Steer Health, Inc.
Subscription Terms and Conditions
BY INDICATING ACCEPTANCE OF THIS AGREEMENT OR ACCESSING OR USING ANY SERVICES, YOU ARE ACCEPTING ALL OF THE TERMS AND CONDITIONS OF THIS AGREEMENT. IF YOU DO NOT AGREE TO THESE TERMS AND CONDITIONS, YOU MAY NOT USE ANY SERVICES. YOU AGREE THAT THIS AGREEMENT IS ENFORCEABLE LIKE ANY WRITTEN AGREEMENT SIGNED BY YOU. IF YOU ARE USING ANY SERVICES AS AN EMPLOYEE, CONTRACTOR, OR AGENT OF A CORPORATION, PARTNERSHIP OR SIMILAR ENTITY, THEN YOU MUST BE AUTHORIZED TO SIGN FOR AND BIND SUCH ENTITY IN ORDER TO ACCEPT THE TERMS OF THIS AGREEMENT, AND YOU REPRESENT AND WARRANT THAT YOU HAVE THE AUTHORITY TO DO SO. THE RIGHTS GRANTED UNDER THIS AGREEMENT ARE EXPRESSLY CONDITIONED UPON ACCEPTANCE BY SUCH AUTHORIZED PERSONNEL.
These Subscription Terms and Conditions (“Agreement”) are entered into by and between Steer Health, Inc. (“Steer Health”) and the entity or person (other than a Reseller) identified on the Steer Health ordering documentation (“Order Form”) referencing this Agreement. This Agreement consists of the terms and conditions set forth below and any attachments, addenda or exhibits referenced in the Agreement, and any Order Forms issued pursuant to this Agreement.
The “Effective Date” of this Agreement is the date which is the earlier of (a) Customer’s initial access to any Service (as defined below) through any online provisioning, registration or order process or (b) the effective date of the first Order Form referencing this Agreement. This Agreement will govern Customer’s initial purchase on the Effective Date as well as any future purchases made by Customer through an Order Form that reference this Agreement.
Modifications to this Agreement: From time to time, Steer Health may modify this Agreement. Unless otherwise specified by Steer Health, changes become effective for Customer upon renewal of the then-current Subscription Term or upon the effective date of a new Order Form after the updated version of this Agreement goes into effect. Steer Health will use reasonable efforts to notify Customer of the changes through communications via Customer’s Account, email or other means. Customer may be required to click to accept or otherwise agree to the modified Agreement before renewing a Subscription Term or upon the effective date of a new Order Form, and in any event continued use of any Serviceafter the updated version of this Agreement goes into effect will constitute Customer’s acceptance of such updated version.
1. SAAS SERVICES AND SUPPORT
1.1. Subject to the terms of this Agreement, Company will use commercially reasonable efforts to provide Customer the Services in accordance with the Service Level Terms attached hereto as Exhibit A. As part of the registration process, Customer will identify an administrative owner for Customer’s Company account. Customer shall, throughout the Term, ensure that its administrative owner has the capacity and authority to serve as Customer’s primary point of contact for day-to-day communications, consultation and decision-making regarding the Services. Company reserves the right to refuse registration of, or cancel passwords it deems inappropriate.
1.2. Subject to the terms hereof, Company will provide Customer with reasonable technical support services in accordance with the terms set forth in Exhibit B.
1.3. Company will use commercially reasonable efforts to provide Customer the services described in this Agreement above in order to implement and integrate Company’s platform according to the terms and conditions set forth in this Agreement, including but not limited to project management, technical services, and training (the “Implementation Services”). Any additional billable hourly services not included in the price proposal will be outlined in a respective Statement of Work (SOW) at a rate of $225 per hour. The total additional billable hours will not exceed the total hours outlined in the SOW, unless otherwise agreed to by both parties by a project control procedure. Customer will be responsible for payment or reimbursement to Company for any travel and living expenses related to Implementation Services which are performed at any Customer location or third-party location agreed to by the parties upon request of Customer. Should Customer cancel a training session or other event requiring travel after travel reservations have been made, Customer will be responsible for all non-refundable charges, as well as any cancellation fees and/or penalties that may apply. Additionally, Customer will be responsible for payment or reimbursement to Company for the following (if applicable): (i) optional products and services, (ii) shipping charges, (iii) consulting, (iv) cancellation fees imposed upon Company by third parties, (v) travel time, and (vi) courier services. For travel time to or from Customer location, Company agrees not to charge more than the equivalent of ¼ of a service hour, based on its then standard hourly rates, for each hour actually spent traveling by Company’s personnel to and from Customer location. Customer will pay such reimbursements and costs in accordance with the payment terms set forth herein. In no event shall such reimbursements to Company be withheld for any reason, including for offset or fee dispute.
