Geneius Health LLC, DBA Toolbox Genomics

Geneius Health LLC, DBA TOOLBOX GENOMICS AFFILIATE PROGRAM AGREEMENT TERMS AND CONDITIONS 1.AppointmentToolbox hereby appoints and authorizes Affiliate, during the Term and subject to the terms and conditions herein, to participate in Toolbox’s marketing affiliate and referral program (the “Affiliate Program”). Affiliate hereby accepts the foregoing appointment upon the terms and conditions set forth in this Agreement. 2.Use of Toolbox Marks; Approval of Marketing Materials2.1.Toolbox-Prepared Materials and Toolbox Marks. Toolbox may make available logos, trademarks, marks, and trade names that Toolbox has or may adopt from time to time (collectively the “Toolbox Marks”) and graphic and textual links or other marketing materials designated for Affiliate’s use (collectively, the "Toolbox Materials") which, in accordance the license granted in Section 2.2, Affiliate may display on web sites owned or controlled by Affiliate, in emails sent by Affiliate, and in online advertisements (collectively, "Media"). Except as expressly granted in this Agreement, Affiliate will not acquire any right, title, or interest under any Toolbox Materials, Toolbox Marks, or other intellectual property rights of any kind of Toolbox. Toolbox reserves all other rights in and to its intellectual property.2.2.License. Subject to Affiliate’s compliance with the terms of this Agreement, Toolbox hereby grants to Affiliate a revocable, non-transferable, non-sub-licensable (except with the prior, express written consent of Toolbox), non-exclusive, fully paid-up, royalty-free limited license Toolbox Materials and Toolbox Marks solely in connection with the marketing, promotion, advertisement, and solicitation of sales of the Services during the Term. Such license will immediately terminate upon the termination of this Agreement. Toolbox may change, suspend, or discontinue any aspect of previously provided Toolbox Materials. Affiliate agrees to promptly implement any request from Toolbox to remove, alter, or modify any Toolbox Materials or Toolbox Marks used by Affiliate under this Agreement.2.3.Approval of Affiliate Materials. If Affiliate intends to use Toolbox branding or marketing materials in their promotional efforts, a copy of all media advertising, printed materials, and electronic documents in which the Toolbox Marks are to be used, excluding the Toolbox Materials (collectively, “Affiliate Materials”), must be submitted by Affiliate to Toolbox for review in advance and must not be publicly distributed or used in any manner or Media without the prior written approval of Toolbox, which approval will be at Toolbox’s sole discretion. Once approved, Affiliate may continue to use such Affiliate Materials without submitting identical copies for further approval. Affiliate agrees not to implement search advertising on the Toolbox Company Name, URL or Brand names (or close derivatives thereof). 2.4. Affiliate’s Responsibility for Content. Affiliate acknowledges and agrees that, between Toolbox and Affiliate, Affiliate shall have sole responsibility for the development, operation, and maintenance of, and all content on or linked to, Affiliate’s Media.3.Affiliate Representations and WarrantiesAffiliate represents, warrants, and covenants that:3.1.Affiliate has all necessary licenses or permits to perform its obligations or exercise its rights under this Agreement and will comply with all applicable laws and regulations, including laws and regulations relating to data protection, data privacy, anti-bribery, and marketing (e.g., CAN-SPAM) Furthermore, if Affiliate is a licensed practitioner, Affiliate agrees to comply with, and hold Toolbox harmless in relation to, all applicable laws and regulations related to providing testing to patients and accepting remuneration from the Affiliate arrangement;3.2.All information provided by Affiliate to Toolbox (including, without limitation, information provided in the application to become an affiliate) is true and complete in all material respects. Affiliate shall submit updated information to Toolbox to correct any previously provided information that is inaccurate or outdated; 3.3.Affiliate has not used any aliases or other means to mask its true identity or contact information;3.4.The undersigned representative of Affiliate has legal authority to enter into this Agreement on behalf of Affiliate and is 18 years of age or older;3.5.Affiliate Materials published or disseminated by Affiliate in any Media:(a) clearly identify Affiliate as the creator of such materials and that Affiliate is independent from Toolbox;(b) do not copy or resemble the look and feel of Toolbox’s website or create the impression that Toolbox endorses Affiliate’s Media;(c) do not make any representations, warranties or other statements concerning Toolbox or any of its respective products or services, except as expressly authorized under this Agreement;(d) are not illegal, do not infringe upon the intellectual property, privacy, or other rights of any third party, and do not contain or