Terms and Conditions Agreement

Effective:01.01.2023

WHEN YOU CLICK A BOX INDICATING ACCEPTANCE OF THIS AGREEMENT OR WHEN YOU EXECUTE AN ORDER FORM THAT REFERENCES THIS AGREEMENT, YOU, THE COMPANY ENTERING THIS AGREEMENT (“CUSTOMER”), AGREE TO THE TERMS OF THIS AGREEMENT. IF YOU ACCEPT THIS AGREEMENT ON BEHALF OF YOUR COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY TO THIS AGREEMENT.

This SaaS Agreement (the “Agreement”), constitutes a binding agreement between Allersafe, LLC (“Allersafe”) and the Customer identified in an order document that references this Agreement (“Order Form”), or the Customer who accepts the terms of this Agreement via click-through acceptance (the date of the Order Form or the date of click through acceptance, the “Effective Date”).

Customer wishes to procure from Allersafe the certain services as described herein, and Allersafe wishes to provide such services to Customer, each on the terms and conditions set forth in this Agreement.

In consideration of the mutual covenants, terms, and conditions set forth herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties agree as follows:

1. Services

1.1. Services. The services are designed to provide Customer access to the Allersafe USP 797 Compliance Platform (collectively the “Services”) during the Term (as defined in Section 5).

1.2. Service License & Services Description. Subject to, and conditioned on, Customer’s compliance with the terms and conditions of this Agreement, Allersafe hereby grants Customer a non-exclusive, non-transferable limited right to access and use the Services during the Term, solely in accordance with the terms and conditions herein. Except as expressly granted in this Section 1.2, Allersafe retains all right, title and interest in and to the Services. The Services are comprised of the Allersafe USP 797 Compliance Platform services. Additional features of Allersafe’s application include certain other third party components which are made available to test Customer’s Compounding Personnel’s aseptic technique. Individuals who access the Allersafe Platform application or interact with the Services shall be defineda as a “User”.

(a) Compliance. As part of the Services, Allersafe may provide Customer with the ability to capture and access compliance data from Users via the checklist and verification features of the Services (“Compliance”). The Allersafe USP 797 Compliance Platform service stores a User’s information to create documentation to assist Customer in compliance with USP 797.

(b) Forms and Check Lists. As part of the Services, Allersafe may provide Customer with the ability to create User reports establishing compliance with USP 797. The Allersafe Platform service collects User provided information and stores such information on the Platform.

(c) Data Vault. Allersafe may provide Customer and Users with access to Reporting within the Allersafe application, which consists of data provided by the User, data about the User’s behavior (such as timely completion of daily tasks), or any other information that is manually or automatically collected about the User. Customer has direct access to a User’s information and compliance activities performed on behalf of Customer.

(d) Third-Party Materials. The Services operate in conjunction with technology, materials, software, infrastructure, data, content, equipment, or components of that are provided or managed by Customer or by a third party and are not provided by, managed, controlled or proprietary to Allersafe (“Third-Party Materials”). Allersafe is not responsible for Third-Party Materials or the interoperability of Third-Party Materials with the Services. Customer is solely responsible for ensuring all Third-Party Materials operate with the Services.

(e) Changes. Allersafe reserves the right, in its sole discretion, to make any changes to the Services or the Allersafe Materials (as defined in Section 6.1) that Allersafe deems necessary or useful.

(f) User Data. When a User provides data to Allersafe via the Services, the User directs Allersafe to store such information subject to the User’s control. The User permits Allersafe to share such information with Customer.

2. Customer Obligations

2.1. Customer Resources and Cooperation. Customer will timely provide such cooperation and assistance as Allersafe reasonably requests to enable Allersafe to perform the Services. Without limiting the foregoing, Customer will timely: (a) perform all obligations identified as customer responsibilities; (b)timely return all Allersafe materials and other resources as may be required; and (c) ensure the activities identified as completed, verified or attested on the Allersafe Platform have been performed and completed.

2.2. Effect of Customer Failure or Delay. Allersafe is not responsible or liable for any late delivery or delay or failure of performance caused in whole or in part by Customer’s delay in performing, or failure to perform, any of its obligations under this Agreement.

