TERMS OF USE AGREEMENT

This Terms of Use Agreement constitutes a binding agreement (the “Agreement”) between Bonsai Health, Inc. ( “Bonsai Health”), and the legal entity you represent (referred to herein as “You” or “Your”). The “Effective Date” of this Agreement shall be the earlier of (i) Your acceptance of the terms of this Agreement by clicking on the “I Accept” button, or (ii) Your use of the Services (as define below). Each party will be referred to herein as a “Party” and collectively, the “Parties.”

This Agreement includes and incorporates by reference all Exhibits hereto, including, to the extent applicable, the Business Associate Agreement (“BAA”) incorporated herein, and any amendments to the Agreement and any Order Forms (as defined below) to which the Parties may agree in writing from time to time.

PLEASE READ THIS AGREEMENT CAREFULLY. THIS AGREEMENT GOVERNS YOUR USE OF THE SERVICES. BY CLICKING ON THE “I ACCEPT” BUTTON OR ACCESSING OR USING THE SERVICES, YOU REPRESENT THAT (1) YOU HAVE READ, UNDERSTAND, AND AGREE TO BE BOUND BY THIS AGREEMENT, (2) YOU ARE OF LEGAL AGE TO FORM A BINDING CONTRACT WITH BONSAI HEALTH, AND (3) YOU HAVE THE AUTHORITY TO ENTER INTO THE AGREEMENT ON BEHALF OF THE ENTITY YOU HAVE NAMED AS THE USER, AND TO BIND THAT ENTITY TO THE AGREEMENT. IF YOU DO NOT AGREE TO BE BOUND BY THIS AGREEMENT, YOU MAY NOT ACCESS OR USE THE SERVICES.

AGREEMENT

DEFINITIONS. Capitalized terms have the meaning set forth below or as defined within this Agreement.
1. 1.1“API(s)” means the application programming interfaces provided by Bonsai Health to facilitate the integration with Third-Party Services.
2. 1.2“Authorized User” means Your employees, agents, and independent contractors who are authorized to access the Services pursuant to Your rights under this Agreement.
3. 1.3“Documentation” means all specifications, user manuals, and other technical materials relating to the Services that are provided or made available to You by Bonsai Health, and as may be modified by Bonsai Health from time to time.
4. 1.4“Fees” means any fees incurred and set forth on an Order Form.
5. 1.5“Intellectual Property Rights ” means all past, present, and future rights of the following types, which may exist or be created under the laws of any jurisdiction in the world: (a) rights associated with works of authorship, including exclusive exploitation rights, copyrights, moral rights, and mask work rights; (b) trademark and trade name rights and similar rights; (c) trade secret rights; (d) patent and industrial property rights; (e) other proprietary rights of every kind and nature; and (f) rights in or relating to registrations, renewals, extensions, combinations, divisions, and reissues of, and applications for, any of the rights referred to in clauses (a) through (e) of this sentence.
6. 1.6“Order Form(s)” means any ordering document, confirmation email, or other written acknowledgement of an order placed for access to the Platform provided by Bonsai Health and referring to this Agreement.
7. 1.7“Performance Data” means general performance and usage data generated or collected through or in connection with Your use of the Services (such as technical logs, account and login data, and processed volumes).
8. 1.8“Platform” means Bonsai Health’s software-as-a-service platform (as such platform may be modified and updated over time) that makes available to You certain data analytics and insights on end customer engagement.
9. 1.9“Services” means the Website, the Platform, APIs, Documentation, content and information contained within the foregoing, other services identified on the Order Form by Bonsai Health, and improvements or enhancements made to any of the foregoing, in each case solely to the extent that Bonsai Health elects.
10. 1.10“Website” means www.bonsaihealth.com and all of its subdomains.
11. 1.11“Your Data” means all content, data, and information provided or submitted by You, or on behalf of, You or Your Authorized Users, in connection with the Services. Your Data does not include Performance Data or Derived Data.
ACCESS TO THE SERVICES; RESTRICTIONS.
1. 2.1 Access. Subject to the terms and conditions of this Agreement, Bonsai Health hereby grants to You, and the Authorized Users designated by You, a limited, non-exclusive, non-transferable (except as permitted under Section 10.3), non-sublicensable right during the Term to: (a) use and access the Platform and the APIs in accordance with the Documentation and the terms of this Agreement and Order Forms, including any usage limitations identified therein; and (b) use and make reasonable copies of the Documentation, in each case solely for Your internal business purposes. You acknowledge and agree that Bonsai Health may update the Services from time to time with or without notifying You, provided that Bonsai Health shall use commercially reasonable efforts to ensure that any such updates do not materially degrade the functionality of the Services.