link to any material which is harmful, threatening, defamatory, obscene, sexually explicit, harassing, promotes violence, promote discrimination (whether based on sex, religion, race, ethnicity, nationality, disability or age), promote illegal activities (such as gambling), contain profanity or otherwise contain materials that Toolbox considers objectionable (collectively, "Objectionable Content");(e) contain no malicious software or destructive code, including without limitation parasite ware, adware, spyware, deceptive pop-ups and pop-unders, viruses, rogue programs, time bombs, back doors, Trojan horses, and worms;3.6.Affiliate complies with any applicable terms, conditions, guidelines, and policies of any third-party services used by Affiliate in connection with the Affiliate Program, including but not limited to, email providers, social networking services, and ad networks;3.7.Affiliate posts and makes available to end-users, prior to the collection of any personally identifiable information, a privacy policy in compliance with all applicable laws that fully and accurately discloses how Affiliate collects, uses, and shares personally identifiable information, including in connection with the Affiliate Program; 3.8.Affiliate, and its employees and contractors, will not engage in any unlawful or fraudulent conduct intended to increase its Commissions (defined below) or to decrease Commissions earned by other affiliates participating in the Affiliate Program;3.9.Affiliate does not place advertisements relating to the Services or using Toolbox Marks on any third-party controlled media or channels or online auction platform (e.g., eBay, Amazon) or online marketplaces (e.g., Craigslist); 3.10.Affiliate does not promote the Services, use the Toolbox Materials, or deliver leads to Toolbox using telemarketing, mailings, SMS marketing, incentivized traffic, auto-dialers, or email marketing to recipients who (a) are not current customers or subscribers of Affiliate or Toolbox or (b) have not otherwise authorized Affiliate to send such marketing communications; and3.11.Affiliate represents and warrants that no un-recited consideration, kickbacks, fees, payments, or things of value above what is ordinarily encountered in usual and customary business practices and what is permitted by applicable anti-kickback law were given to or requested by any employee or agent of Toolbox as an inducement to enter into or continue this Agreement, and Affiliate shall immediately report any such request, demand, or occurrence by any employee or agent of Toolbox to Toolbox.3.12. Affiliate May Not Use Paid Search On Any Version Of Our Brand Name(s).3.13. Affiliate May not distribute the coupon code to other coupon sites. Coupon codes found on coupon sites will be deactivated and new codes issued. If coupon codes are repeatedly found on coupon sites, affiliate agreement will be canceled.4.Content Toolbox Materials contained within Affiliate’s content and marketing cannot be modified. The Affiliate agrees to not present Toolbox Genomics and its products in any way that diminishes the Toolbox Genomics brand or in conjunction with any profane or illegal content. 5.Advertising Campaigns If conducting an advertising campaign relating to the Affiliate Program, Affiliate represents, warrants, and covenants that: 5.1.Affiliate will not use Toolbox Materials or Toolbox Marks in connection with any chat rooms, bulletin boards, or online forums unless expressly agreed by Toolbox in writing. 5.2.Affiliate will not use pop-ups, pop-unders, or client-side ad serving software.5.3.Affiliate will not (a) cause the overwriting of any cookies or other technologies intended to divert ToolBox Genomics testing offers from other participants in the Affiliate Program through any other means than a customer-initiated click on a qualifying link on an Affiliate’s web page or email; (b) target text on websites, other than those websites fully owned by the Affiliate, for the purpose of contextual marketing; or (c) remove, replace, or block the visibility of banners used in connection with the Affiliate Program with any other banners, other than those that are on web sites fully owned by the Affiliate.6.Affiliate Network Campaigns If Affiliate maintains its own affiliate networks (the “Network”), Affiliate agrees that it will expressly forbid any affiliates in Affiliate's Network (“Third Party Affiliate”) to modify the Toolbox Materials in any way. Affiliate agrees to maintain its Network according to the highest industry standards. Affiliate shall not permit any party to be a third-party Affiliate whose web site or business model involves content containing Objectionable Content. All Affiliates must be in good standing with Affiliate, ShareASale and Toolbox. Affiliate must require and confirm that all third-party Affiliates affirmatively accept, through verifiable means, this Agreement prior to obtaining access to the Toolbox Materials. Affiliate shall promptly terminate any third-party Affiliate who takes, or could reasonably be expected to take, any action