such Tools and Services pursuant to the terms and conditions in such Sales Order and the Quality Assurance Tools and Services Terms of Use attached hereto as Exhibit D.




4.0 USE AND DISCLOSURE OF CONFIDENTIAL INFORMATION



4.1 Use and Disclosure of Confidential Information. Each party may use the other party’s Confidential Information only to the extent reasonably necessary to perform such party’s obligations hereunder and/or to receive the full benefit of the rights granted to such party hereunder, and neither party shall disclose the other party’s Confidential Information, other than (i) to such party’s permanent employees and persons under such party’s control, including, but not limited to, third party independent contractors who need to know the other party’s Confidential Information to perform their duties to the other party; or (ii) as required by applicable law or court order.



4.2 Standard of Care. Each party shall hold the other party’s Confidential Information in strict confidence and use the same degree of care to prevent disclosure or unauthorized use of any of the other party’s Confidential Information as it would provide to protect its own valuable proprietary information, but in no event less than a reasonable degree of care.



4.3 Copies. Neither party shall make any copies of any of the other party’s Confidential Information, except as reasonably necessary to perform such party’s obligations hereunder and/or to receive the full benefit of the rights granted to such party hereunder.



4.4 Disclosure by Law. If a party is required by applicable law or by interrogatories, requests for information or documents, subpoena, or similar process to disclose any of the other party’s Confidential Information, unless the party is prohibited from doing so or there is a clear indication of illegal conduct or risk of harm, such party shall provide the other party with prompt written notice of such request or requirement so that the other party may seek an appropriate protective order and/or waive such party’s compliance with the provisions of this Agreement. If, in the absence of a protective order or the receipt of a waiver hereunder, a party nonetheless is compelled to disclose any of the other party’s Confidential Information or else stand liable for contempt or suffer other liability, such party may disclose only that portion of the other party’s Confidential Information which such party deems necessary to fulfill the applicable legal requirements.


5.0 TERM AND TERMINATION



5.1 Term. This Agreement and the term hereof shall commence on the Agreement Effective Date and shall continue thereafter for the period of months set forth in the initial Sales Order, unless and until terminated as specifically provided in this Agreement. Thereafter the Agreement shall automatically renew for successive periods equal to the initial term, unless a party gives the other party notice of intent not to renew sixty days prior to the expiration of the then current term. “Term” shall mean the initial term set forth in the Sales Order plus any renewal periods. Should Customer order subsequent Subscriptions pursuant to subsequent additional Sales Orders, the Term shall be extended by the number of months set forth in such subsequent Sales Order beginning on the Sales Order Effective Date of such Sales Order and thereafter shall renew as set forth above. Each Subscription shall renew independently, and the Term of this Agreement shall not expire or terminate as set forth herein until all Subscriptions have terminated.



5.2 Termination. In the event of a Default, the non-defaulting party may terminate this Agreement by providing written notice of termination to the defaulting party in accordance with Section 10.3 hereof. Such termination shall be effective immediately upon the receipt of such termination notice to the defaulting party.



5.3 Rights upon termination. All Platform licenses granted hereunder, and other services provided hereunder shall terminate upon termination of this Agreement. Termination of this Agreement shall not limit either party from pursuing other remedies available to it (except where a sole remedy is specified), including  injunctive  relief, nor shall such termination relieve Customer's obligation to pay all fees, expenses, and costs that have accrued or are otherwise owed by Customer to Brellium.



5.4 Survival . The provisions of Sections 1.3, 1.5, 4.1-4.5, 5.2-5.5, 6.0, 7.3, 8.2, -8.4 , 9.1-9.2, and 10.1-10.17 hereof shall survive the termination of this Agreement.



5.5 PHI and Confidential Information. Brellium shall provide, at Customer’s expense, commercially- reasonable assistance to Customer to permit Customer to retrieve Customer’s PHI and Customer’s Confidential Information from the Platform, and to do so within 30 days of its receipt of a written request for such Confidential Information and PHI provided that Customer has, at that time, paid all fees and charges due and outstanding at and resulting from termination. Customer shall destroy all copies of the Platform in its possession and shall certify to Brellium that it has destroyed all copies of the Platform within 30 days of termination of this Agreement.



