FullMetrics Terms and Conditions

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‍These FullMetrics Terms and Conditions together with the corresponding Services Order Form (collectively, the “Agreement”) is between FullMetrics and Client. Capitalized terms used in these Terms and Conditions and not otherwise defined herein shall have the same meaning as set forth in the Services Order Form. FULLMETRICS IS WILLING TO PROVIDE THE SERVICES, INCLUDING LICENSING THE PLATFORM, TO CLIENT ONLY UPON THE CONDITION THAT CLIENT ACCEPTS ALL OF THESE TERMS AND CONDITIONS. BEFORE SIGNING THE SERVICES ORDER FORM, CAREFULLY READ THESE TERMS AND CONDITIONS, BY SIGNING, CLIENT IS CONSENTING TO BE BOUND BY AND ARE BECOMING A PARTY TO THIS AGREEMENT. CLIENT’S USE OF THE SERVICES INDICATES CLIENT’S ASSENT TO BE BOUND BY THESE TERMS AND CONDITIONS.

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‍1. Definitions.

1.1.  “Aggregated Data” means data and information related to Client’s use of the Services that is used by FullMetrics in an aggregate and/or anonymized manner, including to compile statistical and performance information related to the Services and including de-identified health information derived from the Lab Tests.

‍1.2. “FullMetrics IP” means the Services, the Documentation, and any and all intellectual property provided to Client or any Authorized User in connection with the foregoing. For the avoidance of doubt, FullMetrics IP includes Aggregated Data and any information, data, algorithms, or other content derived from FullMetrics’s monitoring of Client’s access to or use of the Services, but does not include Client Data.

‍1.3.  “Authorized User” means Client’s employees, consultants, contractors, and agents (i) who are authorized by Client to access and use the Platform under the rights granted to Client pursuant to this Agreement and (ii) for whom access to the Platform has been purchased hereunder.

‍1.4.  “Client Data” means, other than Aggregated Data, information, data, and other content, in any form or medium, that is submitted, posted, or otherwise transmitted by or on behalf of Client or an Authorized User through the Services.

‍1.5.  “Client Report” means a report showing lab results and/or composite health-related information for End-Users based on data from the completed Lab Tests, which report is generated by or through the Platform.

‍1.6. “Documentation” means FullMetrics’s user manuals and guides relating to the Services provided by FullMetrics to Client either electronically or in hard copy form.

‍1.7.  “End-Users” means Client’s Clients who are end-users of the Services.

‍1.8.  “Laboratory Services” means the labwork processing services described in Exhibit A, including specimen collection, lab testing, data processing, and the delivery of lab results and composite health-related information.

‍1.9.  “Platform” means the entire software-as-a-service offering described in the Services Order Form.

‍1.10.  “Services” means, collectively, the Platform and the Laboratory Services.

‍1.11.  “Lab Tests” means lab tests or services provided by FullMetrics to the Client for use by End-Users in connection with the Laboratory Services..

1.12. “Specimen Collection Supplies” means supplies for collecting biological specimens from End-Users for the purpose of conducting Lab Tests.

1.13 “Order Form” means the form executed by the Client and FullMetrics specifying the Services to be provided, including associated fees, terms, and any additional specifications related to the Services.

1.14 “Protected Health Information” (PHI) means individually identifiable health information, as defined under the Health Insurance Portability and Accountability Act of 1996 (HIPAA) and its implementing regulations, that is transmitted or maintained in any form or medium, including electronic, paper, or oral formats. PHI includes information about an individual’s health status, provision of healthcare, or payment for healthcare that can be linked to a specific individual, as well as any other information that meets the definition of PHI under 45 CFR § 160.103.

2. Access and Use.

2.1.  Provision of Access. Subject to and conditioned on Client’s payment of Fees and compliance with all other terms and conditions of this Agreement, FullMetrics hereby grants Client a non-exclusive, non-transferable (except in compliance with Section 15.4) right to access and use the Services during the Term, solely for use by Authorized Users in accordance with the terms and conditions herein. Such use is limited to Client’s internal use. Client’s use will not exceed the parameters of the Platform Plan, Credit Plan, Monthly MOQ Plan and any other Plans set forth in the Services Order Form, including, without limitation, the total number of Authorized Users and Client Reports referenced therein, except as expressly agreed to in writing by the Parties and subject to any appropriate adjustment of the Fees payable hereunder.

2.2.  Documentation License. Subject to the terms and conditions contained in this Agreement, FullMetrics hereby grants to Client a non-exclusive, non-sub-licensable, non-transferable (except in compliance with Section 15.4) license to use the Documentation during the Term solely for Client’s internal business purposes in connection with its use of the Services.

‍2.3.  Use Restrictions. Client shall not use the Services for any purposes beyond the scope of the access granted in this Agreement. Client shall not at anytime, directly or indirectly, and shall not permit any Authorized Users to: (i) copy, modify, or create derivative works of the Services or Documentation, in whole or in part; (ii) rent, lease, lend, sell, license, sublicense, assign, distribute, publish, transfer, or otherwise make available the Services or Documentation; (iii) reverse engineer, disassemble, decompile, decode, adapt, or otherwise attempt to derive or gain access to any software component of the Platform, in whole or in part; (iv) remove any proprietary notices from the Services or Documentation; or (v) use the Services or Documentation in any manner or for any purpose that infringes, misappropriates, or otherwise violates any intellectual property right or other right of any person, or that violates any applicable law.

‍2.4.  Reservation of Rights. FullMetrics reserves all rights not expressly granted to Client in this Agreement. Except for the limited rights and licenses expressly granted under this Agreement, nothing in this Agreement grants, by implication, waiver, estoppel, or otherwise, to Client or any third party any intellectual property rights or other right, title, or interest in or to the FullMetrics IP.

‍2.5.  Suspension. Notwithstanding anything to the contrary in this Agreement, FullMetrics may temporarily suspend Client’s and any Authorized User’s access to any portion or all of the Services if: (i) FullMetrics reasonably determines that (A) there is a threat or attack on any of the FullMetrics IP; (B) Client’s or any Authorized User’s use of the FullMetrics IP disrupts or poses a security risk to the FullMetrics IP or to any other Client or vendor of FullMetrics; (C) Client, or any Authorized User, is using the FullMetrics IP for fraudulent or illegal activities; (D) subject to applicable law, Client has ceased to continue its business in the ordinary course, made an assignment for the benefit of creditors or similar disposition of its assets, or become the subject of any bankruptcy, reorganization, liquidation, dissolution, or similar proceeding; or (E) FullMetrics’s provision of the Services to Client or any Authorized User is prohibited by applicable law; (ii) any vendor of FullMetrics has suspended or terminated FullMetrics’s access to or use of any third-party services or products required to enable Client to access the Services; or (iii) in accordance with Section 6.1 (any such suspension described in subclause (i), (ii), or (iii), a “Service Suspension”). FullMetrics shall use commercially reasonable efforts to provide written notice of any Service Suspension to Client and to provide updates regarding resumption of access to the Services following any Service Suspension. FullMetrics shall use commercially reasonable efforts to resume providing access to the Services as soon as reasonably possible after the event giving rise to the Service Suspension is cured. FullMetrics will have no liability for any damage, liabilities, losses (including any loss of data or profits), or any other consequences that Client or any Authorized User may incur as a result of a Service Suspension.

‍2.6.  Aggregated Data. Notwithstanding anything to the contrary in this Agreement, FullMetrics may monitor Client’s use of the Services and collect and compile Aggregated Data. As between FullMetrics and Client, all right, title, and interest in Aggregated Data, and all intellectual property rights therein, belong to and are retained solely by FullMetrics. Client acknowledges that FullMetrics may compile Aggregated Data based on Client Data. Client agrees that FullMetrics may (i) make Aggregated Data publicly available in compliance with applicable law, and (ii) use Aggregated Data to the extent and in the manner permitted under applicable law.

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‍3. Lab Tests and Laboratory Services. 

