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HomeMy WebLinkAboutC2009-601 - 11/30/2009 - NAr HEALTH M I LE S APPLICATION SERVICE AGREEMENT COVER PAGE The attached documents describe the relationship between Virgin HealthMiles, Inc. ( "Provider' or "Virgin HealthMiles') and the client identified below ("Client") (each of Provider and Client, a "Party"). The documents attached to this Cover Page will consist of this cover page (the "Cover Page"), the document entitled "Terms and Conditions" (the "ASP Terms') and any Addenda or Exhibits attached thereto, which may describe and set forth further terms governing the relationship (collectively, the "Agreement). This Agreement, including the attached ASP Terms, will become effective when this cover page is executed by authorized representatives of both Parties (the "Effective Date+'). CLIENT INFORMATION: Name /Client: City of Corpus Christi Address: 1201 Leopard 2 " Floor Corpus Christi, TX 78401 Billing Contact: same as principal Title: Phone: Fax: Email Address: Principal Contact Person: Pat Atkins Title: Manager of Employee Benefits Phone: 361 -826 -3445 Fax: Email Address: PatAt @cctexas.00m Initial Term: 1 Year(s) ---Month(s) Effective Date: 12/01/09 Virgin HealthMiles, Inc. Contact information: Virgin HealthMiles, Inc. Attn: Chris Boyce, CEO 139 Newbury Street, Framingham, MA 01701 FOR INTERNAL PROVIDER USE ONLY: Contract Initial7erm: "Launch. Date: _7l22108 0 Professional Services Addendum ©: Other Addenda The Parties have caused their duly authorized representatives to execute this Agreement as of the dates set forth below. CLIENT: � VIRGIN HEALTHMILES, INC. By (Signature): _ By (Signature): ' Name (Printed): ('�/,�/'� Name (Printed): Title: 171C y ���� Title: Date: �J"' 3 y / Date: fff f Approved as to Legal farm: 2009 -601 Virgin HealthMiles, Inc- BNFIDENTIAL AND PROPRIETARY 11/30/09 Veronica OcaRas Assistant City Attorney For City Attorney Virgin HealthMiles, Inc.�D��0p �' r HEALTHMILES 1. DEFINITIONS. Certain capitalized terms, not otherwise defined on the Cover Page, have the meanings set forth in this Section 1. 1.1 "Addendum" means any addendum to this Agreement executed by both Parties, if any, and may include, without limitation, Provider's standard form of Professional Services Addendum. 1.2 "Application Services" will mean the services and Provider content provided by Provider by means of access to certain content and use of the features and functionality of software applications available and accessible within the Provider web sites (the "Application"). 1.3 "Beneficiary' or "Beneficiaries" shall mean Client employees, employee beneficiaries, individuals affiliated with Client, and retirees of Client, who, as a result of such affiliation, are eligible to enroll in the HealthMiles Program. 1.4 "Confidential Information" will have the meaning set forth in the Non - Disclosure Agreement or in the absence of such an agreement will mean all written or oral information, disclosed by either Party to the other, related to the operations of either Party or a third party that has been identified as confidential or that by the nature of the circumstances surrounding disclosure ought reasonably to be treated as confidential. 1.5 "Client Brand' shall mean any one or more of the trademarks, service marks, trade names, domain names, logos, business and product names, slogans, and registrations and applications for registration thereof owned by Client as of the Effective Date. 1.6 "Client Data" will mean the data, media and content provided by Client for use with the Application Services that are accessible through the Application Services. 1.7 "Documentation' will mean text and/or graphical documentation, whether in electronic or printed format, that describe the features, functions and operation of the Application Service, which materials are designed to facilitate use of the Application Service and which are provided by Provider to Client in accordance with the terms of this Agreement. 1.8 "Go Live" means the date where the Application Services or Application, in any module or version, is first made accessible to the Client. 1.9 "HealthMiles Program" shall mean the proprietary, interactive health and fitness program, including the Application, which provides Beneficiaries with incentives for increased activity and healthy behaviors; interactive challenges to improve the Members engagement; and a combination of activity and biometric tracking devices, along with a personalized online program portal, to help Members monitor their daily activity and track measureable health outcomes. 1.10 "Member° shall mean an authorized Beneficiary enrolled in the HealthMiles Program having access to the Application Services, provided that persons under contract with Client may not be Members unless the same have entered into a binding agreement to maintain the confidentiality of the Access Protocols and all Provider Confidential Information, for example, by agreeing to the Terms of Service. 1.11 "Terms of Service" shall mean the terms of service and membership agreements accepted by Members through registration with the HealthMiles Program accessible through the Application Services. 2. ACCESS, USE AND MEMBERS- 2.1 Provision of Access for Member. Subject to the terms and conditions contained in this Agreement, Provider hereby grants to Client a non - exclusive, non - transferable right to permit access to the Application Services for the number of Members specified on Exhibit A, for which you have paid the applicable fees solely in accordance with the terms and conditions of this Agreement, any Virgin HealthMiles, Inc. VIRGIN HEALTHMILES, INC. APPLICATION SERVICE AGREEMENT TERMS AND CONDITIONS Contract #: Documentation, and the Terms of Service. On or as soon as reasonably practicable after the Effective Date, Provider shall provide to Client the necessary passwords, security protocols and policies and network links or connections (the "Access Protocols°) to allow Client to access the Application Services. Provider shall also provide Client the Documentation to be used by Client in accessing and using the Application Service. Client acknowledges and agrees that, as between Client and Provider, Client shall be responsible for all acts and omissions of Members, and any act or omission by such Members which, if undertaken by Client, would constitute a breach of this Agreement, shall be deemed a breach of this Agreement by Client. Client shall undertake reasonable efforts to make all such Members aware of the provisions of this Agreement as applicable to such Member's use of the Application Service, and shall cause Members to comply with such provisions. 