Terms and Conditions

Last updated: May 4, 2024

Introduction

For good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties agree as follows:

1. Definitions and Construction

Capitalized terms in this Agreement have the meanings indicated in this Exhibit A unless the context otherwise requires, which meaning will be equally applicable to both the singular and plural forms of those terms.

In this Agreement, unless a clear contrary intention appears:

(a) "Section" and "Exhibit" refer to sections and exhibits of or to this Agreement

(b) "including" (and with correlative meaning "include") means including without limiting the generality of any description preceding such term

(c) where any word or phrase is given a definite meaning, any part of speech or other grammatical form of that word or phrase has a corresponding meaning

(d) when calculating the period of time before which, within which or following which any act is to be done or step taken pursuant to this Agreement, the date that is the reference date in calculating that period will be excluded and, if the last day of that period is not a business day, the period will end on the next business day

(e) any reference to a consent, determination or other exercise of discretion by Company, unless expressly provided to the contrary, means a determination for exercise of discretion in Company's sole and absolute discretion

2. Hosted Service; Software

2.1 Company will make the Hosted Service available to Customer and its Users pursuant to this Agreement and the applicable Order Form during each Subscription Term. Customer agrees that its purchases under this Agreement are neither contingent on the delivery of any future functionality or features nor dependent on any oral or written public comments made by Company regarding future functionality or features. Customer will be responsible for Users' compliance with this Agreement.

2.2 Customer will not: (a) sub-license, sell, rent, lease, transfer, assign, distribute, display, host, outsource, disclose or otherwise commercially exploit or make the Hosted Service or any Licensed Materials available to any third party other than Users for Customer's internal purposes, except for uses permitted under Section 3.2 and Sublicenses pursuant to Section 3.3; (b) modify, make derivative works of, disassemble, reverse compile, reverse engineer, or subvert the intrinsic security of any part of the Hosted Service for any purpose including discovering individual Customer Data or re-identifying anonymous data; (c) remove or alter any restrictive or ownership legends, trademarks, trade names, copyright legends and other identifications appearing on or in the Hosted Service, the Licensed Materials or the Documentation and will reproduce such legends, trademarks, trade names, copyright legends and other identifications on any copies it makes of the Licensed Material or Documentation, (d) access or use the Hosted Service or any Licensed Materials in order to build a similar or competitive product or service; (e) disclose any review of the Hosted Service to any third party without Company's prior written approval; (f) use any e-mail addresses and other customer contact information provided on the Hosted Service for marketing or advertising purposes; or (g) post, transmit, link to, or otherwise distribute any inappropriate, profane, defamatory, obscene, indecent or unlawful material or information. Except as expressly stated in this Agreement, no part of the Hosted Service may be copied, reproduced, distributed, republished, downloaded, displayed, posted or transmitted in any form or by any means to, including electronic, mechanical, photocopying, recording, or other means. Customer will make reasonable efforts to prevent unauthorized third parties from accessing the Hosted Service, and notify Company promptly of any such unauthorized access or use.

2.3 Services may require or allow Users to download software from Company or its licensors onto Users' smartphone, tablet, computer or other device ("Software"). Company grants to Customer and its Users a non-exclusive, limited license to use Software solely for the purpose stated by Company at the time Software is made available to Users. If an end user license agreement is provided with Software, Customer's and the Users' use of that Software is subject to the terms of that license agreement. From time to time, Company may provide Customer and Users with updates or modifications to Software. Customer understands that Company's introduction of various technologies may not be consistent across all platforms and that the performance of Software and related Hosted Service may vary depending on each User's computer and other equipment. Company understands that certain updates and modifications may be required in order to continue use the Software and Hosted Service.

2.4 Company reserves the right to change or upgrade any equipment or software that Company uses to provide the Hosted Service without notice to Customer. Company may install security patches, updates, upgrades, modifications and service packs with respect to the Hosted Service ("Updates") as Company determine in its discretion, and Company reserves the right, but not the obligation, to roll back any Updates. Updates may change system behavior and functionality and as such may negatively affect the Services used by Customer. Company will not be responsible or liable for service disruption or changes in functionality or performance due to Updates. Company will not be responsible or liable for issues that may arise from incompatibilities between Customer's systems or software and any Update or hardware or software change or configuration, regardless of whether discretionary or requested.

2.5 Customer is responsible for safeguarding the username, password and other access credentials that Customer uses to access the Hosted Service ("Access Credentials") and Customer agrees not to disclose Customer's Access Credentials to any third party. Customer is responsible for any activity using Customer's Access Credentials, whether or not Customer authorized that activity. Customer will immediately notify Company of any unauthorized use of Customer's account and of any actual or potential disclosure of Customer's Access Credentials. Customer acknowledges that if Customer wishes to protect Customer's transmission of data or files to Company, it is Customer's responsibility to use a secure encrypted connection to communicate with the Platform and Services. Company makes no representations or warranties as to the security of any such encrypted connection, however, and Customer agrees that Company will have no liability if it fails to protect Customer's transmission.

