Elm Savings Plan Terms & Conditions

                                                                              EFFECTIVE DATE: 6-16-2016

PATIENT SUBSCRIPTION AGREEMENT

IMPORTANT!

READ THIS PATIENT SUBSCRIPTION AGREEMENT (“AGREEMENT”) CAREFULLY BEFORE INSTALLING, ACCESSING, DOWNLOADING AND/OR USING THE LICENSED PROGRAM SOFTWARE AND RELATED DOCUMENTATION, IF ANY, (COLLECTIVELY, THE “PROGRAM”). THIS AGREEMENT CONSTITUTES A LEGALLY BINDING AGREEMENT BETWEEN “SUBSCRIBER” (AN INDIVIDUAL WHO IS A PATIENT OF A HEALTH CARE PROVIDER OR MEDICAL OR DENTAL PRACTITIONER) AND THE MEDICAL OR DENTAL PRACTITIONER OR HEALTH CARE PROVIDER (“PROVIDER”). IF THE PROGRAM IS INSTALLED, ACCESSED, DOWNLOADED AND/OR USED, INCLUDING BY REQUESTING THE AUTHORIZATION CODE OR ACTIVATION KEY TO INSTALL THE PROGRAM, SUBSCRIBER IS DEEMED TO HAVE UNCONDITIONALLY ACCEPTED THIS AGREEMENT AND AGREES TO BE BOUND BY ITS TERMS. FURTHER, BY CLICKING “AGREE” AT THE END OF THIS DOCUMENT, SUBSCRIBER HAS DEMONSTRATED SUBSCRIBER’S UNCONDITIONAL ACCEPTANCE OF THIS AGREEMENT AND THIS AGREEMENT IS EFFECTIVE AS OF THAT DATE (“EFFECTIVE DATE”). IF SUBSCRIBER DOES NOT AGREE TO THE TERMS OF THIS AGREEMENT (AS DEMONSTRATED BY CLICKING “DO NOT AGREE”), SUBSCRIBER IS NOT AUTHORIZED TO INSTALL, ACCESS, DOWNLOAD AND/OR USE THIS PROGRAM; AND AS A RESULT, SUBSCRIBER SHALL IMMEDIATELY RETURN, OR IF RECEIVED ELECTRONICALLY, DESTROY THE PROGRAM AND THEREAFTER, CERTIFY DESTRUCTION OF THE PROGRAM. FOLLOWING RETURN OF THE PROGRAM OR RECEIPT OF CERTIFICATION, SUBSCRIBER WILL RECEIVE A FULL REFUND OF ANY FEE PAID. THIS AGREEMENT REPRESENTS THE COMPLETE AGREEMENT CONCERNING THE PROGRAM, AND IT SUPERSEDES ANY PRIOR OR CONCURRENT AGREEMENT, REPRESENTATION, OR UNDERSTANDING BETWEEN THE PARTIES, INCLUDING BUT NOT LIMITED TO ANY ASSOCIATED PURCHASE ORDER TERMS AND CONDITIONS UNDER WHICH THE PROGRAM WAS OBTAINED. PROVIDER and the SUBSCRIBER may be alternatively referred to as party, individually, and parties, collectively.

  1. PURPOSE.The purpose of this Agreement is to recite the terms and conditions under which PROVIDER will permit the SUBSCRIBER to access and use PROVIDER’s product or service system that facilitates cost savings in the provision of treatments or services related to health care (dental or medical) field. This product or service is uniquely customized for each SUBSCRIBER, and delivered via an active link accessed over the Internet.
  2. DEFINITIONS.  The following terms when used herein shall have the following meanings:
    1. “Program” is defined as A Savings Plan Program, which comprise PROVIDER’s algorithmic products or services that generally operate and function to ingest and process certain data and information in connection with financial planning strategy related to the health care (dental or medical) field utilizing an easy access menu style format that utilizes the data and information that populates the Format to perform algorithmic operations once populated with such data and information. The Program allows entry, field and display adjustments in connection with SUBSCRIBER Data within the Format.