2.2 Documentation License. Subject to the terms and conditions contained in this Agreement, Provider hereby grants to Client a non- exclusive, non - transferable right and license to use the Documentation during the Term for Client's internal purposes in connection with its use of the Application Service as contemplated in this Agreement. 2.3 Usage Restrictions. Client will not (a) copy or duplicate the Application; (b) decompile, disassemble, reverse engineer or otherwise attempt to obtain or perceive the source code from which any software component of the Application is compiled or interpreted; (c) modify the Application Service or the Documentation, or create any derivative product from any of the foregoing, except with the prior written consent of Provider; or (d) assign, sublicense, sell, resell, lease, rent or otherwise transfer or convey, or pledge as security or otherwise encumber, Client's rights under Sections 2.1 or 2.2. Client will ensure that its use of the Application Service and the Documentation and all Client Data complies with all applicable laws, statutes, regulations or rules. Client shall notify Provider immediately of any unauthorized use of any password or account or any other known or suspected breach of security. Client will only allow Members who have been assigned a unique user identification to access the Application Services. 2.4 Retained Rights; Ownership. (a) Subject to the rights granted in this Agreement, Client retains all right, title and interest in and to the Client Brand and Client Data, and Provider acknowledges that it neither owns nor acquires any additional rights in and to the Client Brand or Client Data not expressly granted by this Agreement. Client is solely responsible for all Client Data. Provider further acknowledges that Client retains the right to use the Client Brand and Client Data for any purpose in Client's sole discretion. Subject to the foregoing, Client hereby grants to Provider a non - exclusive, non - transferable right and license to use the Client Brand and Client Data during the Term for the limited purposes of performing Provider's obligations under this Agreement. (b) Subject to the rights granted in this Agreement, Provider retains all right, title and interest in and to the Application Services and the Documentation, and Client acknowledges that it neither owns nor acquires any additional rights in and to the foregoing not expressly granted by this Agreement. Client further acknowledges that Provider retains the right to use the foregoing for any purpose in Provider's sole discretion. (c) Blind Data. Provider shall have the right to utilize data capture, syndication, and analysis tools, and other similar tools, to extract, compile, synthesize, and analyze any non - personally personally identifiable data or information resulting from Client's use of the Application Services ( "Blind Data"). To the extent that any Blind Data is collected by Provider, such Blind Data shall be solely owned by Provider and may be used by Provider for any lawful business purpose without a duty of accounting to Client, CONFIDENTIAL AND PROPRIETARY Page 1 provided that the Blind Data is used only in an aggregated form, Without specifically identifying the source of the Blind Data. Provider agrees to comply with the applicable contractual obligations, privacy and other nondisclosure policies, and legal obligations of Client, including, policies, laws and regulations respecting the dissemination and use of such Blind Data. Upon request, Client will furnish Provider with a copy of all applicable policies, rules, laws or regulations with respect to the foregoing. 3. PROVIDER OBLIGATIONS. 3.1 Implementation Plan; Professional Services. Client understands that, before access to the Application Services can be provided to Client, Client's systems may require configuration, and will in any case require the performance of various professional services to prepare Client's systems for such purposes, and that Provider's systems may also require preparation in order to configure and prepare the Application for use under the terms of the Agreement as contemplated hereunder. Accordingly, Client acknowledges that in the event that Client desires that Provider perform such professional services, the Parties will negotiate an appropriate 'Work Statement" setting forth an implementation plan (the "Initial Implementation Plan ") pursuant to an executed Professional Services Addendum. Notwithstanding the foregoing, Client acknowledges that Provider will have no obligation to perform any services under the Initial Implementation Plan unless and until engaged to perform such services in an Addendum to this Agreement. 3.2 Account Manager and Technical Support. Provider will make available to Client an account manager who will oversee services related to the Application Services. Provider will provide monthly reports to Client specifying the number of Members and as requested, to the extent permitted by applicable law and the HealthMiles Program terms of service, each Member's level of attainment. Provider provides certain limited support services as part of the Application Services. However, Client may request for Provider to provide additional technical support services related to Client's use of the Application Services. Provider agrees to provide such technical support services as agreed by the Parties; provided the Client has also executed the applicable Professional Services Addendum. Until the Client has ordered technical support, Provider shall only provide the limited support it normally provides to its customers generally as part of the Application Services. 