Course Customer Agreement

March 15th, 2023


This Practitioner Agreement ("Agreement") is entered into between  CalendHer Technologies Corp, a company registered in British Columbia, Canada and the entity behind Flöka (“Flöka"), and the entity or individual who registers as a “practitioner” (each a “Practitioner”) with Flöka, either through Flöka’s website located at www.flö (“Website”), the Flöka mobile and web platform application (“App”), or by signing an order form (“Order”) with Flöka referencing these terms. Practitioner and Flöka are referred to herein individually as a “Party” and collectively as the “Parties”. This Agreement is made as of the date of acceptance of registration of Practitioner by Flöka or execution of the Order by both Parties, whichever is the earlier (“Effective Date”). Capitalized terms not defined herein shall have the meanings given to them in the Flöka Terms of Use, the latest version of which can be found [here] (“Terms”). This   Agreement   may   be   amended   or   updated   by   Flöka   from   time   to   time   at   Flöka’s   sole discretion. If we make changes to this Agreement, we will update the “Last Updated” date at the top of this Agreement and notify you by posting a notice on the Website or App or sending you an email (as appropriate). Any changes to this Agreement shall become effective (i) immediately if you are a new Practitioner; and (ii) if you are an existing Practitioner, upon thirty (30) days after   notice   is   provided   of   such   changes.   Flöka   may   require   you   to   provide   consent   to   the
updated Agreement in a specified manner before continuing to provide Practitioner Services. Your continued provision of Practitioner Services (defined below) following any such change shall constitute your acceptance of the revised Agreement. If you do not agree to any of the changes, you may cancel your Practitioner Flöka Account in accordance with the terms herein. This Agreement governs the terms on which Practitioner will be granted access to the App via a Practitioner Flöka Account and be eligible to (i) offer and sell Content (defined below); and (ii) provide   virtual   care   services   to   Flöka’s   end   user   customers   (“End   Users”)   via   the   App (collectively, “Practitioner Services”). Provision of Practitioner Services will require Practitioner
to undergo the onboarding process described in Section 8 hereto. Practitioner’s use of the App and provision of Practitioner Services will be governed by the Terms and the terms of this Agreement.   In   case   of   conflict   between   the   terms   of   this   Agreement   and   the   Terms,   this Agreement will govern to the extent of the conflict. Practitioner’s personal information will be
processed in accordance with the Flöka privacy policy, the latest version of which can be found [here] (“Privacy Policy”).

Practitioner and Flöka agree as follows:

1. Practitioner Services

1.1. Access to the App. To enable Practitioner to provide the Practitioner Services, subject to the Terms and conditions of this Agreement (including but not limited to payment of all Fees), Flöka will provide Practitioner access to the App. Practitioner agrees to provide the   Practitioner   Services   and   use   the   App   only   in   accordance   with   the   Terms,   this Agreement,   and   any   applicable   laws   or   regulations,   including   any   restrictions   or obligations   imposed   by   a   regulatory   body   to  which   Practitioner   may   be   accountable (“Regulatory Body”).

1.2. Practitioner Services Restrictions. Subject to the restrictions (a) in the Terms and this Agreement; and (b) any applicable Regulatory Body restrictions, Practitioner will havethe right and discretion to manage and tailor Practitioner Services based on the needs and/or   demands   of   End   Users.   Notwithstanding   the   foregoing,   in   providing   the Practitioner   Services,   Practitioner   shall   not,   directly   or   indirectly:   (i)   use,   market, advertise   or   promote   any   Third-Party   Services   or   Third-Party   Integrations   in contravention of the Terms or this Agreement; (ii) collect, use, disclose and retain End User PI or PHI in contravention of any applicable laws, regulations, Regulatory Body restrictions, or its Practitioner Privacy Obligations (defined below); (iii) impersonate any person or entity, misrepresent their affiliation with a person or entity, or misrepresent qualifications, credentials, certifications, or Regulatory Body standing to Flöka or an End User; or (iv) provide advice, recommendations, suggestions, or Content that Practitioner does not have a right to make under any applicable law or regulation, Regulatory Body
rules and regulations, or a contractual relationship.