    2. “Access” is defined as the right granted to the SUBSCRIBER by PROVIDER to access and use the Program via an active unique link, which is activated upon full execution of this Agreement and upon payment in full of the appropriate fees recited on the associated Program website. The SUBSCRIBER’s access is conditioned upon payment of the activation fee (which activation fee charge is non-refundable once paid), payment of an Annual Fee or an Annual Renewal Fee (which Annual Fee and Annual Renewal Fee is non-refundable once paid) and payment of a monthly SUBSCRIBER’s fee (which monthly fee is non-refundable once paid).
    3. “Activation Date” is defined as the date that PROVIDER first provides and permits Access to the Program by the SUBSCRIBER by sending an email notice to the SUBSCRIBER that the SUBSCRIBER’s setup has occurred and as a result, enables an active link for the Term of Access.
    4. “Term of Access” is defined as the length of time that Access is granted to the SUBSCRIBER commencing upon the Activation Date. The Term of Access is commensurate with the amounts paid.
    5. “Format” is defined as the expression of display of data and/or information in an online form that may be or is generated as a result of accessing the Program, and typically has the capability of displaying the type and sequence of data and/or information that is processed by the Program.
    6. “Subscription Tier” is defined as the selected level of functionality provided to the SUBSCRIBER during the Term of Access. The Subscription Tier and prices therefore are recited on the associated Program website (which Subscription Tier and pricing may be modified, at any time and upon PROVIDER’s sole discretion, and without notice).
    7. “SUBSCRIBER Data” is defined as any data or information that is provided by and input into the Format by the SUBSCRIBER.

  3. AGREEMENT TERM/TERM OF ACCESS.  The Term of the Agreement shall be for an initial period of One (1) year(s), which shall automatically renew on each anniversary of the Effective Date herein, unless earlier terminated as provided herein under Section 11. The Term of Access shall be from the effective Activation Date, which commences upon the payment of the fees recited on the associated Program website commensurate with the applicable Term of Access based on the selected Subscription Tier. If no termination occurs under the Agreement and payments remain current for the Term of Access as recited on the associated Program website Access to the Program for the selected Subscription Tier shall remain in effect so long as all fees have been fully paid as provided for in Attachment A for the applicable Term of Access. The SUBSCRIBER acknowledges that the non-payment of any fees due and owing will, at PROVIDER’s discretion, result in the suspension of Access for the SUBSCRIBER. However, if the SUBSCRIBER remedies the non-payment by making a payment in full of all fees due and owing, then PROVIDER, absent Agreement termination, may reinstate Access for the Term of Access at the selected Subscription Tier commensurate with the fees paid.
  4. PROGRAM SUBSCRIPTION SCOPE.  During the Term of Access, the SUBSCRIBER acknowledges that the Program applies only to financial planning associated with participating medical (medical or dental) practitioners or health care providers in the United States.
  5. PROPRIETARY INTERESTS/AUTHORIZATIONS/CONFIDENTIALITY.

    1. The SUBSCRIBER acknowledges that PROVIDER owns all right, title and interest in and to the Program, Format, On-Line Editor, any PROVIDER Website, any PROVIDER links, and any associated tangible or intangible PROVIDER-provided materials, documents or other embodiments of information or data, and expressions, PROVIDER confidential information under Section 5 (d), including any related, associated or underlying concepts, ideas, methods, and processes; algorithms, source, object, binary, executable code, html and code listings; interfaces, improvements, enhancements, modifications, changes, alterations, versions, releases, updates, error corrections and bug fixes; system(s) and architecture; expressions and derivative works thereof; having patent, copyright, trade secret, trademark, service mark, trade name and any other proprietary interest, whether statutory or common law, which is in existence as of the Effective Date or which is developed, generated, or created by PROVIDER during the Term of Access under this Agreement. The SUBSCRIBER further acknowledges that any improvements, enhancements, changes, alterations, modifications or derivative works, which are developed, created or generated by the SUBSCRIBER, either jointly with PROVIDER or solely, from the preceding during the Term of Access shall be owned and held by PROVIDER and that the SUBSCRIBER hereby assigns all right, title and interest therein, without further consideration, to PROVIDER to confirm PROVIDER’s ownership thereof. (collectively, “PROVIDER Property”).
