Terms and Conditions

CERTAIN DEFINITIONS

1. “API Kit” means the contents of any file, application programming interface, program, or other media provided or made available by Engage to Subscriber under this Agreement, including its related Documentation. 
2. “Confidential Information” means any proprietary or non-public information disclosed by one Party (“Disclosing Party”) to the other Party (“Receiving Party”) in written, graphic, machine readable, oral, or other tangible or non-tangible form, including any information that should reasonably be considered proprietary or confidential given its nature or the context of its disclosure.
3. “Content” means general medical or healthcare-related information, videos, content, or other materials provided or otherwise made available by Engage to Subscriber and its Recipients.
4. “Documentation” means any user documentation, in all forms (e.g., user manuals, on-line help files) provided by Engage which relate to the Services.
5. “Engage Platform” means Engage’s proprietary MOBIT™ web-based platform to be provided under this Agreement pursuant to an Order Form.
6. “Engage Materials” means, collectively, the API Kit, Content, and Documentation.
7. “FTP Server” means a file transfer protocol server to be accessed by Subscriber and Engage for the transmission, uploading, provision, importing, exporting, downloading, and/or accessing of Subscriber Data.
8. “Order Form” means the ordering document referencing this Agreement executed by the Parties which specifies the Services to be provided under this Agreement. Each Order Form is governed by, and subject to, the terms of this Agreement. Once executed by both Parties, each Order Form will be a unique agreement that incorporates the terms of this Agreement and stands alone with respect to all other Order Forms.  
9. “Recipients” means any individual, entity, or other third party who receives or may receive medical or other healthcare-related services from Subscriber and have agreed to Engage’s Recipient Terms of Service (available at http://www.engagetg.com/terms/).
10. “Recipient Services” means, collectively, the provision of (i) Content to Recipients through the Subscriber miPath™ Portal, and (ii) text messaging notifications alerting Recipients to Content that the Recipients may access on their mobile phone by accessing the Subscriber miPath™ Portal.
11. “Scope Limitations” means the limitations on Subscriber’s use of the Subscription Services specified in the Order Form or as otherwise specified in the Pricing Package attachment to the Order Form.
12. “Services” means, collectively, (i) the Subscription Services, (ii) White Labelling, to the extent specified in an Order Form, and (iii) the API Kit or FTP Server, as applicable. 
13. “Subscriber Data” means any data, content, or information identifying or associated with a Recipient that is uploaded, transmitted, submitted, provided, or otherwise made available to Engage, whether through the API Kit, an FTP Server, or Third-Party Technology, by or on behalf of Subscriber in connection with the Services.
14. “Subscriber Portal” means Engage’s miPath™ Internet web portal to be made available by Engage under this Agreement pursuant to an Order Form designated for Recipients to access Content. 
15. “Subscription Services” means, collectively, the Engage Platform, Subscriber miPath™ Portal, and Recipient Services in each case to be provided under this Agreement pursuant to an Order Form (at the tier of Subscription Services specified therein and described in the Pricing Package attachment to the Order Form).
16. “Usage Data” means any performance, analytical, or usage information relating to Subscriber’s and its Users’ use of the Engage Platform or Recipients’ access to and use of Content and the Subscriber miPath™ Portal, in each case, which is generated, derived or otherwise collected by the Engage Platform, Subscriber miPath™ Portal, or API Kit and is in aggregated or deidentified form only.
17. “User(s)” means any employee or contractor of Subscriber that is authorized by Subscriber to access and use the Engage Platform, the Engage Materials, and the FTP Server on its behalf and has created an account in accordance with Section 2.4.
18. “White Label” means modifying the front-end branding of the Content and/or Subscriber miPath™ Portal such that it only includes Subscriber Branding when transmitted or otherwise made available by Engage as part of the Recipient Services.

1. Subscriber Portal; Recipient Services. Subject to the terms and conditions of this Agreement, during the term of the applicable Order Form Engage will use commercially reasonable efforts to (a) make the Subscriber Portal available 24 hours a day, 7 days a week for access by Recipients  (except for scheduled downtime, emergency maintenance, and any unavailability caused by circumstances beyond Engage’s reasonable control, including Force Majeure Events), and (b) subject to the terms of the Recipient Terms of Service (available at http://www.engagetg.com/terms/), provide the Recipient Services to such Recipients.
2. Engage Platform. Subject to the terms and conditions of this Agreement, Engage grants to Subscriber a limited, non-exclusive, non-transferable (except as permitted in Section 11.2), non-sublicensable right during the term of the applicable Order Form to allow its Users to access and use the Engage Platform, the FTP Server or API Kit, as applicable, and the other Engage Materials, in each case solely for Subscriber’s internal business operations in connection with the Recipient Services. Subscriber’s and its Users’ right to use the Engage Platform is subject to, and contingent upon compliance with, the Scope Limitations. Subscriber hereby acknowledges and agrees that it will be solely responsible for obtaining and maintaining any equipment, software, internet connectivity, networking infrastructure, ancillary services, and other tangible embodiments of technology not provided by Engage that are needed to connect to, access, or otherwise use the Engage Platform, Engage Materials, or FTP Server, including as set forth in the related Documentation. Subscriber will be solely responsible and liable for implementing, securing, and maintaining such technology, and Engage will have no liability to Subscriber for any failure or non-fulfillment by Subscriber to do so.