2.6 Company may use technological means to place reasonable use limits to prohibit excessive use, including excessive downloads or screen views, that Company believes, in its reasonable discretion, indicate a violation of this Agreement, such as sharing access with third parties or attempting to circumvent limitations.

3. Ownership

3.1 As between the parties, Company will own and retain all right, title and interest in and to the Hosted Service, Software and Licensed Materials, including all intellectual property rights. No rights are granted to Customer under this Agreement other than as expressly set forth in this Agreement. As between the parties, Customer will own all right, title and interest in and to any Customer Data. Customer grants to Company the non-exclusive, worldwide right to copy, adapt, transmit, communicate, display, distribute and create compilations and derivative works of the Customer Data for the purpose of providing the Hosted Service and to improve or enhance the Hosted Service. This license includes use of Customer Data to compile, use and disclose anonymous, aggregated statistics that include Customer Data, provided that no such information will directly identify and cannot reasonably be used to identify Customer or Customer's Users. Customer will be solely responsible for ensuring that Customer has obtained all necessary third-party consents and made all required disclosures in connection with the foregoing grant. Customer acknowledges and agrees that Customer Data may be transferred outside of the country or other jurisdiction where other customers or users are located. In addition, Customer will have sole responsibility for the accuracy, quality, integrity, legality, reliability and copyright of all Customer Data.

3.2 Subject to the terms and conditions of this Agreement, Company grants to Customer a limited, non-exclusive, non-transferable, worldwide license, without the right to sublicense to use the Licensed Materials solely for (a) internal purposes, (b) sales presentations to medical practices that are potential clients of Customer, (c) to medical practices that are clients of Customer and to insurance companies for purpose of negotiation of contracts between those insurance companies and the client, and (d) for 12 months after the termination of the applicable Order Form, Resale pursuant to Section 3.3 (the "Permitted Purpose"). Customer may make copies of the Licensed Materials as reasonably necessary for the Permitted Purpose. A recipient of the Licensed Materials permitted under this Section 3.2 (an "Intended Recipient") may use a reasonable number of copies of the Licensed Materials solely for the Permitted Purpose but only on Intended Recipient's prior written agreement to terms of this Section 3.2 (with the Company as an express intended third-party beneficiary if the agreement is not directly with the Company).

3.3 Solely during the term of the applicable Order Form Customer may sublicense the License Materials obtained pursuant to that Order Form to third parties solely for the Permitted Purposes set forth in Sections 3.2(a) – (c) solely with the prior written consent of Company, which consent will not be unreasonably withheld, conditioned or delayed ("Sublicenses"), provided that the parties understand and agree that it will be reasonable for Company to deny consent to a proposed Sublicense because (a) Company believes, in its sole and absolute discretion, that the proposed Sublicense could compete with Company's business, or (b) the proposed consideration for the proposed Sublicense is not adequate. Customer will pay Company fees (the "Sublicensing Fees") equal to 40% of Gross Revenues from Sublicenses. If Customer provides other products or services on a bundled basis with a Sublicense, Customer will allocate the price for that bundled service in its reasonable discretion (based on the prevailing prices for the other Customer products and services, on the one hand, and the Sublicense, on the other hand), but in no event will less than the Minimum Price be allocated to the Sublicense. Customer will pay Company the Sublicensing Fees on Gross Revenues from Sublicenses in any calendar month within 15 days after the end of that calendar month and will concurrently provide Company with a written report setting forth in reasonable detail all Sublicenses granted and all Gross Revenue from Sublicenses received in that calendar month. For clarification, Customer may not grant new Sublicenses to any Licensed Materials after the termination or expiration of the Order Form pursuant to which Customer obtained those Licensed Materials, provided that Sublicenses granted before that expiration or termination may continue after that expiration or termination, subject to the terms of this Agreement, including Customer's obligation to pay Sublicensing Fees.

3.4 For clarification, (a) the uses of Licensed Materials permitted under Sections 3.2 and 3.3 are subject to the provisions of Section 2.2(b) – (f), and (b) nothing in Sections 3.2 or 3.3 will be deemed to permit any publication or public display or access to the Hosted Service, Licensed Materials or Documentation.

3.5 Customer may choose or Company may invite Customer to submit comments or ideas about the Hosted Service or Software, including about how to improve the Hosted Service or the Software ("Feedback"). By submitting Feedback, Customer agrees that its submissions are gratuitous, unsolicited and without restriction and will not place Company under any fiduciary or other obligation, and that Company is free to use the Feedback without any additional compensation to Customer, and/or to disclose the Feedback on a non-confidential basis or otherwise to anyone. Customer further acknowledges that, by acceptance of Customer's submission, Company does not waive any rights to use similar or related ideas previously known to Company, or developed by its employees, or obtained from sources other than Customer.

3.6 The parties understand and agree that monetary damages will not be sufficient to avoid or compensate for Customer's use of the Hosted Service or Software other than as authorized under this Agreement, and that injunctive relief would be appropriate to prevent any such actual or threatened use or disclosure.

