© 2023 Gleam Care, Inc.

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Terms of Service

Effective Date: June 15, 2023

BY ACCESSING, USING THE SOFTWARE AND/OR SIGNIFYING YOUR ACCEPTANCE TO THESE TERMS OF SERVICE, YOU AGREE TO THE TERMS OF THIS AGREEMENT AS AND/OR ON BEHALF OF THE PERSON/ENTITY LISTED IN THE ACCOUNT CREATION, SIGN UP OR SIMILAR FORM (“REGISTRATION FORM”). YOU REPRESENT AND WARRANT THAT YOU HAVE FULL AUTHORITY TO BIND THE ACCOUNT OWNER/ENTITY TO THESE TERMS OF SERVICE. IF YOU DO NOT AGREE TO THESE TERMS OF SERVICE AND DO NOT HAVE THE AUTHORITY AS PROVIDED HEREIN, YOU MAY NOT AND SHALL NOT ACCESS, OR USE THE SERVICE (AS DEFINED IN THESE TERMS OF SERVICE).

These Terms of Service (“Agreement” or “Terms of Service”) are a binding contract between the Account Owner(s) (as defined below) (referred to herein as “Account Owner”, “You” “you”, “Your” or “your”) and Gleam Care, Inc. (referred to herein as “Gleam” or “Us” or “We”). The Terms of Service shall govern Your and your User’s use of the Service, and Your and your User’s rights and obligations with respect to User Data that placed in the Service, and associated Intellectual Property Rights thereto, as well as your creation of an account through which You and your Users will access the Service (hereinafter an “Account”) for use in connection with the Service. By accessing, using, subscribing, purchasing, or downloading the Service, or any goods, materials, or content from the Website, You agree to, and ensure that all who access the Service through Your account, follow and be bound by the following terms and conditions and any other terms and conditions embodied in any other agreements you enter into with Us. If you do not agree with the Terms of Service, neither You nor your Users may use the Website or the Service.

If You know, or have a suspicion or the good faith belief, that a User has violated the Terms of Service, You are responsible for immediately revoking access rights to the User(s). Additionally, if you become aware that a User is no longer employed by or affiliated with the You, You have the responsibility to immediately revoke access rights to the User.

NOTICE OF ARBITRATION AGREEMENT AND CLASS ACTION WAIVER: THIS AGREEMENT INCLUDES A BINDING ARBITRATION CLAUSE AND A CLASS ACTION WAIVER, SET FORTH BELOW, WHICH AFFECT YOUR RIGHTS ABOUT RESOLVING ANY DISPUTE WITH US. PLEASE READ IT CAREFULLY.

These Terms of Service apply to Your and your Users use of the Service and ALL transactions made on or through the Website in your use of the Service. The Account Owner manifests agreement to these Terms of Service by any act demonstrating your assent thereto, including clicking any button containing the words “I agree”, “Start my free trial”, “Create my account” or similar syntax, by accessing the Website, by establishing an Account, or using the Service, whether you have read these Terms of Service or not. By clicking any such button or otherwise indicating Your assent, You agree to these Terms of Service. You should print a copy of these Terms of Service for your business and personal records.

These Terms of Service may be modified by Gleam effective immediately by notifying you as provided in Section 29 below. By continuing to access or use the Service after the effective date of any such change, you agree to be bound by the modified Terms of Service.

1. Definitions

“Account Owner” means the individual who establishes the Account and any other entity and/or person in whose name the Account is established, all of whom are agreed to be jointly and severally obligated under these Terms of Service. The Account Owner is responsible for the obligations and activities under the Account as well as the obligations and activities of all Users within the Account (including without limitation payment for the Account and deletion of the Account). The use of the phrase “Account Owner” in the singular shall also mean use in the plural.

“Dispute” will have the broadest meaning possible and means any dispute, action, or other controversy between you and Gleam relating to the Service, any transaction or relationship between you and Gleam resulting from your use of the Service, communications between you and Gleam, or this Agreement – whether in contract, warranty, tort, laws, or regulations.

“HIPAA” means the Health Insurance Portability and Accountability Act of 1996, the Health Information Technology for Economic and Clinical Health Act and their implementing regulations as amended from time to time;

“Intellectual Property Rights” means copyrights, trademarks, service marks, trade dress, publicity rights, database rights, patent rights, and other intellectual property rights or proprietary rights recognized by law;

“Protected Health Information” or “PHI” means protected health information as defined by HIPAA’s Privacy Rule found at 45 C.F.R. §160.103.

“Servers” are computers or devices that host the Service.

“Service” means Gleam’s technology and software platforms available on the Websites and any affiliated sub-domains and mobile applications and sites, Software, and Servers, which are part of the “Service” whether or not stated separately within these Terms of Service, when made available by Gleam.

