Customer Agreement

2.1License Grant

Outfox grants Customer a limited, non-exclusive, non-transferable, non-sublicensable right to access and use the Platform solely for Customer’s internal health benefits program during the applicable Order Term, subject to this Agreement and the applicable Order Form. Authorized Users may access the Platform subject to the End User Terms available at outfoxhealth.com/terms-of-use. Customer is responsible for ensuring all Authorized Users comply with this Agreement and the End User Terms.

2.2Term

This Agreement begins on the date of the first executed Order Form and remains in effect until all Order Forms have expired or been terminated.

2.3Termination for Cause

Either Party may terminate this Agreement or any Order Form for cause if the other Party materially breaches and fails to cure within: (a) ten (10) days of written notice for non-payment of Fees; or (b) thirty (30) days of written notice for any other material breach. Either Party may also terminate immediately if the other Party becomes the subject of bankruptcy, insolvency, or similar proceedings not dismissed within sixty (60) days.

2.4Effect of Termination

Upon termination or expiration of an Order Form: (a) all licenses under that Order Form terminate immediately; (b) Customer will cease all use of the Platform; (c) all Fees paid are non-refundable, except that if Customer terminates due to Outfox’s uncured material breach, Customer receives a pro-rata refund of prepaid, unused Fees for the remaining Order Term; (d) if Outfox terminates due to Customer’s breach, all remaining Fees for the then-current Order Term become immediately due and payable; and (e) Outfox will make Customer Data available for export for thirty (30) days following termination, after which Outfox may delete or anonymize Customer Data in accordance with its retention policies.

2.5Restrictions

Customer will not (and will not permit any third party to):

• copy, scrape, bulk extract, download, or build any standalone database from the Platform or any Third-Party Data;
• reverse engineer, decompile, disassemble, or attempt to discover any source code or underlying ideas or algorithms of the Platform;
• use the Platform to create a competing product or service;
• resell, sublicense, or make the Platform available to any third party other than Authorized Users; or
• access the Platform in a manner intended to avoid incurring Fees.

Customer’s violation of this Section 2.5 or Section 5 (Intellectual Property) is a material breach for which no cure period applies and Outfox may terminate immediately upon written notice.

2.6Customer Responsibilities

Customer will: (a) provide accurate and current Eligibility Files and benefit plan information reasonably necessary for operation of the Platform; (b) obtain any permissions or consents required for Authorized Users to access the Platform; (c) remain responsible for final benefit plan administration and determinations; and (d) not use the Platform as the sole basis for medical or coverage decisions; and (e) represent that its plan documents authorize Outfox to send Benefit Communications (as defined in Section 2.10) to eligible employees on Customer’s behalf.

2.7Orders

Each Order Form will describe the applicable Modules, Fees, and Order Term. Orders may not be cancelled before the end of the Order Term except as permitted in Section 2.3.

2.8Trial Access

If Outfox provides trial access to the Platform, that access is provided “as-is” with no warranty, indemnification, or SLA commitment. Outfox has no obligation to retain Customer Data after a trial ends unless the Parties execute an Order Form. Outfox may terminate trial access at any time.

2.9Independent Contractor

Outfox is an independent contractor and not an employee, agent, partner, or joint venturer of Customer. Each Party is responsible for its own personnel and taxes.

2.10Plan-Authorized Benefit Communications

Outfox is authorized by Customer, acting as a plan-authorized benefits communication service, to send enrollment invitations, benefit reminders, and educational communications to eligible employees on Customer’s behalf prior to and after initial employee login (“Benefit Communications”). Such Benefit Communications: (a) constitute permissible plan operations communications under HIPAA, 45 C.F.R. §164.506(c)(1); (b) are sent solely on behalf of and at the direction of Customer as plan sponsor; and (c) do not constitute independent marketing or solicitation by Outfox.

2.11TPA Relationships

Where Customer’s TPA or HRIS system integrates with the Platform for eligibility data sharing, Customer shall ensure a valid Business Associate Agreement is in place between Outfox and such TPA prior to any data exchange. The existence of a TPA BAA does not modify Customer’s obligations under this Agreement or the Customer BAA.