3. Use of the Documentation. Subject to the terms and conditions of this Agreement, Engage grants to Subscriber a limited, non-exclusive, non-transferable (except as permitted in Section 11.2) license, without right of sublicense, during the term of this Agreement, to reproduce, without modification, and internally use, and allow its Users to internally use, a reasonable number of copies of the Documentation solely in connection with its and their use of the Engage Platform, FTP Server, and API Kit in accordance with this Agreement.
4. Users. To access the Engage Platform, Subscriber and its Users will be required to register for an account on the Engage Platform. When registering for an account, Subscriber and its Users will be required to provide Engage with certain registration information (including, the Subscriber’s and each User’s name, email address, phone number, account password, and other contact information). Subscriber acknowledges and agrees that such registration information provided to Engage must be accurate, complete, and not misleading, and that Subscriber will, and will require that its Users, keep such information accurate and up to date at all times. Each account created by a User is personal to that specific individual and may not be transferred, sold or otherwise assigned to or shared with any other individual or entity. Subscriber is solely responsible for maintaining the confidentiality of its account and password, and Subscriber accepts responsibility for all activities that occur under its and its Users’ usernames, passwords and accounts. Subscriber will immediately notify Engage upon becoming aware, or having a reasonable basis to believe, that its or its Users’ accounts are no longer secure. Any breach of this Agreement by any User is deemed a breach by Subscriber.
5. Use Restrictions. Except as otherwise explicitly provided in this Agreement or as may be expressly permitted by applicable law, Subscriber will not, and will not permit or authorize third parties or its Users to:  rent, lease, or otherwise permit third parties to use or access the Services or Engage Materials;  use the Services to provide services to third parties (e.g., as a service bureau);  use the Services for any benchmarking activity or in connection with the development of any competitive product;  circumvent or disable any security or other technological features or measures of the Services; (e) modify, copy, or create derivative works of the Services or Engage Materials (or any element thereof); (f) remove, alter, or obscure any proprietary notices from the Services or Engage Materials (or any element thereof); or (g) transmit or upload any viruses, Trojan Horses, backdoors, malware, or any other forms of harmful or malicious materials to or through the Services. Engage may immediately suspend access to or use of the Services by Subscriber and its Users upon notice to Subscriber for any breach of this Section 1.1.  
6. Compliance with Laws. Subscriber will, and will require that its Users, use the Services and Engage Materials in compliance with all applicable laws and regulations.
7. Protection against Unauthorized Use. Subscriber will, and will require that its Users, use reasonable efforts to prevent any unauthorized access to and use of the Services and Engage Materials in Subscriber’s or any User’s possession or control and will immediately notify Engage in writing of any unauthorized access or use that comes to Subscriber’s attention. If there is unauthorized access or use by anyone who obtained access to the Services or Engage Materials directly or indirectly through Subscriber or its Users, Subscriber will take all steps reasonably necessary to terminate the unauthorized access and use. Subscriber will cooperate and assist with any actions taken by Engage to prevent or terminate unauthorized access to or use of the Services or Engage Materials.
8. Feedback. If Subscriber or any of its Users provides any feedback to Engage concerning the functionality and performance of the Services (including identifying potential errors and improvements), Subscriber hereby grants Engage an unrestricted, perpetual, irrevocable, non-exclusive, fully paid-up, royalty-free license to exploit such feedback in any manner and for any purpose, including to improve the Services and to create other products and services. Engage will have no obligation to provide Subscriber or its Users with attribution for any such feedback.
9. Usage Data. Engage, the API Kit, the Subscriber miPath™ Portal, and the Engage Platform collect, generate, and derive Usage Data for Engage’s business purposes, including to: (a) track usage for billing purposes; (b) monitor the performance, security, integrity, availability, and stability of the Engage Platform, Subscriber miPath™ Portal, and API Kit; (c) prevent or address technical issues with the Engage Platform, Subscriber miPath™ Portal, and API Kit; and (d) improve the Engage Platform, Subscriber miPath™ Portal, and API Kit and develop derivative and new products and services. Subscriber will not, and will require that its Users do not, interfere with the collection of Usage Data. As between the Parties, Engage owns all right, title, and interest, including all intellectual property rights in and to, the Usage Data, the know-how and analytical results generated in the processing and use of Usage Data, and any and all new products, services, and developments, modifications, customizations, or improvements to the Engage Platform, API Kit or any other Services made based on the Usage Data. Engage will not disclose Usage Data externally, including in benchmarks or reports, unless such Usage Data has been (a) de-identified so that it does not individually identify Subscriber, its Users, or Recipients, or any other person and (b) aggregated with usage data from other users of the Services.