3.3 Additional Services. The Parties acknowledge and agree that Provider may provide additional services, including those set forth on Exhibit A. Unless otherwise agreed pursuant to a Professional Services Addendum executed by the Parties, Provider shall have no obligation to provide any such services, including training, consulting, or customization support with respect to the Virgin HealthMiles Program. Certain services available through Provider may be subject to additional terms other than those set forth in this Agreement or the Professional Services Addendum. 3.4 Portable Devices. Provider will provide portable monitoring devices (each a `Portable Device "), for a specified fee as listed in Exhibit A or as may be updated by Provider in the Terms of Service, to each Member to track the daily activity of such Members. All obligations with respect to delivery and use of the Portable Devices shall be subject to the Terms of Service. The Parties acknowledge and agree that Provider may charge additional fees for the deployment of such Portable Devices which price lists may be modified from time to time in Provider's sole discretion. 3.5 Rights with Respect to Unauthorized Use. The Parties acknowledge and agree that Provider, in the exercise of Provider's sole discretion, shall be permitted to adjust, remove, or otherwise alter rewards accumulated by Members in a manner that violates the Terms of Service or have otherwise been accumulated in a fraudulent or dishonest manner. Virgin HealthMiles, Inc. Contract #: 4. CLIENT OBLIGATIONS. 4.1 Member Access to Services. Subject to the terms and conditions herein, Client may permit the Members to access and use the features and functions of the Application Service only through the Access Protocols. Client will ensure that any such Member will be bound by a contractual, enforceable agreement, which agreement, will, by its terms, provide substantially the same or greater protections for Provider's Confidential Information, the Application Service, and the Documentation as are provided by the terms hereof. 4.2 Client Assistance. Client shall make available in a timely manner at no charge to Provider all content, graphic files, Client Data, Client Brand information or other information and resources of Client required by Provider for the performance of its obligations under this Agreement. Client shall be responsible for, and assumes the risk of, any problems resulting from, the content, accuracy, completeness and consistency of all such content, materials and information supplied by Client. Client shall also be solely responsible, at its own expense, for acquiring, installing and maintaining all connectivity equipment, hardware, software and other equipment as. may be necessary for it and its Members to connect to, access, and use the Application Services_ 4.3 Provision of Data. Promptly after the Effective Date and on a monthly basis thereafter, Client shall provide Provider, consistent With state privacy laws, with accurate information including the number and names of Beneficiaries, contact information for such Beneficiaries such as an email address, and an initial eligibility file thirty (30) days prior to the expected launch date of the Application Services that discloses the Beneficiaries and includes at least the following information: the Beneficiary's last name, first name, date of birth, gender, unique employee identifying number, if applicable, and any other information necessary to enable Provider to administer the HealthMiles Program and to provide the Application Services required by this Agreement. This information and any Beneficiaries additions and terminations shall be kept current on at least a monthly basis and shall be provided by Client to Provider by the fifteenth (15) day of each month during the Term. Client shall be responsible for any errors with respect to the information provided, including any failure to report employee terminations, or termination of a Beneficiary from participation in the HealthMiles Program. The Parties acknowledge and agree that such information set forth above shall be deemed Client Data and shall be treated as Client's confidential information under this Agreement. 4.4 Client Data. Client and its Members shall have access to the Client Data and shall be responsible for all changes to and/or deletions of Client Data and the security of all passwords and other Access Protocols required in order to access the Application Services. Client hereby represents and warrants that it owns or otherwise has sufficient right to grant Provider access to and use the Client Data in accordance with the terms of this Agreement. Client will be solely responsible for the accuracy and completeness of the Client Data. Client acknowledges and agrees that Provider's obligation to maintain any Client Data obtained in the course of performance of the Application Services shall not extend beyond the Term of this Agreement. 5. FEES AND EXPENSES; PAYMENTS. 5.1 Fees. In consideration for the access rights granted to Client and the services performed by Provider under this Agreement, Client will pay to Provider, without offset or deduction, all fees as may be determined by reference to the pricing proposal, attached hereto as Exhibit A. Unless otherwise specified on Exhibit A, all fees shall be due and payable within thirty (30) days of the date of invoice. 5.2 Client Operating Expenses. Client will bear all expenses incurred in performance of its obligations hereunder, including, without limitation, through use by Client and/or any Member of the Application Services, and/or through provision of support to Members with respect to such use of the Application Services. 