The Terms of Service described herein constitute a legal agreement (this “Agreement”) applicable to, and entered into by and between, Bask Health, Inc., a Delaware corporation, (the “Company” or “Bask”) and any entity using the Platform (defined below) as a participating pharmacy (the “Pharmacy”). Company and Pharmacy are each referred to as “Party” and collectively, as the “Parties.” The effective date of this Agreement is the date Pharmacy is notified by Bask of its acceptance as a participating pharmacy on the Platform (the “Effective Date”).

Bask is a software platform providing software tools and integrations to health and wellness brands, including consumer-facing web services and telemedicine support services, as well as access to healthcare provider groups and online pharmacies participating in Bask’s platform (the “Platform”). Pharmacy is a duly licensed and accredited pharmacy provider and provides medication fulfilment services in the Service Area (defined below). Pharmacy desires to participate in the Platform and become a pharmacy service provider on the Platform, as specified herein.

Words not otherwise defined throughout this Agreement are defined as follows:

1. “Applicable Law” means any statute, law, ordinance, regulation, rule, code, order, constitution, treaty, common law, judgment, decree of any federal, state, local, or foreign government or body or regulatory subdivision thereof; any court, or tribunal of competent jurisdiction, or any agency, including but not limited to all rules and regulations of pharmacy and medical boards, as well as HIPAA, Healthcare Laws, and Compounding Laws (each as defined below).

2. “Order” means an order for a valid medication prescription placed by a qualified health care professional who is legally authorized to prescribe drugs (“Professional”) through the Platform for fulfillment by Pharmacy for direct shipment to a Consumer End User (defined below).

3. “Product” means any pharmaceutical, supplement, or other product prescribed or recommended to a Consumer End User by a Professional via the Platform.

4. “Service Area” means all states of the United States where Pharmacy is registered or licensed as a mail-order pharmacy or otherwise has all required licenses or government approvals under Applicable Law to provide the services under this Agreement.

5. “Consumer End User” means an individual who participates in the Platform by way of being evaluated by a Professional and who receives a Product from Pharmacy.

1. Pharmacy may use any method permitted by Applicable Law or customarily used in the industry, including Pharmacy’s own business practices, to verify the validity of a prescription, including obtaining an original copy of the prescription or consulting with the Professional. Pharmacy reserves the right to reject any Order if it determines, in its sole discretion, that a prescription is not valid.

2. Pharmacy will be available to provide and will provide medication fulfillment services, subject to Applicable Law, to Consumer End Users located in the Service Area, including maintaining a sufficient inventory of medications, confirming the validity of Orders, promptly filling valid Orders, and packing and shipping the Orders directly to Consumer End Users (“Services”).

3. Pharmacy shall establish a direct pharmacy-patient relationship with each Consumer End User for the purpose of filling valid Orders and will be responsible for exercising its professional judgment with respect to filling each Order, including, without limitation, the obligation to determine what documentation is necessary to constitute a valid Order and the procedures for filling or not filling such Orders.

4. Pharmacy will use commercially reasonable efforts to fill and mail out promptly each Order that is received by Pharmacy, which meets all of Pharmacy’s requirements.

5. Pharmacy understands and agrees that Consumer End Users using the Platform may elect not to use Pharmacy for pharmacy services. If a Consumer End User elects not to use Pharmacy for such services, said Consumer End User may obtain the Product from the pharmacy provider of their choice.

6. Pharmacy will provide the Services under the terms of this Agreement and pursuant to the rates mutually agreed upon by the Parties in writing.

7. Pharmacy represents and warrants to Company that as of the Effective Date it is, and that it will remain at all times during the Term, capable of performing all Services requested by Company.

1. Company shall maintain the Platform for supporting prescription transactions described herein, including collecting Orders, sending Orders to Pharmacy, and facilitating Pharmacy’s provision of Services described herein.

2. Company shall deliver directly or indirectly information that Pharmacy requires to provide services under this Agreement, which includes, but is not limited to, the following, as necessary: an Order and/or authorization from a Consumer End User to transmit Orders to Pharmacy and/or arrange for the delivery of all Products through a third-party delivery service from the Pharmacy to Consumer End Users.

3. Company will designate one of its employees to serve as its primary contact with respect to the services under this Agreement (the “Contract Representative”). Company will require that the Contract Representative respond promptly to any reasonable requests from Pharmacy for instructions, information, or approvals required by Pharmacy to provide the services.

Subject to the terms of this Agreement, Company hereby licenses to Pharmacy a non-exclusive, nontransferable, non-sublicensable, participation license for the term of this Agreement to (i) receive Orders from Providers as directed by Consumer End Users, and (ii) utilize the necessary Platform information to be paid by Company for Pharmacy’s Services.

Company may, in its sole discretion, modify and/or update the Platform. In such event, Company will provide to Pharmacy, within a reasonable time that is not less than thirty (30) days before such event, any additional specifications and related materials needed by Pharmacy to allow implementation by Pharmacy of such modified or updated services.