10. Security. Engage will maintain an industry-standard security program that is designed to prevent unauthorized access to or use of Subscriber Data. For purposes of this Agreement, Confidential Information of Subscriber does not include Subscriber Data.
11. No Support. Engage is under no obligation to provide support or maintenance services for the Services to Subscriber, Recipients or Users. To the extent Subscriber or its Users experience any issues relating to the Services, please contact Engage at info@engagetg.com or 208-902-9030.
12. White Labelling; Subscriber Branding License. The Order Form may specify that the Content and/or Subscriber Portal be White Labelled. Subject to the terms and conditions of this Agreement, Subscriber grants to Engage, during the term of this Agreement, a non-exclusive, non-transferable license to use, store, reproduce and display on the Content and Subscriber Portal Subscriber’s trademarks, service marks, logos, company name, domain names, and other branding elements of Subscriber, including any audio, video, text, or photographs owned, licensed, or otherwise authorized to be used by Subscriber (collective, “Subscriber Branding”) solely in connection with such White Labelling of the Content and Subscriber miPath™ Portal. 
13. Reservation of Rights. Engage grants to Subscriber a limited right, as set forth in Section 2.2 and Section 2.3, to use the Engage Platform, the FTP Server or API Kit, as applicable, and the other Engage Materials. Subscriber will not have any rights to the Engage Platform, API Kit or any other Engage Materials, FTP Server, Documentation, or Usage Data, or any other Services, except as expressly granted in this Agreement. As between the Parties, Engage reserves to itself all rights to the Services, Engage Materials, and Usage Data not expressly granted to Subscriber in accordance with this Agreement (excluding any Subscriber Branding included on the Content and Subscriber miPath™ Portal).
14. Modifications to the Service. Engage reserves the right to modify or discontinue all or any part of Services at any time (including by limiting or discontinuing certain features or functionality of the Services), temporarily or permanently, without notifying Subscriber (except that Engage will provide Subscriber with thirty (30) days’ prior notice in the event of any deprecation of any material feature or functionality of the Service). Engage will have no liability for any change or modification to the Services or any suspension or termination of access to or use of the Services as a result thereof. Notwithstanding the foregoing, any such change or modification will apply on a going-forward basis with respect to any Order Forms entered into or renewed after Engage’s implementation thereof.

1. Integration. The Subscription Services require that Engage has ongoing access to accurate, complete, and up to date Subscriber Data, and certain rights to access and use the Subscriber Data. Subscriber will provide to Engage, or cause the provision to Engage of, access to Subscriber Data via the method set forth in the applicable Order Form. 
   
   1. API Kit License. To the extent API Kit is selected as the integration method in the applicable Order Form and subject to the terms and conditions of this Agreement, Engage hereby grants Subscriber, during the term of the applicable Order Form, a non-exclusive, royalty-free, fully paid-up, non-sublicensable, non-transferable (except as permitted in Section 11.2) license to use the API Kit in accordance with the Documentation solely for purposes of integrating and making the Subscriber Data available to Engage. Subscriber will update the Subscriber Data accessible and/or made available through the API Kit on a regular basis and, in any event, immediately after any call, request, or submission initiated by Engage via the API Kit.
   2. FTP Server License. To the extent FTP Server is selected as the integration method in the applicable Order Form and subject to the terms and conditions of this Agreement, Engage hereby grants Subscriber, during the term of the applicable Order Form, a non-exclusive, royalty-free, fully paid-up, non-sublicensable, non-transferable (except as permitted in Section 11.2) license to access and use the FTP Server solely for purposes of making the Subscriber Data available to Engage. Subscriber will update the Subscriber Data accessible and/or made available on the FTP Server on a regular basis and, in any event, promptly after Engage’s reasonable written request.
   3. Third-Party Technology. To the extent Third-Party Technology is selected as the integration method in the applicable Order Form, Subscriber Data will be made available to Engage by Engage’s integration of its information technology systems with certain software or other technology used by Subscriber that are provided to Subscriber by third parties (“Third-Party Technology”), provided that, as of the commencement of such Order Form, Subscriber has obtained all necessary and sufficient rights, permissions, (sub)licenses, and authority from such third parties which are required for Engage to use, access, and otherwise exploit such Third-Party Technology solely for purposes of integrating Engage’s information technology systems with such Third-Party Technology in order to access and transmit to Engage’s information technology systems the Subscriber Data stored, retained, collected, or uploaded thereon.  
2. Data License. Subject to the terms and conditions of this Agreement, Subscriber hereby grants Engage, during the term of this Agreement, a worldwide, non-exclusive, royalty-free, fully paid-up, irrevocable, sublicensable, non-transferable (except as permitted in Section 11.2) license to collect, use, store, modify, reproduce, transmit, and otherwise process Subscriber Data solely for purposes of providing the Subscription Services. 

