Function HealthReferral Agreement Terms

REFERRAL AGREEMENT

This Referral Agreement (the “Agreement”) sets forth the terms and conditions between “Partner” (as defined in the paragraph below) and Function Health, Inc., including its affiliates and subsidiaries (collectively referred to herein as “Function,” “we,” “our,” or “us”), which govern Partner’s provision of referral services to Function. Function and Partner may individually be referred to as a “Party” and collectively the “Parties.” The Agreement is effective as of the date indicated on the Order Form to which this Agreement is attached (if applicable, hereinafter, the “Order Form”), or as otherwise specified in a signed writing between the Parties (the “Effective Date”).

By accepting this Agreement, either by clicking a box indicating your acceptance, executing an Order Form or other document that references this Agreement, by using (or making any payment for) the Services, or by otherwise indicating your acceptance of this Agreement, you: (1) agree to this Agreement on behalf of the individual furnishing acceptance of this Agreement and the organization, business, or other legal entity for which you are acting (the individual and entity, collectively, shall herein be referred to as “Partner,” “you,” and/or “your”); and (2) represent and warrant that you, as the individual furnishing acceptance to this Agreement, have the authority to enter into this Agreement in binding fashion on behalf of Partner, to the extent Partner is an organization, business, or other legal entity. If you do not have such authority, or if you do not agree with this Agreement, you must not accept this Agreement and may not provide referral services to Function pursuant hereto.

1. REFERRAL SERVICES

1.1 Term. This Agreement shall commence on the effective date and continue for a period of two (2) years (the “Term”) unless terminated earlier pursuant to the terms herein. Throughout the Term, Partner shall provide the services identified in the Order Form (the “Services”):

1.2 Intellectual Property. During the Term of this Agreement, each Party hereby grants a limited, revocable, non-exclusive, non-transferable, non-sublicensable, royalty-free, fully paid up licenses to the other Party to use its name, trademarks, trade names, slogans, or other designations provided by a Party to the other Party and approved for use hereunder (each, a Mark; collectively, “Marks”) and any other trademarks, copyrights or other intellectual property – including third-party intellectual property, as authorized– provided by either Function or Influencer to the other Party and approved for use hereunder (each Material; collectively, “Materials”); provided that use or incorporation of Function’s name and/or any Function Mark, Material, and/or other intellectual property shall be approved in writing by Function prior to any such incorporation and/or use – which consent will not be unreasonably denied or delayed – and such incorporation and/or use shall be strictly in accordance with Function’s specifications and requirements. Unless otherwise agreed to in writing by the Parties, neither Party shall have the right to use the other Party’s name, Marks, Materials, or any other intellectual property for any purpose other than the performance of its obligations hereunder. All rights not specifically granted to a Party under this Agreement are reserved by the Party that owns the name, Mark, Material or other intellectual property. Any and all uses of a Party’s respective Marks and Materials shall inure to the benefit of that Party. Each Party agrees that it shall not at any point alter, obscure, modify, manipulate, tarnish, blur, dilute, or otherwise diminish the other Party’s name, Marks, Material, or other intellectual property.

2. PAYMENTS.

2.1 Payment Terms. Payments of any fees to Partner for the Services (the “Fees”) shall be calculated and paid pursuant to the Order Form.

2.2 Arm’s Length Negotiations. The Parties hereto have mutually agreed, through arm’s length negotiations, that Influencer’s compensation hereunder is commercially reasonable and reflects the fair market value of the Services to be provided by Influencer pursuant to this Agreement. Moreover, the Parties further acknowledge and agree that such compensation has not been and shall not be determined in a manner that takes into account the volume or value of any patient referrals or business otherwise generated between the Parties hereto or any third parties, which relate to any laboratory services, medical services, or any other healthcare items or services.

3. REPRESENTATIONS, WARRANTIES & DISCLAIMERS.

3.1 Mutual Representations and Warranties. Each Party represents and warrants that it: (a) has the right, power and authority to enter into this Agreement and perform its obligations as set forth herein, (b) is under no obligation or restriction, nor will assume any such obligation or restriction, that does or would interfere or conflict with this Agreement, and (c) will comply with all applicable laws, including data protection laws, in the performance of its obligations under this Agreement.

