RxCart™ Terms and Conditions

Introduction

Welcome to North Coast Medical's Healthcare Reseller Platform, RxCart™ ("Platform"), for the sale of therapy, medical and rehabilitation products by you to your patients. These Terms of Service ("Terms") govern your access and use of the websites, mobile applications, and other platforms and services provided by North Coast Medical, Inc. ("NCM," "we," "us," or "our") that incorporate or link to these Terms (collectively, the "Platform").

Please read these Terms and carefully, as your use of our Platform constitutes your agreement to be bound by these Terms. If you are accepting these Terms on behalf of any third party, you represent and warrant that: (i) you have full legal authority to bind the applicable third party to these Terms; (ii) you have read and understand these Terms; and (iii) you agree, on behalf of the third party that you represent, to these Terms.

Other terms also apply to your use of the Platform, and they are incorporated herein by this reference. These include terms which will apply to sales promotions and other features which may be available on the Platform from time to time, and our Privacy Statement which applies to any data shared on the Platform.

Definitions

Throughout these Terms, we may use certain words or phrases, and it is important that you understand their meanings.

"Account" means a Practitioner Account, including any linked staff accounts.

"Governmental Authority" means any national, provincial, state, local or other government, or subpart, agency, or unit thereof.

"Intellectual Property Rights" means all intellectual property rights, including intellectual property rights comprising or relating to: (a) inventions and patents; (b) trademarks, service marks, and logos; (c) internet domain names registered by any authorized private registrar or Governmental Authority, web addresses, web pages, websites, and URLs; (d) works of authorship, expressions, designs, and design registrations, whether or not copyrightable, including copyrights and copyrightable works, software, code, data, data files, and databases, and other specifications and documentation; (e) trade secrets; and (f) all rights, interests, and protections that are associated with, equivalent or similar to, or required for the exercise of these rights or forms of protection under the Laws of any jurisdiction throughout the world with respect to any of the foregoing, however arising in each case, whether registered or unregistered, and including all registrations and applications therefor, and renewals or extensions thereof.

"Law" means any statute, law, ordinance, regulation, rule, code, constitution, treaty, common law, governmental order, policy, or other requirement or rule of law of any Governmental Authority.

"Marketplace Facilitator" means NCM will collect sales tax on transactions made through the Services, meaning that when a Patient purchases a Product from the Platform, NCM shall be responsible for calculating, collecting, and remitting the appropriate sales tax to the state tax authorities.

"Payment Processor" means a third-party company which processes payments initiated through the Platform.

"Patient" means a natural person invited to access a Practitioner's RxCart™ and online store.

"Patient Account" means a Patient profile, loaded on the Platform, under supervision and review of an associated Practitioner in order to access the Practitioner's online store.

"Practitioner" means a qualified and licensed (if required by Law) natural person who uses the Platform and our Services to connect with their Patients.

"Practitioner Account" means a RxCart™ / Platform account opened by a Practitioner through which the Practitioner manages their online store and can add their Patients. The Practitioner Account remains responsible for any linked staff accounts connected to their online store and the compliance of Patient Accounts connected to their online store.

"Practitioner Seller Account" means a Practitioner Account through which the Practitioner can sell Products to the Patients Accounts accessing their online store and Platform.

"Products" means those items available for purchase through the Platform.

"Services" refers to the services that we provide to or on behalf of Practitioners or arrange for through our Platform as a Marketplace Facilitator, including the Platform itself, all services furnished to Practitioners, and all services provided to Patients on behalf of Practitioner Seller Accounts, including order processing, payment collection and processing, state and local tax collection and reporting, shipping and tracking, and any other support services provided for Patients on behalf of Practitioner Seller Accounts including returns processing. Practitioners are responsible to the Patient Accounts associated with their online store, including for the Products made available, recommended, and/or sold.

"User" refers to Practitioners and general visitors to the Platform.

Content for Information Purposes Only

The information and content contained on the Platform is provided for informational purposes only and is not meant to provide you with medical advice or for replacing your professional knowledge or judgment. Do not use the Platform for medical emergency services. The information on the Platform is not a substitute for medical care or for seeing or obtaining advice from a healthcare professional. You should not use the information available on the Platform (including, but not limited to, information that may be provided on the Platform by healthcare practitioners or other professionals employed by or contracting with us) for diagnosing, treating, curing, or preventing a health problem or disease.

We work to ensure that information on the Platform is correct; however, we cannot guarantee that all information is correct, complete or current. NCM may make changes to Products from time to time, and actual Product packaging and materials may contain more and/or different information than that shown on the Platform. Please consult all labels, warnings, and directions for the most accurate product information.

All features, specifications, Products, and prices described on the Platform are subject to change at any time without notice. We reserve the right to make changes to information about price, description or availability without notice. The inclusion of any Products or Services on the Platform does not imply or warrant that these Products or Services will be available at any particular time.

Requirements

In order to use our Platform and any Services, you must meet a number of conditions, including but not limited to:

• You must be a licensed healthcare professional or organization.

  • You must have reached the minimum age required to enter into a contract in the area in which you reside.

• You must know and abide by all Laws of the jurisdictions in which you are located and where you promote and sell Products, including, but not limited to, all Laws pertaining to professional licensing or conduct, the Products, or taxes.

• You must provide us with true, accurate, and complete information, payment information and other information that we deem necessary to provide you with our Services, and you are responsible for maintaining and promptly updating such information so it remains true, accurate and complete at all times, including but not limited to professional licensing and credentialing.

• You must properly report all income from the use of the Services as required by the Internal Revenue Service and/or any other applicable Governmental Authority. Regardless of residency and except as explicitly set out herein, you acknowledge that NCM is not required to maintain records on your behalf or to report any income or other information to relevant Governmental Authorities (unless otherwise required to do so by applicable Law).

• You must charge Patients no more than is permitted under the Laws where you are located/operate and/or where the Patient resides and, if applicable, in accordance with all applicable NCM brand restriction, internet reselling, and minimum advertised price (MAP) policies.