6.0 INTELLECTUAL PROPERTY



All trademarks, service marks, patents, copyrights, trade secrets, know-how, and other proprietary rights in or related to the Platform, each Subscription, Documentation, Upgrades, customizations, and the provision of computer programming services provided pursuant to this Agreement, in any format, (the “Intellectual Property”) are and will remain the sole and exclusive property of Brellium, whether or not specifically recognized or perfected under applicable law. Brellium shall own all rights, title and interest, including all patent, trademark, copyright, trade secret, all intellectual property rights, in and to any improvements to the Platform, Documentation, Upgrades, and customizations, in any format, even when such changes result from Customer’s request. To the extent, if any, that ownership in the customizations does not automatically vest in Brellium by virtue of this Agreement or otherwise, Customer hereby transfers and assigns (and, if applicable, shall cause Customer’s affiliates to transfer and assign) to Brellium all rights, title, and interest in the customizations. Customer shall not assert any ownership rights in the Platform, Documentation, Upgrades, and customizations. Customer shall not take any action that could adversely affect Brellium’s rights to the Platform, Documentation, Upgrades, and customizations.



7.0 REPRESENTATIONS AND WARRANTIES



7.1 Warranty as to No Viruses or Malicious Codes. Brellium warrants and represents to Customer that the Platform does not contain any virus, worm, time bomb, trap door, disabling device, automatic restraint, trojan horse, cookies, contaminants, commands, or other codes designed to: (a) discontinue Customer’s effective use of the Platform; (b) erase, destroy, corrupt, or modify any data of Customer, Customer’s employees, agents, and/or patients, or any Authorized User, without the express written consent of Customer; or (c) bypass any internal or external software security measure to obtain access to any hardware or software of Customer or Customer’s employees, agents, and/or patients, without the express written consent of Customer.



7.2 Other Representations and Warranties. Brellium represents and warrants to Customer as follows:



7.2.1 That all of the services to be provided by Brellium hereunder will be performed in a professional manner by qualified personnel or qualified contractors; and



7.2.2 In providing the Platform and Upgrades and in performing services hereunder, Brellium and its employees, agents, and contractors shall comply with all applicable Federal, state, and local laws and regulations, including, without limitation, HIPAA (as defined below) and the rules and regulations promulgated thereunder, and all applicable United States import and export laws, statutes, and regulations, including, but not limited to, the Export Administration Regulations and International Traffic in Arms Regulations.



7.3 WARRANTY DISCLAIMER. THE PLATFORM IS PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS. BRELLIUM DOES NOT WARRANT THAT THE PLATFORM WILL BE UNINTERRUPTED OR ERROR-FREE OR THAT THE PLATFORM OR ANY SERVICES WILL MEET CUSTOMER'S REQUIREMENTS. EXCEPT AS OTHERWISE EXPRESSLY PROVIDED IN THIS AGREEMENT, BRELLIUM SPECIFICALLY DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, WITH RESPECT TO



THE PLATFORM, THE DOCUMENTATION, THE PERFORMANCE OF THE PLATFORM, THE RESULTS OBTAINED THEREFROM, AND/OR ANY MATERIALS OR SERVICES FURNISHED TO CUSTOMER UNDER THIS AGREEMENT, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OR MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT. THERE IS NO WARRANTY AGAINST INTERFERENCE WITH THE ENJOYMENT OF THE PLATFORM, DOCUMENTATION, OR SERVICES PROVIDED HEREUNDER.



CUSTOMER AGREES THAT BRELLIUM WILL NOT, UNDER ANY CIRCUMSTANCES, BE RESPONSIBLE OR LIABLE, DIRECTLY OR INDIRECTLY, FOR ANY DEVICES, GOODS, SERVICES, INFORMATION, RESOURCES AND/OR CONTENT AVAILABLE ON OR THROUGH ANY THIRD-PARTY SITES OR THIRD PARTY MANUFACTURERS, OR FOR ANY DAMAGES OR LOSSES CAUSED OR ALLEGED TO BE CAUSED BY OR IN CONNECTION WITH YOUR USE OR RELIANCE ON THE DEVICES, CONTENT, OR BUSINESS PRACTICES OF ANY THIRD-PARTY.



8.0 LIABILITY AND INDEMNIFICATION



8.1 Intellectual Property Infringement. Brellium agrees to and shall defend, indemnify, and hold harmless Customer and all of its directors, officers, employees, servants, agents, successors, and assigns from and against any claim, suit, demand, action, loss, cause of action, damages, cost, judgment, penalty, fine, liability and expense (including, without limitation, reasonable and actual attorneys’ fees and expenses) arising out of, resulting from, or alleging any claim that the Platform, Upgrades, customizations or any component thereof, infringes any patent or copyright, trade secret, trademark, trade dress, or any other intangible property or proprietary right of any third party. Customer shall give Brellium prompt written notice of such claims relating thereto. Brellium shall have sole control of the defense of such action and all related settlement negotiations, and Customer shall provide Brellium with all reasonably necessary assistance, information, and authority to perform the foregoing at Brellium’s sole expense.



