This E3 ENTERPRISE AGREEMENT (this “E3 Agreement”) is made as of the Effective Date specified in the underlying services agreement (“Pharmacy Services Agreement”) between Dragonfly Health Rx, Inc. (“Dragonfly”) and the Client identified in such agreement (“Client”).  If this E3 Agreement is not executed in connection with the contemporaneous execution of the Pharmacy Services Agreement, then the Effective Date shall mean the Client’s first download of the E3 Solution from the applicable app store.  Dragonfly and Client may also be referred to hereunder as a “Party” or collectively as “Parties”.

1. Definitions.

1.1. ”E3 Solution” means the Dragonfly proprietary application (including any and all enhancements, modifications, and updates) as identified in the Product and Service Schedule, as well as any online tools Dragonfly may make available to Client to access Dragonfly’s pharmacy and related systems. 

1.2. ”Pharmacy Services Agreement” means the agreement between Dragonfly and Client pursuant to which Client has engaged Dragonfly to perform certain pharmacy and related services pursuant to the terms and conditions set forth therein.

1.3. “Product and Service Schedule” means the schedule initially attached hereto and/or subsequently executed by the Parties in furtherance of this E3 Agreement, which identifies the elements of the products to be provided and/or the Services to be performed under this E3 Agreement.

1.4. “Services” means those services specifically identified in the Product and Service Schedule to be performed, which may include Subscription Services, Support Services or other services specified therein.

1.5.“Subscription Service” means any Service that is provided to Client on a subscription basis as further described in the Product and Service Schedule.

1.6. “Support Manual” means the documentation that Dragonfly makes generally available to its customers regarding the manner and means by which such customers’ may access and receive Services in connection with this E3 Agreement. 

1.7. “Support Services” means any support provided by Dragonfly with respect to the E3 Solution and/or Third Party App identified in the Product and Service Schedule as applicable and as further described in this E3 Agreement. 

1.8. “Third Party App” means the proprietary application software owned by Third Party Vendors to be supplied by Dragonfly as identified in the Product and Service Schedule or as embedded into the E3 Solution.  If applicable, separate terms and conditions applicable to each Third Party App will be provided in connection with the delivery of each such app. 

1.9. “Third Party Vendors” mean all third parties whose Third Party App is licensed to Client or whose Services are provided to Client hereunder, as applicable.

2. E3 Solution; License.

2.1. License. Subject to the other provisions herein, Client has a limited, personal, non-exclusive, non-sublicensable, non-transferable license solely during the term of this E3 Agreement to use, and permit Authorized Users to use the E3 Solution and the Third Party App, each as expressly specified as being licensed by Client in the Product and Service Schedule, and the associated Dragonfly then-designated user documentation (“Documentation”) (collectively, the “Licensed Materials”), but only (a) in accordance with the Documentation and (b) for Client’s own internal business purposes. Client shall ensure that each Authorized User is made aware of and fully complies with the license and other provisions of this E3 Agreement to the fullest extent it applies to Client and/or Authorized Users. The Licensed Materials are licensed, not sold, to Client.  “Authorized Users” means Client authorized persons in supporting or facilitating Client’s business of providing hospice care. All Authorized Users must download and install the E3 Solution from the applicable “app store” (or via such other electronic means which may be made available by Dragonfly from time to time) and agree to the applicable use, restrictions and permissions associated with the installation and use of the E3 Solution as provided at the time of installation.

2.2. Authorized Users.  Client will be responsible for the assignment and maintenance of usage privileges and settings for, and the prescribing and dispensing activities of, Authorized Users. Such assignment of privileges and settings, and prescribing and dispensing activities, shall be in conformity with applicable laws and regulations, including but not limited to those related to proper licensure of users, as amended from time to time. At Client’s request, Dragonfly will assist Client in setting up the appropriate user privileges and settings; however, Client acknowledges and agrees that as between the parties, it, and not Dragonfly, is solely responsible for the Authorized Users user privileges and settings as well as the prescribing and dispensing activities of Authorized Users. Client shall promptly notify Dragonfly, pursuant to a mutually agreed upon electronic process, of changes (including termination) in the authorization status of any Authorized User since Dragonfly is not  responsible for monitoring Authorized Users’ usage of, or access to, the Licensed Materials.  Dragonfly will promptly deactivate any Authorized User upon receipt of a conforming notice from Client, however, Client acknowledges and agrees that until such time that Dragonfly receives proper notification from Client, such user will continue to have access to the Licensed Materials and any PHI made available in connection therewith.       