“Gleam Software” or “Software” is the software provided to you by Gleam and/or its suppliers under license or with respect to which you have access, in connection with the Service.

“Transaction Data” means customer information, User Data, Payment Data, transaction information, bank information and credit card information including without limitation tokenized account information, tokens and token access codes, account information or other data or information of any kind that is provided by or generated or collected on your behalf by the Service.

“User Data” means any data or images that you or your Users upload or submit to the Service or Website, or generated or collected on your behalf from the Service, Website or third parties, including but not limited to Protected Health Information as that term is defined below, video, image and sound data and Transaction Data;

“User(s)” means the Account Owner(s) and/or Account Owner’s staff, contractors, administrators, or other individuals who are granted access to the Service with the authorization of the Account Owner.

“Website” means the websites and services available from the domain and sub-domains of https://gleamcare.com and any related or successor domains and mobile applications and sites from which Gleam may offer the Service.

2. Verification for Gleam

By accepting these Terms of Service in connection with an Account, the person acknowledging agreement or assenting to these Terms of Service represents that they are at least 18 years of age, or the legal age of majority where in the place of residence if that jurisdiction has an older age of majority, and has the legal authority to contractually agree to these Terms of Service on behalf of the Account Owner. You further agree that as a condition to accessing the Service, you will submit to Account and Account Owner verification as required by Gleam, and provide only true and accurate identification documentation to Gleam or its third party service providers as requested by Gleam. You are responsible for the security of any account verification information, such as user names and passwords, including without limitation your Users’ user names and password.

3. Legal Relationship Between You and Gleam; No Third Party Beneficiaries

Except as may otherwise be expressly provided in this Agreement, the parties acknowledge and agree that Gleam is acting solely in a ministerial capacity in performing Gleam’s duties and obligations under this Agreement and will have no fiduciary duties with respect to the administration of Your health plan. While Gleam may facilitate and coordinate the various relationships through the Service, Gleam does not have discretionary authority over Your health plan. Gleam will not be responsible for advising You with respect to Your fiduciary duties under the Agreement or form making any recommendations with respect to the investment of Your health plan assets.

Gleam does not insure or underwrite any liability associated with the Your health plan and will have no financial risk or liability with respect to the provision of benefits under the Your health plan.

You grant Gleam the authority to serve as an agent of Your health plan in carrying out Gleam’s duties under this Agreement, but only those Gleam duties that are expressly stated in this Agreement or as mutually agreed in writing by the parties.

Gleam is and will remain an independent contractor with respect to the services being performed under the terms of this Agreement and will not for any purpose be deemed an employee of You, and Gleam will not be deemed to be a partner or to be governed by any legal relationship other than that of independent contractor. Gleam does not assume any responsibility for the general policy design of the Your health plan, the adequacy of the funding thereof nor any act, omission, or breach of duty by You.

You acknowledge that Your participation in the Service, including your creation or uploading of User Data in the Service, does not make You a Gleam employee and that You do not expect to be, and will not be, compensated by Gleam for such activities, and You will make no claim inconsistent with these acknowledgements. In addition, no agency, partnership, joint venture, franchise relationship is intended or created by this Agreement. There are no third party beneficiaries, intended or implied, under this Agreement.

4. Establishing an Account

You must establish an Account with Gleam to use the Service. You agree to provide accurate, current, and complete information about You and the individual who establishes the Account (“Registration Data”) as prompted by the Registration Form and as required to be added in the “Settings” or other page on the Website, and to use the Account management tools provided to keep your Registration Data accurate, current and complete. Gleam will designate You as the Account Owner and assign an account name (your “Account Name”). You and your Users must each choose a user name to identify yourselves under the Account Name.

5. Responsibility for Use of Account

You, as the Account Owner, are responsible for all activities conducted through your Account, including activities of the Users, and you are responsible for all activities conducted through your user name and are responsible for Users to whom you grant access to your Account, including those you authorize to access your Account on behalf of yourself. In the event that fraud, violation of law, regulation or rule, or conduct that violates these Terms of Service occurs (whether by you or someone else) that is in any way connected with your Account, we may suspend or terminate your use of the Service and your Account as described in Section 21 and you shall be financially responsible to Gleam for the consequences of such use.

6. Selection and Use of Account Password

At the time Your Account is created, You must select a password. You are responsible for maintaining the confidentiality of Your password and are responsible for any damages, claims, losses or other harm resulting from Your disclosure of Your password, authorization of the disclosure of Your password, or any person’s use of Your password or Your Account and those who gain access to your Account or Account Name. At no time should you respond to an online request for a password other than in connection with the log-on process to the Service. Your disclosure of Your password to any other person is at your own risk.

You and each of those using your Account must have separate user names and passwords. Users may not share entry identifications and authentication passwords and any sharing may result in a suspension or termination of access for the User and the Account Owner, and/or an increase in charges, at Gleam’s sole discretion.

