Click2Save and AI Agents Terms of Use

ALTADX PLATFORM SOFTWARE AS A SERVICE TERMS AND CONDITIONS.

1. Definitions.

1.1. “Access Credentials”

shall mean any user name, identification number, password, license or security key, security token, PIN, or other security code, method, technology, or device, used alone or in combination, to verify an individual’s identity and authorization to access and use the Company Services.

1.2. “Agreement”

shall mean the Terms and Conditions stated hereunder, together with all the Order Forms.

1.3. “Authorized Users”

shall mean Customer’s employees, consultants, contractors, and agents who are authorized by Customer to access and use the Company Services under the rights granted to Customer pursuant to this Agreement.

1.4. “Company”

shall mean AltaDx Group, Inc., a Delaware limited liability company or any of its successors or assigns thereof.

1.5. “Company Materials”

shall mean the Company Services, OMAP™ Agents, Documentation, and any and all other information, data, documents, materials, works, and other content, devices, methods, processes, hardware and other technologies and inventions, including any deliverables, technical or functional descriptions, requirements, plans, or reports, that are provided or used by Company in connection with the Company Services or otherwise comprise or relate to the Company Services or Solution.

1.6. “Company Services”

shall mean the services ordered by Customer through an Order Form and provided by Company by means of access to certain content and use of the features and functionalities made available to Customer as a service, solely to the extent set forth and further described in, and as limited by, the Order Forms executed by the Parties.

1.7. “Customer”

shall mean the entity or individual identified as customer on the Order Form.

1.8. “Documentation”

shall mean the documents made available directly available to the Customer by Company from time to time which sets out a description and user instructions for the Company Services.

1.9. “Harmful Codes”

shall means and includes any virus, Trojan horse, worm or other software, instructions, routines or components: (i) designed to permit unauthorized access to all or any part of a person or entity’s information systems or other resources; (ii) which function to disable, erase, otherwise harm, or render inoperable or otherwise incapable of being used in the full manner for which they were designed and created, all or any part of a person or entity’s information systems or other resources; or (iii) which facilitate the performance of any such action.

1.10. “Order Form”

shall mean the order form executed by and between the Company and the Customer.

1.11. “Parties”

shall mean Company and Customer collective (each individually referred to herein as “Party”).

1.12. “OMAP™ Agent”

means the AltaDX software application as described on: https://dxfactor.com/outcomes-platform/ and identified on the Order Form as provided by Company from time to time as a part of the Company Services including any updates Company may make to such applications from time to time.

2. ORDERS, ACCESS AND USE

2.1. Orders

The Company Services and access to OMAP™ Agents to be provided by Company under this Agreement may be set forth in one or more Order Forms executed by the Parties during the Term or agreement recorded through our “self-service” option on our website. Either option will record the applicable Company Services to be performed by the Company and the costs associated with such Company Services will be disclosed to you for access to OMAP™ Agents. Your selection of OMAP™ Agents also incorporates these Terms and Conditions.

2.2. Provision of Access

Subject to and conditioned on Customer’s and its Authorized User’s compliance with Terms and Conditions set forth herein, Company hereby grants Customer a non-exclusive, non-transferable (except in compliance with Section 11.3), non-sublicensable, limited right to access and use the features and functions of applicable Company Materials ordered pursuant to an Order Form during the Term for the number of Authorized Users and total locations of the Customer identified in the Order Form. On or as soon as reasonably practicable after the Effective Date, Company will provide Customer the Access Credentials to allow the Customer to access the Company Services. The total number of the Authorized Users and/or locations (as applicable) will not exceed the number set forth in the Order Form, except as expressly agreed in writing by the Parties and subject to any appropriate adjustment of the Fees payable hereunder.

2.3. Documentation License

Company hereby grants to Customer a non-exclusive, non-sublicensable, non-transferable (except in compliance with Section 11.3), limited license to use the Documentation during the Term solely for Customer’s internal business purposes in connection with its use of Company Services.