5.3 Taxes. Client will be responsible for payment of any applicable sales, use and other taxes and all applicable export and import fees, customs duties and similar charges (other than taxes CONFIDENTIAL AND PROPRIETARY Page 2 based on Providers income), and any related penalties and interest for the grant of license rights hereunder, or the delivery of related services. Client will make all required payments to Provider free and clear of, and without reduction for, any withholding taxes. Any such taxes imposed on payments to Provider will be Client's sole responsibility, and Client will, upon Provider's request, provide Provider with official receipts issued by the appropriate taxing authorities, or such other evidence as Provider may reasonably request, to establish that such taxes have been paid. 5.4 Late Payments; Interest; Payment in Dollars. Any portion of any amount payable hereunder is overdue on the 31 day after the date the Client receives an invoice from Provider. An overdue payment begins to accrue interest on the date the payment becomes overdue, at the rate in effect on September 1 of the fiscal year in which the payment becomes overdue. The rate in effect on September 1 is equal to the sum of: (1) one percent; and (2) the prime rate as published in the Wall Street Journal on the first day of July of the preceding fiscal year that does not fall on a Saturday or Sunday. Interest on an overdue payment stops accruing on the date the Client mails or electronically transmits the payment. All payments to be made under this Agreement shall be made in US dollars. Notwithstanding the foregoing, if Provider does not receive payment of any sum due to it within thirty (30) days of the invoice, Provider reserves the right to suspend accrual and redemption of rewards by Members until such time as the default has been cured to Provider's satisfaction. 6. TREATMENT OF CONFIDENTIAL INFORMATION. 6.1 Ownership of Confidential information. The Parties acknowledge that during the performance of this Agreement, each Party will have access to certain of the other Party's Confidential Information or Confidential Information of third parties that the disclosing Party is required to maintain as confidential. Both Parties agree that all items of Confidential Information are proprietary to the disclosing Party or such third party, as applicable, and will remain the sole property of the disclosing Party or such third party. 6.2 Mutual Confidentiality Obligations. Each Party agrees as follows: (a) to use Confidential Information disclosed by the other Party only for the purposes described herein; (b) that such Party will not reproduce Confidential Information disclosed by the other Party, and will hold in confidence and protect such Confidential Information from dissemination to, and use by, any third party; (c) that neither Party will create any derivative work from Confidential Information disclosed to such Party by the other Party; (d) to restrict access to the Confidential Information disclosed by the other Party to such of its personnel, agents, and /or consultants, if any, who have a need to have access and who have been advised of and have agreed in writing to treat such information in accordance with the terms of this Agreement; and (e) to return or destroy, pursuant to Section 10.5, all Confidential Information disclosed by the other Party that is in its possession upon termination or expiration of this Agreement. Notwithstanding the foregoing, Client agrees that Provider may collect aggregated statistical data regarding Client's use of the Service and provide such aggregated statistical data to third parties. In no event shall Provider provide to third parties specific data regarding Client or Client's Members. 6.3 Confidentiality Exceptions. Notwithstanding the foregoing, the provisions of Sections 6.1 and 6.2 will not apply to Confidential Information that (a) is publicly available or in the public domain at the time disclosed; (b) is or becomes publicly available or enters the public domain through no fault of the recipient; (c) is rightfully communicated to the recipient by persons not bound by confidentiality obligations with respect thereto; (d) is already in the recipient's possession free of any confidentiality obligations with respect thereto at the time of disclosure; (e) is independently developed by the recipient; or (f is approved for release or disclosure by the disclosing Party without restriction. Notwithstanding the foregoing, each Party may disclose Confidential Information to the limited extent required (x) in orderto comply with the order of a court or other governmental body, or as Contract #: otherwise necessary to comply with applicable law. The Party making the disclosure pursuant to the order agrees to. give written notice to the other Party and to make a reasonable effort to protect the information. Client also acknowledges and agrees that Provider may freely use any comments, ideas and /or error reports provided by Client to Provider and such comments, ideas and/or error reports shall not be considered proprietary to Client. 7. REPRESENTATIONS AND WARRANTIES. Each Party hereby represents and warrants (a) that it is duly organized, validly existing and in good standing under the laws of its jurisdiction of incorporation or organization; (b) that the execution and performance of this Agreement will not conflict with or violate any provision of any law having applicability to such Party; and (c) that this Agreement, when executed and delivered, will constitute a valid and binding obligation of such Party and will be enforceable against such Party in accordance with its terms. 8. DISCLAIMERS, EXCLUSIONS AND LIMITATIONS OF LIABILITY. 