• You must not be in violation of any embargoes, export controls, or other Laws of the United States, or other countries having jurisdiction over these Terms, NCM, or you.

Right to Access and Rules of Use

Subject to the terms and conditions of these Terms, and so long as your Account is in good standing, NCM hereby grants to you a limited, personal, revocable, non-exclusive, non-transferable right to access and use the Platform solely for your internal business purposes.

In addition to meeting the user requirements above, you agree to comply with the following rules governing use of our Platform and Services:

• You shall not make any representations, warranties, guarantees, indemnities, commitments, or other similar claims actually, apparently, or ostensibly on behalf of NCM that are inconsistent with these Terms.

• You shall comply with all applicable Laws of any Governmental Authority with jurisdiction over your actions, including the Laws applicable to any jurisdiction to which you make available, promote, sell, and/or arrange for the shipment of Products.

• You are exclusively responsible for any statements that you may make regarding the Products, including any claims that do not explicitly appear on Product labeling.

• You shall not engage in any unlawful or illegal, unfair, fraudulent, malicious, negligent, misleading, or deceptive practices, or which promotes any criminal activity or provides information about the same.

• You shall not post or send anything violent, indecent, obscene, threatening, pornographic, racist, hateful, libelous, or defamatory, or which discloses private or personal information concerning any person other than yourself (other than any person from whom you have the requisite authorization, as required by applicable Law) or otherwise objectionable, as determined in the exclusive discretion of NCM.

• You shall not infringe on anyone's Intellectual Property Rights (including NCM's Intellectual Property Rights), defame anyone, or otherwise violate the rights of a third party.

• You shall not create a false identity or duplicative Accounts for the purpose of misleading others, or impersonating any person or entity, or falsely stating or otherwise misrepresenting your affiliation with any person or third party, including NCM.

• You shall not hack, crack, phish, SQL inject, or otherwise compromise the confidentiality, integrity, or availability of the Platform, Services, or users' computers, including, without limitation, viruses, worms, time bombs, Trojan horses or any other contaminating, harmful or destructive code, or use the Platform or Services in any manner that could disable, damage or overburden the Platform.

• You shall not use, modify, republish, frame, print, display, perform, reproduce, license, transfer, sell, assign, post, transmit, distribute, decompile, reverse engineer, create derivative works from, or otherwise exploit any content or information from the Platform, in whole or in part, without our express written permission, including removing, deleting, altering, or obscuring any copyrights, trademarks, or other proprietary notices from any portion of the Platform, including but not limited to accessing or using any content or information from the Platform in order to directly or indirectly compete with NCM.

• You shall not use any spider, bot, or other automatic or manual device or process for the purpose of scraping, harvesting, compiling, indexing, surveying, building AI/machine learning models, or otherwise data mining information on the Platform, including probing, scanning, testing the vulnerability of, or breaching the authentication measures of, the Platform or any related networks or systems.

• You shall not use the Platform or Services in connection with unsolicited communications, including but not limited to unauthorized advertising, junk, or bulk e-mail.

• You shall not interfere with other user's use of the Platform or Services, including, without limitation, spamming or otherwise using abusive tactics related to deter others from facilitating transactions.

• You may not post or transmit charity requests, petitions for signatures, chain letters, or letters relating to pyramid schemes. You may not post or transmit any advertising, promotional materials, or any other solicitation of other users to use goods or services that are not otherwise authorized by NCM as Products.

• You shall not permit any other person (other than a linked staff account or an agent acting on your behalf and subject to your direct supervision and control) to access the Platform or Services using your Account information for any purpose.

• You may not do anything else which, in NCM's sole discretion, may bring NCM or any of its users into disrepute, endanger the business or safety of NCM or any third party, or constitutes any use other than the business purposes for which the Platform and Services are intended.

• You shall not represent yourself acting on behalf of NCM as its agent or otherwise.

• You will not submit your Product sales through our Services for reimbursement from any federal or commercial insurance provider.

Our provision of Services to you and your access to the Platform is contingent on your agreement with this and all other sections of these Terms. We reserve the right to change or include new requirements as deemed appropriate in our sole discretion without providing prior notice to you.

You hereby expressly acknowledge that you are solely and exclusively responsible for your, your agents, and linked staff accounts compliance with the Terms and any and all applicable Laws, as well the compliance of Patient Accounts connected to your online store. NCM does not provide any advice concerning potentially applicable Laws or your compliance therewith. The reference to specific laws or regulations shall not be read or construed to imply that such laws or regulations are applicable to you, nor that other laws or regulations are not applicable to you. Further, NCM expresses no opinion with respect to the appropriateness or legality of the recommendation or resale of Products to Patients by Practitioners. It is your responsibility to consult with the appropriate advisors as necessary to ensure that you are informed of and in compliance with all applicable Laws.

If you wish to use our Platform and Services, including all Services provided on your behalf, NCM requires that you be authorized by any applicable Governmental Authority. By using our Platform and Services, including all Services provided on your behalf, you hereby warrant that you are so authorized. Many jurisdictions require that Practitioners making recommendations to Patients on health-related matters be licensed/credentialed to do so. Additionally, Governmental Authorities, professional organizations, or other regulating entities with jurisdiction over Practitioners may require that certain ethical standards be followed. You may also be required to make certain disclosure to your Patients or be limited in your ability to charge your Patients more than the retail price for Products. You agree to act at all times in accordance with all licensing, credentialing, and ethical standards applicable to you as a Practitioner.

We highly recommend that Practitioners clearly disclose the nature of their financial relationship to the Patient Accounts associated with their online store, such as by using the following language: "I partner with NCM to provide high-quality medical and rehabilitation products and other products through my online store. While similar products are available elsewhere, NCM was chosen for its quality and convenience. I may benefit from purchases made through my online store."