that violates the terms and conditions of this Agreement, and revoke all sub-licenses provided by Affiliate to such third-party Affiliate under this Agreement. In the event that either Party suspects any wrongdoing by a third-party Affiliate with respect to the Toolbox Materials, Affiliate shall promptly disclose to Toolbox the identity and contact information for such third-party Affiliate. Affiliate shall remain liable for all acts or omissions of any third-party Affiliate.7.Commissions7.1.Qualified Sales. A “Qualified Sale” is the purchase of Toolbox Services from a Toolbox customer referred by Affiliate, where such referral is evidenced by the customer’s use of a unique referral code provided by Toolbox to the Affiliate. A Qualified Sale does not include any sales resulting from Affiliate’s breach of this Agreement.7.2.Earned Commissions. Commissions earned by Affiliate shall be outlined and agreed upon within the Share A Sale platform, or as otherwise mutually agreed upon in writing (the “Commissions”). The Parties may change the rate of Commissions at any time by mutual written agreement. Toolbox will not owe Commissions to Affiliate for any sale until the time period for the customer to receive a refund for such sale under Toolbox’s applicable refund policy has expired. Toolbox will not pay Commissions for purchases by Affiliate or anyone within Affiliate’s organization, whether made by an Affiliate’s employee or contractor or by a robot, computer script, or other automated tool. Toolbox reserves the right to deny Commissions based on any sales resulting from any acts of Affiliate’s employees or contractors that violate the terms of this Agreement. Payment Terms. Subject to Affiliate’s compliance with the terms of this Agreement, Toolbox will pay Commissions due and owing to Affiliate under this Agreement on a monthly basis as offered on ShareASale. 7.3.Commission Reports. Upon written request by Affiliate, Toolbox will provide or make available a report of Qualified Sales to Affiliate. In the event that Affiliate in reasonably believes that the report is inaccurate, Toolbox agrees to cooperate in good faith with Affiliate to resolve such dispute, provided that Affiliate informs Toolbox in writing and submits written documentation in support of its position within thirty (30) days of the date on the disputed report. 7.4.Toolbox’s Remedies. In addition to any other rights and remedies available under this Agreement or applicable law, Toolbox may withhold and freeze any unpaid Commissions or charge back paid Commissions to Affiliates’ account if (i) Toolbox determines that Affiliate, a Third Party Affiliate, or a sub-licensee of Affiliate has violated this Agreement; or (ii) Toolbox receives any complaints about Affiliate’s participation in the Affiliate Program which Toolbox reasonably believes to violate this Agreement. Such withholding or freezing of Commissions, or charge backs for paid Commissions, shall be without regard as to whether or not such Commissions were earned as a result of such breach. 8.Confidentiality8.1.Definition of Confidential Information. “Confidential Information” means and includes any information that: (i) is disclosed by one Party (the “Disclosing Party”) to the other (the “Receiving Party”) in written, graphic, machine-readable or other tangible form and is marked “Confidential,” “Proprietary,” or in some other manner to indicate its confidential nature, or, if orally disclosed or obtained by observation, is identified as confidential at the time of disclosure and confirmed in writing to have been confidential within thirty (30) days of disclosure or observation; or (ii) a Party should, in the exercise of reasonable judgment, know is confidential to the other Party.8.2.Confidentiality Obligations. Each Receiving Party agrees: (i) to protect and safeguard the Disclosing Party’s Confidential Information against unauthorized use, publication, or disclosure with the same degree of care that it uses to protect its own Confidential Information and, in any event, not less than reasonable care; (ii) to restrict access to the Disclosing Party’s Confidential Information to those of its officers, directors, employees, agents, attorneys, accountants, investment advisors, and contractors who have agreed to maintain the confidentiality of the Confidential Information; and (iii) not to use, or permit others to use, the other party’s Confidential Information except as is reasonably necessary to perform its obligations or exercise its rights under this Agreement. 