If a temporary or final injunction is obtained against Customer’s use of the Platform or Upgrades, or any component thereof, by reason of infringement of any patent or copyright, trade secret, trademark, trade dress, or any other intangible property or proprietary right, Brellium, at its option and expense, shall either: (a) procure for Customer the right to continue to use of the Platform and Upgrades, and the component parts thereof; or (b) replace or modify for Customer the Platform and Upgrades, and the component parts thereof, so that it no longer infringes or they no longer infringe such patent or copyright, trade secret, trademark, trade dress, or any other intangible property or proprietary right, so long as the functions, performance, or other aspects of the Platform and Upgrades, and the component parts thereof, are not materially impaired and continue to conform to the applicable specifications and the performance requirements under this Agreement. If neither of the foregoing alternatives is commercially practicable, Brellium shall have the right to require Customer cease using the Platform, and Brellium shall cease charging Customer all applicable Usage Fees, and the license granted for such Platform shall terminate with no continuing obligation or liability of Brellium to Customer.



8.2 Indemnification by Customer. Customer agrees to and shall defend, indemnify, and hold harmless Brellium and all of its directors, officers, employees, servants, agents, successors, and assigns from and against any claim, suit, demand, action, loss, cause of action, damages, cost, judgment, penalty, fine, liability and expense (including, without limitation, reasonable attorneys’ fees and expenses) arising out of or resulting from: (i) Customer’s breach of any of the provisions under this Agreement; or (ii) Customer’s violation of any law, statute, ordinance, order, rule or regulation. Brellium shall provide Customer with (a) prompt written

notice of any such claim of which Brellium becomes aware; (b) all reasonable assistance and documentation in Brellium’s possession requested by Customer to defend such claim; and (c) control over the defense and settlement of such claim, provided that Customer shall not agree to any settlement or other disposition that imposes any obligation on Brellium.




8.4 LIMITATION OF LIABILITY. EXCEPT IN THE CASE OF GROSS NEGLIGENCE OR CRIMINAL ACTIVITY, BRELLIUM’S LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT IS LIMITED TO THE SUM OF THE FEES PAID BY CUSTOMER DURING THE ONE-YEAR PERIOD IMMEDIATELY PRECEDING THE DATE THE ALLEGED LIABILITY AROSE. IN NO EVENT WILL BRELLIUM HAVE ANY LIABILITY TO CUSTOMER FOR ANY CONSEQUENTIAL OR INCIDENTAL DAMAGES TO CUSTOMER, INCLUDING BUT NOT LIMITED TO LOST PROFITS, LOSS OF BUSINESS, INTERNAL COSTS OF INVESTIGATION AND/OR REMEDIATION, LOSS OF USE OR OF DATA, ANY UNAUTHORIZED ACCESS TO, ALTERATION, THEFT OR DESTRUCTION OF CUSTOMER’S COMPUTERS, COMPUTER SYSTEMS, DATA FILES, PROGRAMS OR INFORMATION, OR FOR ANY INDIRECT, SPECIAL OR CONSEQUENTIAL DAMAGES HOWEVER CAUSED AND UNDER ANY THEORY OF LIABILITY AND WHETHER OR NOT BRELLIUM HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE. THE PARTIES AGREE THAT THE TERMS IN THIS LIMITATION OF LIABILITY SECTION REPRESENT A REASONABLE ALLOCATION OF RISK BETWEEN THE PARTIES.


8.5 PAYER CLAWBACKS. In the event of any payer clawbacks arising from the services provided under this Agreement, the Customer shall first undertake all reasonable and necessary efforts to contest such clawbacks using all available means, with Brellium providing reasonable support as necessary. Following these efforts, Brellium commits to a diligent review process to ascertain the root cause of such clawbacks. If determined by Brellium, in our sole discretion, that the clawback resulted directly from an error or oversight in our services, Brellium agrees to bear the financial responsibility for such clawbacks, limited to an amount not exceeding the total contract value. This liability does not extend to clawbacks resulting from client-provided erroneous or incomplete requirements, specifications, or directions; changes in payer policies or regulations post-service provision; or errors in client or third-party provided patient data. This clause represents the sole remedy for errors attributable to Brellium's services and is in lieu of any other legal or equitable remedies. The Client is required to promptly notify Brellium of any potential or actual payer clawback claims, providing detailed documentation of the efforts made to contest the clawback and reasonable assistance in investigating and addressing such claims.