2.3. Title/Intellectual Property. The Licensed Materials, and all copies thereof, contain valuable intellectual property rights and are proprietary to Dragonfly or the applicable Third Party Vendor, as the case may be, and title thereto remains with Dragonfly or such Third Party Vendor, as the case may be. Client does not acquire any rights, express or implied, in the Licensed Materials or programs developed by Dragonfly for Client other than those specified in this E3 Agreement. All applicable rights to patents, copyrights, trademarks and trade secrets in the Licensed Materials or any programs developed at Client’s request are and shall remain with Dragonfly or the respective Third Party Vendor. The rights granted by Dragonfly to Client hereunder do not include the right to develop derivative works to the Licensed Materials. 

2.4. Limitations. Client shall not, nor cause or permit any third party to, under any circumstances, (a) distribute, rent, sell, lease, or grant a sublicense or otherwise display, disclose, transfer or make available the Licensed Materials to any third party without the prior written consent of Dragonfly; (b) modify, change, create derivative works from, reverse assemble, reverse compile or reverse engineer the Licensed Materials or otherwise attempt to discover any E3 Solution or Third Party App source code or underlying Confidential Information; (c) remove, efface or obscure any copyright notices, logos or other proprietary notices or legends (whether Dragonfly’s or its licensors) from any Licensed Materials; or (d) copy the Licensed Materials in any form, without the express written consent of Dragonfly. Client shall not use any Third Party App except as part of the E3 Solution.

2.5. E3 Solution Use and Installation.  Client shall use the E3 Solution in accordance with the Documentation and shall promptly install all updates and enhancements of the E3 Solution upon release of same by Dragonfly. 

2.6. Security; Client Environment.  Client shall be solely responsible to secure and protect, and to ensure that the Authorized Users secure and protect, all Client- and Authorized User-owned devices upon which the E3 Solution and Third Party App may be installed. Dragonfly hereby advises Client that Dragonfly undertakes no responsibility or liability to secure or protect any such devices. In addition, Client is solely responsible for procuring, implementing, and maintaining all hardware, software, services (including, without limitation, all Internet access services and other telecommunication services), equipment, technology, data, operating platforms, facilities, systems and tools required or used in connection with Client’s integration, interfacing to and from, use and support of any Licensed Materials (collectively, “Client Platform Products”). Client will be solely responsible for training its Authorized Users in the use of the Client Platform Products, as well as any and all mobile phones and other computing equipment used to access the Licensed Materials.

3. Third Party App.

3.1. Additional Terms.  Client acknowledges that its use of any Third Party App may be subject to additional licensing terms from the applicable Third Party Vendor, and that Client is authorized to use the Third Party App subject to the terms of this E3 Agreement and such additional licensing terms as may be provided from time to time.  In the event of conflict between the terms of this E3 Agreement and any additional licensing terms provided by the applicable Third Party Vendor, such additional licensing terms shall prevail for the applicable Third Party App.

4. Services Generally.

4.1. Scheduling.  Dragonfly agrees to perform and Client agrees to accept the Services, if applicable, subject to the terms of this E3 Agreement. Services will be provided to Client pursuant to the Product and Service Schedule. 

4.2. Training/Implementation Plan.  Client will participate fully in the E3 Solution implementation and training process, including attending any scheduled training sessions, and complying with other Dragonfly instructions regarding the implementation. Dragonfly will not be responsible or liable for any issues resulting from Client’s failure to comply with plan for implementation.

4.3. Client Liaisons.  Client shall test and implement and, thereafter, maintain the Client Platform Products necessary to operate the E3 Solution and Third Party App in accordance with Dragonfly’s applicable system environment specifications as in effect from time to time. Without limiting the foregoing, Client shall be responsible for the following:  all networking design and administration relating to the set-up and support of the Client’s data, network and underlying systems. It is Client’s sole responsibility to ensure that the backup mechanisms employed to restore its data in the event of loss are sufficient and appropriate for Client’s needs.