3.1  FullMetrics will sell to Client the Services specified in the Services Order Form in connection with FullMetrics’s performance of the Laboratory Services, outlined in detail in Exhibit A. The Services described in Exhibit A are only available to the extent they are specifically included in the Client’s Order Form. Any Services described in Exhibit A that are not included in the Client’s Order Form will not be provided unless agreed to in writing through a new Order Form or a Change Order signed by both parties.

‍3.2.  FullMetrics agrees to maintain at least generally accepted laboratory practices accepted in the industry as well as any required procedures, methods or requirements under any laboratory certification programs, where applicable, in the provision of Laboratory Services and to maintain a quality management system at least to the standard generally accepted in the industry. FullMetrics will apply quality no less than what it offers to other Clients purchasing the same or similar services. FullMetrics will comply with all laws, rules and regulations applicable to it and its business.

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‍4.  Client Responsibilities.

4.1.  General. Client is responsible and liable for all uses of the Services and Documentation resulting from access provided by Client, directly or indirectly, whether such access or use is permitted by or in violation of this Agreement. Without limiting the generality of the foregoing, Client is responsible for all acts and omissions of Authorized Users, and any act or omission by an Authorized User that would constitute a breach of this Agreement if taken by Client will be deemed a breach of this Agreement by Client. Client shall use reasonable efforts to make all Authorized Users aware of this Agreement’s provisions as applicable to such Authorized User’s use of the Services, and shall cause Authorized Users to comply with such provisions. 

‍5.  Support. The rights granted hereunder entitle Client to the support services as described in the Services Order Form. 

‍6.  Fees and Payment.

6.1.  Fees. Client shall pay FullMetrics the fees (“Fees”) as set forth in the Services Order Form without offset or deduction. Client shall make all payments hereunder in US dollars on or before the due date set forth in the Services Order Form. If Client fails to make any payment when due, without limiting FullMetrics’s other rights and remedies: (i) FullMetrics may charge interest on the past due amount at the rate of 1.5% per month calculated daily and compounded monthly or, if lower, the highest rate permitted under applicable law; (ii) Client shall reimburse FullMetrics for all costs incurred by FullMetrics in collecting any late payments or interest, including attorneys’ fees, court costs, and collection agency fees; and (iii) if such failure continues for thirty (30) days or more, FullMetrics may suspend Client’s and its Authorized Users’ access to any portion or all of the Services until such amounts are paid in full.

6.2   Minimum Spend, Overage, and Carry-Over Funds The Client agrees to a minimum monthly spend (MOQ Plan) as agreed in the Services Order Form (“Minimum Spend”), which will be automatically debited from the payment method on file on the first day of each service month. If the Client’s total spend exceeds the Minimum Spend in any service month (“Overage”), the Overage amount will be automatically debited on the first day of the following service month, along with the Minimum Spend for that month. If the Client’s actual spend in any service month is less than the Minimum Spend, the unspent portion of the Minimum Spend (“Carry-Over Funds”) will be credited toward future Overage amounts.

Carry-Over Funds may only be applied toward Overage charges and can not and will not be refundable or credited toward the Minimum Spend in any future month within the current or immediately following term. The Client acknowledges that the Minimum Spend will be charged monthly regardless of the amount spent during the preceding month. 

‍6.3.  Taxes. All Fees and other amounts payable by Client under this Agreement are exclusive of taxes and similar assessments. Client is responsible for all sales, use, and excise taxes, and any other similar taxes, duties, and charges of any kind imposed by any federal, state, or local governmental or regulatory authority on any amounts payable by Client hereunder, other than any taxes imposed on FullMetrics’s income. 

‍7.  Confidential Information. From time to time during the Term, either Party may disclose or make available to the other Party information about its business affairs, products, confidential intellectual property, trade secrets, third-party confidential information, and other sensitive or proprietary information, whether orally or in written, electronic, or other form or media, whether or not marked, designated, or otherwise identified as “confidential”(collectively, “Confidential Information”). Confidential Information does not include information that, at the time of disclosure is: (a) in the public domain; (b) known to the receiving Party at the time of disclosure; (c) rightfully obtained by the receiving Party on a non-confidential basis from a third party; or (d) independently developed by the receiving Party. The receiving Party shall not disclose the disclosing Party’s Confidential Information to any person or entity, except to the receiving Party’s employees who have a need to know the Confidential Information for the receiving Party to exercise its rights or perform its obligations hereunder. Notwithstanding the foregoing, each Party may disclose Confidential Information to the limited extent required (i) in order to comply with the order of a court or other governmental body, or as otherwise necessary to comply with applicable law, provided that the Party making the disclosure pursuant to the order shall first have given written notice to the other Party and made a reasonable effort to obtain a protective order; or (ii) to establish a Party’s rights under this Agreement, including to make required court filings. On the expiration or termination of the Agreement, the receiving Party shall promptly return to the disclosing Party all copies, whether in written, electronic, or other form or media, of the disclosing Party’s Confidential Information, or destroy all such copies and certify in writing to the disclosing Party that such Confidential Information has been destroyed. Each Party’s obligations of non-disclosure with regard to Confidential Information are effective as of the Effective Date and will expire five years from the date first disclosed to the receiving Party; provided, however, with respect to any Confidential Information that constitutes a trade secret (as determined under applicable law), such obligations of non-disclosure will survive the termination or expiration of this Agreement for as long as such Confidential Information remains subject to trade secret protection under applicable law. 

7.1 HIPAA Compliance

If and to the extent FullMetrics receives, accesses, processes, or transmits PHI in connection with its provision of the Services:

(i) FullMetrics shall comply with the Health Insurance Portability and Accountability Act of 1996 (HIPAA) and its implementing regulations, as amended, including the Health Information Technology for Economic and Clinical Health (HITECH) Act (collectively, “HIPAA Rules”);

(ii) FullMetrics shall enter into a Business Associate Agreement (“BAA”) with the Client at the client’s request, which shall govern the use and disclosure of PHI in accordance with the HIPAA Rules;

(iii) Client shall ensure that its use of the Services complies with HIPAA, including obtaining all required authorizations and consents from End-Users.

7.1.1 Data Security and Safeguards

(i) FullMetrics shall implement and maintain administrative, physical, and technical safeguards to protect PHI in compliance with the HIPAA Rules.

(ii) FullMetrics shall notify the Client without undue delay upon discovering a breach of PHI, as defined under HIPAA, and shall cooperate with the Client in mitigating and addressing the breach in compliance with the HIPAA Rules.

‍8.  Intellectual Property Ownership; Feedback.

8.1.  FullMetrics IP. Client acknowledges that, as between Client and FullMetrics, FullMetrics owns all right, title, and interest, including all intellectual property rights, in and to the FullMetrics IP.

‍8.2.  Client Data. FullMetrics acknowledges that, as between FullMetrics and Client, Client owns all right, title, and interest, including all intellectual property rights, in and to the Client Data. Client hereby grants to FullMetrics a non-exclusive, royalty-free, worldwide license to reproduce, distribute, and otherwise use and display the Client Data and perform all acts with respect to the Client Data as may be necessary for FullMetrics to provide the Services to Client, and a non-exclusive, perpetual, irrevocable, royalty-free, worldwide license to reproduce, distribute, modify, and otherwise use and display Client Data incorporated within the Aggregated Data.

‍8.3.  Feedback. If Client or any of its employees or contractors sends or transmits any communications or materials to FullMetrics by mail, email, telephone, or otherwise, suggesting or recommending changes to the FullMetrics IP, including without limitation, new features or functionality relating thereto, or any comments, questions, suggestions, or the like (“Feedback”), FullMetrics is free to use such Feedback irrespective of any other obligation or limitation between the Parties governing such Feedback. Client hereby assigns to FullMetrics on Client’s behalf, and on behalf of its employees, contractors and/or agents, all right, title, and interest in, and FullMetrics is free to use, without any attribution or compensation to any party, any ideas, know-how, concepts, techniques, or other intellectual property rights contained in the Feedback, for any purpose whatsoever, although FullMetrics is not required to use any Feedback. 

