Platform Terms of Service

Welcome to Opticare!

Opticare Solutions LLC ("Opticare") is the owner and operator of the Opticare System that enables healthcare providers to authorize, transmit, and monitor physician-ordered, patient-delivered non-prescription product recommendations and streamline access to such products for patients through associated e-commerce fulfillment workflows (the "Platform", which includes the underlying technology, and the content that is made available thereon, and as may be modified and updated from time to time).

These Platform Terms of Service ("Terms") govern the use of and access to the Platform and services provided in connection with the Platform and apply to the following persons:

1. customers of Opticare that have entered into any written or electronic order directly with Opticare that incorporates these Terms by reference ("Order Form"); and
2. end customers of Opticare that access the Platform through an Opticare partner organization ("Partner") pursuant to an agreement between Opticare and such Partner ("Partner Agreement").

The customers described in (a) and (b) above are each a "Customer". For clarity, these Terms do not apply to customers of Opticare that have executed a separate Master Services Agreement directly with Opticare.

By executing an Order Form, clicking "I Accept" or otherwise electronically accepting these Terms, accessing or using the Platform or authorizing or permitting any User to access or use the Platform: (1) Customer agrees to be bound by these Terms as of the date of such acceptance or the date of access to or use of the Platform (as applicable); and (2) the individual accepting these Terms represents and warrants that it has the authority to enter into these Terms on behalf of Customer. If Customer does not agree to be bound by these Terms, then Customer may not access or use the Platform.

In the event of any inconsistency between these Terms and a Partner Agreement, the Partner Agreement shall prevail.

In the event of any inconsistency between these Terms and an Order Form, the Terms shall prevail except that the Order Form will take precedence over the Terms if the Order Form expressly states which sections of these Terms are intended to be superseded by the Order Form.

1. Definitions

Capitalized terms have the meanings set forth below or as otherwise defined within these Terms.

2. PLATFORM ACCESS; RESTRICTIONS

2.1 Access

Subject to the terms and conditions of these Terms, Opticare hereby grants to Customer a limited, revocable, non-transferable (except as provided in Section 12.2), non-exclusive right during the Order Term to enable its Users to access and use the Platform and accompanying Documentation solely for such Users' internal business purposes. Customer shall be responsible for each User's compliance with these Terms. Customer will immediately notify Opticare if Customer becomes aware of any material breach of any provision of these Terms by any User.

2.2 Account; Access Credentials

To access the Platform and associated Services, Customer may be required to create a user account ("Account"). Customer is solely responsible for any activity that occurs through its Account. Customer agrees to provide Opticare with complete, accurate, and updated information for its Account at all times. Customer represents and warrants that all information that it submits upon creation of its Account is accurate and truthful. Opticare will provide each User with access to and use of the Platform through unique and confidential Account credentials. These credentials cannot be shared or used by more than one individual User to access the Platform. Customer is responsible for ensuring that Users maintain the confidentiality of all Account credentials and is solely responsible for all activities that occur under these Users' Accounts. Customer will promptly notify Opticare of any actual or suspected unauthorized use or access to its or any User's account. Opticare has the right to disable any username, password or other identifier, whether chosen by Customer or provided by Opticare, at any time in its sole discretion for any or no reason, including if, in Opticare's opinion, Customer has violated any provision of these Terms.

2.3 Restrictions

Customer shall not, and shall require that any User does not: (a) allow any third party to access the Opticare Technology except as expressly allowed herein; (b) sublicense, lease, sell, resell, rent, loan, distribute, transfer or otherwise allow the use of the Opticare Technology for the benefit of any unauthorized third party; (c) reverse engineer, decompile, disassemble, or otherwise derive or determine or attempt to derive or determine the source code (or the underlying ideas, algorithms, structure or organization) of the Opticare Technology, except as permitted by law; (d) use any automated software, devices, or other processes to "scrape," extract, or download content or data from the Opticare Technology (other than Customer Data) without the prior written consent of Opticare; (e) use the Opticare Technology in a manner which may adversely affect the use of thereof or damage, corrupt, tamper with or infect the Opticare Technology, or attempt to probe, scan, or test vulnerability of the Opticare Technology without the prior written consent of Opticare; (f) attempt to access the Opticare Technology through any unapproved interface; (g) modify, copy, or make derivative works based on any part of the Opticare Technology; (h) access or use the Opticare Technology to build a similar or competitive product or service or otherwise engage in competitive analysis or benchmarking; (i) remove, alter, or obscure any proprietary notices (including copyright and trademark notices) of Opticare or its licensors on the Opticare Technology or any copies thereof; (j) publicly display, distribute or disseminate the Third-Party Content or any other information or data provided on the Platform; or (k) otherwise use the Opticare Technology in any manner that exceeds the scope of use permitted under Section 2.1 (Access) or in a manner inconsistent with applicable law, the Documentation, the Order Form, or these Terms.