4.4. Client Responsibilities. Client is responsible for complying with connectivity requirements between the Licensed Materials and Client Platform Products (“Interfaces”). Client understands and agrees that properly functioning Interfaces are a prerequisite for use of the E3 Solution and further, that connectivity requirements may change over time. Unless otherwise described in the Product and Service Schedule, it shall be Client’s sole responsibility and expense to obtain from Client’s software vendor(s), test, implement, and maintain all such Interfaces.   

5. Subscription Services.

5.1. Subscription Services Term.  The initial term of any Subscription Service (such as e-prescribing and/or medication history services) shall be set forth in the applicable Product and Service Schedule and, unless otherwise set forth therein, shall auto-renew at Dragonfly’s then-current pricing for additional, successive one (1) year terms unless Client provides Dragonfly with written notice of non-renewal at least ninety (90) days prior to the end of the applicable term. Further, any such Subscription Service may be subject to additional terms and conditions from the Third Party Vendor of such service.

5.2. Termination.  Client may terminate Subscription Services at any time prior to the end of the applicable term; however, upon such termination, Client shall be required to pay Dragonfly an amount equal to the remaining payments due under the then-current term of such Subscription Services.

6. Support Services.

6.1. Support Services.  Dragonfly will provide those Support Services to the extent specified in the then current version of the Support Manual (“Support Services”). Dragonfly shall have the right to update the Support Manual from time to time.

6.2. Error Fixes. If Dragonfly reasonably determines that a problem for which Support Services are requested was not caused by a failure of the Licensed Materials to conform to the express warranties hereunder, then Client agrees to pay Dragonfly’ standard consulting rates for services performed in connection therewith.

6.3. Exclusions. Dragonfly shall not be responsible for correcting any issues not attributable to a breach by Dragonfly. Without limiting the foregoing, Dragonfly is not required to provide any Support Services relating to problems arising out of Client Platform Products; also excluded from Support Services are: changes to the Client Platform Products which adversely affect the E3 Solution; any alterations of or additions to the E3 Solution by anyone other than Dragonfly or at the direction of Dragonfly; use of the E3 Solution in a manner for which it was not designed; accident, negligence, or misuse of the E3 Solution other than by Dragonfly; operation of the E3 Solution other than in accordance with applicable Documentation; interconnection of the E3 Solution with other software products not supplied or recommended by Dragonfly; and use of the E3 Solution on equipment other than the equipment specified by Dragonfly.

6.4. Updates/Enhancements.  Dragonfly shall make available to Client E3 Solution enhancements and updates which are made generally available by Dragonfly to its client base. Dragonfly provides no representations, warranties or promises regarding the frequency, timing, features or functionality of enhancements or updates.  Enhancements and releases may require changes to Client Platform Products, which Client must implement in a timely fashion and at Client’s expense.  Documentation is subject to change, from time to time, by Dragonfly and Dragonfly shall make such changes available to Client as and when they are made generally available to Dragonfly’s client base.

6.5. Included in E3 Solution.  All updates and enhancements of the E3 Solution provided to Client shall be considered part of the E3 Solution and shall be subject to the license terms related to the E3 Solution.

7. Price and Payment. 

7.1. Payment Terms.  Dragonfly shall invoice Client, and Client will pay to Dragonfly for the amounts set forth in the Product and Service Schedule(s) or other mutually agreed upon document.  Invoices for undisputed fees are due and payable when received. Undisputed invoices not paid within thirty (30) days of Client’s receipt of invoice shall be subject to a late charge of one and one-half percent (1 1/2%) per month, or the maximum lawful rate, whichever is lower.  Client is solely responsible for payment of any federal, state or local excise, sales, use or similar taxes assessed with respect to the products and services licensed or sold hereunder. All amounts not paid in full when due may be sent by Dragonfly to an attorney or a collection agency. Client shall be responsible for paying all costs of collection, including, but not limited to reasonable attorneys’ fees and, where lawful, collection agency fees

7.2. Discounts. The dollar value of the discounts provided hereunder, if any, as well as any other items and services not paid for by Client and received by Client hereunder, should be considered “discounts and other reductions in price” under Section 1128B (b) (3) (A) of the Social Security Act (42 U.S.C. § 1320-a-7b (b) (3) (A)), as amended.  It is the intent of the parties to comply with the Anti-Kickback Statute Discount Safe Harbor (42 C.F.R. § 1001.952(h) as amended).  The Discount Safe Harbor requires that certain discounts be reported and/or passed on to Federal and State health care programs, such as Medicare and Medicaid. Client shall be solely responsible for determining whether the savings, rebates or discounts it receives under this E3 Agreement must be reported or passed on to the government or payers and for complying with such obligations.  