1.4. Company reserves the right, in its sole discretion, to make any changes to the Services 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 Services’ cost efficiency or performance; or (b) to comply with any applicable statute, law, ordinance, regulation, rule, code, order, constitution, treaty, common law, judgment, decree, or other requirement of any federal, state, local, or foreign government, or political subdivision thereof, or any arbitrator, court or tribunal of competent jurisdiction (“Law”).
1.5. Company may, directly or indirectly, suspend, terminate, or otherwise deny Customer’s, any individual authorized to use the Services’ (each an “Authorized User”), or any other person’s access to or use of all or any part of the Services, 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 sole discretion, that: (i) Customer or any Authorized User has failed to comply with, any term of this Agreement, or accessed or used the Services beyond the scope of the rights granted or for a purpose not authorized under this Agreement or in any manner that does not comply with any instruction or requirement of Company; (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 Services; or (iii) this Agreement expires or is terminated. This Section 1.5 does not limit any of Company’s other rights or remedies, whether at law, in equity or under this Agreement.
1.6. Company will provide Customer with initial implementation assistance and familiarization with the Services in accordance with Company’s standard onboarding and implementation methodologies, and project plans (the “Steer Health Platform Implementation”). Any additional services not included in the price proposal will be outlined in a respective SOW signed by both parties which will state the scope of additional services to be provided, the fees payable for the services and/or applicable resources, the invoicing and payment schedule, the target period of performance, and any other terms, assumptions or dependencies pertinent to the project. Customer will be responsible for payment or reimbursement to Company for any pre-approved travel and living expenses related to Implementation Services which are performed at any Customer location or third-party location agreed to by the parties upon request of Customer. Customer shall pay Company the applicable Fees for applicable professional services described in the Order Form in accordance with the terms herein.
1.7. Customer may request changes to the scope of the SOW or Implementation Services described in an Order Form by submitting a project change request (“PCR”) to Company describing the desired change, the rationale for the change, and the effect the change will have on the project. Company will review the PCR and either approve it or reject it. If the PCR is approved Company will inform Customer of any charges for such change and any effect the implementation of the PCR will have on Order Form price, schedule, or other terms of this Agreement. The parties will review the impact of the proposed change and, if mutually agreed, both parties will sign the PCR. A written PCR must be signed by both parties to authorize implementation of the requested changes. Company will invoice Customer for charges described in this paragraph and Customer shall pay the invoices pursuant to the terms of this Agreement.
2. RESTRICTIONS AND RESPONSIBILITIES
2.1. Nothing in this Agreement grants any right, title or interest in or to (including any license under) any intellectual property rights in or relating to, the Services, Software (as defined below), or Third Party Materials, whether expressly, by implication, estoppel or otherwise. All right, title, and interest in and to the Services, Software, and Third Party Materials are and will remain with the Company and the respective rights holders in the Third Party Materials. For the purposes of this Agreement, “Third Party Materials” means materials and information, in any form or medium, including any software, documents, data, content, specifications, products, equipment, or components of or relating to the Services that are not proprietary to Company.
