TERMS AND CONDITIONS

Last updated September 01, 2023

MIKA US CORP

Software as a Service (SaaS) Agreement

This Agreement is entered into between MIKA US CORP, doing business as Mika Health and Mika ("Company," "we," "us," "our"), a company registered in New York, United States at 33 West 60th, New York, NY 10023 and you, the Client. The Company operates the website http://www.mika-health.com (the "Site"), as well as any other related products and services that refer or link to these legal terms (the "Legal Terms") (collectively, the "Services").

You can contact us by email at info@mikaapp.com or by mail to 33 West 60th, Ste 1119, New York, NY 10023, United States.

These Legal Terms constitute a legally binding agreement made between you, whether personally or on behalf of an entity ("you"), and Mika US Corp, concerning your access to and use of the Services. You agree that by accessing the Services, you have read, understood, and agreed to be bound by all of these Legal Terms. IF YOU DO NOT AGREE WITH ALL OF THESE LEGAL TERMS, THEN YOU ARE EXPRESSLY PROHIBITED FROM USING THE SERVICES AND YOU MUST DISCONTINUE USE IMMEDIATELY.

We will provide you with prior notice of any scheduled changes to the Services you are using. The modified Legal Terms will become effective upon posting or notifying you by info@mikaapp.com, as stated in the email message. By continuing to use the Services after the effective date of any changes, you agree to be bound by the modified terms. This SaaS Agreement (the terms and conditions stated herein, any applicable work order form and the annexes listed below), applicable in its entirety, constitutes the entire agreement between the parties and governs all work contracted under, and performed by, MIKA US CORP as articulated in the applicable Work Order Form(s) and any applicable addendums thereto.

We recommend that you print a copy of these Legal Terms for your records.

Terms and Conditions

SERVICES AND SUPPORT

Subject to the terms of this Terms and Conditions, the Annexes, and any applicable Work Order Form (collectively referred to as “SaaS Agreement” or “Agreement”), Company will use commercially reasonable efforts to provide Client the Services in accordance with the terms of which are governed by this Agreement.

Subject to the terms hereof, Company will provide Client with reasonable technical support services in accordance with the terms set forth in the Service Level Agreement.

RESTRICTIONS AND RESPONSIBILITIES

Client will not, directly or indirectly: reverse engineer, decompile, disassemble or otherwise attempt to discover the source code, object code or underlying structure, ideas, know-how or algorithms relevant to the Services or any software, documentation or data related to the Services (“Software”); modify, translate, or create derivative works based on the Services or any Software (except to the extent expressly permitted by Company or authorized within the Services); use the Services or any Software for timesharing or service bureau purposes or otherwise for the benefit of a third; or remove any proprietary notices or labels.

Compliance with use of Company’s API Manual. Client represents, covenants, and warrants that Client will use the Services only in compliance with Company’s standard published policies, which are articulated in Company’s External Software Usage Policy incorporated into this Agreement, as well as any and all applicable laws and regulations. Client hereby agrees to indemnify and hold harmless Company against any damages, losses, liabilities, settlements and expenses (including without limitation costs and attorneys’ fees) in connection with any claim or action that arises from an alleged violation of the foregoing or otherwise from Client’s use of Services. Although Company has no obligation to monitor Client’s use of the Services, Company may do so and may prohibit any use of the Services it believes may be (or alleged to be) in violation of the foregoing.

CONFIDENTIALITY; PROPRIETARY RIGHTS

Each party (the “Receiving Party”) understands that the other party (the “Disclosing Party”) has disclosed or may disclose business, technical or financial information relating to the Disclosing Party’s business (hereinafter referred to as “Proprietary Information” of the Disclosing Party). Proprietary Information of Company includes, but is not limited to, non-public information regarding features, functionality and performance of the Service. Proprietary Information of Client includes non-public data provided by Client to Company to enable the provision of the Services (“Client Data”). The Receiving Party agrees: (i) to take reasonable precautions to protect such Proprietary Information, and (ii) not to use (except in performance of the Services or as otherwise permitted herein) or divulge to any third person any such Proprietary Information. The Disclosing Party agrees that the foregoing shall not apply with respect to any information after five (5) years following the disclosure thereof or any information that the Receiving Party can document (a) is or becomes generally available to the public, or (b) was in its possession or known by it prior to receipt from the Disclosing Party, or (c) was rightfully disclosed to it without restriction by a third party, or (d) was independently developed without use of any Proprietary Information of the Disclosing Party or (e) is required to be disclosed by law. Such five (5) year term will be extended in the event of renewal of this Agreement for additional periods of the same duration as the renewal term of this agreement. Client affirms that it implements information security systems, measures, and protocols both internal, and between Client and third party service providers, sufficient to safeguard sensitive and proprietary information from inadvertent disclosure or malicious acquisition.