8.1 Disclaimer. EXCEPT AS EXPRESSLY REPRESENTED OR WARRANTED IN SECTION 7, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE APPLICATION SERVICES, THE DOCUMENTATION, AND ALL SERVICES PERFORMED BY PROVIDER ARE PROVIDED "AS IS," AND PROVIDER DISCLAIMS ANY AND ALL OTHER PROMISES, REPRESENTATIONS AND WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON - INFRINGEMENT, QUIET ENJOYMENT, SYSTEM INTEGRATION AND /OR DATA ACCURACY. PROVIDER DOES NOT WARRANT THAT THE APPLICATION SERVICES OR ANY OTHER SERVICES PROVIDED BY PROVIDER WILL MEET CLIENT'S REQUIREMENTS OR THAT THE OPERATION OF THE APPLICATION SERVICE WILL BE UNINTERRUPTED OR ERROR -FREE, OR THAT ALL ERRORS WILL BE CORRECTED. PROVIDER'S SERVICES MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS. PROVIDER IS NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES, OR OTHER DAMAGE RESULTING FROM SUCH PROBLEMS. NEITHER PROVIDER, NOR ITS THIRD -PARTY HOSTING SERVICE OR SOFTWARE PROVIDERS, SHALL HAVE ANY LIABILITY WHATSOEVER FOR THE ACCURACY, COMPLETENESS, OR TIMELINESS OF THE CLIENT DATA, OR FOR ANY DECISION MADE OR ACTION TAKEN BY CLIENT IN RELIANCE UPON ANY CLIENT DATA. 8.2 Exclusions of Remedies; Limitation of Liability. IN NO EVENT WILL PROVIDER BE LIABLE TO CLIENT FOR ANY INCIDENTAL, INDIRECT, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES, REGARDLESS OF THE NATURE OF THE CLAIM, INCLUDING, WITHOUT LIMITATION, LOST PROFITS, COSTS OF DELAY, ANY FAILURE OF DELIVERY, BUSINESS INTERRUPTION, COSTS OF LOST OR DAMAGED DATA OR DOCUMENTATION, OR LIABILITIES TO THIRD PARTIES ARISING FROM ANY SOURCE, EVEN IF PROVIDER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THIS LIMITATION UPON DAMAGES AND CLAIMS IS INTENDED TO APPLY WITHOUT REGARD TO WHETHER OTHER PROVISIONS OF THIS AGREEMENT HAVE BEEN BREACHED OR HAVE PROVEN INEFFECTIVE. THE CUMULATIVE LIABILITY OF PROVIDER TO CLIENT FOR ALL CLAIMS ARISING FROM OR RELATING TO THIS AGREEMENT, INCLUDING, WITHOUT LIMITATION, ANY CAUSE OF ACTION SOUNDING IN CONTRACT, TORT, OR STRICT LIABILITY, WILL NOT EXCEED THE FEES PAID TO PROVIDER BY CLIENT DURING THE TWELVE (12) MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO THE CLAIM. THIS LIMITATION OF LIABILITY IS INTENDED TO APPLY WITHOUT REGARD TO WHETHER OTHER PROVISIONS OF THIS AGREEMENT HAVE BEEN BREACHED OR HAVE PROVEN INEFFECTIVE. Virgin HealthMiles, Inc. CONFIDENTIAL AND PROPRIETARY Page 3 8.3 Essential Basis of the Agreement. Client acknowledges and understands that the disclaimers, exclusions and limitations of liability set forth in this Section 8 form an essential basis of the agreement between the Parties, that the Parties have relied upon such disclaimers, exclusions and limitations of liability in negotiating the terms and conditions in this Agreement, and that absent such disclaimers, exclusions and limitations of liability, the terms and conditions of this Agreement would be substantially different. 9. INDEMNIFICATION. 9.1 Indemnification of Client. Provider agrees to indemnify, defend and hold harmless Client from and against any and all losses, liabilities, costs (including reasonable attorneys' fees) or damages resulting from any claim by any third party arising from or alleged to have arisen from the Application Services and /or the Documentation, and specifically including any claim that the Application Services and /or the Documentation infringes such third party's U.S. patents issued as of the Effective Date, or infringes or misappropriates, as applicable, such third party's copyrights or trade secret rights under applicable laws of any jurisdiction within the United States of America, provided that Client promptly notifies Provider in writing of the claim and cooperates with Provider in its investigation of the claim. If such a claim is made or appears possible, Client agrees to permit Provider, at Provider's sole discretion, to enable it to continue to use the Application Service or the Documentation, as applicable, or to modify or replace any such infringing material to make it non - infringing. If Provider determines that none of these alternatives is reasonably available, Client shall, upon written request from Provider, cease use of, and, if applicable, return, such materials as are the subject of the infringement claim. This Section 9.1 shall not apply if the alleged infringement arises, in whole or in part, from (a) modification of the Application or the Documentation by Client, (b) combination, operation or use of the Application with other software, hardware or technology not provided by Provider, (c) use of a superseded or altered release of the Application or the Documentation, if such infringement would have been avoided by the use of a then - current release of the Application or the Documentation, as applicable, and if such then - current release has been made available to Client, or (d) related to the Client Data (any of the foregoing circumstances under clauses (a), (b) or (c). IN NO EVENT SHALL PROVIDER'S LIABILITY UNDER THIS SECTION 9 EXCEED CAP ON LIABILITY SET FORTH IN SECTION 8.2. THIS SECTION STATES PROVIDER'S ENTIRE OBLIGATION AND LIABILITY WITH RESPECT TO ANY CLAIM OF INFRINGEMENT. 9.2 Client's HOLD HARMLESS Obligations. To the extent permitted by the laws and Constitution of the State of Texas, Client agrees to hold, harmless Provider from and against any losses, liabilities, costs (including reasonable attorneys' fees) or damages resulting from a Client Responsibility, provided that Provider promptly notifies Client in writing of the claim, cooperates with Client, and allows Client sole authority to control the settlement of such claim; provided that Client will not settle any third -party claim against Provider unless such settlement completely and forever releases Provider from all liability with respect Contract #: to such claim or unless Provider consents to such settlement, and further provided that Provider will have the right, at its option, to defend itself against any such claim or to participate in the defense thereof by counsel of its own choice. 