1. This Agreement shall be effective as of the Effective Date, and shall continue in effect for a one (1) year term (“Initial Term”) and shall automatically renew for successive one- year terms (“Renewal Terms”) unless either Party provides written notice of nonrenewal to the other party at least sixty (60) calendar days’ prior to the end of any Renewal Term.

2. Either Party may terminate this Agreement at any time, with or without cause, upon one hundred and eighty (120) calendar days’ advance written notice to the other Party during the Initial Term.

3. This Agreement will terminate immediately upon notice to the other Party of such termination if the any of the following events occurs:

   1. Pharmacy fails to maintain appropriate licensure, registration, certification, good standing, or insurance, as required under this Agreement and/or Applicable Law;

   2. Pharmacy fails to comply with all Applicable Law;

   3. Upon the filing of a petition in voluntary bankruptcy or an assignment for the benefit of creditors by either Party, or upon other action taken or suffered, voluntarily or involuntarily, under any federal or state law for the benefit of insolvents by either Party, except for the filing of a petition in involuntary bankruptcy against either Party with the dismissal thereof within thirty (30) calendar days thereafter;

   4. if this Agreement or any part thereof is transferred to or assigned by Pharmacy to any person or entity, except as may be otherwise herein permitted;

   5. if Pharmacy or any personnel of Pharmacy, whether employee or independent contractor, is excluded from participation in Medicare, Medicaid or other governmental health care program, unless in the case of exclusion of an individual, Pharmacy immediately terminates their relationship with such individual.

4. Effect of Termination

   1. In the event of termination of this Agreement, in addition to all other rights and remedies Company may have at law, equity, or under this Agreement, Company shall have the right to discontinue Pharmacy’s participation in the Platform.

   2. Upon termination of this Agreement, Pharmacy shall return, at its expense, any manuals, participation identification materials, and other documents or materials supplied to Pharmacy by Company in connection with this Agreement, including all Confidential Information of Company, and, Company shall return, at its expense, any documents or materials supplied to Company by Pharmacy in connection with this Agreement, including all Confidential Information of Pharmacy.

   3. The termination rights hereunder are in addition to any and all other rights and remedies that may be available to the Parties under this Agreement and Applicable Laws.

Company and Pharmacy are independent entities, and nothing in this Agreement shall be interpreted to create any relationship other than that of independent parties contracting with each other for the sole purpose of carrying out the provisions of this Agreement. In the performance of the obligations of this Agreement, regarding any services rendered under this Agreement, by either Party or its agents, servants, or employees, each Party is at all times acting and performing as an independent contractor with respect to the other Party, and no Party shall have or exercise any control or direction over the method by which the other Party shall perform such work or render or perform such services and functions. It is further expressly agreed that no work, act, commission or omission of any Party, its agents, servants or employees, pursuant to the terms and conditions of this Agreement, shall be construed to make or render any Party, its agents, servants or employees, an agent, servant, representative, or employee of, or joint venture with, or fiduciary of, the other Party. No provision of this Agreement or any part of any plan shall be construed to require Pharmacy or its agents, servants or employees to dispense or administer any medication to any Consumer End User, if in the Pharmacy’s or its agents, servants or employees’ reasonable professional judgment, such medication should not be dispensed to such Consumer End User.

For the purposes of clarity and the avoidance of doubt, Company shall be permitted to engage any third party in connection with the fulfillment Products or any other business activity.

The following Terms and Conditions of Use apply to Pharmacy’s use of the Platform website (https://bask.health/terms) and any of its information, features, or services (all together referred to as “the Website and Services”). By using the Website and Services, Pharmacy hereby agrees to the Terms and Conditions of Use. Certain features of the Website and Services may be governed by additional terms of use. By agreeing to this Agreement, Pharmacy hereby agrees to all applicable terms and restrictions including any additional terms of use described herein or later added.

Pharmacy agrees to indemnify, defend, and hold Company harmless from and against any and all third-party claims, suits, liabilities (including reasonable costs, expenses, and attorneys’ fees), or proceeding (each referred to as an "Action") brought against Company, including its officers, directors, employees, agents and affiliates, to the extent that such Action is based on or arises from: (a) Pharmacy’s participation in the Platform; (b) Pharmacy’s use of the Company services or products; or (c) Pharmacy’s breach of this Agreement. Pharmacy may not agree to any settlement that imposes an obligation on Company, requires Company to admit fault, or imposes liability not covered by this indemnification or places restrictions on Company, unless Company provides prior written consent.

Pharmacy hereby covenants that in performing its obligations under this Agreement, it will comply in all material respects with all applicable statutes, regulations, rules, orders, ordinances and other laws of any governmental entity to which this Agreement and its obligations under this Agreement, are subject with respect to healthcare regulatory matters (including, without limitation, the all statutes and regulations related to kickbacks and the possession, distribution, monitoring, maintenance and documentation of drug products, including controlled substances) (collectively, “Healthcare Laws”). Pharmacy hereby represents and warrants that, to their best knowledge, no circumstances currently exist that can reasonably be expected to result in material violations of any Healthcare Law by Pharmacy in connection with, or that can reasonably be expected to affect, Pharmacy’s performance under the Agreement.