Client shall own all right, title and interest in and to the Client Data. Company owns any data that is based on or derived from the Client Data and provided to Client as part of the Services. Company shall own and retain all right, title and interest in and to (a) the Services and Software, all improvements, enhancements or modifications thereto, (b) any software, applications, inventions or other technology developed in connection with Implementation Services or support, and (c) all intellectual property rights related to any of the foregoing.

Notwithstanding anything to the contrary, Company shall have the right to collect and analyze data and other information relating to the provision, use and performance of various aspects of the Services and related systems and technologies (including, without limitation, information concerning Client Data and data derived therefrom), and Company will be free (during and after the term hereof) to (i) use such information and data to improve and enhance the Services and for other development, diagnostic and corrective purposes in connection with the Services and other Company offerings, and (ii) disclose such data solely in aggregate or other de-identified form in connection with its business, provided that such use and disclosure shall be in compliance with any applicable laws and regulations and shall not cause any detriment to the Client or any of its affiliates. No rights or licenses are granted except as expressly set forth herein. Any use and disclosure of any Proprietary Information and any confidentiality obligation with respect to the Proprietary Information on part of the Disclosing Party shall be governed by and subject to the requirements of this Agreement. Any confidentiality terms that survive the termination of this Agreement shall persist per their terms, and per the terms of the initially Non-Disclosure Agreement between the parties. In addition, the Company shall not disclose to any other third parties whose primary business competes with that of the Client or its affiliates, the existence of this Agreement, the identity of the Client, the fact that the parties hereto are considering the transactions contemplated hereunder, including the status thereof and the existence of discussions or agreements between the parties hereto or between the Company and any other person in relation to the transactions contemplated hereunder, or any other fact relating to the transactions or any communications related thereto, without the prior written consent of the Client. However, Company may include Client in their client references, along with a logo and a description of Client’s company for the purposes of fundraising and marketing on Company’s website.

It is acknowledged Client owns the input data and the result data. Company owns the process and all processed data.

All data, regardless of how it was shared or made available must be duly and completely destroyed, eliminated, or returned to Client upon Client’s request. Furthermore, upon termination of this Agreement, or upon the written request of the Client, the data must be deleted in its entirety using industry best practices. Client further acknowledges that once Client Data is destroyed, Company is no longer liable for destroyed data.

PAYMENT OF FEES

Client will pay Company the applicable fees described in any applicable Work Order Form agreed to by both parties for the Services outlined therein (the “Fees”). All test data and re-runs processed will be billed at the regular pricing quotes specified in the Work Order Form. Client shall be responsible for all taxes associated with Services other than U.S. taxes based on Company’s net income.

For monthly services over $10,000 USD Company may choose to bill through an invoice, in which case, full payment for invoices issued in any given month must be received by Company thirty (30) days after receipt date of the invoice by Client. For the avoidance of doubt, if services commence seven (7) business days prior to the end of a given month, Company acknowledges and agrees that the fees for the services provided during the period from the date when the services start to the end of the month shall be billed to the billing of the following month. Unpaid amounts are subject to a finance charge of 2.0% per week on any outstanding balance, or the maximum permitted by law, whichever is lower, plus all expenses of collection and may result in immediate termination of Service. In the event that Company chooses to bill through an invoice, Client agrees to pay Company through the information explicitly provided in the Work Order Form. Invoices that may be issued by Company must comply with any and all applicable requirements set forth in the laws and regulations of the country of issuance.

Company shall obtain approval from Client prior to incurring travel expenses that Company requests be reimbursed. If approved, Client shall reimburse Company for such travel expenses provided that Company provide Client with an itemised description of expenses claimed and receipts for such expenses.

