(a)        Services.  Mettle retains you to [describe] (the “Services”).  This is not a contract of employment.  You retain sole and absolute discretion and judgment and shall have the right to control and determine the time, place, methods, manner and means of performing the Services. Mettle will have no right or authority to direct or control you with respect to the performance of the Services.  Mettle is interested only in the results to be achieved.  The manner and method of performing all Services, and achieving the desired results, will be under your exclusive control.  You shall perform all Services in a professional manner to the best of your abilities. You can perform the Services at a location of your choice.  The parties acknowledge and agree that the Services are outside the usual course of Mettle’s business..

            (b)        Scope of Authority.  You are not authorized to enter into, assume or create any contract, promise, obligation or responsibility, express or implied, on behalf of Mettle or in Mettle’s name, or to bind Mettle. You shall not use Mettle’s trade names, trademarks, service names or service marks without Mettle’s prior written approval.

            (c)        Relationship of Parties; Taxes.  It is the intent of the parties that you will provide the Services only as an independent contractor and that you will not hold yourself out or deemed to be an employee or other type of agent of Mettle for any purpose.  You may be required to provide Mettle with a completed W-9 tax form.  Mettle will not withhold any amounts for employment or income taxes or other deductions, and you will be solely responsible for payment of all income taxes, estimated taxes, and self-employment taxes or other withholdings required under applicable tax laws and otherwise.

            (d)        Non-Exclusivity.  You are free to perform services for any other person or entity, including the Mettle’s competitors, at any time. Nothing in this Agreement grants Mettle any right of exclusivity over your time or services.

            (e)        Term of Retention.  The term of this Agreement will continue for [three (3)] months (the “Term”).  Either party may terminate this Agreement during the Term with at least fifteen (15) days’ advance written notice.  If you love hosting, you and Mettle may mutually agree to renew this Agreement for successive [three (3) month] terms.

            (f)        Compensation.  You will be paid a one-time honorarium in the amount of $[●] for the Services, payable within thirty (30) days of the Effective Date.  Should you and Mettle agree to renew this Agreement, for each renewal, you will be compensated a one-time honorarium in the same amount, and within thirty (30) days of the renewal.

            (g)        Benefits.  You will not be eligible to participate in any benefits or programs sponsored or financed by Mettle for its employees, including, without limitation, any insurance, workers’ compensation, retirement, vacation, sick, or holiday programs and/or benefits.  Mettle will not provide workers’ compensation coverage for you. Any and all workers’ compensation coverage, if any, will be your sole responsibility.

            (h)        Expenses.  You will be fully responsible to pay any and all expenses and disbursements that you incur in the performance of the Services.  However, Mettle will reimburse you for any reasonable and necessary out-of-pocket expenses incurred by you as a consequence of performing the Services, in accordance with any applicable expense policy.

(i)         Tools and Equipment.  You will furnish and be solely responsible for all supplies, tools, instrumentalities, and other materials that may be necessary to perform the Services.  Mettle may, on an occasional basis, make certain existing materials available for your optional use, but such materials are incidental and not necessary for performance of the Services, and your use of them is at your sole discretion.

(j)         Confidential Information.  Mettle’s Confidential Information is very important to the business.  During and after your performance of the Services, you will not, directly or indirectly, use or disclose any Confidential Information except as necessary to perform the Services or as authorized in writing by Mettle. “Confidential Information” means all non-public information, in any form, relating to Mettle’s business, including without limitation pricing, customer information, financial data, business plans, technical data, software and intellectual property. Confidential Information does not include information that (a) is or becomes publicly available through no fault of yours, (b) was known to you prior to disclosure by Mettle, or (c) is independently developed by you without use of Confidential Information. Nothing prevents you from disclosing Confidential Information as required by applicable law or regulation, or pursuant to a valid order of a court or government agency, provided that you give Mettle prompt written notice of any such requirement (to the extent legally permitted) to allow Mettle to seek a protective order or other appropriate remedy.