2.3. Account. Customer is responsible for creating an account within the Services and ensuring that (a) Customer’s account registration information is complete and accurate; and (b) Customer’s account credentials are confidential. Customer will notify Allersafe immediately of any unauthorized use of Customer’s account or account credentials, or any other known or suspected breach of the security of Customer’s account. Customer is responsible for the activity that occurs within Customer’s account and for the actions or omissions of Customer’s employees, contractors, or agents, whether such person is or was acting within the scope of their employment, engagement, or agency relationship. Customer is prohibited from and will not permit competitors of Allersafe to access the Services for any purpose.

3. Fees; Payment Terms; Taxes

Client will pay the fees for the Services as set forth in the Order Form (“Fees”). Following execution of the Order Form, Allersafe will activate or otherwise make available the Services listed in the Order Form (“Activation Date”). Beginning on the Activation Date, Customer will be invoiced for the recurring Fees per the invoice schedule in the Order Form. If Customer disputes any Fees, Customer must notify Allersafe within 90 days of the date of the then reoccurring invoice. Invoices not disputed within 90 days from the date of invoice will be deemed accepted by Customer. Allersafe may charge a late fee of 1.5% per month on any Fees not paid when due. Allersafe may suspend Customer’s access to the Services in the event Customer fails to pay the Fees when due. Allersafe may increase Fees upon each Renewal Term, provided that any such increase will not exceed ten percent (10%) of the then current Fees. Allersafe will provide thirty (30) days’ prior written notice of any such increase in Fees. All Fees payable under this Agreement are exclusive of taxes and similar assessments. Customer is responsible for all sales, service, use and excise taxes; taxes assessed on the use of software or any other similar taxes; and duties and charges of any kind imposed by any federal, state or local governmental or regulatory authority on any amounts payable hereunder, other than any taxes imposed on Allersafe’s income.

4. Term & Termination

The Agreement will begin on the Effective Date and will remain in effect for the term specified in the Order Form or, if no term is specified, 12 months (“Initial Term”). The Initial Term will renew automatically for additional, successive 12-month terms (each a “Renewal Term”), unless Allersafe or Customer provides the other party with written notice of non-renewal at least 60 days prior to the end of the Initial Term or the applicable Renewal Term. Either party may terminate this Agreement if the other party materially breaches its obligations under this Agreement and such breach remains uncured for a period of 30 days following the non-breaching party’s written notice thereof. Allersafe may suspend Customer’s access to the Services in the event of a breach of this Agreement and will not be liable for any damages resulting from such suspension. The Initial Term plus any Renewal Term are, collectively, the “Term.” Any additional Order Form executed after the Effective Date will co-terminate with Client’s then-current Term. Upon termination or expiration of this Agreement for any reason, all rights or licenses granted herein will terminate. Customer will (a) immediately cease all use of the Services and will remove all Allersafe Services from Customer’s website, applications, and systems; and (b) permanently delete or erase the Allersafe Materials and Allersafe’s other Confidential Information from its computer systems, except, in each case, to the extent that Customer requires or will require such Allersafe Materials or Allersafe’s Confidential Information to comply with applicable law, perform any of its obligations or exercise any of its rights or licenses under any surviving terms of this Agreement, and in any of the foregoing, so long as Customer retains all such materials as Allersafe Confidential Information subject to Section 6. The provisions set forth in the following sections, and any other right or obligation of the parties in this Agreement that, by its nature, should survive termination or expiration of this Agreement, will survive any expiration or termination of this Agreement: Section 5, Section 6, Section 7, Section 8 and Section 9.

5. Intellectual Property Rights

5.1. Allersafe Materials. Allersafe retains all right, title, and interest in and to (a) the Services; (b) Allersafe information, data, documents, specifications, inventions, technologies, know how, works, software, hardware, systems, methods, processes, specifications, descriptions, plans that Allersafe or its subcontractors conceives, discovers, designs, develops, reduces to practice, prepares, makes, modifies or improves (including, without limitation, related to the Allersafe USP 797 Compliance Platform and any other Services); and (c) all works, inventions, and other subject matter incorporating, based on or derived from any Allersafe Materials, including all customizations, enhancements, improvements and other modifications thereof. In each case, (a), (b), and (c), all intellectual property rights therein are and will remain the property of Allersafe (“Allersafe Materials”). Other than as expressly granted herein, Customer has no right or license with respect to the Allersafe Materials.