2.4. Usage Restrictions

Customer will not, and shall not permit any third party, to (a) copy, modify, or create derivative works or improvements of the Company Materials; (b) reverse engineer, disassemble, decompile, decode, adapt, or otherwise attempt to derive or gain access to the source code of the Company Services or Company Materials, in whole or in part; (c) rent, lease, lend, sell, sublicense, assign, distribute, publish, transfer, or otherwise make available any Company Services or Company Materials to any third-party, including on or in connection with the internet or any time-sharing, service bureau, software as a service, cloud, or other technology or service; (d) bypass or breach any security device or protection used by the Company Services or Company Materials or access or use the Company Services or Company Materials other than by an Authorized User through the use of his or her own then valid Access Credentials; (e) input, upload, transmit, or otherwise provide to or through the Company Services any information or materials that are unlawful or injurious, or contain, transmit, or activate any Harmful Code; (f) remove, delete, alter, or obscure any trademarks, Documentation, warranties, or disclaimers, or any copyright, trademark, patent, or other intellectual property or proprietary rights notices from any Company Services or Company Materials, including any copy thereof; or (g) access or use the Company Services or Company Materials in any manner or for any purpose that infringes, misappropriates, or otherwise violates any intellectual property right or other right of any third party, or that violates any applicable law. Customer will ensure that its use of the Company Service complies with all applicable laws, statutes, regulations or rules.

2.5. Assignment of Point of Contact

Customer shall, throughout the Term, maintain within its organization a service manager to serve as Customer’s primary point of contact for day-to-day communications, consultation, and decision-making regarding this Agreement. Each such service manager shall be responsible for providing all day-to-day consents and approvals on behalf of Customer under this Agreement. Customer shall ensure its service manager has the requisite organizational authority, skill, experience and other qualifications to perform in such capacity.

2.6. Changes

Company reserves the right, in its sole discretion, to make any changes to the Company Services and Company Materials that it deems necessary or useful to: (a) maintain or enhance: (i) the quality or delivery of Company’s services to its customers; (ii) the competitive strength of or market for Company’s services; or (iii) the Company Services’ cost efficiency or performance; or (b) to comply with applicable law. Without limiting the foregoing, either Party may, at any time during the Term, request in writing changes to the Company Services. No requested changes will be effective unless and until memorialized in a writing and signed by both Parties.

2.7. Suspension or Termination of Services

Company may, directly or indirectly, and by use lawful means, suspend, terminate, or otherwise deny Customer’s, any Authorized Users’ access to or use of all or any part of the Company Services or Company Materials, without incurring any resulting obligation or liability, if: (a) Company receives a judicial or other governmental demand or order, subpoena, or law enforcement request that expressly or by reasonable implication requires Company to do so; or (b) Company believes, in its good faith and reasonable discretion, that: (i) Customer or any Authorized User has failed to comply with any term of this Agreement, or accessed or used the Company Services beyond the scope of the rights granted or for a purpose not authorized under this Agreement; (ii) Customer or any Authorized User is, has been, or is likely to be involved in any fraudulent, misleading, or unlawful activities relating to or in connection with any of the Company Services; or (iii) this Agreement expires or is terminated. This Section 2.7 does not limit any of Company’s other rights or remedies, whether at law, in equity, or under this Agreement.

3. Customer Responsibilities

3.1. Authorized Users Access to Services

Customer may permit any Authorized Users to access and use the features and functions of the Company Services as contemplated by the Agreement on behalf of Customer.

3.2. Service Rules and Guidelines

Customer shall use the Company Services solely for its internal business purposes as contemplated by this Agreement and shall not use the Company Services to: (a) interfere with or disrupt the integrity or performance of the Company Service or data contained therein; or (b) attempt to gain unauthorized access to the Company Service.

3.3. Restriction Export

Customer may not remove or export or allow the export or re-export of the Company Materials or anything related thereto, or any direct product thereof in violation of any restrictions, laws or regulations of the United States or any other foreign jurisdiction. Customer will defend, indemnify, and hold harmless Company from and against any violation of such laws or regulations by Customer or any of its agents, officers, directors, or employees.

3.4. Equipment Responsibility

Customer shall be responsible for obtaining and maintaining any equipment and ancillary services needed to connect to, access or otherwise use the Company Services, including, without limitation, modems, hardware, servers, software, operating systems, networking, web servers, phone numbers and the like (collectively, “Equipment”). Customers using the FrontDesk Agent warrant that they own the phone number to be used by FrontDesk Agent, will authorize and be responsible for forwarding calls to the FrontDesk Agent, and permit all FrontDesk Agent calls to announce that the call is being recorded. Customer shall also be responsible for maintaining the security of the Equipment, Access Credentials and files, and for all uses of Access Credentials or the Equipment with or without Customer’s knowledge or consent.

