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MASTER SUBSCRIPTION AGREEMENT TERMS AND CONDITIONS

MASTER SUBSCRIPTION AGREEMENT TERMS AND CONDITIONS

This Master Subscription Agreement Term and Conditions (this “MSA Terms and Conditions") is incorporated by reference into Curogram's Subscription by and between Curogram, Inc., a Delaware corporation having a principal place of business at 5319 University Dr., Suite 42, Irvine, CA 92612 (“Company”), and Customer who have signed Curogram Master Subscription Agreement.

Recitals
Whereas, Company wishes to grant to Customer, and Customer desires to obtain from Company, certain rights to access and use certain of Company’s software and materials, as more particularly described below and in accordance with the terms and conditions of this Agreement.
Now, Therefore, in consideration of the mutual promises and covenants contained herein, the parties agree to the following terms and conditions, which set forth the rights, duties and obligations of the parties:

Agreement
1. Definitions
For purposes of this Agreement, the following terms shall have the following meanings:
• “Cloud Software” shall mean the object code form of those portions of the Licensed Software that are both designed to be installed and used on a server, through the desktop web browser, or through installed iOS or Android mobile applications, and are expressly designated as “Cloud Software”.
• “Derivative Work” shall mean a new or modified work that is based on or derived from a preexisting work, including, without limitation, a work that, in the absence of a license, would infringe the copyright in such preexisting work or that uses trade secrets or other proprietary information with respect to such pre-existing work.
• “Go-live date” means the date Curogram’s platform becomes available for use to the Customer. For clarification purposes, if the Customer purchases multiple Curogram products, Go-live date will be the date one of the purchased products becomes available for use.
• “Seat License” shall mean the seat licenses for the use of the Company Software that are set forth on the Order Form and are for use by specific users.
• “Documentation” shall mean the standard documentation for the Licensed Software, as generally provided by Company to its other, similarly situated customers.
• “Intellectual Property Rights” shall mean worldwide statutory and common law rights associated with (a) patents and patent applications; (b) works of authorship, including copyrights, copyright applications, copyright registrations, and “moral rights”; (c) the protection of trade and industrial secrets and confidential information; (d) trademarks (as defined herein); and (e) divisions, continuations, renewals, and re-issuances of any of the foregoing, now existing or acquired in the future.
• “Licensed Software” shall mean, collectively, (a) the Company Software and, if any, Local Programs; (b) the Documentation; and (c) any Updates.
• “Local Program” shall mean the object code form of those portions of the Licensed Software that are both designed to be installed and used on local computers and are expressly designated as “Local Programs”.
• “Service” shall mean the service by which software products and services (including, without limitation, the Company Software) hosted on servers controlled by Company and, as applicable, its designees, are made available through the Internet for remote use by third parties.
• “Term” shall have the meaning set forth in Section 11.
• “Updates” shall mean the object code forms of any modifications, error corrections, bug fixes, new releases, or other updates of or to the Company Software, Local Programs and Documentation that may be provided or otherwise made available hereunder by Company to Customer during the Term.