5.2. Allersafe License Restrictions. Customer shall not permit any other person to access or use the Allersafe Materials except as expressly permitted by this Agreement. For purposes of clarity and without limiting the generality of the foregoing, with respect to the Allersafe Materials, Customer will not, except as this Agreement expressly permits (a) copy, modify, or create derivative works or improvements of the Allersafe Materials; (b) rent, lease, lend, sell, sublicense, assign, distribute, publish, transfer, or otherwise make available the Allersafe Materials to any other person, including through or in connection with anytime-sharing, service bureau, software as a service, cloud, or other technology or service; (c) reverse engineer, disassemble, decompile, decode or otherwise attempt to derive or gain access to the source code of the Allersafe Materials or any part thereof; (d) remove, delete, alter, or obscure any trademarks or any copyright, trademark, patent, or other intellectual property or proprietary rights notices from any Allersafe Materials, including any copy thereof; (e) use any Allersafe Materials in a manner or for any purpose that infringes, misappropriates, or otherwise violates any law or intellectual property right; (f) use the Allersafe Materials for purposes of competitive analysis, the development of a competing system, product, or service, or any other purpose that is to Allersafe’s commercial disadvantage; and (g) otherwise use the Allersafe Materials beyond the scope of the license granted under Section 1.2.

5.3. Customer Materials & License. As between the parties, Customer is and will remain the sole and exclusive owner of all right, title, and interest in and to the software, hardware, systems, and technologies, that are provided or made available to Allersafe or any of its subcontractors by or on behalf of Customer in connection with this Agreement (“Customer Materials”), including all intellectual property rights therein. Customer expressly reserve all other rights in and to the Customer Materials. Customer hereby grants to Allersafe a fully paid-up and royalty-free, non-exclusive right and license to use, reproduce, perform, display, distribute, modify, and create derivative works and improvements of the Customer Materials solely as necessary to perform the Services.

5.4. Third-Party Materials. All right, title, and interest in and to the Third-Party Materials, including all intellectual property rights therein, are and will remain with their respective third-party rights holders, subject to the terms and conditions of the applicable third-party license agreements. Customer has no right or license with respect to any Third-Party Materials except as expressly licensed under such third-party license agreements.

6. Confidentiality

6.1. Confidential Information. In connection with this Agreement, each party (as the “Disclosing Party”) may disclose or make available Confidential Information to the other party (as the “Receiving Party”). Subject to Section 6.2, “Confidential Information” means information in any form or medium (whether oral, written, electronic, or other) that the Disclosing Party considers confidential or proprietary, including information consisting of or relating to the Disclosing Party’s technology, trade secrets, know-how, business operations, plans, strategies, customers, technology, software, pricing, or other information with respect to which the Disclosing Party has contractual or other confidentiality obligations, whether or not marked, designated or otherwise identified as “confidential.” Without limiting the foregoing, the Allersafe Materials are the Confidential Information of Allersafe; the Customer Materials are the Confidential Information of Customer.

6.2. Exclusions. Confidential Information does not include information that: (a) was rightfully known to the Receiving Party without restriction on use or disclosure prior to such information’s being disclosed or made available to the Receiving Party in connection with this Agreement; (b) was or becomes generally known by the public other than by the Receiving Party’s or any of its Representatives’ noncompliance with this Agreement; (c) was or is received by the Receiving Party on a non-confidential basis from a third party that, to the Receiving Party’s knowledge, was not or is not, at the time of such receipt, under any obligation to maintain its confidentiality; or (d) the Receiving Party can demonstrate by written or other documentary records was or is independently developed by the Receiving Party without reference to or use of any Confidential Information.

6.3. Protection of Confidential Information. As a condition to being provided with any disclosure of or access to Confidential Information, the Receiving Party will for a period of two years from the disclosure of the Confidential Information: (a) not access or use Confidential Information other than as necessary to exercise its rights or perform its obligations under and in accordance with this Agreement; (b) except as may be permitted by this Agreement, not disclose or permit access to Confidential Information other than to its Representatives who: (i) need to know such Confidential Information for purposes of the Receiving Party’s exercise of its rights or performance of its obligations under and in accordance with this Agreement; (ii) have been informed of the confidential nature of the Confidential Information and the Receiving Party’s obligations under this Section 6.3; and (iii) are bound by written confidentiality and restricted use obligations at least as protective of the Confidential Information as the terms set forth in this Section 6.3; (c) safeguard the Confidential Information from unauthorized accessor disclosure using at least the degree of care it uses to protect its similarly sensitive information and in no event less than a reasonable degree of care; and (d) ensure its Representatives’ compliance with, and be responsible and liable for any of its Representatives’ noncompliance with, the terms of this Section.