Pharmacy will be exclusively responsible for packaging and shipping the Products, including costs, to the patients in accordance with all Applicable Laws and Regulations. Pharmacy will utilize the shipping method specified in the Orders. All packages containing any Product will be properly packaged and labeled to comply with the Health Information Portability and Accountability Act of 1996, as amended, including its implementing regulations (“HIPAA”), the laws of any state in which Products are distributed or sold, and any other state and/or federal privacy laws and for the protection against potential theft or diversion. Pharmacy will be responsible for any risk of loss or tampering to the Products during transit from Pharmacy to the Consumer End User.

Pharmacy represents and warrants that it has implemented administrative, physical and technical safeguards to protect the privacy and maintain the security of Protected Health Information (as defined by HIPAA) and personal data (as defined by Applicable Laws) including its receipt, transmission of, processing of, retention of and destruction of said PHI and personal data, including a written information security program compliant with HIPAA and applicable state law requirements.

Pharmacy will be responsible for determining and complying with all Applicable Laws applicable to the furnishing of the Products and its performance of this Agreement.

Pharmacy shall be licensed, registered, accredited and/or certified to conduct business as a pharmacy as required by Applicable Law in every state where Pharmacy does business as a pharmacy under this Agreement. Pharmacy shall provide proof of licensure and/or certification in such states upon execution of this Agreement and thereafter on an annual basis. If at any time any one or more of Pharmacy’s licenses or certifications required under this Agreement is revoked or otherwise limited, Pharmacy shall notify Company promptly, but no later than three (3) business days of such revocation or limitation. Pharmacy shall be solely financially responsible for all costs, fees, and taxes associated with securing and maintaining any required licenses and certification.

Pharmacy represents and warrants that it either (i) maintains all licenses, certifications, and accreditations required under section 503A or 503B of the Federal Food, Drug, and Cosmetic Act (“FDCA”) and any comparable state laws to operate as a compounding pharmacy or outsourcing facility (“Compounding Laws”), or (ii) sources all compounded Products exclusively from pharmacies or outsourcing facilities that are duly licensed, certified, and accredited under applicable Compounding Laws. Pharmacy shall provide proof of such licensure, certification, and accreditation (whether its own or of its compounding pharmacy or outsourcing facility sources) upon execution of this Agreement and thereafter on an annual basis, or as requested by the Company. If at any time Pharmacy's license, certification, or accreditation under Compounding Laws is revoked or otherwise limited, or if any of Pharmacy's compounding pharmacy sources loses its required licenses, certifications, or accreditations, Pharmacy shall notify Company promptly, but no later than five (5) business days of such revocation or limitation. Pharmacy shall comply with all Applicable Laws in connection with pharmacy compounding, including, without limitation, the FDCA, and its implementing regulations, and shall ensure compliance with any applicable United States Pharmacopeia (USP) standards and National Formulary (NF) monograph.

1. NOTWITHSTANDING ANY OTHER TERM OF THIS AGREEMENT, IN NO EVENT SHALL EITHER PARTY’S LIABILITY HEREUNDER INCLUDE ANY SPECIAL, INDIRECT, INCIDENTAL, EXEMPLARY, CONSEQUENTIAL (INCLUDING BUT NOT LIMITED TO LOSS OF PROFITS) OR PUNITIVE DAMAGES ARISING FROM THE RELATIONSHIP OF THE PARTIES OR THE CONDUCT OF BUSINESS UNDER THIS AGREEMENT (EVEN IF SUCH PARTY HAS BEEN ADVISED OF OR HAS FORESEEN THE POSSIBILITY OF SUCH DAMAGES).

2. IN ANY EVENT, NEITHER PARTY’S AGGREGATE LIABILITY HEREUNDER FOR ANY AND ALL CLAIMS ARISING HEREUNDER OR AS A RESULT HEREOF SHALL EXCEED THE TOTAL AMOUNT OF NET FEES PAID TO PHARMACY FOR THE IMMEDIATELY PRECEDING TWELVE MONTH PERIOD. THE FOREGOING LIMITATION OF LIABILITY REPRESENTS THE ALLOCATION OF RISK OF FAILURE BETWEEN THE PARTIES AS REFLECTED IN THE PRICING HEREUNDER AND IS AN ESSENTIAL ELEMENT OF THE BASIS OF THE BARGAIN BETWEEN THE PARTIES.