    2. PROVIDER acknowledges that the SUBSCRIBER owns all right, title and interest in and to the SUBSCRIBER Data, and Report, including any derivative works thereof, (collectively, “SUBSCRIBER Property”). PROVIDER shall treat SUBSCRIBER Property as confidential and proprietary to the SUBSCRIBER, and refrain from disclosing or releasing to any third party SUBSCRIBER Property, until such SUBSCRIBER Property: i) comes into the public domain through no fault of PROVIDER, or ii) becomes obsolete as is customary in the industry, or iii) is released in writing by the SUBSCRIBER, whichever of the foregoing events occurs first.
    3. During the effective Term of Access, PROVIDER grants to the SUBSCRIBER the following rights to certain items of PROVIDER Property: i) only the SUBSCRIBER is authorized, on a non-exclusive basis, to access and use certain authorized contents of the Program only via an active link to the Program; ii) only the SUBSCRIBER is authorized, on a non-exclusive basis, to populate the Format with SUBSCRIBER Data , and the SUBSCRIBER shall not display or permit access to the Format by any third party; iii) the SUBSCRIBER may not copy, alter, modify or create derivative works of the Format ; and iv) the SUBSCRIBER shall not be permitted to disassemble, decompile, reverse engineer, extract, modify, alter, or change or create derivative works of the PROVIDER Property, including but not limited to, the Format and the Program or contents of any PROVIDER Website or disclose, disseminate, distribute, license, assign or transfer the Program, the Format, or any PROVIDER Website, or PROVIDER Property, to any third party. The authorizations herein do not diminish, in any manner, PROVIDER’s rights, title and interests in PROVIDER Property, including but not limited to the Program or Format, or any PROVIDER Website; and the SUBSCRIBER’s access and/or use of PROVIDER Property, including but not limited to the Format and the Program, is limited to the scope of the authorizations described herein. The SUBSCRIBER is not permitted to alter, modify, change or, in any manner, affect the integrity or quality of the PROVIDER Property, including but not limited to the Format and the Program, or remove any confidential and/or proprietary notice that appears on the PROVIDER Property, including but not limited to the Format and the Program nor remove, alter or modify any of PROVIDER’s proprietary notices such as, but not limited to, PROVIDER’s copyright notice on the Program, Format, or on any PROVIDER Property. No other licenses, grants or authorizations under any patent, trademark, copyright, trade secret or other intellectual property, either common law or statutory, is either granted or implied by the provision, distribution and/or disclosing to the SUBSCRIBER of PROVIDER Property, including but not limited to the Program, Format or any PROVIDER Website to the SUBSCRIBER.
    4. The SUBSCRIBER shall consider the Program (including the source code and associated code listings) and PROVIDER Property, including all related technical and business information, whether disclosed in oral, visual or written form, to be confidential and proprietary to PROVIDER. The SUBSCRIBER shall exercise at least a reasonable standard of care to protect the confidentiality of the information, and to prevent the unauthorized use, dissemination, disclosure or publication of confidential information during the Term of Access. The term of confidentiality shall extend for two (2) years beyond the expiration and/or termination date of this Agreement; however, it is understood that this Agreement shall impose no obligations of confidentiality on the SUBSCRIBER where the Program or PROVIDER Property: (a) was rightfully in the SUBSCRIBER’s possession before receipt from PROVIDER; (b) is or becomes a matter of public knowledge through no fault of the SUBSCRIBER; (c) is rightfully received by the SUBSCRIBER from a third party without a duty of confidentiality; (d) is disclosed by PROVIDER to a third party without a duty of confidentiality on the third party; (e) is disclosed under operation of law; provided that SUBSCRIBER timely notifies PROVIDER and PROVIDER is given the opportunity to protest such disclosure; or (f) is disclosed with PROVIDER’s prior written approval. The SUBSCRIBER acknowledges that PROVIDER deems the terms and conditions recited in this Agreement, but not the parties to or the existence of this Agreement, to be confidential.