6.4. Compelled Disclosures. If the Receiving Party or any of its Representatives is compelled by applicable law to disclose any Confidential Information then, to the extent permitted by applicable law, the Receiving Party shall (a) promptly, and prior to such disclosure, notify the Disclosing Party in writing of such requirement so that the Disclosing Party can seek a protective order or other remedy, or waive its rights under Section 6.3; and (b) provide reasonable assistance to the Disclosing Party, at the Disclosing Party’s sole cost and expense, in opposing such disclosure or seeking a protective order or other limitations on disclosure. If the Disclosing Party waives compliance or, after providing the notice and assistance required under this Section 6.4, the Receiving Party remains required by Law to disclose any Confidential Information, the Receiving Party shall disclose only that portion of the Confidential Information that, on the advice of the Receiving Party’s legal counsel, the Receiving Party is legally required to disclose and, upon the Disclosing Party’s request, shall use commercially reasonable efforts to obtain assurances from the applicable court or other presiding authority that such Confidential Information will be afforded confidential treatment.

7. Disclaimer of Warranty

THE SERVICES ARE PROVIDED “AS IS” AND ALLERSAFE HEREBY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHER, AND ALLERSAFE 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. WITHOUT LIMITING THE FOREGOING, ALLERSAFE MAKES NO REPRESENTATION OR WARRANTY OF ANY KIND THAT THE SERVICES WILL MEET CUSTOMER’S OR ANY OTHER PERSON’S REQUIREMENTS, OPERATE WITHOUT INTERRUPTION, ACHIEVE ANY INTENDED RESULT, THAT THE SERVICES OR THE USE THEREOF COMPLY WITH APPLICABLE LAW, ARE COMPATIBLE OR WORK WITH ANY SOFTWARE, SYSTEM OR OTHER SERVICES, OR THAT THE SERVICES ARE OR WILL BE SECURE, ACCURATE, COMPLETE, FREE OF HARMFUL CODE, OR ERROR FREE. ALL ALLERSAFE MATERIALS AND THIRD-PARTY MATERIALS ARE PROVIDED “AS IS”.

8. Limitations of Liability

IN NO EVENT WILL ALLERSAFE OR ANY OF ITS LICENSORS, SERVICE PROVIDERS, SUBCONTRACTORS, OR SUPPLIERS BE LIABLE UNDER OR IN CONNECTION WITH THIS AGREEMENT OR ITS SUBJECT MATTER UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, OR OTHERWISE, FOR ANY: (A) LOSS OF USE, BUSINESS, REVENUE, PROFIT, LOSS OF DATA, OR DIMINUTION IN VALUE; (B) USE, QUALITY, OR PERFORMANCE OF THE SERVICES OR ANY COMPONENT THEREOF, INCLUDING ANY INABILITY TO USE THE SERVICES OR NON-PERFORMANCE IN WHOLE OR IN PART; OR (C) CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, ENHANCED, OR PUNITIVE DAMAGES, IN EACH CASE REGARDLESS OF WHETHER SUCH PERSONS WERE ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES OR SUCH LOSSES OR DAMAGES WERE OTHERWISE FORESEEABLE, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.

IN NO EVENT WILL THE AGGREGATE LIABILITY OF ALLERSAFE AND ITS LICENSORS, SUBCONTRACTORS, SERVICE PROVIDERS, AND SUPPLIERS UNDER OR IN CONNECTION WITH THIS AGREEMENT OR ITS SUBJECT MATTER, UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY AND OTHERWISE, EXCEED THE FEES PAID TO ALLERSAFE IN THE TWELVE MONTH PERIOD PRECEDING THE DATE UPON WHICH THE DAMAGE AROSE. THE FOREGOING LIMITATION APPLIES NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.