(k)        Intellectual Property Rights.  Likewise, Mettle’s intellectual property is very important to the business.  Mettle will be the sole and exclusive owner of all inventions, discoveries, developments, designs, works of authorship, software, and other materials conceived, developed or made by you during the Term that (a) are developed using Mettle’s resources, equipment, supplies, facilities, or trade secrets, or (b) result from your performance of the Services (collectively, the “Intellectual Products”). You will promptly disclose all Intellectual Products to Mettle, and you hereby assign to Mettle all right, title, and interest in and to the Intellectual Products, including all intellectual property rights therein.  You will execute all documents and take all actions reasonably requested by Mettle to perfect its rights in the Intellectual Products, at Mettle’s expense, and you irrevocably appoint Mettle as your attorney-in-fact to execute such documents on your behalf.  You grant to Mettle a non-exclusive, perpetual, worldwide, royalty-free, irrevocable license (with the right to sublicense) to use any pre-existing intellectual property that you incorporate into any Intellectual Product.

   (l)         Miscellaneous. The invalidity or unenforceability of any provision of this Agreement will not affect the validity or enforceability of any other provision.  If a court determines that any provision is invalid or unenforceable, such court shall modify the provision to the minimum extent necessary to render it enforceable.  This Agreement sets forth the entire understanding between the parties as to the subject matter hereof and supersedes all prior discussions, negotiations, and agreements, whether oral or written.  No waiver, alteration, or modification of this Agreement shall be valid unless in writing and signed by the Party to be charged.  You may not assign this Agreement in whole or part without the prior written consent of Mettle.  This Agreement shall be governed by and construed in accordance with the laws of the State in which you reside at the time you stop providing the Services, without regard to its conflict of laws principles.  Any notice required or permitted under this Agreement shall be in writing and shall be deemed received (a) when delivered personally, (b) delivered by recognized overnight carrier to the applicable address set forth on the signature page hereto or (c) sent by email to the applicable email address set forth on the signature page hereto, effective upon confirmed receipt.  Either party may change its address for notices by giving written notice to the other party.  This Agreement may be executed in several counterparts (any of which counterparts may be delivered by electronic mail in portable document format (pdf) or any electronic signature complying with the U.S. federal ESIGN Act of 2000 (including DocuSign)), each of which shall be deemed an original and all of which shall together constitute one and the same instrument.

EXHIBIT A

COMMUNITY HOST TERMS AND CONDITIONS

1.      Services Generally.  Community Host will render the Community Host services described on the Cover Page, including hosting or facilitating Sessions and participating in Mettle Health’s community forums.  As a condition of beginning to serve as a Community Host, and of maintaining active Host status, Community Host will (i) complete Mettle Health’s live host training prior to hosting or facilitating any Session, and (ii) participate in Mettle Health’s ongoing monthly moderation guidance sessions for community hosts on the Services, in each case as made available by Mettle Health from time to time.  Community Host’s conduct in connection with the Content must be (i) consistent with Mettle Health’s then-current brand, tone, and community guidelines, (ii) free of inappropriate language and/or any content promoting bigotry, racism or discrimination based on race, gender, religion, nationality, disability, sexual orientation, age or politics, (iii) free of any false, misleading, or unsubstantiated health or medical claims, (iv) free of any statement that is defamatory, or that violates any third party’s privacy or publicity rights, and (v) free of any individually identifiable health information or other personal information regarding any patient or caregiver, except as expressly authorized in writing by Mettle Health.

2.      Compensation. 

(a)    Compensation.  In consideration of Community Host’s hosting and facilitation of Sessions and participation in Mettle Health’s community forums under this Agreement, Mettle Health will provide Community Host with: (i) a complimentary Mettle Health membership for the period set forth in the applicable Statement of Work (the “Membership Period”); and (ii) a personal Affiliate Code that Community Host may share with Community Host’s audience, entitling Community Host to the affiliate revenue share set forth in the applicable Statement of Work on membership revenue generated through referrals using that Affiliate Code (“Affiliate Revenue”; together with the Membership Period, the “Compensation”).  Affiliate Revenue accrues only while Community Host maintains active host status on the Services; if Community Host steps down, is removed, or otherwise ceases to be an active Community Host, no further Affiliate Revenue will accrue on referrals occurring after that date, regardless of whether the Affiliate Code itself remains technically active for tracking purposes.  In addition, in consideration of Community Host’s creation of written or video Content, the applicable Statement of Work will separately specify the Commissioned Content Fee and/or Licensed Content Fee payable for the Content described therein, in addition to the Compensation described above.