7.3. Hold.  In the event Client’s account is in arrears for more than thirty (30) days, Dragonfly shall be entitled to immediately place Client on “support hold”.  No Services (including, without limitation, Subscription Services and Support Services) will be provided while Client is on support hold, although fees for such Services shall continue to accrue.

8. Warranties.

8.1. E3 Solution Warranty.  Dragonfly represents and warrants that the E3 Solution, as implemented in accordance with this E3 Agreement, will function substantially in accordance with the applicable Documentation. Dragonfly’s sole obligation, and Client’s exclusive remedy, for any breach of the foregoing, shall be for Dragonfly to provide to Client, as promptly as reasonably practicable, modifications or workarounds that eliminate the material adverse effects of, or otherwise correct any failure of, the E3 Solution to function substantially in accordance with the applicable Documentation.

8.2. Service Warranty.  Dragonfly represents and warrants that all Services provided by Dragonfly hereunder will be performed in a professional, workmanlike manner. Client must notify Dragonfly within thirty (30) days of performance of the applicable Services if Client is not satisfied with the performance of such Services.  If Dragonfly determines that such Services were not performed in conformance with such warranty, then, at Dragonfly’s sole option, Dragonfly will either arrange for re-performance of the services to the warranted level at no additional charge or refund the fees paid for such Services. Dragonfly disclaims any representation or warranty with respect to Services provided by Third Party Vendors. 

8.3. Exclusive Warranties. NOTWITHSTANDING ANYTHING ELSE, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, SUBJECT ONLY TO SECTIONS 8.1, 8.2 AND 9.1, ALL LICENSED MATERIALS ARE PROVIDED “AS IS”, AND DRAGONFLY EXPRESSLY DISCLAIMS ANY AND ALL OTHER REPRESENTATIONS AND WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION: (A) ANY AND ALL IMPLIED WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT, AND FITNESS FOR A PARTICULAR PURPOSE (WHETHER OR NOT DRAGONFLY KNOWS, HAS REASON TO KNOW, OR HAS BEEN ADVISED OF ANY SUCH PURPOSE); (B) ANY WARRANTY REGARDING RESULTS OBTAINABLE OR TO BE OBTAINED BY CLIENT AS A RESULT OF PROVISION OR USE OF THE LICENSED MATERIALS OR OTHER MATERIALS PROVIDED HEREUNDER; AND (C) ANY WARRANTY OF UNINTERRUPTED, TIMELY, OR ERROR-FREE OPERATION OF ANY LICENSED MATERIALS OR PROVISION OF SERVICES.

9. Indemnity.

9.1. Infringement Indemnity. Dragonfly shall indemnify, defend, and hold harmless Client from and against Claims and Client Losses, in each case, to the extent they are based on allegations that Client’s use of the E3 Solution, as expressly authorized herein only, during the term of this E3 Agreement, infringes any third party copyright or U.S. patent or misappropriates any third party trade secret. However, the foregoing obligations of Dragonfly set forth in this Section (the “Dragonfly IP Obligations”) do not apply (A) if Client admits any related third party allegation without the express prior written consent of Dragonfly, or (B) to any Claim or Loss to the extent it results from or arises out of (in whole or in part) (i) the existence, disclosure, or other use of any Client Confidential Information (other than any Dragonfly disclosure or use that is in violation of this E3 Agreement), (ii) the existence, disclosure, or other use of any Client Platform Products, (iii) the use of the E3 Solution in combination with any Client Platform Products or any technology, hardware, software, information, processes, and/or other property not provided by Dragonfly hereunder; and/or (iv) Client’s continued use of the E3 Solution after Dragonfly has provided an IP Remedy (collectively, “Excluded Items”); and Client shall indemnify, defend, and hold harmless Dragonfly from and against any and all Claims and Client and Dragonfly Losses deemed not applicable to the Dragonfly IP Obligations pursuant to this sentence. “Claims” means third party claims and lawsuits; and “Losses” means the subject party’s incurred damages, liabilities, settlements, judgments, costs and expenses resulting from corresponding Claims that are awarded or adjudged by a court or arbitration panel with competent jurisdiction or approved in writing by the other party.  If the E3 Solution is or is believed by Dragonfly to infringe or misappropriate any third party intellectual property rights, then Dragonfly, may, at its sole option and expense (each of the following, an “IP Remedy”): (a) procure for Client the right to continue using the E3 Solution on substantially similar terms to those contained herein; (b) modify the E3 Solution so that it becomes non-infringing and maintains substantially the same functionality; (c) replace such E3 Solution with non-infringing software that has substantially the same functionality; or (d) terminate this E3 Agreement and refund to Client a pro-rata portion of the associated license fees, if any, that have been paid by Client and are attributable to the unexpired license term, subject to any off-set for amounts then-owed and payable to Dragonfly hereunder, and provided Client ceases all further use of the E3 Solution