1. Fees and Payment Terms. Subscriber will pay Engage the fees and any other amounts owing under this Agreement, plus any applicable sales, use, excise, or other taxes, as specified in the applicable Order Form. Unless otherwise specified in the Order Form, Subscriber will pay all amounts due within 30 days of the date of the applicable invoice. Any amount not paid when due will be subject to finance charges equal to 1.8% of the unpaid balance per month or the highest rate permitted by applicable usury law, whichever is less, determined and compounded daily from the date due until the date paid. Subscriber will reimburse any costs or expenses (including, but not limited to, reasonable attorneys’ fees) incurred by Engage to collect any amount that is not paid when due. Amounts due from Subscriber under this Agreement may not be withheld or offset by Subscriber against amounts due to Subscriber for any reason. All amounts payable under this Agreement are denominated in United States dollars, and Subscriber will pay all such amounts in United States dollars. Upon at least 45 days’ prior written notice to Subscriber, Engage shall have the right to increase fees for Services specified on an Order Form by the greater of (a) 6% of the applicable existing fees; or (b) the percentage increase from the preceding 12 months in the Consumer Price Index or, if this index ceases to be published, any other consumer price index published in substitution. Increases shall apply to all Order Forms executed or renewed after the effective date of the increase. 
2. Engage Membership Subscription Plans. Engage currently offers up to three (3) membership plan options for Subscriber. Subscriber chooses their desired plan level (i.e., Silver, Gold, or Platinum). Each Membership Subscription selected (monthly or annual) is practice location-specific which means the Subscriber must purchase an individual membership package for every practice location at which they intend to use the Engage Services.
3. Taxes. Other than net income taxes imposed on Engage, Subscriber will bear all taxes, duties, and other governmental charges (collectively, “taxes”) resulting from this Agreement. Subscriber will pay any additional taxes as are necessary to ensure that the net amounts received by Engage after all such taxes are paid are equal to the amounts that Engage would have been entitled to in accordance with this Agreement as if the taxes did not exist.

Term. This Agreement will commence upon the Effective Date and, unless terminated earlier in accordance with this Agreement, will continue until the expiration or earlier termination of all Order Forms. Each Order Form will commence upon the start date of the Initial Subscription Term set forth therein and, unless terminated earlier in accordance with this Agreement, will continue until the expiration of that Initial Subscription Term. Upon expiration of the Initial Subscription Term, the Order Form will automatically renew for additional successive terms equal in length to that Initial Subscription Term unless and until, at least 30 days before the end of the then-current Subscription Term, either Party provides written notice to the other Party that it does not want to renew. 

1. Termination for Material Breach. Either Party may terminate this Agreement or any Order Form if the other Party does not cure its material breach of this Agreement or applicable Order Form within 30 days of receiving written notice of the material breach from the non-breaching Party. Termination in accordance with this Section 5.1 will take effect when the breaching Party receives written notice of termination from the non-breaching Party, which notice must not be delivered until the breaching Party has failed to cure its material breach during the 30-day cure period. If Subscriber fails to timely pay any fees, Engage may, without limitation to any of its other rights or remedies, suspend performance of the Services until it receives all amounts due. 
2. Post-Termination Obligations; Effect of Termination. If this Agreement expires or is terminated for any reason,  upon the effective date of such expiration or termination, all outstanding Order Forms and access to the Services will automatically terminate and Subscriber will pay to Engage all outstanding payment obligations, which will become immediately due and payable,  any and all liabilities accrued prior to such date will survive, and   promptly following such date, Subscriber will provide Engage with a written certification signed by an authorized Subscriber representative certifying that all use of the Engage Platform, FTP Server, and Engage Materials by Subscriber and its Users has been discontinued. In addition to the rights and obligations set forth in the immediately preceding sentence, upon any earlier termination of this Agreement or any Order Forms then in effect prior to the expiration of their then-current Subscription Term for any reason other than an uncured material breach by Engage, Subscriber will pay to Engage, for each such Order Form, a fee equal to one twelfth (1/12) of the fees paid by Subscriber for an annual Subscription Term or, in the event that any Subscription Term for any such Order Forms is for a period less than one calendar year, a fee equal to one twelfth (1/12) of the fees that would have otherwise been paid by Subscriber had Subscriber purchased Services for an annual Subscription Term (“Termination Fee”). The Termination Fee will become immediately due and payable upon the effective date of any such earlier termination. The following provisions will survive the expiration or termination of this Agreement for any reason: 1, 1.1, 2.8, 2.9, 2.13, 4, 5.2, 6, 7, 8, 9, 10, and 11.

1. General Warranties. Each Party represents and warrants to the other that:  the execution of an Order Form by such Party’s representative whose signature is set forth on the Order Form has been duly authorized by all necessary corporate or organizational action of such Party,  when an Order Form has been executed by each Party, this Agreement and each Order Form will constitute a valid and binding agreement enforceable against such Party in accordance with its terms; and  no authorization or approval from any third party is required in connection with such Party’s execution, delivery, or performance of this Agreement. 