2.2. Customer shall not, directly or indirectly, and shall not permit any other person to, access or use the Services except as expressly permitted by this Agreement and, in the case of Third Party Materials, the applicable third-party license agreement. For purposes of clarity and without limiting the generality of the foregoing, Customer shall not, except as this Agreement expressly permits: (a) reverse engineer, disassemble, decompile, decode, adapt or otherwise attempt to derive or gain access to, in whole or in part, the source code, object code or underlying structure, ideas, know-how, or algorithms relevant to the Services or any software, documentation, or data related to the Services (“Software”); (b) rent, lease, lend, sell, sublicense, assign, distribute, publish, transfer, or otherwise make available any Services or Software to any person, including on or in connection with the internet or any time-sharing, service bureau, software as a service, cloud, or other technology or service; (c) copy, modify, translate, or create derivative works or improvements of the Services or Software; (d) bypass or breach any security device or protection used by the Services or Software or access or use the Services or Software 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 Services or Software, any information or materials that are unlawful or injurious, or contain, transmit, or activate any virus, worm, malware, or other malicious computer code, or other technology, which permits unauthorized access to, or destroys, disrupts, disables, distorts, or otherwise harms or impedes in any manner any computer, software, firmware, hardware, system or network, or any application or function of any of the foregoing, or the security, integrity, confidentiality or use of any data processed thereby; (f) damage, destroy, disrupt, disable, impair, interfere with or otherwise impede or harm in any manner the Services, Company systems/infrastructure, or Company’s provision of services to any third party, in whole or in part; (g) remove, delete, alter or obscure any trademarks, specifications, warranties or disclaimers, or any copyright, trademark, patent, or other intellectual property or proprietary rights notices from any Services or Software, including any copy thereof; (h) access or use the Services or Software in any manner or for any purpose that infringes, misappropriates, or otherwise violates any intellectual property right or other right of any third party (including by any unauthorized access to, misappropriation, use, alteration, destruction or disclosure of the data of any other Company customer), or that violates any applicable Law; (i) access or use the Services or Software for purposes of competitive analysis of the Services or Software, the development, provision or use of a competing software service or product or any other purpose that is to the Company’s detriment or commercial disadvantage.
2.4. With respect to any Software that is distributed or provided to Customer for use on Customer premises or devices, Company hereby grants Customer a non-exclusive, non-transferable, non-sublicensable license to use such Software during the Term only in connection with the Services.
2.5. Further, Customer may not remove or export from the United States or allow the export or re-export of the Services, Software or anything related thereto, or any direct product thereof in violation of any restrictions, laws or regulations of the United States Department of Commerce, the United States Department of Treasury Office of Foreign Assets Control, or any other United States or foreign agency or authority. As defined in FAR section 2.101, the Software and documentation are “commercial items” and according to DFAR section 252.227-7014(a)(1) and (5) are deemed to be “commercial computer software” and “commercial computer software documentation.” Consistent with DFAR section 227.7202 and FAR section 12.212, any use modification, reproduction, release, performance, display, or disclosure of such commercial software or commercial software documentation by the U.S. Government will be governed solely by the terms of this Agreement and will be prohibited except to the extent expressly permitted by the terms of this Agreement.
2.7. Customer shall be responsible for obtaining and maintaining any equipment and ancillary services needed to connect to, access, or otherwise use the Services, including, without limitation, modems, hardware, servers, software, operating systems, networking, web servers and the like (collectively, “Equipment”). Customer shall also be responsible for maintaining the security of the Equipment, Customer account, passwords (including but not limited to administrative and user passwords) and files, and for all uses of Customer account or the Equipment. Company shall not be responsible or liable for any delay or failure of performance caused in whole or in part by Customer’s delay in performing, or failure to perform, any of its obligations under this Agreement (each a “Customer Failure”).
3. CONFIDENTIALITY; PROPRIETARY RIGHTS
3.1. Each party (the “Receiving Party”) understands that the other party (the “Disclosing Party”) has disclosed or may disclose Confidential Information to the other party. For the purposes of this Agreement, “Confidential Information” means information in any form or medium (whether oral, written, electronic, or other) that the Disclosing Party considers confidential or proprietary, including information consisting of or relating to the Disclosing Party’s technology, trade secrets, know-how, business operations, plans, strategies, customers, finances, and pricing, and information with respect to which the Disclosing Party has contractual or other confidentiality obligations, in each case whether or not marked, designated or otherwise identified as “confidential.” Without limiting the foregoing general description, Confidential Information of Company includes non-public information regarding features, functionality and performance of the Service, and Confidential Information of Customer includes non-public data provided by Customer to Company to enable the provision of the Services (“Customer Data”).