10. Liability.

10.1. Limitation of Liability. NOTWITHSTANDING ANYTHING ELSE, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, NEITHER PARTY SHALL BE LIABLE WITH RESPECT TO THE LICENSED MATERIALS, SERVICES AND/OR ANY OTHER SUBJECT MATTER OF THIS E3 AGREEMENT UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY, OR OTHER LEGAL OR EQUITABLE THEORY FOR: (I) ANY SPECIAL, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY, PUNITIVE, OR OTHER INDIRECT DAMAGES OF ANY CHARACTER, INCLUDING, BUT NOT LIMITED TO, LOSS OF REVENUE OR PROFITS OR LOST BUSINESS, EVEN IF THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES; (II) ANY AMOUNTS IN EXCESS OF, IN THE AGGREGATE, FOR ALL CLAIMS IN CONNECTION HEREWITH, THE APPLICABLE FEES DURING THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE FIRST EVENT, ACTION, OR OMISSION GIVING RISE TO SUCH PARTY’S LIABILITY FOR WHICH ANY DAMAGES ARE PAID OR HELD RECOVERABLE HEREUNDER; OR  (III) THE COST OF PROCURING SUBSTITUTE GOODS, SERVICES OR TECHNOLOGY OF ANY KIND.  ADDITIONALLY, DRAGONFLY SHALL NOT BE LIABLE FOR THE ACTIONS OR INACTIONS OF ANY THIRD PARTY VENDOR, INCLUDING THE PERFORMANCE OR NONPERFORMANCE OF ANY THIRD PARTY APP OR SERVICES PROVIDED BY SUCH THIRD PARTY VENDORS.  “APPLICABLE FEES” MEANS THE FEES PAID BY CLIENT TO DRAGONFLY HEREUNDER FOR THE LICENSED MATERIALS THAT IS/ARE THE SUBJECT OF ANY CLAIMS FOR WHICH ANY DAMAGES ARE PAID OR HELD RECOVERABLE HEREUNDER. ALL OF THE FOREGOING LIMITATIONS SHALL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY

10.2. Information Tool Only.  CLIENT UNDERSTANDS AND AGREES THAT DRAGONFLY IS NOT ENGAGED IN THE PRACTICE OF MEDICINE AND THAT THE E3 SOLUTION (AND ANY THIRD PARTY APP) IS AN INFORMATION TOOL ONLY AND IS NOT A SUBSTITUTE FOR PROFESSIONAL JUDGMENT OF HEALTHCARE PROVIDERS IN DIAGNOSING AND TREATING PATIENTS. Any content available via the E3 Solution or Third Party App is not a substitute for the professional judgment of healthcare providers in diagnosing and treating patients.  Dragonfly does not give medical advice nor does it provide medical or diagnosis services. CLIENT ACKNOWLEDGES THAT IT SHALL HAVE FULL AND SOLE RESPONSIBILITY FOR THE CARE AND WELL BEING OF ITS PATIENTS, AND ANY RELIANCE BY CLIENT UPON THE E3 SOLUTION (OR ANY THIRD PARTY APP) SHALL NOT DIMINISH OR ALTER SUCH RESPONSIBILITY.