‍9.  Not a Substitute for Medical Advice. Client acknowledges and agrees that the Services do not provide or constitute the provision of any medical advice, healthcare advice or guidance, or diagnostic or medical services to Client or End-Users. The Service is not a substitute for professional medical advice, diagnosis or treatment. Without limiting the foregoing, the Services, and the output generated thereby, are merely supplemental tools provided for use by appropriately qualified and skilled professionals affiliated with Client or the End-User, and the making of any health care decision is subject to the independent professional judgment, investigation and responsibility of End-Users and their health care professionals.  The Client acknowledges and agrees that all report ranges, recommendations, and content provided in reports generated through FullMetrics are based on data and parameters specified or approved by the Client. FullMetrics does not verify, validate, or assume responsibility for the accuracy, applicability, or appropriateness of any data, ranges, or recommendations included in custom reports. Client shall indemnify, defend and hold FullMetrics, and its affiliates, officers, directors, employees, agents and representatives harmless from and against and all lawsuits, claims damages, losses, costs and expenses that any of them suffers or experiences in connection with any matter relating to any action taken or not taken in rendering or not rendering medical or healthcare related services to End-Users relating to or based upon the use of the Lab Tests or the Services, or the output generated thereby. Client agrees that the Services shall not be used or marketed as a substitute for the exercise of appropriate professional skill, investigation and judgment. 

‍10.  Personal

10.1.  As used in this Section 10, the terms “Controller”, “Data Subject”, “Personal Data”, “Personal Data Breach”, “Process”, “Processor” and “Subcontractor” shall have the same meanings as in the EU General Data Protection Regulation 2016/679 (“GDPR”), and their cognate terms shall be construed accordingly.

‍10.2.  FullMetrics shall process Personal Data of End-Users solely on behalf of Client for the purpose of providing the Services and as expressly authorized under this Agreement, and not for any other purpose or in any other manner, unless specifically instructed by Client in writing to do so, or as required by applicable law. When FullMetrics processes Personal Data for or on behalf of Client, FullMetrics agrees:

‍10.2.1.  Not to disclose or transfer Personal Data to any third Party without Client’s prior express written consent, except where such disclosure or transfer is: (A) to a subcontractor that, prior to such disclosure, has (1) agreed by written contract to be bound by obligations no less onerous than the obligations set out in this Agreement, and (2) undergone a thorough assessment for compliance with these obligations conducted by FullMetrics and agreed to be assessed periodically by FullMetrics; or (B) to an affiliate, in which case FullMetrics will require the affiliate to provide at least the same level of protection for the Personal Data as is required by FullMetrics under this Section; or (C) required by applicable law.

‍10.2.2.  To notify Client without undue delay following FullMetrics’s receipt of requests from individuals exercising rights under the GDPR or other data protection laws applicable to Client (such as rights to rectify, erase or block Personal Data) relating to Personal Data that FullMetrics Processes for or on behalf of Client. By appropriate technical and organizational measures, insofar as this is possible, taking into account the nature of the Processing, FullMetrics agrees to assist Client in fulfilling its obligations to respond to such communications and comply with applicable law.

‍10.2.3. To take appropriate technical and organizational security measures to adequately protect Client’s and its Personal Data of End-Users against misuse and loss in accordance with this Agreement and applicable law.

‍10.2.4.  To regularly train personnel responsible for processing Personal Data of End-Users about the obligations set forth in this Agreement, to provide an appropriate level of supervision and guidance to such personnel (including background checks where permitted by law), and to enforce disciplinary policies for personnel who fail to comply with those obligations;

‍10.3. Client represents and warrants to FullMetrics that it has obtained or established, or shall have obtained or established prior to any Processing of Personal Data under this Agreement, all rights or lawful basis reasonably required to Process, and to authorize FullMetrics to Process on Client’s behalf, Personal Data of End-Users as contemplated by this Agreement.

‍10.4.  FullMetrics shall, without undue delay, inform Client in the event of any actual or reasonably suspected Personal Data Breach that may involve Personal Data of End-Users.

‍10.5.  FullMetrics shall maintain and update at least annually a Personal Data Breach incident response plan that complies in all respects with applicable laws and industry best practices for companies Processing the types of Personal Data that FullMetrics will Process in connection with the applicable Order.

‍10.6.  Retention and Return of Personal Data. Upon termination or expiration of this Agreement, FullMetrics shall, consistent with Client’s directions, return, delete or destroy all Personal Data that FullMetrics obtains in connection with this Agreement, including all originals and copies of such Personal Data in any medium, and any materials derived from or incorporating such Personal Data, except that this requirement shall not apply to the extent FullMetrics is required by applicable law to retain some or all of the Personal Data, or to Personal Data it has archived on back-up systems, which Personal Data FullMetrics shall securely protect from any further processing and eventually delete in accordance with FullMetrics’s deletion policies, except to the extent required by applicable law. 

‍11.  Limited Warranty and Warranty Disclaimer. THE FULLMETRICS IP IS PROVIDED “AS IS” AND FULLMETRICS HEREBY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE. FULLMETRICS SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT, AND ALL WARRANTIES ARISING FROM COURSE OF DEALING, USAGE, OR TRADE PRACTICE. FULLMETRICS MAKES NO WARRANTY OF ANY KIND THAT THE FULLMETRICS IP, OR ANY PRODUCTS OR RESULTS OF THE USE THEREOF, WILL MEET CLIENT’S OR ANY OTHER PERSON’S REQUIREMENTS, OPERATE WITHOUT INTERRUPTION, ACHIEVE ANY INTENDED RESULT, BE COMPATIBLE OR WORK WITH ANY SOFTWARE, SYSTEM, OR OTHER SERVICES, OR BE SECURE, ACCURATE, COMPLETE, FREE OF HARMFUL CODE, OR ERROR FREE. FULLMETRICS DISCLAIMS ANY LIABILITY FOR THE ACCURACY, APPLICABILITY, OR APPROPRIATENESS OF ANY DATA, RANGES, OR RECOMMENDATIONS INCLUDED IN REPORTS GENERATED THROUGH THE SERVICES, INCLUDING CUSTOM REPORTS SPECIFIED BY THE CLIENT.

‍12. Indemnification.

12.1.  FullMetrics Indemnification.

12.1.1.  FullMetrics shall indemnify, defend, and hold harmless Client from and against any and all losses, damages, liabilities, costs (including reasonable attorneys’ fees) (“Losses”) incurred by Client resulting from: (i) any third-party claim, suit, action, or proceeding (“Third-Party Claim”) that the Services, or any use of the Services in accordance with this Agreement, infringes or misappropriates such third party’s US intellectual property rights or (ii) FullMetrics’s breach of its obligations under the HIPAA Rules, provided such breach is not caused by Client’s actions, omissions, or instructions, provided that Client promptly notifies FullMetrics in writing of the claim, cooperates with FullMetrics, and allows FullMetrics sole authority to control the defense and settlement of such claim. provided that Client promptly notifies FullMetrics in writing of the claim, cooperates with FullMetrics, and allows FullMetrics sole authority to control the defense and settlement of such claim.

‍12.1.2.  If such a claim is made or appears possible, Client agrees to permit FullMetrics, at FullMetrics’s sole discretion, to (A) modify or replace the Services, or component or part thereof, to make it non-infringing, or (B) obtain the right for Client to continue use. If FullMetrics determines that neither alternative is reasonably available, FullMetrics may terminate this Agreement, in its entirety or with respect to the affected component or part, effective immediately on written notice to Client.

‍12.1.3.  This Section 12.1 will not apply to the extent that the alleged infringement arises from: (A) use of the Services in combination with data, software, hardware, equipment, or technology not provided by FullMetrics or authorized by FullMetrics in writing; (B) modifications to the Services not made by FullMetrics; or (C) Client Data.