  6. PAYMENT AND PRICING SCHEDULE.  PROVIDER will provide Access to the SUBSCRIBER for the Term of Access consistent with the selected Subscription Tier based on the currently published pricing terms and conditions recited on the associated Program website that is in effect as of the Effective Date of this Agreement. The SUBSCRIBER shall promptly pay PROVIDER the amounts specified on the associated Program website for the elected Subscription Tier as follows: i) the Initial Access Fee amount is due and payable on the Effective Date; ii) the initial Annual Fee and thereafter, the Annual Renewal Fee amount is due and payable thirty (30) days prior to each anniversary date of the Effective Date if this Agreement is still in effect and SUBSCRIBER desires to renew this Agreement as provided herein; and iii) the payment of a monthly membership fee associated with the elected Subscription Tier during each effective Term of Access, which covers an annual period of one (1) year. Once payments of the Fees have been made, the amounts paid are not refundable for any reason. Failure to pay in full any amount due and owing shall result in denial, cessation and suspension of Access until such amount is paid in full. Any outstanding amount that is past due shall be subject to a 1.5% monthly interest rate ( or the allowable rate permitted by law) applicable to the total amount that is past due and owing. Further, PROVIDER may elect to terminate this Agreement under Section 11 if the SUBSCRIBER does not remedy the payment deficiency as provided under Section 11. However, if there is no Agreement termination, then once the applicable Fee(s), and the applicable interest, is paid in full, then PROVIDER shall re-instate Access. The pricing terms and conditions are subject to change, at any time and at PROVIDER’s discretion and without notice. However, PROVIDER will use reasonable efforts to publish on the associated Program website any such changes so as to make the SUBSCRIBER aware of any such changes at least thirty (30) days notice prior to such change in the Annual Renewal Fee and the monthly membership fee ; and the changes with respect to the Annual Renewal Fee therein shall become effective on the anniversary date of the Effective Date for the upcoming renewal and the monthly membership fee shall become effective on the next month’s fee after the change. The SUBSCRIBER may elect to terminate the Agreement if the SUBSCRIBER does not desire to accept changes in the pricing terms and conditions for the next annual renewal period; and as a result, the SUBSCRIBER may elect to terminate this Agreement as provided under Section 11. The Subscriber acknowledges that all fees must be paid for the entire annual period, including monthly membership fees that cover the entire annual period so as to ensure projected fees are met as elected by the SUBSCRIBER.
