Version: January 11, 2024

Insurights, Inc. dba Healthee (“We” or “Company”) provides a software as a service solution that analyzes employees’ health plans and provides relevant information about insurance coverage and personal insurance and overall information (the “Platform”).

These Subscription Terms of Service (the “Terms”) apply to, and govern, the mutually signed ordering document to which they are attached, hyperlinked, or otherwise incorporated (the “Order Form“). These Terms are hereby incorporated by reference into and made a part of, such Order Form and shall govern your access and use of the products and services that constitute the Platform subscribed to by Customer in accordance with the Order Form (the “Services”). The Services include information about personal insurance coverage and overall information about health and wellness benefits, designed to offer decision support to your employees regarding insurance options. The purpose of this Service is to provide general information and support to your employees, assisting them in making informed choices (the “Coverage Information Tool”).

“You” or “Customer” means the entity which has entered into the Order Form and which is granted access and use of the Services.

Each applicable Order Form specifies the Services you are subscribing to and the fees you are agreeing to pay. The Order Form, together with these Terms (collectively, the “Agreement”) constitute the complete agreement between Company and You (each a “Party” and collectively, the “Parties”) and supersede any prior discussions or representations regarding your order or use of the Services. Any additional terms and/or conditions which you add or incorporate into any purchase orders, statements of work, order forms, or any other document are excluded and shall be null and void.