3.2. The Receiving Party agrees: (i) to safeguard the Confidential Information from unauthorized use, access or disclosure using at least the degree of care it uses to protect its own sensitive information and in no event less than a reasonable degree of care, and (ii) not to use (except in performance of the Services or as otherwise permitted herein) or divulge to any third person any such Confidential Information. The Disclosing Party agrees that the foregoing shall not apply with respect to any information that the Receiving Party can document (a) is or becomes generally available to the public other than by the Receiving Party’s or any of its representatives’ noncompliance with this Agreement, or (b) was rightfully in its possession or known by it without restriction on use or disclosure prior to receipt from the Disclosing Party, or (c) was rightfully disclosed to it without restriction by a third party, or (d) was independently developed without use of any Confidential Information of the Disclosing Party or (e) is required to be disclosed by Law and only then upon advance written notice to Disclosing Party so that the Disclosing Party can seek a protective order or other remedy or waive its rights under this Section.
3.3. Customer shall own all right, title and interest in and to the Customer Data. Company shall own and retain all right, title and interest in and to (a) the Services and Software, all improvements, enhancements or modifications thereto, (b) any software, applications, inventions or other technology developed in connection with Implementation Services or support, (c) any data that is based on or derived from the Customer Data and provided to Customer as part of the Services, and (d) all intellectual property rights related to any of the foregoing.
3.4. Notwithstanding anything in this Agreement to the contrary, Company shall have the right to collect and analyze data and other information relating to the provision, use and performance of various aspects of the Services and related systems and technologies (including, without limitation, information concerning Customer Data and data derived therefrom), and Company will be free (during and after the Term hereof) to (i) use such information and data to improve and enhance the Services and for other development, diagnostic and corrective purposes in connection with the Services and other Company offerings, and (ii) disclose such data solely in aggregate or other de-identified form in connection with its business. No rights or licenses are granted except as expressly set forth herein.
4. PAYMENT OF FEES
4.1. Customer will pay Company the then applicable fees described in the Order Form for the Services and Implementation Services in accordance with the terms of this Agreement (the “Fees”). Company reserves the right to unilaterally increase the Fees or applicable charges and to institute new charges and Fees at the end of the Initial Term (as defined below) or then-current Renewal Term, upon thirty (30) days’ prior notice to Customer (which may be sent by email). Supplemental or additional features and/or packages may be made available over the term of service contract for the Platform (e.g. future versions, forms, custom APIs, satisfaction surveys, etc.) that when elected could increase the Fee.
4.2. Unless expressly stated otherwise in the Order Form, the Fees for the Services set forth in the Order Form are the minimum Fees owed during the applicable billing period.
4.3. Company may choose to bill through an invoice, in which case, full payment for invoices issued in any given month must be received by Company thirty (30) days after the mailing date of the invoice. Unpaid amounts are subject to a finance charge of 1.5% per month on any outstanding balance, or the maximum permitted by Law, whichever is lower, plus all expenses of collection and may result in immediate termination of Service. Customer shall be responsible for all sales, use, and excise taxes, and any other similar taxes, duties, and charges of any kind imposed by any federal, state, or local governmental or regulatory authority on any amounts payable by Customer hereunder, other than U.S. taxes based on Company’s net income.
4.4. If Customer believes that Company has billed Customer incorrectly, Customer must contact Company no later than sixty (60) days after the closing date on the first billing statement in which the error or problem appeared, in order to receive an adjustment or credit. Inquiries should be directed to Company’s customer support department. All amounts payable to Company under this Agreement shall be paid by Customer to Company in full without any setoff, recoupment, counterclaim, deduction, debit or withholding for any reason (other than Service Credits issued pursuant to Exhibit A or any deduction or withholding of tax as may be required by applicable Law).