10. TERM AND TERMINATION. 10.1 Term. The term of this Agreement will commence on the Effective Date and will continue for the period as indicated on the Cover Page (the "Initial Term"), unless earlier terminated in accordance with this Section 10. The Agreement will automatically renew for a period of one (1) year at the end of the then- current term unless either Party provides written notice of its desire to terminate at least ninety (90) days prior to the expiration of the then-current term (the Initial Term, collectively, the "Term"). 10.2 Termination for Breach. Either Party may, at its option, terminate this Agreement in the event of a material breach by the other Party. Such termination may be effected only through a written notice to the breaching Party, specifically identifying the breach or breaches on which such notice of termination is based. The breaching Party will have a right to cure such breach or breaches within thirty (30) days of receipt of such notice, and this Agreement will terminate in the event that such cure is not made within such thirty (30) day period. 10.3 Suspension of Access. Provider may suspend access to the Application Services in the event any amount due under this Agreement is not received by Provider within thirty (30) days from invoice. 10.4 Termination Upon Bankruptcy or Insolvency. Either Party may, at its option, terminate this Agreement immediately upon written notice to the other Party, in the event (a) that the other Party becomes insolvent or unable to pay its debts when due; (b) the other Party files a petition in bankruptcy, reorganization or similar proceeding, or, if filed against, such petition is not removed within ninety (90) days after such filing; (c) the other Party discontinues it business; or (d) a receiver is appointed or there is an assignment for the benefit of such other Party's creditors. 10.5 Effect of Termination. Upon any termination of this Agreement: (a) Client will immediately discontinue all use of the Application Service, the Documentation, and any Provider Confidential Information; (b) Client will delete any Provider Confidential Information from Client's computer storage or any other media including, but not limited to, online and off -line libraries; (c) Provider will delete any Client Confidential Information and Client Data from Provider's computer storage or any other media including, but not limited to, online and off -line libraries; (d) return to Provider or, at Provider's option, destroy, all copies of the Documentation and any Provider Confidential Information then in Client's possession; and (e) promptly pay to Provider all amounts due and payable hereunder. Notwithstanding the foregoing, Members may redeem their rewards under the HealthMiles Program for a period of thirty (30) days following the termination of this Agreement, provided, however that this Agreement is not terminated for nonpayment, in which case Members will not be able to redeem their rewards upon termination. 10.6 Survival. The provisions of Sections 2.4, 6, 7, 8, 9, 10.5, 10.6, and 11 will survive the termination of this Agreement. 11. MISCELLANEOUS. 11.1 Entire Agreement. This Agreement sets forth the entire agreement and understanding between the Parties hereto with respect to the subject matter hereof and, except as specifically provided herein, supersedes and merges all prior oral and written agreements, discussions and understandings between the Parties with respect to the subject matter hereof, and neither of the Parties will be bound by any conditions, inducements or representations other than as expressly provided for herein. 11.2 Independent Contractors. In making and performing this Agreement, Client and Provider act and will act at all times as independent contractors, and, except as expressly set forth herein, Virgin HealthMiles, Inc. CONFIDENTIAL AND PROPRIETARY Page 4 nothing contained in this Agreement will be construed or implied to create an agency, partnership or employer and employee relationship between them. Except as expressly set forth herein, at no time will either Party make commitments or incur any charges or expenses for, or in the name of, the other Party. 11.3 Notices. All notices required by or relating to this Agreement will be in writing and will be sent by means of certified mail, postage prepaid, to the Parties at their respective addresses set forth in the preamble to this Agreement, or addressed to such other address as the receiving Party may have given by written notice in accordance with this provision. All notices required by or relating to this Agreement may also be communicated by facsimile and /or other electronic communications provided that the sender receives and retains confirmation of successful transmittal to the recipient. Such notices will be effective on the date indicated in such confirmation. In the event that either Party delivers any notice by means of facsimile transmission or other electronic means in accordance with the preceding sentence, such Party will promptly thereafter send a duplicate of such notice in writing by means of certified mail, postage prepaid, to the receiving Party, addressed as set forth above or to such other address as the receiving Parry may have previously substituted by written notice to the sender. 11.4 Amendments; Modifications. This Agreement may not be amended or modified except in a writing duly executed by authorized representatives of both Parties. 11.5 Assignment; Delegation. Client shall not assign any of its rights or delegate any of its duties under this Agreement without the express, prior written consent of Provider, and, absent such consent, any attempted assignment or delegation will be null, void and of no effect. 11.6 No Third Party Beneficiaries. The Parties acknowledge that the covenants set forth in this Agreement are intended solely for the benefit of the Parties, their successors and permitted assigns. Nothing herein, whether express or implied, will confer upon any person or entity, other than the Parties, their successors and permitted assigns, any legal or equitable right whatsoever to enforce any provision of this Agreement. 