(b)    Payments.  Mettle Health will activate Community Host’s Membership Period and issue Community Host’s Affiliate Code promptly following the Effective Date of the applicable Statement of Work.  Any Commissioned Content Fee, Licensed Content Fee, and accrued Affiliate Revenue due to Community Host hereunder will be paid within 30 days after the applicable Session or other service is performed, or, for any deliverable Content, after Community Host’s delivery of that Content to Mettle Health.  All payments made under this Agreement are contingent on Community Host’s complying with all requirements of this Agreement, and any additional requirements set forth to enable Mettle Health and its payment processors to comply with applicable payment laws and regulations.

3.      Content Ownership and Use.

(a)    Copyright Ownership.  Except as set forth below with respect to Licensed Content (as defined herein), Community Host acknowledges and agrees that any Session recordings, forum posts, and other Content that Community Host creates in or in connection with a Session constitute a “work made for hire” as defined in Section 101 of the U.S. Copyright Act, 17 U.S.C. §101, and that Mettle Health shall be deemed the sole author and owner thereof for all purposes under copyright law.  To the extent any such Content, or any portion thereof, is determined not to constitute a “work made for hire”, Community Host hereby assigns to Mettle Health all of its rights, title and interest in and to that Content and all related intellectual property rights.  Notwithstanding the foregoing, any Content that constitutes Licensed Content, including any user-generated content created by Community Host independently of Mettle Health’s direction and licensed to Mettle Health rather than commissioned by Mettle Health, is owned solely by Community Host, and Mettle Health’s rights therein are limited to the license(s) expressly granted under this Agreement.

(b)    Commissioned Content.  Where Content described in subclause (a) above is created by Community Host at Mettle Health’s request and specification as a work made for hire (or, to the extent not deemed a work made for hire by operation of law, is assigned to Mettle Health) (“Commissioned Content”), Mettle Health owns all right, title, and interest in such Commissioned Content.  Community Host acknowledges that Mettle Health may, but is not obligated to, use Commissioned Content for any legitimate business purpose, including publishing the Content across the Properties.  Mettle Health will provide Community Host with attribution by name and role in connection with the Commissioned Content (for example, “Hosted [or Created] by [Community Host name], [Community Host role]”), it being understood that such attribution is a courtesy credit only and does not constitute, evidence, or imply any claim by Community Host to authorship or ownership of the Commissioned Content, which is and remains Mettle Health’s sole property as described above.  Community Host hereby waives any right to prior inspection or approval of any modifications to or derivative works of the Commissioned Content made by or on behalf of Mettle Health; provided, that Community Host may request, in writing, that Mettle Health cease any use of Community Host’s name in connection with the Content.

(c)    Licensed Content.  Where Community Host, on Community Host’s own initiative and not at Mettle Health’s specification, independently creates a resource, handout, or other item of Content for use in connection with Community Host’s circle or forum participation (and not a Session recording or forum post itself, which are addressed in subclauses (a) and (b) above), and Community Host retains ownership of the underlying copyright (“Licensed Content”), Community Host grants Mettle Health an exclusive right to publish and distribute the Licensed Content across the Properties, beginning on the date the Licensed Content is first published, for an initial period of twelve (12) months or such other period as the Parties may agree in writing (the “Exclusivity Period”).  The Parties may agree in writing to shorten, extend, or otherwise modify the Exclusivity Period applicable to any specific item of Licensed Content.  If Mettle Health does not publish or otherwise use an item of Licensed Content within twelve (12) months after Community Host’s delivery of that Licensed Content, Community Host may request in writing that Mettle Health confirm whether it intends to use such Licensed Content, and if Mettle Health does not commence use within thirty (30) days after that request, the Exclusivity Period for that Licensed Content will be deemed to have expired.  Upon expiration of the Exclusivity Period applicable to an item of Licensed Content (whether by passage of time or as deemed under the preceding sentence), Mettle Health’s right to publish and distribute that Licensed Content across the Properties automatically becomes non-exclusive and perpetual, and Community Host may thereafter also republish or syndicate that Licensed Content on other platforms.  For the avoidance of doubt, expiration of the Exclusivity Period does not terminate, lapse, or otherwise diminish Mettle Health’s right to continue publishing and distributing the Licensed Content across the Properties; it only changes that right from exclusive to non-exclusive.  If Community Host republishes or syndicates any Licensed Content on other platforms following expiration of the Exclusivity Period, Community Host must include the following attribution in connection with any such use: “Created in collaboration with Mettle”.  Mettle Health will provide Community Host with attribution by name and role in connection with the Licensed Content (for example, “Hosted [or Created] by [Community Host name], [Community Host role]”), it being understood that such attribution is a courtesy credit and does not expand, diminish, or otherwise affect Community Host’s underlying copyright ownership of the Licensed Content as described above.  Community Host hereby waives any right to prior inspection or approval of any modifications to or derivative works of the Licensed Content made by or on behalf of Mettle Health, subject to Community Host’s right to request that Mettle Health cease use of Community Host’s name as described in subclause (b) above.