3. THE DISCLAIMERS, EXCLUSIONS AND LIMITATIONS PROVIDED IN THIS AGREEMENT (INCLUDING THIS SECTION 12) WILL NOT APPLY TO EITHER PARTY’S INDEMNIFICATION OBLIGATIONS, EITHER PARTY’S BREACH OF ITS CONFIDENTIALITY OBLIGATIONS UNDER THIS AGREEMENT OR EITHER PARTY’S INFRINGEMENT UPON, OR VIOLATION OF, THE OTHER PARTY’S INTELLECTUAL PROPERTY RIGHTS.

Pharmacy acknowledges and agrees that Company claims and reserves all rights afforded to Company under all applicable intellectual property laws with respect to the Platform, including without limitation Company Confidential Information furnished to Pharmacy or its representatives in connection with this Agreement. This Agreement shall not affect any transfer of right, title, or interest in or to the Platform or Company’s Confidential Information, and Pharmacy agrees that it shall not assert any right, title, or interest in or to the Platform or Company’s Confidential Information. Furthermore, Pharmacy shall not make any express or implied statement or suggestion, or use Company’s intellectual property in a manner that dilutes, tarnishes, degrades, disparages or otherwise reflects adversely on the Company, or the Company’s business, products or services.

1. Pharmacy shall utilize reasonable security controls to protect the Platform which are no less stringent than those Pharmacy uses to protect its own proprietary rights.

2. Pharmacy and Company agree that all patient related data transmitted between Pharmacy and Company shall be treated as confidential and the Parties shall comply with Applicable Law regarding the confidentiality of healthcare records, which may include, without limitation, the HIPPA and state consumer and medical records privacy laws. Pharmacy agrees to execute any documents reasonably necessary for Pharmacy, Company, and/or a Professional to comply with HIPAA, if applicable.

3. Confidential Information.

   1. The Parties understand that during the course of the Agreement, each Party (the “Receiving Party”) may acquire knowledge of the other Party’s (the “Disclosing Party”) Confidential Information, as defined below, and shall keep such Confidential Information in confidence using the same degree of care as the Receiving Party uses with respect to its own similar Confidential Information or a reasonable degree of care, whichever is greater. Without limiting the generality of the foregoing obligation of the Receiving Party, the Receiving Party agrees that it will not use or exploit any Confidential Information of the Disclosing Party under this Agreement, nor disseminate, disclose or divulge, in whole or in part, any of the Disclosing Party’s Confidential Information to any person, firm, corporation, partnership, association or other entity, without the prior written consent of the Disclosing Party.

   2. “Confidential Information” means any and all information and data of the Disclosing Party or a third party provided by the Disclosing Party concerning its business operations, sales pipeline, customers, suppliers, patient lists, patient files, methods and strategies, know how, future products or plans, financial information or condition, pricing, programs, services, business practices, procedures, technology or prospects, in any form or medium whatsoever (including without limitation writings, drawings and electronically stored information and data), whether or not marked or labeled as “confidential”, including, without limitation: (a) business information and data of the Disclosing Party; (b) technical information and data or trade secrets of the Disclosing Party; (c) nonpublic intellectual property (“IP”) of the Disclosing Party (for example, inventions, discoveries, designs, methods, processes and ideas, whether or not patented or patentable), logos, trade secrets, trade names, trademarks, and service marks (whether or not registered), mask works, works of authorship (whether copyrighted or copyrightable); and (d) all tangible manifestations (however embodied) of any of the information and data referred to in clauses (a), (b), and (c) above (for example, computer software, firmware, scripts or objects, hardware, programmer’s notes, databases, manuals, training manuals and materials, memoranda, reports, drawings, sketches, flowcharts, models, prototypes, files, films, records, and forms).

   3. Notwithstanding the foregoing, a Receiving Party’s obligations with respect to Confidential Information shall not apply with respect to any information (a) that is or becomes public through no act or omission of the Receiving Party in violation of this Agreement, (b) that was known to the Receiving Party prior to disclosure by the Disclosing Party pursuant to this Agreement or any other prior written confidentiality agreement between the Parties, (c) that is acquired by or becomes known to the Receiving Party from a third party without use of, reliance on or reference to any of the Disclosing Party’s Confidential Information, or (d) to the extent that the Receiving Party is required to disclose pursuant to any judicial or governmental judgment, writ, decree, or order, so long as the Receiving Party provides prior notice to the Disclosing Party with a reasonable opportunity under the circumstances to seek appropriate protection of the Confidential Information.

   4. The Parties agree that a breach of any provision of this Section 14 will cause the Disclosing Party irreparable harm which cannot be adequately compensated by monetary relief. Accordingly, in the event of any such breach, the Disclosing Party can and will be entitled to equitable relief (including but not limited to temporary restraining orders, preliminary and/or permanent injunctions), in addition to any other remedies available at law or in equity.

4. Non-Solicitation. Each Party agrees that, for a period of two years from the Effective Date, neither Party nor any of its respective agents, officers, or directors will (or will assist or encourage others to) directly or indirectly, solicit for employment or cause to leave the employ of the other Party any individual who is an employee of the other Party as of the date of this Agreement. Provided however, this shall not prohibit the general solicitation (i.e., a job board posting) of individuals employed by the other Party or hiring of any such individual as a result of such general solicitation.