2.4 Suspension

Opticare reserves the right to suspend Customer's or any User's access to the Platform for any failure to comply with Section 2.3 (Restrictions). Opticare may also suspend Customer's or any User's access to all or any part of the Platform, if Opticare believes, in its good faith and reasonable discretion, that Customer's or any User's use of the Platform poses a risk to the security or integrity of Opticare's systems, interferes with Opticare's ability to reliably provide the Platform to other customers, or may subject Opticare to liability. Opticare shall use reasonable efforts to notify Customer prior to suspension and shall restore access to Customer or the applicable User as soon as such risks no longer apply. Customers that access the Platform through a Partner may also have their access suspended or terminated in the event of non-payment or a breach by Partner of the Partner Agreement.

2.5 Support

Subject to the terms and conditions of these Terms, Opticare will exercise commercially reasonable efforts to: (a) provide support to Customer and Users for the use of the Platform; and (b) keep the Platform operational and available to Customer and Users, in each case in accordance with its standard policies and procedures. Opticare's support obligation is limited to Customer only and is not obligated to provide any support directly to any User.

2.6 Third-Party Services

Certain features of the Platform may use or integrate Third-Party Services. In using such Third-Party Services, Opticare may share Customer Data with providers of such Third-Party Services. Third-Party Services are not under the control of Opticare and Opticare is not responsible for any Third-Party Services.

2.7 Third-Party Content

Opticare may make available certain Third-Party Content on the Platform. Such Third-Party Content is out of the control of Opticare and is provided by Opticare for informational purposes only. Customer shall only use, and procure that each User only uses, the Third-Party Content in support of the specific patient to which such Third-Party Content is provided. Customer shall not, and shall ensure that no Users, aggregate, share, disclose, or distribute any Third-Party Content, including but not limited to, use for any AI training, machine learning or content generation purposes. Access to such Third-Party Content may also be subject to additional terms and conditions. The Third-Party Content is owned by third parties and such third parties may enforce their rights directly against Customer or any User for any breach of this Section 2.7 (Third-Party Content).

2.8 Supplemental Terms

Customer's or its Users' use of certain features and functionality of the Platform may be subject to additional terms ("Supplemental Terms"). Such Supplemental Terms will be presented to Customer for acceptance when Customer signs up to use the supplemental features or functionality on the Platform. If these Terms are inconsistent with the Supplemental Terms, then the Supplemental Terms control with respect to such supplemental features or functionality.

3. CUSTOMER RESPONSIBILITIES

3.1 Customer Data

As between the parties, Customer will have the sole responsibility for the accuracy, quality, legality, reliability, and appropriateness of all Customer Data (including all recommendation configuration inputs, provider authorizations, and order-related information) and Opticare is not responsible for verifying any of the foregoing. Customer is responsible for obtaining, and ensuring that all Users obtain, from third parties (including all patients) all necessary consents, licenses, authorizations and rights, including in accordance with all Applicable Privacy Laws, to share Customer Data with Opticare and for Opticare and its suppliers to use and disclose the Customer Data in any format for the purposes of providing the Platform and the Services and exercising the rights set forth in these Terms. This includes, without limitation, and Customer hereby consents to, Opticare sending provider-authorized recommendations, order-related communications, and other requests on Customer's behalf, and otherwise contacting and communicating with, patients, healthcare systems, Healthcare Providers, authorized delegates, ecommerce and fulfillment partners, customer support channels, and other third parties involved in fulfillment on Customer's behalf, whether via digital integration, e-mails, faxes, text messages, or telephone calls, including through the use of Third-Party Services. Customer shall ensure that the Customer Data will not: (a) be deceptive, inaccurate, misleading, dilutive, defamatory, obscene, offensive, pornographic, unlawful, or otherwise objectionable; (b) knowingly contain any viruses, worms or other malicious computer programming codes intended to damage the Platform; (c) violate or misappropriate the intellectual property, privacy, or other rights of any third party or violate any Applicable Privacy Laws; or (d) contain any promotional content.

3.2 Recommendations and Orders

As part of the Platform and the Services, Opticare provides a platform for Healthcare Providers to authorize and manage non-prescription product recommendations and related fulfillment workflows on behalf of patients. Healthcare Provider users must submit complete and accurate information that conforms to the specifications made available through the Platform. Use of the Platform for the purposes of recommendations and Orders is limited to the United States of America only. Opticare does not provide any medical advice, legal advice, or representations regarding medical issues associated with Customer or Users, or services offered by Customer, including but not limited to any compliance obligations or steps necessary to comply with any state or federal regulations. Customer is responsible for ensuring each User complies with these Terms, applicable law, professional standards, and licenses in using the Platform and shall be liable for all acts and omissions of any User as relates to their access and use of the Platform. As between the parties, Customer is solely responsible for ensuring that a given recommendation or Order issued by a User is correct and appropriate for the applicable patient, and for any death, personal injury or damage that results from the use of any product obtained through the Platform. Customer shall not, and shall ensure its Users do not, provide access to the Platform (whether through sharing its username and password or otherwise) to any unauthorized third party or User. Access to the Services for the purposes of authorizing recommendations and Orders shall be strictly limited to Healthcare Providers who are properly licensed, registered or authorized and are not included in the CMS preclusion list or otherwise excluded from participation in federal health care programs. Customer, and not Opticare, is responsible for the verification of any such credentials. Opticare merely provides technology that enables the transmission of provider-authorized recommendations and order-related information to ecommerce and fulfillment parties and any disclosures are made by Opticare acting on behalf of Customer or a User.