9.0 DATA



9.1 (a) Data Protection. Customer grants to Brellium an irrevocable, nonexclusive, perpetual, world-wide, royalty-free right and license to use all Data for any purpose permitted by law, including, without limitation (i) analysis and incorporation of the Data in databases, reports, comparative data sets, scores or scoring systems generated therefrom; and (ii) creation and distribution of works and derivative works based on the Data. Any Data that contains an element that by itself, or in combination with any other data elements allows re-identification of a person, is considered PHI under this Agreement. Brellium will perform the extraction of Data that is collected, stored or generated through the use of the Platform without charge and without impairing any operation or function of the System. Customer acknowledges that Brellium is reliant on Customer to give written approval and give direction as to the extent to which Brellium is entitled to access PHI. Consequently, Brellium will not be liable for any claim brought by a Patient arising from any action or omission by Brellium, to the extent that such action or omission resulted directly from Customer’s instructions. In accordance with applicable law, Customer shall be solely responsible for obtaining any and all consents and authorizations necessary to use, disclose and process PHI from Patients and any other persons whose PHI is to be provided under this Agreement.



  1. EHR Access. During the Term, Customer shall ensure that Brellium has access to Customer’s EHR/PM system so that Brellium can perform set-up, trouble shooting, reporting, and other administrative tasks. The Customer is responsible for paying any fees levied by the EHR/PM system, including but not limited to, per-session note fees and implementation/integration fees.



10.0  GENERAL



10.1 No Partnership Between the Parties. This Agreement is entered into by Brellium and Customer with the mutual understanding that they are unrelated parties. Nothing in this Agreement is intended by the parties nor shall be construed by Brellium, Customer, or any other party to create a partnership, joint venture, or agency relationship between them. Rather, in performing the services to be rendered hereunder, Brellium is an independent contractor of Customer and performs similar services for other parties. Each party shall be solely responsible for payment of all compensation owed to its employees, as well as employment related taxes.



10.2 Governing Law and Venue; Arbitration . This Agreement shall be deemed to have been entered into and to be performed in the State of Delaware, and shall be governed, construed, and enforced in accordance with the laws of the State of Delaware. Excepting non-payment of undisputed invoiced amounts due to Brellium, in the event of a dispute between the parties, they agree to negotiate in good faith for a period of thirty (30) days in order to resolve the dispute. In the event that any dispute, claim, question or disagreement arising from or related to this Agreement or a breach of this Agreement cannot be settled by the parties’ good faith negotiations, either party may, by written notice to the other, demand arbitration of the matter. The arbitration will be conducted in accordance with the Commercial Arbitration Rules (“Rules”) of the American Arbitration Association (“ AAA”), except to the extent that the AAA Rules conflict with or are modified by the provisions of this Section, in which event the provisions of this Section will control. The parties will attempt to select a single arbitrator by mutual agreement. If they are unable to do so, the parties may request the AAA to select a single arbitrator that is a retired judge. The decision of the arbitrator will be binding and conclusive. Judgment upon any award rendered by the arbitrator may be entered in any court in Delaware having jurisdiction. Any such arbitration will be held in a reasonably convenient location acceptable to both parties in Delaware. The arbitrator may apportion some of a party’s legal fees to the other party based on the extent to which the party prevailed and the extent to which each party complied with the arbitrator’s guidelines for conduct of the arbitration. THE PARTIES HERETO HEREBY IRREVOCABLY WAIVE ANY AND ALL RIGHT TO TRIAL BY JURY IN RESPECT TO ANY ACTION, SUIT, PROCEEDING, CLAIM OR COUNTERCLAIM BROUGHT BY OR UNDER THIS AGREEMENT OR ITS INTERPRETATION. Provided, however, Brellium reserves all rights to pursue injunctive relief in a court of law outside the arbitration process set forth above in the event of a claim relating to use of the Platform that is in violation of the US Copyright Act or for use by Customer, its representatives or assigns of the Platform outside the scope permitted under Section 1 hereof.



10.3 Notice. Any and all notices, designations, consents, offers, acceptances, or other communications required herein shall be given to either party, in writing, by receipted personal delivery or deposited in certified mail addressed to the addressee as set forth on the signature page hereto for each respective party (unless notice of a change of address is furnished by a party to the other party hereto) and to the attention of the CEO and with return receipt requested, effective upon receipt.