‍12.2.  Client Indemnification. Client shall indemnify, hold harmless, and, at FullMetrics’s option, defend FullMetrics from and against any Losses resulting from any Third-Party Claim that: (i) the Client Data, or any use of the Client Data in accordance with this Agreement, infringes or misappropriates such third party’s US intellectual property rights and any Third-Party Claims based on Client’s or any Authorized User’s (ii) Client’s or any Authorized User’s negligence or willful misconduct; (iii) use of the Services in a manner not authorized by this Agreement; (iv) use of the Services in combination with data, software, hardware, equipment, or technology not provided by FullMetrics or authorized by FullMetrics in writing; or (v) any claim arising from FullMetrics’s breach of its obligations under the HIPAA Rules, to the extent such breach is caused or contributed to by Client’s actions, omissions, or instructions; (vi) Client’s use, interpretation, or implementation of any information contained within reports generated through FullMetrics, including but not limited to medical, diagnostic, or other professional recommendations. (vii) modifications to the Services not made by FullMetrics, provided that Client may not settle any Third-Party Claim against FullMetrics unless FullMetrics consents to such settlement, and further provided that FullMetrics will have the right, at its option, to defend itself against any such Third-Party Claim or to participate in the defense thereof by counsel of its own choice.

‍12.3.  Sole Remedy. THIS SECTION 12 SETS FORTH CLIENT’S SOLE REMEDIES AND FULLMETRICS’S SOLE LIABILITY AND OBLIGATION FOR ANY ACTUAL, THREATENED, OR ALLEGED CLAIMS THAT THE SERVICES INFRINGE, MISAPPROPRIATE, OR OTHERWISE VIOLATE ANY INTELLECTUAL PROPERTY RIGHTS OF ANY THIRD PARTY. IN NO EVENT WILL FULLMETRICS’S LIABILITY UNDER THIS SECTION 12 EXCEED THE LIMITATION OF LIABILITY AS SET FORTH IN SECTION 13 BELOW. 

‍13.  Limitations of Liability. IN NO EVENT WILL FULLMETRICS BE LIABLE UNDER OR IN CONNECTION WITH THIS AGREEMENT UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE, FOR ANY: (A) CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, ENHANCED, OR PUNITIVE DAMAGES; (B) INCREASED COSTS, DIMINUTION IN VALUE OR LOST BUSINESS, PRODUCTION, REVENUES, OR PROFITS; (C) LOSS OF GOODWILL OR REPUTATION; (D) USE, INABILITY TO USE, LOSS, INTERRUPTION, DELAY, OR RECOVERY OF ANY DATA, OR BREACH OF DATA OR SYSTEM SECURITY; OR (E) COST OF REPLACEMENT GOODS OR SERVICES, IN EACH CASE REGARDLESS OF WHETHER FULLMETRICS WAS ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES OR SUCH LOSSES OR DAMAGES WERE OTHERWISE FORESEEABLE. IN NO EVENT WILL FULLMETRICS’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE EXCEED THE TOTAL AMOUNTS PAID TO FULLMETRICS UNDER THIS AGREEMENT IN THE TWELVE (12) MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO THE CLAIM.  NO ACTION SHALL BE BROUGHT FOR ANY CLAIM RELATING TO OR ARISING OUT OF THE AGREEMENT MORE THAN TWELVE (12) MONTHS AFTER THE ACCRUAL OF SUCH CAUSE OF ACTION, EXCEPT FOR FEES AND EXPENSES DUE.  IN THE EVENT FULLMETRICS PROVIDES CLIENT WITH SAMPLES OF ANY CONSENT, SUCH PROVISION SHALL NOT CONSTITUTE A LEGAL REPRESENTATION THAT SUCH CONSENT COMPLIES WITH OR IS SUFFICIENT UNDER APPLICABLE LAW AND CLIENT SHALL UNDERTAKE ITS OWN LEGAL REVIEW OF SUCH CONSENT. FULLMETRICS IS NOT ACTING IN ANY CAPACITY THAT COULD BE CONSTRUED AS PROVIDING MEDICAL ADVICE OR MEDICAL SERVICES. FULLMETRICS IS NOT A HEALTHCARE PROVIDER. 

‍14.  Term and Termination.

14.1.  Term. The Term of this Agreement is as set forth in the Services Order Form.

‍14.2.  Termination. 

‍14.2.2.  Either Party may terminate this Agreement, effective on written notice to the other Party, if the other Party breaches this Agreement, and such breach: (A) is incapable of cure; or (B) being capable of cure, remains uncured thirty (30) days after the non-breaching Party provides the breaching Party with written notice of such breach;

‍14.2.3.  Either Party may terminate this Agreement without cause upon thirty (30) days prior written notice to the other Party (subject to the Early Termination Fee referenced in Section 14.3 below); or

‍14.2.4. Either Party may terminate this Agreement, effective immediately upon written notice to the other Party, if the other Party: (A) becomes insolvent or is generally unable to pay, or fails to pay, its debts as they become due; (B) files or has filed against it, a petition for voluntary or involuntary bankruptcy or otherwise becomes subject, voluntarily or involuntarily, to any proceeding under any domestic or foreign bankruptcy or insolvency law; (C) makes or seeks to make a general assignment for the benefit of its creditors; or (D) applies for or has appointed a receiver, trustee, custodian, or similar agent appointed by order of any court of competent jurisdiction to take charge of or sell any material portion of its property or business.

‍14.3  Effect of Expiration or Termination.

14.3.1. Except as permitted in Section 14.3.2 below, upon expiration or earlier termination of this Agreement, Client shall immediately discontinue use of the FullMetrics IP and, without limiting Client’s obligations under Section 7, Client shall delete, destroy, or return all copies of the FullMetrics IP and certify in writing to the FullMetrics that the FullMetrics IP has been deleted or destroyed.

‍14.3.2. Provided this Agreement is not terminated by FullMetrics for cause, upon expiration or earlier termination of this Agreement, FullMetrics will provide Client with access to the Platform for fifteen (15) calendar days (the “Sunset Period”) following the date of termination or expiration, solely for Client to export its Client Data. Client shall not submit any new Lab Tests, generate any new Client Reports, or otherwise use the Platform in any other way during the Sunset Period.

‍14.3.3.  No expiration or termination will affect Client’s obligation to pay all Fees that may have become due before such expiration or termination or entitle Client to any refund.

‍14.3.4.  If Client terminates this Agreement without cause pursuant to Section 14.2.3, Client shall pay the Early Termination Fee to FullMetrics upon termination. The “Early Termination Fee” means all Fees that would have been payable to FullMetrics for the remainder of the then-current Term.

‍14.3.5.  FullMetrics shall, at the Client’s request, return or destroy all PHI in its possession, except where retention is required by law. If retention is required, FullMetrics will continue to protect the PHI in compliance with the HIPAA Rules.

‍14.4.  Survival. This Section 14.4 and Sections 1, 5-13, 14.3 and 15 shall survive any termination or expiration of this Agreement. No other provisions of this Agreement survive the expiration or earlier termination of this Agreement. 

‍15.  Miscellaneous.

15.1.  Entire Agreement. This Agreement, together with any other documents incorporated herein by reference and all related Services Order Forms and Exhibits, constitutes the sole and entire agreement of the Parties with respect to the subject matter of this Agreement and supersedes all prior and contemporaneous understandings, agreements, and representations and warranties, both written and oral, with respect to such subject matter.

‍15.2.  Notices. All notices, requests, consents, claims, demands, waivers, and other communications hereunder (each, a “Notice”) must be in writing and addressed to the Parties at the addresses set forth on the first page of this Agreement (or to such other address that may be designated by the Party giving Notice from time to time in accordance with this Section). All Notices must be delivered by personal delivery, nationally recognized overnight courier (with all fees pre-paid),facsimile or email (with confirmation of transmission), or certified or registered mail (in each case, return receipt requested, postage pre-paid). Except as otherwise provided in this Agreement, a Notice is effective only: (i) upon receipt by the receiving Party; and (ii) if the Party giving the Notice has complied with the requirements of this Section.