Accounts and Passwords

Certain features or Services offered on or through the Platform require you to register for an Account (including setting up a username and password). You are solely responsible for maintaining the confidentiality of your Account information, including your password, and for any and all activity that occurs under your Account; we will accept the instructions of any individual who claims to be authorized to direct changes to your Account so long as such person presents your username and password on-line, by email, or by phone, or through a third party service, if any, through which you access the Platform. You agree to notify NCM immediately of any unauthorized use of your Account or password. You may not use the Account, username, or password of any other individual or entity at any time without the express permission and consent of the holder of the Account. NCM will not be liable for any loss or damage arising from your failure to comply with this Section, including for misuse or misappropriation of your information, and you agree to indemnify NCM from any claims damages, losses, and/or costs resulting from a breach of your obligations with respect to your Account and Account information.

All Practitioners are defaulted to Practitioner Accounts, and their online stores have limited access to the Services, including making Product recommendations.

By creating an Account, you consent to receive electronic communications (e.g., via email, SMS, and push notifications, where applicable), directly or indirectly by us or on our behalf to any email address, phone number, or mobile device associated with your Account. These communications may include notices about your Account (e.g., Account changes, password resets, and other transactional information) and are part of your relationship with us. We may also send you promotional communications including, but not limited to, newsletters, special offers, surveys, and other news and information we think will be of interest to you. You may modify your communications preferences by following the instructions contained in our promotional messages or through your Account settings; please allow up to 10 business days for your request to be processed. Please note that even if you opt out of receiving promotional communications, we may still send you transactional messages relating to your use of the Platform or messages sent as part of an existing business relationship.

If you enroll in one of our text message programs, you will be asked for consent to do so. Messages are only sent to persons who opt into and consent to receiving messages, or instances in which consent is provided by you to us through an intermediary. Message frequency will vary depending on the program(s) you have opted into and how often you interact with or use each program, either directly or through an intermediary. Message and data rates may apply. If you have opted into more than one program, an opt out of one program will not opt you out of all such programs.

Payments and Sales Tax

We sell our Services and the Products on our Platform to you at a percentage of retail price. You can sell Products through the Platform at the available retail price. NCM will collect its fee when you complete the sale to your Patient. You agree to abide by all applicable Laws and professional ethical guidelines for the Products you sell the Product, including any disclosure obligations. Applicable sales taxes, shipping fees, and Payment Processor processing fees are added to your Product sales. Payments and distributions are processed by NCM. Proceeds from your sales are distributed to your designated bank account on a thirty (30) day cadence set by NCM. You are the seller of record with respect to the sale of Products through your online store, and you are responsible for all transactions with Patients.

NCM maintains responsibility for the collection and remittance of retail sales taxes for Products sold through the Platform. You agree to submit to NCM, at our request, any required documentation, such as re-seller statements, to comply with the applicable Laws regarding waiver of sales tax collection. You remain responsible for any marketplace seller reporting laws and remittance of any non-sales taxes including, but not limited to, business and occupation taxes, income tax, etc.

Practitioners are responsible for Products sold to their Patients. NCM reserves the right to change its fees at any time.

Order Processing

The Products available through your online store to Patient Accounts are invitations to make offers to purchase Products and are not offers to sell. A properly completed and submitted order request constitutes such an offer to purchase the Products referenced in the order. An order is deemed to be accepted only if the Patient Account that places the order receives a confirmation on the Platform, or to such Patient Account's email address, indicating that the order and payment has been processed. NCM reserves the right to refuse all or part of any order request through your online store, and to limit quantities of Products available for sale through your online store, as well as the right at any time to reject, correct, cancel, or terminate any order request through your online store for any reason whatsoever.

The prices for Products available through your online store to Patient Accounts are set out on the Platform (including retail prices), and all other applicable amounts, charges, and taxes are indicated when a Patient Account makes a purchase. Unless otherwise stated, all invoiced amounts are due upon receipt and processed immediately upon purchase confirmation using the credit card information on file for the Patient Account placing the order.

Unless otherwise stated, all fees are quoted in United States Dollars for users in the United States. Receipts for purchased Products will be delivered to the Patient or Practitioner, as applicable, via the Platform or the email address associated with the applicable user's Account.

Patient Accounts are responsible for all shipping costs. Title and risk of loss transfer to the Practitioner upon delivery to the shipping carrier prior to passing to the ordering Patient Account. Any shipping times shown on the Platform are estimates only; actual delivery dates may vary. Additional policies covering shipping and returns are available on the Platform. Returns are processed on your behalf by NCM and will be deducted from your account.

Nature of Financial Accounts

The money held by us and/or the Payment Processor, prior to distribution to you, is not a deposit insured by the Federal Deposit Insurance Corporation, or any other entity. NCM is not licensed as a bank or other financial institution. You acknowledge and agree that NCM is not required to open a separate account for your funds and may commingle funds to which you may be entitled in accounts with other funds. NCM shall attribute portions of commingled funds to you based on the records of transactions which NCM controls.

NCM may place a hold on funds as a matter of routine or in circumstances where it believes there is a high risk of chargebacks or of fraud, money laundering, or other unlawful activity. We may charge fees relating to the payment of funds (such as money order or wire transfer fees), which we will post on Platform and/or notify you of by email.

Our Intellectual Property Rights

The Platform, including the underlying software and technology, contain copyrighted material, trademarks (including but not limited to the North Coast Medical® trademark), service marks, trade dress, logos, and other registered and unregistered proprietary content, including but not limited to, text, software, technology, applications, sound, photographs, buttons, images, logos, video, and graphics (the "Content") that is the property of NCM and the entire selection, coordination, arrangement and "look and feel" of the Platform and the Content are copyrighted as a collective work of NCM under copyright laws.

NCM's Content is important because it distinguishes NCM from competitors and other websites in general, both to customers and to search engines. You agree not to copy, distribute, display, disseminate, or otherwise reproduce any of the information on the Platform, without receiving our prior written permission. You further agree not to remove, alter or obscure any proprietary notice or legend of NCM, its Suppliers or licensors. No Content or Product names may be used as part of a URL, secondary level domain name, metatag, key word, file name, or used in any advertising (including but not limited to Google Ads, Facebook Ads, etc.)