2. Grant of License; Restrictions
o Grant of License. Subject to the terms and conditions of this Agreement and the timely payment of all fees hereunder, Company hereby grants to Customer a non-exclusive, non-transferable (except pursuant to Section 12), non-sublicensable, limited right and license, during the Term, to access and use the Software as made available by Company through the Service, solely in accordance with the Documentation and solely for Customer’s business use. Customer may only access and use the Company Software with respect to the number of Seat Licenses purchased. Except as set forth in this Section 2, no other right or license of any kind is granted by Company to Customer hereunder with respect to the Company Software.
o Limitations of License. Notwithstanding the forgoing, Curogram reserves the right to suspend the Customer’s access to the Software under the following circumstances: (i) for scheduled or emergency maintenance, or (ii) in the event Customer is in breach of this Agreement, including failure to pay any amounts due to Curogram.
o Grant of License in Local Programs. Subject to the terms and conditions of this Agreement and the timely payment of all fees hereunder, Company hereby grants to Customer a non-exclusive, non-transferable (except pursuant to Section 12), non-sublicensable, limited right and license, during the Term, to (a) make one (1) copy of the Local Programs (and that portion of the Documentation directly related to the Local Programs) for backup purposes only (provided that all titles, copyright and restricted rights notices are reproduced in or on all such copies); (b) install the Local Programs solely on Customer’s computers; and (c) use the Local Programs, in each instance solely for purposes of accessing the Company Software through the Service in accordance with Section 2 in accordance with the Documentation, and solely for Customer’s business purposes. Customer may only use the Local Programs with respect to the number of Seat Licenses purchased. Except as set forth in this Section 2, no other right or license of any kind is granted by Company to Customer hereunder with respect to the Local Programs.
o Restrictions. Customer hereby acknowledges and agrees that it shall not use the Service for any purpose other than the purpose for which Company has developed the Service, and that it shall use the Licensed Software and the Service in accordance with all applicable laws, rules, and regulations. Except as expressly provided in Section 2, Customer shall not, and shall not permit any third party to: (a) copy all or any portion of the Licensed Software or the Service; (b) decompile, disassemble or otherwise reverse engineer (except to the extent expressly permitted by applicable law, notwithstanding a contractual obligation to the contrary) the Licensed Software or the Service, or any portion thereof, or determine or attempt to determine any source code, algorithms, methods, or techniques used or embodied in the Licensed Software or Service or any portion thereof; (c) modify, translate, or create any Derivative Works based upon the Licensed Software or the Service; (d) distribute, disclose, market, rent, lease, assign, sublicense, pledge, or otherwise transfer the Licensed Software or the Service, in whole or in part, to any third party; (e) remove or alter any copyright, trademark, or other proprietary notices, legends, symbols, or labels appearing on or in the Licensed Software or the Service; (f) perform, or release the results of, benchmark tests or other comparisons of the Licensed Software or the Service with other software or materials; (g) transfer the Local Programs to any computer that is not owned or controlled by Customer; (h) permit the Licensed Software to be used for or in connection with any facility management, service bureau, or time-sharing purposes, services, or arrangements, or otherwise used for processing data or other information on behalf of any third party; (i) incorporate the Licensed Software or any portion thereof into any other compilations, materials, products, or services; or (j) use the Licensed Software for any purpose other than in accordance with the terms and conditions of this Agreement; (k) not permit any party or individual to reverse engineer, decompile, disassemble, or otherwise attempt to discover the source code object code, or underlying structure, ideas or algorithms of the service. In the event of any violation of this Section, Company may immediately terminate this Agreement, and shall be entitled to equitable relief in accordance with Section 7.
o HIPAA Compliance. Customer (a) shall use the Services in compliance with all applicable local, state, national and foreign laws, treaties and regulations in connection with Customer’s use of the Services (including the Telephone Consumer Protection Act of 1991 (“TCPA”), the Telemarketing Sales Rules (“TSR”), the Health Insurance Portability and Accountability Act (“HIPAA”) and regulations promulgated thereunder by the U.S. Department of Health and Human Services (“HIPAA Regulations”), the Health Information Technology for Economic and Clinical Health Act (“HITECH Act”) and those laws related to data privacy, patient privacy, international communications, export laws and the transmission of technical or personal data laws), and (b) shall not use the Services in a manner that violates any third party intellectual property, contractual or other proprietary rights. Exhibit A (Business Associate Agreement), which is fully incorporated into this agreement, contains further terms and conditions.
o Grant of License in Customer Materials. Customer hereby grants to Company a worldwide, royalty-free, non-exclusive, limited, non-transferable (except pursuant to Section 12) right and license, during the Term, to use, reproduce, distribute, transmit, perform (publicly, digitally, or otherwise), display (publicly or otherwise), and make derivative works of any and all data, information, content, and other materials prepared by Customer through the use of, stored by Customer in connection with, or transmitted by Customer by or through, the Licensed Software and/or the Service (the “Customer Materials”) for purposes of making the Licensed Software and the Service available to Customer and for internal analytic, statistical, security, quality control, and similar purposes. Customer represents and warrants to Company that it has the right to grant the foregoing licenses in the Customer Materials.