(d)    Forum Engagement.  In addition to hosting or facilitating Sessions, Community Host will spend time on a regular basis, consistent with the cadence described in the applicable Statement of Work, participating in Mettle Health’s community forums by listening, responding, and otherwise contributing to the conversation.

(e)    Name, Image, and Likeness License; Marketing Usage.  Community Host grants Mettle Health a non-exclusive, worldwide license to use Community Host’s name, image, likeness, voice, biographical information, and excerpts of the Content (collectively, “NIL”) (i) in connection with Mettle Health’s publication and display of the Content itself, and (ii) in paid marketing and organic social media promoting Mettle Health, the Services, or the Content, including Community Host’s Sessions and forum participation (together with the license to use NIL described in clause (i), the “Marketing Usage Rights”).  The Marketing Usage Rights will continue for so long as the underlying Content remains live and available on the Properties.  If Mettle Health removes the Content from the Properties, the Marketing Usage Rights with respect to that Content will terminate.  For the avoidance of doubt, the Marketing Usage Rights are separate and independent from, and not conditioned upon, any content rights license or assignment granted under this Section, and expiration of the Exclusivity Period applicable to any Licensed Content, or any change in Mettle Health’s rights in that Licensed Content from exclusive to non-exclusive, will not by itself terminate the Marketing Usage Rights while the Content remains live on the Properties.  Mettle Health’s exercise of the Marketing Usage Rights is not restricted by, and will not be deemed a breach of, Section 4(b) (Publicity).

(f)     Moral Rights.  To the extent permitted by applicable law, Community Host hereby irrevocably waives, and agrees never to assert against Mettle Health or its successors, assigns, and licensees, any and all “moral rights” (droit moral) or analogous rights Community Host may have in or to the Content, including without limitation: (i) any right of attribution or identification as author; (ii) any right of integrity or to object to any distortion, mutilation, modification, or other derogatory action in relation to the Content; and (iii) any right to withdraw or retract the Content from distribution or use.  To the extent that moral rights cannot be waived or assigned by the operation of law, Community Host irrevocably agrees not to exercise any right or institute any action with respect to such moral rights that would hinder, burden or stop the use and commercial exploitation of the Content, including any preliminary action or measure for the same purpose.

4.      Appropriate Behavior.

(a)    Confidentiality.  Except with Mettle Health’s prior written consent, Community Host will not disclose or use any non-public information that Community Host obtains from Mettle Health for any purpose other than to render Community Host’s services under this Agreement.

(b)    Publicity.  Notwithstanding anything to the contrary in this Section, nothing in this Section restricts Mettle Health’s exercise of the Marketing Usage Rights or any other right granted to Mettle Health under Section 3(e), including Mettle Health’s right to reference this Agreement or the engagement generally in its advertising, marketing, publicity, or promotional materials, provided that Mettle Health does not disclose the specific Compensation or other specifically negotiated deal terms payable to Community Host without Community Host’s prior written approval.  Subject to the foregoing, neither Party will authorize or release advertising matter or publicity, or give interviews, that make reference to the details of the terms of this Agreement, without the other Party’s prior written approval.

(c)    Non-Disparagement.  Community Host will not make any statement, in any medium reasonably expected to become public (including social media), that disparages Mettle Health, the Services, or their respective officers, employees, or representatives, or that Community Host knows or reasonably should know to be false.  Community Host will not use the Content, or authorize its use, in any manner that materially impairs the goodwill or reputation of Mettle Health or the Services, or that materially alters the meaning, context, or editorial substance of the Content in a manner inconsistent with its original presentation.  Nothing in this Section will restrict either Party from making truthful statements required by law, regulation, or legal process, or from responding to any inquiry from a governmental or regulatory authority.