7. Fees and Billing

Gleam provides the Service for the fees and other charges set forth on the Website at /pricing/ or other location on the Website. All prices listed exclude all sales taxes, fees, use taxes, charges, duties, levies and similar governmental charges (“Sales Taxes”) imposed on the provision of the Service and all such Sales Taxes shall be borne solely by and paid by the Account Owner to Gleam and deemed to be in addition to the fees charged in connection with the Service. Where applicable, Account Owner shall be responsible for all Sales Taxes and Gleam reserves the right to collect Sales Taxes retroactively. We may, at any time, add new services for additional fees and charges, or prospectively modify fees and charges for existing services (including prospectively charging fees for the Service not previously charged for) on notice as provided herein. You acknowledge that it is Your responsibility to ensure payment in advance for all paid aspects of the Service, and to ensure that your credit or debit cards or other payment instruments accepted by Gleam and/or its processor, continue to be valid and sufficient for such purposes. We may suspend or terminate Your use and Your Account’s use, as provided in Section 21, in the event of any payment delinquency. Other services are available from Gleam and the agreement with respect to those services and fees due to Gleam incorporate by reference these Terms of Service as well as any specific terms and conditions presented to you. You will not be entitled to any refund on termination or expiration of the Agreement. All payments once made to Gleam shall have been earned by Gleam as of the date of payment. You will not be entitled to any refund for the partial use of the Service or credits at any time.

8. Modification of Service

Gleam reserves the right to add, modify, discontinue or eliminate aspect(s), features or functionality of the Service from time to time for any reason including without limitation for purposes of compliance with applicable laws and regulations, to effect improvements in security and functionality, to correct errors, or for any other purposes, at its sole discretion.

9. Privacy Policy, Protected Health Information, User Data and Use of Your Information, Email, Data Deletion on Termination

Our Privacy Policy describes how we use and share Personal Information (as such term is defined in the Privacy Policy), including any Payment Data or Registration Data You provide, or other Personal Information we receive when You submit an inquiry or request further information, or receive updates and promotions about or related to the Service. Our Privacy Policy does not apply to any Personal Information contained within User Data that we collect and process only on your behalf when we provide the Service.

In providing you our Service, Gleam will not sell any Personal Information contained in User Data. Gleam will not retain, use or disclose the Personal Information You provide to us in User Data except for the specific purpose of performing our obligations under these Terms of Service, including providing and improving the Service under these Terms of Service, nor will Gleam retain, use or disclose Personal Information contained within User Data outside of our direct business or contractual relationship with You or the legal entity under which You are employed.

We will make no use of PHI that is not permitted by these Terms of Service, the BAA (as defined below) or that is prohibited by applicable law, including but not limited to HIPAA.

It is Your responsibility to comply with all applicable privacy and data protection laws and to ensure that You have provided all required notices and obtained all necessary consents (including with respect to third parties access) from Your Users and that the Users have agreed to the collection of their User Data (including PHI) and the access of their User Data by You, by us, and, where applicable, other third parties. Any sample documentation that is provided by Gleam for obtaining consent or other information from Users is for illustration only, and You alone (and not Gleam) are responsible to ensure that such documentation is adequate and enforceable. Gleam does not provide legal or compliance advice and You are responsible for retaining competent counsel and advisors for these purposes.

In the event that we receive a subpoena, court order, or other legal request compelling the disclosure of any of your User Data (including PHI) or any of Your data or information or any User Data, we will notify You of the existence of such subpoena, court order or other legal request prior to disclosing the PHI or other data or information or any User Data, unless ordered to not do so by a court of competent jurisdiction, requested not to do so by law enforcement, or unless our legal counsel advises us that prior notification is not required or in violation of applicable law.

In the event of termination of this Agreement, whether by your cancellation of the Agreement, your breach of, or as otherwise provided in these Terms of Service, upon written request Gleam will provide You a copy of your User Data contained within the Service prior to the account termination date. It is your sole responsibility to request the User Data contained within the Service before the account termination date and to ensure the secure preservation of User Data (including PHI) pursuant to federal and state law. Gleam will destroy the User Data for your Account as provided in Section 21 of these Terms of Service.

10. No Responsibility for Acts of Omissions of Third Party Websites

The Service may contain links to, or otherwise allow connections to third-party websites, servers, and online services or environments that are not owned or controlled by Gleam. You agree that Gleam is not responsible or liable for the content, policies, or practices of any third-party websites, servers, or online services or environments. Please consult any applicable terms of use and privacy policies provided by the third party for such websites, servers, or online services or environments.