‍15.3.  Force Majeure. In no event shall FullMetrics be liable to Client, or be deemed to have breached this Agreement, for any failure or delay in performing its obligations under this Agreement (except for any obligations to make payments), if and to the extent such failure or delay is caused by any circumstances beyond FullMetrics’s reasonable control, including but not limited to acts of God, flood, fire, earthquake, explosion, pandemic and quarantines, war, terrorism, invasion, riot or other civil unrest, strikes, labor stoppages or slowdowns or other industrial disturbances, or passage of law or any action taken by a governmental or public authority, including imposing an embargo.

‍15.4.  Amendment and Modification; Waiver. No amendment to or modification of this Agreement is effective unless it is in writing and signed by an authorized representative of each Party. No waiver by any Party of any of the provisions hereof will be effective unless explicitly set forth in writing and signed by the Party so waiving. Except as otherwise set forth in this Agreement, (i) no failure to exercise, or delay in exercising, any rights, remedy, power, or privilege arising from this Agreement will operate or be construed as a waiver thereof, and (ii) no single or partial exercise of any right, remedy, power, or privilege hereunder will preclude any other or further exercise thereof or the exercise of any other right, remedy, power, or privilege.

‍15.5.  Severability. If any provision of this Agreement is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability will not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction. Upon such determination that any term or other provision is invalid, illegal, or unenforceable, the Parties shall negotiate in good faith to modify this Agreement so as to effect their original intent as closely as possible in a mutually acceptable manner in order that the transactions contemplated hereby be consummated as originally contemplated to the greatest extent possible.

‍15.6.  Governing Law; Jurisdiction; & Arbitration. This Agreement is governed by and construed in accordance with the internal laws of the State of Texas without giving effect to any choice or conflict of law provision or rule that would require or permit the application of the laws of any jurisdiction other than those of the State of Texas.

Any dispute, claim or controversy arising out of or relating to any interpretation, construction, performance or breach of this Agreement, shall be submitted and settled by arbitration to be held in the City of Austin in the State of Texas, USA in the English language, and in accordance with the rules then in effect of the American Arbitration Association, and by a single arbitrator appointed in accordance with such rules. Client agrees and acknowledges that FullMetrics shall have the sole discretion in deciding the appropriate arbitrator to oversee and decide any proceeding and Client agrees to submit to such arbitration process, procedure, and to such arbitrator selection set forth herein. The arbitrator may grant injunctions or other relief in such dispute or controversy. The decision of the arbitrator shall be final, conclusive, and binding on each Party. Judgment may be entered on the arbitrator’s decision in any court having jurisdiction. To the extent permitted by law, each Party shall pay half of the administrative fees associated with the arbitration and each Party shall separately pay its respective counsel fees and expenses.

‍15.7.  Assignment. Client may not assign any of its rights or delegate any of its obligations hereunder, in each case whether voluntarily, involuntarily, by operation of law or otherwise, without the prior written consent of FullMetrics. Any purported assignment or delegation in violation of this Section will be null and void. No assignment or delegation will relieve the assigning or delegating Party of any of its obligations hereunder. This Agreement is binding upon and inures to the benefit of the Parties and their respective permitted successors and assigns.

‍15.8.  Export Regulation. Client shall comply with all applicable federal laws, regulations, and rules, and complete all required undertakings (including obtaining any necessary export license or other governmental approval), that prohibit or restrict the export or re-export of the Services or any Client Data outside the US.

‍15.9.  Equitable Relief. Each Party acknowledges and agrees that a breach or threatened breach by such Party of any of its obligations under Section 7 or, in the case of Client, Section 2.3, would cause the other Party irreparable harm for which monetary damages would not be an adequate remedy and agrees that, in the event of such breach or threatened breach, the other Party will be entitled to equitable relief, including a restraining order, an injunction, specific performance, and any other relief that may be available from any court, without any requirement to post a bond or other security, or to prove actual damages or that monetary damages are not an adequate remedy. Such remedies are not exclusive and are in addition to all other remedies that maybe available at law, in equity, or otherwise. 

15.10 Non-Solicitation. During the Term of the Agreement and for one (1) year following the expiration or termination of the Agreement, Client agrees not to directly solicit or induce any FullMetrics employee who has interacted with Client or who has been involved, directly or indirectly, in the performance, review and/or acceptance of the Services, Products or Licenses, to consider or accept employment with Client. Client is not prohibited from responding to or hiring FullMetrics employees who inquire about employment with Client on their own accord or in response to a public advertisement or employment solicitation in general.

‍

Exhibit A

Capitalized terms used but not defined in this Exhibit A have the meaning given to those terms in the Agreement. 

From time to time, Client may request and FullMetrics may agree to perform services, provide certain products and licenses, each as agreed in the Services Order Form and its Attachments (“Order Form”).  The services described in an Order Form (the “Services”) shall be performed and the Licenses (defined below) and the products defined in the Order Form (the “Products”) shall be provided subject to the terms and conditions set forth in the Terms and Conditions, Order Form, Platform and Lab Services attached hereto and incorporated herein as Exhibit A (as applicable, singularly or collectively, the “Addendum”). Services described in Exhibit A are only available to the extent that Client’s Order Form includes those specific Services. Services described in Exhibit A but not included in the Order Form will not be provided unless a new Order form or change order is signed. In the event of a conflict between any Order Form and the Terms and Conditions or the Addendum, the Terms and Conditions shall prevail unless an Order Form specifically states the Section of an Order Form that will take precedence over a specific Section of the Agreement or the Addendum.

During the term of each Order Form (the “Order Form Term”), and only to the extent Client’s Order Form includes the specific Service, FullMetrics hereby grants to Client:

1. Platform Services

A1.  Services; Products; Licenses.

A1.1  Platform Access 

A1.1.1 A limited, non-exclusive, non-transferable right and license to use The Platform which provides a dashboard interface that enables Authorized Users to:
(a) Viewing and managing lab test results associated with specimens submitted through the Services;
(b) Accessing and reviewing composite health-related information and analyses generated from Lab Test Results, aggregated data, and other related content made available through the Platform;
(c) Generating, reviewing, and downloading Client Reports for Client’s internal use or for distribution to its customers or patients, as applicable, in compliance with applicable law;
(d) Managing Customer’s orders for laboratory services, specimen collection supplies, and other related services provided under this Agreement.
(e) Track the status of Lab Test Results and associated specimen collection processes;
(f) Access tools for managing account settings, user permissions, and other administrative functions.

A1.1.2 FullMetrics will use commercially reasonable efforts to maintain the availability and functionality of the Platform, subject to scheduled maintenance, emergency updates, or circumstances beyond FullMetrics’ reasonable control. FullMetrics will notify Client of any planned downtime or material changes to the Platform that could impact its use by Client.

A1.1.3 FullMetrics reserves the right to update, modify, or improve the Platform’s features and functionality from time to time. FullMetrics will notify Client of any material changes that may affect the Platform’s usability or compatibility with Client’s systems, providing documentation or training as reasonably necessary.

A1.1.4 FullMetrics hereby agrees to brand the Platform with Client’s name and logo as reasonably requested by Client and as further detailed in the Services Order Form. 

A1.1.5  Access is subject to ongoing compliance with section 2 of the Terms and Conditions.

A1.1.6 FullMetrics shall implement and maintain reasonable administrative, technical, and physical safeguards to protect the security and integrity of data accessed through the Platform, including Lab Test Results and Client Reports.