3.2 Partner Representations & Warranties. Partner represents that the terms of this Agreement do not conflict with any other terms or conditions to which Partner is bound and warrants that it shall not enter into any agreement or take on any other obligation which conflicts with the terms of this Agreement or otherwise limits Partner’s ability to fully abide by the terms and conditions of this Agreement. Partner covenants that: (a) Partner shall neither seek nor accept compensation arising from or relating to a Partner Member signing-up for and/or paying for third-party laboratory services, medical services, or any other healthcare items or services; (b) neither Partner nor its “Representatives” (defined for each Party as its respective “officers, directors, executives, employees, subsidiaries, affiliates, agents, attorneys, successors, and assigns”) shall engage in any behavior that stands to degrade Function’s reputation, bring Function shame, or create a negative impression of Function – whether by actions in connection with Function or extraneous to Function; (c) Partner shall comply will all laws, rules, and regulations applicable to its duties and obligations under this Agreement, including without limitation any and all applicable laws bearing on privacy, endorsements, promotions, Federal Trade Commission compliance, kickbacks, anti-spam, and laws relating to the practice of any profession; (d) Partner will comply with, the Promotional Partner Endorsement Policy located at https://www.functionhealth.com/promotion-endorsement-policy which is hereby incorporated by reference into this Agreement in its entirety as though herein completely stated; (e) Partner shall not, directly or indirectly, support, aid, assist, encourage, incite, undertake, facilitate, or otherwise participate in any scheme designed to falsely, fraudulently and/or deceptively increase the number of individuals who would qualify as a New FH Member (as defined in the Order Form) or otherwise inflate the Fees owed to Partner, nor shall Partner engage in any other fraudulent or deceptive acts or omissions with respect to the performance of Services hereunder; and (f) Partner shall not make any representations, warranties, guarantees or other commitments or statements on behalf of Function or regarding Function to any Partner Member with respect to the Function Services, except for those set forth in this Agreement, in any Function Materials or as otherwise expressly approved by Function in writing. Furthermore, to the extent Partner is a licensed healthcare professional, Partner represents and warrants that: (a) it understands and acknowledges that nothing in this Agreement is intended to induce or require the referral of patients to Function; and (b) it is independently responsible for complying with and determining the applicability of all federal, state, and local laws governing its professional license(s) and/or certification(s), including but not limited to compliance with the federal Anti-Kickback Statute 42 U.S.C. § 1320a–7b(b) and any other federal, state, or local laws governing healthcare fraud and abuse.

3.3 Function Representations & Warranties. Function represents and warrants that: (a) it will not engage in any unfair, misleading or deceptive practices with respect to the Function Services; and (b) the Function Materials (when used as permitted under this Agreement) will not violate or infringe any common law or statutory right of any third party and shall comply with all applicable laws, rules and regulations.

3.4 DISCLAIMERS. EXCEPT FOR THE EXPRESS WARRANTIES SET FORTH HEREIN, NEITHER PARTY MAKES ANY WARRANTIES, WHETHER EXPRESS, IMPLIED OR STATUTORY IN CONNECTION WITH THIS AGREEMENT, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR PARTICULAR PURPOSE. PARTNER SHALL HAVE NO RESPONSIBILITY FOR THE DELIVERY OR PERFORMANCE OF ANY FUNCTION SERVICES AND SHALL HAVE NO LIABILITY TO FUNCTION OR ANY THIRD PARTY RELATING TO THE FUNCTION SERVICES OR FUNCTION’S AGREEMENTS WITH ITS CUSTOMERS. FUNCTION SHALL BE SOLELY RESPONSIBLE FOR ALL ASPECTS OF THE FUNCTION SERVICES, INCLUDING, BUT NOT LIMITED TO, ALL REGULATORY OBLIGATIONS IN CONNECTION WITH, AND ANY TERMS AND CONDITIONS, WARRANTIES AND SUPPORT APPLICABLE TO THE PURCHASE OR USE OF, ANY FUNCTION SERVICES. FUNCTION SHALL HAVE NO RESPONSIBILITY FOR THE DELIVERY OR PERFORMANCE OF ANY PARTNER PRODUCTS OR SERVICES AND SHALL HAVE NO LIABILITY TO PARTNER OR ANY THIRD PARTY RELATING TO PARTNER OR PARTNER’S AGREEMENT WITH ANY PARTNER CONTACT PARTNER SHALL BE SOLELY RESPONSIBLE FOR ALL ASPECTS OF ITS OWN PRODUCTS AND SERVICES, INCLUDING, BUT NOT LIMITED TO, ALL REGULATORY OBLIGATIONS IN CONNECTION WITH, AND ANY TERMS AND CONDITIONS, WARRANTIES AND SUPPORT APPLICABLE TO THE PURCHASE OR USE OF, ANY PARTNER PRODUCTS AND/OR SERVICES.