  7. PROGRAM AVAILABILITY/DATA PROCESSING.  Access for the SUBSCRIBER for the Term of Access will be made available under the terms and conditions recited herein. However, the SUBSCRIBER acknowledges that PROVIDER, thirty (30) days prior to any renewal anniversary date, may discontinue without any liability, at its discretion and without cause, SUBSCRIBER Access. Further, at any time during the Term of Access but with thirty (30) days’ notice to the SUBSCRIBER, PROVIDER can make any changes to the Program, Format, or Access, which PROVIDER deems necessary to continue to provide Access for the Term of Access. Any new versions, releases, updates, enhancements, bug fixes, error corrections, patches, changes, alterations, or improvements to the Program will be made available, upon thirty (30) days’ notice, to the SUBSCRIBER, at the sole discretion of PROVIDER, which the SUBSCRIBER must accept in order to maintain Access and to receive technical support as recited in Section 9. The foregoing shall be implemented on the anniversary of the Effective Date, except in the case of mandatory maintenance changes, which may be implemented at any time during the Term of Access. PROVIDER will maintain Access for the current Term of Access but may terminate the Agreement if the SUBSCRIBER refuses to allow implementation of the foregoing at the renewal date. Further, PROVIDER may offer additional functionality, capability or applications, which prices for accessibility and use thereof, will be recited on the associated Program website, and which shall be effective on the date specified therein. Any of the foregoing once made available shall be subject to the terms of this Agreement. The SUBSCRIBER acknowledges that events over which PROVIDER has no control, such as but not limited to hosting availability, server availability, power outages, or system maintenance shut downs, whether scheduled or unscheduled, or system failures, may result in PROVIDER immediately ceasing Access. In such event, where Access is terminated by events reasonably out of control by PROVIDER as provided in connection with the foregoing or under Section 12(g), PROVIDER shall have no further liability or obligations, and this Agreement will terminate as provided under Section 11 subject to the obligations recited therein. However, if PROVIDER intentionally, actively and directly ceases Access for a SUBSCRIBER through no SUBSCRIBER fault, PROVIDER shall refund a pro-rata portion of the Fees paid (except as necessary to make the Provider whole with respect to any expenses incurred that are non-refundable by reason of previous commitment) by SUBSCRIBER based on the remaining period in the Term of Access. Termination may occur as provided under Section 11.
  8. MARKETING PRACTICES/AUDIT VERIFICATION.  The SUBSCRIBER shall: a) avoid deceptive, misleading, or unethical practices that may be detrimental to PROVIDER or the Program or PROVIDER Property; b) not make any representations, warranties or guarantees to any third party or entity on behalf of PROVIDER, concerning the Program, and its operation, usefulness or performance; c) assume all costs, expenses, liabilities and responsibilities for the information and data, including SUBSCRIBER Data, input to the Format; d) assume all costs, expenses, liabilities and responsibilities in connection with any use, analysis, reliance, accuracy or guarantee of the Report; and e) comply with all applicable federal, state and local country laws, Internet laws and regulations and international treaties and pacts with respect to the subject matter of this Agreement. Further, PROVIDER shall be permitted with ten (10) business days’ written notice to audit, at PROVIDER’s expense, to conduct during regular business hours a self-audit review and verification of the veracity and functionality of the Program and Format in the SUBSCRIBER’s environment, and to engage in testing procedures and processes to verify the Program functionality and operation. Such audit will be subject to Section 5 confidentiality obligations.
  9. TECHNICAL SUPPORT.  PROVIDER will supply the SUBSCRIBER with training, maintenance and support commensurate with the support level recited at the Program website. The SUBSCRIBER will promptly provide PROVIDER with a copy of all questions or problems reported; and PROVIDER will answer or fix, at its discretion and on as an available basis, such reported problems, except as provided under Section 10. The SUBSCRIBER acknowledges that PROVIDER shall only support the most current version of the Program and Format during the Term of Access, including any renewals, except if otherwise agreed to, in writing by the PROVIDER and SUBSCRIBER.
  10. INDEMNITY/WARRANTIES/DISCLAIMERS/LIMITATION OF LIABILITY.

    1. The SUBSCRIBER shall indemnify and hold PROVIDER harmless from and against all claims, costs, liabilities, damages, and judgments (including reasonable attorney’s fees and court costs) that PROVIDER may suffer or incur arising out of third party claims due to the: (i) SUBSCRIBER’s use and/or reliance, in any manner, on the Program’s output ; (ii) SUBSCRIBER’s non-compliance with the conditions under Section 8; (iii) SUBSCRIBER’s unauthorized use, copying, modification, alteration of or unauthorized combination of materials, items, software or components with the Program or Format or PROVIDER Property; (iv) SUBSCRIBER’s infringement, misuse or unauthorized use of PROVIDER Property; (v) SUBSCRIBER’s business arrangements with any third party in connection with this Agreement or the Program or Format ; (vi) SUBSCRIBER Data, which SUBSCRIBER edits, inputs and modifies; or (vii) SUBSCRIBER Data manipulation or processing that generates inaccurate, erroneous, corrupted or missing SUBSCRIBER Data.