4. Billing And Payment

4.1 Customer agrees to pay in advance for the Hosted Service ordered. Except as expressly set forth on an Order Form, Company my change its fees for the Hosted Service from time to time in its discretion by notice of Customer. To the extent an Order Form expressly provides for fixed fees, unless otherwise provided, the fees set forth in each Order Form will be fixed only during the first Subscription Term. Fees for each Subscription Term will be invoiced, if applicable, in advance approximately 30 days before the start of each subsequent Subscription Term or charged automatically at the start of each subsequent Subscription Term. All fees under this Agreement are nonrefundable except as otherwise set forth in this Agreement. Company's fees are exclusive of all taxes, levies, or duties imposed by taxing authorities, and Customer will be responsible for payment of all those taxes, levies, or duties, even if the amounts are not listed by Company.

4.2 Except as otherwise provided in an Order Form, payment for invoices is due within 30 days of Customer's receipt of the applicable invoice (excluding amounts under reasonable and good faith dispute). If any amounts are withheld by Customer, Customer will, within the Dispute Period provide Company a reasonably detailed written explanation of the nature of the dispute, which explanation will set forth the dollar amounts withheld and the reasons for withholding those amounts. If Customer does not dispute the applicable invoice during the Dispute Period, any such dispute will be deemed waived. For clarity, Customer remains obligated to pay Company for all fees when due, regardless of any dispute. Overdue amounts are subject to interest at 1.5% per month, or the maximum rate permitted by law, whichever is lower, and may result in suspension of Customer's ability to access the Hosted Service until payment is made, at Company's discretion. Customer will reimburse Company for all reasonable, actual costs (including reasonable attorneys' fees) incurred by Company in the collection of overdue amounts.

4.3 On reasonable advance notice, Customer will permit Company and/or its designated representatives, during normal business hours and at Company's sole cost and expense, to audit Customer's books and records to confirm Customer's compliance with this Agreement, including any Order Forms and the calculation of any Sublicensing Fees, provided that Company will not exercise its rights under this Section 4.3 (a) more than once in any 12-month period, or (b) more than once as to any period audited. If an audit under this Section 4.3 reveals an underpayment by Customer, Customer will make all payments required to eliminate the underpayment within 30 days after Company's demand by notice. All information inspected by Company or its designees under this Section 4.3 will be deemed Confidential Information of Customer. If Customer delays Company's access to any books and records pursuant to this Section 4.3 for more than ten business days after Company's first written request to access those books and records, the parties agree that any statutory limitation on actions with respect to any matters pertaining to the review of those books and records and any limitation on such actions imposed by this Agreement will be tolled for the period of the delay beyond ten business days.

6. Warranties; Limitation of Liability

6.1 Customer's Limited Warranties. Customer warrants that (a) this Agreement constitutes the legal, valid and binding obligation of Customer, enforceable against Customer in accordance with its terms, (b) neither the execution and delivery of this Agreement nor either party's performance under it will, directly or indirectly (with or without notice or lapse of time) (i) contravene, conflict with, or result in a violation of any domestic or foreign, federal, state or local statute, law (including principles of common law), ordinance, rule, policy, guideline, permit, administrative interpretation, regulation, order, writ, injunction, legally binding directive, judgment, decree or other requirement of any governmental body ("Legal Requirement") to which Customer may be subject; (ii) give any governmental body or other person the right to challenge the validity or performance of this Agreement or to exercise any remedy or obtain any relief under, any contract or any Legal Requirement; or (iii) contravene, conflict with, or result in a default under any contractual or other obligation binding on Customer.

6.2 Company's Limited Warranties. Company warrants that (a) this Agreement constitutes the legal, valid and binding obligation of Company, enforceable against Company in accordance with its terms, (b) neither the execution and delivery of this Agreement nor either party's performance under it will, directly or indirectly (with or without notice or lapse of time) (i) contravene, conflict with, or result in a violation of any Legal Requirement to which Company may be subject; (ii) give any governmental body or other person the right to challenge the validity or performance of this Agreement or to exercise any remedy or obtain any relief under, any contract or any Legal Requirement; or (iii) contravene, conflict with, or result in a default under any contractual or other obligation binding on Company, (c) the Hosted Service will operate substantially as described in the applicable Documentation, and (d) any support services provided pursuant to Section 5 will be provided in a workmanlike manner consistent with industry standards.

6.3 Exclusive Remedy. Customer's sole and exclusive remedy, and Company's entire liability, for any breach by Company of its warranties under this Agreement will be, at Company's discretion, either (a) to correct the error that caused the breach, or (b) as applicable, (i) to provide the Hosted Service in conformance with the warranties, or (ii) to re-perform any support services in a manner conforming to the warranties. If Company is unable, using commercially reasonable efforts, to correct the error or otherwise cure the breach by providing a conforming Hosted Service or re-performing support services, as applicable, then Company may terminate this Agreement and return to Customer the fees paid for the specific non-conforming portion of the Hosted Service or support services.