9. Non-Solicitation

During the Term and for one year after, Customer shall not, and shall not assist any other person to, directly or indirectly, recruit or solicit (other than by general advertisement not directed specifically to any person or persons) any person then or within the prior six months employed or engaged by Allersafe who was involved in any respect with the Services or the performance of this Agreement for employment or engagement as an independent contractor.

10. Force Majeure

In no event will Allersafe be liable or responsible to Customer, or be deemed to have defaulted under or breached this Agreement, for any failure or delay in fulfilling or performing any term of this Agreement when and to the extent such failure or delay is caused by any circumstances beyond Allersafe’s reasonable control (a “Force Majeure Event”), including acts of God, flood, fire, earthquake or explosion, war, terrorism, invasion, riot or other civil unrest, embargoes or blockades in effect on or after the date of this Agreement, national or regional emergency, strikes, labor stoppages or slowdowns or other industrial disturbances, passage of Law or any action taken by a governmental or public authority, including imposing an embargo, export or import restriction, quota, or other restriction or prohibition or any complete or partial government shutdown, or national or regional shortage of adequate power or telecommunications or transportation.

11. Miscellaneous

11.1. Relationship of the Parties. The relationship between the parties is that of independent contractors. Nothing contained in this Agreement shall be construed as creating any agency, partnership, joint venture, or other form of joint enterprise, employment, or fiduciary relationship between the parties, and neither party shall have authority to contract for or bind the other party in any manner whatsoever.

11.2. Entire Agreement. This Agreement 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, representations and warranties, both written and oral, with respect to such subject matter.

11.3. Assignment. Customer shall not assign or otherwise transfer any of its rights, or delegate or otherwise transfer any of its obligations or performance, under this Agreement, in each case whether voluntarily, involuntarily, by operation of law, or otherwise, without Allersafe’s prior written consent, which consent Allersafe shall not unreasonably withhold or delay; provided that, any merger, consolidation, or reorganization involving Customer (regardless of whether Customer is a surviving or disappearing entity) will not be deemed to be a transfer of rights, obligations, or performance under this Agreement for which Allersafe’s prior written consent is required. No delegation or other transfer will relieve Customer of any of its obligations or performance under this Agreement. Any purported assignment, delegation, or transfer in violation of this Section 12.3 is void. This Agreement is binding upon and inures to the benefit of the parties hereto and their respective permitted successors and assigns.

11.4. No Third-Party Beneficiaries. This Agreement is for the sole benefit of the parties hereto and their respective permitted successors and permitted assigns and nothing herein, express or implied, is intended to or shall confer upon any other Person any legal or equitable right, benefit, or remedy of any nature whatsoever, under or by reason of this Agreement.

11.5. Use of Customer Name and Logo. Customer hereby grants to Allersafe the right to use Customer’s name and/or logo on Allersafe’s website or in sales literature.

11.6. Amendment and Modification; Waiver. No amendment to or modification of or rescission, termination or discharge of this Agreement is effective unless it is in a writing that is identified as an amendment to or rescission, termination or discharge of this Agreement and signed by an authorized representative of each party. No waiver by any party of any of the provisions hereof shall be effective unless explicitly set forth in writing and signed by the party so waiving. Except as otherwise set forth in this Agreement, no failure to exercise, or delay in exercising, any rights, remedy, power, or privilege arising from this Agreement shall operate or be construed as a waiver thereof; nor shall any single or partial exercise of any right, remedy, power, or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power, or privilege.

11.7. Governing Law; Submission to Jurisdiction. This Agreement is governed by and construed in accordance with the internal laws of the State of Georgia 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 Georgia. Any legal suit, action or proceeding arising out of or related to this Agreement or its subject matter shall be instituted exclusively in the courts of the State of Oregon in each case located in the city of Atlanta and in Fulton County, and each party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action, or proceeding. Service of process, summons, notice, or other document by mail to such party’s address set forth herein shall be effective service of process for any suit, action, or other proceeding brought in any such court.

11.8. Waiver of Jury Trial. Each party irrevocably and unconditionally waives any right it may have to a trial by jury in respect of any legal action arising out of or relating to this Agreement or the transactions contemplated hereby.

11.9. Equitable Relief. Each party acknowledges and agrees that a breach or threatened breach by such party of any of its obligations under Section 5 or Section 6 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.