3. Services
o Customer Usernames and Password. Customer (a) hereby acknowledges that it bears sole responsibility for protecting all username(s) and password(s) granted in connection with this Agreement; (b) shall not provide any such information to any third party; and (c) shall remain fully responsible and liable for (and Company shall not be responsible or liable for) any unauthorized use of any username(s) or password(s) granted in connection with this Agreement.
o Hosting. During the Term, Company and/or its designees shall host and maintain the Company Software and the Service, and provide access thereto, subject to the terms and conditions of this Agreement. Company and/or its designees shall use commercially reasonable efforts to provide, in connection with the foregoing obligations: system security and backup sources of power; backup of Customer Materials stored on the Service; and hardware maintenance and installation of Company Software Updates and other fixes.
o Updates and Maintenance. During the Term, Company shall provide Customer with (or, with respect to Company Software, make available to Customer) Updates as they are made generally available by Company to its other, similarly situated customers, as well as maintenance and technical support. Any Update provided or made available by Company hereunder shall be deemed part of the Licensed Software and shall be subject to the terms and conditions of this Agreement.
o Further Customer Obligations. Customer shall be solely responsible for installing and setting up any Local Programs, for accessing the Company Software and the Service using the Local Programs, and for any and all costs and fees in connection with accessing and using the Licensed Software and/or the Service, including, without limitation, Internet service provider fees, telecommunications fees, and the costs of any and all equipment used by Customer in connection with the Licensed Software and/or the Service. Customer acknowledges that Company shall have no obligation to assist Customer in using or accessing the Licensed Software or the Service except as expressly set forth in this Agreement. In addition, Customer shall adhere at all times to the Service Terms and Conditions made available through the Service at curogram.com/terms (hereby incorporated by this reference), which may be amended from time to time by Company in its discretion. Should the provisions of this Agreement conflict with any provisions of the Service Terms and Conditions set forth on Curogram’s website, the provisions of this Agreement shall prevail.

4. Fees and Payment
o Fees. Customer shall pay to Company license fees (“License Fees”) in the amounts and according to the terms and conditions of the Master Subscription Agreement. Subscription Fees are Non-Refundable for the Term of the Agreement. If Customer upgrades their plan during the Term, the pro-rata contract amount for the remaining period will be credited to Customer against any new contract license fees and Customer shall the difference in fees for the remaining Term. If Customer exceeds the User or Usage limits of the Agreement during a monthly period, Customer will automatically be charged the incremental fees associated with that month’s usage and will be charged with the next level plan for that monthly period going forward.
o Interest. Any amounts payable by Customer to Company hereunder which remain overdue for thirty (30) days or longer shall be subject to interest equal to the lesser of one and one-half percent (1.5%) per month and the maximum amount permitted by law, calculated on a daily basis.

5. Taxes. All prices set forth in this Agreement are in U.S. Dollars and are exclusive of any applicable taxes. Customer shall pay, indemnify, and hold Company harmless from all import and export duties, customs fees, levies, or imposts, and all sales, use, value added, or other fees, governmental charges, or taxes of any nature (other than U.S. taxes on Company’s income), including penalties and interest, and all government permit or license fees assessed upon or with respect to any products sold, leased, or licensed to Customer and any services rendered to Customer. If Customer is required by law to make any deduction or to withhold any amount from any sum payable to Company by Customer hereunder, (a) Customer shall remit such amounts to the appropriate taxing authorities and promptly furnish Company with tax receipts evidencing the payments of such amounts, and (b) the sum payable by Customer upon which the deduction or withholding is based shall be increased to the extent necessary to ensure that, after such deduction or withholding, Company receives and retains, free from liability for such deduction or withholding, a net amount equal to the amount Company would have received and retained in the absence of such required deduction or withholding.

6. Proprietary Rights
As between Company and Customer, Company and its licensors own and shall retain all right, title and interest, including, without limitation, all Intellectual Property Rights, in and to the Licensed Software and the Service and any portions thereof, including, without limitation, any copy or Derivative Work of the Licensed Software or Service (or any portion thereof) and any Updates thereto. Customer agrees to take any action reasonably requested by Company to evidence, maintain, enforce, or defend the foregoing. Customer shall not take any action to jeopardize, encumber, limit, or interfere in any manner with Company’s or its licensors’ ownership of and rights with respect to the Licensed Software, or any Derivative Work or Update thereof or thereto. Customer shall have only those rights in and to the Licensed Software and Service and any Derivative Work or Update thereto as are expressly granted to it under this Agreement. Customer shall have the right to transfer ownership of phone numbers assigned to its account from Company to Customer. Customer will be responsible for effecting the transfer and any associated costs incurred by Company in such transfer. Company will provide best efforts to support the transfer.