10.4 Waivers. No failure or delay on the part of a party to this Agreement in exercising any right, power, or privilege hereunder shall operate as a waiver, thereof, nor shall a single or partial exercise of any right, power, or privilege preclude any other further exercise of any other right, power, or privilege. In no event shall the making by Customer of any payment to Brellium constitute or be construed as a waiver by Customer of any breach of this Agreement, or any default which may then exist, on the part of Brellium, and the making of any such payment by Customer while any such breach or default shall exist, shall in no way impair or prejudice any right or remedy available to Customer in respect to such breach or default.

10.5 Disregarding Titles . The titles of the sections in this Agreement are inserted for the convenience of reference only and shall be disregarded when construing or interpreting any of the provisions of this Agreement.



10.6 Counterparts; Electronic Signature. This Agreement may be executed in any number of counterparts and by either party hereto on separate counterparts, each of which, when so executed and delivered, shall be an original, but all such counterparts shall together constitute one and the same instrument. One or more counterparts of this Agreement may be delivered by facsimile or electronically, with the intention that delivery by such means shall have the same effect as delivery of an original counterpart thereof. The parties intend that delivery of a counter-part of this Agreement electronically shall constitute a binding original of the Agreement.



10.7 Amendment. Modifications, amendments, or waivers of any provision of this Agreement may be made only by the written mutual consent of both of the parties hereto.



10.8 Assignment. Any license granted hereunder by Brellium is solely to Customer and none of the rights granted hereunder may be assigned, sold, sublicensed, or otherwise transferred by Customer or by operation of law without the prior written consent of Brellium, which may not be unreasonably withheld. Brellium may assign its rights and delegate its duties hereunder at any time without the consent of Customer.



10.9 Successors and Assigns. This Agreement shall be binding upon and inure to the benefit of each of the successors and permitted assigns of the parties hereto.



10.10 Export/Import Administration. Customer represents and warrants that if Customer assigns or transfers the Platform pursuant to the terms of this Agreement to any foreign national, or person or entity outside of, or for use outside of, the United States of America, Customer agrees hereby to comply fully with all applicable export / import laws and regulations of the United States of America or other countries.



10.11 Completeness of the Agreement. This Agreement, the attached Exhibits and Sales Orders, and the additional and supplementary documents incorporated herein by specific reference contain all the terms and conditions agreed upon by Brellium and Customer and no other agreements, oral or otherwise, regarding the subject matter of this Agreement or any part thereof shall have any validity or bind either Brellium or Customer.



10.12 Severability . If any provision of this Agreement is declared by any court having competent jurisdiction to be invalid, such provision shall be deemed deleted and shall not affect the validity of the remainder of this Agreement, which shall continue in full force and effect. If the removal of such provision would result in the illegality and/or unenforceability of this Agreement, this Agreement shall terminate as of the date in which the provision was declared invalid.



10.13 No Third-Party Beneficiaries. There are no intended third-party beneficiaries of this Agreement and the undersigned are the only parties to this Agreement.



10.14 Order of Precedence. The Agreement shall be comprised solely of the following documents. In the event of an inconsistency or conflict in terms, precedence shall be given in the order indicated:



  1. These Terms and Conditions;



  1. Exhibits;

  2. Sales Order(s); and



  1. Any Amendments to the Agreement in reverse chronological order.



10.15 Non-Solicitation. Customer and its Providers and Authorized Users shall not directly or indirectly solicit for or offer employment or otherwise induce employment of any employee or contractor of Brellium that Customer or an Affiliate became aware of as a result of the performance of this Agreement, or communicate in any manner with such employees about offering employment opportunities with any third party, during the Term and for a period of two (2) years after the expiration or earlier termination of this Agreement. Notwithstanding the foregoing, Customer and Affiliates are not prohibited from engaging in any general advertising and hiring any employee of Brellium who responds to such general solicitations, so long as the solicitation is indirect and general in nature and does not specifically and solely target any of Brellium’s employees.



10.16 Force Majeure. Brellium shall have no liability to Customer under this Agreement if it is prevented from or delayed in performing its obligations under this Agreement, or from carrying on its business, by acts, events, omissions or accidents beyond its reasonable control, including, without limitation, strikes, lock- outs or other industrial disputes (whether involving the workforce of Brellium or any other party), failure of a utility service or transport or telecommunications network, act of God, war, riot, civil commotion, malicious damage, compliance with any law or governmental order, rule, regulation or direction, accident, breakdown of plant or machinery, fire, flood, storm or default of suppliers or sub-contractors, provided that Customer is notified of such an event and its expected duration.