3.3 Transmissions

When Customer or Users request that Opticare makes a submission to ecommerce platforms, payment processors, fulfillment vendors, logistics providers, product vendors, or other third parties on Customer's or a User's behalf, Customer and Users authorize Opticare to substitute contact information provided by Customers and/or Users with Opticare contact information so that confirmations, determinations, or other responses will be delivered to Opticare and delivered as part of the Services. Customer also authorizes Opticare and its suppliers to accept other transmissions that are unrelated to the requests that Customer or Users have submitted using the Platform via Opticare's substituted contact information that a third party may otherwise send to Customer or User. Opticare will use commercially reasonable efforts to forward such unrelated transmissions to Customer or User if Opticare is able to determine, with reasonable certainty, that they are intended for Customer or User. However, Opticare disclaims any responsibility for failure to deliver to Customer or the User any transmissions which a third party transmits to Opticare that are unrelated to the requests Customer or a User submits while using the Services and which Opticare has delivered on Customer or a User's behalf.

3.4 Fulfillment

Customer acknowledges that the Platform allows Customer to present patients with product access, fulfillment, and delivery options in connection with provider-authorized non-prescription product recommendations. In using such Platform features, Customer acknowledges that Opticare may hold an Order in escrow or pending state until such time that the patient completes the applicable confirmation or checkout steps required to initiate fulfillment, and Customer authorizes Opticare to provide such features on its behalf as its agent. Opticare retains full discretion in how fulfillment options are presented and positioned to patients, subject to applicable law and any configurations agreed with Customer.

3.5 Compliance

Customer and each User shall comply with applicable law in using the Opticare Technology. Opticare may, but has no obligation to, monitor Customer's or its Users' use of the Platform and the Services. Customer will reasonably cooperate with, and make available to, Opticare (and its suppliers) information reasonably requested by Opticare (such as Healthcare Provider names and NPIs) for the purpose of reviewing and verifying Customer's compliance with these Terms, including for the purposes of verifying Customer's appropriate use of the Platform and this Section 3 (Customer Responsibilities). Each party agrees to cooperate with any regulatory investigations, or examinations related to these Terms that involve a party to these Terms.

3.6 Cooperation

Customer will reasonably cooperate with Opticare in the performance of any Services. Such cooperation may include (a) the appointment of point(s) of contact for all matters related to the Services, (b) the provision of reasonable remote network access to those Customer systems that utilize the Services, and (c) making suitably trained personnel with sufficient knowledge of Customer's systems available during normal business hours. In order to perform the Services, Opticare may be required to have access to certain Customer software or other material of Customer or Customer's suppliers ("Customer Material") and Opticare may use such Customer Material in the performance of the Services.

4. Communications

By using the Services, you consent to receive electronic communications from Opticare, including emails, account notices, and service updates. These communications satisfy any legal requirement that notices be in writing.

4.1 Healthcare-Related Text Communications

By using the Services, you acknowledge that Opticare may send you healthcare-related text messages on behalf of your healthcare provider or health system in connection with:

• Provider-authorized recommendations
• Care coordination
• Order fulfillment
• Related healthcare operational communications

These messages are not marketing or promotional communications and are sent in reliance on consent obtained by your healthcare provider, as permitted by applicable law.

You may opt out of receiving text messages at any time by replying STOP to any message.

Reply HELP for assistance or contact support@mandatamd.com.

Message and data rates may apply. Message frequency varies.

Carriers are not liable for delayed or undelivered messages.

5. Fees and Payment

5.1 Application

This Section 5 (Fees and Payment) only applies to Customers that have entered into an Order Form directly with Opticare. Payment for access to the Platform and the Services for Customers through a Partner are governed by the Partner Agreement.

5.2 Fees

Customer will pay Opticare the Fees. Fees are non-refundable (except as expressly set out in these Terms or the Order Form) and are not eligible for set off. Customer will pay the Fees within thirty (30) days of receipt of an invoice.

5.3 Payment

Customer shall pay for all Fees under its Account in accordance with the prices and billing terms in effect at the time an order is made. By providing Customer's payment information, Customer agrees that Opticare is authorized to immediately invoice Customer's Account for all Fees and charges due and payable to Opticare hereunder and that no additional notice or consent is required. Customer shall immediately notify Opticare of any change in Customer's billing address, debit card, credit card, or other information used for payment hereunder by updating Customer's Account information. By using the Platform and associated Services, Customer hereby consents and authorizes Opticare to share any information and payment instructions Customer provides to complete Customer's transactions. Please contact support@mandatamd.com regarding any billing disputes.