A1.2  API Access

A1.2.1  A limited, non-exclusive, non-transferable right and license to use (a) the application programming interface(s) identified in the Addendum and related API key(s) (the “API Key,” and the “FullMetrics API,” respectively) only for the purpose of enabling Client to develop, or have developed by a third party, software to enable the API Communications (as defined in the Addendum) (such software to be referred to as, the “Integration Software,” and such license, the “FullMetrics API License”), and (b) the Documentation (defined below) in support of the use of the FullMetrics Platform by Client (the “Documentation License,” and together with the FullMetrics API License, collectively, the “Licenses”);

A1.2.2  a limited, non-exclusive, non-transferable, right to access the FullMetrics API through the Integration Software.  In the event that FullMetrics makes a modification to the FullMetrics API that could affect the manner in which the Integration Software operates with the FullMetrics Platform (a “FullMetrics Modification”), FullMetrics will provide Client with  documentation  and other information concerning the FullMetrics Modification not less than thirty (30) days before its commercial release; and

A1.2.3  a limited, non-exclusive, and non-transferable right to (a) have Team Members (defined below) access and use the FullMetrics API Communications through the Client Application (defined below), and/or (b) if included in an Order Form, have all Team Members access and use the FullMetrics Platform remotely as a service (the “FullMetrics SaaS”) to review certain Active User Information (defined below) available through the FullMetrics Platform dashboard.  With respect to subsection 1.2.3(b), Client will have the ability to send an invitation to each Team Member, which when clicked on by the Team Member will enable them to log-in and create an account within the FullMetrics Platform (each, an “Account”).

A1.3  In the event that Client requests services, products or licenses in addition to the Services, Products or Licenses set forth an Order Form and FullMetrics agrees to perform such services or provide such products and/or licenses, a separate Order Form or change order will be developed and presented to Client by FullMetrics for approval.  Any such additional Order Forms or change orders shall only be effective and considered part of the Services, Products and Licenses, as applicable, upon the written agreement of both parties. Upon such agreement, any such additional Order Forms or change orders will be incorporated herein as additional exhibits to the Agreement and together with the original Order Form shall be referred to as the “Order Form.” Any additional Fees will also be due and payable per the terms of the Order Form. 

2. Lab Services

B1.  The following additional Definitions are added to the Agreement:

B1.1  “FullMetrics API” means the Lab Services FullMetrics API. 

B1.2  “API Communications” means communications by the FullMetrics API of Test Results (defined below) and related information from a third party laboratory network comprised of Clinical Laboratory Improvement Amendments-certified laboratories under agreement with FullMetrics (each, a “FullMetrics Laboratory”) to the Client Application through the Integration Software or as visible from the FullMetrics SaaS.

B2.  Additional Active User Requirements:  An individual person over the age of 18 (i) who receives Self-Administered Specimen Collection Supplies (defined below) under the Agreement to collect a specimen from themselves, (ii) from whom a specimen is collected by a FullMetrics Specimen Collector (defined below) under the Agreement, and/or (iii) from whom a specimen is collected by a FullMetrics Laboratory under the Agreement, in each case, which are processed by a FullMetrics Laboratory (the results of such processing, the “Test Results,” which together with any Specimen Collection Supplies are, the “Product”) and for whom Test Results are made available to FullMetrics as an API Communication (each such individual, a “Collection Active User”); provided that individuals who are 13 years old or older but younger than 18 years old (a “Minor”) cannot be sent Self-Administered Specimen Collection Supplies and can only be a Collection Active User for purposes of At-Home Collections (defined below) and Walk-In Collections (defined below) if a parent or legal guardian of such individual signs a consent; provided further, that FullMetrics will not be responsible for confirming that any individual who accompanies a Minor and represents themselves to be the Minor’s parent or legal guardian is in fact a parent or legal guardian of such Minor.

B3.  During each Order Form Term of an Order Form if it includes the purchase by Client from FullMetrics of specimen collection supplies (the “Specimen Collection Supplies”) and the performance of testing by a FullMetrics Laboratory on specimens (“Testing”), the following shall apply:

B3.1  FullMetrics and Client will include in an Order Form the (i) type of Specimen Collection Supplies and testing to be purchased by Client during an Order Form Term, and (ii) total number of Specimen Collection Supplies to be shipped to Collection Active Users, FullMetrics Specimen Collector(s), Client, a Client Partner and Client Collection Designee(s) during an Order Form Term (collectively, the “Estimated Specimen Collection Supplies Inventory”).

B3.2  Upon receipt of an order from Client under an Order Form (a “Client Order”), FullMetrics will:

(i)  ship the (a) Specimen Collection Supplies that will be self-administered by a Collection Active User (“Self-Administered Specimen Collection Supplies”) to the address(es) of the Collection Active User(s), (b) Specimen Collection Supplies to the Client’s or a Client Partner’s address for use with Collection Active Users, and/or (c) the Specimen Collection Supplies to the address of a third party designee of Client for use with Collection Active Users (each, a “Client Collection Designee”), in each case, as provided by Client in the Client Order  (Self-Administered  Specimen  Collection  Supplies  shipped  under  this Section B3.2(i) will contain all necessary sample collection materials); or 

(ii)  notify a third party under contract with FullMetrics who will collect specimens from Collection Active User(s) (a “FullMetrics Specimen Collector”) of the address(es) of the Collection Active User(s) from whom specimen(s) will be collected at their home or  other  location  (each,  an  “At-Home  Collection”),  and  if  applicable,  ship Specimen Collection Supplies to the FullMetrics Specimen Collector, in each case, as provided by Client in the Client Order; and/or 

(iii)  notify a FullMetrics Laboratory(ies) of the identity(ies) of the Collection Active User(s) who will walk-into its/their service center(s) and from whom the FullMetrics Laboratory (ies) will collect a specimen (each, a “Walk-In Collection”), in each case, as provided by Client in the Client Order.

Client may submit Client Orders and track the status of Specimen Collection Supplies through access to the FullMetrics Platform.

B4.  FullMetrics’s current offering of Specimen Collection Supplies is available by request. Contact the Client Account Manager assigned during onboarding.

B5.  FullMetrics  agrees  to  make  commercially  reasonable  efforts  to  ship  Client  Orders  for  Self- Administered Specimen Collection Supplies pursuant to Section B3.3(i) next day.

B6.  FullMetrics will only ship Self-Administered Specimen Collection Supplies to a Collection Active User or to Client, a Client Partner or to a Client Collection Designee for a Collection Active User, and Collection Active Users can only participate in Walk-in Collections or At-Home Collections,  if there has been a physician order for Testing on specimens generated from each such collections and for each such Collection Active User that complies with Applicable Law (a “Physician Order”). If included in an Order Form, Physician Orders will be provided by FullMetrics’s third party physician group as described in Section B7 below.  Alternative arrangements for Physician Orders may be specified by Client in an Order Form (“Alternative Physician Orders”); provided that at a minimum, Client will provide FullMetrics with the physician’s name and national provider identifier (NPI) for any physician used by Client or a Client Partner.

B7.  If included as an obligation of FullMetrics in an Order Form, FullMetrics will make available to Client the services of a third party physician group under contract with FullMetrics (the “Third Party Physician Group”) (i) to review the Collection Active User’s request for Testing (and resulting Test Results), determining if a Physician Order for such Testing is required, and if so, generate the Physician Order for the Testing and the Self-Administered Specimen Collection Supplies and the services of FullMetrics Specimen Collectors and FullMetrics Laboratories conducting Walk-In Collections purchased by Client, to review the Test Results for Testing performed on specimens obtained during such collections, and to offer Collection Active Users for whom the Test Results are ordered and reviewed follow up services in case of abnormal Test Results (collectively, the “Complete Physician Order and Results Review Services”), or (ii) after the obtaining of an Alternative Physician Order, review the Test Results for Testing performed on the specimen obtained during collection under such Alternative Physician Order, and to offer Collection Active Users for whom the Test Results are ordered and reviewed follow up services in case of abnormal Test Results (“Partial Physician Order and Result Review Services”). All Test Results require a physician follow up in case of critical results. If the Third Party Physician Group is the source of the Physician Order for a Test Result that is critical, FullMetrics will provide the follow-up services unless an agreement delegating such follow-ups to Client is signed and Client’s clinical team, or through Client, the clinical team of a Client Partner takes responsibility for completing the required follow-ups, the latter case being the responsibility of Client. If Alternative Physician Orders are used, Client shall be responsible for such follow-ups using its or its Client Partner’s physician(s) unless Client has purchased Partial Physician Order and Result Review Services in the applicable Order Form.  If any Physician Order and Results Review Services are included in an Order Form, Client shall provide all required Active User Information needed for the Physician Order and Results Review Services, including but not limited to criteria for testing and biographical data.