1.3. Privacy Obligations.  When providing Practitioner Services, Practitioner will be solely responsible for (i) determining and managing Practitioner’s privacy obligations under any applicable laws, regulations, or Regulatory Body restrictions applicable to the collection, use,   disclosure   and   retention   of   End   User   PI   and/or   PHI   (“Practitioner   Privacy Obligations”); (ii) creating a privacy policy that meets practitioner’s Practitioner Privacy Obligations; (iii) explaining the privacy policy and Practitioner Privacy Obligations to End   Users   to   whom   you   provide   Virtual   Care   Services,   upon   their   request;   and   (iii) determining and managing Practitioner Privacy Obligations, including any breaches or contraventions thereof.

1.4. Consent Obligations. When providing Practitioner Services, Practitioner will be solely responsible   for   obtaining   all   necessary   consents   from   End   Users,   including   (i)   any consents required under Practitioner Privacy Obligations; (ii) any consents required under any applicable law or regulation or Regulatory Body rules and regulations; and (iii) any consents required for Practitioner to enable Third-Party Integration syncing of a User’s PI or PHI with the App.

1.5. Configuration Obligations. Practitioner is solely responsible for configuring its  Flöka Account within the Flöka Services, including without limitation configuration regarding Content and End User Fees, and by ensuring that it has completed all required steps to ensure that End User Fees are being processed through the correct configuration of its payment processing account(s).

2. Intellectual Property and Content

2.1. Definition of Content. For purposes of this Agreement, “Content” means any creative expression and includes, without limitation, video, audio, photographs, images, illustrations, animations, logos, tools, text, ideas, communications, replies, comments, information, data, software, scripts, executable files, graphics, maps, routes, geo-data, workouts and workout data, training plans, sleep activity, annotations, nutrition information, recipes, interactive features, designs, copyrights, trademarks, patents, sounds, applications and any intellectual property therein, any of which may be generated, provided, or otherwise made accessible by Practitioner on or through the App. Between Flöka and Practitioner, Practitioner and its licensors retain ownership over all content shared on or through the App.

2.2. Content License. Between Flöka and Practitioner, Practitioner and its licensors retain ownership over all Content shared on or through the App. Flöka does not claim any intellectual property rights over a Practitioner’s Content. By offering Content via the App, Practitioner agrees that Flöka shall have the right to (i) host content via the App; and (ii) permit eligible End Users to view and access the Content for their personal use via the App.

2.3. Content Review. Practitioner acknowledges that, in order to ensure compliance with its legal   obligations,   Flöka   may   review   Content   to   determine   whether   it   violates   this Agreement, the Terms, or any applicable laws or regulations. Flöka may, but has no obligation to, remove Content or suspend a Practitioner’s Flöka Account if Practitioner uploads or otherwise make available Content that Flöka determines, in its sole discretion, is   unlawful,   offensive,   threatening,   libelous,   defamatory,   pornographic,   obscene   or   is otherwise objectionable, violates any third party’s rights (including intellectual property rights), or violates any applicable laws, regulations, or Regulatory Body restrictions.

2.4. Practitioner License.  Practitioner   grants   Flöka   a   non-exclusive,   irrevocable,   royalty- free, freely transferable, sublicensable, worldwide right and license to use Practitioner’s tradenames, trademarks, service marks, trade dress and logos for marketing purposes, including but not limited to promotion of the Flöka Services or Flöka’s other offerings.

2.5. Content Retention.  Following   termination   of   a   Practitioner’s   Flöka   Account   or   this Agreement,   or   removal   of   any   Content   from   the   App,   we   may   retain   Content   for   a commercially reasonable period of time for backup, archival, or audit purposes, or as otherwise required or permitted by law. Furthermore, Flöka and End Users may retain and continue to use, store, display, reproduce, share, modify, create derivative works, perform, and distribute any of Content that otherwise has been stored or shared through the Flöka Services.

3. Confidentiality.

3.1. Definition and Use of Confidential Information.  All   information   disclosed   by   one Party (“Disclosing Party”) to the other Party (“Receiving Party”) in connection with this Agreement (“Confidential Information”) shall be treated as confidential and (i) Receiving Party shall hold such Confidential Information in confidence using the same standard of care as it uses to protect its own confidential information but not less than reasonable care, (ii) Receiving Party shall not use or disclose such Confidential Information for any purpose except (A) as necessary to fulfill its obligations or exercise its rights under this Agreement,   provided   that   Receiving   Party   shall   limit   access   to   such   Confidential Information to such of its employees, affiliates, agents and subcontractors who need such access for such purposes and Receiving Party shall require such persons to abide by the provisions of this Section 3.1, or (B) as required by law, court order or request by any government or regulatory authority, provided, unless prohibited by law, the Disclosing Party is given a reasonable opportunity to obtain, at its expense, a protective order.  

