Last Updated: January 16, 2024

This Grouper Club Participation Agreement (the “Agreement”) is entered into as of the the date on which both Parties (as defined below) have executed this Agreement (the “Effective Date”) by and between Element3 Health, Inc. d/b/a Grouper, a Delaware corporation (“Grouper,” “we,” “us,” or “our”) and your organization (the “Group”) (each individually a “Party”, and collectively, the “Parties”).

WHEREAS, Grouper and the Group have entered into that certain Grouper Network Agreement (the “Grouper Network Agreement”); and

WHEREAS, Grouper shall assign individuals to participate in activities of the Group and such assignments require that Grouper share certain personally identifiable information (“PII”) with the Group.

NOW THEREFORE, for good and valuable consideration, the Parties hereby agree as follows:

General

Grouper shall provide the Group with certain data and information, including PII, regarding individuals assigned to the Group in connection services provided under the Grouper Network Agreement (each, a “Group Member”).

Confidential PII

During the term of this Agreement and for three (3) years after it terminates or expires, the Group will refrain from using the PII, from disclosing the PII to any third party, and will take reasonable precautions to protect and safeguard the confidentiality of the PII with at least the same degree of care as the Group would protect its own confidential information, but in no event with less than a commercially reasonable degree of care. However, the Group may disclose PII (i) pursuant to the order of a court, administrative agency, or other governmental body, or as otherwise required by law, provided that the Group gives sufficient notice to Grouper to allow it to contest or limit disclosure or (ii) following the prior written consent of the Group Member to which the PII belongs. The Group’s obligations to maintain the confidentiality of the PII and only use it as set forth herein shall survive any termination of this Agreement.

Reporting of Group Member Activity

Grouper may request the Group to submit to Grouper, a Group Member Activity Report (“Group Member Activity Report”), listing the previous month’s Group Member Activity (as defined below) for any Group Member. In the case where Grouper directly contacts Group Members for Group Member Activity Report, the Group shall use reasonable efforts to facilitate such contact with any Group Member. The Group Member Activity Report shall include (i) a Group Member’s participation in a meeting or event organized by the Group, (ii) a Group Member’s participation in activities with other Group Members or (iii) a Group Member’s participation in an activity that Grouper determines, in its sole discretion, is a Group Member Activity (each, a “Group Member Activity”). 

Payment of Group Member Fees

Grouper may pay to the Group a Group Member Activity Fee (in arrears) for any Group Member that Grouper referred to Group and who participated in a qualifying Group Member Activity (a “Qualified Activity”). In the event that the Group does not provide a Group Member Activity Report, then Grouper may withhold any payment for a Group Member. In addition, Grouper reserves the right, in its sole discretion, to suspend any future member referrals to a Group until such Group provides a Group Member Activity Report.

Access and Audit Rights

The Group grants Grouper access to the Group’s records in connection with Group Member Activity for the purpose of ensuring accuracy of Group Member Activity and Group’s compliance with the terms of this Agreement. The Group shall maintain records in connection with the Group Member Activity for a period of 1 year after expiration of the Term (as defined below). The Group shall also cooperate fully with Grouper with respect to all reasonable requests relating to the foregoing access rights. If any audit under this Section reveals any discrepancy under this Agreement, then the Group and Grouper agree to work together to correct any such discrepancy.

Warranty

Each Party represents and warrants that it will comply with all applicable laws, rules and regulations.

Non-Solicitation

The Group understands and acknowledges that because of the relationship to Grouper, the Group will have access to and learn about the Group Members. The Group understands and acknowledges that the loss of any such Group Member relationship or goodwill will cause significant and irreparable harm to Grouper. The Group agrees and covenants that during the term of this Agreement and for a period of six months following termination of this Agreement not to entice away or endeavor to entice away from Grouper any Group Member for membership in such Group separate and apart from membership pursuant to this Agreement.