B8.  Client may cancel: (i) a Client Order for Self-Administered Specimen Collection Supplies and request for Testing if the Client Order has not yet been fulfilled, (ii) a Walk-In Collections or an At-Home Collections if such cancellation can be communicated to the FullMetrics Laboratory or the FullMetrics Specimen Collector prior to the collection of the specimen, and (iii) the FullMetrics Laboratory processing of a specimen collected under the Agreement if such cancellation can be communicated to the FullMetrics Laboratory prior to processing. FullMetrics will use commercially reasonable efforts to assist Client in cancelling a Client Order. Self-Administered Specimen Collection Supplies ordered during business hours (EST) will be fulfilled promptly limiting the ability for Client to cancel prior to fulfilment. Specimen Collection Supplies containing specimens that are received by the FullMetrics Laboratory will be processed within the FullMetrics Laboratory’s own processing time frame limiting the ability of Client to cancel processing.

B9.  FullMetrics will provide free replacement of (or parts of) Self-Administered Specimen Collection Supplies under the following circumstances: (i) Self-Administered Specimen Collection Supplies are lost in transit either from the fulfilment center to the Collection Active User, or from the Collection Active User to the FullMetrics Laboratory as confirmed by a tracking number, (ii) if agreed upon on an Order Form, if Client can reasonably prove that a Collection Active User has complied with the collection instructions provided with the Self-Administered Specimen Collection Supplies (the “Collection Instructions”) and there is nonetheless ‘quantity not sufficient’ (QNS) determination by a FullMetrics Laboratory, (iii) Self- Administered  Specimen  Collection  Supplies  are  missing  items  resulting  from  incorrect  fulfilment (replacement items to be sent within two (2) business days of FullMetrics receiving notification from Client of the missing items), or (iv) there is an error during the processing of Testing at the FullMetrics Laboratory not caused by a Collection Active User (replacement Self-Administered Specimen Collection Supplies will be sent within three (3) business days of identification of error at the FullMetrics Laboratory).  FullMetrics must receive notification from Client regarding any issues with Self-Administered Specimen Collection Supplies within thirty (30) calendar days from the date of the applicable Client Order date to allow for delivery of replacement Self-Administered Specimen Collection Supplies.

B10.  FullMetrics shall make commercially reasonable efforts to cause each FullMetrics Laboratory to process specimens returned to the FullMetrics Laboratory in accordance with the Collection Instructions/return labels provided with the Specimen Collection Supplies and FullMetrics will make Test Results for each such specimen available to Client from the FullMetrics Platform within two (2) days or less from the date FullMetrics receives them from the FullMetrics Laboratory.

B11.  Client will obtain, or cause a Client Partner to obtain, as part of the Consents referred to in the Agreement, consents required under HIPAA and informed consents and other consents required for the Physician Order and Results Review Services or Alternative Physician Orders, if applicable. Client represents and warrants that the use of the Self-Administered Specimen Collection Supplies following receipt hereof by Client, a Client Partner or by a Client Collection Designee, if any, will comply with Applicable Law.

B12.  Where applicable under state law, FullMetrics will be performing payment handling services to remit payment from the responsible party to the FullMetrics Laboratory. Where applicable under state law, FullMetrics will be performing payment handling services to remit payment from the responsible party to the FullMetrics Laboratory. Client represents and warrants that it shall not utilize FullMetrics’ labwork services in the States of New York, New Jersey, or Rhode Island under any circumstances. Furthermore, Client shall not, and shall not permit any Client Partner or Client Collection Designee or any third party to which Client, a Client Partner, or a Client Collection Designee makes Specimen Collection Supplies available, to engage in labwork services or make Specimen Collection Supplies available in these states. Client also represents and warrants that if any Collection Active User is a resident of the State of New York, New Jersey, or Rhode Island, it shall not, and shall not permit any Client Partner or Client Collection Designee or any third party to which Client, a Client Partner, or a Client Collection Designee makes Specimen Collection Supplies available, to increase or modify the Lab Processing Fees or the Physician Order and Results Review Services Fees. Client shall, and shall cause each Client Partner, Client Collection Designee, and any third party to which Client, a Client Partner, or a Client Collection Designee makes Specimen Collection Supplies available, to make such Processing Fees and Physician Order and Results Review Services Fees transparent to each Collection Active User, including but not limited to through and on any applicable Client, Client Partner, Client Collection Designee, and such third party’s website that is utilized by Collection Active Users for ordering Specimen Collection Supplies.

B13.  If Client is obtaining Alternative Physician Orders, Client agrees that such Alternative Physician Orders shall comply with Applicable Law.

B14.  With  respect  to  Specimen  Collection  Supplies,  Testing  and  related  Services,  Client acknowledges and agrees that FullMetrics purchases and stores the Estimated Specimen Collection Supplies Inventory after such Estimated Specimen Collection Supplies Inventory is purchased. In the event Client terminates the Agreement (and thereby all Order Forms) or a single Order Form or FullMetrics terminates the Agreement (and thereby all Order Forms) or a single Order Form pursuant to Section 14 of the Terms and Conditions, Client shall pay for all Specimen Collection Supplies included in any Estimated Lab Test Inventory not purchased under a Client Order plus any and all warehouse costs incurred by FullMetrics on account of such Estimated Specimen Collection Supplies Inventory (the “Specimen Collection Supplies Termination Fee”). The Specimen Collection Supplies Termination Fee shall be paid within thirty (30) days of termination. FullMetrics shall furnish receipts of any warehouse costs upon request from Client.  In addition, FullMetrics cannot refund any PORRS Fee or Lab Processing Fee once the Physician Order and Results Review Services or FullMetrics Laboratory processing, as applicable, has been rendered. This Section B14 shall survive any termination or expiration of the Agreement, regardless of the cause of such expiration or termination, even if resulting from the breach of either party to the Agreement.

B15.  FullMetrics will provide technical support with respect to the processing of Specimen Collection Supplies via telephone, Slack, and/or electronic mail on weekdays during Support Hours.

B16.  Additional Disclaimers Under Section 13 of the Agreement.  FULLMETRICS DOES NOT ITSELF PROVIDE FULLMETRICS LABORATORY PROCESSING SERVICES, THE PHYSICIAN ORDER AND TEST RESULTS  REVIEWS  SERVICES  OR  ANY  MEDICAL  SERVICES.  ALL  LABORATORY PROCESSING IS PROVIDED BY THIRD PARTY LABORATORIES UNDER CONTRACT WITH FULLMETRICS. IF PROVIDED BY FULLMETRICS UNDER THE ORDER FORM, THE PHYSICIAN ORDER AND TEST RESULTS REVIEWS SERVICES AND OTHER MEDICAL SERVICES ARE PERFORMED BY A THIRD PARTY PHYSICIAN GROUP UNDER CONTRACT WITH FULLMETRICS. FULLMETRICS IS NOT LIABLE FOR ANY ERRORS IN DATA OR VIOLATIONS RESULTING FROM THIRD PARTY DATA SHARING PRACTICES. 

3. Client Obligations

C1.  Client Obligations.

C1.1  For purposes of the Agreement, the following terms will have the following meanings:

C1.1.1  “Team Members” means individual employees or contractors of Client and/or of a Client Partner.

C1.1.2  “Client Application” means the software application owned or operated by Client and identified in an Order Form.

C1.1.3  “Client Services” means the services provided by Client and by Client to Client Partners and by Client and Client Partners to Active Users whether through the use of the Client Application or otherwise.