(d)    Exclusivity During Term[A1] . During the Term of this Agreement, Community Host will not (i) provide community host, facilitation, or similar services, or (ii) create or license written, video, or other Content, in each case to or for any direct competitor of Mettle Health offering substantially similar patient or caregiver support platform or services, without Mettle Health’s prior written consent.  This Section does not restrict Community Host’s ability to engage in any lawful profession, trade, or business following termination of this Agreement.

(e)    Privacy and Data Handling.  Because Community Host’s role involves facilitating group sessions, community forums, or similar interactions with patients, caregivers, or other users of the Services, Community Host will: (i) access, use, and disclose any personal information, health information, or protected health information of patients, caregivers, or other users of the Services solely as necessary to perform Community Host’s obligations under this Agreement; (ii) not disclose such information to any third party except as expressly authorized in writing by Mettle Health; and (iii) comply with any data handling, security, or patient-information protocols that Mettle Health specifically adopts and provides to Community Host for this purpose, as may be updated by Mettle Health from time to time upon notice to Community Host (together with the obligations in clauses (i) and (ii), the “Privacy Policy”).[SMRH2] 

(f)     Disclosures.  Community Host will follow the guidelines set forth by the Federal Trade Commission with respect to social media influencers, to the extent applicable to Community Host’s role.

(g)    Community Guidelines; Revocation. [SMRH3]  Community Host will comply with Mettle Health’s community guidelines applicable to Community Hosts, as published and updated by Mettle Health from time to time and made available to Community Host (the “Community Guidelines”), which are hereby incorporated into this Agreement by reference.  In the event of any conflict between the Community Guidelines and this Agreement, this Agreement will govern.  Mettle Health may update the Community Guidelines from time to time upon notice to Community Host, and Community Host’s continued performance under this Agreement following such notice constitutes Community Host’s agreement to the updated Community Guidelines.  Without limiting Mettle Health’s termination rights under Section 5(b), Mettle Health may revoke Community Host’s host status, including Community Host’s access to the Affiliate Code and any unaccrued Affiliate Revenue, upon notice to Community Host, if Community Host (i) violates the Community Guidelines or Mettle Health’s moderation guidance, (ii) is inactive as a Host for an extended period, or (iii) engages in conduct that Mettle Health reasonably determines is materially inconsistent with Mettle Health’s brand or mission. 

5.      Termination.

(a)    Termination for Convenience.  Either Party may terminate this Agreement at any time by providing the other Party with thirty (30) days prior written notice. Termination of this Agreement under this Section 5(a) will not affect Mettle Health’s ownership of any Commissioned Content, or any license granted to Mettle Health with respect to any Licensed Content, in each case delivered prior to the effective date of termination, which ownership and license rights will continue in accordance with their terms as set forth in Section 3.

(b)    Termination for Breach.  If Community Host materially breaches this Agreement and such breach is capable of being cured, Mettle Health may terminate this Agreement upon notice if Community Host fails to cure such breach within 30 days [A4] after notice setting forth the breach.  If Community Host materially breaches this Agreement and such breach is not capable of being cured, including any breach described in clauses (i) through (v) below, Mettle Health may terminate this Agreement immediately upon notice, without any opportunity to cure.  Without limiting the foregoing, the following breaches by Community Host are deemed incapable of cure and entitle Mettle Health to terminate this Agreement immediately upon notice: (i) Community Host makes any health, medical, or wellness claim in connection with the Content that is false, misleading, or unsubstantiated and reasonably likely to cause harm; (ii) Community Host accesses, uses, stores, or discloses any patient’s or caregiver’s personal information or health information in violation of this Agreement, the Privacy Policy, or applicable law; (iii) Community Host causes or is reasonably believed to have caused a data security or cybersecurity incident involving Mettle Health’s systems or any service user’s information; or (iv) Community Host engages in conduct in a Session, community forum, or similar interaction with service users that places a user’s health, safety, or wellbeing at risk. Community Host’s sole and exclusive remedy for any breach of this Agreement by Mettle Health is an action at law for damages as described in Section 10(c); Community Host may not terminate this Agreement for Mettle Health’s breach, and Section 5(a) governs Community Host’s ability to end the engagement.

(c)    Survival.  The following provisions will survive any termination of this Agreement: (i) any obligations or liabilities of either Party accrued prior to such termination, and (ii) Sections 3, 4, 5(c), 6, 7, 8, 9, 10, and 11 of this Agreement.  Upon any termination or expiration of this Agreement, Community Host will deliver all completed Content and any works in progress and Mettle Health will pay Community Host the Compensation for the work actually and properly performed as of the effective date of termination.