11.0  CERTIFICATION OF AUTHORITY TO SIGN THE AGREEMENT



The persons signing this Agreement on behalf of the parties hereto certify by said signatures that they are duly authorized to sign this Agreement on behalf of said parties and that this Agreement has been authorized by said parties.



12.0  DEFINITIONS



The following definitions shall apply to this Agreement, including all schedules, exhibits, and Sales Orders:



12.1 Authorized Patient. “Authorized Patient” means a Patient/Consumer who registers to use the Platform, accepts the Patient Terms of Use, has a direct, patient relationship with Customer, and has created a username and password with or received such from Customer to access the Platform.



12.2 Authorized Users. “Authorized Users” means the number of Customer’s Authorized Users that may access the Platform pursuant to a Subscription, as specified in the Sales Order.



12.3 Business Associate Agreement. “Business Associate Agreement” means the agreement located at https://brellium.com/baa containing provisions required by HIPAA to protect confidentiality of the Protected Health Information of Customer’s patients. By default, all covered entities that use Brellium in trial or in production are automatically covered under the Business Associate Agreement.



12.4 Confidential Information. “Confidential Information” means any information relating to, or disclosed in the course of, this Agreement, which is designated as ‘confidential’ or ‘proprietary’ or some similar designation or information which is or should be reasonably understood to be confidential or proprietary to the disclosing party. Confidential Information includes but is not limited to the Platform, Brellium software, the Documentation, the terms and pricing under this Agreement, trade secrets, business strategies, specifications, technical data, and all Sales Orders and Statements of Work. Confidential Information shall not include information (a) already known to either party at the time of receipt thereof from the other; (b) that was readily available to the general public at the time of receipt thereof from the other; (c) that subsequently becomes known to the general public through no fault or omission on the part of the party receiving such information;



  1. that is subsequently disclosed by a third party which has a bona fide and legal right to make such disclosure; or (e) that is required to be disclosed by a court of competent jurisdiction or other governmental authority or pursuant to applicable law, provided that the receiving party shall give prompt notice to the disclosing party prior to any such disclosure and reasonably assist the disclosing party in seeking a protective order.

12.5 Data.  “Data” means all (a) data that is collected, stored, or generated through the use of the Platform, and (b) Brellium requested data that is not collected, stored, nor generated through the use of any Platform functionality, in each case requested by Brellium and subsequently transmitted to or retrieved by Brellium for storage, provided that Data does not include data that is Protected Health Information or Customer’s Confidential Information.



12.6 Default. “Default” means (A) a party’s material breach of any of its obligations hereunder which is not cured within thirty (30) days after receiving written notice of such default from the other party pursuant to Section 10.3 herein; (B) Customer’s failure to pay any undisputed fee within twenty (20) days of the due date; (C) the dissolution of a party; (D) a party has a receiver, trustee, custodian, or similar agent appointed to or take possession of any of its property or business; (E) a party ceases to operate business in the ordinary course for more than ten (10) consecutive days; (F) a party files or has filed against it a petition (or other document) under any bankruptcy law or similar law that has not been dismissed within ninety (90) calendar days after the filing of such petition (or document); (G) a party undergoes any dissolution, liquidation, composition, financial reorganization, or recapitalization with creditors and such action impairs the party’s ability to perform under this Agreement; or (H) a party makes a general assignment or trust mortgage for the benefit of its creditors



12.7 Documentation. “ Documentation” means the user manual(s) for use of the Platform, whether provided in hard copy or electronically.



12.8 Error. "Error" means a reproducible failure of the Platform to perform in accordance with the Documentation.



12.10 Implementation and Training Services. “Implementation and Training Services” have the meaning described in Section 2.2.



12.11 Patient Terms of Use. “Patient Terms of Use” means the terms and conditions each Authorized Patient shall enter into directly with Brellium through the Platform in the form prescribed by Brellium as amended from time to time.



12.12 Personally Identifiable Information. “Personally Identifiable Information” or “PII” means data which relate to an Authorized Patient who can be identified from those data, or from those data and other information which is in the possession of or is likely to come into the possession of Brellium.



12.13 Platform . “Platform” means the executable version of Brellium’s software as a service platform with the specific functional features described in the Sales Order attached hereto and any Upgrades.