4.5. Customer may procure certain Services through an authorized reseller (“Reseller”) pursuant to a separate agreement between Customer and Reseller (a “Reseller Arrangement”), which may specify different terms regarding invoicing, taxes and payments. Company will only be obligated to provide the Services to Customer in connection with a Reseller Arrangement if Company and Reseller have executed an Order Form for such purchase. Customer acknowledges and agrees that, solely in connection with the purchase by Customer through a Reseller Arrangement: (a) Company may share information with Reseller related to Customer’s use and consumption of the Services; (b) notwithstanding anything to contrary in this Agreement, references to “Customer” in each of the defined terms “Fees” and “Order Form” in this Agreement shall be replaced with “Reseller,” and all payments of fees, refunds and credits, if any, are payable by or to the Reseller; (c) this Agreement governs Customer’s use of the Services, notwithstanding anything to the contrary in the Reseller Arrangement; and (d) Reseller is not authorized to make any changes to this Agreement or otherwise authorized to make any warranties, representations, promises or commitments on behalf of Company or in any way concerning the Services.
5. TERM; TERMINATION
5.1. The term of this Agreement shall be as stated on the Order Form (the “Initial Term”), commencing on the Effective Date of such Order Form to automatically renew for additional periods of the duration listed on the Order Form (each a “Renewal Term” and collectively, together with the Initial Term, the “Term”), unless either party requests termination at least ninety (90) days prior to the end of the then-current term.
5.2. In addition to any other express termination right set forth elsewhere in this Agreement: (a) Company may terminate this Agreement, effective upon written notice to Customer, if Customer (i) fails to pay any amount when due hereunder, and such failure continues more than five (5) days after Company’s delivery of written notice thereof or (ii) breaches any of its obligations under Section 2 or Section 3; (b) either party may terminate this Agreement in the event an applicable Law changes so that the Services are no longer in compliance with such Law which termination will be effective upon written notice to Customer or upon the effective date of the change in Law, whichever occurs first; (c) either party may terminate this Agreement, effective on written notice to the other party, if the other party materially breaches this Agreement, and such breach (i) is incapable of cure or (ii) being capable of cure, remains uncured thirty (30) days after the non-breaching party provides the breaching party with written notice of such breach; and (d) either party may terminate this Agreement, effective immediately upon written notice to the other party, if the other party (i) becomes insolvent or is generally unable to pay, or fails to pay, its debts as they become due, (ii) files or has filed against it, a petition for voluntary or involuntary bankruptcy or otherwise becomes subject, voluntarily or involuntarily, to any proceeding under any domestic or foreign bankruptcy or insolvency Law, (iii) makes or seeks to make a general assignment for the benefit of its creditors, or (iv) applies for or has appointed a receiver, trustee, custodian or similar agent appointed by order of any court of competent jurisdiction to take charge of or sell any material portion of its property or business.
5.3. In the event this Agreement expires or is terminated for any reason other than Customer’s termination under Section 5.2(b)-(d), Customer shall be responsible for payment of the Services through the end of the applicable Term and shall not receive a refund of any upfront Fees paid for such Term. In the event Customer terminates this Agreement under Section 5.2(b), (c), or (d), Customer shall be relieved of any obligation to pay any Fees attributable to the period after the effective date of such termination and Company shall refund to Customer Fees paid in advance which are attributable to the period after the effective date of such termination. Annual or monthly fees shall be prorated up to and including the last day on which the Services are provided. All sections of this Agreement which by their nature should survive termination will survive termination, including, without limitation, accrued rights to payment, confidentiality obligations, warranty disclaimers, and limitations of liability.
6. WARRANTY AND DISCLAIMER
6.1. Company shall use reasonable efforts consistent with prevailing industry standards to maintain the Services in a manner which minimizes errors and interruptions in the Services and shall perform the Implementation Services in a professional and workmanlike manner. Services may be temporarily unavailable for scheduled maintenance or for unscheduled emergency maintenance, either by Company or by third-party providers, or because of other causes beyond Company’s reasonable control, but Company shall use reasonable efforts to provide advance notice in writing or by e-mail of any scheduled service disruption. 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 SERVICES. EXCEPT AS EXPRESSLY SET FORTH IN THIS SECTION, THE SERVICES AND IMPLEMENTATION SERVICES 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 AND NON-INFRINGEMENT. NOTWITHSTANDING ANY OTHER PROVISION OF THIS AGREEMENT, COMPANY MAKES NO REPRESENTATIONS OR WARRANTIES REGARDING ANY THIRD-PARTY MATERIALS, WHICH ARE PROVIDED “AS IS.” Company shall not be responsible for any damages, losses, or liability related to any changes in applicable Law that results in the Services no longer being in compliance with such Law.