1. License and Features.
   • Subscription License. In consideration of the payment of all Fees (as defined below), and subject to Customer’s compliance with Customer’s undertakings herein contained, Company hereby grants during the then current Subscription Term (as defined below), and Customer hereby accepts, solely for its internal use, a non-exclusive, non-transferable, non-sublicensable, revocable, non-assignable (except as otherwise provided in this Agreement’s assignment clause) limited right for Customer’s Authorized Users to access and use the Services (the “Subscription License”). The term “Authorized Users” means Customer’s employees or authorized contractors of Customer who are acting on Customer’s behalf in the internal operation of Customer’s business and who are subject to a confidentiality agreement with Customer as well as employees who have accepted Company’s terms of use for end users of the Platform which are available at https://healthee.com/zoe-terms-of-use/ (“End Users T&Cs”) and who are granted access and the right to use the Services.
   • Features and Functionalities. Company may, from time to time, modify and replace the features and functionalities (but not material functionalities to which Customer is entitled under the Order Form, unless it improves the material functionality), as well as the user interface, of the Service.
2. • Support Services. Subject to Customer remaining current all payment obligations under this Agreement, Company shall provide whatever Service-related technical support and maintenance services as may be specified in the Order Form (“Support Services”).
   • Professional Services. Other than Support Services, Company is not obligated to provide any Service-related installation, deployment, configuration, training, customization, integration, or other professional services (“Professional Services”) (the Support Services and the Professional Services shall be referred to herein as the “Other Services”). Any Professional Services mutually agreed to between the Parties shall be set out in sequential Professional Services Statements of Work signed by the Parties and referencing this Agreement (each, a “Professional Services SOW”). Professional Services shall be charged in accordance with such Professional Services SOW. Each Professional Services SOW shall be deemed incorporated into this Agreement by reference.
   • General. Other Services will be performed by Company and/or its Affiliates (as defined below), and are provided for the benefit of Customer only. Customer shall fully cooperate with Company, and shall make available to Company all relevant systems, assets, and resources, in connection with the provision of Other Services. With Customer’s prior written approval (not to be unreasonably withheld, conditioned, or delayed) Company may subcontract Other Services (in whole or in part) to a third party contractor, and without derogating from Company’s liabilities towards the Customer under this Agreement. Unless expressly agreed otherwise in writing, Other Services shall be carried out remotely, and any physical attendance at Customer’s offices or other locations requested by Customer, if agreed to by Company (for example, in a Professional Services SOW), shall be charged at Company’s then-current rates, and Company shall also be entitled to reimbursement for travel and lodging costs and expenses incurred.
   • Third Party Products and Services. The Services may present, or otherwise allow Customer and/or Authorized Users to view, access, link to, and/or interact with, text, data, information, reports, files, images, graphics, software code, compliance tools, payment platforms, or other content from third parties and other sources that are not owned or controlled by Company (“Third Party Materials”). The display or communication to Customer and/or Authorized Users of such Third Party Materials does not (and shall not be construed to) in any way imply, suggest, or constitute any representation or warranty with respect to such Third Party Materials. Company shall have no obligation or liability of any kind whatsoever for Third Party Materials or for the third party’s policies, practices, actions, or omissions. Company is not responsible, or liable to Customer and/or any Authorized User or any third party, for the data, information, content or accuracy (or inaccuracy) of the Third Party Materials. If Customer chooses to interact with such Third Party Materials it shall do so at its own risk and the interactions that Customer has with such Third Party Materials shall be subject to each third party’s terms and conditions. 
3. Scope of Rights; Restrictions on Use.
   • Scope. This Agreement confers no title or ownership and is not a sale of any rights in or to the Services. All rights not expressly granted to Customer are reserved solely to Company and/or its licensors. Nothing herein should be construed as granting Customer, by implication, estoppel or otherwise, a license relating to the Services other than the Subscription License expressly stated in this Agreement.
   • Restrictions. Pursuant to the Subscription License granted hereunder, Customer may only use the Services within Customer’s organization and for internal purposes and only Authorized Users may be granted access to the Services. Customer agrees that Customer will not (i) reverse engineer, disassemble, decompile or attempt to derive the architecture or design, or any source code contained in the Platform, (ii) modify the Services, (iii) otherwise translate or use the Services except as specifically allowed by this Agreement, or allow any person or entity (whether with or without consideration) the right to do any of the foregoing; (iv) sublicense, transfer and/or assign (except as otherwise expressly provided herein) the Services to any third party, whether with or without consideration; (v) render any services to third parties using the Services; (vi) remove or in any manner alter any product identification, proprietary, trademark, copyright or other notices contained in the Services; (vii) allow any third parties to use the Services (except as otherwise expressly provided herein); (viii) interfere with, burden or disrupt the Service functionality. Customer may not make any copies of the Services or any portions thereof; (ix) use the Services in a manner that violates or infringes any rights of any third party, including but not limited to, privacy rights, publicity rights or intellectual property rights; (x) forge or manipulate identifiers in order to disguise the origin of any Customer Data; or (xi) use the Services to circumvent the security of another person’s network/information, develop malware, or for any unauthorized surreptitious surveillance, data modification, data exfiltration, data ransom or data destruction.
4. Intellectual Property Rights and Confidential Information.