2. 2.2 Restrictions. You shall not, and shall procure that Your Authorized Users shall not: (a) allow any third party to access the Services except as expressly allowed herein; (b) modify, adapt, alter or translate the Services; (c) sublicense, lease, sell, resell, rent, loan, distribute, transfer or otherwise allow the use of the Services for the benefit of any unauthorized third party; (d) reverse engineer, decompile, disassemble, or otherwise derive or determine or attempt to derive or determine the source code (or the underlying ideas, algorithms, structure or organization) of the Services, except as permitted by law; (e) interfere in any manner with the operation of the Services or the hardware and network used to operate the same, or attempt to probe, scan or test vulnerability of the Services without prior authorization of Bonsai Health; (f) modify, copy or make derivative works based on any part of the Services; (g) access or use the Services to build a similar or competitive product or service or otherwise engage in competitive analysis or benchmarking; (h) attempt to access the Services through any unapproved interface; (i) use the Services in connection with any of Your time-critical or mission-critical functions; (j) use the API(s) in a manner that, in Bonsai Health’s discretion, exceeds specified call/query volumes, constitutes abusive or excessive use, or otherwise fails to comply with or is inconsistent with this Agreement; (k) remove, alter, or obscure any proprietary notices (including copyright and trademark notices) of Bonsai Health or its licensors on the Services or any copies thereof; or (l) otherwise use the Services in any manner that exceeds the scope of use permitted under Section 2.1 or in a manner inconsistent with applicable law, the Documentation, the Order Form, or this Agreement. Bonsai Health reserves the right to suspend Yours or any Authorized User’s access to the Services for any failure, or suspected failure, to comply with the foregoing conditions.
3. 2.3 Security. You acknowledge and agree that: (a) You are responsible for maintaining the confidentiality of all Your passwords and are solely responsible for all activities that occur under the account associated with the email You used the register for the Platform; and (b) You will notify Bonsai Health promptly of any actual or suspected unauthorized use of any account, username, or passwords, or any other breach or suspected breach of this Agreement. Bonsai Health reserves the right to suspend, disable, or terminate Your access to the Services that Bonsai Health reasonably determines may have been used by an unauthorized third party.
4. 2.4 Responsible Use of the Services. You shall not provide to Bonsai Health or otherwise make available (including upload) any of Your Data to the Services that: (a) infringes or misappropriate any third party’s Intellectual Property Rights or other proprietary rights; (b) is inaccurate, deceptive, discriminatory, biased, unethical, defamatory, obscene, pornographic, or illegal; (c) constitutes “personal data,” “personal information,” or similarly defined term under any U.S. state comprehensive consumer privacy laws (such as the California Consumer Privacy Act) to the extent You are subject to such laws as a “business,” “controller” or similarly defined term under such applicable laws; (d) constitutes “protected health information” under the Health Insurance Portability and Accountability Act and its implementing regulations, each as amended (“ HIPAA”) unless You first inform Bonsai Health in accordance with Section 5.5; or (d) contains any viruses, worms, or other malicious computer programming codes that may damage the Services. You agree that any use of the Services contrary to the responsible uses described herein constitutes unauthorized and improper use of the Services.
FEES, PAYMENT, AND TAXES.
1. 3.1 Fees; Invoicing and Payment. You are responsible for paying all Fees, including, without limitation, any monthly, annual, or variable amounts based on usage (e.g., the number of patients per location), associated with Your account in accordance with the payment terms set forth in the Order Form. Unless otherwise set forth on the Order Form, any variable amounts charged based on usage will be billed monthly in arrears. You will be billed for all amounts due under this Agreement via the payment method on file. You must provide current, complete, and accurate information for billing and promptly update all information to keep such information current, complete, and accurate. If there are no valid payment methods on file for You, Bonsai Health may send You invoices for the balance of any amounts due. All Fees are quoted in United States Dollars and, except as set forth otherwise in this Agreement, are non-refundable. At the end of each year during the Term, Bonsai Health reserves the right to modify any pricing or payment terms, including, without limitation, increasing the pricing associated with any Fees payable, for the forthcoming year upon written notice to You at least thirty (30) days prior to the commencement of the forthcoming year.