3.5. Additional Disclosure and Terms

Customer understands and agrees that access to and use of the OMAP™ Agents is further governed by the terms and policies of OpenAI and Stripe, Twilio along with the Company’s Terms of Use and Privacy Policy.

4. Ownership and Intellectual Property Rights

4.1.

Company shall own and retain all right, title and interest in and to (a) the Company Services, OMAP™ Agents, Documentation, Company Materials and all improvements, derivative works, enhancements or modifications thereto; (b) any software, applications, inventions or other technology developed in connection with Company Services or support; (c) any methodologies, code, templates, tools, policies, records, working papers, know-how, data; and (d) all patent, copyright, trade secret, trademarks and other intellectual property rights related to any of the foregoing. Customer does not acquire any right, express or implied, in the Company Materials, other than those specified in this Agreement. Notwithstanding anything to the contrary in this Agreement, Company will not be prohibited or enjoined at any time by Customer from utilizing any skills or knowledge of a general nature acquired during the course of providing the Company Services under this Agreement.

4.2.

Customer will own all right, title and interest in and to all data, information, media and content provided by Customer pursuant to its access and usage of Company Services (collectively “Customer Data”). Customer represents and warrants that it has the necessary rights, power and authority to transmit Customer Data (as defined below) to Company under this Agreement and that Customer has and shall continue to fulfill obligations with respect to individuals as required to permit Company to carry out the terms hereof, including with respect to all applicable laws, regulations and other constraints applicable to Customer Data. Customer shall be fully responsible for its possession, uploading and use of Customer Data, including compliance with privacy laws. Company acknowledges that it neither owns nor acquires any additional rights in and to the Customer Data not expressly granted by this Agreement. Company does not retain uploads of Customer Data in uploaded form once processed by OMAP™ Agents. Customer hereby grants to Company a non-exclusive, worldwide, royalty-free, right and license, during the Term to use the Customer Data to perform Company’s obligations under this Agreement to provide Company Services. Customer also hereby grants to Company a non-exclusive, world-wide, royalty-free, fully paid up, irrevocable and perpetual license to copy and anonymize, aggregate, process and create derivative works of Customer Data for the purpose of deriving anonymous statistical and usage data, and data related to the functionality of the Company Services, provided that such data cannot be used to identify Customer or its clients and users (“Anonymous Data”) and combining or incorporating such Anonymous Data with or into other data and information available, derived or obtained from other customers, licensees, users, or other sources, for purposes of providing services hereunder, developing improved and new success vectors, models, products and services and generating statistics for marketing purposes. Company will own all intellectual property rights and other related rights in any improvements, modifications, and other derivative works of, based on, derived from, or otherwise created by Company, concerning the Company Services and the OMAP™ Agents, using any Anonymous Data.

4.3.

If Customer provides Company with any suggestions, comments for enhancements or functionality or other feedback received from its employees, consultants, affiliates, or agents regarding the Company Services (“Feedback”) Customer hereby assigns such Feedback to Company, at no cost (including Feedback created by Customer and/or any of Customer’s employees or contractors), and all related intellectual property also include any feedback received by the Company from its own employees or consultants in connections with the implementation of the Company Services for the Customer. All Feedback is the exclusive property of Company. Company may use Feedback in any manner and for any purpose, without any limitation, liability or obligation to the Customer.

5. Treatment of Confidential Information

5.1.

The Parties anticipate that they will exchange confidential information during the Term. “Confidential Information” means any and all tangible and intangible information, either written, oral, or in any other medium, disclosed or made available by a Party (“Disclosing Party”) to the other Party (the “Receiving Party”), including, without limitation, research and development, patents or trade secrets, financial information, know-how, designs, formulations, samples, processes, methodologies, manuals, vendor names, supplier lists, customer lists and patient names and other information related to clients or patients, employee lists, databases, sales and marketing information, and computer programs, or any other confidential information or proprietary aspects of the business of the Disclosing Party. The terms and conditions of this Agreement are Confidential Information. Information will not be considered to be Confidential Information to the extent that the Receiving Party can prove by reliable written record that such information: (i) is already known to the Receiving Party free of any restriction at the time it is obtained by the Receiving Party; (ii) is subsequently learned from an independent third-party free of any restriction or obligation of confidentiality and without breach of this Agreement; (iii) becomes publicly available through no wrongful act of the Receiving Party; or (iv) is independently developed by the Receiving Party without reference to or use of any Confidential Information of the other. In addition, the Receiving Party may disclose the Confidential Information of the Disclosing Party if required to be disclosed by law, regulation, court order or subpoena, provided that the Receiving Party will exercise reasonable efforts to notify the Disclosing Party prior to disclosure.