3.1Fees

Customer will pay the Fees set forth in each Order Form. Unless otherwise stated in an Order Form, Outfox will calculate the subscription Fee for each calendar month as: PEPM Rate × Billable Employees for that month. Subscription Fees are based on the number of Billable Employees and are not contingent on actual usage of the Platform by Authorized Users. Partial months are billed as full months unless otherwise stated in an Order Form.

If Customer or its designee does not provide an Eligibility File for any given month, Outfox will determine the number of Billable Employees for that month using the most recent Eligibility File on record. Customer is responsible for the accuracy of each Eligibility File it provides and Outfox is not obligated to retroactively adjust invoices based on corrected or late Eligibility Files unless mutually agreed in writing. Outfox may review Eligibility Files for accuracy and, if Outfox identifies underreported Billable Employees for any month, may invoice Customer for the underreported amounts, which Customer shall pay in accordance with Section 3.2.

3.2Invoicing; Payment

Unless otherwise specified in an Order Form, subscription Fees are billed annually in advance and reconciled monthly based on actual Billable Employees. Invoices are due within thirty (30) days of the invoice date. Customer will pay all undisputed amounts when due. Late payments on undisputed amounts accrue interest at the lesser of 1.5% per month or the maximum rate permitted by law. Customer will reimburse Outfox for reasonable costs of collection. Fees are exclusive of all applicable taxes; Customer is responsible for all such taxes except those based on Outfox’s net income.

3.3Suspension for Non-Payment

Outfox may suspend Customer’s access to the Platform if any undisputed Fees remain unpaid ten (10) days after written notice. Suspension does not limit Outfox’s right to recover such Fees or other amounts owed. Outfox will not suspend access for amounts subject to a good-faith dispute.

3.4Annual Price Adjustment

Beginning with the first Renewal Term, Outfox may increase the PEPM Rate by up to five percent (5%) annually, or the percentage increase in the CPI-U for the preceding twelve-month period, whichever is greater. Outfox will provide Customer at least sixty (60) days’ prior written notice of any such adjustment. If Customer does not agree to the adjusted Fees, Customer may elect non-renewal pursuant to Section 3.5.

3.5Renewal

Orders automatically renew for successive twelve (12) month periods (“Renewal Terms”) unless either Party provides written notice of non-renewal at least sixty (60) days prior to the end of the then-current Order Term or Renewal Term.

4.1Limited Warranty

Outfox warrants that the Platform will perform substantially in accordance with its documentation during the Order Term, and that Services will be performed in a professional manner consistent with industry standards.

4.2Disclaimer

4.3Third-Party Data

Customer acknowledges that Third-Party Data may be incomplete, outdated, or inaccurate.

4.4No Medical Advice

The Platform is for informational decision-support purposes only and does not provide medical advice, diagnosis, treatment, clinical decision support, or plan administration under ERISA. Employees and Authorized Users should consult qualified healthcare professionals for medical advice. The Platform does not determine eligibility, coverage, or payment obligations under any health plan; final determinations are made solely by the applicable plan sponsor or insurer.

Outfox retains all right, title, and interest in the Platform, related software, Third-Party Data, Service Data, and any enhancements or derivatives thereof. Customer retains ownership of Customer Data. Customer may use Results for its internal business purposes.

Customer grants Outfox a non-exclusive right to use Customer Data to provide the Services and, in aggregated or de-identified form, to maintain and improve the Platform’s datasets, algorithms, and AI/ML models.

6.1Indemnification by Outfox

Outfox will defend Customer against third-party claims alleging that the Platform, as used in accordance with this Agreement, infringes any U.S. patent, copyright, or trade secret right, and will pay resulting damages or court-approved settlements. If the Platform becomes, or in Outfox’s opinion is likely to become, the subject of such a claim, Outfox may at its option: (a) procure the right for Customer to continue using the Platform; (b) modify the Platform so it is non-infringing; or (c) terminate the impacted Order Form and refund any prepaid, unused Fees. This obligation does not apply to claims arising from: modifications to the Platform not made by Outfox; combinations of the Platform with non-Outfox products or services; Customer’s misuse of the Platform; or use not in accordance with this Agreement or the applicable documentation.