2. 3.2 Late Payments. Payments that are past due will be subject to interest at the rate of one and one-half percent (1.5%) per month (or, if less, the maximum allowed by applicable law) on that overdue balance. You will be responsible for any costs resulting from collection by Bonsai Health of any such overdue balance, including, without limitation, reasonable attorneys’ fees and court costs. Bonsai Health reserves the right (in addition to any other rights or remedies Bonsai Health may have) to suspend You and all Authorized Users’ access to the Services if any Fees are more than fifteen (15) days overdue until such amounts are paid in full.
3. 3.3 Taxes; Withholding. The Fees do not include taxes, duties, or charges of any kind. If Bonsai Health is required to pay or collect any local, value added, goods and services taxes, or any other similar taxes or duties arising out of or related to this Agreement (not including taxes based on Bonsai Health’s income), then such taxes and/or duties shall be billed to and paid by You. If any applicable law requires You to withhold amounts from any payments to Bonsai Health hereunder, then the sum payable by You upon which the deduction or withholding is based will be increased to the extent necessary to ensure that, after such deduction or withholding, Bonsai Health receives and retains, free from liability for such deduction or withholding, a net amount equal to the amount Bonsai Health would have received and retained in the absence of such required deduction or withholding.
TERM AND TERMINATION.
1. 4.1 Term. This Agreement will begin on the Effective Date and will continue in full force and effect for as long as any Order Form remains in effect, unless earlier terminated in accordance with the Agreement (the “ Term”).
2. 4.2 Order Form Term. Each Order Form shall have an initial subscription term specified on the Order Form. Thereafter, the Order Form will automatically renew for additional terms of one (1) year unless either Party gives written notice of non-renewal to the other Party at least thirty (30) days prior to the expiration of the then-current term.
3. 4.3 Termination for Breach. Either Party may terminate this Agreement immediately upon notice to the other Party if: (a) the other Party materially breaches this Agreement, and such breach remains uncured more than thirty (30) days after receipt of written notice of such breach; or (b) the other Party: (i) becomes insolvent; (ii) files a petition in bankruptcy that is not dismissed within sixty (60) days of commencement; or (iii) makes an assignment for the benefit of its creditors.
4. 4.4 Effect of Termination. Upon the earlier of expiration or termination of this Agreement: (a) except as needed to perform its obligations or exercise its rights herein, each Party shall immediately return or, if requested by a Party, destroy all (including any copies of) Confidential Information of the other Party and, upon request, each Party shall provide written certification that the foregoing obligations have been completed; (b) the rights and licenses granted to You hereunder will immediately terminate, You will cease use of the Services and Documentation, and return or destroy all copies of the Documentation in its possession/control; (c) all definitions and the Parties’ rights and obligations under Sections 2.2 - 2.4, 3, 4.4, and 5 - 10 will survive termination of this Agreement and/or any Order Form; and (d) termination of this Agreement will not limit either Party from pursuing any other remedies available to it, including injunctive relief, nor will termination relieve You of Your obligation to pay all Fees that accrued prior to such termination.
CONFIDENTIALITY.
1. 5.1 Confidential Information. Each Party (“ Receiving Party”) acknowledges that it may receive from the other Party (“ Disclosing Party”) confidential information relating to the Disclosing Party and such confidential information includes, but is not limited to, technical, business, marketing and financial information, and any other information that could reasonably be considered confidential or proprietary (“ Confidential Information”). The terms of this Agreement and any Order Form, the non-public features of the Services, and all technical information relating thereto shall be considered Confidential Information of Bonsai Health. All Confidential Information disclosed by Disclosing Party shall remain the property of the Disclosing Party. The Disclosing Party reserves all rights in its Confidential Information. Nothing in this Agreement or the disclosures envisaged by this Agreement shall (except for the limited use right above) operate to transfer, or operate as a grant of any, Intellectual Property Rights in the Confidential Information.
2. 5.2 Exclusions. Confidential Information does not include information that: (a) is or becomes generally available to the public other than through a wrongful act of the Receiving Party; (b) is or becomes available to the Receiving Party on a non-confidential basis from a source that is entitled to disclose it to the Receiving Party; or (c) is independently developed by the Receiving Party, its employees or third-party contractors without access to or use of the Disclosing Party’s Confidential Information.