11. Your Rights and Obligations with Respect to User Data

In connection with User Data you upload or submit to or which is created by the Service, you affirm, represent, and warrant that you own or have all necessary Intellectual Property Rights, licenses, consents, and permissions to use and authorize Gleam to use, retain, copy, and process the User Data in the Service and as contemplated by this Agreement. You agree that by uploading or submitting any User Data to or through the Service, and permitting Your Users to upload any User Data and/or Transaction Data into the Service, You hereby automatically at such time grant Gleam (and its affiliates) a non-exclusive, worldwide, royalty-free, sublicensable, and transferable license to use, reproduce, distribute, prepare derivative works of, perform and display User Data and Transaction Data (including User Data and Transaction Data that is created, collected or generated by the Service or Gleam using the User Data and Transaction Data you submit) solely for the purposes of providing the Service. You agree that the license includes the right to copy, analyze and use any of Your User Data and Transaction Data as Gleam may deem necessary or desirable for purposes of debugging, testing, or providing support or development services in connection with the Service and future improvements to the Service. The license granted in this Section is referred to as the “Service Data License.” You also acknowledge that the Service Data License granted to Gleam with respect to Your content will survive the termination of your Account to permit Gleam: (i) to retain server copies of particular instances of Your User Data, including copies stored in connection with back-up, debugging, and testing procedures; and (ii) to enable the exercise of the licenses granted in this Section for any other copies or instances of the same User Data that You have not specifically deleted from the Service.

You acknowledge that You are responsible for all information and User Data you and those who are under the Account input into the Service. You understand and agree that You are bound by various laws and regulations, including but not limited to HIPAA, which require that You preserve the availability, accuracy, integrity, and confidentiality of PHI and personally identifiable information. You also acknowledge and agree that all of your activity within the Service is automatically logged (including into audit logs), and that such activity may be audited by Account Owners, account administrators, regulators, or others.

12. Interruption of Service

Gleam may on occasion need to interrupt or suspend the Service, with or without prior notice, to protect the integrity or functionality of the Service or for maintenance purposes. You agree that Gleam is not liable for any interruption or suspension of the Service (whether intentional or not), and You understand that neither You nor any Users will be entitled to any refunds of fees or other compensation for interruption or suspension of service. Likewise, You agree that in the event of loss of any User Data, we will not be liable for any purported damage or harm arising therefrom.

13. Gleam’s Intellectual Property Rights and Limited License Granted to You

Intellectual Property Rights. Gleam owns Intellectual Property Rights in and to the Service, except User Data, including the Gleam Software, the Websites, and the Servers, and in and to our trademarks, service marks, trade names, logos, domain names, taglines, and trade dress (collectively, the “Gleam Marks”). You understand that such Intellectual Property Rights are apart from any rights You may have in User Data you upload or submit to the Service, as discussed above. You acknowledge and agree that Gleam and its licensors own all right, title, and interest in and to the Service, including all Intellectual Property Rights therein, other than with respect to User Data. Except as expressly granted in this Agreement, all rights, title, and interest in and to the Service, except all User Data, and in and to the Gleam Marks are reserved by Gleam. Copyright, trademark and other laws of the United States and foreign countries protect the Service and the Gleam Marks.

Limited License. Gleam hereby grants You a non-exclusive, non-transferable, non-sublicensable, limited, revocable license to access and use the Service specifically as set forth in these Terms of Service and expressly conditioned upon You and Your Account remaining active, in good standing, and in full compliance with these Terms of Service. You agree that you will not (i) allow any person or entity not authorized by Gleam to use or access the Software, (ii) attempt to copy any ideas, features, functions or graphics contained in the Service; (iii) use the Gleam Software in the operation of a service bureau, an application service provider or for any other purpose intended to benefit a party other than You, (iv) alter or modify the Gleam Software, (v) sell, assign, sublicense, rent, lease or otherwise transfer the Gleam Software or any rights in connection therewith, or (vi) attempt to translate, disassemble, decompile, reverse assemble, reverse engineer all or any part of the Service or otherwise attempt to derive the source code for the Software.

Feedback and other Input. You may provide suggestions, ideas and/or feedback (collectively, “Feedback”) to Gleam or in the use of the Service or Website regarding Gleam Website, products or Service. You agree that Gleam will be free to use, irrevocably, in perpetuity and for any purpose, all Feedback provided to it by You or your Users and that all right title and interest in Feedback is assigned to Gleam. The foregoing grant of rights is made without any duty to account to You or to any of the foregoing persons or entities for the use of such Feedback.

Mobile Application License. Subject to Your compliance with these Terms of Service, Gleam grants You a limited non-exclusive, non-transferable license to use any of the Gleam mobile applications and to access the Website via a single mobile device or computer that You own or control and to run such copies of the Gleam mobile applications on such device solely for Your own personal use.