7.1. Company shall hold Customer harmless from liability arising out of or relating to any claim, suit, action or proceeding (each, an “Action”) by a third party (other than an affiliate of Customer) to the extent resulting from infringement by the Service of any United States patent or any copyright or misappropriation of any trade secret, provided Company is promptly notified of any and all threats, claims and proceedings related thereto and given reasonable assistance and the opportunity to assume sole control over defense and settlement. Company will not be responsible for any settlement it does not approve in writing. The foregoing obligations do not apply with respect to portions or components of the Service (i) not supplied by Company, (ii) made in whole or in part in accordance with Customer specifications, (iii) that are modified after delivery by Company, (iv) combined with other products, processes or materials where the alleged infringement relates to such combination, (v) where Customer continues allegedly infringing activity after being notified thereof or after being informed of modifications that would have avoided the alleged infringement, or (vi) where Customer’s use of the Service is not strictly in accordance with this Agreement. If, due to a claim of infringement, the Services are held by a court of competent jurisdiction to be or are believed by Company to be infringing, Company may, at its option and expense (a) replace or modify the Service to be non-infringing provided that such modification or replacement contains substantially similar features and functionality, (b) obtain for Customer a license to continue using the Service, or (c) if neither of the foregoing is commercially practicable, terminate this Agreement and Customer’s rights hereunder and provide Customer a refund of any prepaid, unused fees for the Service.
7.2. Customer shall indemnify and defend Company and its officers, directors, employees, agents, successors and assigns (each, a “Company Indemnitee”) from and against any and all losses and liabilities incurred by such Company Indemnitee in connection with any Action arising out of or relating to any: (a) Customer Data, including any Processing of Customer Data by or on behalf of Company in accordance with this Agreement; (b) any other materials or information (including any documents, data, specifications, software, content or technology) provided by or on behalf of Customer or any Authorized User, including Company’s compliance with any specifications or directions provided by or on behalf of Customer or any Authorized User to the extent prepared without any contribution by Company; (c) allegation of facts that, if true, would constitute Customer’s breach of any of its representations, warranties, covenants or obligations under this Agreement; or (d) act or omission (including recklessness or willful misconduct) by Customer, any Authorized User, or any third party on behalf of Customer or any Authorized User, in connection with this Agreement.
7.3. Each party shall promptly notify the other party in writing of any Action for which such party believes it is entitled to be indemnified pursuant to Section 7.1 or Section 7.2, as the case may be. The party seeking indemnification (the “Indemnitee”) shall cooperate with the other party (the “Indemnitor”) at the Indemnitor’s sole cost and expense. The Indemnitor shall immediately take control of the defense and investigation of such Action and shall employ counsel reasonably acceptable to the Indemnitee to handle and defend the same, at the Indemnitor’s sole cost and expense. The Indemnitee may participate in and observe the proceedings at its own cost and expense with counsel of its own choosing.
7.4. THIS SECTION 7 SETS FORTH CUSTOMER’S SOLE REMEDIES AND COMPANY’S SOLE LIABILITY AND OBLIGATION FOR ANY ACTUAL, THREATENED OR ALLEGED CLAIMS THAT THIS AGREEMENT OR ANY SUBJECT MATTER HEREOF (INCLUDING THE SERVICES AND SOFTWARE) INFRINGES, MISAPPROPRIATES, OR OTHERWISE VIOLATES ANY THIRD PARTY INTELLECTUAL PROPERTY RIGHT.