3. 5.3 Obligations. During and after the Term, the Receiving Party shall: (a) not use or disclose Confidential Information of the Disclosing Party without the prior written consent of the Disclosing Party except as required for the performance of, or the exercise of rights under, this Agreement; and (b) take no less than the same measures that it takes with its own Confidential Information, and in any case no less than reasonable measures, to maintain the Confidential Information of the Disclosing Party.
4. 5.4 Disclosure by Law. Either Party may disclose Confidential Information to the extent required by law, provided that the Receiving Party gives the Disclosing Party reasonable advance notice of such required disclosure and cooperates with the Disclosing Party so that the Disclosing Party has the opportunity to obtain appropriate confidential treatment for such Confidential Information.
5. 5.5 Protected Health Information. You agree that Your Data will not include any protected health information subject to HIPAA without first informing Bonsai Health in writing, either as part of Bonsai Health’s standard ordering process or such other manner communicated to You by Bonsai Health, that You are either a HIPAA covered entity or business associate. You acknowledge and agree that, between You and Bonsai Health, it is Your responsibility to inform Bonsai Health of its HIPAA status to ensure the Parties’ compliance with HIPAA to the extent applicable. As such, You represent and warrant that You will inform Bonsai Health in writing to the extent You are a “covered entity” or “business associate” under HIPAA. You further acknowledge and agree that it is Your ongoing responsibility during the Term of this Agreement to inform Bonsai Health in writing to the extent You become subject to HIPAA or another change affecting HIPAA’s applicability to You or Your Data. To the extent that You are a HIPAA covered entity or business associate and Your Data includes any protected health information subject to HIPAA, then: (i) You and Bonsai Health agree that the BAA available here shall be incorporated herein and will govern the privacy and security of the protected health information that Bonsai Health accesses or receives on Your behalf, and (ii) the Parties agree to comply with their respective obligations under the BAA.
INTELLECTUAL PROPERTY RIGHTS.
1. 6.1 Services. This Agreement does not grant to You any ownership interest in the Services (excluding Your Data). The Services (excluding Your Data) is proprietary to Bonsai Health and Bonsai Health and its licensors have and retain all right, title, and interest, including all Intellectual Property Rights therein and all improvements, enhancements, and modifications thereto. You acknowledge that any trademarks, trade names, logos, service marks, or symbols adopted by Bonsai Health to identify the Services belong to Bonsai Health and/or its licensors, and that You have no rights therein. Except as expressly set forth herein, no express or implied license or right of any kind is granted to You regarding the Services, including any right to obtain possession of any source code, data, or other technical material relating to the Services. All rights not expressly granted to You are reserved by Bonsai Health.
2. 6.2 Ownership of Your Data and Your Confidential Information. Your Data and Your Confidential Information, and all worldwide Intellectual Property Rights therein, are exclusive property to You. All rights in and to Your Data and Your Confidential Information not expressly granted to Bonsai Health in this Agreement are reserved by You. You grant Bonsai Health a non-exclusive, perpetual, worldwide, royalty-free, and fully paid license to store, process, and use Your Data as necessary for purposes of (i) providing and improving the Services and Bonsai Health’s related products and services; and (ii) for any lawful business purpose.
3. 6.3 Feedback. You hereby grant Bonsai Health a perpetual, irrevocable, royalty-free, and fully paid right to use and otherwise exploit in any manner any suggestions, ideas, enhancement requests, feedback, recommendations, or other information provided by You related to the Services, including for the purpose of improving and enhancing the Platform; provided that You are not referenced in such use.
4. 6.4 Derived Data. You hereby grant Bonsai Health a non-exclusive, worldwide, royalty-free, and fully paid license to derive de-identified, aggregated, and/or anonymized data from Your Data (collectively, “ Derived Data”). You agree that You have no rights or other interests in the Derived Data and that Bonsai Health may use such Derived Data for any lawful business purpose.
5. 6.5 Performance Data. Bonsai Health may generate Performance Data (for example, to operate, improve, analyze, and support the Services, for benchmarking and reporting purposes and for Bonsai Health’s other lawful business purposes) as part of the Services.
WARRANTIES; DISCLAIMERS.