You shall not: (i) license, sublicense, sell, resell, transfer, assign, distribute or otherwise commercially exploit or make available to any third party the Gleam mobile application in any way; (ii) modify or make derivative works based upon the Website or Gleam mobile application; (iii) create Internet “links” to the Website or “frame” or “mirror” the Gleam mobile application on any other server or wireless or Internet-based device; (iv) reverse engineer or access the Gleam mobile application in order to (a) design or build a competitive product or service, (b) design or build a product using similar ideas, features, functions or graphics of the Website or Gleam mobile application, or (c) copy any ideas, features, functions or graphics of the Website or Gleam mobile application; or (v) launch an automated program or script, including, but not limited to, web spiders, web crawlers, web robots, web ants, web indexers, bots, viruses or worms, or any program which may make multiple server requests per second, or unduly burdens or hinders the operation and/or performance of the Website or Gleam mobile application.

14. Downloaded Mobile Sourced Application

With respect to any application accessed through or downloaded from any mobile or device application site or store (“Mobile Store Sourced Application”), You agree that You will use the Mobile Store Sourced Application only as permitted by the “Usage Rules” set forth in any applicable Mobile Store Terms of Service and these Terms of Service. Gleam reserves all rights in and to the application not expressly granted to you under these Terms of Service. You acknowledge and agree that: (i) these Terms of Service are valid between You and Gleam only, and not the mobile application download site (the “Mobile Store”); and(ii) Gleam, not the Mobile Store, is solely responsible for the Mobile Store Sourced Application and content thereof. Your use of the Mobile Store Sourced Application must comply with the Mobile Store Terms of Service. You acknowledge that the Mobile Store has no obligation whatsoever to furnish any maintenance and support services with respect to the Mobile Store Sourced Application. In the event of any failure of the Mobile Store Sourced Application to conform to any applicable warranty, You may notify the Mobile Store but the Mobile Store will have no warranty obligation whatsoever with respect to the Mobile Store Sourced Application. As between Gleam and the Mobile Store, any other claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to any warranty will be the sole responsibility of Gleam. You acknowledge that, as between Gleam and the Mobile Store, the Mobile Store is not responsible for addressing any claims you have or any claims of any third party relating to the Mobile Store Sourced Application or your possession and use of the Mobile Store Sourced Application, including, but not limited to: (i) product liability claims; (ii) any claim that the Mobile Store Sourced Application fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection or similar legislation. You acknowledge that, in the event of any third party claim that the Mobile Store Sourced Application or your possession and use of that Mobile Store Sourced Application infringes that third party’s intellectual property rights, as between Gleam and the Mobile Store, Gleam, not the Mobile Store, will be solely responsible for the investigation, defense, settlement and discharge of any such intellectual property infringement claim to the extent required by this Agreement. Without limiting any other provisions of these Terms of Service, You must comply with all applicable third party terms of agreement when using the Mobile Store Sourced Application.

15. Prohibited Conduct While Using the Service

You agree that You will not, and will cause Users to not:

Post, display or transmit information or data, User Data, or Transaction Data, including the unauthorized use of any payment method, that violates any law, regulation or rule, or the rights of any third party including without limitation Intellectual Property Rights;

Impersonate any person or entity without their consent, or otherwise misrepresent your affiliation;

Post or transmit viruses, Trojan horses, worms, spyware, time bombs, cancelbots, or other computer programming routines that may harm the Service or interests or rights of other users, or that may harvest or collect any data or personally identifiable information about other users without their consent;

Engage in malicious, disruptive or other conduct that impedes or interferes with other Users’ normal use of the Service; or

Attempt to gain unauthorized access to any other User’s Account, password or User Data, or allow more than one person to use an Account.

You agree that You and your Users will not upload, publish, or submit to any part of the Service any User Data that is protected by Intellectual Property Rights or otherwise subject to proprietary rights, including trade secret or privacy rights, unless You or the appropriate Users are the owner of such rights or have permission from the rightful owner to upload or submit the User Data and to grant Gleam all of the license rights granted in this Agreement. You agree that Gleam will have no liability for, and You agree to defend (at Gleam’s option), indemnify, and hold Gleam harmless for, any claims, losses or damages arising out of or in connection with Your use of any User Data.

16. Violation of Terms of Service

Any violation by You, Your Users of these Terms of Service may result in immediate suspension or termination of your Account without any refund or other compensation at Gleam’s option.

17. Releases

You agree not to hold Gleam liable for the actions or inactions of You or other Users of the Service or of other third parties. As a condition of access to the Service, you release Gleam (and its officers, directors, shareholders, agents, subsidiaries, and employees) from claims, demands, losses, liabilities and damages (actual and consequential) of every kind and nature, known and unknown, arising out of or in any way connected with any dispute You have or claim to have with one or more other users of the Service or with other third parties, including whether or not Gleam becomes involved in any resolution or attempted resolution of the dispute. If You are a California resident, You waive California Civil Code Section 1542 (as may be amended). The statute currently provides: “A general release does not extend to claims that the creditor or the releasing party does not know or suspect to exist in his or her favor at the time of executing the release and that, if known by him or her, would have materially affected his or her settlement with the debtor or release party.” If You are a resident of another jurisdiction, You waive any comparable statute or doctrine.