5.2.

The Receiving Party will maintain the confidentiality of the Disclosing Party’s Confidential Information. The Receiving Party will protect any and all Confidential Information received from the Disclosing Party with the same degree of care used by the Receiving Party to protect its own confidential information of like importance from unauthorized use or disclosure, but in no event less than a reasonable degree of care. The Receiving Party will only use the Disclosing Party’s Confidential Information to exercise its rights and perform its obligations under this Agreement. The Receiving Party acknowledges that (i) the provisions contained in this section are reasonable and necessary to protect the legitimate business interests of the Disclosing Party; and (ii) its breach of this Section 5 will cause irreparable damage to the Disclosing Party and agrees that the Disclosing Party will be entitled to seek injunctive relief from a court of competent jurisdiction as a result of any breach as well as such further or other equitable relief as may be granted by such court, without the posting of any bond or other security and without any requirement to prove actual damages or that monetary damages will not afford an adequate remedy. Any right, power, or remedy provided under this Agreement to the Disclosing Party will be cumulative and in addition to any other right, power, or remedy provided under this Agreement or existing in law or in equity (including, without limitation, the remedies of injunctive relief and specific performance).

6. Payment of Fees

6.1. Fees

In consideration for the access rights granted to Customer and the Company Services performed by Company under this Agreement, Customer will pay to Company, without offset or deduction, all fees required by a particular Order Form. Unless otherwise stated in an Order Form, all fees will be due monthly in advance of the Company Services being rendered. All fees will be billed and payable in U.S. dollars. Notwithstanding the foregoing, any set-up fees listed on a particular Order Form, shall be due and payable upon execution of the applicable Order Form, unless otherwise stated on the Order Form. Any payment not received by the due date shall accrue interest at a rate of one and one-half percent (1.5%) per month, or the highest rate allowed by applicable law, whichever is lower. If Customer is delinquent in the payment of undisputed amounts, Company may suspend the provision of the Company Services to Customer. Use of Company Services may require Customer to incur carrier data charges, which are expressly excluded from Company Services.

6.2. Disputed Fees

If Customer disputes any fees, taxes, or other charges billed by Company, Customer shall notify Company, in writing, of the disputed amount and any relevant information regarding the circumstances of the dispute promptly. If the Customer fails to provide Company with a notice of such a disputed amount within twenty (20) business days following receipt of Company’s invoice for such disputed charge, then such amount is deemed undisputed and due to Company. All parties agree to work cooperatively to resolve any such disputed amounts.

6.3. Taxes

Customer will be responsible for payment of any applicable sales, use and other taxes and all applicable export and import fees, customs duties and similar charges (other than taxes based on Company’s income), and any related penalties and interest for the grant of access rights hereunder, or the delivery of related services. Customer will make all required payments to Company free and clear of, and without reduction for, any withholding taxes. Any such taxes imposed on payments to Company will be Customer’s sole responsibility, and Customer will, upon Company’s request, provide Company with official receipts issued by appropriate taxing authorities, or such other evidence as Company may reasonably request, to establish that such taxes have been paid.

7. Warranties and Disclaimers

7.1. Customer

Customer represents and warrants that (a) it has the power and authority to enter into this Agreement; (b) it will not violate any agreements with third party as a result of performing its obligations under this Agreement; (c) there are neither pending nor threatened, nor to the best of any parties’ knowledge, contemplated, any suits, proceedings, actions, or claims (including any related to a third party’s intellectual property rights) which would materially affect or limit the rights granted under this Agreement; (d) Customer owns or otherwise has and will have the necessary rights and consents in and relating to the Customer Data so that, as received by Company in accordance with this Agreement, they do not and will not infringe, misappropriate, or otherwise violate any intellectual property rights, any privacy or other rights of any third party or violate any applicable law; and (e) Customer will comply with all applicable laws in the configuration, deployment and use of Company Services.