Neither these Terms nor your use of the Platform transfer any right, title, or interest in the Platform, Content, or NCM Intellectual Property Rights to you. We retain all of our right, title, and interest to the Platform, Services, Content, and Intellectual Property Rights. Any rights not expressly granted herein are reserved. We may revoke our consent for your use of our Content, or any other permission granted to you under these Terms, at any time and in our sole discretion. You agree that if we so request, you must take immediate action to remove any usage of our Content that you may have engaged in, even if it would cause a loss to you.

Your Copyright

NCM permits Practitioners to upload custom logos and make other modifications to your online store provided by NCM and created by you through the Platform. NCM must be assured that it has the right to use the content that is posted to its Platform by users. Such content may include, but is not limited to, photographs, videos, text, audio, and other materials. Whenever submitting content to the Platform, you agree that you are granting us a non-exclusive, universal, perpetual, irrevocable, sub-licensable, commercial and non-commercial right to use, distribute, sell, publish, and otherwise make use of the content that you submit to the Platform. You warrant to us that you have the right to grant us these rights to such content, and you agree to indemnify, defend, and hold us harmless for any losses, damages, expenses, liabilities, and costs (including, without limitation reasonable attorneys' fees and costs) resulting from a breach of this warranty pursuant to the Section entitled "Indemnity and Limitation of Liability" below.

You agree that the conditions under this Section are necessary in order to prevent intellectual property disputes among many users and/or NCM over the arrangement of data which is available for all users to use.

Copyright & Trademark Infringement

We take copyright and trademark infringement very seriously. If you believe that another user has infringed on your intellectual property rights in the U.S., notify us immediately by sending full details to custserv@ncmedical.com. Please provide the following information when notifying us of the alleged copyright or trademark infringement:

  1. A physical or electronic signature of a person authorized to act on behalf of the owner of the copyright/trademark interest that is claimed to have been infringed;

  2. Identification of the copyrighted work/trademark alleged to have been infringed;

  3. A description of the material that is claimed to be infringing and information sufficient to locate the material on the Platform;

  4. Information sufficient to contact the complaining party, such as a physical address, telephone number, and, if available, an electronic mail address;

  5. A statement that the complaining party has a good faith belief that the use of the material in the manner complained of is not authorized by the copyright/trademark owner, its agent, or the law; and

  6. A statement that the information in the notification is accurate and, under penalty of perjury, that the complaining party is authorized to act on the copyright/trademark owner's behalf.

If we in good faith believe any material infringes a copyright or otherwise violates any Intellectual Property Rights, we will remove or disable access to such material.

Please be advised that false reports of infringement are defamatory and actionable, and a user affected by such false reports may seek an award of damages from you if such a report is made.

Libel and Slander

Defamation is prohibited by these Terms, and we request that you notify us at custserv@ncmedical.com if you believe any content on the Platform is defamatory. If in the U.S., you agree to bring an action for libel in the state and federal courts located in San Jose, California within one (1) year from the date the allegedly libelous act occurred or be deemed forever waived.

Please address such notices to us at:

North Coast Medical, Inc.

135 E. Main Ave. Suite 110

Morgan Hill, CA 95037

Third Party Applications and Resources.

The Platform provides, and third parties may provide, links to third-party applications and websites products, devices, items, services, and other materials (collectively, "resources"), including resources that are framed within the Platform. We provide links to third party-owned resources as a convenience to users. Third-party resources are not under our control, and you acknowledge and agree that we are not responsible for the availability of such resources, and that we do not endorse, sponsor, recommend, and are not responsible or liable for any third party resources or other content, products, services, or materials on or available from such resources. You further acknowledge and agree that we shall not be responsible or liable, directly or indirectly, for any damage or loss caused or alleged to be caused by or in connection with use of or reliance on any such third-party resources; your use of any third-party resources and any interactions with third parties, including payment and delivery of resources, any other terms, conditions, warranties, or representations associated with such use or interaction, are solely between you and such third parties. If you visit third-party resources, we encourage you to consult the privacy policy and the terms and conditions of each such resource that you visit; your relationship with such third party is independent and subject to such party's privacy policy and terms and conditions and you access these resources at your own risk. You should make whatever investigation you feel necessary or appropriate before proceeding with any transaction with any third party.

We may offer you the ability to connect your Account with third-party resources, such as EHRs (Electronic Health Records). You understand and acknowledge that by connecting your Account, we and the third party may share information between your accounts (including data syncing), and you are responsible for notifying us of any restrictions on data sharing and for instructing the third-party resources on any limitations on information provided to it by us. We accept no responsibility for information transmitted to the third-party resource and outside of our control.

Disclaimer of All Warranties

ALL PRODUCTS AND SERVICES ARE PROVIDED BY NCM "AS IS," AND WE HEREBY DISCLAIM ANY EXPRESS OR IMPLIED REPRESENTATION, CONDITION, OR WARRANTY WHATSOEVER. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, NCM MAKES NO WARRANTIES OR CONDITIONS OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, WITH RESPECT TO THE PRODUCTS, PLATFORM, CONTENT, AND SERVICES, INCLUDING THOSE SERVICES PROVIDED BY THE PAYMENT PROCESSOR, AND SPECIFICALLY DISCLAIMS ALL EXPRESS OR IMPLIED WARRANTIES OR CONDITIONS, INCLUDING ANY WARRANTIES OF MERCHANTABILITY, MERCHANTABLE QUALITY, ACCURACY, COMPLETENESS, VALIDITY, TIMELINESS, NON-INFRINGEMENT, RESULTS, OR FITNESS FOR A PARTICULAR PURPOSE, OR THAT THE OPERATION OF THE PLATFORM OR THE PROVISION OF THE SERVICES WILL BE AVAILABLE, UNINTERRUPTED OR ERROR-FREE OR THAT ALL ERRORS WILL BE CORRECTED, OR THAT THE PLATFORM OR SERVICES WILL BE FREE OF VIRUSES, WORMS, TROJAN HORSES OR OTHER CODE THAT MANIFEST CONTAMINATING, HARMFUL, OR DESTRUCTIVE PROPERTIES.