Limitation of Liability

IN NO EVENT SHALL EITHER PARTY BE LIABLE to the other FOR ANY INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL LOSS OR DAMAGE OF ANY KIND, INCLUDING BUT NOT LIMITED TO LOSS OF REVENUE, LOSS OF ACTUAL OR ANTICIPATED PROFITS, LOSS OF BUSINESS, LOSS OF CONTRACTS, LOSS OF GOODWILL OR REPUTATION, LOSS OF ANTICIPATED SAVINGS, LOSS OF, DAMAGE TO OR CORRUPTION OF DATA, HOWSOEVER ARISING, WHETHER SUCH LOSS OR DAMAGE WAS FORESEEABLE OR IN THE CONTEMPLATION OF THE PARTIES AND WHETHER ARISING IN OR FOR BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), BREACH OF STATUTORY DUTY, OR OTHERWISE. THE PARTIES AGREE THAT THE FOREGOING LIMITATIONS SHALL APPLY REGARDLESS OF THE FORM IN WHICH SUCH CLAIMS ARE BASED (WHETHER IN CONTRACT, TORT, OR OTHERWISE) AND SHALL APPLY NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY AND EVEN IF A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR LIABILITIES.

Waiver

The Group releases, waives, and discharges Grouper from any and all liability, claims, demands, actions, and causes of action of any kind or nature arising out of or related to any loss, damage, or injury, including death, that a Group Member or any property may sustain resulting from any Group Member’s participation in or in any way connected with my participation in such the Group’s activities.

General

Relationship of the Parties

The Parties are independent contractors. Neither Party has nor will represent that it has any authority to assume or create any obligation, expressed or implied, on behalf of the other Party or to represent that the other Party is an agent, employee, or involved in a joint venture with it; or that the other Party is involved with it in any capacity, except as specified in this Agreement. Each Party shall be responsible for all expenses incurred by it in the course of exercising any right or complying with any responsibility under this Agreement.

Assignment

The Group shall not, in whole or part, assign or transfer any part of this Agreement or any rights hereunder without the prior written consent of Grouper. Any attempted transfer or assignment by that is not permitted by this Agreement shall be null and void.

Notices

All notices, consents and approvals under this Agreement must be delivered in writing by email, courier, electronic facsimile (with a copy sent by certified or registered mail), or by certified or registered mail, (postage prepaid and return receipt requested) to the other Party at the address set forth beneath such Party’s signature, and will be effective upon receipt or when delivery is refused. Either Party may change its address by giving notice of the new address to the other Party as specified herein.

Governing Law

This Agreement shall be construed and controlled by the laws of the state of Delaware without reference to conflict of laws principles.

Compliance with Laws

Each Party will at all times strictly comply with all applicable laws, rules, regulations and governmental orders, now or hereafter in effect, relating to its performance of this Agreement, and will obtain and maintain all necessary government licenses, permits, approvals, and registrations required by law at all times during the Term of this Agreement.

Severability

If any provision of this Agreement is unenforceable, such provision will be changed and interpreted to accomplish the objectives of such provision to the greatest extent possible under applicable law and the remaining provisions will continue in full force and effect.

Construction

The headings of Sections of this Agreement are for convenience and are not to be used in interpreting this Agreement. As used in this Agreement, the word “including” means “including but not limited to.”

Modification

Grouper may update this Agreement at any time, in its sole discretion, by posting the updated Agreement (as indicated by a revised “Last Updated” date) on the Grouper Network website. Modifications will be effective on the date that they are posted on such website.

Counterparts

This Agreement may be executed in counterparts, each of which will be considered an original, but all of which together will constitute the same instrument.

Entire Agreement; No Waiver

This Agreement constitutes the entire agreement between the Parties regarding the subject hereof and supersedes all prior or contemporaneous agreements, understandings, and communication, whether written or oral. This Agreement may be amended only by a written document signed by both Parties. The waiver of any breach or default will not constitute a waiver of any other right hereunder or any subsequent breach or default.