6.      Representations and Warranties; Compliance with Law.

(a)    Mutual Representation and Warranties.  Each Party represents and warrants to the other that it is capable and fully authorized to enter into this Agreement.  Each Party will comply with all applicable federal, state and local laws, rules and regulations in performing its obligations hereunder (including, without limitation, any laws, rules or regulations applying to endorsements or advertising). 

(b)    Community Host Representations and Warranties. 

(i)     Community Host represents and warrants that, with respect to any Content Community Host creates, Community Host is the sole, original creator of that Content and has the full legal authority to grant the rights granted in this Agreement, which such rights are not subject to any claim, encumbrance or third party interest. 

(ii)    Community Host will not include any third party content or materials in the Content without Mettle Health’s prior written permission.

(iii)  Community Host has no agreements, relationships, or commitments to any other person or entity that conflict with the provisions of this Agreement or Community Host’s obligations to Mettle Health under this Agreement.  

(iv)   Community Host will not enter into any such conflicting agreement during the Term of this Agreement.  

(v)    Any Content created by Community Host will be Community Host’s original work and will not infringe or violate any intellectual property rights (including copyright), and will not defame, infringe or violate the rights of privacy or any other rights of any person or entity, and are not subject to any claim, encumbrance or third party interest.

(vi)   Generative AI.  If Community Host uses any Generative AI, directly or indirectly, in connection with the creation of the Content, including to produce any material that forms part of, or is incorporated into, the Content, Community Host will disclose that use to Mettle Health in writing prior to delivery of the applicable Content, identifying the Generative AI tool used and the nature and extent of its use.  Community Host will comply with Mettle Health’s then-current policies, and the then-current policies of any third-party platform on which the Content is posted or distributed, regarding the use and disclosure of Generative AI-assisted content.  For the avoidance of doubt, this Section does not restrict Community Host’s use of any Generative AI tool as part of Community Host’s ordinary process for drafting, editing, or refining the Content prior to delivery to Mettle Health, provided Community Host complies with the disclosure obligation above.  Community Host will not, and will not knowingly permit any third party to, submit, upload, or otherwise provide the final, delivered Content, once published by Mettle Health, to any Generative AI tool, technology, model, product, service, or system for the specific purpose of training, developing, retraining, or fine-tuning that Generative AI.  For purposes of this Agreement, “Generative AI” means any artificial intelligence tool, technology, model, product, service, or system capable of generating new data or content (including video, audio, images, or text) based on user-supplied inputs, prompts, or existing data or content, including deep learning techniques, diffusion models, machine learning models, large language models, or similar technologies[A5] .

7.      Indemnity.  

(a)    Community Host Indemnity.  Community Host agrees to indemnify, defend, and hold harmless Mettle Health, its affiliates, and each of their respective officers, directors, employees, agents, successors, and assigns (collectively, the “Mettle Health Indemnified Parties”) from and against any and all third-party actions, causes of action, claims, demands, costs, liabilities, expenses, judgments, proceedings, and damages (including reasonable attorney fees) (collectively, “Losses”) arising from: (i) Community Host’s actual or alleged breach of this Agreement, including any breach of Community Host’s representations and warranties under Section 6 or Community Host’s obligations under Section 4 (Appropriate Behavior); (ii) any negligent, reckless, or intentionally wrongful act of Community Host; (iii) a determination by a court or regulatory agency that Community Host is not an independent contractor of Mettle Health; (iv) any health, medical, or wellness claim made by Community Host in or in connection with the Content that is false, misleading, or unsubstantiated; (v) Community Host’s unauthorized access, use, collection, storage, or disclosure of any personal information, health information, or protected health information belonging to any patient, caregiver, or other user of the Services, or any other violation of the Privacy Policy or applicable law; (vi) any cybersecurity threat, data breach, unauthorized access, or other security incident affecting Mettle Health’s platform, systems, or Content, to the extent arising from Community Host’s acts or omissions, including Community Host’s failure to safeguard any login credentials, access rights, or systems access granted to Community Host in connection with this Agreement; and (vii) any act or omission of Community Host in facilitating, hosting, or moderating any Session, community forum, or similar interaction involving users of the Services, including any failure to appropriately identify, escalate, or respond to a user in crisis or otherwise at risk of harm.  In the event of any proceeding against any Mettle Health Indemnified Party by any regulatory agency or in the event of any court action or self-regulatory action challenging any action of Community Host, Community Host will assist in the preparation of the defense of the proceeding as requested by Mettle Health and will cooperate with Mettle Health and Mettle Health’s attorneys.