3.2. Exceptions to Confidentiality.  Confidential Information shall not include information which   (a)   is   now,   or   hereafter   becomes,   publicly   known   or   available   through   lawful means,   (b)   is   rightfully   in   Receiving   Party’s   possession   prior   to   disclosure   by   the Disclosing   Party,   as   evidenced   by   Receiving   Party’s   records,   (c)   is   disclosed   to   the Receiving   Party   without   confidentiality   restriction   by   a   third   party   who   rightfully possesses and rightfully discloses the information, (d) is independently developed by the Receiving Party without reference to the Disclosing Party’s Confidential Information, or(e) is the subject of a written permission to disclose provided by the Disclosing Party.

4. Limitation of Liability

4.1. Limit on Liability.  To the maximum extent permitted by applicable law, under no circumstances   shall   Flöka   be   liable   to   Practitioner   for   any   consequential,   indirect, incidental, exemplary, or special damages related to, in connection with, or otherwise resulting   from:   (i)   any   lost   revenues,   profits,   data   or   business;   (ii)   the   Practitioner Services; (iii) Practitioner’s access, use, reliance upon or inability to use or access the Flöka Services; (vi) Practitioner’s use of or reliance on Third-Party Services or Third- Party   Integrations;   (v)   the   cost   of   procuring   substitute   goods,   data,   information   or
services; and (vi) errors, mistakes, or inaccuracies in the Flöka Services, whether such damages arise on the basis of contract (including fundamental breach), tort (including negligence, personal injury, or strict liability) or otherwise, and whether or not the
possibility of such damages is foreseeable or if Flöka has been notified thereof.

4.2. Liability Cap.  Notwithstanding   anything   to   the   contrary   contained   herein,   Flöka’s total aggregate liability under this Agreement shall not exceed the Fees (defined below) paid by Practitioner to Flöka during the twelve (12) month period immediately prior to the date of occurrence of the event giving rise to such a loss under this Section 4.

5. Warranties and Disclaimer

5.1. Mutual Warranty. Each Party warrants that (i) it has the legal power to enter into this Agreement; (ii) it shall comply with all applicable foreign, federal, state and local laws, rules and regulations; and (iii) it has all rights and licenses necessary to perform its obligations hereunder and has the right to grant the licenses contemplated hereunder.

5.2. Practitioner Warranty. Practitioner warrants that (i) it will use the App and provide Practitioner   Services   in   accordance   with   this   Agreement   and   the   Terms;   (ii)   the Content will comply with the Terms and all applicable laws, rules and regulations; (iii) it shall meet any applicable Practitioner Privacy Obligations and Regulatory Body rules and restrictions when providing the Practitioner Services; (iv) it is solely responsible for   maintaining   up-to-date   licensing   and/or   eligibility   status   with   its   respective Regulatory Body; (v) it will notify Flöka immediately in writing if its licensing and/or eligibility status with is respective Regulatory Body changes; and (vi) it will notify Flöka immediately in writing if Practitioner receives any communication or requests from a regulatory body or government institution with respect to Practitioner Privacy Obligations.

6. Indemnification

6.1. Indemnification Obligations.  Practitioner shall indemnify and defend  Flöka  and its directors,   affiliates,   officers   and   employees   (collectively   the   “Indemnified   Parties”) from and against any actions, suits, or proceedings brought against the Indemnified Parties by a third party (each, a “Claim”), and in relation to such Claims, shall pay: (a) all defense and settlement costs (including reasonable attorneys’ fees and expenses); (b) all damages awarded by a court after all appeals have concluded; and (c) any other losses, fines, penalties, costs and other amount directly incurred by an Indemnified Party in connection with the Claim, each to the extent such Claims are based on or arise from: (i) violation of any law or regulation by an Indemnified Party;  (ii) real or tangible property damage or bodily injury or death caused by the negligent or willfulacts or omissions of the Indemnified Party in connection with the Flöka Services; (iii) any allegation that the Flöka Services infringe any third-party intellectual property or personal information rights; and (iv) any allegation that the Practitioner Services or Content   infringe   or   misappropriate   third-party   intellectual   property   or   personal information rights. Conditions of Indemnity. The foregoing obligations in Section 6.1 are subject to the conditions that the Indemnified Parties: (i) promptly give written notice of each Claim to Practitioner; (ii) give Practitioner sole control of the defense and settlement of each Claim   (provided   that   Practitioner   may   not   settle   or   defend   any   Claim   unless   it unconditionally releases the Indemnified Parties of all liability); and (iii) provide to the Practitioner, at Practitioner’s sole cost, all reasonable assistance and co-operation in respect to each Claim.