Indemnity and Limitation of Liability

You hereby agree, individually and for any third party on behalf of which you are acting, to defend, indemnify, and hold NCM, along with its affiliates, subsidiaries, successors, partners, licensors and third-party providers, and the directors, officers, members, managers, agents, and employees of each of them (collectively, the "Protected Parties"), harmless for any and all damages, costs, claims, liabilities, losses, fees and expenses incurred by NCM or a third party arising from or related to NCM's provision of Services to you or on your behalf (or anyone acting under your Account or password), including but not limited to any breach of a representation or warranty of these Terms or use of our Platform or Services. You agree that this duty to defend extends to requiring you to pay for our reasonable attorneys' fees, court costs, expert witness fees and disbursements.

IN NO EVENT SHALL THE PROTECTED PARTIES BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY LOST INCOME OR PROFITS OR FOR ANY DIRECT, INDIRECT, SPECIAL, INCIDENTAL, EXEMPLARY, PUNITIVE, OR CONSEQUENTIAL DAMAGES OF ANY KIND HOWEVER CAUSED AND WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, WHETHER OR NOT NCM HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT SHALL OUR TOTAL AGGREGATE LIABILITY TO YOU ARISING FROM OR RELATED TO THESE TERMS EXCEED THE AGGREGATE AMOUNT OF YOUR SERVICE FEES THROUGH NCM DURING THE THREE (3) MONTHS PRECEDING THE FIRST CLAIM GIVING RISE TO A CAUSE OF ACTION HEREUNDER.

NONE OF THE PROTECTED PARTIES WILL BE LIABLE OR HAVE ANY RESPONSIBILITY OF ANY KIND FOR ANY LOSSES, DAMAGE, OR DESTRUCTION OF DATA, INCLUDING, WITHOUT LIMITATION, LOSS OF ALL YOUR ACCOUNT INFORMATION OR LOSS OF YOUR PRODUCT ORDER INFORMATION, AND/OR DAMAGES OR LOSSES YOU INCUR IN THE EVENT OF ANY FAILURE OR INTERRUPTION OF THE SERVICES OR RESULTING FROM THE ACT OR OMISSION OF ANY OTHER PARTY INVOLVED IN MAKING THE SERVICES AVAILABLE TO YOU OR COLLECTING THE DATA CONTAINED THEREIN, OR FROM ANY OTHER CAUSE RELATING TO YOUR (OR YOUR PATIENTS') ACCESS TO OR YOUR (OR YOUR PATIENTS') INABILITY TO ACCESS THE SERVICES, WHETHER OR NOT THE CIRCUMSTANCES GIVING RISE TO SUCH CAUSE MAY HAVE BEEN WITHIN THE CONTROL OF ANY OF THE PROTECTED PARTIES. IF ANY REMEDY HEREUNDER IS DETERMINED TO HAVE FAILED OF ITS ESSENTIAL PURPOSE, ALL LIMITATIONS OF LIABILITY, DISCLAIMERS OF LIABILITY, AND EXCLUSIONS OF LIABILITY SHALL REMAIN IN EFFECT.

You agree that the Protected Parties are not responsible in any way for damages caused by third parties who may use our Services or who provide Products or Services through the Platform, including but not limited to people who commit intellectual property infringement, defamation, tortious interference with economic relations, or any other actionable conduct towards you. Further, you agree that the Protected Parties are not responsible for any failure of a third party to comply with or fulfill any contractual obligation, or with respect to shipping or delivery, or any disruptions, scheduled or unscheduled, intentional or unintentional, of our Platform which may prevent access temporarily or permanently. We are not responsible for any fraud, malpractice, negligence, or other torts by any third party.

For jurisdictions that do not allow us to limit our liability: Notwithstanding any provision of these Terms, if your jurisdiction has provisions specific to waiver or liability that conflict with the above then our liability is limited to the smallest extent possible by Law. Specifically, we do not disclaim liability which is not lawful to exclude, either now or in the future.

The provisions of this Section are for the benefit of the Protected Parties. Each of the Protected Parties shall have the right to assert and enforce those provisions directly against you on its own behalf.

IF YOU ARE A RESIDENT OF A JURISDICTION THAT REQUIRES A SPECIFIC STATEMENT REGARDING RELEASE THEN THE FOLLOWING APPLIES. AS PART OF THESE TERMS, CALIFORNIA RESIDENTS MUST, AS A CONDITION OF THESE TERMS, WAIVE THE APPLICABILITY OF CALIFORNIA CIVIL CODE SECTION 1542, WHICH STATES, "A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM OR HER MUST HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR." YOU HEREBY WAIVE THIS SECTION OF THE CALIFORNIA CIVIL CODE. YOU HEREBY WAIVE ANY SIMILAR PROVISION IN LAW, REGULATION, OR CODE THAT HAS THE SAME INTENT OR EFFECT AS THE AFOREMENTIONED RELEASE.

Data Privacy & Security

Our privacy and security practices are governed by these Terms, our Privacy Policy, and Consumer Health Data Privacy Notice, and covers only those activities that are subject to all applicable provisions of U.S. federal, provincial, and state privacy laws. NCM's policy is to operate in compliance with the privacy legislation within each jurisdiction in which we operate. The Platform and Services are intended for use by users in the U.S., and Products purchased through the Platform will only be shipped to U.S. addresses; if you use the Platform from other locations, you are doing so on your own initiative and are responsible for compliance with applicable local laws regarding your online conduct and acceptable content, if and to the extent local laws apply.

If you provide us with a third party's contact information in connection with the Services, you represent that you have permission for us to contact such third party (including by email, telephone, or text message) using any of the contact information provided, including for marketing purposes.