   • Intellectual Property Rights. Company (or its licensors, as applicable) is and shall be the sole and exclusive owner of all right, title and interest (including without limitation all Intellectual Property Rights (as defined below)) in and to: (i) the Services (and all underlying intellectual property), (ii) any non-Customer-identifying information, data, reporting, suggestions, analyses, and/or intelligence relating to the operation, support, and/or Customer’s use, of the Service, (iii) Company’s Confidential Information; (iv) any feedback, suggestions, or ideas for or about the Service, and (v) and all related concepts, technical know-how, and all modifications, customizations, revisions, bug fixes, enhancements, improvements and derivative works of the foregoing, as well as any other intellectual property conceived, authored, or otherwise developed pursuant to this Agreement, in each case regardless of inventorship or authorship (collectively, the “Derivative Works”). Any rights not expressly granted herein are hereby reserved by Company and its licensors, and, except for the expressed limited Subscription License granted hereunder, Customer is granted no other right or license in or to the Service, whether by implied license, estoppel, exhaustion, operation of law, or otherwise. Customer shall retain all Intellectual Property Rights in its Customer Data. To the extent it shall be determined that Customer has any right in connection with the Services or Derivative Works other than the limited specific license hereunder, Customer hereby irrevocably: (i) assigns to Company any right, title and interest, whether now existing or later arising, and all Intellectual Property Rights that Customer may have in or to the Services, Derivative Works, and/or related Intellectual Property Rights; and (ii) agrees to take any lawful action that Company reasonably requests to vest or protect our right, title and interest therein. The term “Intellectual Property Rights” means any patent, patent applications, trade secret, trademark, copyright, industrial design, or any other intellectual property right registered or unregistered in any country throughout the world, and all related goodwill.
   • Confidential Information.
     • General. Each Party agrees that all inventions, know-how, engineering, business, technical and financial information it obtains (“Receiving Party”) from the disclosing Party (“Disclosing Party”) constitute the confidential property of the Disclosing Party (“Confidential Information”), provided that it is identified as confidential at the time of disclosure or should be reasonably known by the Receiving Party to be Confidential Information due to the nature of the information disclosed and the circumstances surrounding the disclosure. For the avoidance of doubt, disclosures by, to, or between the Parties’ respective Affiliates shall also be deemed Confidential Information and be subject to this Agreement. “Affiliate” means, with respect to either Party, any person, organization or entity controlling, controlled by, or under common control with, such Party, where “control” means the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of a person, organization or entity, whether through the ownership of voting securities or by contract or otherwise. Notwithstanding the foregoing marking requirements, the Services, training materials, technical information and other code or data of any type provided or otherwise made available by Company, the pricing offered by Company to Customer, and this Agreement’s terms and conditions are Company Confidential Information without any marking or further designation. Except as expressly authorized herein, the Receiving Party will hold in confidence and not use or disclose any Confidential Information.
     • Exclusions. The Receiving Party’s nondisclosure obligation will not apply to information that the Receiving Party can document: (i) was rightfully in its possession or known to it prior to receipt of the Confidential Information; (ii) is or has become public knowledge through no fault of the Receiving Party; (iii) is rightfully obtained by the Receiving Party from a third party without breach of any confidentiality obligation; or (iv) is independently developed by employees or contractors of the Receiving Party who had no access to such information.
     • Use and Disclosure Restrictions. Neither Party will use the other Party’s Confidential Information except as necessary for the performance of this Agreement and will not disclose such Confidential Information to any third party except to those of its (and its Affiliates’) employees and contractors that need to know such Confidential Information for the purpose of performing this Agreement, provided that each such employee and contractor is subject to a written agreement that includes binding use and disclosure restrictions that are at least as protective as those set forth herein. Each Party will use all reasonable efforts to maintain the confidentiality of all such Confidential Information in its possession or control, but, in no event, less than the efforts that such Party ordinarily uses with respect to its own proprietary information of similar nature and importance. The foregoing obligations will not restrict either Party from disclosing Confidential Information of the other Party: (i) pursuant to the order or requirement of a court, administrative agency or tribunal or other governmental body, provided that the Party required to make such a disclosure gives reasonable written notice to the other Party to contest such order or requirement, unless it is not legally prevented to provide such notice to the other Party; and (ii) on a confidential basis to its legal or financial advisors. In addition, each Party may disclose the terms and conditions of this Agreement as required under applicable securities laws, but such Party will use all reasonable efforts to obtain confidential treatment to the maximum extent possible for the terms and conditions of this Agreement.
   • Customer Data. The term “Customer Data” means any proprietary, confidential and/or personal data provided by Customer (or on Customer’s behalf) to Company, except for data submitted or uploaded to, or transmitted through, the Service, or otherwise provided by Authorized Users that are subject to the End Users T&Cs, which shall be subject to the provisions therein and the Company’s privacy policy which is available at: https://healthee.com/privacy-policy/, as may be updated from time to time. Customer hereby grants Company and its Affiliates a non-exclusive license to use, share, store, process, analyze, and display within the Services and in reports generated for Customer all Customer Data during the Term for the limited purposes of performing Company’s obligations under this Agreement and providing the Services to Customer, including, without limitation, maintenance, support, improvement, enhancement and deployment of the Services and Customer’s use of the Services. Prior to providing any Customer Data to Company, Customer shall, at its own expense, obtain all licenses, consents or other permissions from appropriate third parties as may be necessary for Customer’s use of the relevant Customer Data as necessary to enable Customer to grant the rights granted by this Section 4. Notwithstanding the foregoing, to the extent permitted by applicable law, Company and its Affiliates may aggregate and de-identify Customer Data provided through the Services (“Anonymized Data”). Company and its Affiliates may use the Anonymized Data for Company’s internal business purposes, including enhancements to the Platform and to analyze, improve, support and operate the Services, provided that Company shall not identify Customer or any Customer Data as part of the Anonymized Data.
5. Personal Information.