18. Disclaimer of Express and Implied Warranties

GLEAM PROVIDES THE SERVICE, INCLUDING WITHOUT LIMITATION THE SOFTWARE, THE WEBSITES, THE SERVERS, AND YOUR ACCOUNT, STRICTLY ON AN “AS IS” BASIS, AND HEREBY EXPRESSLY DISCLAIMS ALL WARRANTIES OR CONDITIONS OF ANY KIND, WRITTEN OR ORAL, EXPRESS, IMPLIED OR STATUTORY, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTY OF TITLE, NONINFRINGEMENT, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. NOTWITHSTANDING ANY INTELLECTUAL PROPERTY RIGHTS YOU MAY HAVE IN YOUR USER DATA OR ANY EXPENDITURE ON YOUR PART, GLEAM AND YOU EXPRESSLY DISCLAIM ANY COMPENSABLE VALUE RELATING TO OR ATTRIBUTABLE TO ANY DATA RELATING TO YOUR ACCOUNT RESIDING ON GLEAM’S SERVERS. YOU ASSUME ALL RISK OF LOSS FROM USING THE SERVICE ON THIS BASIS. Gleam does not ensure continuous, error-free, secure or virus-free operation of the Service, the Software, the Websites, the Servers, or your Account, and You understand that You shall not be entitled to refunds or other compensation based on Gleam’s failure to provide any of the foregoing other than as explicitly provided in this Agreement. Some jurisdictions do not allow the disclaimer of implied warranties, and to that extent, the foregoing disclaimer may not apply to You.

Gleam does not guarantee that by mere use of the Software you will be in compliance with HIPAA or other applicable law, and you understand and agree that you are responsible for maintaining administrative, technical and physical safeguards necessary to ensure the confidentiality, availability, and integrity with respect to your PHI and to otherwise comply with HIPAA and other applicable law.

19. Limitation of Liability

IN NO EVENT SHALL GLEAM OR ANY OF ITS DIRECTORS, OFFICERS, EMPLOYEES, EQUITY OWNERS, MANAGERS, SUBSIDIARIES, AGENTS OR LICENSORS BE LIABLE TO YOU OR TO ANY THIRD PARTY FOR ANY SPECIAL, INCIDENTAL, INDIRECT, CONSEQUENTIAL, RELIANCE, PUNITIVE OR EXEMPLARY DAMAGES OR DISGORGEMENT OR COMPARABLE EQUITABLE REMEDY, INCLUDING WITHOUT LIMITATION ANY DAMAGES FOR LOST DATA OR LOST PROFITS, ARISING (WHETHER IN CONTRACT, TORT, STRICT LIABILITY OR OTHERWISE) OUT OF OR IN CONNECTION WITH THE SERVICE (INCLUDING ITS MODIFICATION OR TERMINATION), THE GLEAM SOFTWARE, THE WEBSITES, THE SERVERS, YOUR ACCOUNT (INCLUDING ITS TERMINATION OR SUSPENSION) OR THIS AGREEMENT, WHETHER OR NOT GLEAM MAY HAVE BEEN ADVISED THAT ANY SUCH DAMAGES MIGHT OR COULD OCCUR AND NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY REMEDY. IN NO EVENT WILL GLEAM’S CUMULATIVE LIABILITY TO YOU EXCEED THE TOTAL AMOUNT PAID BY YOU FOR THE SERVICES IN THE TWELVE (12) MONTHS PRECEDING THE FIRST INCIDENT OUT OF WHICH THE LIABILITY AROSE. Some jurisdictions do not allow the foregoing limitations of liability, so to the extent that any such limitation is found to be impermissible, such limitation may not apply to You.

20. Indemnification

At Gleam’s request, you agree to defend, indemnify and/or hold harmless Gleam, its officers, directors, shareholders, employees, subsidiaries, and agents from all damages, liabilities, claims and expenses, including without limitation attorneys’ fees and costs, arising from: (i) any breach or alleged breach by You or your Users of these Terms of Service, including without limitation your representations and warranties relating to your data, User Data; (ii) claims, losses and causes of action asserted by any Users; or (iii) your acts, omissions or use of the Service, including without limitation your negligent, willful or illegal conduct. In any matter in which you have agreed to indemnify Gleam, without the express written consent of Gleam, You may not settle any matter or admit liability if, upon doing so, you are admitting liability or fault on the part of Gleam. We reserve the right to assume the exclusive defense and control of any matter otherwise subject to indemnification by you, and in such case, you agree to cooperate with our defense of such claim.