5. Non-Circumvention. In its performance of this Agreement the Company may identify business connections for Customer, including health/wellness brands and provider groups utilizing Company’s Platform (a “Business Connection”). For the duration of this Agreement, and for a period of two (2) years thereafter, neither the Customer nor any of its Affiliates (defined below) shall, in any manner access, contact, solicit or conduct any business outside of the Platform with a Business Connection that has been revealed to Customer by Company. The Customer shall not in any way whatsoever circumvent or attempt to circumvent Company and shall not enter into direct or indirect offers, negotiations or transactions with a Business Connection revealed by Company. The Customer shall not obviate or interfere with the relationship between Company and a Business Connection for the purpose of gaining any benefit, whether such benefit is monetary or otherwise. The Customer shall not make use of any third party to circumvent this paragraph.

   1. Affiliates. For the purposes of this Section 14.5, an “Affiliate” shall mean: Any business entity, trust or natural person that directly or indirectly, through one or more intermediaries, controls or is controlled by, or is under common control with, the Customer. Affiliates shall additionally mean the Customer’s present and future related parties, including, but not limited to, partners, directors, officers, managers, equityholders, associates, agents, representatives, assignees, employees, contractors, successors, and any other entities or persons contractually bound in any instance by them.

   2. Remedies. In the event of circumvention by Customer, whether direct and/or indirect, the Company shall be entitled to a legal monetary compensation equal to ten times the maximum service fees it would have been realized from the circumvented transaction(s), plus any and all expenses, including any and all legal fees incurred in enforcing these non-circumvention rights.

Except as provided herein, neither Party shall be liable for any losses attributable to nonperformance arising out any “Event of Force Majeure.” As used herein, “Event of Force Majeure” means an act beyond the control of a Party, including without limitation, an act of any federal, state or local governmental authority, act of God, terrorism, loss of communication, delay of the other Party or third parties, strike, riot, fire, flood, lightning, electrical power failure, natural disaster or other similar cause beyond the Party’s control. Each Party shall give the other prompt notice of the occurrence of any Event of Force Majeure that is expected to cause delay hereunder, and the date of performance by any such Party shall be extended for a period not exceeding the period of delay caused by the Event of Force Majeure identified in such notice. Notwithstanding any other provision in this Agreement and/or any applicable schedule(s) to the contrary, neither Party shall be liable for any delay or failure in the performance of its obligations under this Agreement and/or applicable exhibits or schedule that directly results from any failure of the other Party to perform its obligations as set forth in this Agreement and/ or applicable exhibits or schedule. Neither Party shall be responsible to the other for interruptions or cancellations arising from noncooperation and/or nonparticipation of third-party information suppliers.

No part of this Agreement shall be construed to induce or encourage the referrals of patients in violation of Healthcare Laws or other Applicable Law. The Parties acknowledge that there is no requirement under this Agreement, or any other agreement between Pharmacy and Company or their affiliates, that either Party refer any patients to the other Party. The payments to be made pursuant to this Agreement constitute fair market value for the goods and services furnished hereunder, and no payment made under this Agreement shall be in return for the referral of patients.

Each Party shall comply with the terms of the Business Associate Agreement attached as Exhibit A (“BAA”). The BAA is hereby incorporated into this Agreement and the terms of the BAA shall apply to the parties under this Agreement until the termination or expiration of this Agreement.

All existing pricing schedules, order forms, service agreements and/or addenda executed by the Parties shall be incorporated into this Agreement. In the event there is a conflict between terms in this Agreement and any other written agreement between the Parties now or in the future, the terms of such other agreement(s) shall have priority over the terms in this Agreement.

Company may amend this Agreement at any time through posting same on the Platform website and providing immediate written notice to Pharmacy. If Pharmacy objects to any such amendment(s), Pharmacy may terminate this Agreement by giving Company written notice of termination of this Agreement prior to the expiration of the notice period, which termination shall become effective thirty (30) days after the date of such notice of termination, or such other longer or shorter period required by law. If Pharmacy does not provide written notice of termination of this Agreement to Company within the notice period, then Pharmacy will be deemed to have accepted such amendment.

No part of this Agreement may be assigned by a Party without the other Party’s prior written consent; provided, however, that either party may assign this Agreement in connection with a merger or sale of all or substantially all of such Party’s assets or stock. This Agreement shall be binding upon and inure to the benefit of the Parties and their respective successors and assigns.

obligations under this Agreement to a third party, provided that such subcontractor agrees to perform the services as set forth herein and Pharmacy obtains written approval from Company.

This Agreement shall be construed, interpreted, and governed by the laws of the State of New York, without giving effect to its conflict of laws provisions.