6.4 Limited Warranty. NO OTHER WARRANTY, EXPRESS OR IMPLIED, IS MADE WITH RESPECT TO THE HOSTED SERVICES, ANY SOFTWARE, OR ANY SUPPORT SERVICES TO BE SUPPLIED UNDER THIS AGREEMENT, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT OF THIRD PARTY RIGHTS OR ANY WARRANTY ARISING FROM A COURSE OF DEALING OR USAGE OF TRADE. NO OTHER WARRANTY, EXPRESS OR IMPLIED, IS MADE REGARDING THE RESULTS OF ANY HOSTED SERVICES OR SOFTWARE, OR THAT USE OF ANY HOSTED SERVICES OR SOFTWARE WILL BE UNINTERRUPTED OR ERROR-FREE, OR THAT ANY ERRORS OR DEFECTS IN THE HOSTED SERVICES OR SOFTWARE WILL BE CORRECTED, OR THAT ANY HOSTED SERVICES' OR SOFTWARE'S FUNCTIONALITY WILL MEET CUSTOMER'S REQUIREMENTS.

6.5 Limitation of Liability. EXCEPT FOR A PARTY'S OBLIGATIONS UNDER SECTION 7, IN NO EVENT WILL EITHER PARTY'S AGGREGATE LIABILITY TO THE OTHER PARTY UNDER THIS AGREEMENT EXCEED THE AGGREGATE AMOUNTS PAID OR PAYABLE TO THE COMPANY BY WAY OF FEES FOR THE 12-MONTH PERIOD PRIOR TO THE EVENT GIVING RISE TO LIABILITY.

6.6 No Consequential Damages. UNDER NO CIRCUMSTANCES AND UNDER NO LEGAL THEORY, WHETHER IN TORT, CONTRACT OR OTHERWISE, WILL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL DAMAGES OF ANY CHARACTER INCLUDING DAMAGES FOR LOSS OF GOODWILL, LOSS OF PROFITS, WORK STOPPAGE, COMPUTER FAILURE OR MALFUNCTION, EVEN IF SUCH PARTY WILL HAVE BEEN INFORMED OF THE POSSIBILITY OF SUCH LOSS. FOR PURPOSES OF CLARIFICATION ONLY, THE PARTIES ACKNOWLEDGE AND AGREE THAT THIS SECTION 6.6 IS NOT INTENDED TO AND WILL NOT LIMIT A PARTY'S DUTY TO INDEMNIFY AS SET FORTH IN SECTION 7.

7. Indemnities

7.1 Indemnification by Company

(a) Company will indemnify, defend and hold harmless Customer, its affiliates, and their respective directors, managers, officers, employees, shareholders, and members from and against all liabilities, claims, liens, obligations, damages, losses, costs, fees and expenses, including fines, assessments and penalties, including reasonable investigatory and attorney's fees and disbursements ("Damages"), based on, relating to, concerning or arising out of a third-party claim alleging that (i) the use of the Hosted Service as contemplated under this Agreement infringes the copyrights, trademarks or trade secrets of that third party, or (ii) Company failed to comply with applicable Legal Requirements in its performance of this Agreement; provided, that Customer (I) promptly gives written notice of the Claim to Company; (II) gives Company control of the defense and settlement of the Claim (provided that Customer may participate in the defense at its own expense and that Company may not settle any Claim in a manner that admits liability on behalf of Customer); and (III) provides to Company, at Company's expense, reasonable assistance in connection with the defense and settlement of the Claim.

(b) If any portion of the Hosted Service becomes, or (in the Company's opinion) are likely to become, the subject of a claim subject to indemnity pursuant to Section 7.1(a) then the Company (at its sole cost and expense) may, in its sole and absolute discretion, but will have no obligation to either (i) procure the right for Customer to continue using the Hosted Service as contemplated under this Agreement, (ii) modify the Hosted Service so as to render it non-infringing (provided the modification does not materially degrade the functionality of the Hosted Service), or (iii) replace the Hosted Service with equally suitable, functionally equivalent, compatible, non-infringing service (each, a "Cure"). If the Company provides a Cure, it will have no liability thereafter for the copyright, trademark or trade secret infringement subject to the Cure, provided that nothing in this Section 7.1(b) will relive the Company from any obligation under Section 7.1(a) with respect to third-party claims pertaining to or commenced during the period before the Cure.

(c) Company will have no liability for any Claim under Section 7.1(a) to the extent liability is the result of (i) modifications to the Hosted Service by or for Customer; (ii) the use or combination of the Hosted Service with any other item not provided by Company where in the absence of that use or combination, the Hosted Service alone would not have given rise to the Claim; or (iii) Customer's continued use of an infringing version of any Software when the then current version of the Software has been modified to be non-infringing.

(d) This Section 7.1 represents Company's entire obligation and Customer's exclusive remedy regarding any third party intellectual property claims.