5.4 Third-Party Payment Processor / Ecommerce Platform

If Customer makes a purchase, Customer may be required to provide its payment details and any additional information required to complete the order directly to Opticare's third-party ecommerce platform and/or payment processor (each, a "Third-Party Payment Processor"). Customer agrees to be bound by the Third-Party Payment Processor's privacy policy and terms of service and hereby consents and authorizes Opticare and the Third-Party Payment Processor to share any information and payment instructions Customer provides with one or more Third-Party Payment Processor(s) to the minimum extent required to complete the applicable transactions. Please note that online payment transactions may be subject to validation checks by Opticare's Third-Party Payment Processor and Customer's card issuer, and Opticare is not responsible if Customer's card issuer declines to authorize payment for any reason. For Customer's protection, Opticare's Third-Party Payment Processor may use fraud prevention protocols and industry standard verification systems to reduce fraud, and Customer authorizes it to verify and authenticate Customer's payment information. Customer's card issuer may charge Customer an online handling fee or processing fee. Opticare is not responsible for this. In some jurisdictions, Opticare's Third-Party Payment Processor may use third parties under strict confidentiality and data protection requirements for the purposes of payment processing services.

5.5 Taxes

All Fees owed by Customer in connection with these Terms are exclusive of, and Customer will pay, all sales, use, excise, and other taxes and applicable export and import fees, customs duties, and similar charges that may be levied upon Customer in connection with these Terms, except for employment taxes and taxes based on Opticare's income.

5.6 Late Payment

Payments by Customer that are past due will be subject to interest at the rate of one and one-half percent (1.5%) per month (or, if less, the maximum allowed by applicable law) of that overdue balance. Opticare reserves the right (in addition to any other rights or remedies Opticare may have) to suspend Customer's access to the Platform if any Fees are more than thirty (30) days overdue until such amounts are paid in full. Customer will maintain complete, accurate, and up-to-date Customer billing and contact information.

5.7 Changing Fees and Charges

Opticare may at any time and from time to time, in its sole discretion, change the Fees and charges, or add new Fees and charges, in relation to the Platform or any of the Services. Opticare may also at any time and from time to time, in its sole discretion, change or remove any of the pricing models in place.

6. PROPRIETARY RIGHTS

6.1 Opticare Technology

Opticare retains all right, title, and interest in and to the Opticare Technology, including any enhancements, improvements, or derivatives thereto. Other than as expressly set forth in these Terms, no license or other rights in the Opticare Technology are granted to the Customer.

6.2 Customer Data and Material

Customer retains all right, title, and interest in and to the Customer Data and Customer Material. Customer hereby grants to Opticare and its suppliers a non-exclusive, worldwide, royalty-free and fully paid-up license to access and use Customer Data and Customer Materials: (a) during the Term to provide the Platform and any accompanying Services to Customer as set forth in these Terms, and (b) during the Term and thereafter, for Opticare's lawful business purposes, including to operate, support, secure, and improve the Opticare Technology and related products and services; and to perform data analytics and reporting in connection with use of the Platform.

Opticare may create and use aggregated and/or de-identified data derived from Customer Data ("Aggregate Data") solely for Opticare's internal lawful business purposes, including product improvement, benchmarking, analytics, quality assurance, and security. Opticare will not sell Aggregate Data.

6.3 Performance Data

Opticare and its suppliers may collect and generate Performance Data to operate, improve, analyze, and support the Opticare Technology and for other lawful business purposes.

6.4 Feedback

Customer or its Users may give feedback to Opticare on the use, operation, and functionality of the Platform, including information about operating results, known or suspected bugs, errors, or compatibility problems, suggested modifications, and user-desired features, functionality, or workflows (collectively, "Feedback"). Opticare may use and incorporate such Feedback to improve the Opticare Technology without restriction or payment to Customer.

7. Data Security

7.1 Data Security

During the Term, Opticare will implement and maintain commercially reasonable administrative, technical, and physical measures designed to safeguard against unauthorized access to or use or disclosure of Customer Data on the Platform.

7.2 Business Associate

In providing the Platform and the Services hereunder, Opticare may be a "business associate" (as defined at 45 C.F.R. 160.103) of Customer, and as such, in those instances where PHI is received by Opticare, for purposes of complying with HIPAA, the parties agree that the terms of the BAA shall apply and is hereby incorporated herein. In the event of a conflict between the terms of these Terms and the BAA, the BAA shall govern and control solely to the extent it relates to any PHI. To the extent that the Partner Agreement contains a business associate agreement, Opticare's business associate agreement with the Partner shall apply, unless agreed otherwise in the Partner Agreement.

8. Confidential Information

8.1 Restrictions

As a recipient of Confidential Information, each party agrees that it will (a) use the Confidential Information of the disclosing party only as set forth in these Terms, (b) not disclose to any third party any Confidential Information of the disclosing party, except as expressly permitted under these Terms, (c) limit access to the Confidential Information of the disclosing party to its employees and contractors who have a need to know such information to use or provide the Platform, and ensure that such employees or contractors are bound by confidentiality obligations at least as protective as those contained herein, and (d) protect the Confidential Information of the disclosing party from unauthorized use, access, or disclosure in a reasonable manner.