4. INDEMNITY; LIMITATION OF LIABILITY.

4.1 Each Party (the “Indemnifying Party”) shall defend, indemnify, and hold harmless the other Party and its Representatives (each, an “Indemnified Party”) from and against any and all debts, obligations, liabilities, claims, demands, controversies, causes of action, suits, disputes, proceedings, and/or other legal actions (hereinafter, each a “Claim” and collectively “Claims”) and any related damages (including without limitation actual, consequential, liquidated, punitive, and compensatory), awards, fees (including reasonable attorneys’ fees and expert fees), costs, expenses, losses, penalties of every kind whatsoever arising out and/or resulting from: (a) the acts and/or omissions of the Indemnifying Party its Representatives, and/or any other person under the license, invitation and/or supervision of the aforementioned; and/or (b) a material breach of one or more warranties, representations, covenants, terms and/or conditions of this Agreement by Indemnifying Part – all of the foregoing excluding Claims to the extent they arise out of and/or result from the acts and/or omissions of the Indemnified Party and/or its Representatives. The approval by a Party of advertising, marketing or promotional materials developed by the other Party does not relieve the developing Party of its obligations under this Section 4.1. An Indemnified Party will promptly notify the Indemnifying Party of any claim for which the Indemnified Party believes it is entitled to indemnification and provide reasonable assistance to the Indemnifying Party with respect to handling the claim. The Indemnified Party’s failure to provide timely notice or reasonable assistance will relieve the Indemnifying Party of its defense and indemnification obligations only to the extent that the Indemnifying Party has been actually and materially prejudiced by such failure. The Indemnifying Party will have the sole right to select counsel, defend, negotiate and settle in connection with any Claim(s); provided the Indemnifying Party will obtain the prior written consent of the Indemnified Party, which consent will not be unreasonably withheld, before settling one or more Claims or ceasing to defend against one or more Claims if such settlement or cessation would cause injunctive or other relief to be imposed against the Indemnified Party. The Indemnified Party will be entitled to participate in the defense of any Claims, and to employ legal representation at its own expense to assist in the handling of any Claim, provided that such participation shall not limit, interfere with, or increase the cost of Indemnifying Party’s own efforts to comply with its obligations to indemnify the Indemnified Party, in which case the Indemnified Party shall be responsible for all fees, costs, and expenses resulting from such limitation, interference, and/or increase in cost.

4.2 Limitation of Liability. UNDER NO CIRCUMSTANCES WILL FUNCTION BE LIABLE TO PARTNER FOR INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL OR EXEMPLARY DAMAGES (EVEN IF FUNCTION HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), SUCH AS, BUT NOT LIMITED TO, LOSS OF REVENUE OR LOSS OF PROFITS; AND (II) IN NO EVENT SHALL FUNCTION’S TOTAL LIABILITY TO PARTNER FOR ALL DAMAGES - AS TO ALL CAUSES OF ACTION, WHETHER IN CONTRACT, TORT OR OTHERWISE - EXCEED THE AMOUNTS OWED TO PARTNER BY FUNCTION FOR THE FEES IDENTIFIED IN THE RELEVANT ORDER FORM IN THE SIX (6) MONTHS PRIOR TO THE DATE PARTNER FIRST ASSERTED SUCH DAMAGES.