8.3.Exceptions. Confidential Information does not include information: (i) in the public domain at the time of disclosure or which enters the public domain after such disclosure through no fault of a Party; (ii) generally disclosed to third parties by a Party without restriction; (iii) communicated to a Party by a third party with the unrestricted right to do so: or (iv) approved for release by a Party in writing.8.4.Return of Confidential Information. Upon termination or expiration of this Agreement, or upon the request of the Disclosing Party, whichever is earlier, the Receiving Party shall promptly return or, at the Disclosing Party’s option, destroy all records, notes, and other written, printed, electronic or tangible materials in the possession or control of the receiving party, embodying or pertaining to the Confidential Information of the Disclosing Party.8.5.Remedies. Each Party understands and acknowledges that any disclosure or misappropriation of any of the Disclosing Party’s Confidential Information in violation of this Agreement may cause the Disclosing Party irreparable harm, the amount of which may be difficult to ascertain and, therefore, agrees that the Disclosing Party shall have the right to apply to a court of competent jurisdiction for an order restraining any such further disclosure or misappropriation and for such other relief as the Disclosing Party deems appropriate. Such right of the Disclosing Party shall be in addition to the remedies otherwise available to the disclosing party at law or in equity. 9.Disclaimers of WarrantyTHE AFFILIATE PROGRAM, TOOLBOX MATERIALS AND ANY SERVICES PROVIDED IN CONNECTION THEREWITH, ARE PROVIDED TO AFFILIATE "AS IS". EXCEPT AS EXPRESSLY SET FORTH HEREIN, TOOLBOX EXPRESSLY DISCLAIMS ALL WARRANTIES, EXPRESS, IMPLIED OR STATUTORY, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON INFRINGEMENT, AND ANY WARRANTIES ARISING OUT OF COURSE OF DEALING, USAGE, OR TRADE. TOOLBOX DOES NOT WARRANT THAT THE AFFILIATE PROGRAM OR TOOLBOX MATERIALS WILL MEET AFFILIATE'S SPECIFIC REQUIREMENTS OR THAT THE OPERATION OF THE AFFILIATE PROGRAM, TOOLBOX MATERIALS, OR TOOLBOX WEBSITES ON WHICH CUSTOMER ORDERS RELATING TO THIS AGREEMENT ARE MADE WILL BE COMPLETELY ERROR- FREE OR UNINTERRUPTED. TOOLBOX DOES NOT GUARANTEE THAT AFFILIATE WILL EARN ANY SPECIFIC AMOUNT OF COMMISSIONS. AFFILIATE IS SOLELY RESPONSIBLE FOR ITS EMPLOYEES’ AND CONTRACTORS’ COMPLIANCE WITH APPLICABLE LAWS AND REGULATIONS, AND AFFILIATE MAY NOT RELY ON ANY APPROVAL RECEIVED FROM TOOLBOX RELATING TO AFFILIATE MATERIALS, MEDIA, OR MARKETING ACTIVITY AS CONFIRMATION THAT ALL APPLICABLE LEGAL AND REGULATORY REQUIREMENTS HAVE BEEN MET.10.Limitation of LiabilityIN NO EVENT SHALL TOOLBOX BE LIABLE FOR ANY UNAVAILABILITY OR INOPERABILITY OF TOOLBOX MATERIALS, TOOLBOX WEBSITES, TECHNICAL MALFUNCTION, COMPUTER ERROR, CORRUPTION, OR LOSS OF INFORMATION, OR OTHER INJURY, DAMAGE OR DISRUPTION OF ANY KIND RELATING TO THIS AGREEMENT. IN NO EVENT WILL TOOLBOX BE LIABLE FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, PERSONAL INJURY / WRONGFUL DEATH, SPECIAL OR EXEMPLARY DAMAGES, INCLUDING BUT NOT LIMITED TO, LOSS OF PROFITS OR LOSS OF BUSINESS OPPORTUNITY, EVEN IF SUCH DAMAGES ARE FORESEEABLE AND WHETHER OR NOT TOOLBOX HAS BEEN ADVISED OF THE POSSIBILITY THEREOF. TOOLBOX'S CUMULATIVE LIABILITY TO AFFILIATE, FROM ALL CAUSES OF ACTION AND ALL THEORIES OF LIABILITY, WILL BE LIMITED TO AND WILL NOT EXCEED THE AMOUNTS PAID TO AFFILIATE BY TOOLBOX IN COMMISSIONS DURING THE SIX (6) MONTHS IMMEDIATELY PRIOR TO SUCH CLAIM.11.Indemnity11.1.By Affiliate. Affiliate shall defend, indemnify and hold harmless Toolbox and its affiliates, and their respective officers, directors, employees, agents, contractors, successors and permitted assigns, against any and all losses, damages, liabilities, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs or expenses of whatever kind, including reasonable attorneys’ fees, arising out of relating to (i) the acts or omissions of Affiliate, including its employees or representatives; or (ii) any breach by Affiliate of this Agreement or applicable law.11.2.By Toolbox. Toolbox shall defend, indemnify and hold harmless Affiliate and its affiliates, and their respective officers, directors, employees, agents, contractors, successors and permitted assigns, against any and all losses, damages, liabilities, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs or expenses of whatever kind, including reasonable attorneys’ fees, arising out of relating to (i) any claims that the use of Toolbox Materials or Toolbox Marks infringes upon the intellectual property rights of a third party; or (ii) any breach by Toolbox of this Agreement or applicable law.12.Term and Termination; Amendment12.1.Term. The term of this Agreement begins on the date of execution above and continues until terminated as provided under this Agreement. 12.2.Termination by Toolbox without Cause. This Agreement may be terminated by Toolbox upon ten (10) days written notice to Affiliate. 