7.2. Company

Company represents and warrants that it will provide the Company Services and perform its other obligations under this Agreement in a professional and workmanlike manner substantially consistent with general industry standards. Company shall comply with all laws, ordinances, codes, regulations, rules, policies, regulations and procedures and the requirements of any other public or private authority. Company shall use reasonable industry standard security mechanisms and procedures to protect the Customer Data and to prevent the introduction by Company into the Customer’s computer systems of any Harmful Code. HOWEVER, COMPANY DOES NOT WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED OR ERROR FREE; NOR DOES IT MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE COMPANY SERVICES OR COMPANY MATERIALS. COMPANY DISCLAIMS ANY AND ALL LIABILITY FOR CUSTOMER USE OF OMAP™ AGENT OUTPUTS. EXCEPT AS EXPRESSLY SET FORTH IN THIS SECTION, THE COMPANY SERVICES AND COMPANY MATERIALS ARE PROVIDED “AS IS” AND COMPANY DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, QUIET ENJOYMENT, SYSTEM INTEGRATION AND/OR DATA ACCURACY. EXCEPT AS OTHERWISE EXPRESSLY PROVIDED IN THIS AGREEMENT, COMPANY DOES NOT MAKE ANY ADDITIONAL REPRESENTATION OR WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED (EITHER IN FACT OR BY OPERATION OF LAW), OR STATUTORY, AS TO ANY MATTER WHATSOEVER. ALL OTHER EXPRESS OR IMPLIED CONDITIONS, REPRESENTATIONS AND WARRANTIES ARE HEREBY EXCLUDED TO THE EXTENT ALLOWED BY APPLICABLE LAW. NEITHER PARTY WILL HAVE THE RIGHT TO MAKE OR PASS ON ANY REPRESENTATION AND WARRANTY ON BEHALF OF THE OTHER PARTY TO ANY THIRD PARTY. The Customer acknowledges and agrees that no other representations or warranties were made to or relied upon by the Customer.

ADDITIONAL DISCLAIMER FOR CLICK2SAVE

The Click2Save product is designed to comply with U.S. Fair Debt Collection Practices. It is Customer’s responsibility to configure, deploy and use this product in compliance with regulations from all jurisdictions in which the product will be used.

8. LIMITATION OF LIABILITY

NOTWITHSTANDING ANYTHING TO THE CONTRARY, EXCEPT FOR BODILY INJURY OF A PERSON, COMPANY AND ITS SUPPLIERS (INCLUDING BUT NOT LIMITED TO ALL EQUIPMENT AND TECHNOLOGY SUPPLIERS), OFFICERS, AFFILIATES, REPRESENTATIVES, CONTRACTORS AND EMPLOYEES SHALL NOT BE RESPONSIBLE OR LIABLE WITH RESPECT TO ANY SUBJECT MATTER OF THIS AGREEMENT OR TERMS AND CONDITIONS RELATED THERETO UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER THEORY: (A) FOR ERROR OR INTERRUPTION OF USE OR FOR LOSS OR INACCURACY OR CORRUPTION OF DATA OR COST OF PROCUREMENT OF SUBSTITUTE GOODS, SERVICES OR TECHNOLOGY OR LOSS OF BUSINESS; (B) FOR ANY INDIRECT, EXEMPLARY, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES; (C) FOR ANY MATTER BEYOND COMPANY’S REASONABLE CONTROL; OR (D) FOR ANY AMOUNTS THAT, TOGETHER WITH AMOUNTS ASSOCIATED WITH ALL OTHER CLAIMS, EXCEED THE FEES PAID BY CUSTOMER TO COMPANY FOR THE COMPANY SERVICES UNDER THIS AGREEMENT IN THE TWELVE (12) MONTHS PRIOR TO THE ACT THAT GAVE RISE TO THE LIABILITY, IN EACH CASE, WHETHER OR NOT COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

THE PARTIES AGREE THAT THIS LIMITATION OF LIABILITY WILL SURVIVE AND CONTINUE IN FULL FORCE AND EFFECT DESPITE ANY FAILURE OF AN EXCLUSIVE REMEDY.