8.2 Exclusions

The restrictions on use and disclosure of Confidential Information set forth above will not apply to any Confidential Information that (a) is or becomes generally known and available to the public through no act or omission of the receiving party, (b) was in the receiving party's lawful possession without confidentiality restrictions prior to disclosure by the disclosing party, (c) is received without confidentiality restrictions from a third party with the right to make such a disclosure, or (d) is independently developed by the receiving party. The receiving party may disclose Confidential Information to the extent that such disclosure is required by law or by the order of a court or similar judicial or administrative body, provided that the receiving party will, if permitted by law, provide advance notice of the disclosure to the disclosing party and cooperate so that the disclosing party has the opportunity to obtain appropriate confidential treatment for such Confidential Information.

9. Term and Termination

9.1 Term

These Terms shall apply upon Customer's acceptance and shall continue for as long as Customer or its Users use the Platform or maintain an Account. For Customers that have an Order Form directly with Opticare, each Order Form specifies the Initial Term, or if none is specified, an initial term of one (1) year ("Initial Term") and, unless the Order Form specifies that the Order Form will not autorenew, the Order Form will automatically renew for successive one (1) year terms (each a "Renewal Term", and together with the Initial Term, the "Order Term"), unless either party provides no less than thirty (30) days' written notice of its intent to terminate the Order Form prior to the end of the then-current term. Customers that have access to the Platform through a Partner shall have access for the term specified in the Partner Agreement.

9.2 Termination

Either party may terminate these Terms upon written notice if: (a) the other party materially breaches these Terms and does not cure such breach (if curable) within thirty (30) days after written notice of such breach, or (b) the other party: (i) becomes insolvent, (ii) files a petition in bankruptcy that is not dismissed within sixty (60) days of commencement, or (iii) makes an assignment for the benefit of its creditors.

9.3 Termination – Partner Agreement

If Customer is accessing the Platform through a Partner, Opticare reserves the right to suspend or terminate Customer's access to the Platform and remove any Customer Content if: (a) Opticare is notified by the Partner of Customer's failure to pay amounts due to the Partner; (b) the Partner fails to pay any amounts due to Opticare pursuant to the Partner Agreement with respect to Customer's access to the Platform; (c) the Partner Agreement expires or terminates; or (d) if Customer or a User breach these Terms. Customer's sole recourse with respect to any such suspension or termination shall be against Partner.

9.4 Termination for Legal Cause

Opticare may terminate these Terms with immediate effect: (a) following any change to or enactment of any applicable law that renders any material portion of the Platform illegal or otherwise has a material adverse effect upon a party's ability to exercise its rights or perform its obligations under these Terms; or (b) if Opticare is required or directed to do so by any governmental authority; provided, however, that, unless prohibited by applicable law or such governmental authority, prior to terminating these Terms, Opticare will first engage Customer in good faith negotiations for at least thirty (30) days to make mutually agreeable changes to the Platform to address such illegality, effect, or direction giving rise to such termination right and thereafter the parties will take reasonable best efforts to make such changes, and will terminate these Terms only if such negotiations are unsuccessful in reaching an agreement on such changes.

9.5 Effect of Termination

Upon the expiration or termination of these Terms for any reason, the rights and licenses granted to Customer hereunder will immediately terminate, and Customer will cease use of the Platform and Documentation. Termination of these Terms will not relieve Customer of its obligation to pay all Fees (if applicable) that accrued prior to such termination. Each party will return to the other or destroy all property (including any Confidential Information) of the other party, except to comply with Section 9.6 (Data Export) below. Notwithstanding the foregoing, each party may retain the Confidential Information of the other if it is required to keep for compliance purposes under applicable law or in accordance with its standard backup procedures, subject to the requirements in Section 7 (Data Security) and Section 8 (Confidential Information). Sections 1 (Definitions), 2.3 (Restrictions), 2.6 (Third-Party Services), 2.7 (Third-Party Content), 3 (Customer Responsibilities), 5 (Fees and Payment), 6 (Proprietary Rights), 8 (Confidential Information), 9.5 (Effect of Termination), 9.6 (Data Export), 10.1 (General Disclaimer), 10.4 (No Professional Advice), 11 (Indemnity), 12 (Limitation of Liability) and 13 (General Provisions) shall survive the expiration or termination of these Terms.

9.6 Data Export

[INTENTIONALLY LEFT CONSISTENT WITH SOURCE STRUCTURE: insert Opticare's export mechanism, if any, or state "not applicable" if the Platform does not provide export functionality.]

10. Warranty; Disclaimer

10.1 Customer Warranties

Customer represents and warrants that: (a) it has, and its Users have, all of the rights, authorizations and consents required to provide the Customer Data to Opticare for the purposes and rights described herein, including as required under applicable law; (b) only Healthcare Providers or their authorized delegates shall authorize recommendations or Orders through the Platform; (c) all Users are properly licensed, registered or authorized under applicable law to perform the applicable professional activities through the Platform; (d) its Users shall not submit inaccurate, incomplete or false information through the Platform; and (e) all Users shall comply with these Terms, applicable law and professional licenses, regulations and standards in using the Platform.