ONLINE SUBSCRIPTION BASED PAYMENT OF FEES, TERM AND TERMINATION

This Agreement shall be effective at the time the Client submits information for a subscription for use of Company’s services. Subscription cycles (subscription “term”) and their billing run from the first of each calendar month, to the final day of each calendar month. The first of each month, Client shall be charged the amount corresponding to their subscription tier in full to the credit card or payment identifier or account supplied by Client to Company. Client is liable for payment at the time payment accrues, and payment will occur on the first of each month automatically. Failure to pay shall result in immediate termination of services.

Termination (cancellation) of subscription and subscription based services can happen at any time, for any reason, by either party. When termination occurs by either party, use will continue until the conclusion of the month and shall end on the last day of the current term (which will be the last day of the month during which the subscription was terminated). If Client terminates within the first 10 days of a given month, then Client may be eligible for immediate termination of services and a pro-rated refund for the term, subject to Company review, discretion and approval if Client use within the first 10 days has not amounted to such excessive use of Company services to justify charging Client for the full term. If, in the event of termination by Company for breach of this agreement or for suspected illegal or unethical use of services, termination shall be immediate, and Client shall not be eligible for refund.

WORK ORDER FORM TERM AND TERMINATION

For Clients having negotiated and operating on a Work Order Form, this Agreement shall go into effect on the date that both parties sign the applicable Work Order Form (“Effective Date”). Furthermore, this Agreement shall be valid for a period specified in the applicable Work Order Form. Client or Company may terminate the Work Order Form and this Agreement for any reason if a written notice of termination is provided to the other party at least sixty (60) days prior to the intended date of termination. If the term outlined in the applicable Work Order Form is for a period of fewer than sixty (60) days, Client or Company can terminate the Work Order Form and this Agreement with seven (7) days’ written notice. In addition to any other remedies it may have, either party may also terminate the Work Order Form and this Agreement immediately if the other party materially breaches any of the terms and/or conditions of the Work Order Form and/or this Agreement. Client will pay in full for the Services up to and including the last day on which the Services are provided in accordance with the standards and requirements under the Service Level Agreement. All sections of this Agreement which by their nature should survive termination will survive termination, including, without limitation, accrued rights to payment, confidentiality obligations, warranty disclaimers, and limitations of liability.

WARRANTY AND DISCLAIMER

Company shall use reasonable and necessary efforts consistent with prevailing industry standards to maintain the Services in a manner which minimizes errors and interruptions in the Services and shall perform the Services in a professional and workmanlike manner. Services may be temporarily unavailable for scheduled maintenance or for unscheduled emergency maintenance, either by Company or by third-party providers, or because of other causes beyond Company’s reasonable control, but Company shall use reasonable and necessary efforts to provide advance notice in writing or by e-mail of any scheduled service disruption. OUTSIDE OF THE REQUIREMENTS AND STANDARDS OUTLINED IN THE SLA, COMPANY DOES NOT WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED OR ERROR FREE; NOR DOES IT MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE SERVICES. EXCEPT AS EXPRESSLY SET FORTH IN THIS SECTION, THE SERVICES AND ARE PROVIDED “AS IS” AND COMPANY DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.

INDEMNITY

Unless otherwise provided for in this Agreement and subject to the remedies available to the Client as specified in any applicable Work Order Form agreed to by the parties, Company shall indemnify Client for any losses or damages suffered or incurred by Client for the Company’s failure in rendering services in accordance with the standards and requirements as specified in the Service Level Agreement agreed to by the parties. Company shall hold Client harmless from liability to third parties resulting from infringement by the Service of any United States patent or any copyright or misappropriation of any trade secret, provided Company is promptly notified of any and all threats, claims and proceedings related thereto and given reasonable assistance and the opportunity to assume sole control over defense and settlement; Company will not be responsible for any settlement it does not approve in writing. The foregoing obligations do not apply with respect to portions or components of the Service (i) not supplied by Company, (ii) made in whole or in part in accordance with Client specifications and Company has informed Client of the potential infringement in connection with such portions of components, (iii) that are modified after delivery by Company, (iv) combined with other products, processes or materials where the alleged infringement relates to such combination, (v) where Client continues allegedly infringing activity after being notified thereof or after being informed of modifications that would have avoided the alleged infringement, or (vi) where Client’s use of the Service is not strictly in accordance with this Agreement. If, due to a claim of infringement, the Services are held by a court of competent jurisdiction to be or are believed by Company to be infringing, Company may, at its option and expense (a) replace or modify the Service to be non-infringing provided that such modification or replacement contains substantially similar features and functionality, (b) obtain for Client a license to continue using the Service, or (c) if neither of the foregoing is commercially practicable, terminate this Agreement and Client’s rights hereunder and provide Client a refund of any prepaid, unused fees for the Service.