7.2 Indemnification by Customer

Customer will indemnify, defend and hold harmless Company, its affiliates, and their respective directors, managers, officers, employees, shareholders, and members from and against all Damages based on, relating to, concerning or arising out of a third-party claim alleging that (a) the Customer Data or Company's transmission or hosting thereof infringes or violates the rights of any third party or applicable Legal Requirements; (b) Customer's use of the Hosted Service in violation of this Agreement infringes or violates the rights of any third party or applicable Legal Requirements; or (c) Customer failed to comply with applicable Legal Requirements in its performance of this Agreement; provided, that Company (x) promptly gives written notice of the Claim to Customer; (y) gives Customer control of the defense and settlement of the Claim (provided that Company may participate in the defense at its own expense and that Customer may not settle any Claim in a manner that admits liability on behalf of Company); and (z) provides to Customer, at Customer's expense, reasonable assistance in connection with the defense and settlement of the Claim.

8. Term, Termination, Suspension

8.1 The term of this Agreement will commence on the Effective Date listed above and will continue until terminated by either party by notice to the other party.

8.2 The Subscription Term of an Order Form commences on the Effective Date (for the initial purchase of subscriptions) or the effective date of that Order Form (for subsequent purchases of subscriptions), and continues for the Subscription Term specified in that Order Form. This Agreement will continue to apply to any Order Form until the termination or expiration of that Order Form.

8.3 A party may terminate this Agreement, including any Order Forms and any Sublicenses, for cause (a) on breach of this Agreement if that breach has not been cured within 30 days of written notice (or two business days' notice in case of Customer's failure to timely pay any amount due under this Agreement, including Sublicensing Fees) from the non-breaching party specifying the breach in detail (and, if Company is the non-breaching party, Company may terminate Customer's Access Credentials); (b) immediately on written notice if the other party becomes the subject of a bankruptcy, insolvency, receivership, liquidation, assignment for the benefit of creditors or similar proceeding; or (c) as otherwise provided in this Agreement.

8.4 If the Company terminates an Order Form pursuant to Section 8.3, all amounts that would be due over the term of that Order Form will be immediately due on termination. If Customer terminates an Order Form pursuant to Section 8.3, Company will refund a portion of any pre-paid amounts, pro-rated for the portion of period of time for which those amounts were pre-paid remaining at termination. The following provisions will survive any termination of this Agreement: Sections 1, 2.2, 2.3, 3, 4 (solely as to obligations to pay with respect to the period before termination), and 6, 7, 11.1, 11.3 - 11.9, and 11.11 – 11.14.

8.5 Company may suspend, limit or condition Customer's access to the Hosted Service or any of its features if Company reasonably believes that that Customer or any sublicensee under a Sublicense has violated this Agreement or appears likely to do so and Company will have no liability to Customer for any such suspension, limitation or conditioning of access. Any suspension, limitation or conditioning of access to the Hosted Service will have no effect on Customer's obligation to pay for the Hosted Service or to pay any Sublicensing Fees.

8.6 If Customer fails to make timely payment of all amounts due under this Agreement (including Sublicensing Fees), Company may, in its discretion (a) suspend, limit or condition Customer's access to the Hosted Services until Customer has paid all amounts due, (b) terminate this Agreement pursuant to Section 8.3(a), or (c) accelerate the payment of all amounts payable under all current Order Forms, such that all amounts to be paid under those Order Forms will be immediately due and payable. Company will have no liability to Customer for any suspension, limitation or conditioning of access pursuant to Section 8.6(a) and any such suspension, limitation or conditioning of access to the Hosted Service will have no effect on Customer's obligation to pay for the Hosted Service or to pay any Sublicensing Fees.

9. Confidentiality and Data Privacy

9.1 Confidentiality

Each party will protect the other's Confidential Information from unauthorized dissemination and use with the same degree of care that such party uses to protect its own like information. Neither party will use the other's Confidential Information for purposes other than those necessary to directly further the purposes of this Agreement. Neither party will disclose to third parties the other party's Confidential Information without the prior written consent of the other party. A party may disclose Confidential Information to that party's employees or professional advisors (e.g., accountants, attorneys and financial advisors), affiliates and contractors who have a need to know that Confidential Information and receive it under a duty of confidentiality substantially similar to this Section 9. The parties may disclose Confidential Information if required by law so long as the party required to disclose takes reasonable steps available to narrow the required disclosure and obtain protective treatment and notifies the other party, to the extent permitted by applicable law, before disclosure in sufficient time to enable that party to seek protective treatment.