(b)    Mettle Health Indemnity.  Mettle Health agrees to indemnify, defend, and hold harmless Community Host from and against any and all Losses arising from Mettle Health’s use, publication, or other exploitation of the Content as permitted under this Agreement, except to the extent such Losses arise from Community Host’s acts or omissions, or Community Host’s actual or alleged breach of this Agreement, including any matter for which Community Host is obligated to indemnify the Mettle Health Indemnified Parties under subclause (a) above.

8.      Limitation of Liability.  IN NO EVENT WILL EITHER PARTY BE LIABLE FOR ANY INDIRECT, SPECIAL, PUNITIVE, INCIDENTAL OR CONSEQUENTIAL DAMAGES IN ANY ACTION ARISING FROM OR RELATED TO THIS AGREEMENT, WHETHER BASED IN CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, DAMAGES RELATING TO THE LOSS OF PROFITS, INCOME OR GOODWILL, REGARDLESS OF WHETHER SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. EXCEPT FOR THE INDEMNITY IN SECTION 7, BREACH OF CONTENT OWNERSHIP AND USE IN SECTION 3, AND BREACH OF CONFIDENTIALITY IN SECTION 4(A), IN NO EVENT WILL EITHER PARTY’S TOTAL LIABILITY HEREUNDER EXCEED THE GREATER OF (I) THE TOTAL AMOUNTS PAID TO COMMUNITY HOST UNDER THIS AGREEMENT, AND (II) $1,000. 

9.      Independent Contractor.  It is the express intention of Mettle Health and Community Host that Community Host is an independent contractor to Mettle Health.  Nothing in this Agreement shall in any way be construed to constitute Community Host as an agent, employee or representative of Mettle Health.  Without limiting the generality of the foregoing, Community Host is not authorized to bind Mettle Health to any liability or obligation or to represent that Community Host has any such authority.  Community Host acknowledges and agrees that Community Host is solely responsible for determining and reporting as income any Compensation (whether monetary, in-kind, or otherwise) received by Community Host pursuant to this Agreement, including the value of any complimentary membership and any Affiliate Revenue.  Community Host agrees to and acknowledges the obligation to pay all self-employment and other taxes on such income.  The Parties agree that Community Host will receive no benefits from Mettle Health, where benefits include, but are not limited to, paid vacation, sick leave, medical insurance and 401(k) participation.  If Community Host is reclassified by a state or federal agency or court as Mettle Health’s employee, Community Host will become a reclassified employee and will receive no benefits from Mettle Health except those mandated by state or federal law, even if by the terms of Mettle Health’s benefit plans or programs of Mettle Health in effect at the time of such reclassification, Community Host would otherwise be eligible for such benefits.

10.    Dispute Resolution. 

(a)    Arbitration.  In the event a dispute arises between the Parties hereto arising out of or in connection with or with respect to this Agreement or any breach thereof, such dispute shall be determined and settled by arbitration in San Francisco, California, in accordance with the rules of the American Arbitration Association.  The award rendered thereon by the arbitrator shall be final and binding on the Parties thereto, and judgment thereon may be entered in any court of competent jurisdiction.  Nothing in this Section shall prevent Mettle Health from applying to a court of competent jurisdiction for equitable or injunctive relief.

(b)    No Class Actions.  COMMUNITY HOST AND METTLE HEALTH AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN ITS INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING.  Further, unless both Community Host and Mettle Health agree otherwise, the arbitrator may not consolidate more than one person’s claims and may not otherwise preside over any form of a representative or class proceeding.

(c)    Limitation of Community Host’s Remedies.  Community Host acknowledges that Community Host’s sole and exclusive remedy for any breach of this Agreement by Mettle Health is an action at law for damages.  Community Host irrevocably waives any right to seek or obtain specific performance, equitable relief, or injunctive relief against Mettle Health, whether in arbitration or in any court, in connection with any breach or alleged breach of this Agreement by Mettle Health.