10.2 Ineligible Persons

Each party represents and warrants to the other that neither it nor any of its directors, officers or employees (or Users, in the case of Customer): (a) are currently excluded, debarred, or otherwise ineligible to participate in any federal health care program as defined in 42 U.S.C. Section 1320a-7b(f) ("the Federal Healthcare Programs"); (b) have been convicted of a criminal offense related to the provision of health care items or services and not yet been excluded, debarred, or otherwise declared ineligible to participate in the Federal Healthcare Programs nor been charged or convicted of an offense related to identity theft, credit card fraud or violation of federal or state privacy or security laws, and (c) are under investigation or otherwise aware of any circumstances which may result in such party being excluded from participation in the Federal Healthcare Programs. This shall be an ongoing representation and warranty during the Term, and each party shall immediately notify the other of any change in the status of the representations and warranty set forth in this Section. Any breach of this Section shall give either party the right to terminate these Terms immediately for cause.

10.3 General Disclaimer

Except as expressly provided herein, and to the maximum extent permitted by applicable law: (a) the Opticare Technology is provided "as is" and "as available" and (b) Opticare and its suppliers make no other warranties, express or implied, by operation of law or otherwise, and hereby expressly disclaim any and all other warranties including, without limitation, any implied warranties of merchantability, fitness for a particular purpose, title, or non-infringement. Opticare does not warrant or represent that the Opticare Technology will be free from bugs, uninterrupted, or error-free, or make any other representations regarding the use, or the results of the use, of the Opticare Technology in terms of correctness, accuracy, reliability, or otherwise. OPTICARE MAKES NO WARRANTIES THAT THE INFORMATION AVAILABLE THROUGH THE OPTICARE TECHNOLOGY OR ANY THIRD-PARTY SERVICES ARE CORRECT, COMPLETE, OR CURRENT OR THAT COMMUNICATIONS TRIGGERED THROUGH THE PLATFORM WILL BE TIMELY OR ALWAYS RECEIVED BY THE INTENDED RECIPIENT. ANY RELIANCE ON SUCH INFORMATION IS AT EACH USER'S OWN RISK. OPTICARE RELIES ON THIRD PARTY DATA SUPPLIERS FOR CERTAIN INFORMATION DISPLAYED ON THE PLATFORM, SUCH AS THE THIRD-PARTY CONTENT, AND SUCH THIRD-PARTY CONTENT MAY BE INACCURATE, INCOMPLETE, OR OUT OF DATE AND OPTICARE MAKES NO GUARANTEE WITH RESPECT TO SUCH THIRD-PARTY CONTENT. Opticare is not liable for the conduct of third parties, including any Third-Party Service or Third-Party Content. IN NO EVENT WILL OPTICARE BE RESPONSIBLE OR LIABLE FOR ANY OF THE CUSTOMER RESPONSIBILITIES SPECIFIED IN SECTION 3 (CUSTOMER RESPONSIBILITIES). CUSTOMER UNDERSTANDS AND ACKNOWLEDGES THAT OPTICARE IS NOT A PHARMACY, MEDICAL PROVIDER, OR PRODUCT MANUFACTURER AND IT MAKES NO WARRANTY AS TO THE QUALITY, SAFETY, OR FITNESS OF ANY THIRD-PARTY PRODUCTS THAT MAY BE PURCHASED OR FULFILLED THROUGH THIRD-PARTY VENDORS OR FULFILLMENT PROVIDERS.

10.4 No Professional Advice

Opticare does not recommend medical treatment or provide any medical, healthcare, or other professional advice. THE PLATFORM, INCLUDING ANY CONTENT THEREIN, IS NOT INTENDED, AND CUSTOMER AGREES NOT TO RELY ON, AND AGREES TO INSTRUCT USERS NOT TO RELY ON THE CONTENT REGARDING ANY PROVIDER-AUTHORIZED RECOMMENDATIONS OR PRODUCTS AS A SUBSTITUTE FOR THE KNOWLEDGE, EXPERTISE, SKILL, VERBAL COUNSELING, PHYSICAL DEMONSTRATION, OR JUDGMENT OF PHYSICIANS OR OTHER HEALTHCARE PROFESSIONALS. THE PLATFORM IS NOT INTENDED TO INTERFERE WITH A HEALTH CARE PROVIDER'S EXERCISE OF INDEPENDENT CLINICAL OR PROFESSIONAL JUDGMENT OR TO INDUCE A HEALTH CARE PROVIDER TO INFLUENCE A PATIENT'S CHOICE OF A PRODUCT IN A MANNER INCONSISTENT WITH APPLICABLE LAW. CUSTOMER ACKNOWLEDGES THE ABSENCE OF A WARNING FOR A GIVEN PRODUCT OR PRODUCT COMBINATION SHOULD NOT BE CONSTRUED TO INDICATE THAT THE PRODUCT OR PRODUCT COMBINATION IS SAFE, APPROPRIATE OR EFFECTIVE IN ANY GIVEN PATIENT. OPTICARE DOES NOT ASSUME ANY RESPONSIBILITY FOR ACTIONS OF CUSTOMER OR USERS WHICH MAY RESULT IN ANY LIABILITY OR DAMAGES DUE TO MALPRACTICE, FAILURE TO WARN, NEGLIGENCE, OR ANY OTHER BASIS.