9.2 Data Privacy

(a) Notwithstanding anything to the contrary in this Agreement, to the extent Customer discloses to Company personal information of consumers ("Personal Information"), each as defined under Title 1.81.5 (§§ 1798.100 et seq) of the California Civil Code (the "California Act"), the parties understand and agree that (a) the Personal Information is disclosed by Customer only for limited and specified purposes, (b) Company will comply with applicable obligations under the California Act and will provide the same level of privacy protection as is required by the California Act, in each case with respect to the Personal Information, (c) Customer will have the right to take reasonable and appropriate steps to help ensure that Company uses the Personal Information in a manner consistent with Customer's obligations under the California Act, (d) Company will notify Customer if Company makes a determination that it can no longer meet its obligations under the California Act, and (e) Customer will have the right, on notice to Company, including under clause (d), to take reasonable and appropriate steps to stop and remediate unauthorized use of Personal Information by Company. Without limiting the generality of the foregoing, (x) Company will delete a consumer's Personal Information from Company's records if directed by Customer, subject to any applicable exceptions set forth in the California Act, and (y) Company will not retain, use, or disclose the Personal Information for any purpose other than for the specific purpose of performing the services specified in this Agreement for Customer (or as otherwise permitted by the California Act), including retaining, using, or disclosing the Personal Information for a commercial purpose, as defined in the California Act, other than providing the services specified in this Agreement. If Customer believes at any time during the term of this Agreement that this Section 9.2(a) applies to any data provided by Customer to Company, Customer will promptly provide notice of that belief to Company, specifying in reasonable detail the data Customer believes to be affected and will cooperate with Company in establishing systems for compliance.

(b) Connecticut. Notwithstanding anything to the contrary in this Agreement, to the extent Customer discloses to Company personal data as defined under Connecticut Public Act No 22-15 (the "Connecticut Act"), the Parties understand and agree that Company will (i) adhere to the instructions of Customer and will assist Customer in meeting Customer's obligations under sections 1 to 11, inclusive, of the Connecticut Act, including (a)taking into account the nature of processing and the information available to Company, by appropriate technical and organizational measures, insofar as is reasonably practicable, to fulfill Customer's obligation to respond to consumer rights requests, (b) taking into account the nature of processing and the information available to Company, by assisting Customer in meeting Customer's obligations in relation to the security of processing the personal data and in relation to the notification of a breach of security, as defined in section 36a-701b of the Connecticut General Statutes, of the system of Company, in order to meet Customer's obligations, and (c) providing necessary information to enable Customer to conduct and document data protection assessments, (ii) ensure that each person processing personal data is subject to a duty of confidentiality with respect to the data, (iii) at Customer's direction, delete or return all personal data to Customer as requested at the end of the provision of services, unless retention of the personal data is required by applicable law, (iv) on the reasonable request of Customer, make available to Customer all information in its possession necessary to demonstrate Company's compliance with the obligations in sections 1 to 11, inclusive, of the Connecticut Act, (v) after providing Customer an opportunity to object, engage any subcontractor pursuant to a written contract that requires the subcontractor to meet the obligations of Company with respect to the personal data, and (vi) either (a) allow, and cooperate with, reasonable assessments by Customer or Customer's designated assessor, or (b) arrange for a qualified and independent assessor to conduct an assessment of Company's policies and technical and organizational measures in support of the obligations under sections 1 to 11, inclusive, of the Connecticut Act, using an appropriate and accepted control standard or framework and assessment procedure for such assessments and provide a report of such assessment to Customer on request. If Customer believes at any time during the term of this Agreement that this Section 9.2(b) applies to any data provided by Customer to Company, Customer will promptly provide notice of that belief to Company, specifying in reasonable detail the data Customer believes to be affected and will cooperate with Company in establishing systems for compliance.

(c) Colorado, Indiana, Iowa, Montana, Tennessee, Utah and Virginia. Notwithstanding anything to the contrary in this Agreement, to the extent Customer discloses to Company personal data of consumers ("Personal Data"), each as defined under any of Title 6 Article 1 Part 13 (§§ 6-1-1301 et seq) of the Colorado Revised Statutes (the "Colorado Act"), Section 1.IC 24-15 of the Indiana Code (the "Indiana Act"), the Iowa Consumer Data Protection Act, Iowa Code §§ 715D.1 et seq (the "Iowa Act"), the Montana Consumer Data Privacy Act (the "Montana Act"), the Tennessee Information Protection Act, Tennessee Code tit. 47, ch. 18, §§ 47-18-3201 et seq. (the "Tennessee Act"), the Utah Consumer Privacy Act (Utah Code §§ 13-61-101 et seq) (the "Utah Act"), and Title 59.1 Chapter 52 (§§ 59.1-571 et seq) of the Virginia Code (the "Virginia Act," and, collectively with the Colorado Act, the Indiana Act, the Iowa Act, the Montana Act and the Tennessee Act, the "Acts"), the parties understand and agree that Company will (a) process that Personal Data solely on behalf of Customer and adhere to the instructions of Customer in the processing of that Personal Data and will be limited to processing such Personal Data pursuant to Customer's instructions and will have no role in determining, alone or jointly with others, the purposes or means of the processing of that Personal Data, (b) ensure that each person or individual processing Personal Data is subject to a duty of confidentiality with respect to the data, (c) other than with respect to Personal Data subject only to the Utah Act, at Customer's direction, delete or return all Personal Data to Customer as requested at the end of the provision of the services provided for under this Agreement, unless retention of the Personal Data is required by law, (d) other than with respect to Personal Data subject only to the Utah Act, on the reasonable request of Customer, make available to Customer all information in its possession necessary to demonstrate Company's compliance with the obligations in the Acts, (e) other than with respect to Personal Data subject only to the Iowa Act or the Utah Act, either (i) allow, and cooperate with, reasonable assessments (or, in the case of the Colorado Act, audits and inspections) by Customer or Customer's designated assessor, or (ii) arrange for a qualified and independent assessor (or, in the case of the Colorado Act, auditor) to conduct an assessment (or, in the case of the Colorado Act, an audit) of Company's policies and technical and organizational measures in support of the obligations under the Acts using an appropriate and accepted control standard or framework and assessment procedure for such assessments. Company and provide a report of that assessment to Customer upon request, and (f) engage any subcontractor pursuant to a written contract, in accordance with Section 6-1-1305(5) of the Colorado Act, Section 2(b) of the Indiana Act, Section 715D.5 of the Iowa Act, Section 47-18-3205(b)(3) of the Tennessee Act, and Section 59.1-575(C) of the Virginia Act (and, in the case of the Colorado Act, only after providing Customer with an opportunity to object) that requires the subcontractor to meet the duties and obligations of Company with respect to the Personal Data. If Customer believes at any time during the term of this Agreement that this Section 9.2(c) applies to any data provided by Customer to Company, Customer will promptly provide notice of that belief to Company, specifying in reasonable detail the data Customer believes to be affected and will cooperate with Company in establishing systems for compliance.