7. Confidential Information
o Confidential Information. During the term of this Agreement, and for a period of five (5) years following the expiration or earlier termination hereof, each party shall maintain in confidence all information of the other party disclosed by the other party (the “Discloser”) and identified as, or acknowledged to be, confidential (the “Confidential Information”), and shall not use, disclose or grant the use of the Confidential Information except on a need-to-know basis to those directors, officers, affiliates, employees, permitted licensees, permitted assignees and agents, consultants, clinical investigators or contractors, to the extent such disclosure is reasonably necessary in connection with such party’s activities. To the extent that disclosure is authorized by this Agreement, prior to disclosure, each party hereto shall obtain agreement of any such person to hold in confidence and not make use of the Confidential Information for any purpose other than those permitted by this Agreement.
o Permitted Disclosures. The confidentiality obligations contained above shall not apply to the extent that (a) any receiving party (the “Recipient”) is required to disclose information by law, order or regulation of a governmental agency or a court of competent jurisdiction, provided that the Recipient shall provide written notice thereof to the Discloser and sufficient opportunity to object to any such disclosure or to request confidential treatment thereof; or (b) the Recipient can demonstrate that (i) the disclosed information was public knowledge at the time of such disclosure to the Recipient, or thereafter became public knowledge, other than as a result of actions of the Recipient in violation hereof; (ii) the disclosed information was rightfully known by the Recipient (as shown by its written records) prior to the date of disclosure to the Recipient by the other party hereunder; (iii) the disclosed information was disclosed to the Recipient on an unrestricted basis from a source unrelated to any party to this Agreement and not under a duty of confidentiality to the Discloser; or (iv) the disclosed information was independently developed by the Recipient without use of the Confidential Information disclosed by the Discloser.
o Equitable Relief. The Recipient acknowledges and agrees that due to the unique nature of the Confidential Information, there can be no adequate remedy at law to compensate the Discloser for the breach of this Section 7; that any such breach may result in irreparable harm to the Discloser that would be difficult to measure; and, therefore, that upon any such breach or threat thereof, the Discloser shall be entitled to seek injunctive and other appropriate equitable relief (without the necessity of proving actual damages or of posting a bond), in addition to whatever remedies it may have at law, hereunder, or otherwise.

8. Representations and Warranties
o Mutual Representation. Each party represents and warrants to the other party that the execution, delivery and performance of this Agreement does not and shall not contravene or constitute a default under, and is not and shall not be inconsistent with, any judgment decree or order, or any contract, agreement, or other undertaking, applicable to such party.
o Limited Warranty. Subject to the limitations set forth in this Agreement, Company represents and warrants to Customer that the Local Program, when used in accordance with the Documentation, shall throughout the Term substantially conform to the functional specifications in such Documentation as delivered to Customer. If Customer finds what it reasonably believes to be a failure of the Local Program to substantially conform to the functional specifications in the Documentation, and provides Company with a written report that describes such failure in sufficient detail to enable Company to reproduce such failure, Company shall use commercially reasonable efforts to correct or provide a workaround for such failure at no additional charge to Customer. COMPANY MAKES NO WARRANTY THAT ALL ERRORS, FAILURES, OR DEFECTS SHALL BE CORRECTED, OR THAT ACCESS TO OR USE OF THE SERVICE SHALL BE UNINTERRUPTED, ERROR-FREE, OR SECURE. NO ORAL OR WRITTEN INFORMATION OR ADVICE PROVIDED BY COMPANY, ITS AGENTS, OR ITS EMPLOYEES, SHALL CREATE ANY WARRANTY OR IN ANY WAY INCREASE THE SCOPE OF THE WARRANTIES EXPRESSLY PROVIDED IN THIS AGREEMENT. Except as provided in Section 3, this Section states the entire liability of Company and the sole and exclusive remedy of Customer with respect to any express or implied warranties hereunder or otherwise in connection with this Agreement.
o Exclusive Warranty. THE EXPRESS WARRANTY SET FORTH IN SECTION 8 CONSTITUTES THE ONLY WARRANTY MADE BY COMPANY WITH RESPECT TO THE LICENSED SOFTWARE, THE SERVICE, AND ANY OTHER SUBJECT MATTER OF THIS AGREEMENT. COMPANY MAKES NO OTHER, AND HEREBY DISCLAIMS ALL OTHER, REPRESENTATIONS, WARRANTIES, OR CONDITIONS OF ANY KIND, WHETHER EXPRESS, IMPLIED (EITHER IN FACT OR BY OPERATION OF LAW), OR STATUTORY, WITH RESPECT TO THE LICENSED SOFTWARE, THE SERVICE, OR ANY OTHER SUBJECT MATTER OF THIS AGREEMENT. COMPANY EXPRESSLY DISCLAIMS ALL WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, SUITABLE QUALITY, AND NONINFRINGEMENT, AND ALL WARRANTIES THAT MAY ARISE FROM COURSE OF DEALING, COURSE OF PERFORMANCE, OR USAGE OF TRADE. COMPANY DOES NOT WARRANT THAT ANY USE OF OR ACCESS TO THE LICENSED SOFTWARE OR THE SERVICE SHALL BE ERROR-FREE OR SECURE, OR THAT OPERATION OF THE LICENSED SOFTWARE OR THE SERVICE SHALL BE UNINTERRUPTED, AND HEREBY DISCLAIMS ANY AND ALL LIABILITY IN CONNECTION THEREWITH. This Section 7 shall be enforceable to the fullest extent allowed by applicable law.
o Defects Not Covered by Warranties. Company shall have no obligations under Section 8 if any nonconformance or failure of, or error in, the Licensed Software is caused by: (a) use of any attachment, feature, hardware, software, or device in connection with the Licensed Software or the Service; (b) misuse of the Licensed Software or the Service, or any use of the Licensed Software or the Service that is not in accordance with this Agreement and/or the Documentation; (c) alteration, modification, or enhancement of the Licensed Software or the Service; or (d) failure to provide a suitable installation or use environment for all or any part of the Licensed Software or the Service.