10.5 Partner Services

IF CUSTOMER IS ACCESSING THE PLATFORM THROUGH A PARTNER, CUSTOMER ACKNOWLEDGES THAT OPTICARE IS NOT RESPONSIBLE FOR ANY ACTS OR OMISSIONS OF SUCH PARTNER, INCLUDING ANY SERVICES OR PRODUCTS PROVIDED BY SUCH PARTNER. OPTICARE DISCLAIMS ANY RESPONSIBILITY OR LIABILITY WITH RESPECT TO CUSTOMER'S FAILURE TO ACCESS THE PLATFORM AS A RESULT OF ANY CONDUCT OR BREACH BY A PARTNER UNDER THE PARTNER AGREEMENT.

11. Indemnity

11.1 By Customer

Customer will defend, indemnify and hold Opticare and its successors, parents, subsidiaries, affiliates, officers, directors, employees, users, and attorneys harmless from and against any and all losses, damages, costs, judgments, liabilities, and expenses (including reasonable attorneys' fees, court costs, and disbursements and costs of investigation, litigation, settlement, judgment, interest, fines and penalties) arising out of or relating to: (a) Customer's or a User's actual or alleged breach of Section 2.3 (Restrictions), Section 2.7 (Third-Party Content) or Section 3 (Customer Responsibility); (b) a breach of Section 10 (Warranty; Disclaimer); or (c) any claim by or on behalf of a patient arising out of a recommendation authorized by Customer or a User or a product obtained in connection with the Platform.

11.2 Procedure

Any party that is seeking to be indemnified under the provision of this Section 11 (the "Indemnified Party") must (a) promptly notify the other party (the "Indemnifying Party") of any third-party claim, suit, or action for which it is seeking an indemnity hereunder (a "Claim"), (b) give the Indemnifying Party the sole control over the defense of such Claim, and (c) reasonably cooperate with the Indemnifying Party at the Indemnifying Party's expense. The Indemnifying Party shall not agree to any settlement that requires the Indemnified Party to admit fault or to take or refrain from taking any action without the Indemnified Party's prior written consent. The Indemnified Party will have the right, but not the obligation, to participate in the defense of all such Claims with counsel of its choice at its cost and expense.

12. Limitation of Liability

TO THE EXTENT PERMITTED BY LAW, IN NO EVENT WILL OPTICARE BE LIABLE FOR SPECIAL, INCIDENTAL, CONSEQUENTIAL, OR PUNITIVE DAMAGES OR LOST PROFITS IN ANY WAY RELATING TO THIS AGREEMENT (INCLUDING ANY EXHIBIT). IN NO EVENT WILL OPTICARE'S AGGREGATE, CUMULATIVE LIABILITY IN ANY WAY RELATING TO THIS AGREEMENT (INCLUDING ANY EXHIBIT) EXCEED THE AMOUNT OF FEES ACTUALLY RECEIVED BY OPTICARE FROM CUSTOMER'S USE OF THE PLATFORM DURING THE TWELVE (12) MONTHS PRECEDING THE CLAIM. THE FOREGOING LIMITATIONS WILL NOT APPLY TO LIABILITIES THAT CANNOT BE LIMITED BY LAW.

13. General Provisions

13.1 Governing Law; Forum

These Terms will be governed by, and all disputes arising under or in connection with these Terms will be resolved in accordance with, the laws of the Commonwealth of Pennsylvania, exclusive of conflict or choice of law rules. Each party agrees that any action, suit, or other proceeding based upon or arising from these Terms will be brought and maintained only in a federal or state court of competent jurisdiction located in Pennsylvania. Each party consents to the mandatory jurisdiction and venue of such courts and waives any right to object to jurisdiction and venue. Notwithstanding the foregoing, nothing will prevent a party from seeking relief in any court of competent jurisdiction for any misuse or misappropriation of that party's intellectual property rights or Confidential Information.

13.2 Assignment; Subcontractors

Neither party may assign these Terms, including any rights or obligations arising hereunder, without the prior written consent of the other, except that either party may assign these Terms without consent of the other party in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets. Any attempted assignment or transfer in violation of the foregoing will be null and void. These Terms will be binding upon each party's respective permitted successors and assigns. Customer agrees that Opticare may subcontract aspects of the Platform or Services to qualified third parties.

13.3 Notices

Any notice under these Terms must be given in writing to the other party. Notices for Customer shall be sent to the email or physical address set forth on the Order Form or otherwise provided by Partner to Opticare (as applicable) and notices for Opticare shall be sent to support@mandatamd.com or via email to support@mandatamd.com. Each party may provide updated addresses to the other party in writing. Notices will be deemed to have been given upon: (a) receipt (or when delivery is refused) if delivered in person or sent by recognized courier service, or (b) delivery if sent by email. To be deemed effective, any email notice of the other party's material breach pursuant to Section 9.2 (Termination) must reference Section 9.2 (Termination).