You represent and warrant that when using the Services you will comply with all applicable laws and regulations, including the Health Insurance Portability and Accountability Act and its implementing regulations (HIPAA) and other federal, state, and provincial privacy and data security laws, and you will not provide any information, including protected health information, to us for which you do not have the required licenses, authorizations, or consents. You remain solely responsible for providing Patients with notices of your privacy practices as applicable. NCM will sign business associate agreements (BAAs) with Practitioners, where applicable, and who require them in order to comply with HIPAA and the Health Information Technology for Economic and Clinical Health Act (HITECH). Contact NCM directly for additional information.

Minors and Dependent Accounts

Patient Account holders associated with your online store must be at least 18 years old. You may create Dependent Accounts for the Patient Accounts associated with your online store. Dependent Accounts are limited to biological children of the Patient Account holder; you are responsible for only creating Dependent Accounts for the biological children of your Patients, and for receiving and maintaining any consents from the Patient necessary in order to create the Dependent Account. The Patient Account holder remains responsible for all matters, data, and records associated with their enabled Dependent Accounts. Minors are not able to access, manage, or place orders from the Dependent Accounts. Dependent Accounts are automatically disabled once the associated child reaches the age of 18, at which time they may create their own user account.

Additional Mobile Application Terms

You may be charged by your mobile service provider for downloading and/or accessing the Platform or Services on your phone or other mobile device. These charges may include data roaming charges if you do this outside your home territory. All these charges are solely your responsibility. If you do not pay the bills for your device then we assume that you have the permission from the person or entity that does before incurring any of these charges. Additional terms and conditions may apply to you based on the mobile device the Platform is installed on.

iOS - Apple. These Terms are an agreement between you and us, and not with Apple. Apple is not responsible for the Platform and the content thereof. You acknowledge that you have reviewed and agree to the App Store Terms and Conditions.

Submissions and Beta Testing

You may submit questions, comments, feedback, suggestions, ideas, improvements, plans, original or creative materials, or other information about the Platform either through our websites or mobile applications or otherwise. The content you submit is voluntary, non-confidential, gratuitous, and non-committal. By submitting such content, you grant us and our designees a worldwide, perpetual, irrevocable, non-exclusive, fully-paid up, and royalty free license to use, reproduce, prepare derivative works, combine with other works, alter, translate, distribute copies, display, perform, publish, license, or sub-license the content, and we shall be entitled to the unrestricted use and dissemination of the content for any purpose, commercial or otherwise.

We may offer certain functionality or Services as closed or open beta tests for the purpose of testing and evaluation. You agree that we have the sole authority and discretion to determine the period of time for testing and evaluation of beta testing. We will be the sole judge of the success of such testing and the decision, if any, to offer the Platform functionality or Services generally. We reserve the right to fully or partially discontinue, at any time and from time to time, temporarily or permanently, any of the beta testing with or without notice to you. You agree that we will not be liable to you or to any third party for any harm related to, arising out of, or caused by the modification, suspension, or discontinuance of any of the beta testing for any reason.

Minimum System Requirements

You are responsible for obtaining access to the internet and the equipment necessary to use the Platform and Services. The Platform will only work on compatible devices and operating systems, and certain functionality will only work if your device is connected to the internet. Some features may also only be available with certain operating systems. Mobile applications may not contain the same functionality available on the Platform.

Choice of Law and Forum of Dispute

You agree that all actions or proceedings arising out of, in connection with, or otherwise concerning these Terms shall be tried and litigated exclusively in the state or federal courts located in California and shall be governed by the laws of the State of California. You hereby waive the right to contest exclusive venue in the courts of California and irrevocably consent to the jurisdiction of the appropriate state or federal court in California for the purposes of these Terms.

Force Majeure

You agree that we are not responsible to you for anything that we may otherwise be responsible for, if it is the result of events beyond our control, including, but not limited to, acts of God, war, insurrection, riots, terrorism, crime, labor shortages (including lawful and unlawful strikes), embargoes, postal disruption, internet or communication disruption, unavailability of payment processing, failure or shortage of infrastructure, shortage of materials, pandemics or epidemics, or any other event beyond our control. In the case of inclement weather or other events beyond our control that interfere with our ability to deliver orders, we will attempt to deliver orders as soon as reasonably possible.

Severability

If any part of these Terms is ruled to be unlawful, void, or for any reason unenforceable, then such part shall be deemed severable from these Terms and shall be eliminated or limited to the minimum extent necessary. The remainder of these Terms, including any revised portion, shall remain and be in full force and effect.

Non-Waiver

NCM reserves all rights afforded to us under these Terms as well as under the provisions of any applicable Laws. Our failure to insist upon or enforce strict performance of any particular provision of these Terms or any applicable Laws shall not be construed as a waiver of the right to enforce that same provision under the same or different circumstances at any time in the future. Neither our course of conduct nor our trade practices will act to modify these Terms.

Account Termination and Cancellation

We may terminate your Account, access to the Platform, or our Services to you at our discretion at any time and for any reason, without explanation or prior notice, though we may in our sole discretion provide notice and/or explanation. If you have ordered Product from us directly, our liability for refunding you, if you have paid anything to us, will be limited to the amount you paid for goods or services which have not yet been and will not be delivered, except in cases where the termination or cancellation was due to your breach of these Terms, in which case you agree that we reserve the right offset our reasonable assessment of potential damages attributed to your breach against any sums owed to you.

Under no circumstances, including termination or cancellation of your Account or our Services to you, will we be liable for any losses related to actions of other users. You agree that if your use of the Platform or Services is terminated, you will not attempt to use the Platform or Services under any name, real or assumed, and further agree that if you violate this restriction after being terminated, you will indemnify and hold harmless the Restricted Parties from any and all liability that any such we may incur with respect thereto.