1. 7.1 Third-Party Services. The Services may contain data, links, or connections to or from third-party websites, products, or services that are not owned or controlled by Bonsai Health and any other third-party services You select as data sources (collectively “ Third-Party Services”). When You access or use Third-Party Services, or data provided thereby You accept that there are risks in doing so, and that Bonsai Health is not responsible for such risks, or the reliability thereof. Bonsai Health has no control over, and assumes no responsibility for, the information, accuracy, privacy policies, services, or practices of or opinions expressed in any Third-Party Services.
2. 7.2 Your Representations and Warranties. You represent and warrant that You have provided all appropriate notices and obtained all necessary consents to provide or otherwise make available Your Data to Bonsai Health, including any patient or insured party data that You submit to the Platform.
3. 7.3 DISCLAIMERS.
  1. (a) NOT MEDICAL SERVICES. Bonsai Health does not practice medicine or any other profession, provide medical or other professional clinical advice, make diagnostic, treatment, coding, billing, or other clinical decisions, judgments, or recommendations. The information that is provided to You through the Services is dependent upon Your Data. Bonsai Health is not and will not be responsible for, Your Data or any other user data uploaded or transmitted, or not uploaded or transmitted, through the Services. Further, You agree that You are solely responsible for Your interactions with Your end customer. YOU ACKNOWLEDGE AND AGREE THAT (I) THE SERVICES DO NOT REPLACE MEDICAL CONSULTATION, EXAMINATION, AND RECORD REVIEW; AND (II) THE PROFESSIONAL DUTY TO ANY OF YOUR END CUSTOMERS IN THE PROVISION OF HEALTHCARE SERVICES AND COMPLIANCE WITH THE APPLICABLE STANDARD OF CARE IN DELIVERING SUCH HEALTHCARE SERVICES LIES SOLELY WITH YOU, AS A HEALTHCARE PROFESSIONAL PROVIDING SUCH PATIENT CARE SERVICES AND NOT WITH BONSAI HEALTH. YOU WILL BE RESPONSIBLE FOR ALL CODING, BILLING, PAYMENT, AND REIMBURSEMENT DECISIONS.
  2. (b) GENERAL. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE SERVICES ARE PROVIDED BY BONSAI HEALTH “AS IS” AND “AS AVAILABLE,” AND BONSAI HEALTH AND ITS LICENSORS MAKE NO REPRESENTATIONS, WARRANTIES, OR CONDITIONS OF ANY KIND, ORAL, STATUTORY, EXPRESS, IMPLIED, BY COURSE OF COMMUNICATION OR DEALING, OR OTHERWISE. BONSAI HEALTH AND ITS LICENSORS SPECIFICALLY DISCLAIM ANY AND ALL OTHER WARRANTIES, INCLUDING WITH RESPECT TO TITLE, MERCHANTABILITY, NON-INFRINGEMENT, OR FITNESS FOR ANY PARTICULAR PURPOSE OF THE SERVICES FURNISHED UNDER THIS AGREEMENT. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, BONSAI HEALTH DOES NOT WARRANT THAT THE SERVICES ARE ERROR-FREE, ACCURATE OR THAT THE SERVICES WILL OPERATE WITHOUT INTERRUPTION, AND BONSAI HEALTH GRANTS NO WARRANTY REGARDING YOUR USE OF THE SERVICES. THE SERVICES MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS. BONSAI HEALTH IS NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES, OR OTHER DAMAGES RESULTING FROM SUCH PROBLEMS.
INDEMNIFICATION.
1. 8.1 By You. You will defend at Your expense any suit brought against Bonsai Health, and will pay any settlement You make or approve, or any damages finally awarded in such suit, insofar as such suit is based on a claim arising out of or relating to a claim arising out of (a) Your Data, including any breach or alleged breach of Section 7.2, (b) Your use or misuse of the Services, including any use of the Services in violation of applicable laws or regulations; (c) Your failure to inform Bonsai Health in writing that You are a HIPAA covered entity or business associate pursuant to Section 5.5 or (d) the care or services You provide Your end customer or other third parties.
2. 8.2 By Bonsai Health. Bonsai Health will defend at its expense any suit brought against You, and will pay any settlement Bonsai Health makes or approves, or any damages finally awarded in such suit, insofar as such suit is based on a claim arising out of or relating to a third-party claim alleging that the Platform or API(s) as provided to You and used in accordance with this Agreement infringes a third party’s Intellectual Property Rights, provided that Bonsai Health shall have no liability to the extent that the alleged infringement arises from: (a) alterations or modifications made to the Platform or API(s) made by You or any third party; (b) Your Data, including any breach or alleged breath of Section 2.4; (c) content generated or provided by Third-Party Services; (d) use of the Platform or API(s) in combination with products or content not supplied by the Services where the claim would not have arisen in the absence of such combination; or (e) use of the Platform or API(s) in violation of the Agreement or applicable laws. The foregoing represents Bonsai Health’s sole obligation, and Your sole remedy, regarding an allegation that the Platform or API(s) infringes a third party’s Intellectual Property Rights.
