Master Service Agreement

This Master Services Agreement (“Master Agreement”) and its Terms and Conditions (“General Terms”) are incorporated into all agreements for products and services provided by Marqi Health Inc, a Delaware corporation with a principal place of business at Suite 1060, 4079 Governor Drive, San Diego, California 92122 (“Marqi”). With respect to each such agreement and all products and services provided by Marqil, each Party agrees as follows:

1. Definitions:

1.1. “Approved Statement of Work” means a Statement of Work that is approved and signed by an authorized agent of each Party.

1.2. “Business Day” A day on which Marqi is open for business - excluding federal holidays.  The Business Day ends at 4:00 p.m. Eastern Standard Time for purposes of processing transactions.

1.3. “Client” means any Party to an Approved Statement of Work other than Marqi.

1.4. “Effective Date” means the date that services begin under the Approved Statement of Work.

1.5. “Fees” means billing rates for services as described in the fee schedule of the Approved Statement of Work.

1.6. “Intellectual Property Right” means any intellectual property right including, without limitation, any right, title, or interest in any patent, trademark, service, mark, trade dress, copyright, or trade secret, together with any and all goodwill relating thereto.

1.7. “Party” means any party to an Approved Statement of Work, collectively the “Parties.”

1.8. “Services and Deliverables” means the services described in an Approved Statement of Work.

1.9. “Statement of Work” means any document that describes products or services to be provided by Marqi to any other Party including amendments, exhibits, addendums or schedules.

2. Services:

2.1. Once the Parties have fully agreed to the terms of a Statement of Work, each Party shall sign the Statement of Work, indicating its approval and deliver (electronically or otherwise) a copy of the signed Statement of Work to the other Party. A Statement of Work may be signed in counterparts, all of which taken together shall constitute one and the same Approved Statement of Work, once signed by all Parties.

2.2. Marqi shall have no obligation to execute, act on, or meet the commitments defined in any Statement of Work until it becomes an Approved Statement of Work.

2.3. Marqi shall provide to Client and its affiliates the Services and Deliverables in accordance with the applicable Approved Statement of Work.  The terms and conditions  of this Agreement (hereinafter referred to as the “General Terms”) will apply to all Approved Statements of Work issued hereunder. In case of a conflict between any provision of these General Terms and any provision of an Approved Statement of Work, the provision of these General Terms will apply, unless expressly stated otherwise in the Approved Statement of Work. 

2.4. Changes to Services: Client understands and agrees that Marqi may modify this Master Agreement and any Approved Statement of Work by giving the Client at least sixty (60) days advance notice of the change.  The notice will: (1) explain the modification of the services; (2) identify the effective date of the change; (3) explain Client’s right to reject the change or terminate services; and (4) state that pursuant to the General Terms of this Master Agreement, if Client fails to object to the change before the date on which the change becomes effective Client will be deemed to have consented to the change. If Client rejects the change, Marqi shall not be authorized to make the change.  In that event Client shall have an additional sixty (60) days from the effective date to locate a service provider in place and instead of Marqi.  If at the end of such additional (60) day period, the Parties have not reached agreement, the Approved Statement of Work and this Master Agreement shall terminate.

3. Invoices and Billing Policies:

3.1. Invoice Frequency: Marqi shall issue invoices to Client as set forth in an Approved Statement of Work.

3.2. Payment Terms: The Client agrees to pay all fees as described in the Approved Statement(s) of Work. Payment of fees is due upon Client receipt of the invoice, which will be transmitted via email to the Client’s designated billing contact(s). All fees paid to Marqi are non-refundable. Termination of an Approved Statement of Work according to its terms does not terminate the Client’s duty to pay fees due to Marqi for services performed under the Approved Statement of Work or this Master Agreement.

3.3. Changes to Fees: Client understands and agrees that the fees shall continue in effect until Marqi has provided notice to the Client of the change in the amount of the fee. Marqi may change the fees charged by giving Client at least sixty (60) days advance notice of the change. The notice will: (1) explain the modification of the fee; (2) identify the effective date of the change; (3) explain Client’s right to reject the change or terminate services; and (4) state that pursuant to the General Terms of this Master Agreement, if Client fails to object to the change before the date on which the change becomes effective Client will be deemed to have consented to the change. If Client rejects the change, Marqi shall not be authorized to make the change.  In that event Client shall have an additional sixty (60) days from the effective date to locate a service provider in place and instead of Marqi.  If at the end of such additional (60) day period, the Parties have not reached agreement, the Approved Statement of Work and this Master Agreement shall terminate. 