7. Pricing

7.1. End User Fees. Practitioner may set and charge End Users fees for the PractitionerServices (“End User Fees”) at its discretion.

7.2. Practitioner Fees.   In   exchange   for   provision   of   the   Practitioner  Flöka  Account   toPractitioner, Practitioner will pay Flöka the Practitioner fees in accordance with one of the following  subscription  modules. ("Subscription Module").
7.2.1. Flat Fee Structure. Practitioner pays Flöka a monthly fee of USD $99, permitting Practitioner to upload unlimited course Content via the Flöka Services; or
7.2.2. Commission Fee Structure.  Practitioner may host Content via the Flöka Services in exchange for a monthly commission equal to ten percent (10%) of End User Fees (“Commission”). Practitioner’s monthly Commission Fees owed to Flöka a minimum of USD $29. Practitioner will be subscribed to the $29/month plan for hosting 1 course, and when the practitioner passes $29 USD of sales commission in one month, the subscription will be paused until such time that commissions for a calendar month dip below the $29 USD threshold.

7.3. Unarchived Patient Services. In addition to Subscription Modules, Flöka also offersPractitioners the option to onboard their unarchived patients to Flöka and provide themPractitioner Services (“Onboarding Services”). Flöka charges Practitioners USD $5 per month  per  unarchived   patient  that   is   onboarded   to   Flöka   as   an   End   User.   This onboarding service can be used independently or in conjunction with a  SubscriptionModule.  All   fees   charged   to   Practitioners   under   a   Subscription   Module   and   forOnboarding Services (as applicable) are collectively referred to as “Fees”.

7.4. Payment Processing; Refunds. Payment of Fees and receipt of End User Fees will be done via Stripe, Flöka’s third party payment processor. Stripe may collect or store your credit   card,   payment   information,   or   personal   information,   and   such collection is governed by Stripe’s terms. There shall be no refunds for any Fees.

7.5. Taxes.  Fees do not include any direct or indirect local, state, provincial, federal or foreign   taxes,   levies,   duties   or   similar   governmental   assessments   of   any   nature, including   value-added,   goods   and   services,   harmonized,   use   or   withholding   taxes (collectively,   “Taxes”).   Practitioner   will   be   solely   responsible   for   meeting   its   Tax obligations with respect to End User Fees.

7.6. Overdue Fees.  If Practitioner’s account is thirty (30) days or more overdue (except with respect to Fees then under reasonable and good faith dispute), in addition to any of   its   other   rights   or   remedies,   Flöka   reserves   the   right   to   suspend   the   Services provided to Practitioner, without liability to Practitioner, until such Fees are paid in full.

8. Onboarding Process.

8.1. Practitioner Verification. When a Practitioner submits a request to open a Practitioner Flöka Account, Flöka will collect information about the Practitioner (via an Order or otherwise), including but not limited to name, e-mail, billing details, privacy policy, information about their accreditations, and information about registration and statuswith a Regulatory Body (as applicable). Flöka  will use this information to create a Practitioner Flöka Account and verify the Practitioner is licensed and in good standing with any applicable Regulatory Body (“Verification”). Flöka reserves the right, in its sole   discretion,   to:   (i)   request   additional   information   or   request   changes   to Practitioner’s privacy policy and practices to complete Verification; or (ii) refuse to enter into this Agreement with a Practitioner or create a Practitioner Flöka Account if Flöka decides that Practitioner has not passed Verification.

8.2. Onboarding. Following completion of Verification and execution of this Agreement, Flöka will provide Practitioner with an onboarding session, at a time mutually agreed to by the Parties, during which Flöka will run a personalized tutorial of the Flöka Services (“Onboarding Session”). During the Onboarding Session, Flöka also: (i) use Stripe to collect the Practitioner’s billing information; and confirm whether or not the Practitioner   plans   to   participate   in   the   Flöka   migration   assistant,   a   complimentary feature of the Flöka Service whereby the Flöka team provides migration services in the uploading of Content to the Flöka Services for the Practitioner’s Flöka Account.