11.    Miscellaneous.

(a)    Waiver.  Any waiver of the provisions of this Agreement or of a Party’s rights or remedies under this Agreement must be in writing to be effective.  Failure, neglect, or delay by a Party to enforce the provisions of this Agreement or its rights or remedies at any time, will not be construed as a waiver of the Party’s rights under this Agreement and will not in any way affect the validity of the whole or any part of this Agreement or prejudice the Party’s right to take subsequent action.  Exercise or enforcement by either Party of any right or remedy under this Agreement will not preclude the enforcement by the Party of any other right or remedy under this Agreement or that the Party is entitled by law to enforce.

(b)    Severability If any term, condition, or provision in this Agreement is found to be invalid, unlawful, or unenforceable to any extent, the Parties will work in good faith to amend the Agreement to match the intentions expressed in this Agreement.  If the Parties fail to agree on an amendment, the invalid term, condition, or provision will be removed, and the remainder of the Agreement will continue to be valid and enforceable to the fullest extent permitted by law.

(c)    Headings.  Headings are used in this Agreement for reference only and will not be considered when interpreting this Agreement

(d)    Further Assurances; Power of Attorney.  Upon Mettle Health’s reasonable request, Community Host will promptly execute, acknowledge, and deliver any further documents, and take any further actions, that Mettle Health reasonably considers necessary or desirable to evidence, perfect, maintain, or enforce Mettle Health’s rights in the Content and the other rights granted to Mettle Health under this Agreement, including under Section 3 (Content Ownership and Use).  If Community Host fails to execute, acknowledge, or deliver any such document within a reasonable period, which the Parties agree is five (5) business days, after Mettle Health’s written request (unless the Parties agree to a different period in writing), Community Host hereby irrevocably appoints Mettle Health, and any officer or agent of Mettle Health designated by Mettle Health, as Community Host’s attorney-in-fact, which appointment is coupled with an interest and is therefore irrevocable, with full power of substitution, to execute, acknowledge, and deliver any such document and to take any such action in Community Host’s name and on Community Host’s behalf, with the same legal force and effect as if executed or taken by Community Host.

(e)    Assignability.  Community Host may not assign this Agreement without Mettle Health’s prior written consent.  Mettle Health may freely assign this Agreement.  Subject to this Section 11(e), this Agreement shall be binding on and shall inure to the benefit of the Parties, and their heirs, administrators, successors, and assigns.

(f)     Notices.  Any notice required or permitted under this Agreement (a “Notice”) must be in writing and delivered to the other Party at the address set forth on the Cover Page for each Party, by: (i) personal delivery; (ii) certified or registered mail (or air mail, if international), return receipt requested; (iii) nationally recognized overnight courier; or (iv) email, provided that if receipt is not confirmed within two business days, the sender must also use method (i), (ii), or (iii).  Notice is deemed given: (1) upon personal delivery; (2) three business days after mailing; (3) one business day after courier delivery; or (4) for email, on the date receipt is acknowledged or, if not acknowledged, the date the supplemental Notice is deemed given under this Section.  Either Party may update its Notice address by Notice given under this Section.  If a named recipient no longer holds the specified role or leaves the Party and no alternative recipient is designated, Notice addressed to an equivalent role at that Party satisfies this Section.

(g)    Counterparts.  This Agreement may be executed in any number of identical counterparts, notwithstanding that the Parties have not signed the same counterpart, with the same effect as if the Parties had signed the same document.  All counterparts will be construed as and constitute the same agreement.  This Agreement may also be executed and delivered by facsimile or electronic signature and such execution and delivery will have the same force and effect of an original document with original signatures.

(h)    Governing Law.  The internal laws of California, but not the choice of law rules, govern this Agreement.

(i)     Entire Agreement.  This Agreement, including Exhibit A and each Statement of Work executed by the Parties under Exhibit B, is the final and complete expression of the agreement between the Parties with respect to the subject matter hereof. This Agreement supersedes, and the terms of this Agreement govern, all previous oral and written communications regarding the subject matter hereof, all of which are merged into this Agreement.  No employee, agent, or other representative of either Party has any authority to bind that Party with respect to any statement, representation, warranty, or other expression unless the same is specifically set forth in this Agreement.  No usage of trade or other regular practice or method of dealing between the Parties will be used to modify, interpret, supplement, or alter the terms of this Agreement.  This Agreement may be changed only by a written agreement signed by an authorized agent of the Party against whom enforcement is sought; provided, that execution of an additional Statement of Work in accordance with Section 1 above does not require an amendment to this Agreement.

[End of Standard Terms and Conditions]