6.2Indemnification by Customer

Customer will defend Outfox against third-party claims arising out of or relating to: (a) Customer Data, including any claim that Customer Data infringes or misappropriates any third-party intellectual property right or violates applicable law; (b) Customer’s breach of this Agreement; (c) Customer’s violation of applicable law in connection with its use of the Platform; (d) any benefit plan administration decisions made by Customer or its plan administrator; or (e) inaccurate eligibility data provided by Customer or its TPA that causes Outfox to contact ineligible individuals. Customer will pay resulting damages or court-approved settlements attributable to such claims.

6.3Indemnification Procedure

The indemnified Party will: (a) promptly notify the indemnifying Party in writing of any claim (provided that failure to provide timely notice only reduces the indemnifying Party’s obligations to the extent it is materially prejudiced by such failure); (b) give the indemnifying Party sole control of the defense and settlement of the claim; and (c) provide reasonable cooperation and assistance at the indemnifying Party’s expense. The indemnifying Party may not settle any claim in a manner that imposes obligations or liability on the indemnified Party without the indemnified Party’s prior written consent.

This limitation does not apply to: (a) Customer’s payment obligations; (b) either Party’s indemnification obligations under Section 6; (c) either Party’s willful misconduct or fraud; or (d) either Party’s breach of its confidentiality obligations under Section 9. If a BAA is executed, its terms govern liabilities relating to PHI.

Outfox may assign this Agreement without Customer’s consent to an affiliate or to a successor in connection with a merger, acquisition, or sale of substantially all of its assets. Customer may not assign this Agreement without Outfox’s prior written consent. Any purported assignment by Customer in violation of this Section is void.

Each Party (as “Receiving Party”) will protect the other Party’s (the “Disclosing Party’s”) Confidential Information using at least the same degree of care it uses to protect its own confidential information of similar sensitivity, but in no event less than reasonable care. Each Party will use the other Party’s Confidential Information solely to perform its obligations or exercise its rights under this Agreement.

Confidentiality obligations do not apply to information that: (a) is or becomes publicly known through no fault of the Receiving Party; (b) was already known to the Receiving Party at the time of disclosure; (c) is independently developed by the Receiving Party without use of the Disclosing Party’s Confidential Information; (d) is rightfully received from a third party without restriction; or (e) is required to be disclosed by law, regulation, or court order, provided the Receiving Party gives the Disclosing Party prompt written notice (to the extent permitted by law) and cooperates with any effort to obtain confidential treatment.

Each Party acknowledges that breach of this Section may cause irreparable harm for which monetary damages would be inadequate, and that the non-breaching Party is entitled to seek equitable relief, including injunction, without the requirement to post bond.

10.1HIPAA

To the extent Outfox receives or processes Protected Health Information (“PHI”) as defined under HIPAA in connection with any Order Form or Statement of Work, the Parties will enter into a Business Associate Agreement (“BAA”), which shall govern the use and protection of such PHI and is hereby incorporated into this Agreement by reference.

10.2Customer Data

Outfox processes Customer Data solely to provide the Services and may use Customer Data in aggregated or de-identified form to maintain and improve its datasets, algorithms, and AI/ML models. Customer represents that it has all rights and consents necessary to permit such processing.

10.3Service Data

Outfox may collect and use Service Data for analytics, diagnostics, benchmarking, and product improvement, provided such data does not identify Customer or any individual Authorized User. Outfox retains all rights in Service Data.

10.4Security

Outfox will implement and maintain reasonable administrative, technical, and physical safeguards designed to protect Customer Data against unauthorized access, disclosure, or destruction, consistent with applicable law and industry standards.

10.5Changes in Law

If Outfox determines that an amendment to this Agreement is necessary to comply with applicable law, regulatory guidance, or industry standards, the Parties will negotiate in good faith to update the Agreement. If the Parties are unable to agree on an amendment within thirty (30) days, Outfox may terminate the affected Services upon written notice without penalty.