This Agreement and all disputes shall be governed by and construed in accordance with the laws of the State of New York, applied without giving effect to the body of laws pertaining to conflict of laws. The Parties agree that all disputes arising out of or relating to this Agreement that are not amicably resolved between the Parties following thirty (30) days’ notice from one Party to the other Party, will be subject to mandatory binding arbitration under the rules of Judicial Administration and Arbitration Services (“JAMS”) in effect at the time of submission, as modified herein. The arbitration will be heard and determined by a single arbitrator, with at least five (5) years’ experience in the relevant subject matter, selected by the Parties’ mutual agreement, or, failing agreement within thirty (30) days following the date of the respondent’s receipt of the claim, by JAMS. Such arbitration will take place in New York, New York. The arbitration award so given will be a final and binding determination of the dispute and will be fully enforceable in any court of competent jurisdiction. Except in a proceeding to enforce the arbitration’s results or as otherwise required by law, neither Party nor any arbitrator may disclose the existence, content or results of any arbitration hereunder without the prior written agreement of both Parties.

This Agreement will be interpreted and performed in compliance with all Applicable Law. If this Agreement or any part hereof is found not to be in compliance with any Applicable Law, then the Parties shall renegotiate this Agreement for the sole purpose of correcting the noncompliance.

In case any one or more of the provisions of this Agreement shall be invalid, illegal, or unenforceable in any respect, the remaining provisions shall be construed liberally in order to effectuate the purposes hereof, and the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired thereby.

Notices pursuant to this Agreement shall be sent electronically, as follows:

• To Bask: legal@bask.health
• To Pharmacy: To the e-mail address on record in Pharmacy’s user account on the Platform.

Neither the waiver by either of the Parties of a breach or a default of any of the provisions of this Agreement, nor the failure of either of the Parties, on one or more occasions, to enforce any of the provisions of this Agreement, shall thereafter be construed as a waiver of any subsequent breach or default of any of the provisions of this Agreement. A waiver by either Party of strict compliance with the terms of this Agreement shall only be effective if in writing and signed by both Parties and shall not be effective with respect to any prior or subsequent failure by either Party to comply with any term of this Agreement.

Except as otherwise provided herein, this Agreement shall be binding upon and inure to the benefit of the Parties, their agents, successors and permitted assigns unless otherwise set forth herein or agreed to in writing by the Parties.

This Agreement may be executed in multiple counterparts, each of which shall be deemed to be an original copy of this Agreement and all of which, when taken together, shall be deemed to constitute one and the same agreement.

THIS BUSINESS ASSOCIATE AGREEMENT (this “Agreement”) effective as of the Effective Date is by and between Pharmacy and Company each individually a “Party” and collectively the “Parties.”

WHEREAS, Company has entered into a participation agreement with Pharmacy wherein each Party shall perform certain services (the terms and conditions of such agreement between the parties hereinafter referred to as the “Participation Agreement”);

WHEREAS, pursuant to the Administrative Simplification provisions of the Health Insurance Portability and Accountability Act of 1996 (the “Act”) and the “Health Information Technology for Economic and Clinical Health Act,” part of the “American Recovery and Reinvestment Act of 2009” (“HITECH Act”), the Department of Health and Human Services (“HHS”) has promulgated regulations at 45 C.F.R. Parts 160-64, including regulations implementing certain privacy requirements (the “Privacy Rule”), certain security requirements regarding electronic media (“Security Rule”) and certain breach notification requirements (“Breach Notification Rule”), each as amended from time to time (the Act, HITECH Act, the Privacy Rule, the Security Rule and the Breach Notification Rule referred to collectively herein as “HIPAA”);

WHEREAS, Company may receive, maintain, retain, record, store, transmit, hold, use and/or disclose Protected Health Information (as defined below) in conjunction with the services being provided under the Participation Agreement, thus necessitating a written agreement that meets applicable requirements of the Privacy Rule and the Security Rule, and making advisable certain additional agreements regarding HIPAA; and

WHEREAS, Company and Pharmacy desire to satisfy the foregoing Privacy Rule and Security Rule requirements through this Agreement, and otherwise to address related matters regarding HIPAA on the terms and conditions set forth herein.

NOW THEREFORE, in consideration of the mutual agreements and undertakings of the parties, and for other good and valuable consideration the sufficiency of which is hereby acknowledged, the parties, intending to be legally bound, hereby agree as follows:

The following terms shall have the following meaning when used in this Agreement:

1. “Breach” shall have the same meaning as the term “breach” in 45 C.F.R. § 164.402.

2. “Designated Record Set” shall have the same meaning as the term “designated record set” in 45 C.F.R. § 164.501.

3. “Electronic Protected Health Information” shall mean Protected Health Information that is “electronic protected health information” as defined in 45 C.F.R. § 160.103.

4. “Individual” shall have the same meaning as the term “individual” in 45 C.F.R. §160.103 and shall include a person who qualifies as a personal representative in accordance with 45 C.F.R. §164.502(g).

5. “Protected Health Information” shall have the same meaning as the term “protected health information” in 45 C.F.R. § 160.103, except limited to the information received from Pharmacy, or created, maintained or received on behalf of Pharmacy.