9. Indemnification

9.1. Indemnification of Customer

Company agrees to indemnify, defend and hold harmless Customer from and against any and all third party losses, liabilities, costs (including reasonable attorneys’ fees) or damages resulting from any claim by any third party that: (a) the Company Services infringes such third party’s patents, copyrights or trade secret rights under applicable laws of any jurisdiction within the United States of America; or (b) Company’s gross negligence or willful misconduct, provided that Customer promptly notifies Company in writing of the claim, cooperates with Company, and allows Company sole authority to control the defense and settlement of such claim. If such a claim is made or appears possible, Customer agrees to permit Company, at Company’s sole discretion, to enable it to continue to use the Company Services or the Documentation, as applicable, or to modify or replace any such infringing material to make it non-infringing. If Company determines that none of these alternatives is reasonably available, Customer shall, upon written request from Company, cease use of, and, if applicable, return, such materials as are the subject of the infringement claim.

This Section 9.1 shall not apply if the alleged infringement arises, in whole or in part, from (i) modification of a Company Materials by the Customer if the modification was not reasonably contemplated by the Parties and the infringement or violation would not have occurred but for that modification; (ii) the combination of the Company Materials by the Customer with other third-party products if the combination was not reasonably contemplated by the Parties and the infringement or violation would not have occurred but for that combination; (iii) Customer’s continued use of infringing Company Materials after Company provides Customer with reasonable advance written notice of the infringement and provides non-infringing replacement Company Materials to the Customer at no charge; or (iv) related to Customer Data (any of the foregoing circumstances under clauses (i), (ii), (iii) and (iv) a “Customer Indemnity Responsibility”).

THIS SECTION STATES COMPANY’S ENTIRE OBLIGATION AND LIABILITY WITH RESPECT TO ANY CLAIM OF INFRINGEMENT.

9.2. Customer’s Indemnity Obligations

Customer agrees to hold, harmless, indemnify, and, at Company’s option, defend Company, its shareholders, directors, officers, employees, agents, successors and assigns from and against any losses, liabilities, costs (including reasonable attorneys’ fees) or damages resulting from (a) Customer’s gross negligence or willful misconduct; or (b) a Customer Indemnity Responsibility, provided that Company promptly notifies Customer in writing of the claim, cooperates with Customer, and allows Customer sole authority to control the defense and settlement of such claim; provided that Customer will not settle any third-party claim against Company unless such settlement completely and forever releases Company from all liability with respect to such claim or unless Company consents to such settlement, and further provided that Company will have the right, at its option, to participate in the defense thereof by counsel of its own choice.

10. Term and Termination

10.1.

Subject to earlier termination as provided below, this Agreement is for the Initial Service Term as specified in the Order Form, and shall be automatically renewed for additional periods of the same duration as the Initial Service Term (collectively, the “Term”), unless either party provides a written notice of termination at least thirty (30) days prior to the end of the then-current Term.

10.2.

In addition to any other remedies it may have, either Party may, at its option, terminate this Agreement in the event of a material breach by the other Party. Such termination may be effected only through a written notice to the breaching Party, specifically identifying the breach or breaches on which such notice of termination is based. The breaching Party will have a right to cure such breach or breaches within thirty (30) days of receipt of such notice, and this Agreement will terminate in the event that such cure is not made within such thirty (30)-day period. Upon termination of this Agreement, Customer will (i) immediately cease use of the Company Materials; (ii) pay in full for the Company Services up to and including the last day on which the Company Services are provided; and (iii) return or destroy all copies or other embodiments of Company’s Confidential Information.

11. Miscellaneous

11.1. Independent Contractors

The Parties acknowledge and agree that each is an independent contractor. This Agreement shall not be construed to create a partnership, employment, joint venture, or agency relationship between the Parties and Customer does not have the authority of any kind to bind the Company in any respect whatsoever.

11.2. Entire Agreement

This Agreement is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements, communications and other understandings relating to the subject matter of this Agreement, and that all waivers and modifications must be in a writing signed by both Parties, except as otherwise provided herein. Neither Party will be bound by any inducements or representations other than as expressly provided for in this Agreement.