2. Subscriber Warranties. Subscriber represents and warrants to Engage that: (a) Subscriber and its Users will comply with all applicable laws in connection with its obligations under this Agreement and their use of the Services; and (b) Subscriber will provide all notices required, and will obtain all necessary and sufficient rights, permissions, capacity, consents, and authority, to fully comply with and perform its obligations, and grant the rights and licensed granted to Engage, under this Agreement (including Section 2.8, Section 2.12, Section 3.1(c), and Section 3.2), in each case without violation of applicable laws, infringement, misappropriation, or dilution of any third-party rights (including intellectual property, publicity, privacy, or other proprietary rights of Recipients), or breach of any terms or conditions in any agreement or privacy policies with a third party (including the providers of Third-Party Technology); and (c) prior to making any Subscriber Data with respect to a given Recipient available to Engage, Subscriber will have received the express written consent of that Recipient to receive at least one text message (which text message may be considered telemarketing under applicable law and may be sent using an automatic telephone dialing system or other automated technology) from Engage at the phone number made available to Engage as part of the Subscriber Data.
3. Disclaimer. EXCEPT FOR THE EXPRESS REPRESENTATIONS AND WARRANTIES STATED IN THIS SECTION 6, ENGAGE MAKES NO ADDITIONAL REPRESENTATION OR WARRANTY OF ANY KIND WHETHER EXPRESS, IMPLIED (EITHER IN FACT OR BY OPERATION OF LAW), OR STATUTORY, AS TO ANY MATTER WHATSOEVER. ENGAGE EXPRESSLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING ALL WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUALITY, ACCURACY, TITLE, AND NON-INFRINGEMENT. ENGAGE DOES NOT WARRANT AGAINST INTERFERENCE WITH THE ENJOYMENT OF THE SERVICES. ENGAGE DOES NOT WARRANT THAT THE SERVICES ARE ERROR-FREE OR THAT OPERATION OF THE SERVICES WILL BE SECURE OR UNINTERRUPTED. ENGAGE DOES NOT WARRANT THAT any CONTENT OR OTHER information PROVIDED THROUGH the SERVICES IS accuraTE OR COMPLETE OR THAT any CONTENT OR OTHER information PROVIDED THROUGH the SERVICES WILL ALWAYS BE AVAILABLE. ENGAGE EXERCISES NO CONTROL OVER AND EXPRESSLY DISCLAIMS ANY LIABILITY ARISING OUT OF OR BASED UPON THE RESULTS OF SUBSCRIBER’S USE OF THE SERVICES. 
4. Healthcare Disclaimer. The Services’ features and functionality are only intended to enable Subscriber to make available to its Recipients medical or other healthcare-related services and information. Engage does not have any oversight or control over the care provided by Subscriber to Recipients. SUBSCRIBER AND ITS USERS ARE NOT EMPLOYEES, REPRESENTATIVES, OR AGENTS OF ENGAGE, AND MUST NOT REPRESENT, OR IN ANY WAY INDICATE, SUGGEST, OR IMPLY, THEY ARE AFFILIATED WITH ENGAGE OR THAT SUBSCRIBER IS CREDENTIALED, ENDORSED, RECOMMENDED, OR EVALUATED BY ENGAGE IN ANY MANNER. Subscriber is solely responsible for any and all medical or other healthcare-related services and information provided to Recipients and is also solely responsible for obtaining their informed consent for any medical or other healthcare-related services and information provided to them. As between Subscriber and Engage, the Content made available through the Services is not and should not be considered medical or healthcare advice or a substitute for individual medical or healthcare advice, diagnosis, or treatment. The information made available through the Services (including Content) should not be construed as a representation or warranty by Engage that any particular procedure, treatment, advice, or guidance is safe, appropriate, or effective for Recipients.