3. 8.3 Indemnification Procedure. The indemnifying Party’s obligations as set forth above are expressly conditioned upon each of the foregoing: (a) the indemnified Party will promptly notify the indemnifying Party in writing of any threatened or actual claim or suit (provided, however, that the indemnified Party’s failure to do so shall not relieve the indemnifying Party of its indemnification obligations hereunder except to the extent that the indemnifying Party has been adversely affected by the failure to receive such prompt notice); (b) the indemnifying Party will have sole control of the defense or settlement of any claim or suit; and (c) the indemnified Party will cooperate with the indemnifying Party to facilitate the settlement or defense of any claim or suit.
LIMITATION OF LIABILITY.
1. 9.1 Types of Damages. NEITHER PARTY SHALL BE LIABLE TO THE OTHER PARTY NOR TO ANY THIRD PARTIES FOR LOST PROFITS OR LOST DATA OR FOR ANY INDIRECT, SPECIAL, CONSEQUENTIAL, RELIANCE, OR PUNITIVE LOSSES OR DAMAGES HOWSOEVER ARISING UNDER THIS AGREEMENT OR IN CONNECTION WITH THE SERVICES WHETHER UNDER CONTRACT, TORT OR OTHERWISE, WHETHER FORESEEABLE OR NOT AND REGARDLESS OF WHETHER SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY THAT SUCH DAMAGES MAY ARISE, OCCUR OR RESULT. IN NO EVENT SHALL BONSAI HEALTH BE LIABLE FOR PROCUREMENT COSTS OF SUBSTITUTE PRODUCTS OR SERVICES.
2. 9.2 Amount of Damages. IN NO EVENT WILL EITHER PARTY’S AGGREGATE CUMULATIVE LIABILITY UNDER THIS AGREEMENT EXCEED THE AMOUNT OF FEES PAID OR PAYABLE BY YOU TO BONSAI HEALTH UNDER THE APPLICABLE ORDER FORM IN THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO THE CLAIM.
3. 9.3 Exclusions. THESE LIMITATIONS OF LIABILITY IN THIS SECTION 9 DO NOT APPLY TO: (A) YOUR BREACH OF SECTION 2 OR SECTION 5.5; (B) EITHER PARTY’S INDEMNIFICATION OBLIGATIONS; (C) YOUR PAYMENT OBLIGATIONS; OR (C) CLAIMS ARISING FROM EITHER PARTY’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT. THESE LIMITATIONS OF LIABILITY WILL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY.
GENERAL PROVISIONS.
1. 10.1 Relationship Between the Parties. Bonsai Health is an independent contractor; nothing in this Agreement will be construed to create a partnership, joint venture, or agency relationship between the Parties. Neither Party will have, nor represent to any third party that it has, any authority to act on behalf of the other Party. Each Party will be solely responsible for payment of all compensation owed to its employees, as well as employment related taxes.
2. 10.2 Injunctive Relief. You acknowledge that the Services contain valuable Intellectual Property Rights and proprietary information of Bonsai Health, that any actual or threatened breach of Sections 2 or 5 will constitute immediate, irreparable harm to Bonsai Health for which monetary damages would be an inadequate remedy, and that injunctive relief is an appropriate remedy for such breach. If You continue to use the Services after its right to do so has terminated or expired, Bonsai Health will be entitled to immediate injunctive relief without the requirement of posting bond.
3. 10.3 Assignment. Neither Party may assign or transfer its rights or obligations under this Agreement without the prior written consent of the other Party, and any assignment or transfer of the foregoing shall be null and void, provided, however that either Party shall have the right to assign the Agreement, without the prior written consent of the other Party, to the successor entity in the event of a merger, corporate reorganization, or a sale of all or substantially all of such Party’s assets. This Agreement shall be binding upon the Parties and their respective successors and permitted assigns.