21. Suspension and Termination of Accounts

You may terminate this Agreement by closing your Account at any time for any reason. Subject to Gleam’s obligations pursuant to Section 8, in such event, Gleam shall have no further obligation or liability to You under this Agreement or otherwise. You may not suspend Your own Account. If you suspend Your Account, then the Account will be deemed terminated (see Sections 8 and 21 herein, regarding deletion of your User Data on termination). In addition, Gleam may suspend or terminate Your Account, without notice, for breach if You violate this Agreement, or any terms regarding payment of required fees and charges due under this Agreement. Gleam may, at its sole discretion, provide you a grace period prior to termination, in the event of a breach or Your failure to pay fees and charges, without waiving its rights hereunder to terminate immediately upon such events. We may suspend or terminate Your Account (or the access of any User) if we determine in our discretion that such action is desirable for any reason, or advisable to comply with applicable legal requirements, or to protect the rights or interests of Gleam or any third party. Under no circumstances, will you be entitled to compensation or a refund for any interruption, suspension or termination, and You acknowledge Gleam will have no liability to You or your Users in connection with any interruption, suspension or termination.

22. Termination of Licenses Upon Termination of Account

Upon termination of Your Account, all licenses granted by Gleam to use the Website, Software, and the Service will automatically terminate, and all User Data in Your Account will be retained no more than thirty (30) days after termination or expiration of Your Account or this Agreement, and deleted on expiration of such thirty (30) day time frame. You are responsible for exporting all account data and ensuring the secure preservation of PHI pursuant to federal and state law, and ethical requirements. During the time frame beginning on termination or expiration of Your Account, your access to the Service will be limited to downloading your User Data.

23. Liability for Unpaid Fees Upon Termination of Account

Upon termination by You or by Gleam of your Account, You will not receive any refund of any amounts previously paid and You will remain liable for any charges incurred or unpaid amounts owed by You to Gleam.

24. Survival of Terms After Termination

The following terms will survive any termination of this Agreement: Sections 1, 2, 4, 6, 8, 12, 13 and 16 through 34. You will not be entitled to any refund on termination or expiration of the Agreement.

25. Dispute Resolution

In the event of a Dispute between You and Gleam (including any dispute over the validity, enforceability, or scope of this dispute resolution provision), other than with respect to claims for injunctive relief, the Dispute will be resolved by binding arbitration pursuant to the rules of the American Arbitration Association Commercial Arbitration Rules. The place of the arbitration shall be in San Francisco, California. In the event that there is any Dispute between You and Gleam that is determined not to be subject to arbitration pursuant to the preceding sentence, You agree to submit in that event to the exclusive jurisdiction and venue of the state and federal courts located in the City of San Francisco, California. You agree that this Agreement and the relationship between you and Gleam shall be governed by the Federal Arbitration Act and the laws of the State of California without regard to conflict of law principles or the United Nations Convention on the International Sale of Goods. Notwithstanding this, either party shall still be allowed to apply for injunctive or other equitable relief to protect or enforce that party’s Intellectual Property Rights in any court of competent jurisdiction where the other party resides or has its principal place of business.

Class Action Waiver

Any proceedings to resolve or litigate any Dispute in any forum will be conducted solely on an individual basis. Class arbitrations, class actions, private attorney general actions, consolidation of your Dispute with other arbitrations, or any other proceeding in which either party acts or proposes to act in a representative capacity or as a private attorney general are not permitted and are waived by You, and an arbitrator will have no jurisdiction to hear such claims. If a court or arbitrator finds that the class action waiver in this section is unenforceable as to all or some parts of a Dispute, then the class action waiver will not apply to those parts. Instead, those parts will be severed and proceed in a court of law, with the remaining parts proceeding in arbitration. If any other provision of this Dispute resolution section is found to be illegal or unenforceable, that provision will be severed with the remainder of this section remaining in full force and effect.

26. Disclaimer of Warranties as to Use Outside of the United States

Gleam is a United States-based service. We make no warranty or representation that any aspect of the Service is appropriate for use outside of the United States or may be used for persons who are not then located outside the United States. Those who access the Service from other locations are responsible for compliance with applicable local laws. The Software is subject to applicable export laws and restrictions.

27. Assignment of Agreement and Account

You may not assign this Agreement or Your Account without our prior written consent. You may not transfer or sublicense any licenses granted by Gleam in this Agreement without our prior written consent. We may assign this Agreement, in whole or in part, and all related rights, licenses, benefits and obligations, without restriction, including the right to sublicense any rights and licenses under this Agreement without your consent.

28. Integration, Interpretation of Section Headings and Severability

The agreements, understandings and policies referenced in this Agreement sets forth the entire agreement and understanding between You and Gleam with respect to the subject matter hereof and supersedes any prior or contemporaneous agreements or understandings. Gleam reserves the right to modify this Agreement and Terms of Service at any time upon notification to you as provided in Section 29. If any future change is unacceptable to You, You should discontinue using the Service. Your continued use of the Service will always indicate your acceptance of this agreement and any changes to it.