LIMITATION OF LIABILITY

NOTWITHSTANDING ANYTHING TO THE CONTRARY, COMPANY AND ITS SUPPLIERS (INCLUDING BUT NOT LIMITED TO ALL EQUIPMENT AND TECHNOLOGY SUPPLIERS), OFFICERS, AFFILIATES, REPRESENTATIVES, CONTRACTORS AND EMPLOYEES SHALL NOT BE RESPONSIBLE OR LIABLE WITH RESPECT TO ANY SUBJECT MATTER OF THIS AGREEMENT OR TERMS AND CONDITIONS RELATED THERETO UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER THEORY: (A) FOR ERROR OR INTERRUPTION OF USE OR FOR LOSS OR INACCURACY OR CORRUPTION OF DATA OR COST OF PROCUREMENT OF SUBSTITUTE GOODS, SERVICES OR TECHNOLOGY OR LOSS OF BUSINESS; (B) FOR ANY INDIRECT, EXEMPLARY, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES; (C) FOR ANY MATTER BEYOND COMPANY’S REASONABLE CONTROL; OR (D) FOR ANY AMOUNTS THAT, TOGETHER WITH AMOUNTS ASSOCIATED WITH ALL OTHER CLAIMS, EXCEED THE FEES PAID BY CUSTOMER TO COMPANY FOR THE SERVICES UNDER THIS AGREEMENT IN THE 12 MONTHS PRIOR TO THE ACT THAT GAVE RISE TO THE LIABILITY, IN EACH CASE, WHETHER OR NOT COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

DISPUTE RESOLUTION

Any dispute, controversy, or claim (each, a “Dispute”) arising out of or relating to this Agreement, or the interpretation, breach, termination, validity, or invalidity thereof, shall be referred to arbitration upon the demand of either party to the Dispute with notice (the “Arbitration Notice”) to the other. The Dispute shall be settled by arbitration in New York by the International Centre for Dispute Resolution in accordance with the arbitration rules thereof in force when the Arbitration Notice is submitted. The arbitration language is English and the arbitration proceedings shall be conducted in English. The award of the arbitral tribunal shall be in writing, and final and binding upon the parties hereto. The choice of law by which this contract is governed is New York Law, without regard to its conflict of law provisions. The parties agree that the terms of the arbitration award, once final, can be implemented and enforced by any court of competent jurisdiction.

PARENT COMPANY OR AFFILIATE ASSUMPTION OF LIABILITY AND GUARANTEE OF FINANCIAL OBLIGATIONS

The signatories of this document warrant that they have the requisite authority to bind Company and Client as respectively identified in the signature block of the applicable Work Order Form. If the Work Order Form is signed by a client (Parent, Subsidiary, Affiliate, etc.) who is not listed as the beneficiary for whom work is to be performed and/or from whom payment is to be remitted for services rendered by MIKA US CORP, then the signor, by signing these agreements, shall act as guarantor. As guarantor, the Client who has signed the Work Order Form willingly assumes liability for any breach of this Agreement or the Work Order Form by the intended beneficiary identified in the Work Order Form for whom MIKA US CORP is providing services, and willingly assumes liability for any billing, fees, or other financial obligations incurred from MIKA US CORP having provided its services to that beneficiary. This guarantee is unconditional and absolute. This guarantee is enforceable against guarantor despite any other circumstance which might otherwise constitute a defense to the guarantee. The signing Client, as guarantor providing this guarantee, is not relying on any explicit or implicit representations by MIKA US CORP or by the affiliate, subsidiary, etc. on whose behalf the guarantor is signing. This guarantee is governed by the laws of the state of New York, and any conflict arising from this clause shall be subject to arbitration in New York through the International Center for Dispute Resolution. NOTE THAT THIS CLAUSE ONLY APPLIES IF THE CLIENT SIGNING IS NOT THE INTENDED BENEFICIARY FOR WHOM SERVICES WILL BE RENDERED, OR THE PARTY BY WHOM PAYMENT WILL BE REMITTED.