5. CONFIDENTIALITY.

5.1 Confidential Information Defined. From time to time during the Term, a Party (as the “Disclosing Party”) may disclose or make available Confidential Information to the other Party (as the “Receiving Party”). “Confidential Information” refers to any non-public information that concerns, arises out of, and/or relates to the prospective and/or actual business of a Party and/or a Party’s Representatives – directly or indirectly, in any medium, including without limitation, information concerning any prospective and actual: research; developments; products; financial plans; financial results and information (e.g. revenue, costs, rates, expenses, profits, losses, compensation amounts and structures); legal analyses; business plans, analyses, and/or models; markets; clients, customers, and/or members; business partners; engagements and/or engagement details; vendors/suppliers; distributors; service providers; technology and/or technology usage; practices and procedures, recipes and formulations, sales and marketing; investment and fundraising matters, and/or other sensitive matters concerning the Party. Each Party shall each treat the terms of this Agreement as Confidential Information. Confidential Information does not include any information that: (i) is or becomes generally available to the public other than as a result of a Receiving Party's breach of this Section 8.A; (ii) is or becomes available to a Receiving Party on a non-confidential basis from a third-party source, provided that such third-party is not and was not prohibited from disclosing such Confidential Information; (iii) was in a Receiving Party's possession prior to Disclosing Party's disclosure hereunder; and/or (iv) can be demonstrably shown as independently developed by a Receiving Party without using any Confidential Information.

5.2 Obligations with Respect to Confidential Information. For a period of not less than the Term of this Agreement plus five (5) years, each Receiving Party shall: (a) protect and safeguard the confidentiality of a Disclosing Party's Confidential Information with at least the same degree of care as said Receiving Party would use to protect its own Confidential Information, but in no event with less than a commercially reasonable degree of care; (b) not use a Disclosing Party's Confidential Information, or permit it to be accessed or used, for any purpose other than to exercise its rights or perform its obligations under this Agreement; and (c) not disclose any such Confidential Information to any person or entity, except on a need-to-know basis to its Representatives, independent contractors, service providers, subcontractors, attorneys, accountants, or financial advisors who need to know the Confidential Information to assist the Receiving Party, or act on its behalf, to: (i) understand these terms and conditions; (ii) evaluate and/or provide advice on the Parties’ rights, obligations, and entitlements hereunder; and/or (iii) exercise its rights or perform its obligations under this Agreement. Insofar as a Receiving Party needs to disclose Confidential Information to one or more individuals who need-to-know, the Parties covenant that any such individual(s) will be bound by commercially reasonable confidentiality terms that are, at least, equally as protective of the Disclosing Party’s rights. If a Receiving Party is required by applicable law or legal process to disclose any Confidential Information, it shall, prior to making such disclosure, use commercially reasonable efforts to notify the Disclosing Party of such requirements to afford the Disclosing Party the opportunity to seek, at the Disclosing Party's sole cost and expense, a protective order or other remedy.

5.3 Exceptions. Notwithstanding the foregoing confidentiality and nondisclosure obligations, the Receiving Party shall have the right to disclose Confidential Information pursuant to an order of a court or other governmental entity, provided that a notice of such disclosure must be given to the Disclosing Party as soon as reasonably practicable prior to disclosure and the Receiving Party has used reasonable efforts to receive confidential or protected status for the Confidential Information.

6. TERM AND TERMINATION.

6.1 Term and Termination. Function may terminate this Agreement for convenience at any time, subject to thirty (30) days’ written notice. Either Party may terminate this Agreement immediately upon written notice in the event: (a) of a material breach of this Agreement by the other Party, provided the breach is not cured within five (5) day of written notice thereof or is incurable within such a period of time or (b) that the other party enters into liquidation, or has a receiver or manager appointed, or has any distress or execution levied on its assets, or compounds with its creditors, or takes or suffers any similar action in consequence of debt or insolvency.

6.2 Effect upon Termination. Upon any termination or expiration of this Agreement: (a) Function will continue to pay to Partner any and all Fees owed or generated prior to termination (b) with ten (10) days’ written request, each Party will return or in commercially-reasonable fashion destroy the Confidential Information of the other Party; and (c) each Party will as soon as practicable takedown and cease any and all uses of any Marks of the other Party. All terms and conditions in this Agreement that, by their nature and/or express language, are reasonably intended for survival of the Term shall so survive, and for as long as specified or otherwise as long as necessary to effectuate their purpose; this includes, without limitation, Sections 3 (Representations, Warranties & Disclaimers), 4 (Indemnity; Limitation of Liability), 5 (Confidentiality), 6.2 (Effect upon Termination), and 8 (General) will survive the expiration or termination of this Agreement.