   • Parties Role. The Parties acknowledge and agree that regarding any processing of personal data or personal information in connection with the provision of the Services, Company shall be the data processor and Customer shall be the owner of such data. As such, Customer shall have sole responsibility to comply with any and all applicable data protection laws and transparency-related obligations (including, without limitation, displaying any and all relevant and required privacy notices or policies) and shall at all times have any and all required ongoing legal bases, permissions and consents required in order to collect, process and transfer to Company the personal data and to authorize the processing by Company of such personal data. Customer hereby consents to the transfer of personal data and/or personal information to Company’s business partners, contractors, service providers, and other third parties Company uses for the performance of the Services under this Agreement.
   • Data Subject Request. Customer hereby agrees and acknowledges that if Company receives a request from any data subject, authority, or other person regarding Customer’s personal data, Company shall, to the extent legally permitted, promptly notify, and forward such request to Customer. To the extent legally permitted, Customer shall be responsible for handling any and all requests relating to Customer’s personal data and Customer agrees to hold harmless and indemnify Company for any third party claim or request that may arise in connection with such personal data.
6. Payment.
   • Fees. Customer agrees to pay Company the fees and other charges set forth in the Order Form (the “Fees”).
   • Fee Increases. Company shall be entitled from time to time, and by written notice, to increase the Fees under the Order Form; provided, however, that the updated Fees shall apply to the next Order Form renewal.
   • Payment Terms. Unless expressly stated otherwise in the Order Form or this Agreement: (a) all Fees are stated, and are to be paid, in US Dollars; (b) billing cycles for the Subscription License are on a calendar annual basis; (c) Company shall be entitled to invoice Customer for Fees in advance at the commencement of each billing cycle, and Customer shall pay each invoice within thirty (30) days of receipt of invoice; (c) all payments and payment obligations under this Agreement are non-refundable, and are without any right of set-off or cancellation; (d) any amount not paid when due will accrue interest on a daily basis until paid in full, at the lesser of the rate of one and a half percent (1.5%) per month or the highest amount permitted by applicable Law; and (e) Company shall be entitled to issue invoices (and any associated reporting) and billing notices via email to the applicable Customer contact email address specified in the Order Form and/or via a functionality of the Services.
   • Taxes. Amounts payable under this Agreement are exclusive of all applicable federal, state, local, sales, use, consumption, GST, and other taxes, duties or governmental charges, except for taxes based upon Company’s net income. Customer must provide either a valid tax exemption certificate or a reseller certificate if claiming a tax exemption. In the event that any sales, use consumption, or other similar tax is imposed by applicable law with respect to the goods or services provided under this Agreement, the Customer shall be solely responsible for paying such taxes, even if such taxes are not shown on any Order Form, in addition to the Fees set out in any Order Form. The Customer agrees to indemnify and hold harmless the Company from any and all liabilities, costs, damages, and expenses arising from or in connection with any such taxes.
   • Payment Processing. Customer represents and warrants that all payment and billing information provided is (and will remain) complete and accurate, and Customer has obtained all necessary consents to enable the necessary payment method. If applicable to the payment method, payment of Fees may be processed through a third-party payment processing service (which will receive and process Customer’s billing information), and additional terms may apply to such payments. Customer authorizes Company (and/or its designee) to: (a) request and collect payment from Customer on a recurring basis; and (b) make any inquiries Company deems necessary, from time to time, to validate Customer’s designated payment method or financial information, in order to ensure timely payment of Fees (including, but not limited to, for the purpose of receiving updated payment details from Customer’s payment, credit card, or banking account provider – such as, updated expiry date or card number).
   • Reporting; Usage Audit. Company may issue Subscription License- and Fees-related reporting and billing notices via email to the applicable Customer contact email address specified in the Order Form, as well as via a functionality of the Service. Company (or a third party it reasonably designates) shall, from time to time, be entitled to audit Customer’s use of the Service (a “Usage Audit“), and Customer shall facilitate such Usage Audit by providing Company with all access reasonably requested by Company for the purpose of calculating any Fees for additional seats (if any) (“Additional Seats”).
7. Disclaimer of Warranty and Limitation of Liability.
   • Disclaimer of Warranty. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE SERVICES (INCLUDING, WITHOUT LIMITATION, THE RESULTS (AS DEFINED BELOW)) AND THIRD PARTY MATERIALS ARE PROVIDED BY COMPANY ON AN “AS IS,” AND AS AVAILABLE BASIS AND COMPANY, ITS AFFILIATES, LICENSORS, AND SUPPLIERS DISCLAIM ANY AND ALL PROMISES, REPRESENTATIONS AND WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, COMPLIANCE WITH LAWS, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, AND/OR DATA ACCURACY. COMPANY DOES NOT WARRANT THAT THE SERVICES (INCLUDING, WITHOUT LIMITATION, THE RESULTS) OR ANY OTHER PRODUCTS OR SERVICES PROVIDED BY COMPANY OR ANY THIRD PARTY MATERIALS WILL MEET CUSTOMER’S (AND/OR ITS EMPLOYEES’) REQUIREMENTS OR THAT THE OPERATION OF THE SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE, OR THAT ALL ERRORS WILL BE CORRECTED.
   • COVERAGE INFORMATION TOOL: THE RESULTS OF THE COVERAGE INFORMATION TOOL (THE “RESULTS”) ARE GENERATED BASED ON PRELIMINARY DATA PROVIDED BY YOUR EMPLOYEES AND RECEIVED BY US. THE RESULTS ARE MEANT TO PROVIDE YOUR EMPLOYEES WITH GENERAL INFORMATION AND SERVE A SUPPORTIVE PURPOSE ONLY. THE RESULTS SHOULD NOT BE SEEN AS A REPLACEMENT FOR PROFESSIONAL ADVICE. YOUR EMPLOYEES’ INSURANCE NEEDS MAY VARY FROM WHAT IS DESCRIBED IN THE RESULTS DUE TO FACTORS NOT CAPTURED IN OUR QUESTIONNAIRE, SUCH AS YOUR EMPLOYEES’ DEDUCTIBLE AMOUNTS, TERMS OF PROVIDED INSURANCE COVERAGE, INSURANCE CARRIERS INVOLVED, AND YOUR EMPLOYEES’ HEALTH HISTORY. THE RESULTS SHOULD NOT BE INTERPRETED AS ADVICE OR A RECOMMENDATION TO PURCHASE OR FORGO ANY INSURANCE PRODUCT WITHOUT CONDUCTING FURTHER RESEARCH ON YOUR EMPLOYEES’ OWN OR CONSULTING AN INSURANCE PROFESSIONAL. WE DO NOT PROVIDE ANY GUARANTEE, WHETHER EXPRESSED OR IMPLIED, REGARDING THE ACCURACY OF THE RESULTS.
   • Limitation of Liability. IN NO EVENT WILL THE COLLECTIVE AGGREGATE LIABILITY OF COMPANY, AND ITS AFFILIATES, LICENSORS, SUPPLIERS AND SERVICE PROVIDERS ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER ARISING UNDER OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR ANY OTHER LEGAL OR EQUITABLE THEORY, EXCEED THE TOTAL AMOUNT ACTUALLY PAID TO COMPANY UNDER THIS AGREEMENT IN THE ONE YEAR PERIOD PRECEDING THE EVENT GIVING RISE TO THE CLAIM. THE FOREGOING LIMITATIONS APPLY EVEN IF ANY REMEDY FAILS OF ITS ESSENTIAL PURPOSE.