You acknowledge that no other written, oral or electronic communications will serve to modify or supplement this Agreement, and You agree not to make any claims inconsistent with this understanding or in reliance on communications not part of this Agreement. The section headings used herein, including descriptive summary sentences at the start of each section, are for convenience only and shall not affect the interpretation of this Agreement. If any provision of this Agreement shall be held by a court of competent jurisdiction to be unlawful, void, or unenforceable, then in such jurisdiction that provision shall be deemed severable from these terms and shall not affect the validity and enforceability of the remaining provisions.

29. Notices

Gleam may provide notice to you and obtain consent from you (1) through the Website (2) by electronic mail at the electronic mail address associated with your Account; and/or (3) by written mail communication to you at the address associated with your Account. You must submit all notices required or permitted under this Agreement to Gleam Care, Inc., at legal@gleamcare.com.

30. No Responsibility for Acts or Omissions of Third Party Service Providers

Gleam may refer names of certain third party service providers (“Service Providers”) to you upon your request or in connection with the Service. Any Service Providers referred to You by Gleam are not owned or controlled by Gleam. You agree that Gleam is not responsible or liable in any way for the acts or omissions of any Service Providers, including, without limitation, any negligent, willful or illegal conduct. You further agree to conduct your own investigation and due diligence regarding any Service Providers referred to you by Gleam. You agree to defend (at Gleam’s option), indemnify and hold harmless Gleam from all damages, liabilities, claims, expenses and losses relating to the referral of Service Providers to You.

31. Gleam Community Terms of Use

Gleam Account Owners and Team Members may participate in the Gleam Community Site (and other Gleam sponsored public and private social media sites) that permits You to communicate with other Account Owners and Users. By accessing the Gleam Community Site, you agree to the Terms of Use of the community site in the Gleam Community.

32. Business Associate Agreement

For purposes of complying with the requirements of HIPAA to the extent applicable, You and Gleam agree to be bound by each of the terms and provisions of the Gleam Business Associate Agreement, which can be found at https://www.gleamcare.com/baa (the “BAA”) and which is incorporated in full by this reference. If any provision hereof is potentially or actually in conflict with the provisions of the Business Associate Agreement with respect to the treatment of Protected Health Information, the terms of the Business Associate Agreement shall prevail.

33. Transfer of User Data and Account Ownership

You agree that You are responsible for the provision of access to User Data and the sharing of User Data amongst those who are Users or those who are retained by the Account Owner in accordance with applicable law. In the event that any User who has access to the Service under the Account dies, becomes disabled or incapacitated or otherwise is unable to provide services to any User, then the Account Owner will be solely responsible for arranging for the transfer of User Data, or modification of access, in compliance with applicable law and Section 4 of these Terms of Service. This includes, but may not be limited to, providing identity verification or execution of necessary authorizations that may be required by Gleam or by applicable regulations or licensing bodies. You agree that Gleam reserves the right to not transfer User Data or modify access if the foregoing is not provided to the extent required by applicable law. If the Account Owner dies, or otherwise becomes incapacitated, Gleam will attempt to identify an appropriate individual to transfer the Account Owner role pursuant to applicable law or regulation, and if an appropriate individual can be identified, will transfer the Account Owner role to that individual as outlined above. IT IS RECOMMENDED THAT ACCOUNT OWNERS CREATE CLEAR DIRECTIONS REGARDING ACCESS TO AND TRANSFER OF USER DATA IN THE EVENT OF THEIR DEATH, DISABILITY, OR INCAPACITATION AND SHARE THESE DIRECTIONS WITH A QUALIFIED AND TRUSTED INDIVIDUAL IN ADVANCE. Requests for transfer of the Account Owner role, either by the Account Owner or by an individual legally designated to assume Ownership, must be initiated by you by emailing privacy@gleamcare.com. You agree that User Data that is PHI may only be accessed by or transferred to an appropriate party, pursuant to HIPAA rules and applicable state regulations.

34. Consent to Electronic Communications

We provide Users information by email or posting through the Website. The emails and other communications You will receive include those relating to billing, account verification, platform and Service training (sometimes called “on-boarding materials), survey requests (for product and customer service improvement purposes), marketing and promotions, and administrative announcements (including related to these Terms of Service, our Privacy Policy, or security incident notifications). You understand that by using the Service and agreeing to these Terms of Service, Gleam will send to you the foregoing communication types and You hereby waive any right to opt out of such communications to the extent permitted by applicable law. You are responsible for obtaining either requisite consent or ceasing email communication to a patient or client in the event that such patient or client opts out of receipt of any such communications.

Gleam Terms of Service 1.0 June 15, 2023