ELECTRONIC COMMUNICATIONS, TRANSACTIONS, AND SIGNATURES

Visiting the Services, sending us emails, and completing online forms constitute electronic communications. You consent to receive electronic communications, and you agree that all agreements, notices, disclosures, and other communications we provide to you electronically, via email and on the Services, satisfy any legal requirement that such communication be in writing. YOU HEREBY AGREE TO THE USE OF ELECTRONIC SIGNATURES, CONTRACTS, ORDERS, AND OTHER RECORDS, AND TO ELECTRONIC DELIVERY OF NOTICES, POLICIES, AND RECORDS OF TRANSACTIONS INITIATED OR COMPLETED BY US OR VIA THE SERVICES. You hereby waive any rights or requirements under any statutes, regulations, rules, ordinances, or other laws in any jurisdiction which require an original signature or delivery or retention of non-electronic records, or to payments or the granting of credits by any means other than electronic means.

24. CALIFORNIA USERS AND RESIDENTS

If any complaint with us is not satisfactorily resolved, you can contact the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs in writing at 1625 North Market Blvd., Suite N 112, Sacramento, California 95834 or by telephone at (800) 952-5210 or (916) 445-1254.

FORCE MAJEURE OR MATERIAL CHANGE OF LAW

Force Majeure means all events which are beyond the reasonable control of a Party to this Agreement, and which are unforeseen, or if foreseen reasonably unavoidable, which arise after the effective date of this Agreement and which prevent total or partial performance of this Agreement by such Party. Such events shall include, but not be limited to, natural disasters, war, threat of war, blockade, embargo, act of vandalism or theft that could not have otherwise through the implementation of reasonable security measures have been prevented, prevention of performance by acts of government or public agencies or the implementation of regulations by these institutions that render this contract illegal or invalid or performance impossible, epidemics, strikes, acts of god, and any other events which are recognized as Force Majeure in general international commercial practice.

If a Party is aware of the likelihood of a situation constituting Force Majeure arising, or is claiming Force Majeure, it shall notify the other Party as soon as is practicable in writing forthwith of the same, the cause and extent of non-performance or likely non-performance occasioned thereby, the date or likely date of commencement thereof and the means proposed to be adopted to remedy or abate the Force Majeure; and the Parties shall, without prejudice to the other provisions of this Agreement, consult each other with a view to taking such steps as may be appropriate to prevent and/or mitigate the effects of such Force Majeure.

The Party subject to or claiming Force Majeure shall:

Resume performance as expeditiously as possible after the termination of the Force Majeure or the Force Majeure has abated to an extant which permits resumption of such performance;

Notify the other Party when the Force Majeure has terminated or abated to an extent which permits resumption of performance to occur; and

Keep the other Party regularly informed during the course of the Force Majeure as to when resumption of performance shall or is likely to occur.

If the Parties are not in agreement that an event of Force Majeure has occurred, the matter shall be handled in accordance with the terms of this Agreement regarding Term and Termination to the extent possible. If, upon the execution of this Agreement, any Party’s interest is negatively affected by promulgation or abolition of any law, or amendment or change to any law, or any competent authority’s change to, withdrawal of, or refusal to renew, any license, approval, permit or other consent (collectively can be referred to as “Material Change of Law”), the Parties shall negotiate for the necessary adjustment so as to maintain each Party’s benefit under this Agreement to a level no inferior to the status prior to such Material Change of Law.

MISCELLANEOUS

If any provision of this Agreement is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect and enforceable. This Agreement is not assignable, transferable or sublicensable by Client except with Company’s prior written consent. Company may transfer and assign any of its rights and obligations under this Agreement without consent. This Agreement is the complete and exclusive statement of the mutual understanding of the parties in connection with the provision of the services, and supersedes and cancels all previous written and oral agreements, communications and other understandings relating to the subject matter of this Agreement, and that all waivers and modifications must be in a writing signed by both parties, except as otherwise provided herein. No agency, partnership, joint venture, or employment is created as a result of this Agreement and Client does not have any authority of any kind to bind Company in any respect whatsoever. In any action or proceeding to enforce rights under this Agreement, the prevailing party will be entitled to recover costs and attorneys’ fees. All notices under this Agreement will be in writing and will be deemed to have been duly given when received, if personally delivered; when receipt is electronically confirmed, if transmitted by facsimile or e-mail; the day after it is sent, if sent for next day delivery by recognized overnight delivery service; and upon receipt, if sent by certified or registered mail, return receipt requested. This Agreement shall be governed by the laws of the state of New York without regard to its conflict of laws provisions.