IN NO EVENT SHALL COMPANY BE LIABLE FOR: (i) INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES, (ii)ANY LOSS OF PROFITS, REVENUES, BUSINESS, OPPORTUNITY, CONTRACTS, ANTICIPATED SAVINGS, OR WASTED EXPENDITURE, (iii) ANY LOSS OF, OR DAMAGE OR INTERRUPTION TO, DATA, NETWORKS, INFORMATION SYSTEMS, REPUTATION, OR GOODWILL, OR (iv) THE COST OF PROCURING ANY SUBSTITUTE GOODS OR SERVICES, IN EACH CASE, WHETHER BASED ON BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, AND WHETHER OR NOT SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

COMPANY SHALL HAVE NO LIABILITY FOR THE CUSTOMER DATA INPUT, OUTPUT, ACCURACY, AND SUITABILITY, WHICH SHALL BE DEEMED UNDER CUSTOMER OR CUSTOMER’S CUSTOMERS’ EXCLUSIVE CONTROL AND RESPONSIBILITY.

8. Indemnification.
   • Indemnification by Customer. If Company or its Affiliates (or their respective directors, officers, or employees) (collectively, “Company Indemnitees”) incur or suffer any loss or liability whatsoever (including but not limited to a fine, penalty, damages award, legal costs and expenses such as attorney’s fees, etc.) under or in connection with any demand, claim, suit, or proceeding made or brought (whether by an individual (including, without limitation, your employees), organization, or governmental agency) against a Company Indemnitee (each, a “Claim“), and such Claim relates and/or arises directly or indirectly from the Services, any Results and/or Customer Data, Customer agrees to:

(a)        At its own expense, defend Company Indemnitees against the Claim; and

(b)        Indemnify and hold harmless Company Indemnitees for such loss and liability, as well as for any amount awarded against or imposed upon Company Indemnitees by the court (or otherwise agreed in settlement) under the Claim.

• Indemnity Procedure. As a condition to indemnification under this Section (Indemnification), the Company agrees: (A) to provide Customer with prompt written notice of the Claim; (B) to cede to Customer sole control of the defense and settlement of the Claim (except that any settlement shall require Company’s prior written consent); (C) to provide the Customer with all information and assistance reasonably requested by it; and (D) not to admit any liability under (or otherwise compromise the defense of) the Claim. Company may participate in the defense of the Claim at its own cost and expense.

9. Term and Termination.
   • Subscription Term(s). This Agreement commences on the Effective Date and, unless terminated in accordance herewith, shall continue for the duration of the Subscription Term. “Effective Date” means the date the Order Form is executed by the Parties, unless the Order Form itself specifies a different start/effective date; provided, however, that if the date on which Customer first accessed or used the Services was prior to Order Form execution, then the Effective Date shall be deemed to be such earlier date.
   • Renewals. Unless specified otherwise in the Order Form, upon expiration of the Subscription License term specified in the Order Form (the “Initial Subscription Term”), the Order Form and Subscription License shall automatically renew for successive renewal terms of equal length (each a “Renewal Subscription Term”, and together with the Initial Subscription Term, the “Subscription Term”), unless either Party notifies the other Party in writing that it chooses not to renew (“Non-Renewal Notice”). Unless the Order Form states otherwise, the Non-Renewal Notice must be given at least sixty (60) days prior to the end of the then-current Subscription Term. At the commencement of each Renewal Subscription Term, Company shall be entitled to charge Customer’s payment method provided by Customer at the time of the purchase of the Subscription License (or, if applicable, invoice you) for the applicable Fees therefor (including, for the avoidance of doubt, for the Additional Seats).
   • Termination for Cause. Either Party may terminate this Agreement if the other Party commits a material breach under this Agreement and fails to cure such breach within thirty (30) days after written notice of such material breach. The foregoing 30-day cure period shall: (i) not be required if the breach is not curable; and (ii) be reduced to ten (10) days if the material breach in question is non-payment by Customer.
   • Effect of Termination. If an Order Form is still in effect at the time of expiration of this Agreement, then the terms and conditions contained in this Agreement and the relevant Order Form (including all subscriptions and licenses granted by Company thereunder) shall continue to govern the outstanding Order Form until the end of the applicable Subscription Term for that Order Form. However, if the Agreement is terminated prior to its natural expiration, then all outstanding Order Forms (and all subscriptions and licenses granted by Company thereunder) shall immediately terminate as of the Agreement termination date, unless otherwise agreed by the Parties in writing. Customer shall immediately return to Company any materials provided to Customer as part of the Services in Customer’s possession. Within thirty (30) days following the termination of this Agreement for any reason, each Party shall return or destroy, as requested by the other Party in writing, any Confidential Information of the other Party. Customer shall not be entitled to any refund of any prepaid Fees upon termination or expiration of the Agreement, and Company will not release Customer from its obligations to pay Company all Fees that have accrued under this Agreement prior to its termination.
   • Survival. Any provision of this Agreement that expressly, by implication or necessity, contemplates performance or observance subsequent to the termination or expiration of this Agreement will survive termination or expiration of the Agreement and will continue in full force and effect, including any outstanding payment obligations.
10. Force Majeure. Except for the obligation to pay monies due and owing, neither Party shall be liable to the other Party for any delay or failure in the performance of its obligations under this Agreement or the addendums while in effect or otherwise if such delay or failure arises from any cause or causes beyond the control of such Party including, without limitation, labor shortages or disputes, strikes, other labor or industrial disturbances, delays in transportation, acts of God, floods, lightning, fire, epidemics, pandemics, or public health emergencies, shortages of materials, rationing, utility or communication failures, earthquakes, casualty, war, acts of the public enemy, acts of civil or military authorities, sabotage, explosives, riots, insurrections, embargoes, blockades, actions, restrictions, regulations or orders of any government, agency or subdivision thereof, or failure of suppliers.