11. Term; Termination.

11.1. Term. Subject to the provisions of this Section 11, the initial term of this E3 Agreement shall commence on the Effective Date and continue until December 31, 2025; following the conclusion of the initial term, the term shall continue on a month-to-month basis thereafter until terminated by either Party on thirty (30) days’ advance written notice.  Notwithstanding the foregoing, the term of this E3 Agreement shall terminate automatically, without any further action required of the Parties, upon the termination or expiration of the Services Agreement.

11.2. Termination for Breach. Notwithstanding Section 11.1, either Party may terminate this E3 Agreement upon written notice if the other materially breaches this E3 Agreement and fails to cure such breach within thirty (30) days following written notice specifying the breach.  Notwithstanding the foregoing, Dragonfly may terminate this E3 Agreement immediately by giving written notice to Client in the case of a breach of Client’s obligations under Sections 2 and/or 7 and declare any unpaid amounts owed hereunder immediately due and payable.

11.3. Effect of Termination. The termination of this E3 Agreement or any license granted hereunder shall not limit either Party from seeking other remedies available to it, including injunctive relief, nor shall any such termination relieve Client’s obligation to pay all fees that are owed under this E3 Agreement including under any Product and Service Schedule.  Upon expiration or termination of this E3 Agreement, (a) Client shall cease using the E3 Solution, Interfaces and Third Party Apps and (b) Dragonfly shall cease providing and Client shall cease using any Services.  Sections 2.3, 2.4, 7, 8.3, 9, 10, 11 and 12 shall survive termination or expiration of this E3 Agreement.

12. General.

12.1. Entire Agreement.  Each Party acknowledges that it has read this E3 Agreement, understands it, and agrees to be bound by its terms. This E3 Agreement, along with the respective Product and Service Schedule(s), and to the extent applicable, its related Schedules and exhibits, is the complete and exclusive statement of the agreement between the Parties with respect to the subject matter hereof and shall supersede all prior proposals, understandings and all other agreements, oral and written between the Parties and their predecessors in interest. This E3 Agreement may not be modified or altered except by a written instrument duly executed by both Parties. Any additional schedules shall be attached and incorporated into this E3 Agreement by reference. Client acknowledges and agrees that in entering into this E3 Agreement it has not relied on any representations other than those set forth herein and that Client’s decision to license the Licensed Materials and/or purchase Services hereunder is not contingent on the delivery of any future functionality or features or dependent on any oral or written comments made by Dragonfly regarding future functionality or features.

12.2. Force Majeure.  A party shall not be liable for any delays or failure to perform (other than any payment, or confidentiality obligations) as a result of causes beyond the reasonable control of such party and not due to the negligence on the part of the party claiming excuse for delay or failure. The party claiming excuse must promptly notify the other of the event and its expected duration and use its reasonable efforts to mitigate its effects and perform hereunder. 

12.3. Relationship between the Parties.  Dragonfly is an independent contractor, and nothing herein shall be deemed to create a partnership, joint venture, employment or similar relationship between Dragonfly and Client.

12.4. Governing Law/Forum. This E3 Agreement shall be governed, interpreted and construed under the laws of the State of Delaware without regard to its conflict of law principles.  The Parties hereto agree that any dispute or litigation arising hereunder shall be instituted in the state and federal courts in Phoenix, Arizona.  Dragonfly and Client agree to submit to the jurisdiction of, and agree that venue is proper in, these courts in any such legal action or proceeding.

12.5. Severability.  If any provision of this E3 Agreement is held to be invalid or otherwise unenforceable by a court of competent jurisdiction, the validity, legality and enforceability of the remaining provisions shall in no way be affected or impaired but shall remain in full force and effect and any invalid and unenforceable provisions shall be deemed modified and amended to the extent necessary to render the same valid and enforceable.