10. Customer's Responsibilities

Customer will comply with all applicable Legal Requirements in connection with its use of the Hosted Service, including those related to data privacy, international communications, and the exportation of technical or personal data from locations other than the location from which Company controls and operates the Hosted Service. Customer will ensure that any use of the Hosted Service by Customer's Users is in accordance with the terms of this Agreement. It is the responsibility of Customer to provide, prepare and maintain a system environment in which the Software is to be installed and from which the Hosted Service are to be accessed, as applicable, in conformance with the Documentation provided by Company from time to time. Company is not responsible for the set-up and installation of Software. If Customer wishes Company to provide set-up and installation services and Company wishes to provide those services, the parties may enter into a separate agreement to govern those services.

11. General Provisions

11.1 If Customer is a federal government entity, Company provides the Hosted Service, including related software and technology, for ultimate federal government end use solely in accordance with the following: Technical data and computer software rights related to the Hosted Service include only those rights customarily provided to the public as set forth in this Agreement. The license rights under this Agreement are provided in accordance with FAR 12.211 (Technical Data) and FAR 12.212 (Computer Software) and, for Department of Defense transactions, DFAR 252.227-7015 (Technical Data – Commercial Items) and DFAR 227.7202-3 (Rights in Commercial Computer Software or Computer Software Documentation). If greater rights are needed, a mutually acceptable written addendum specifically conveying those rights must be included as part of this Agreement.

11.2 Either party may include the other's name and logo in Customer or vendor lists.

11.3 The validity and enforceability of this Agreement, and all claims or causes of action (whether in contract, tort, statute or otherwise) that may be based on, arise out of or relate to this Agreement, or the negotiation, execution or performance of this Agreement (including any claim or cause of action based on, arising out of or related to any representation or warranty made in or in connection with this Agreement or as an inducement to enter into this Agreement), will be governed by, construed in accordance with, and enforced in accordance with, the domestic internal laws of the state of Delaware, including its statutes of limitations, but without regard for conflicts of law principles.