13.4 Force Majeure

Any delay in the performance of any duties or obligations of either party (except for the obligation to pay Fees owed) will not be considered a breach of these Terms if such delay is caused by a labor dispute, shortage of materials, war, fire, earthquake, typhoon, flood, natural disasters, governmental action, pandemic/epidemic, cloud-service provider outage, or any other event beyond the control of such party (collectively, a "Force Majeure Event"), provided that such party uses reasonable efforts, under the circumstances, to notify the other party of the circumstances causing the delay and to resume performance as soon as possible. If the Platform is unavailable or materially degraded for a continuous period of sixty (60) days due to a Force Majeure Event, either party will have the right to terminate these Terms, and Opticare will refund any amounts previously paid for the Platform attributable to the remainder of the then-current Order Term.

13.5 Customer Marks' Use; Publicity

Opticare may use Customer's name and Customer Marks to identify Customer as a customer on the Platform, and on Opticare's website, social media, and in sales and marketing materials, in the same manner in which it uses the names of its other customers. Opticare will use Customer Marks in accordance with Customer's applicable branding guidelines supplied by Customer, and Opticare may not use Customer's name or Customer Marks in any other way without Customer's prior written consent.

13.6 Relationship of Parties

The parties to these Terms are independent contractors, and no agency, partnership, franchise, joint venture or employee-employer relationship is intended or created by these Terms. Nothing contained in these Terms shall be construed as creating an exclusive relationship between the parties. Opticare may have independent relationships with various different entities involved in the provision of the Platform, including patients, healthcare systems, ecommerce platforms, payment processors, fulfillment and logistics vendors, and product vendors. Nothing in these Terms is intended to limit how Opticare interacts with such third parties independently from the provision of the Platform and Services to Customer.

13.7 Export Laws

Customer shall not use, export, re-export, or transfer, directly or indirectly, any products, services, technologies, or data acquired from Opticare in violation of the U.S. export laws or regulations. Further, each party shall comply with all relevant export laws and regulations of the U.S. ("Export Laws") to assure that neither any deliverable, if any, nor any direct product thereof is (1) exported, directly or indirectly, in violation of Export Laws or (2) intended to be used for any purposes prohibited by the Export Laws, including without limitation nuclear, chemical, or biological weapons proliferation. Customer further represents that (i) Customer is not located in a country that is subject to a U.S. government embargo, or that has been designated by the U.S. government as a "terrorist supporting" country, and (ii) Customer is not listed on any U.S. government list of prohibited or restricted parties.

13.8 Anti-Bribery

Neither Customer nor any of its Users, personnel, directors, affiliates, or officers or any other person acting on their behalf has directly or indirectly made any bribes, rebates, payoffs, influence payments, kickbacks, illegal payments, illegal political contributions, or other payments, in the form of cash, gifts, or otherwise, or taken any other action, in violation of the Foreign Corrupt Practices Act of 1977 or any other anti-bribery or anti-corruption law (collectively, the "Anti-Bribery Laws"). Customer is not, and has not been, the subject of any investigation or inquiry by any governmental body with respect to potential violations of Anti-Bribery Laws. Customer shall immediately notify Opticare of any breach of, suspected breach of, or any investigation into the suspected breach of, the Anti-Bribery Laws by it or any of the aforementioned persons and, upon such notice, Opticare may, in its discretion, immediately terminate these Terms.

13.9 U.S. Government Restricted Rights

If Customer is a government end user, then this provision also applies to Customer. The software contained within the Platform and provided in connection with these Terms has been developed entirely at private expense, as defined in FAR section 2.101, DFARS section 252.227-7014(a)(1) and DFARS section 252.227-7015 (or any equivalent or subsequent agency regulation thereof), and is provided as "commercial items," "commercial computer software" and/or "commercial computer software documentation." Consistent with DFARS section 227.7202 and FAR section 12.212, and to the extent required under U.S. federal law, the minimum restricted rights as set forth in FAR section 52.227-19 (or any equivalent or subsequent agency regulation thereof), any use, modification, reproduction, release, performance, display, disclosure or distribution thereof by or for the U.S. government will be governed solely by these Terms and will be prohibited except to the extent expressly permitted by these Terms.

13.10 Miscellaneous

These Terms, together with the Order Form or Partner Agreement (as applicable) is the entire understanding and agreement of the parties and supersedes any and all previous and contemporaneous understandings. These Terms may be amended by Opticare upon written notice to Customer, provided that any such amendment will not be effective until thirty (30) days after Opticare's provision of such written notice. Following any change, we'll make sure to also change the "Last Updated" date at the top of this page so you can tell if these Terms have changed since your last visit. In the event that any provision of these Terms is held to be invalid or unenforceable, the valid or enforceable portion thereof and the remaining provisions of these Terms will remain in full force and effect. Any waiver or failure to enforce any provision of these Terms on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion. All waivers must be in writing. The headings of Sections of these Terms are for convenience and are not to be used in interpreting these Terms. As used in these Terms, the word "including" means "including but not limited to." The parties to these Terms are independent contractors, and no agency, partnership, franchise, joint venture or employee-employer relationship is intended or created by these Terms. There are no third-party beneficiaries of these Terms. These Terms may be executed in counterparts, which taken together will form one legal instrument.

13.11 Comments, Concerns, and Complaints

All feedback, comments, requests for technical support and other communications relating to the Services should be directed to: support@mandatamd.com