6. “Unsecured Protected Health Information” shall mean Protected Health Information that is “unsecured protected health information” as defined in 45 C.F.R. § 164.402.

7. “Required By Law” shall have the same meaning as the term “required by law” in 45 C.F.R. § 164.103.

8. “Secretary” shall mean the Secretary of HHS or the designee of the Secretary of HHS.

9. “Subcontractor” shall have the same meaning as the term “subcontractor” in 45 C.F.R. §160.103, except limited to any such individual or entity who creates, receives, maintains, or transmits Protected Health Information on behalf of Company.

Any capitalized term not specifically defined herein shall have the same meaning as set forth in the Participation Agreement. Any capitalized term not specifically defined herein or in the Participation Agreement shall have the same meaning as is set forth in 45 C.F.R. Parts 160 and 164, where applicable. The terms “use,” “disclose” and “discovery,” or derivations thereof, although not capitalized, shall also have the same meanings set forth in HIPAA.

1. Company agrees to not use or disclose Protected Health Information other than as permitted or required by this Agreement or as Required By Law.

2. Company agrees use appropriate safeguards and comply, where applicable, with Subpart C of 45 C.F.R. Part 164 with respect to Electronic Protected Health Information, to prevent use or disclosure of the Protected Health Information other than as provided for by this Agreement.

3. Company agrees to report to the Pharmacy any use or disclosure of Protected Health Information not provided for by this Agreement, including, without limitation, Breaches of Unsecured Protected Health Information as required at 45 C.F.R. 164.410, and any Security Incident of which it becomes aware. The parties acknowledge and agree that this Section 2.3 constitutes notice by Company to Pharmacy of the ongoing existence and occurrence of attempted but unsuccessful Security Incidents for which no additional notice to Pharmacy shall be required. Unsuccessful Security Incidents shall include, but not be limited to, pings and other broadcast attacks on Company’s firewall, port scans, unsuccessful log-on attempts, denials of service and any combination of the above, so long as such incidents do not result, to the extent Company is aware, in unauthorized access, use or disclosure of Electronic Protected Health Information.

4. In accordance with 45 C.F.R. 164.502(e)(1)(ii) and 164.308(b)(2), if applicable, Company agrees to ensure that any Subcontractors that create, receive, maintain, or transmit Protected Health Information on behalf of Company agree in writing to substantially the same restrictions, conditions, and requirements that apply to Company under this Agreement with respect to such Protected Health Information.

5. Company agrees to make available Protected Health Information in a Designated Record Set to Pharmacy as necessary to satisfy Pharmacy’s obligations under 45 C.F.R. § 164.524 or any business associate agreement.

6. Company agrees to make any amendment(s) to Protected Health Information in a Designated Record Set as directed or agreed to by the Pharmacy pursuant to 45 C.F.R. § 164.526, or take other measures as necessary to satisfy Pharmacy’s obligations under 45 C.F.R. § 164.526 or any business associate agreement.

7. Company agrees to maintain and make available the information required to provide an accounting of disclosures to Pharmacy as necessary to satisfy Pharmacy’s obligations under 45 C.F.R. § 164.528 or any business associate agreement.

8. To the extent that Company is to carry out one or more of Pharmacy’s obligations under Subpart E of 45 C.F.R. Part 164, Company agrees to comply with the requirements of Subpart E that apply to Pharmacy in the performance of such obligations.

9. Company agrees to make its internal practices, books, and records available to the Secretary for purposes of determining compliance with HIPAA.

1. Company may only use or disclose Protected Health Information as necessary to perform the Participation Agreement. In addition, Company is authorized to use Protected Health Information to de-identify the Protected Health Information in accordance with 45 C.F.R. 164.514(a)-(c).

2. Company may use or disclose Protected Health Information as Required By Law.

3. Company agrees to make uses and disclosures and requests for Protected Health Information consistent with Pharmacy’s minimum necessary policies and procedures.

4. Company may not use or disclose Protected Health Information in a manner that would violate Subpart E of 45 C.F.R. Part 164 if done by Pharmacy, except for the specific uses and disclosures set forth in Sections 3.5, 3.6 and 3.7, below.

5. Company may use Protected Health Information for the proper management and administration of the Company or to carry out the legal responsibilities of the Company.

6. Company may disclose Protected Health Information for the proper management and administration of the Company or to carry out the legal responsibilities of the Company, provided the disclosures are Required By Law, or Company obtains reasonable assurances from the person to whom the information is disclosed that the information will remain confidential and used or further disclosed only as Required By Law or for the purposes for which it was disclosed to the person, and the person notified Company of any instances of which it is aware in which the confidentiality of the information has been breached.

7. Company may provide Data Aggregation services relating to the Health Care Operations of Pharmacy.

1. Pharmacy shall notify Company of any limitation(s) in the notice of privacy practices of Pharmacy or, if Pharmacy is a Business Associate, any Covered Entity served by Pharmacy, under 45 C.F.R. 164.520, to the extent that such limitation may affect Company’s use or disclosure of Protected Health Information.