12.6. Confidentiality.  Each party (“Recipient”) will not access or use Confidential Information of the other (“Discloser”) for any purposes other than performance of its obligations or receipt of benefits hereunder and shall maintain such information in the strictest confidence, except for disclosures expressly authorized hereunder.  Recipient may disclose the Discloser’s Confidential Information to Recipient’s employees, attorneys, advisors, and contractors who have a legitimate “need to know”, provided that Recipient ensures that all such entities and persons are obligated to and do comply with confidentiality obligations consistent with (and no less restrictive than) this Section (“Disclosure Protections”), but in no event may Client disclose any Dragonfly Confidential Information to any competitors of Dragonfly (or any of its affiliates) or any employees or contractors of any such competitors.  The term “Confidential Information” means the provisions of this E3 Agreement (which shall be the Confidential Information of both parties, subject to the following sentence), and any and all information, written or oral, provided or made available by or on behalf of one party or its affiliates, contractors, or vendors to the other party or its affiliates, contractors, or vendors in connection with this E3 Agreement or the parties’ relationship hereunder, whether or not designated as confidential, but excludes any PHI (as defined in HIPAA, which is separately addressed in the Business Associate Agreement executed by the parties in connection with the Pharmacy Services Agreement). Information of a third party to whom a party owes a duty of confidentiality will be treated as Confidential Information of that party if it meets the description above. However, (a) Confidential Information does not include information that: was or is publicly available other than as a result of breach of this E3 Agreement by Recipient; was or is lawfully received by the Recipient free of any obligation of confidentiality; or is independently developed by or on behalf of the Recipient without use of the Discloser’s Confidential Information; and (b) Recipient may disclose the Discloser’s Confidential Information to the extent such disclosure is necessary in connection with the enforcement of this E3 Agreement; or necessary to comply with any legal or regulatory requirements, provided that the Recipient gives the Discloser prompt notice of the compelled disclosure and cooperates with the Discloser in seeking a protective order or any other protections available to limit the disclosure of the Discloser’s Confidential Information.

12.7. Assignment. This E3 Agreement shall be binding upon and inure to the benefit only of the Parties hereto and their respective successors and permitted assigns. Client agrees that Dragonfly may subcontract its obligations hereunder to a third party or affiliate, but such subcontract will not relieve Dragonfly of its obligations hereunder. Client may not assign this E3 Agreement or any of its rights, duties or obligations hereunder without the prior written consent of Dragonfly.

12.8. No Waiver.  The waiver or failure of either Party to exercise any right provided for in this E3 Agreement shall not be deemed a waiver of any further right hereunder.

12.9. Notices. Except as otherwise specified herein, all notices, to be valid, must be (a) in writing, (b) delivered in person or sent, postage prepaid, by certified or registered mail, return receipt requested, or by nationally-recognized private express courier, and (c) addressed to both the “Primary” and any “Required Copy” contact person(s) for the receiving party designated in the Pharmacy Services Agreement (or such other address/contact person(s) as such party may specify by written notice to the other provided in accordance with this Section). 

12.10. No Third-Party Beneficiaries. There are no third-party beneficiaries to this E3 Agreement.

12.11. Authorization/Counterparts.  This E3 Agreement shall become effective upon the signature hereof by an authorized representative of the Client and Dragonfly. Each party represents and warrants that it has the legal power and authority to enter into this E3 Agreement. The Parties acknowledge and represent that the individuals signing this E3 Agreement below are fully authorized to do so on their behalf.  This E3 Agreement may be executed in one or more counterparts, each of which shall be deemed to be an original, but all of which shall constitute one and the same instrument. 

12.12. Headings.  The Section headings in this E3 Agreement are for convenience purposes only and do not reflect any intent or agreement of the Parties.

Schedule A

Product and Service Schedule

LICENSED MATERIALS: E3 Solution, including all Documentation 

THIRD PARTY APP: N/A        

Subscription Services:

Optional integrated third-party DoseSpot® e-prescribing solution is available for Client’s use at the rates set forth in Exhibit B of the Pharmacy Services Agreement.

Fees and scope of licenses to utilize the third-party DoseSpot® e-prescribing solution shall be as set forth in the Pharmacy Services Agreement.

Initial Term of Subscription: The initial term shall commence upon license activation and shall continue for a twelve (12) month period.

DoseSpot user terms and conditions, if any, will be provided to users during registration/use.

Client acknowledges and agrees that as between the parties, it, and not Dragonfly, is solely responsible for the prescribing activities of its prescribers and prescribing agents associated with such licenses.

Client further acknowledges and agrees that prescribing agent licenses are limited to users who can send new prescriptions (excluding controlled substances) on a prescriber’s behalf directly to a pharmacy.  The license may not be used to prescribe controlled substances.  In addition, prescribing agent licenses are not authorized for use by any individual (including an agent of a prescriber) who has a DEA number or who otherwise can prescribe medications on his or her own behalf. 

Consulting Services Rate: $200/hour (only chargeable in accordance with Section 6.2)