5. Limitations of the Services. SUBSCRIBER HEREBY ACKNOWLEDGES AND AGREES THAT ENGAGE IS NOT A PROVIDER OF MEDICAL OR HEALTHCARE SERVICES OR PRODUCTS AND THAT SUBSCRIBER IS SOLELY RESPONSIBLE FOR ALL MEDICAL OR HEALTHCARE SERVICES, PRODUCTS AND INFORMATION PROVIDED TO RECIPIENTS THROUGH, OR FACILITATED BY, THE SERVICES. SUBSCRIBER IS SOLELY RESPONSIBLE FOR ALL INTERACTIONS AND RELATIONSHIPS WITH RECIPIENTS WHETHER OR NOT FACILITATED BY THE SERVICES (INCLUDING ANY DIAGNOSIS, TREATMENT, ADVICE, SUGGESTIONS, RECOMMENDATIONS, OR CARE PROVIDED TO RECIPIENTS).  WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, SUBSCRIBER UNDERSTANDS THAT THERE ARE LIMITATIONS ON THE EFFICACY OF THE SERVICES IN ENABLING THE DIAGNOSIS, TREATMENT, AND/OR CARE OF A RECIPIENT, AND THAT CERTAIN SITUATIONS MAY REQUIRE URGENT AND/OR IN-PERSON CARE FOR THE RECIPIENT, INCLUDING AT A HOSPITAL OR CLINIC. SUBSCRIBER IS SOLELY RESPONSIBLE FOR ENSURING THAT THE CARE, TREATMENTS, RECOMMENDATIONS, DIAGNOSES, SUGGESTIONS, AND ANY OTHER ADVICE PROVIDED TO RECIPIENTS THROUGH OR IN CONNECTION WITH THE SERVICES AT ALL TIMES MEETS APPLICABLE STANDARDS OF CARE AND THAT SUBSCRIBER WILL EXERCISE ITS BEST PROFESSIONAL JUDGMENT IN PROVIDING ANY SUCH ADVICE. ENGAGE WILL NOT BE LIABLE TO SUBSCRIBER OR TO ANY THIRD PARTY (INCLUDING RECIPIENTS) OR RESPONSIBLE FOR (1) THE MEDICAL OR OTHER HEALTHCARE-RELATED SERVICES OR INFORMATION PROVIDED TO RECIPIENTS OR (2) ANY RELIANCE PLACED ON THE CONTENT PROVIDED BY ENGAGE TO SUBSCRIBER OR RECIPIENTS. ENGAGE MAKES NO REPRESENTATIONS OR WARRANTIES AND SUBSCRIBER IS SOLELY RESPONSIBLE FOR ENSURING THE ACCURACY, APPROPRIATENESS, AND QUALITY OF THE CONTENT PROVIDED BY ENGAGE TO SUBSCRIBER OR RECIPIENTS THROUGH THE SERVICES AND ENGAGE IS UNDER NO OBLIGATION TO DO SO.

1. Defense of Infringement Claims. Engage will, at its expense, either defend or settle any claim, proceeding, or suit brought by a third party (“Claim”) against Subscriber alleging that the Subscriber Portal (excluding any Content or other information made available through the Subscriber Portal) or Subscriber’s use (in accordance with this Agreement) of the Engage Platform or API Kit infringes or misappropriates any third party patent, copyright, trade secret, trademark, or other intellectual property right during the term of this Agreement if:  Subscriber gives Engage prompt written notice of the Claim;  Subscriber grants Engage full and complete control over the defense and settlement of the Claim;  Subscriber provides assistance in connection with the defense and settlement of the Claim as Engage may reasonably request; and  Subscriber complies with any settlement or court order made in connection with the Claim (e.g., relating to the future use of any infringing portion of the Engage Platform or API Kit). Subscriber will not defend or settle any Claim subject to defense under this Section without Engage’s prior written consent. Subscriber will have the right to participate in the defense of the Claim at its own expense and with counsel of its own choosing, but Engage will have sole control over the defense and settlement of the Claim.
2. Indemnification of Infringement Claims. Engage will indemnify Subscriber from and pay  all damages, costs, and attorneys’ fees finally awarded against Subscriber in any Claim subject to defense under Section 7.1;  all out-of-pocket costs (including reasonable attorneys’ fees) reasonably incurred by Subscriber in connection with the defense of such a Claim (other than attorneys’ fees and costs incurred without Engage’s consent after Engage has accepted defense of the Claim); and  all amounts that Engage agrees to pay to any third party to settle any such Claim.
3. Remediation. If any such Claim subject to defense under Section 7.1 is brought or threatened, Engage may, at its sole option and expense: (a) procure the applicable rights to continue making the Subscriber Portal available without infringement or procure for Subscriber the right to continue to use the Engage Platform or API Kit, as applicable; (b) modify the Subscriber Portal, Engage Platform or API Kit, as applicable, to make it non-infringing; or (c) replace the affected aspect of the Subscriber Portal, Engage Platform or API Kit, as applicable, with non-infringing technology having substantially similar capabilities. If none of the foregoing is commercially practicable, or if a Claim alleging infringement or misappropriation of any intellectual property right by the Subscriber Portal, Engage Platform or API Kit that is not subject to defense under Section 7.1 is brought or threatened, then Engage may, at its sole option, terminate the applicable Order Forms or this Agreement upon notice to Subscriber.
4. Exclusions from Obligations. Engage will have no obligation under this Section 7 for any infringement or misappropriation to the extent that it arises out of or is based upon  use of the Engage Platform, Subscriber Portal, or API Kit in combination with other products or services if such infringement or misappropriation would not have arisen but for such combination;  the Engage Platform, Subscriber Portal, or API Kit are provided to comply with designs, requirements, or specifications required by or provided by Subscriber, if the alleged infringement or misappropriation would not have arisen but for the compliance with such designs, requirements, or specifications;  use of the Engage Platform or API Kit by Subscriber or its Users for purposes not intended or outside the scope of the license granted to Subscriber;  Subscriber’s or its Users’ failure to use the Engage Platform or API Kit in accordance with instructions provided by Engage, if the infringement or misappropriation would not have occurred but for such failure;  any modification of the Engage Platform, Subscriber Portal, or API Kit not made or authorized in writing by Engage where such infringement or misappropriation would not have occurred absent such modification; or  any Subscriber Branding (except to the extent the infringement or misappropriation arises out of Engage’s use of the Subscriber Branding in violation of the license granted to Engage under Section 2.12).