3.4. Minimum fee during first year of service: The client acknowledges that Marqi will incur certain costs in the course of implementing services pursuant to the Approved Statement of Work. If the Client terminates an Approved Statement of Work for any reason other than material breach by Marqi, and termination occurs within one year from the Effective Date, then Marqi shall be entitled to a minimum fee equal to one (1) year of the agreed upon fees as detailed in the Approved Statement of Work. In addition to the minimum fee, the Client also agrees to pay all Additional Services fees for services that have been provided by Marqi. At all times, fees for previously provided services are due on the termination date or the due date of the final invoice

4. Representations and Acknowledgements

4.1. Marqi acknowledges that:

4.1.1. it has the power and authority to enter into and perform these General Terms and applicable Approved Statement of Work; and

4.1.2.  its Services and Deliverables will be prepared, completed and performed by trained, experienced and qualified personnel with reasonable skill, care and diligence in accordance with the applicable professional standards recognized by Marqi’s profession and the General Terms of this Master Agreement.

4.2. Client acknowledges that:

4.2.1.  It has the power and authority to enter into and perform these General Terms and any applicable Approved Statements of Work;

4.2.2.  No action, claim or charge has been filed against Client, and no person has threatened to file any such action, claim or charge, which may have any material adverse effect on the subject matter of these General Terms or any applicable Approved Statement of Work or on Client’s ability to perform its obligations under these General Terms or any applicable Approved Statement of Work;

4.2.3.  Client is not insolvent and will not be rendered insolvent by any of the transactions contemplated by these General Terms or any applicable Approved Statement of Work.

4.3. Client will notify Marqi as soon as possible of any bankruptcy, insolvency, moratorium, or other proceeding pending against them that may affect the enforcement of creditors’ rights.

4.4. Client understands that Marqi recommends that all of its Clients seek advice from appropriate legal, accounting and other qualified experts with regard to related legal, tax and accounting matters prior to acting on any information provided by Marqi. Client agrees that Marqi does not provide legal, accounting or tax advice and is not liable for failure to provide the same.

4.5. Client acknowledges that Marqi is entitled to rely upon all information necessary for it to carry out its duties hereunder that is provided by Client, Client’s representatives, or Client’s other service providers without independent verification by Marqi. Client represents that all such information, including information effecting taxes and tax status, provided to Marqi is and shall be true, correct and complete in all material respects. Client agrees to promptly notify Marqi in writing of any material change in the information provided to Marqi and to promptly provide any such additional information as may be reasonably requested by Marqi.

5. Term and Termination:

5.1. Term: This Master Agreement and Approved Statements of Work shall be in effect from the Effective Date and will automatically renew on an annual basis unless otherwise terminated by either Party.

5.2. Termination: The Parties may terminate an Approved Statement of Work without penalty upon providing sixty (60) days advance written notice to the other Party. On the termination of the agreement, Marqi will have no obligation to recommend or take any action with regard to the Services and Deliverables outlined in the Approved Statement of Work but will cooperate with the Client to facilitate the orderly transition of Services and Deliverables to a new provider. Such termination will not, however, affect the liabilities or obligations of the Parties arising from transactions initiated prior to such termination, and such liabilities and obligations shall survive any expiration or termination of this Master Agreement and Approved Statements of Work.

5.3. Termination due to Insolvency: Parties shall have the right, but not the obligation, to unilaterally terminate this Master Agreement immediately based on the insolvency of the other Party, by a proceeding by or against the Party seeking to adjudicate either a bankruptcy or insolvency, or seeking liquidation, winding up, reorganization arrangement, adjustment, protection or relief under any law relating to bankruptcy, insolvency, reorganization of relief of debtors, or seeking the entry of an order for relief or the appointment of a receiver trustee or other similar official.

6. Limitation of Liability: Except with regard to its confidentiality or indemnification obligations hereunder, (1) in no event shall either Party be liable to one another or any third party for any special, incidental, indirect, remote, speculative or consequential damages whatsoever (including, without limitation, damages for loss of business profits, business interruption, or less of business information arising from its performance or failure to perform under these General Terms) and (2) in no event will either Party’s entire liability under these General Terms and any applicable Approved Statement of Work exceed the amount paid to Marqi by Client pursuant to the applicable Approved Statement of Work. 