11. Miscellaneous.
    • This Agreement and any claim, cause of action or dispute arising out of, or related thereto, shall be governed by and construed in accordance with the laws of the State of New York, without giving effect to any conflict of law principles, which would result in the application of the laws of a jurisdiction other than the State of New York. Any dispute, claim or controversy arising out of, connected with, or relating to this Agreement, the Services, or any use related thereto, will be submitted to the sole and exclusive jurisdiction of the competent court located in New York County, State of New York (except, however, that Company shall be entitled to seek injunctive, and other equitable relief, in any court of competent jurisdiction). EACH PARTY IRREVOCABLY WAIVES ITS RIGHT TO TRIAL OF ANY ISSUE BY JURY. EXCEPT TO SEEK EQUITABLE RELIEF, PAYMENT OF FEES, OR TO OTHERWISE PROTECT OR ENFORCE A PARTY’S INTELLECTUAL PROPERTY RIGHTS OR CONFIDENTIALITY OBLIGATIONS, NO ACTION, REGARDLESS OF FORM, UNDER THIS AGREEMENT MAY BE BROUGHT BY EITHER PARTY MORE THAN ONE (1) YEAR AFTER THE DATE ON WHICH THE CORRESPONDING LIABILITY AROSE. Any claims or damages that Customer may have against Company shall only be enforceable against Company, and not any other entity or Company’s officers, directors, representatives, employees, or agents.
    • Neither Party may assign this Agreement, in whole or in part without the express written consent of the other Party, with the exception of an assignment carried out by Company as part of a merger, restructuring, or reorganization, or as a sale or transfer of all or substantially all of Company’s assets or equity. This Agreement inures to the benefit of, and is binding upon, the Parties and their respective heirs, legal representatives, permitted successors and permitted assigns.
    • Failure of either Party to enforce a right under this Agreement shall not act as a waiver of that right or prevent a subsequent exercise of the same or any other right under this Agreement.
    • No modification, amendment, addition to or waiver of any rights, obligations, or defaults shall be effective unless in writing and signed by both Parties hereto. Notwithstanding the foregoing, changes may be made by Company to these Terms from time to time. Company will inform Customer 30 days in advance of any updates or other changes to these Terms, through Customer’s email address Company has on file and/or through the Platform, or by any other means. Customer’s continued use of the Services will be deemed Customer’s acceptance to such amended or updated Terms.
    • Subject to the confidentiality obligations under this Agreement and upon notification to Customer, Company may, at its own cost and expense, make reference to this Agreement (including mentioning or implying the name of Customer or any of its Affiliates) and display the Customer’s logos and trademarks in Company’s website and promotional or advertising literature. Except as expressly provided herein, Company shall not obtain any rights with respect to the Customer’s logos and/or trademarks.
    • This Agreement is the complete and exclusive agreement between the Parties hereto in connection with the subject matter hereof and supersedes any other proposal, representation, or other communication by or on behalf of either Party. No provision of any purchase order or any other form employed by either Party will supersede, contradict, vary or modify the terms and conditions of this Agreement, and any such document issued by a Party hereto relating to this Agreement will be for administrative purposes only and have no legal effect. In the event of possible conflict or inconsistency between documents, the conflict or inconsistency shall be resolved by giving precedence in the following order: (1) these Terms, including all amendments thereto; and (2) the terms of any Order Form to which these Terms are attached and incorporated or linked.
    • The Parties to this Agreement are independent contractors. There is no relationship of partnership, joint venture, employment, franchise, or agency created hereby. Neither Party will have the power to bind the other or incur obligations on the other’s behalf without the other Party’s prior written consent.