5. Limited Remedy. This Section 7 states Engage’s sole and exclusive liability, and Subscriber’s sole and exclusive remedy, for the actual or alleged infringement or misappropriation of any third-party intellectual property right by the Subscriber Portal (other than to the extent arising out of Engage’s use of the Subscriber Branding in violation of the license granted to Engage under Section 2.12), the Engage Platform or the API Kit.

1. Defense. Subscriber will, at its expense, either defend or settle any actual or threatened third-party Claim (including Claims brought by Recipients) arising out of or based upon Subscriber Data, Subscriber’s or its Users’ use of the Services, Subscriber Branding (except to the extent the Claim arises out of Engage’s use of the Subscriber Branding in violation of the license granted to Engage under Section 2.12), Subscriber’s or its Users’ breach of any of the provisions of this Agreement, or the medical or other healthcare-related services, guidance, information, recommendations, suggestions, treatments, or other care provided to Recipients (whether or not facilitated by the Services) if:  Engage gives Subscriber prompt written notice of the Claim;  Engage grants Subscriber full and complete control over the defense and settlement of the Claim;  Engage provides assistance in connection with the defense and settlement of the Claim as Subscriber may reasonably request; and  Engage complies with any settlement or court order made in connection with the Claim. Engage will not defend or settle any Claim without Subscriber’s prior written consent. Engage will have the right to participate in the defense of the Claim at its own expense and with counsel of its own choosing, but Subscriber will have sole control over the defense and settlement of the Claim.
2. Indemnification. Subscriber will indemnify Engage from and pay  all damages, costs, and attorneys’ fees finally awarded against Engage in any Claim subject to defense under Section 8.1;  all out-of-pocket costs (including reasonable attorneys’ fees) reasonably incurred by Engage in connection with the defense of such a Claim (other than attorneys’ fees and costs incurred without Subscriber’s consent after Subscriber has accepted defense of the Claim); and  all amounts that Subscriber agrees to pay to any third party to settle any such Claim.

1. Disclaimer of Indirect Damages. NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED IN THIS AGREEMENT, ENGAGE WILL NOT, UNDER ANY CIRCUMSTANCES, BE LIABLE TO SUBSCRIBER FOR CONSEQUENTIAL, INCIDENTAL, SPECIAL, OR EXEMPLARY DAMAGES ARISING OUT OF OR RELATED TO THIS AGREEMENT, INCLUDING BUT NOT LIMITED TO LOST PROFITS OR LOSS OF BUSINESS, EVEN IF ENGAGE IS APPRISED OF THE LIKELIHOOD OF SUCH DAMAGES OCCURRING.
2. Cap on Liability. UNDER NO CIRCUMSTANCES WILL ENGAGE’S TOTAL LIABILITY OF ALL KINDS ARISING OUT OF OR RELATED TO THIS AGREEMENT (INCLUDING BUT NOT LIMITED TO WARRANTY CLAIMS), REGARDLESS OF THE FORUM AND REGARDLESS OF WHETHER ANY ACTION OR CLAIM IS BASED ON CONTRACT, TORT, OR OTHERWISE, EXCEED THE TOTAL AMOUNT PAID BY SUBSCRIBER TO ENGAGE DURING THE 12 MONTHS IMMEDIATELY PRECEDING THE CLAIM (DETERMINED AS OF THE DATE OF ANY FINAL JUDGMENT IN AN ACTION).
3. Independent Allocations of Risk. EACH PROVISION OF THIS AGREEMENT THAT PROVIDES FOR A LIMITATION OF LIABILITY, DISCLAIMER OF WARRANTIES, OR EXCLUSION OF DAMAGES IS TO ALLOCATE THE RISKS OF THIS AGREEMENT BETWEEN THE PARTIES. THIS ALLOCATION IS REFLECTED IN THE PRICING OFFERED BY ENGAGE TO SUBSCRIBER AND IS AN ESSENTIAL ELEMENT OF THE BASIS OF THE BARGAIN BETWEEN THE PARTIES. EACH OF THESE PROVISIONS IS SEVERABLE AND INDEPENDENT OF ALL OTHER PROVISIONS OF THIS AGREEMENT. THE LIMITATIONS IN THIS SECTION 9 WILL APPLY NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY IN THIS AGREEMENT.

1. Obligation. The Receiving Party will: (a) not disclose the Confidential Information of the Disclosing Party to any third party, except on a “need to know” basis to third parties that have signed a non-disclosure agreement containing provisions substantially as protective as the terms of this Agreement; and (b) will not use such Confidential Information except in connection with performing its obligations or exercising its rights under this Agreement. A Receiving Party is permitted to disclose Confidential Information of the Disclosing Party to the extent required by law so long as it gives the Disclosing Party prompt written notice of such requirement prior to disclosure and assistance in obtaining a court order protecting such information from public disclosure.