7. Indemnification:

7.1. Each Party shall indemnify and hold harmless the other Party, its Affiliates, directors, officers, employees, and agents from and against all losses, liabilities, judgments, awards, settlements, damages, fines, injuries, penalties, and costs (including legal fees and expenses) to or in favor of others and all claims, causes of action and suits by others, including without limitation employees, subcontractors or agents of the indemnified Party and its Affiliates including personal injury (including death) or real and/or tangible property damage, (collectively, “Losses”)  arising out of their own negligent acts or omissions under this Agreement or acts or omissions of their employees, contractors or agents. 

7.2. Each Party shall indemnify and hold harmless the other Party, its Affiliates, directors, officers, employees, and agents from and against all Losses arising from (i) any breach of any representation or warranty set forth in this Agreement, and/or (ii) any breach of its information security and confidentiality obligations set forth in this Agreement and/or (iii) any claim that the other Party or its Affiliates’ use or possession of any or all Services or other related deliverables, or the exercise by the non-breaching Party of its rights granted under this Agreement, infringes, misappropriates or violates any Intellectual Property Rights.

7.3. At the request of the indemnified Party from time to time after any such claims, the indemnifying Party shall at its sole expense defend, with counsel reasonably acceptable to the indemnified Party, all claims, suits or proceedings arising out of the foregoing.  The indemnifying Party shall be notified promptly of any such claims, suits or proceedings in writing and, if requested to defend said action, given full and complete authority, information and assistance for the defense of same, provided, however, the indemnifying Party shall have no authority to enter into any settlement or compromise on behalf of the indemnified Party without the prior written consent of the indemnified Party, which consent shall not be unreasonably withheld. In all events, the indemnified Party shall have the right to participate in the defense of any proceedings with counsel of its own choosing, at its expense.

7.4. All provisions concerning indemnification and liability survive the termination of this agreement.

8. Information Security and Confidentiality:

8.1. Any Information, whether or not protected by a patent, copyright and/or trade secret that has been provided orally or in writing by the disclosing Party or any of its Affiliates to the receiving Party pursuant to this Master Agreement (hereinafter “Confidential Information”) shall be treated by the receiving Party as being the proprietary information of the disclosing Party, and shall be held in strict confidence by the receiving Party.  All financial, business and strategic data pertaining to the disclosing Party and its affiliates, and all other data, information and/or records of or pertaining to the disclosing Party’s and its affiliates’ customers, including but not limited to names, addresses, telephone numbers, account numbers, account and transaction information, customer lists and pricing information and any other “Non-Public Information” as defined in the Gramm-Leach-Bliley Act, 15 U.S.C. 6801 et seq., shall be deemed Confidential Information of the disclosing Party. Such information pertaining to disclosing Party’s customers shall remain at all times during and after the term of this Master Agreement the exclusive property of the disclosing Party.

8.2. With respect to all Confidential Information, the receiving Party shall not (i) provide or make available the Confidential Information in any form to any person other than those employees or contractors of the receiving Party who have a need to know such Confidential Information in order for the receiving Party to exercise its rights or perform its obligations under this Master Agreement; (ii) reproduce Confidential Information except for use reasonably necessary for the receiving Party to exercise its rights and perform its obligations under this Master Agreement; and (iii) exploit or use Confidential Information for any purpose other than as required for the receiving Party to exercise its rights and perform its obligations under this Master Agreement.  In the event that the receiving Party is specifically authorized by this Master Agreement to disclose any Confidential Information to a third party, then the receiving Party shall require the third party to execute a Confidentiality Agreement the terms of which shall be no less restrictive than the terms set forth herein. 

8.3. Notwithstanding the foregoing, “Confidential Information” shall not include information that was: in the public domain prior to the receipt of same by the receiving Party; in the receiving Party’s possession and/or known to the receiving Party prior to its receipt hereunder as evidenced  by written documentation and was not acquired directly or indirectly from the disclosing Party; received by the receiving Party from a third party where the receiving Party was without an obligation of secrecy with respect thereto and was not acquired directly or indirectly from the disclosing Party; and/or independently developed by the receiving Party without use of access or reference to, or any benefit of, the disclosing Party’s Confidential Information.