7. RESERVED

8. GENERAL.

8.1 Governing Law and Venue. This Agreement is governed by the laws of the State of Texas without regard to its conflicts of laws principles. The Parties agree that any claim or cause of action under or relating to this Agreement will be brought only in the courts located in Texas, and the Parties agree to submit to the exclusive personal jurisdiction of such courts and hereby waive all rights to challenge such venue.

8.2 Assignment. Partner may not transfer or assign this Agreement without Function’s express written consent. This Agreement will be binding upon and inure to the benefit of the Parties hereto, and their permitted successors and assigns. There are no intended third party beneficiaries to this Agreement.

8.3 Relationship of Parties. The relationship of the Parties under this Agreement is that of independent contractors, and nothing contained in this Agreement will be construed to give either Party the power to direct or control the day-to-day activities of the other or act as the agent of the other. All financial and other obligations associated with each Party’s business remain the sole responsibility of that Party

8.4 Entire Agreement; Modification & Waiver. This Agreement constitutes the entire agreement between the Parties regarding the subject matter stated herein, and supersedes all previous, contemporaneous or subsequent communications, representations, understandings, and agreements, whether oral, electronic, express or implied, regarding such subject matter (subject to the following sentence). Any amendments to, and/or waivers of rights arising under, this Agreement are valid only if in writing and signed by an authorized representative of both Parties. Waiver of any term or obligation set forth in this Agreement by any Party shall not prevent that Party from later insisting upon full performance of such agreement or obligation and no course of dealing, partial exercise or any delay or failure on the part of any Party hereto in exercising any right, power, privilege, or remedy under this Agreement or any related agreement or instrument shall impair or restrict any such right, power, privilege or remedy or be construed as a waiver thereof. THIS AGREEMENT SHALL APPLY IN LIEU OF ANY TERMS AND CONDITIONS IN ANY PARTNER INVOICE, PURCHASE ORDER, REGISTRATION FORM, OR OTHER DOCUMENT THAT PARTNER PROVIDES; ALL SUCH TERMS ARE EXPRESSLY REJECTED AND SHALL NOT BE CONSIDERED AN AMENDMENT TO THIS AGREEMENT.

8.5 Severability. If any provision of this Agreement, or the application thereof, is for any reason and to any extent determined by a court of competent jurisdiction to be invalid or unenforceable under applicable law, then a valid provision that most closely matches the Parties’ original intent will be substituted by the reviewing court and the remaining provisions of this Agreement will remain in effect.

8.6 Notices. All notices, requests, demands or consents hereunder shall be in writing and shall be deemed given and received (a) after being successfully emailed to each of the below-listed email addresses; or (b) (i) upon delivery upon being delivered in person, (ii) four (4) days after being mailed by certified or registered mail, postage prepaid, return receipt requested, or (iii) one (1) day after being sent by overnight courier (e.g. UPS, Federal Express). All notices, requests, demands or consents hereunder shall be in writing and shall be sent to the Parties at the notices specified at the outset of the Agreement, or at such other addresses as the Parties may designate by written notice in the manner set forth herein, with email copies indicated below.

Mailing Address to Function:

Function Health, Inc.
Attention: Legal Dept.
600 Congress Avenue, 14th Floor
Austin, TX 78701

With a copy by email to: pranitha@functionhealth.com, legal@functionhealth.com, daniel@functionhealth.com

Mailing and Email Address to Partner are those identified in the Order Form.

8.7 Acceptance; Counterparts. This Agreement may be accepted by the Parties by executing an Order Form and/or any other document that the Parties agree incorporates this Agreement by reference. Such Order Form (and/or other document, if applicable) may be executed in any number of counterparts, each of which shall be an original, but all of which, when taken together, will constitute one and the same instrument. A signed copy of this Agreement delivered by facsimile, e-mail or other means of electronic transmission shall be deemed to have the same legal effect as delivery of an original signed copy of this Agreement. The Parties agree that. to the extent they sign electronically, their electronic signature is the legally binding equivalent to their handwritten signature.

8.8 Construction. Each Party has had the opportunity to consult with its own legal counsel in connection with the review, drafting, and negotiation of this Agreement. Accordingly, the rule of construction that any ambiguity in this Agreement shall be construed against the drafting Party shall not apply. Any ambiguities shall be construed to reflect the intent of the Parties. There are no intended third-party beneficiaries to this Agreement.

NO OTHER TERMS VALID.