9. Term and Termination.

9.1. Term. Unless terminated earlier under this Section 9, this Agreement shall enter into force on the Effective Date and shall remain in force for a term of one (1) month (the “Initial Term”). Thereafter, this Agreement shall automatically renew for subsequent periods   of   the   same   length   as   the   Initial   Term   (any   subsequent   renewal   terms,   a “Renewal Term”) unless either Party gives the other Party written notice of termination at least thirty (30) days prior to expiration of the then-current Initial Term or Renewal Term (as applicable). Collectively, the Initial Term and any subsequent Renewal Terms shall constitute the “Term”.

9.2. Termination. Either Party may terminate this Agreement (i) upon thirty (30) days of a Party providing notice to the other Party of a material breach, if such breach remains uncured by the breaching Party at the expiration of such notice; (ii) upon the other Party becoming the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors; or (iii) for any reason upon sixty (60) days’ prior written notice to the other Party.

9.3. Result of Termination. Termination of this Agreement shall not relieve either Party of any   of   its   payment   obligations   herein.   Upon   termination,   all   licenses   granted   to Practitioner   hereunder   shall   immediately   terminate.   Sections   1-7,   9.3   and   10   shall survive termination of this Agreement.

10. Miscellaneous

10.1. Entire Agreement.This Agreement, along with the Terms and any applicable Order, constitutes the entire agreement between Practitioner and Flöka with respect to the Practitioner   Services   and   supersedes   and   cancels   all   previous   written   and   oral agreements, communications and other understandings relating to the subject matter of this Agreement.

10.2. Severability.  If   any   provision   of   this   Agreement   is   found   to   be   unenforceable   or invalid, that provision will be limited or eliminated to the minimum extent necessary so that the rest of this Agreement will otherwise remain in full force and effect.  

10.3. Non-Exclusive; No Agency. The relationship of the Parties hereunder is non-exclusive and one of independent contractors. This Agreement does not create any joint venture, partnership,   agency,   or   employment   relationship   between   the   Parties. No agency, partnership, joint venture, or employment is created as a result of this Agreement, and neither Practitioner nor Flöka has any authority of any kind to bind the other party in any respect whatsoever. Except as expressly provided in this Agreement, there are no third-party beneficiaries to this Agreement.

10.4. Assignability.  This   Agreement   is   not   assignable,   transferable,   or   sublicensable   by either   party   to   a   successor in   interest,   without   consent   by   the   other   party. Notwithstanding the foregoing, Flöka may assign this Agreement without consent of Practitioner in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of Flöka’s business, shares or assets.

10.5. Waiver.  All   waivers   and   modifications   hereof   must   be   in   writing   signed   by   both Parties, except as otherwise provided herein. No failure or delay by either Party in exercising any right under this Agreement shall constitute a waiver of that right.  Other than as expressly stated herein, the remedies provided herein are in addition to, and not exclusive of, any other remedies of a Party at law or in equity.

10.6. Notices.  All notices under this Agreement will be in writing and will be deemed to have   been   duly   given   when   received,   if   personally   delivered;   upon   delivery, if transmitted by email; the day after it is sent, if sent for next day delivery by recognized overnight delivery service; and upon receipt, if sent by certified or registered mail, return receipt requested. Notices shall be addressed to the Party’s signatory of this Agreement.

10.7. Force Majeure.  Neither   Party   shall   be   responsible   for   its   failure   to   perform   its obligations under this Agreement due to unforeseen circumstances or causes beyond its control, including but not limited to acts of God, wars, terrorism, riots, embargoes, acts of civil or military authorities, fires, floods, accidents, health pandemics, strikes, labour problems,   or   computer, telecommunications,   internet   service   provider   or   hosting facility   failures   or   delays   not   within   a   Party’s   possession   or   reasonable   control, provided that such Party gives the other Party prompt written notice and the reason for failing to meet its Agreement obligations.

10.8. Governing Law. This Agreement shall be governed by the laws of British Columbia, Canada. The provincial and federal courts located in the Province of British Columbia shall have exclusive jurisdiction to adjudicate any dispute arising out of or relating to this Agreement. In any action or proceeding to enforce rights under this Agreement, the prevailing Party will be entitled to recover reasonable costs and attorneys’ fees. The application of the United Nations Convention on Agreements for the International Sale of Goods to this Agreement is expressly excluded.