California Users

Pursuant to California Civil Code Section 1789.3, California users are entitled to the following specific consumer rights notice: The Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs may be contacted in writing at 1625 N. Market Blvd., Suite N 112, Sacramento, California 95834, or by telephone at (800) 952-5210.

Assignments

You may not assign your rights and/or obligations under these Terms to any other party without our prior written consent, and any such attempt will be null and void. We may assign our rights and/or obligations under these Terms to any other party at our discretion.

No Margin Accounts

Practitioners are required to establish Practitioner Wholesale Reseller Accounts to access wholesale pricing and have access to the Platform for the recommendation of Products to Patients for purchase. You do not have any say over the sale price of any Products. Practitioner will be the seller of record with respect to the sale of Products through the Platform. Sales tax exemptions/resale exemptions are only available if a resale certificate has been submitted to NCM.

Updates to These Terms

We may update the terms of these Terms from time to time. If we modify our Terms, we will post the revised version here, with an updated revision date. You agree to visit these pages periodically to be aware of and review any such revisions. By continuing to use our Platform or Services after such revisions are in effect, you accept and agree to the revisions and abide by them.

You agree that all agreements, notices, disclosures, and other communications that we provide to you electronically satisfy any legal requirement that such communications be in writing. You agree that any time you electronically transact, agree, or consent via the Platform is intended to be an electronic signature which binds you as if you had signed on paper.

HIPAA Business Associate Agreement

Please read this Agreement, as your use of our Platform constitutes your agreement to be bound by this Agreement in conjunction with the Terms and Conditions above. This HIPAA Business Associate Agreement (the "Agreement") governs the relationship between you ("Covered Entity") and North Coast Medical Inc. ("Business Associate").

WHEREAS, Business Associate may maintain, transmit create or receive data for or from Covered Entity that constitutes Protected Health Information (as defined at 45 CFR §160.103) to perform tasks on behalf of Covered Entity;

WHEREAS, Covered Entity is or may be subject to the requirements of 42 U.S.C. 1320d et seq. enacted by the Health Insurance Portability and Accountability Act of 1996 ("HIPAA"), the Health Information Technology for Economic and Clinical Health Act ("HITECH") and the implementing regulations set forth at 45 CFR Parts 160, 162 and 164 ("HIPAA Regulations"). As used herein, "PHI" refers to Protected Health Information maintained, transmitted, created or received by Business Associate for or from Covered Entity.

WHEREAS, to the extent required by the HIPAA Regulations and applicable state law, Business Associate is or may be directly subject to certain privacy and security obligations and penalty provisions of HIPAA, HITECH, the HIPAA Regulations and state law.

NOW, THEREFORE, the parties agree as follows:

Business Associate may use and disclose PHI only as expressly permitted or required by this Agreement or as required by law. Business Associate may use or disclose PHI as required to perform its obligations under any underlying service agreements, which includes the NCM Platforms User Agreement (collectively, "Service Agreement") between the parties to perform certain services as described in the Service Agreement ("Services"), provided that Business Associate shall not use or disclose PHI in any manner that would constitute a violation of the HIPAA Regulations if done by Covered Entity. Without limiting the generality of the foregoing, Business Associate shall not sell PHI or use or disclose PHI for purposes of marketing or fundraising, as defined and proscribed in the HIPAA Regulations, HITECH and applicable state law. Notwithstanding the preceding sentence, Business Associate and Covered Entity may use or disclose PHI as reasonably necessary to provide individualized product recommendations that constitute treatment, provided such recommendations are not marketing under 45 CFR § 164.508(a)(3). Business Associate shall limit its uses and disclosures of, and requests for, PHI (i) when practical, to the information making up a limited data set (as set forth at 45 CFR § 164.514); and (ii) in all other cases subject to the requirements of 45 CFR §164.502(b), to the minimum amount of PHI necessary to accomplish the intended purpose of the use, disclosure or request. To the extent Covered Entity notifies Business Associate of a restriction request granted by Covered Entity that would limit Business Associate's use or disclosure of PHI, Business Associate will comply with the restriction. To the extent Business Associate is to carry out an obligation of Covered Entity under the HIPAA Regulations, Business Associate shall comply with the requirements of the HIPAA Regulations that apply to Covered Entity in the performance of such obligation. Business Associate agrees to use and maintain reasonable and appropriate administrative, technical and physical safeguards to protect PHI from uses or disclosures not permitted by this Agreement, including, but not limited to, maintaining policies and procedures to detect, prevent or mitigate identity theft based on PHI or information derived from PHI. In addition, Business Associate agrees to comply with the applicable requirements of 45 CFR Part 164, subpart C of the HIPAA Regulations with respect to electronic PHI and any guidance issued by the Secretary of the Department of Health and Human Services ("HHS"). Business Associate specifically agrees to employ multiple security mechanisms to ensure the confidentiality, integrity and availability of all electronic PHI, including, but not limited to, authentication controls, authorization controls, audit controls and encryption.

  1. To the extent Business Associate becomes aware of or discovers any use or disclosure of PHI in violation of this Agreement, any Security Incident (as defined at 45 CFR

§164.304) any Red Flag (as defined at 16 CFR §681.2(b)) related to any individual who is the subject of PHI, and any Breach of Unsecured Protected Health Information (both as defined at 45 CFR §164.402), Business Associate shall promptly report such use, disclosure, incident, Red Flag or breach to Covered Entity. All reports of Breaches shall be made within ten (10) business days of Business Associate discovering the Breach and shall include the information specified at 45 CFR §

164.410. Business Associate shall mitigate, to the extent practicable, any harmful effect known to it of a use or disclosure of PHI by Business Associate not permitted by this Agreement. Business Associate shall promptly reimburse Covered Entity all reasonable costs incurred by Covered Entity with respect to providing notification of and mitigating a Breach involving Business Associate, including but not limited to printing, postage costs and toll-free hotline costs.

  1. In accordance with 45 CFR §§ 164.308(b)(2) and 164.502(e)(1)(i), Business Associate shall ensure that each subcontractor or agent that creates, receives, maintains, or transmits PHI on behalf of Business Associate agrees in writing to be bound by the same restrictions, terms and conditions that apply to Business Associate pursuant to this Agreement.