12.14 Professional Services. “Professional Services” have the meaning described in Section 2.2.



12.15 Protected Health Information. “Protected Health Information” or “PHI” shall have the meaning ascribed to it in Title II, Subtitle F of the Health Insurance Portability and Accountability Act ("HIPAA").



12.16 Providers. “Providers” means the number of Customer’s Physicians or Mid-Level Providers that may access the Platform pursuant to a Subscription, as specified in the Sales Order.



12.17 Sales Order. “Sales Order” means an order form provided by Brellium to Customer pursuant to which Customer orders Services or a Subscription.



12.18 Statement of Work. “Statement of Work” means a written document created and signed by authorized representatives of each party after execution of the Agreement which may include additional customization of the Platform pursuant to a Subscription beyond the Subscription identified in the applicable Sales Order.



12.19 Subscription(s) “Subscription” has the meaning set forth in Section 1.1 above.



12.20 Subscription Fee and Usage Fee. “Subscription Fee” and   “Usage Fee” are terms used interchangeably and mean the fees paid by Customer to license via software as a service the Platform as defined herein and in applicable Sales Order(s). Payment of Subscription  Fees  also  entitles  Customer  to  receive  Support Services for each such Subscription.



12.21 Support  Services. “Support  Services”  means  the  Support

services described in Exhibit A.



12.22 Upgrades. “Upgrades”  means,  solely with respect  to the

executable version of the Platform, any subsequent error

corrections, bug fixes, enhanced and improved versions and all

modifications and improvements of the current functionality of such Platform or prior Upgrade that work solely within the functionality of the Platform as may be created and made available from time to time by Brellium in its discretion.



13.0  MARKETING AND PROMOTIONAL USE

13.1 The Customer hereby grants Brellium (the "Vendor") the non-exclusive right to use the Customer's name, logo, and relevant project details in the Vendor's marketing and promotional materials. This includes, but is not limited to, the Vendor's website, case studies, presentations, promotional videos, and other marketing collateral.

13.2 The Vendor agrees to ensure that any information displayed or disclosed shall be accurate and in no way misleading regarding the nature of the relationship between the Customer and the Vendor or the services rendered.

13.3 The Customer may, upon written request to the Vendor, review and approve any specific use of its name, logo, or project details, which approval shall not be unreasonably withheld. If the Customer does not respond within fourteen (14) days of receiving such request, the use shall be deemed approved.

13.4 The Vendor acknowledges and agrees that all rights in and to the Customer's name and logo are the exclusive property of the Customer, and nothing in this clause shall be construed as a transfer or assignment of any rights to the Vendor, except for the limited rights expressly granted herein.

13.5 The Customer reserves the right to request the removal or modification of any marketing or promotional material that they believe is inaccurate, misleading, or otherwise objectionable. Upon such request, the Vendor shall promptly comply and make the necessary amendments.

13.6 The Customer agrees to cooperate with Brellium in the creation of a case study detailing their use and experience of Brellium's services/products. This cooperation shall commence no later than three (3) months following the initiation of this contract and continue until completion of the case study. The Customer is required to provide relevant information, feedback, and data as reasonably requested by Brellium. The format, content, and scope of the case study will be determined by Brellium, in consultation with the Customer, who agrees to provide honest and accurate information. The Customer grants Brellium the right to use the case study in its marketing and promotional materials, respecting any confidentiality and proprietary interests as outlined in this contract. Any sensitive information shared during the case study creation will be kept confidential by both parties, except as necessary for the case study's development and use. Brellium will provide a draft of the case study for the Customer's review and approval before public use or dissemination, with the understanding that the Customer will not unreasonably withhold or delay such approval.


EXHIBIT A SUPPORT SERVICES AGREEMENT

Support Services Performance Standards

1.0 SCOPE OF SUPPORT SERVICES



Brellium shall provide the Support Services as described in this Exhibit with respect to Subscription(s) throughout the term of the Agreement so long as Customer has paid the Subscription Fee. Capitalized terms not elsewhere defined in this Exhibit shall have the meanings ascribed to them in the Agreement.



During the term of this Agreement, Brellium agrees to provide Customer with a staffed help desk during normal business hours (Monday-Friday, 8:00 AM

– 5:00 PM ET; excluding holidays). Customer agrees to appoint up to three



(3) Authorized Support Contacts who are authorized to contact Brellium Support Team directly on behalf of Customer. Support is available to address Errors Customer is experiencing. Problems that are reported that are not Errors that result in Customer approved time being spent by Brellium are billable at standard Consulting Fee rates.