2. Pharmacy shall notify Company of any changes in, or revocation of, the permission by an Individual to use or disclose his or her Protected Health Information, to the extent that such changes may affect Company’s use or disclosure of Protected Health Information.

3. Pharmacy shall notify Company of any restriction on the use or disclosure of Protected Health Information that Pharmacy has agreed to or is required to abide by under 45 C.F.R. 164.522, to the extent that such restriction may affect Company’s use or disclosure of Protected Health Information.

4. Except with respect to uses and disclosures by Company of Protected Health Information under Sections 3.5, 3.6 and 3.7, above, Pharmacy shall not request Company to use or disclose Protected Health Information in any manner that would not be permissible under Subpart E of 45 C.F.R. Part 164 if done by Pharmacy

The Term of this Agreement shall commence as of the Effective Date and shall terminate upon the termination of the Participation Agreement or on the date Pharmacy terminates this Agreement for cause as authorized in subsection 5.2 of this Section 5, whichever is sooner.

Company authorizes termination of this Agreement by Pharmacy upon written notice to Company if Pharmacy determines Company has violated a material term of this Agreement and Company has not cured the breach or ended the violation within thirty (30) days of Pharmacy providing written notice thereof to Company.

Upon termination of this Agreement for any reason, Company shall:

1. Retain only that Protected Health Information which is necessary for Company to continue its proper management and administration or to carry out its legal responsibilities;

2. Return to Pharmacy or Pharmacy’s designee (to the extent permitted by HIPAA), or, if agreed to by Pharmacy, destroy the remaining Protected Health Information that the Company still maintains in any form;

3. Continue to use appropriate safeguards and comply with Subpart C of 45 C.F.R. Part 164 with respect to Electronic Protected Health Information to prevent use or disclosure of the Protected Health Information, other than as provided for in this Section, for as long as Company retains Protected Health Information;

4. Not use or disclose Protected Health Information retained by Company other than for the purposes for which such Protected Health Information was retained and subject to the same conditions set out at Section 3.5 and 3.6, above, which applied prior to termination; and

5. Return to Pharmacy, or, if agreed to by Pharmacy, destroy Protected Health Information retained by Company when it is no longer needed by Company for its proper management and administration or to carry out its legal responsibilities.

The obligations of Company under this Section 5 shall survive the termination of this Agreement.

A reference in this Agreement to a section in the Privacy Rule, the Security Rule, or to another provision of HIPAA means the provision as in effect or as amended.

The parties agree to take such action as is necessary to amend this Agreement from time to time as is necessary for the Pharmacy to comply with the requirements of the HIPAA and any other applicable law.

Any ambiguity in this Agreement shall be resolved to permit compliance with HIPAA.

The construction, interpretation and performance of this Agreement and all transactions under this Agreement shall be governed and enforced pursuant to the laws of the State of New York, without giving effect to its conflicts of laws provisions, except to the extent New York law is preempted by any provision of federal law, including HIPAA. The Parties agree that all disputes arising out of or relating to this Agreement will be subject to mandatory binding arbitration under the rules of Judicial Administration and Arbitration Services (“JAMS”) in effect at the time of submission, as modified by this Section 6.4. The arbitration will be heard and determined by a single arbitrator selected by mutual agreement of the Parties, or, failing agreement within thirty (30) days following the date of receipt by the respondent of the claim, by JAMS. Such arbitration will take place in New York County, New York. The arbitration award so given will be a final and binding determination of the dispute, and will be fully enforceable in any court of competent jurisdiction. Except in a proceeding to enforce the results of the arbitration or as otherwise required by law, neither Party nor any arbitrator may disclose the existence, content or results of any arbitration hereunder without the prior written agreement of both Parties.

Nothing express or implied in this Agreement is intended to confer, nor shall anything herein confer, upon any person other than the parties and the respective successors or assigns of the parties, any rights, remedies, obligations, or liabilities whatsoever.

In the event that it is impossible to comply with both the Participation Agreement and this Agreement, the provisions of this Agreement shall control with respect to those provisions of each agreement that expressly conflict. This Agreement shall supersede and replace any prior Company agreements between the parties, with respect to any actions of Company after the Effective Date.

This Agreement shall be binding upon, and shall inure to the benefit of, the parties hereto and their respective successors, assigns, heirs, executors, administrators and other legal representatives.

In the event any provision of this Agreement is rendered invalid or unenforceable under any new or existing law or regulation, or declared null and void by any court of competent jurisdiction, the remainder of the provisions of this Agreement shall remain in full force and effect if it reasonably can be given effect.

This Agreement may be executed in any number of counterparts, each of which shall be deemed an original.

All notices under this Agreement shall be sent and will be deemed to have been duly given in accordance with the notice provision of the Participation Agreement.