12.3.Termination for Cause. In addition to any remedies that may be provided in this Agreement, either Party may terminate this Agreement with immediate effect upon notice to the other Party, if the other Party has not substantially performed or complied with any of the terms of this Agreement, in whole or in part; or becomes insolvent, files a petition for bankruptcy, or commences or has commenced against it proceedings relating to bankruptcy, receivership, reorganization, or assignment for the benefit of creditors.12.4.Effect of Termination. Upon termination, Affiliate shall immediately stop all referrals to Toolbox and cease all use of Toolbox Materials and Toolbox Marks. Termination will discharge and release the Parties from all obligations and liability under this Agreement, except for Toolbox’s post-termination obligation to make any and all Commission payments that arose during the Term in accordance with Section 7 and each Party’s obligations that survive under Section 13.8 of this Agreement. The sole fact of this Agreement’s termination shall not make either Party liable to the other for any additional compensation, reimbursement, losses, or damages whatsoever.12.5.Amendments to this Agreement. Toolbox may modify any of the terms and conditions of this Agreement at any time by providing Affiliate with a notification by email. The changes will become effective ten (10) business days after such notice. Affiliate’s continued participation in this Affiliate Program after the amended Agreement has taken effect constitutes Affiliate’s acceptance to the amended Agreement.13.General Provisions13.1.Parties’ Relationship. The Parties hereto are independent contractors. Nothing herein or in the transactions contemplated by this Agreement shall be construed as, or deemed to be, the formation of an agency relationship, partnership, association, joint venture, or similar entity by or between the Parties. 13.2.No Obligations or Requirements. Nothing in this Agreement shall authorize, allow or obligate the Affiliate to: (i) make any representations or warranties regarding Toolbox; (ii) negotiate the terms and conditions of the Services to be provided; (iii) assist in the valuation of the Services to be provided; (iv) participate in presentations or negotiations with customers related to the Services to be provided; (v) make any recommendation to customers regarding the Services to be provided; or (vi) participate in detailed discussions with customers related to the Services to be provided.13.3.Governing Law; Venue. This Agreement shall be governed by, and construed in accordance with, the laws of the State of California without regard to any conflicts of law rules. Venue for all disputes arising under or related to this Agreement shall be heard in the state or federal courts located in San Francisco County, California.13.4.Severability. If any provision of this Agreement is determined to be invalid, illegal, or unenforceable, the remaining provisions of this Agreement shall remain in full force if the essential terms and conditions of this Agreement for each Party remain valid, binding, and enforceable. 13.5.Notices. All notices required under this Agreement shall be in writing, addressed to the Party in question at the address set forth on the first page of this Agreement, and shall be deemed effectively given (i) upon personal delivery to the Party to be notified; (ii) three (3) business days after having been sent by registered or certified mail, return receipt requested, postage prepaid; or (iii) one (1) business day after deposit with a nationally recognized overnight courier.13.6.Assignability. Affiliate may not assign or transfer its rights or obligations under this Agreement, whether by operation of law or otherwise, without the prior written consent of Toolbox. Toolbox may assign this Agreement without the consent of Affiliate. Any attempted assignment in contravention of this Section 13.6 shall be void and shall entitle Toolbox terminate this Agreement immediately. This Agreement shall be binding on all successors and permitted assigns of the parties.13.7.No Third-Party Beneficiaries. Parties agree that this Agreement is for their benefit only and is not intended to confer any rights or benefits on any third party. There are no third-party beneficiaries as to this Agreement.13.8.Survival. Sections 8 through 13 and any payment obligations for Commissions accrued shall survive termination of this Agreement.13.9.Complete Agreement. This Agreement constitutes the final agreement between the parties and is the complete and exclusive expression of the parties’ agreement on the matters contained in this Agreement. This Agreement expressly supersedes any other agreement between the parties hereto regarding the subject matter of this Agreement. 13.10.Waiver. The Parties may waive any provision in this Agreement only by a writing executed by the Party against whom the waiver is sought to be enforced. No failure or delay in exercising any right or remedy or requiring the satisfaction of any condition under this Agreement, and no course of dealing between the parties, will operate as a waiver of any continuing or succeeding breach, or as a waiver of any right, remedy, or condition. 13.11.Counterparts. The Parties may execute this Agreement in counterparts, each of which constitutes an original, and all of which, collectively, constitute only one agreement. For purposes hereof, a facsimile copy of this Agreement, including the signature page hereto, shall be deemed to be an original and will have the same force and effect as an original document with original signatures.