9. Indemnification
o Indemnity Obligations of Company. Company shall defend any action brought against Customer to the extent it is based on a third party claim that use by Customer of the Licensed Software as furnished hereunder, which use is in accordance with the terms and conditions of this Agreement, directly infringes any valid United States copyright, or trade secret; or in the event that Customer suffers any loss due to a Company breach of any patient confidentiality laws, including HIPAA. Company shall not indemnify or defend Customer in the event that Customer breaches patient confidentiality laws, including HIPAA, while using Company software. Company shall pay any liabilities, costs, damages, and expenses (including reasonable attorney’s fees) finally awarded against Customer in such action that are attributable to such claim, provided: (a) Customer promptly notifies Company in writing of any such claim; (b) Company has sole control of the defense and all related settlement negotiations; and (c) Customer cooperates with Company, at Company’s expense, in defending or settling such claim. In addition to the foregoing, Customer agrees to promptly notify Company of any known or suspected infringement or misappropriation of Company’s proprietary rights of which Customer becomes aware. Should the Licensed Software or the Service become, or be likely to become in Company’s opinion, the subject of any claim of infringement, Company may, at its option: (i) procure for Customer the right to continue using the potentially infringing materials; (ii) replace or modify the potentially infringing materials to make them non-infringing; or (iii) terminate this Agreement.
o Exclusions. Company shall have no liability for any claim based upon: (a) the use, operation, or combination of the Licensed Software or the Service with non-Company programs, data, equipment, or documentation if liability would have been avoided but for such use, operation, or combination; (b) use of other than the then-current, unaltered version of the Licensed Software or Service; (c) Customer’s activities after Company has notified Customer that Company believes such activities may result in infringement; (d) any modifications to or markings of the Licensed Software or the Service that are not specifically authorized in writing by Company; (e) any third party software; (f) any Customer Materials; or (g) Customer’s breach or alleged breach of this Agreement. This Section 9 states the entire liability of Company and the exclusive remedy of Customer with respect to infringement of any intellectual property or other rights, whether under theory of warranty, indemnity, or otherwise.

10. Limitation of Liability
o Limited Remedy. TO THE EXTENT ALLOWED BY APPLICABLE LAW, IN NO EVENT SHALL COMPANY OR ITS SUPPLIERS OR LICENSORS BE LIABLE FOR ANY LOSS OF PROFITS, LOSS OF BUSINESS, LOSS OF USE OR DATA, OR INTERRUPTION OF BUSINESS, OR FOR INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, OR PUNITIVE DAMAGES OF ANY KIND ARISING FROM OR RELATING TO THIS AGREEMENT OR THE SUBJECT MATTER HEREOF, EVEN IF COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, HOWEVER CAUSED.
o Maximum Liability. Notwithstanding anything in this Agreement to the contrary or the failure of essential purpose of any limited remedy or limitation of liability, Company’s entire liability arising from or relating to this Agreement or the subject matter hereof, under any legal theory (whether in contract, tort, indemnity or otherwise), shall not exceed the amounts actually received by Company from Customer hereunder, unless the liability pertains to the Company’s obligations under Section 8.