11.7 Severability. If any provision of this Agreement is invalid or unenforceable for any reason in any jurisdiction, such provision will be construed to have been adjusted to the minimum extent necessary to cure such invalidity or unenforceability. The invalidity or unenforceability of one or more of the provisions contained in this Agreement will not have the effect of rendering any such provision invalid or unenforceable in any other case, circumstance or jurisdiction, or of rendering any other provisions of this Agreement invalid or unenforceable whatsoever. 11.8 Waiver. No waiver under this Agreement will be valid or binding unless set forth in writing and duly executed by the Party against whom enforcement of such waiver is sought. Any such waiver will constitute a waiver only with respect to the specific matter described therein and will in no way impair the rights of the Party granting such waiver in any other respect or at any other time. Any delay or forbearance by either Party in exercising any right hereunder will not be deemed a waiver of that right. 11.9 Force Majeure. Except with respect to payment obligations hereunder, if a Party is prevented or delayed in performance of its obligations hereunder as a result of circumstances beyond such Party's reasonable control, including, by way of example, Internet access outside of Provider's control, war, terror, riot, fires, floods, epidemics, or failure of public utilities or public transportation systems, such failure or delay will not be deemed to constitute a material breach of this Agreement, but such obligation will remain in full force and effect, and will be performed or satisfied as soon as reasonably practicable after the termination of the relevant circumstances causing such failure or delay, provided that if such Party is prevented or delayed from performing for more than ninety (90) days, the other Party may terminate this Agreement upon thirty (30) days' written notice. 11.10 Governing Law. THIS AGREEMENT WILL BE GOVERNED BY AND INTERPRETED IN ACCORDANCE WITH THE LAWS OF THE STATE OF TEXAS, WITHOUT REGARD TO Contract #: CONFLICTS OF LAW PRINCIPLES THEREOF OR TO THE UNITED NATIONS CONVENTION ON THE INTERNATIONAL SALE OF GOODS. FOR PURPOSES OF ALL CLAIMS BROUGHT UNDER THIS AGREEMENT, EACH OF THE PARTIES HEREBY IRREVOCABLY SUBMITS TO THE EXCLUSIVE JURISDICTION OF THE STATE AND FEDERAL COURTS LOCATED IN NUECES COUNTY, TEXAS. 11.11 U.S. Government End- Users. Each of the Documentation and the software components that constitute the Application Service is a "commercial item" as that term is defined at 48 C.F.R. 2.101, consisting of "commercial computer software" and "commercial computer software documentation" as such terms are used in 48 C.F.R. 12.212. Consistent with 48 C.F.R. 12.212 and 48 C.F.R. 227.7202 -1 through 227.7202 -4, all U.S. Government end users acquire the Application Service and the Documentation with only those rights set forth therein. 11.12 Counterparts. This Agreement may be executed in any number of counterparts, each of which when so executed will be deemed to be an original and all of which when taken together will constitute one Agreement. 11.13 Headings. The headings in this Agreement are inserted merely for the purpose of convenience and will not affect the meaning or interpretation of this Agreement. 11.14 Publicity. In consideration for the rights granted under the terms of this Agreement, Client hereby grants Provider the right to reference Client as a customer of Provider and issue a press release to that effect. Virgin HealthMiles, Inc. CONFIDENTIAL AND PROPRIETARY Page 5 �K'HEALTHMILES Virgin HealthMiles, Inc. Application Service Agreement EXHIBIT A PRICING Contract #: REWARDS PROGRAM OPTIONS Virgin HealthMiles offers three rewards programs Client can choose from when determining the amount of rewards to offer to Client's Beneficiaries; however, Clients may also customize the amount of rewards offered based on the Virgin HealthMiles Levels system (a minimum of $150 in annual rewards is required). Client should select one of the standard rewards programs or in the alternative determine its own custom rewards program pay-out using the VHM leveling system. Members will earn the following rewards amounts associated with the selected rewards program. Client will be billed for Member rewards as they are earned by the Member. Client Selected Client Rewards P Specified Total lid �i6o $300 -0- -0- $0 2 $25 $25 $25 $25 3 $25 $75 $125 $25 4 $50 $100 $175 $100 5 $50 $100 $175 $150 PROGRAM PRICING Virgin HealthMiles' pricing includes the following components: program subscription, engagement subscription, activity and biometric tracking devices, rewards and on-site events. Estimated Number of Beneficiaries ANNUAL PROGRAM SUBSCRIPTION # 3,000 $ - 12 per year per Beneficiary Program "Annual Program ­ 5ubscrpfion"p'er_ Beneficiary covers ongoing setup, program infrastructure, Subscription and eligibility processing for Client, initial and ongoing enrollment communications; client service; program sponsorship (brand visibility); standard program reporting. Payment Terms The Annual Program Subscription is due and payable in full for the total number eligibles as of the program launch date. The full annual fee per eligible employee above shall be invoiced at the beginning of each contract year. A mid-year reconciliation will be completed each contract year to account for any additional eligible employees who are added. A 50% prorated fee will be charged for those new eligible _qTplqy Additional Terms: ---- ------ - ...... $__L._25 per Member per month Engagemen I, t includes: Engage Subscription " pei - Member; 'p'ar to the on line program portal; Subscription engagement programs and Member benefits (including