8. LIMITATION OF LIABILITY
8.1 NOTWITHSTANDING ANYTHING TO THE CONTRARY, IN NO EVENT SHALL COMPANY OR ITS SUPPLIERS (INCLUDING BUT NOT LIMITED TO ALL EQUIPMENT AND TECHNOLOGY SUPPLIERS), OFFICERS, AFFILIATES, REPRESENTATIVES, CONTRACTORS, OR EMPLOYEES BE RESPONSIBLE OR LIABLE WITH RESPECT TO ANY SUBJECT MATTER OF THIS AGREEMENT OR TERMS AND CONDITIONS RELATED THERETO UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, OR OTHER THEORY: (A) FOR ANY ERROR OR INTERRUPTION OF USE, OR FOR LOSS OR INACCURACY OR CORRUPTION OF DATA, OR FOR COST OF PROCUREMENT OF SUBSTITUTE GOODS, SERVICES, OR TECHNOLOGY, OR FOR LOSS OF BUSINESS, REVENUE, OR PROFIT; (B) FOR ANY INDIRECT, EXEMPLARY, INCIDENTAL, SPECIAL, PUNITIVE, 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 SERVICES UNDER THIS AGREEMENT IN THE TWELVE (12) MONTHS PRIOR TO THE ACT THAT GAVE RISE TO THE LIABILITY; IN EACH CASE, REGARDLESS OF WHETHER SUCH PERSONS WERE ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES OR SUCH LOSSES OR DAMAGES WERE OTHERWISE FORESEEABLE, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.
9. FORCE MAJEURE
9.1. In no event will Company be liable or responsible to Customer, or be deemed to have defaulted under or breached this Agreement, for any failure or delay in fulfilling or performing any term of this Agreement, when and to the extent such failure or delay is caused by any circumstances beyond Company’s reasonable control, including acts of God, flood, fire, earthquake or explosion, war, terrorism, invasion, riot or other civil unrest, embargoes or blockades in effect on or after the date of this Agreement, national or regional emergency, strikes, labor stoppages or slowdowns or other industrial disturbances, passage of Law or any action taken by a governmental or public authority, including imposing an embargo, export or import restriction, quota or other restriction or prohibition or any complete or partial government shutdown, or national or regional shortage of adequate power or telecommunications or transportation.
10.1. If any provision of this Agreement is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect and enforceable. This Agreement is not assignable, transferable or sublicensable by Customer except with Company’s prior written consent. Company may transfer and assign any of its rights and obligations under this Agreement without consent. This Agreement is binding upon and inures to the benefit of the parties hereto and their respective permitted successors and assigns. This Agreement, including all exhibits, 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. No change, modification, waiver, or supplementation of the terms and conditions of this Agreement, including without limitation by way of any standard or pre-printed terms and conditions of Customer, shall be binding unless made in a writing signed by Company. Except as otherwise set forth in this Agreement, no failure to exercise, or delay in exercising, any rights, remedy, power or privilege arising from this Agreement shall operate or be construed as a waiver thereof. No agency, partnership, joint venture, or employment is created as a result of this Agreement and Customer does not have any authority of any kind to bind Company in any respect whatsoever. In any action or proceeding to enforce rights under this Agreement, the prevailing party will be entitled to recover costs and reasonable attorneys’ fees. 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. This Agreement shall be governed by the laws of the State of Delaware without regard to its conflict of laws provisions. All suits arising from or concerning this Agreement may only be filed in a state court in the County of Santa Barbara, California or the U.S. District Court for the Central District of California. Customer hereby irrevocably consents to the jurisdiction of such court or courts. Service of process, summons, notice, or other document by mail to such party’s address set forth herein shall be effective service of process for any suit, action or other proceeding brought in any such court. Each party acknowledges and agrees that a breach or threatened breach by such party of any of its obligations under Section 3 or, in the case of Customer, Section 2, would cause the other party irreparable harm for which monetary damages would not be an adequate remedy and agrees that, in the event of such breach or threatened breach, the other party will be entitled to equitable relief, including a restraining order, an injunction, specific performance and any other relief that may be available from any court, without any requirement to post a bond or other security, or to prove actual damages or that monetary damages are not an adequate remedy. Such remedies are not exclusive and are in addition to all other remedies that may be available at law, in equity or otherwise. This Agreement may be executed in counterparts, each of which is deemed an original, but all of which together are deemed to be one and the same agreement. A signed copy of this Agreement delivered by facsimile, e-mail or other means of electronic transmission is deemed to have the same legal effect as delivery of an original signed copy of this Agreement. The parties shall work together in good faith to issue at least one mutually agreed upon press release within 90 days of the Effective Date, and Customer otherwise agrees to reasonably cooperate with Company to serve as a reference account upon request.