2.0 REMEDIAL ERROR CORRECTIONS



Customer shall promptly notify Brellium of any Errors in the Platform or the Documentation. Brellium shall use its best efforts to respond to and correct all Errors within the timeframes set forth below. Brellium will track Customer's reported Errors by date, description of Error, and status (pending, In-progress, and closed). Customer will be granted access to web-based solution in use by Brellium to view and follow real-time issues tracking. This will include, but is not limited to reported Errors, descriptions, current status, and comments and/or notes.



3.0 UPGRADES



Brellium will regularly provide Upgrades to keep it compatible with updates and changes to federal standard operating environments and to correct any material defects. Brellium will make modifications, bug fixes, updates, and new versions of the Platform released by Brellium and available to Customer at no additional charge other than the stated Subscription Fee. This does not include possible implementation fees.



4.0 CUSTOMIZATIONS



Any customizations (each a “Customization”) requested by Customer and agreed to by Brellium, and any support or modifications thereof, will be charged at the Professional Services rates or in accordance with the terms of a specific written Sales Order or Statement of Work provided by Brellium and accepted by Customer. Testing of Customizations prior to implementation as a part of the Platform shall be the responsibility of Customer.



5.0 PERFORMANCE STANDARDS



5.1 Definitions.



"Fix" means the repair or replacement of object or executable code versions of the Platform to remedy an Error.



"Telephone Support" means telephone or email technical support


assistance provided by Brellium to the Authorized Support Contact concerning the installation and use of the then-current release of the Platform.



"Workaround" means a change in the procedures followed or data supplied by Customer to avoid an Error without substantially impairing use of the Platform.



5.2 Error Correction Standards.



During the Term, Brellium will exercise commercially reasonable efforts to Fix a reported Error (as defined in the Support Services Severity Matrix below) for the current release of the Platform in accordance with the severity level reasonably assigned to such Error by Brellium. The severity level of the Error will be determined by Brellium as soon as practicable under the circumstances, with the goal being one (1) hour of the report of a critical, high impact incident via phone. Customer is responsible for providing sufficient information to allow Brellium to readily reproduce all reported Errors. Customer must minimally include the following information: date the error occurred, the users(s) and names of users impacted, application screen name, specific error experienced (what is happening), expected screen functionality, and specific replication steps. Additional information may also be required based on the type of error. The parties understand that certain Errors manifest themselves in an intermittent and/or seemingly random fashion, cannot reasonably be discovered by extensive testing, and must be analyzed by developers to determine the cause. If Brellium believes that a problem reported by Customer may not be due to an Error in the Platform, Brellium will so notify Customer.



5.3 Compatibility; Prior Version Support.



Brellium shall ensure that each Upgrade is compatible with each preceding version of the Platform, including Customizations.



5.4 Exclusions.



Brellium will have no obligation under this Agreement to support: (i) altered or damaged Platform components or any portion of a Platform component incorporated with or into other Platform applications; (ii) Errors, bugs, or operational problems in the Platform caused by Customer’s negligence, abuse or misapplication of the Platform, or arising out of other causes beyond the control of Brellium; or (iii) Errors, bugs, or operational problems in the Platform resulting from the combination of the Platform with such other programming utilized by Customer which is not compatible with the Platform. Brellium shall not be responsible for Customer’s computer network or for any connectivity or other related issues that prevent Customer from gaining access to the Platform.



THESE TERMS AND CONDITIONS DEFINE A SERVICE ARRANGEMENT AND NOT A PRODUCT WARRANTY. BRELLIUM DOES NOT WARRANT THAT THE PLATFORM WILL BE ERROR-FREE. ALL PRODUCTS AND MATERIALS RELATED THERETO ARE SUBJECT EXCLUSIVELY TO THE WARRANTIES SET FORTH IN THE MASTER SERVICES AGREEMENT BETWEEN THE PARTIES. THESE TERMS AND CONDITIONS DO NOT CHANGE OR SUPERSEDE ANY PROVISION OF ANY SUCH AGREEMENT.













BRELLIUM INC. -- CONFIDENTIAL AND PROPRIETARY -- UNAUTHORIZED REPRODUCTION OR DISTRIBUTION PROHIBITED







End of Terms of Use



Revision History



June 1, 2023

© 2023 Brellium Inc. all rights reserved

© 2023 Brellium Inc. all rights reserved

© 2023 Brellium Inc. all rights reserved