11.3. Assignment

This Agreement, and any rights or obligations in this Agreement, shall not be assigned by either Party without the prior written consent of the other Party; provided, however, that a Party may assign this Agreement upon notice to the other Party (ii) to an affiliate as part of a corporate reorganization; or (b) to a successor in interest to substantially all of the stock or assets of the Party provided that such successor agrees in writing to be bound by the terms and conditions of this Agreement. Any change in control of Customer, whether by merger, share purchase, asset sale or otherwise, shall be deemed an “Assignment” subject to terms of this Section 11.3.

11.4. Force Majeure

No failure, delay or default in performance of any obligation of a Party to this Agreement, except payment of fees due prior to the occurrence of the Force Majeure Event, shall constitute an event of default or breach of the Agreement to the extent that such failure to perform, delay or default arises out of a cause existing or future, that is beyond the reasonable control of such Party, including without limitation, action or inaction of a governmental agency, civil or military authority, fire, strike, lockout or other labor dispute, inability to obtain labor or materials on time, flood, war, riot, theft, epidemic or pandemic event, earthquake or other natural disaster (“Force Majeure Event”). The Party affected by such Force Majeure Event shall take all reasonable actions to minimize the consequence of any Force Majeure Event and resume its obligations under the Agreement.

11.5. Non-Solicitation by Customer

During the Term and for two (02) years thereafter, Customer shall not, and shall not assist any other third-party to, directly or indirectly, recruit or solicit for employment or engagement as an independent contractor any employee engaged by the Company. In the event of a violation of this Section 11.5, Company will be entitled to liquidated damages equal to the compensation paid by Company to the applicable employee or contractor during the prior twelve (12) months.

11.6. Waiver

The waiver of any right or election of any remedy in one instance shall not affect any rights or remedies in another instance. A waiver shall be effective only if made in writing and signed by an authorized representative of the applicable Party.

11.7. Severability

If any provision of this Agreement is invalid or unenforceable for any reason in any jurisdiction, such provision will be construed to have been adjusted to the minimum extent necessary to cure such invalidity or unenforceability. The invalidity or unenforceability of one or more of the provisions contained in this Agreement will not have the effect of rendering any such provision invalid or unenforceable in any other case, circumstance or jurisdiction, or of rendering any other provisions of this Agreement invalid or unenforceable whatsoever.

11.8. Notices

All notices under this Agreement will be in writing and will be deemed to have been duly given when received, if personally delivered; when receipt is electronically confirmed, if transmitted by facsimile or e-mail; 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 Parties based on the address stated in the applicable Order Form. Any change of address for notice purposes shall be notified to the other Party at the earliest.

11.9. Choice of Law; Jurisdiction

THIS AGREEMENT SHALL BE GOVERNED BY AND INTERPRETED IN ACCORDANCE WITH THE LAWS OF THE COMMONWEALTH OF VIRGINIA, WITHOUT REGARD TO CONFLICTS OF LAW PRINCIPLES THEREOF. FOR PURPOSES OF ALL CLAIMS BROUGHT UNDER THIS AGREEMENT, EACH OF THE PARTIES HEREBY IRREVOCABLY SUBMITS TO THE EXCLUSIVE JURISDICTION OF THE STATE AND FEDERAL COURTS OF THE COMMONWEALTH OF VIRGINIA LOCATED IN FAIRFAX COUNTY.

In any action or proceeding to enforce rights under this Agreement, the prevailing Party will be entitled to recover costs and attorneys’ fees.

11.10. Press Release

Company reserves the right to reference the Customer as a user of the Company service in Company’s marketing and promotional efforts.

11.11. Amendment

The Company may modify these Terms of Use at any time and will notify Customer of changes.

11.12. Survival

Any terms of this Agreement, which either by their nature extend beyond the termination of this Agreement will remain in effect until fulfilled. Such terms will include, without limitation, Section 4 (Ownership and Intellectual Property Rights), Section 5 (Treatment of Confidential Information), Section 7 (Warranties and Disclaimers), Section 8 (Limitation of Liability), Section 9 (Indemnification), Section 10 (Term and Termination, and Section 11 (Miscellaneous).

11.13. Heading

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

11.14. Counterparts

This Agreement may be acknowledged by “click through” agreement or signed in counterparts which may be delivered via facsimile, electronic mail (including pdf or any electronic signature complying with the U.S. federal ESIGN Act of 2000, Uniform Electronic Transactions Act or other applicable law) or other transmission method and any counterpart so delivered shall be deemed to have been duly and validly delivered and be valid and effective for all purposes.