4. 10.4 Publicity. Bonsai Health may use Your name and logo in its customer list (including on Bonsai Health’s Website, social media and in sales and marketing materials) in the same manner in which it uses the names of its other customers, provided that at all times Bonsai Health shall use Your name and logo in accordance with Your applicable branding guidelines and Bonsai Health may not use Your name in any other way without Your prior written consent (with email consent deemed sufficient).
5. 10.5 Notices. All notices required or permitted under this Agreement must be delivered in writing, if to Bonsai Health, to the address set forth below, and if to You, by emailing the Point of Contact email address listed on the Order Form. Notice will be deemed effective: (i) at the time of delivery when delivered personally; (ii) one (1) day after delivery if by overnight courier service or three (3) days after deposit in mail; or (iii) upon confirmed dispatch if by email. Each Party may change its email address and/or address for receipt of notice by giving notice of such change to the other Party.
  1. Notices for Bonsai Health:
    
    Bonsai Health, Inc.
    12100 Wilshire Blvd, Suite 800
    Los Angeles, California 90025
    Attn: Co-Chief Executive Officers
6. 10.6 Governing Law; Dispute Resolution. The Agreement is governed by the laws of the State of California, without regard to its conflicts of laws or provisions and this Agreement shall not be governed or affected by any version of the Uniform Computer Information Transactions Act enacted in any jurisdiction. The United Nations Convention on Contracts for the International Sale of Goods does not apply to this Agreement. The prevailing Party in any action to enforce this Agreement shall be entitled to recover attorneys’ fees, court costs, and other collection expenses. In the event of any dispute arising under or relating to this Agreement, the parties shall first attempt to resolve such dispute amicably through informal dispute resolution, which shall commence by one party sending a notice of dispute to the other party. Following such notice, representatives from both parties with authority to resolve the dispute shall meet and confer to negotiate a resolution. Any dispute that is not resolved within thirty (30) days after the initial meeting or forty-five (45) days after the initial notice shall be determined and settled by confidential arbitration, conducted in English, held in Los Angeles County, California, administered by the American Arbitration Association (“ AAA”) before a sole arbitrator in accordance with the then-current AAA Commercial Arbitration Rules. The award rendered by the arbitrator shall be final and binding on the parties thereto, and judgment thereon may be entered in any court of competent jurisdiction. Nothing in this section shall prevent either party from applying to a court of competent jurisdiction for equitable or injunctive relief.
7. 10.7 Waivers; Severability. Any waivers shall be effective only if made by writing signed by representatives authorized to bind the Parties. Any waiver or failure to enforce any provision of this Agreement on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion. If any provision of this Agreement is unenforceable, such provision will be changed and interpreted to accomplish the objectives of such provision to the greatest extent possible under applicable law and the remaining provisions will continue in full force and effect.
8. 10.8 Construction. The headings of sections of this Agreement are for convenience and are not to be used in interpreting this Agreement. As used in this Agreement, the word “including” means “including but not limited to.” Words used in this Agreement, regardless of the number or gender specifically used, shall be deemed and construed to include any other number, singular or plural, and any other gender, masculine, feminine or neuter, as the context shall require.
9. 10.9 Force Majeure. Any delay in the performance of any duties or obligations of either Party (except for the obligation to pay Fees owed) will not be considered a breach of this Agreement if such delay is caused by a labor dispute, shortage of materials, war, fire, earthquake, typhoon, flood, natural disasters, governmental action, pandemic/epidemic, cyber terrorism, cloud-service provider outages any other event beyond the control of such Party, provided that such Party uses reasonable efforts, under the circumstances, to notify the other Party of the circumstances causing the delay and to resume performance as soon as possible.
10. 10.10 Entire Agreement; Amendment. This Agreement, any Exhibits, BAA (if applicable), and Order Forms constitutes the complete agreement between the Parties and supersedes all previous and contemporaneous agreements, proposals, or representations, written or oral, concerning the subject matter of this Agreement. To the extent that a conflict arises between the terms and conditions of an Order Form and the terms of this Agreement, the terms and conditions of this Agreement will govern, except to the extent that the Order Form, as applicable, expressly states that it supersedes specific language in the Agreement. It is expressly agreed that the terms and conditions of this Agreement and any Order Form supersede the terms any purchase order from You. Neither this Agreement nor an Order Form may be modified or amended except in writing signed by a duly authorized representative of each Party; no other act, document, usage, or custom will be deemed to amend or modify this Agreement or an Order Form.