11. Term and Termination
o Term. The term of this Agreement (the “Term”) shall commence on the Effective Date and continue for an initial period until one (1) year from the first date of active service (unless otherwise specified in the MSA) and shall automatically renew for successive one (1) month periods unless either party notifies the other of its intention not to renew prior to the end of the then-current term.
o Termination for Default. If either party materially defaults in any of its obligations under this Agreement, the non-defaulting party, at its option, shall have the right to terminate this Agreement by written notice to the other party unless, within thirty (30) calendar days after written notice of such default, the defaulting party remedies the default, or, in the case of a default which cannot with due diligence be cured within a period of thirty (30) calendar days, the defaulting party institutes within the thirty (30) day period substantial steps necessary to remedy the default and thereafter diligently prosecutes the same to completion. Notwithstanding anything herein to the contrary, in the event Customer breaches Sections 2 and/or 7 of this Agreement, Company may immediately terminate this Agreement. Customer shall notify Company within twenty-four (24) hours of Customer’s becoming aware of any breach (other than by Company) of the terms and conditions of this Agreement, including, without limitation, any breach of Sections 2 or 7.
o Termination for Bankruptcy. Either party may terminate this Agreement if the other party (a) becomes insolvent; (b) fails to pay his, her or its debts or perform its obligations in the ordinary course of business as they mature; (c) is declared insolvent or admits in writing its insolvency or inability to pay its debts or perform its obligations as they mature; or (d) becomes the subject of any voluntary or involuntary proceeding in bankruptcy, liquidation, dissolution, receivership, attachment, or composition, or makes a general assignment for the benefit of creditors, provided that, in the case of an involuntary proceeding, the proceeding is not dismissed with prejudice within sixty (60) days after the institution thereof.
o Effect of Termination. Upon the expiration or termination of this Agreement, all rights and licenses granted to Customer hereunder shall immediately terminate. Within ten (10) days after any termination or expiration of this Agreement, Customer shall, at its sole expense, return to Company (or destroy, at Company’s sole election) all Licensed Software and Confidential Information (and all copies and extracts thereof) then in the possession or under the control of Customer. Customer shall furnish to Company an affidavit signed by an officer of Customer certifying that, to the best of its knowledge, such delivery or destruction has been fully effected. Termination of this Agreement by either party shall not act as a waiver of any breach of this Agreement and shall not act as a release of either party from any liability for breach of such party’s obligations under this Agreement. Neither party shall be liable to the other for damages of any kind solely as a result of terminating this Agreement in accordance with its terms. Either party’s termination of this Agreement shall be without prejudice to any other right or remedy that it may have at law or in equity, and shall not relieve either party of breaches occurring prior to the effective date of such termination. The provisions of Sections 1 (“Definitions”), 2 (“Restrictions”), 6 (“Proprietary Rights”), 7 (“Confidential Information”), 8 (“Representations and Warranties”), 9 (“Indemnification”), 10 (“Limitation of Liability”), 11 (“Term and Termination”) and 12 (“General Provisions”), and Sections 3 (“Updates and Maintenance”) and 4 (“Fees and Payment”) (with respect to amounts accrued but as-yet unpaid), shall survive the expiration or any termination of this Agreement.