11.4 Binding, confidential arbitration pursuant to this Section 11.4 will be the only remedy for any dispute or claim of any kind, including third-party claims arising under, concerning, or relating to this Agreement, its interpretation, its validity (including any claim that all or any part of this Agreement is void or voidable), its termination, or its subject matter, whether sounding in contract, tort, equity, statutory law, administrative regulation or otherwise (a "Dispute"). Any Dispute, will be resolved in a confidential expedited arbitration administered by the JAMS pursuant to its Comprehensive Arbitration Rules and Procedures (a copy of which can be found here: https://www.jamsadr.com/rules-comprehensive-arbitration) (the "Rules") then in effect. For purposes of clarification, the parties understand and agree that (a) Section 11.3 will apply to any arbitration under this Section 11.4, both as to the governing law to be applied by the Arbitrator to the Dispute and as to the law governing the arbitration and the interpretation of this Section 11.4, and (b) the Federal Arbitration Act, 9 U.S.C. §§ 1-16, will also apply to any arbitration under this Section 11.4 by virtue of Article VI, Clause 2 to the United States Constitution. Any Dispute submitted to arbitration will be decided by a single, neutral arbitrator (the "Arbitrator") mutually agreed by the parties or, if they cannot agree within 15 business days of the commencement of arbitration, in accordance with the Rules. The Arbitrator must be qualified as a Delaware attorney who has at least ten years of prior combined professional experience either as a judge or in private practice as a business or commercial litigator. Any arbitration hearings or conferences pursuant to this Section 11.4 will be conducted exclusively by means of conference telephone or other communications technology, as reasonably determined by the Arbitrator, by means of which all persons participating in those hearings or conferences can hear each other, and neither the parties, the Arbitrator or any attorneys, witnesses or other representatives of the parties will be required to be physically present in any particular place for purposes of any hearing or conference unless the Arbitrator determines that a physical hearing is necessary to effectively arbitrate the Dispute, in which case that physical hearing will be in a location selected by the Arbitrator to be reasonably convenient to the parties and the Arbitrator. The Arbitrator will have the exclusive power to adjudicate the alleged breach, enforcement, interpretation or validity of this Agreement, including as to the scope or applicability of this arbitration clause. Discovery within the arbitration will be as the Arbitrator determines is reasonable or necessary for the fair and efficient arbitration of the Dispute. All JAMS fees and costs will be borne equally by the parties, except that in rendering the award, the Arbitrator will allocate and award an appropriate share of the prevailing party's reasonable attorneys' fees and costs, to the losing party. Judgment on any arbitration award may be entered and enforced by any court of competent jurisdiction. If there is more than one Dispute between the parties, all such Disputes may be heard in a single arbitration under this Section 11.4. Except to the extent required by applicable Legal Requirements that cannot be waived or modified by this Agreement, Disputes under this Agreement may not be consolidated into a single arbitration proceeding with claims between Company and other persons, even if those claims are governed by an arbitration proceeding similar or identical to this Section 11.4 and even those other persons are similarly situated and their claims are similar or identical in the nature to a Dispute under this Agreement. EACH PARTY EXPRESSLY AGREES AND UNDERSTANDS THAT BY AGREEING TO ARBITRATION, IT IS WAIVING THE RIGHT TO A JURY TRIAL OR TO A CIVIL ADMINISTRATIVE TRIBUNAL.

11.5 If any provision of this Agreement is held by a court of competent jurisdiction to be invalid or unenforceable, then those provision(s) will be construed to reflect the intentions of the invalid or unenforceable provision(s), with all other provisions remaining in full force and effect.

11.6 No joint venture, partnership, employment, or agency relationship exists between Company and Customer as a result of this Agreement or use of the Hosted Service.

11.7 Neither party may assign any of its rights or obligations under this Agreement, whether by operation of law or otherwise, without the prior written consent of the other (not to be unreasonably withheld). Notwithstanding the foregoing, (a) either party may assign this Agreement in its entirety (including all Order Forms) to its successor in interest in connection with a merger, reorganization, or sale of all or substantially all assets or equity; and (b) Company may assign its rights and obligations relating to implementation of the Hosted Service to an Affiliate. Any attempted assignment in breach of this Section 11.7 will be void. This Agreement will bind and inure to the benefit of the parties, their respective successors and permitted assigns.

11.8 Company reserves the right to use third-party providers in the provision of the Hosted Service and Company will be responsible for the acts or omissions of those third parties.

11.9 Neither party will be liable to the other for any delay or failure to perform under this Agreement (excluding payment obligations) due to circumstances beyond that party's reasonable control, including acts of God, acts of government, flood, fire, earthquakes, epidemics, civil unrest, acts of terror, strikes or other labor problems (excluding those involving that party's employees), internet or other Hosted Service disruptions involving hardware, software or power systems not within that party's possession or reasonable control, and denial of service attacks ("Force Majeure Events").

11.10 Any notice required or permitted under this Agreement will be given in writing by personal delivery, by USPS Priority Express Mail, by nationally recognized overnight delivery service (e.g. UPS), or e-mail, in each case addressed to the party to which the notice is provided at the address or e-mail address indicated below the party's signature line on this Agreement or at another address or e-mail address designated by the party by notice from time to time to the other party. Any notice will be deemed received on the earlier of the date of actual delivery or the date on which delivery is refused, regardless of whether the party has vacated the physical address or discontinued the e-mail address. The actual receipt by the addressee of any written notice will constitute notice under this Section 11.10 notwithstanding the failure to have complied with any provisions of this Section 11.10.

11.11 This Agreement may not be amended except by a written agreement executed by both parties. The failure of either party to enforce any right or provision in this Agreement will not constitute a waiver of that right or provision unless acknowledged and agreed to by that party in writing. In the event of any litigation of any controversy or dispute arising out of or in connection with this Agreement, its interpretation, its performance, or the like, the prevailing party will be awarded reasonable attorneys' fees and expenses, court costs, and reasonable costs for expert and other witnesses attributable to the prosecution or defense of that controversy or dispute. Any rights not expressly granted in this Agreement are reserved by the parties.

11.12 This Agreement is entered into by the parties for the exclusive benefit of the parties and their successors and permitted assignees. The Agreement is expressly not intended for the benefit of any other person. No third party will have any rights under this Agreement.

11.13 This Agreement sets forth the entire agreement and understanding of the parties relating to its subject matter, supersedes all prior and contemporaneous agreements, representations, understandings, negotiations and discussions, whether written or oral, and will not be modified or affected by any offer, proposal, statement or representation, oral or written, made by or for any party in connection with the negotiation of this Agreement.