administration of two (2) corporate challenges per year, does not include challenge prizes or rewards); on-going program communications, Member service. Payment Terms: The monthly Engagement Subscription is due and payable on the date of enrollment of each Member and for each succeeding month thereafter for as long as the Member is participating in the program. Additional Terms: Virgin HealthMiles, Inc. CONFIDENTIAL AND PROPRIETARY Pricing Exhibit - Page 1 TRACIQNG DEVtCF' Activity: It 24 99 er Memb r I GoZone p e (p us app Ica a sa es tax) pedometers Includes_ One-time trackin g device (GoZon e l . __,..._ _ W _ ......... ......._ e pedometer) per Member. The GoZone is a required µ component of the program and must be purchased upon Member activation. *Price includes shipping and handling. Additional Terms: Virgin HealthMiles offers desktop HealthZones and can help you determine the appropriate number of HealthZones for your organization. Such HealthZone deliveries shall be subject to Biometrics: the terms of a separate addendum to this Agreement agreed between the Parties. HealthZone Measurement ' Desktop HealthZone: # 4 units Stations • $2,750 purchase price per unit (includes first year of maintenance) a $250 / annual maintenance fee after first year (required; price subject to change) Client must supply computer and Internet connectivity for device. Member rewards are established based upon the individual Client specifications provided, however, the Client must provide a minimum of $150 annual member rewards. The Client may designate the amount of rewards based upon the proprietary Virgin HealthMiles leveling system. The Client may not change the activity required to meet each Level, or the standard Virgin HealthMiles engagement program activities, such as special bonus HealthMiles events, etc. (Virgin HealthMiles provides an annual calendar of all such activity events.) Virgin HealthMiles invoices the Client as the rewards are earned by Rewards each Member on a monthly basis. All rewards, inclusive of challenges and other prizes, and excluding any rebates earned by through the Rebate Center, will be passed through at cost to the Client, and Structure and Virgin HealthMiles manages the Member rewards activity at no cost to the Client. Earned rewards are Administration : credited to each Member's reward account and are available for redemption at any time, subject to certain limitations, administrative and processing fees. Member rewards may be redeemed either in cash (in the form of a check or other means of cash equivalent distribution) or by gift card. Virgin HealthMiles reserves the right to modify the rewards redemption procedures and types of redemption vehicles as deemed necessary by Virgin HealthMiles. All redemptions must meet the minimum redemption amount of $25. Member rewards must be redeemed within a two (2) year period from the time the reward was earned. Virgin HealthMiles' practice is to advise each Member that the rewards are approaching the two (2) year required redemption period. If the rewards are not redeemed within the two (2) year required redemption period the Member rewards balance shall be considered dormant and Virgin HealthMiles will assess a 5% per month maintenance fee (minimum of $2 per month) on the outstandin Member rewards balance and follow any avolicable escheatment procedures. Virgin HealthMiles, Inc. CONFIDENTIAL AND PROPRIETARY Pricing Exhibit — Page 2 ..... ... ............. .. ..... ANCILLARY SERVICES (available for additional purchase) Virgin HealthMiles offers a variety of additional features you can choose from to enhance the program for your organization. Clients may purchase additional HealthMiles or HealthCash to distribute to their Vouchers & File employees for participation in specific activities beyond the Virgin HealthMiles Uploads program. This can be handled via file uploads or with vouchers, which are (Additional HealthMiles or purchased by and sent to the client to distribute at their discretion. HealthCash) File Uploads: • Clients are allowed up to four (4) file uploads per contract year to add either HealthMiles or HealthCash to their employees' accounts. Additional file uploads may incur a $250 fee per file. Files must be in the format provided by Virgin HealthMiles and contain the validated list of reward recipients. • Please see the Rewards Structure and Administration section for invoice details. Vouchers: • HealthMiles: at cost - printing, shipping, and handling; available in minimum increments of 100 HealthMiles per voucher • HealthCash: stated value of HealthCash voucher (plus printing, shipping, and handling); available in minimum increments of $25 HealthCash per voucher • $5,000 + travel costs On -site Events One standard event includes: one eight (8) hour event at a single location; two (2) Virgin HealthMiles staff members (event manager and support staff); one (1) tabletop display; one (1) vertical banner, one - hundred (100) each new member welcome materials (electronic copy also provided to client), printed enrollment materials (electronic copy also provided to client); twenty (20) 1 1"x 1 7" awareness posters; three- hundred (300) each event giveaways (Virgin HealthMiles stress balls and t- shirts); three (3) raffle prizes (Apple Pod nano). Volume discount pricing is available for clients purchasing more than 3 events. This pricing also applies rf the Client requests two 3 -hour events on the same day in the same city. • $500 per additional challenge for administration Additional Challenges Rewards cost (if applicable) Virgin HealthMiles administers two (2) corporate challenges per year (does not include challenge prizes or rewards). Virgin HealthMiles reserves the right to modify the amount, type, and frequency of these events. Customization Services • Quote available upon request (Enrollment Communications, Reporting, Data Query) Virgin HealthMiles, Inc. CONFIDENTIAL AND PROPRIETARY Pricing Exhibit - Page 3