2. Exclusions. Confidential Information does not include any information that: (a) was publicly known and made generally available prior to the time of disclosure by the Disclosing Party; (b) becomes publicly known and made generally available after disclosure by the Disclosing Party to the Receiving Party through no action or inaction of the Disclosing Party; (c) is already in the possession of the Receiving Party at the time of disclosure; (d) is obtained by the Receiving Party from a third party without a breach of such third party’s obligations of confidentiality; or (e) is independently developed by Receiving Party without use of or reference to the Disclosing Party’s Confidential Information.

1. Relationship. Engage will be and act as an independent contractor (and not as the agent or representative of Subscriber) in the performance of this Agreement.
2. Assignability. Neither Party may assign its right, duties, and obligations under this Agreement without the other Party’s prior written consent, which consent will not be unreasonably withheld or delayed, except that Engage may assign this Agreement without Subscriber’s consent to a successor (including a successor by way of merger, acquisition, sale of assets, or operation of law) if the successor agrees to assume and fulfill all of the Engage’s obligations under this Agreement.
3. Subcontractors. Engage may utilize a subcontractor or other third party to perform its duties under this Agreement so long as Engage remains responsible for all of its obligations under this Agreement.
4. Notices. Any notice required or permitted to be given in accordance with this Agreement will be effective if it is in writing and sent by certified or registered mail, or insured courier, return receipt requested, to the appropriate Party at the address set forth in the applicable Order Form and with the appropriate postage affixed. Either Party may change its address for receipt of notice by notice to the other Party in accordance with this Section 11.4. Notices are deemed given two business days following the date of mailing or one business day following delivery to a courier. 
5. Force Majeure. Engage will not be liable for, or be considered to be in breach of or default under this Agreement on account of, any delay or failure to perform as required by this Agreement as a result of any cause or condition beyond its reasonable control, including any act of God, act of war or terror, civil unrest, strike or other labor problem, embargo, unforeseen epidemic or pandemic, power failure, failure or degradation of the Internet, cyber-attack, flood, earthquake or other natural disaster, inability or insufficient rights to access Third-Party Technology, governmental act, or other similar event (“Force Majeure Event”), so long as Engage uses all commercially reasonable efforts to avoid or remove the causes of non-performance. In the event that a Force Majeure Event delays causes the Engage Platform or Subscriber Portal to be unavailable for a period of sixty (60) consecutive days or more, Engage and Subscriber may each terminate the applicable Order Form upon providing five (5) days’ prior written notice, in which case Subscriber will refund to Subscriber any pre-paid fees paid by Subscriber under the applicable Order Form which will be pro-rated for the termination portion of the then-current subscription term.  
6. Governing Law. This Agreement will be interpreted, construed, and enforced in all respects in accordance with the local laws of the State of Idaho, U.S.A., without reference to its choice of law rules and not including the provisions of the 1980 U.N. Convention on Contracts for the International Sale of Goods. Each Party hereby irrevocably consents to the exclusive jurisdiction and venue of the federal, state, and local courts in Ada County, Idaho in connection with any action arising out of or in connection with this Agreement. 
7. Waiver. The waiver by either Party of any breach of any provision of this Agreement does not waive any other breach. The failure of any Party to insist on strict performance of any covenant or obligation in accordance with this Agreement will not be a waiver of such Party’s right to demand strict compliance in the future, nor will the same be construed as a novation of this Agreement.
8. Severability. If any part of this Agreement is found to be illegal, unenforceable, or invalid, the remaining portions of this Agreement will remain in full force and effect. If any material limitation or restriction on the use of the Services under this Agreement is found to be illegal, unenforceable, or invalid, Subscriber’s right to use the Services will immediately terminate.
9. Entire Agreement. This Agreement, including any Order Forms and Engage’s privacy policy (available at https://www.engagetg.com/privacy/), is the final and complete expression of the agreement between the Parties regarding the Services. This Agreement supersedes all previous oral and written communications regarding the Services, all of which are merged into this Agreement, except that this Agreement does not supersede any prior nondisclosure or comparable agreement between the Parties executed prior to this Agreement being executed. No employee, agent, or other representative of Subscriber has any authority to bind Engage with respect to any statement, representation, warranty, or other expression unless the same is specifically set forth in this Agreement. No usage of trade or other regular practice or method of dealing between the Parties will be used to modify, interpret, supplement, or alter the terms of this Agreement. This Agreement may be changed or otherwise modified only by a written agreement signed by an authorized agent of the Party against whom enforcement is sought. The words “include” and “including” when used in this Agreement are not exclusive and mean “include, without limitation” and “including, without limitation,” respectively. Engage will not be bound by, and specifically objects to, any term, condition, or other provision that is different from or in addition to this Agreement (whether or not it would materially alter this Agreement) that is proffered by Subscriber in any receipt, acceptance, confirmation, correspondence, or otherwise, unless Engage specifically agrees to such provision in writing and signed by an authorized agent of Engage.
10. Order of Precedence. In the event of any conflict or inconsistency between this Agreement and any other document that references this Agreement, the order of precedence will be: (1) the Order Form; (2) this Agreement; and (3) the Documentation.