8.4. Each Party shall notify the other Party immediately of any unauthorized access, possession, use, or knowledge, or attempt thereof, of Confidential Information and agrees to mitigate the impact of such an event.  Each Party shall promptly provide the other Party with full details of any such event and use all available efforts to prevent a recurrence of any such event.

8.5. In the event that a subpoena or other legal process in any way concerning the Confidential Information is served upon the receiving Party, the receiving Party shall notify the disclosing Party immediately upon receipt of such subpoena or other legal process and shall cooperate with the disclosing Party in any lawful effort by the disclosing Party to contest the legal validity of such subpoena or other legal process.

8.6. The Parties agree that monetary damages will not be an adequate remedy if this Section regarding Confidential Information is breached and therefore, a disclosing Party shall, in addition to any other legal or equitable remedies, be entitled to seek injunctive relief against any breach or threatened breach of this Section.

9. Intellectual Property:

9.1. The Approved Statement of Work shall specify the type of Services and Deliverables to be provided, and ownership rights in the Deliverables to the extent required by either Party.

9.2. Subject to the General Terms of this Master Agreement in no event shall Marqi be precluded from independently developing for itself, or for others, whether in tangible or non-tangible form, anything that is competitive with, or similar to, any of the Deliverables provided that: (i) Marqi does not use or infringe Client Intellectual Property Rights; and/or (ii) such Deliverables do not contain any of Client’ Confidential Information.  In addition, Marqi shall be free to use its general knowledge, skills and experience, and any ideas, concepts, know-how, and techniques that are acquired or used in the course of providing the Services, provided that Marqi does not breach its obligations with respect to Client’ Confidential Information or otherwise use or infringe Client’ Intellectual Property Rights.

9.3. The parties agree not to use the other Party’s name in any release or printed form without prior written authorization to do so.

10. Independent Contractor: Marqi, including its employees or agents, is an independent contractor and is not to be considered an employee or agent of Client for any purpose.  This Master Agreement does not obligate Client to use Marqi exclusively or engage Marqi to provide any Services and does not obligate Marqi to accept offers to provide Services, exclusively or otherwise.

11. Assignment and Successors: Neither Party may assign its rights or delegate its duties hereunder, whether by operation of law or otherwise, without the written notification of the other Party, which consent shall not be unreasonably withheld.

12. Governing Law: This Master Agreement and Approved Statements of Work will be interpreted under the laws of the state of Massachusetts, Michigan or New York, whichever location is closest to Client’s Address, without references to the principles of conflict of laws, provided that there is no inconsistency with federal laws. Each Party irrevocably agrees that any action, suit or other legal proceeding against them shall be brought in a court of the Commonwealth of Massachusetts or the State of New York.  Each Party irrevocably submits to and accepts such jurisdiction and waives any objection (including any objection to venue, enforcement, or grounds of forum non conveniens) that might be asserted against the bringing of any such action, suit or other legal proceeding in such court.

13. Severability: If any provision of this Master Agreement is adjudged by any court or arbitration board of competent jurisdiction to be invalid or unenforceable, then such provision shall be modified to the extent possible and necessary to preserve the original intentions of the Parties, and the validity or enforceability of the remaining provisions shall not in any way be affected or impaired thereby.

14. Notices: All notices relating to the Master Agreement shall be delivered electronically or by mail to the Parties’ respective addresses and authorized contacts. Notices sent to Marqi by mail should be addressed to: Marqi Health Inc, 4570 Executive Dr., San Diego, California 92121.

15. Force Majeure: Neither Party shall be liable for any failure to perform any of its obligations under this Master Agreement during any period in which such failure to perform arises directly or indirectly out of an act of nature, acts of the public enemy, embargoes, insurrection, riot, or the intervention of any government authority (collectively, “Excusable Cause”), provided that the Party so delayed immediately notifies the other Party of such delay in writing and uses its best efforts to minimize the adverse effect of such events.  If such failure by Marqi exceeds or is reasonably likely to exceed a cumulative period of 30 days, Client may terminate this Agreement, or any Statement of Work, immediately without liability.

16. Remedies: Unless otherwise expressly provided, all rights, remedies, powers and privileges conferred under this Master Agreement upon Marqi and Client shall be cumulative and shall not be deemed to exclude any other right that either Party may have at law or in equity.

17. Binding on Successors: This Master Agreement and Approved Statements of Work shall be binding upon and inure to the benefit of the Parties and their successors and assigns as permitted by the General Terms.