C1.2 Client shall use the FullMetrics Platform, Lab Tests, and any related materials provided by FullMetrics for internal use only in connection with its performance under the Agreement and the performance of the Client Services by Client or by third parties under contract with Client (each, a “Client Partner”) and by Client or Client Partners for Active Users and will not resell, sublicense, or distribute the FullMetrics Platform, or API, or the Integration Software to any third party for any reason without FullMetrics’s prior written consent.

C1.3  Client agrees that prior to a production use of the Integration Software (and any modifications thereto by or on behalf of Client) to enable API Communications with the FullMetrics API as contemplated in the Agreement, Client will provide FullMetrics with reasonably detailed information describing the Client Application and the Integration Software (the “Client Application Information”).  FullMetrics will have the right to review and test the operation of the Integration Software (and all modifications thereto, in each instance) to determine if either could negatively impact the performance or security of the FullMetrics Platform prior to its production use under the Agreement.

C1.4  Client agrees to take such actions and make available such reasonable materials and other resources as are required for the performance of the Services and the provision of the Products and Licenses by FullMetrics, and provide such equipment, software, and ancillary services necessary for the operation of the Client Application and the Integration Software.  Client shall be responsible for maintaining the security of said equipment, software, and ancillary services and of the Accounts, and for all uses of the API Keys and Accounts by parties other than by FullMetrics and persons over whom FullMetrics has control.  Client shall not re-grant or distribute to any third party the rights it receives under Section 1.2, other than as specifically stated in Section 1.2.

C1.5  Client agrees to obtain, or cause a Client Partner to obtain, from each Active User all consents required for the API Communications (as defined in the Addendum) and for the provision by FullMetrics of the Services, Products and Licenses, including but not limited to the access to, processing and use of all data and other information about each Active User (collectively, “Active User Information”) from whatever sources obtained by FullMetrics as contemplated by the Agreement and the use of such Active User Information in connection with the provision of the Client Services (collectively, the “Consents”). Client also agrees that each Team Member accessing the API Communications or the FullMetrics Platform shall agree to terms and conditions consistent with the applicable terms and conditions in this Agreement.  Client agrees to retain or cause each Client Partner to retain all Consents for as long as required by Applicable Law (defined below) and to make copies of such Consents available for audit by FullMetrics from time to time upon reasonable request.  A breach of the Agreement by a Client Partner or a Team Member shall be a breach of the Agreement by Client.

C1.5.1 Client agrees that each Collection Active User will be shown and agrees to a Telehealth Consent Form before each order is made. An up-to-date Telehealth Consent Form can be found at fullmetrics.com/telehealthconsent.  This can be embedded in Client’s own Terms of Service.
C1.5.2 Client agrees that each Collection Active User will be shown and agrees to a HIPAA Authorization acknowledging that FullMetrics and its compliant partners may share their PHI via API. An up-to-date HIPAA Authorization can be found at fullmetrics.com/hipaaconsent. This authorization will a be separate line item, linking out to the consent terms. Example: “By checking this box (link to document), I declare I have read and agree to terms of the HIPAA Authorization”.

C1.6  Client agrees to obtain all licenses, permits, insurance and approvals as may be necessary for the performance of the Client Services and Client’s and Client Partners’ access to, processing and use of all Active User Information in full compliance with all applicable state, federal, local and jurisdictional laws, regulations, ordinances, rules and requirements (“Applicable Law”). The accuracy and consistency of the Active User Information will directly impact how the FullMetrics Platform (and FullMetrics’s subcontractors) match Active Users with their Active User Information. Client acknowledges and agrees that if Active User Information is inadequate, inaccurate, or inconsistent or the information of any individual who is not an Active User is provided to FullMetrics and used in the Services, Products or Licenses, there may be errors in the API Communications and/or FullMetrics may not be able to perform some or all of the Services or provide certain Products in compliance with the Agreement, which shall not be a breach of the Agreement by FullMetrics (a “Non-Breach Violation”).

C1.7 Client and FullMetrics will each provide a designated point of contact as a liaison for all FullMetrics-associated work before the start of work.

C1.8  FullMetrics will not be responsible for delays in reporting or data delivery due to malfunctions or errors of systems and applications maintained by Client. Any failure by FullMetrics to perform or any delay in the performance by FullMetrics of its obligations under the Agreement caused by a failure of Client to perform as required in the Agreement or an applicable Order Form shall not constitute a breach of the Agreement by FullMetrics.

C1.9  Client will inform FullMetrics via email or phone, of any and all issues occurring to systems and applications maintained by Client that may affect the exchange of information, reporting, or data delivery between Client and FullMetrics.  

C1.10 Compliance and Authorization. The Client acknowledges and agrees that it is solely responsible for obtaining all necessary consents, authorizations, and disclosures required under the Health Insurance Portability and Accountability Act of 1996 (HIPAA) and its implementing regulations (“HIPAA Rules”) from End-Users whose Protected Health Information (PHI) may be collected, processed, or transmitted as part of the Services.

The Client shall ensure that:
(i) All consents and authorizations comply with HIPAA Rules and any applicable state privacy laws.
(ii) End-Users are informed about the purposes for which their PHI will be used, including disclosures to FullMetrics as a Business Associate under HIPAA.
(iii) Written documentation of such consents is retained for the duration of this Agreement and for any period required by applicable law.

FullMetrics shall not be liable for the Client’s failure to obtain appropriate consents or for any non-compliance with HIPAA or applicable privacy laws resulting from such failure.

C2. Delegated Clinical Follow-Up Responsibilities

C2.1 Delegated Responsibilities

C2.1.1 Client will perform Clinical Follow-Up, as defined in the Agreement, for certain lab tests agreed to by Client and FullMetrics ordered. Client will perform Clinical Follow-Up within 12 hours of receiving abnormal or critical test results or as required by law.

C2.1.2 Client will meet the clinical standard of care when performing Clinical Follow-Up and will indemnify FullMetrics for any (i) breach of any part of section C2. Delegated Clinical Follow-Up Responsibilities, (ii) violation of a law or regulation, or (iii) claim arising out of medical malpractice.

C2.1.3 The Parties will comply with all applicable laws and regulations in performing its obligations hereunder, including but not limited to the federal and state anti-kickback and self-referral laws and regulations, at all times during the term of this Agreement. Neither Party is required to refer patients to, or otherwise generate business for, the other party. The Parties intend this Agreement to comply with 42 U.S.C. § 1320a-7b(b) (the Anti-Kickback Statute), 42 U.S.C. § 1395nn (the Stark Law) and any other federal or state law provision governing health care fraud and abuse.

C2.1.4 Client shall, and shall require its employed or contracted clinicians to, provide and perform any and all Clinical Follow-Ups with due care and diligence, in a competent, professional, ethical and diligent manner consistent with (a) generally accepted professional standards, and (b) the requirements and limits of applicable law. 

 

C2.2 Additional Client Obligations

C2.2.1 To the extent permitted by law, Client shall promptly notify FullMetrics of any professional liability policy claim filed by a Patient against Client that is related to any services provided under this Delegation Agreement.

(ii) Client shall maintain insurance coverage for activities and operations of Client and its agents, which will include professional liability insurance and coverage for data security breaches and other unauthorized uses or disclosures of personal information experienced by Client, in amounts no less than $1.0 million per occurrence and $3.0 million annum aggregate.

(iii) Client will defend, hold harmless, and indemnify FullMetrics and its affiliates, and its and their respective employees, contractors, agents or other representatives, from and against all claims, actions, suits or proceedings (each a “Claim”), and any losses, liabilities, damages, costs and expenses (including reasonable attorneys’ fees) (collectively, “Losses”), in each case to the extent such Claims and/or Losses arise out of, result from, or are related to: (a) errors by Client in transmitting patient information to Provider Group; (b) Company’s failure to deliver any test results related to the Clinical Follow-Up agreed upon herein; (c) a claim by any regulatory body, including but not limited to a state or federal government entity, regarding: (i) the Client’s compliance with industry regulations and safety standards; or (ii) Client’s adherence to any state requirements concerning the corporate practice of medicine.