11.1Updates to This Agreement

Outfox may update this Agreement at any time by posting a revised version at outfoxhealth.com/msa/. Outfox will provide Customer with at least thirty (30) days’ prior notice of any material change, by email to the billing contact on the applicable Order Form or by posting a notice on the Platform. Customer’s continued use of the Platform after the notice period constitutes acceptance of the updated Agreement. If Customer does not agree to a material change, Customer may elect non-renewal of the affected Order Form pursuant to Section 3.5 before the change takes effect. Notwithstanding the foregoing, changes required by applicable law may take effect immediately upon posting.

11.2Notices

All notices under this Agreement shall be in writing and delivered by email with confirmed receipt to the addresses set forth in the applicable Order Form. Notices are effective upon receipt.

11.3Severability

If any provision of this Agreement is held to be invalid, illegal, or unenforceable, that provision will be modified to the minimum extent necessary to make it enforceable, or if modification is not possible, severed from this Agreement, without affecting the validity or enforceability of the remaining provisions.

11.4Amendments; Waiver

Any amendment requested by Customer requires a written agreement signed by authorized representatives of both Parties. No failure or delay by either Party in exercising any right will constitute a waiver of that right, and no waiver of any breach will be deemed a waiver of any subsequent breach.

11.5Entire Agreement

This Agreement, together with all Order Forms and any executed BAA, constitutes the entire agreement between the Parties regarding its subject matter and supersedes all prior and contemporaneous agreements, representations, and understandings. If Customer has executed a separate written Master Subscription Agreement with Outfox, that agreement governs and this hosted version does not apply. Any additional or inconsistent terms in a purchase order or similar document are null and void.

11.6Governing Law; Dispute Resolution

This Agreement is governed by the laws of the State of Delaware, excluding its conflict of laws provisions.

11.6.1 Informal Resolution. Before initiating any formal proceeding, the Parties shall escalate the dispute to senior representatives who shall negotiate in good faith for thirty (30) days following written notice of the dispute.

11.6.2 Arbitration. If the dispute is not resolved during that period, it shall be resolved by binding arbitration administered by the American Arbitration Association (“AAA”) under its Commercial Arbitration Rules. The arbitration shall be conducted by a single arbitrator for disputes involving amounts in controversy not exceeding $250,000, and a panel of three (3) arbitrators for disputes exceeding $250,000. The seat of arbitration shall be San Francisco, CA, or such other location as the Parties mutually agree. The arbitral award shall be final and binding and may be entered in any court of competent jurisdiction.

11.6.3 Injunctive Relief. Either Party may seek emergency injunctive or other equitable relief in any court of competent jurisdiction to prevent irreparable harm without waiving the right to arbitrate the underlying dispute.

11.6.4 Attorney’s Fees. In any arbitration or court proceeding arising under this Agreement, such Party shall bear its own attorney’s fees and costs unless the arbitrator or court determines that a claim was frivolous or brought in bad faith.

11.7Electronic Signatures; Counterparts

This Agreement may be executed electronically and in counterparts, each of which constitutes an original and all of which together constitute one instrument.

11.8Publicity

Outfox may use Customer’s name and logo to identify Customer as a customer of Outfox in marketing materials, website listings, and press releases. Customer may opt out of such use at any time by written notice to Outfox.

11.9Force Majeure

Except for payment obligations, neither Party will be liable for delays or failures to perform due to causes beyond its reasonable control, including natural disasters, acts of government, labor disputes, internet or cloud service failures, or other force majeure events. The affected Party will promptly notify the other Party and use reasonable efforts to resume performance.

11.10Survival

The following Sections survive expiration or termination for any reason: Section 1 (Definitions), Section 2.4 (Effect of Termination), Section 2.5 (Restrictions), Section 3 (Fees, for amounts due), Section 5 (Intellectual Property), Section 6 (Indemnification), Section 7 (Limitation of Liability), Section 9 (Confidentiality), Section 10.1 (HIPAA), and Section 11 (General).