  2. In accordance with 45 CFR §164.524 and within fifteen (15) days of a request by Covered Entity for access to PHI about an individual contained in a Designated Record Set (as defined at 45 CFR §164.501), Business Associate shall make available to Covered Entity such PHI in the form requested by Covered Entity. If the requested PHI is maintained electronically, Business Associate shall provide a copy of the PHI in the electronic form and format requested by the individual, if it is readily producible, or, if not, in a readable electronic form and format as agreed to by Covered Entity and the individual. In the event that any individual requests access to PHI directly from Business Associate, Business Associate shall within ten (10) days forward such request to Covered Entity. Any denials of access to the PHI requested shall be the responsibility of Covered Entity.

  3. In accordance with 45 CFR §164.526 and within fifteen (15) days of receipt of a request from Covered Entity for the amendment of an individual's PHI contained in a Designated Record Set (for so long as the PHI is maintained in the Designated Record Set), Business Associate shall provide such information to Covered Entity for amendment and incorporate any such amendments in the PHI as required by 45 CFR §164.526. In the event a request for an amendment is delivered directly to Business Associate, Business Associate shall within ten (10) days of receiving such request forward the request to Covered Entity. Except for disclosures of PHI by Business Associate that are excluded from the accounting obligation as set forth at 45 CFR §164.528 or regulations issued pursuant to HITECH, Business Associate shall record for each disclosure the information required to be recorded by covered entities pursuant to 45 CFR §164.528. Within twenty (20) days of notice by Covered Entity to Business Associate that it has received a request for an accounting of disclosures of PHI, Business Associate shall make available to Covered Entity, or if requested by Covered Entity, to the individual, the information required to be maintained pursuant to this Section 7. In the event the request for an accounting is delivered directly to Business Associate, Business Associate shall within ten (10) days forward such request to Covered Entity.

  4. At Covered Entity's or HHS' request, Business Associate shall make its internal practices, books and records relating to the use and disclosure of PHI available to HHS for purposes of determining compliance with the HIPAA Regulations.

  5. Business Associate is not authorized to use or disclose PHI in a manner that would violate the HIPAA Regulations if done by Covered Entity, provided that Business Associate may:

a. use the PHI for its proper management and administration and to carry out its legal responsibilities.

b. disclose PHI for its proper management and administration and to carry out its legal responsibilities, provided that disclosures are required by law, or Business Associate obtains reasonable assurances from the recipient that the PHI will remain confidential and used or further disclosed only as required by law or for the purpose for which it was disclosed to the recipient, and the recipient notifies Business Associate of any instances of which it is aware in which the confidentiality of the information has been breached.

c. use and disclose PHI to report violations of law to appropriate Federal and State authorities, consistent with 45 CFR § 164.502(j)(1).

d. aggregate the PHI in its possession with the Protected Health Information of other covered entities that Business Associate has in its possession through its capacity as a business associate to other covered entities, provided that the purpose of such aggregation is to provide Covered Entity with data analysis relating to the health care operations of Covered Entity.

e. use PHI to create de-identified information, provided that the de-identification conforms to the requirements of 45 CFR § 164.514(b).

  1. If Business Associate conducts standard transactions (as defined in 45 CFR Part 160) for or on behalf of Covered Entity, Business Associate will comply and will require by written contract each agent or contractor (including any subcontractor) involved with the conduct of such standard transactions to comply, with each applicable requirement of the HIPAA Regulations (as set forth at 45 CFR Parts 160 and 162). Business Associate will not enter into, or permit its agents or contractors (including subcontractors) to enter into, any trading partner agreement in connection with the conduct of standard transactions for or on behalf of Covered Entity that: (i) changes the definition, data condition, or use of a data element or segment in a standard transaction; (ii) adds any data elements or segments to the maximum defined data set; (iii) uses any code or data element that is marked "not used" in the standard transaction's implementation specification or is not in the standard transaction's implementation specification; or (iv) changes the meaning or intent of the standard transaction's implementation specification. Business Associate agrees to participate in any test modification conducted by Covered Entity in accordance with the HIPAA Regulations.

  2. This Agreement shall be effective as of the Effective Date and shall remain in effect until Business Associate ceases to provide the Services to Covered Entity. Either party may terminate this Agreement effective immediately if it determines that the other party has breached a material provision of this Agreement and failed to cure such breach within thirty (30) days of being notified by the other party of the breach. If the non-breaching party determines that cure is not possible, such party may terminate this Agreement effective immediately upon written notice to other party. If termination is not feasible, the non-breaching party shall report the breach to HHS. The parties understand and agree that termination of this Agreement shall automatically terminate the relationship whereby Business Associate performs the Services on behalf of the Covered Entity.

  3. Upon termination of this Agreement, Business Associate shall either return or destroy, at no cost to Covered Entity, all PHI that Business Associate still maintains in any form. Business Associate shall not retain any copies of such PHI. Notwithstanding the foregoing, to the extent that it is not feasible to return or destroy such PHI, the terms and provisions of this Agreement shall survive termination of this Agreement, and Business Associate shall only use or disclose such PHI solely for such purpose or purposes which prevented the return or destruction of such PHI.

  4. Nothing in this Agreement shall be construed to create any rights or remedies in any third parties or any agency relationship between the parties. To the extent Business Associate is acting as a business associate under the HIPAA Regulations, Business Associate shall be subject to the penalty provisions specified in HITECH. Upon the effective date of any final regulation or amendment to final regulations promulgated by HHS with respect to PHI, this Agreement will be deemed to be automatically amended such that the obligations imposed on the parties remain in compliance with such regulations. The terms and conditions of this Agreement shall override and control any conflicting term or condition of any agreement between the parties with respect to the Services including the NCM Platforms User Agreement, and all non-conflicting terms and conditions shall remain in full force and effect.