12. General Provisions
o Notices. Any notice, request, demand or other communication required or permitted hereunder shall be in writing, shall reference this Agreement, and shall be deemed to be properly given: (a) when delivered personally; (b) when sent by facsimile, with written confirmation of receipt; (c) seven (7) days after having been sent by registered or certified mail, return receipt requested, postage prepaid; or (d) two (2) business days after deposit with a nationally recognized private industry express courier (g., Federal Express or DHL), with written confirmation of receipt. All notices shall be sent to the address set forth above (or to such other address as may be designated by a party by giving written notice to the other party pursuant to this Section 12). The names and contact information provided on the Master Subscription Agreement will serve as notice.
Assignment. Neither this Agreement nor any right or obligation hereunder may be assigned or otherwise transferred (whether voluntarily, by operation of law or otherwise), without the prior express written consent of the other party; provided, however, that either party may, without such consent, assign this Agreement and its rights and obligations hereunder in connection with the transfer or sale of all or substantially all of its business, or in the event of its merger, consolidation, change in control or other similar transaction. Any permitted assignee shall assume all obligations of its assignor under this Agreement. Any purported assignment or transfer in violation of this Section 12 shall be void.
• Governing Law, Jurisdiction, and Venue. This Agreement shall be governed by and construed in accordance with the laws of the State of California, U.S.A., without reference to its conflicts of law provisions. Any dispute regarding this Agreement shall be subject to the exclusive jurisdiction of the California state and federal courts. This Agreement shall not be governed by the United Nations Convention on Contracts for the International Sale of Goods, the application of which is hereby expressly excluded.
• Construction. This Agreement has been negotiated by the parties and their respective counsel. This Agreement shall be interpreted fairly in accordance with its terms and without any construction in favor of or against either party.
• Waiver. The waiver by either party of a breach of or a default under any provision of this Agreement, shall be in writing and shall not be construed as a waiver of any subsequent breach of or default under the same or any other provision of this Agreement, nor shall any delay or omission on the part of either party to exercise or avail itself of any right or remedy that it has or may have hereunder operate as a waiver of any right or remedy.
• Severability. If the application of any provision of this Agreement to any particular facts or circumstances shall be held to be invalid or unenforceable by an arbitration panel or a court of competent jurisdiction, then (a) the validity and enforceability of such provision as applied to any other particular facts or circumstances and the validity of other provisions of this Agreement shall not in any way be affected or impaired thereby, and (b) such provision shall be enforced to the maximum extent possible so as to effect the intent of the parties and reformed without further action by the parties to the extent necessary to make such provision valid and enforceable.
• Relationship of the Parties. Nothing contained in this Agreement shall be deemed or construed as creating a joint venture, partnership, agency, employment, or fiduciary relationship between the parties. Neither party, nor either party’s agents, have any authority of any kind to bind the other party in any respect whatsoever, and the relationship of the parties is, and at all times shall continue to be, that of independent contractors.
• Force Majeure. Except for the payment of monies due hereunder, neither party shall be responsible or have any liability for any delay or failure to perform to the extent due to unforeseen circumstances or causes beyond its reasonable control, including, without limitation, acts of God, earthquake, fire, flood, embargoes, labor disputes and strikes, riots, war, error in the coding of electronic files, Internet or other network “brownouts” or failures, power failures, novelty of product manufacture or other unanticipated product development problems, and acts of civil and military authorities; provided that such party gives the other party prompt written notice of the failure to perform and the reason therefor and uses its reasonable efforts to limit the resulting delay in its performance.
•U. S. Government Rights. If Customer is, or is entering into this Agreement on behalf of, any agency or instrumentality of the United States Government, the Licensed Software and the Documentation are “commercial computer software” and “commercial computer software documentation”, and pursuant to FAR 12.212 or DFARS 227.7202, and their successors, as applicable, use, reproduction and disclosure of the Licensed Software and the Documentation are governed by the terms of this Agreement.
• Export Controls. Customer shall abide by all applicable export laws and regulations in its use of the Licensed Software and the Service. None of the Licensed Software, and no part of the Service, may be downloaded or otherwise exported or re-exported (a) into any country for which the United States has a trade embargo, or (b) to anyone on the U.S. Treasury Department’s list of Specially Designated Nationals or the U.S. Commerce Department’s Table of Denial Orders. Customer represents and warrants that he or she is not located in, under the control of, or a national or resident of any such country or on any such list.
• Captions and Section Headings. The captions and Section headings used in this Agreement are inserted for convenience only and shall not affect the meaning or interpretation of this Agreement.
• Counterparts. This Agreement may be executed in one or more counterparts, with the same effect as if the parties had signed the same document. Each counterpart so executed shall be deemed to be an original, and all such counterparts shall be construed together and shall constitute one Agreement.
• Waiver; Modification. If a party waives any term, provision or the other party’s breach of this Agreement, such waiver shall not be effective unless it is in writing and signed by such party. No waiver by a party of a breach of this Agreement shall constitute a waiver of any other or subsequent breach by the other party. This Agreement may be modified only by mutual written agreement of authorized representatives of the parties.
• Entire Agreement. This Agreement, including the Exhibit(s) attached hereto, constitutes the entire agreement between the parties concerning the subject matter hereof, and supersedes (a) all prior or contemporaneous representations, discussions, proposals, negotiations, conditions, agreements, and communications, whether oral or written, between the parties relating to the subject matter of this Agreement; and (b) all past courses of dealing and industry custom.
Last Revision 9/26/23