    2. PROVIDER warrants that the Program will be free from operational errors and problems, except where any errors or problems are introduced directly or indirectly by the SUBSCRIBER. PROVIDER shall use reasonable efforts to remedy or fix problems or errors, at its expense, if errors or problems, which are caused directly by PROVIDER, are discovered during the Term of Access and PROVIDER is timely advised of any problems or errors in connection with the Program or Format. PROVIDER shall not be obligated to cure any problem or error in connection with the Program, Format or Online – Editor, unless the SUBSCRIBER notifies PROVIDER of the existence and nature of such problem or error promptly upon discovery. The foregoing shall be the sole and exclusive remedy available to the SUBSCRIBER with respect to the Program, or Format.
    3. The SUBSCRIBER assumes full responsibility and liability for the accuracy and reliability of any SUBSCRIBER Data, which the SUBSCRIBER inputs, in connection with the Program or Format and/or is manipulated with the SUBSCRIBER’s input.
    4. PROVIDER shall not be responsible for or liable for any data loss, corruption or erasure of SUBSCRIBER Data or any third-party data accessed or used by the Program or populating the Format and PROVIDER shall not be responsible for any data or information that is obtained directly from any other sources. The SUBSCRIBER acknowledges that PROVIDER is not responsible for any errors or omissions in such data or information.
    5. EXCEPT FOR THE WARRANTIES EXPRESSLY STATED HEREIN, THE UPLOAD, ACCESS, AND/OR USE OF THE PROGRAM, AND FORMAT, AND ASSOCIATED PROVIDER PROPERTY, ARE PROVIDED “AS IS,” AND THERE ARE NO OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, ACCURACY, USABILITY OR RELIABILITY OF ANY REPORT GENERATED FOR ANY PURPOSES, OR NON-INFRINGEMENT. THE SUBSCRIBER ASSUMES ALL LIABILITIES, RESPONSIBILITIES AND OBLIGATIONS WITH RESPECT TO ANY RELIANCE ON THE PROGRAM, FORMATS, OR SUBSCRIBER INPUTS OR SUBSCRIBER DATA; AND ACKNOWLEDGES THAT THE PROGRAM, FORMATS, AND REPORTS, AND CONTENTS THEREOF, ARE ONLY FOR REFERENCE PURPOSES AND ARE SIMPLY A SINGLE TOOL TO BE USED IN AN ANALYSIS OF ANY PREDICTABILITY IN CONNECTION WITH MEDICAL TREATMENT AND FINANCIAL STRATEGY AND ANALYSIS; AND ARE NOT TO BE RELIED UPON, SOLELY, WITH RESPECT TO ANY BUSINESS DECISIONS OR TREATMENT ACTIONS OR ACTIVITY. ANY SUBSCRIBER DATA INPUT IS THE SOLE RESPONSIBILITY OF THE SUBSCRIBER, AND THE SUBSCRIBER ASSUMES THE ENTIRE LIABILITY FOR THE ACCURACY AND RELIABILITY OF ANY SUBSCRIBER DATA OR REPORT GENERATED THEREFROM, AND PROVIDER MAKES NO WARRANTIES OR REPRESENTATIONS WITH RESPECT TO THE FOREGOING. PROVIDER SHALL NOT WARRANT THAT THE ACCESS AND/OR USE OF THE PROGRAM WILL BE UNINTERRUPTED OR REMAIN AVAILABLE THROUGHOUT THE TERM OF ACCESS. PROVIDER MAKES NO WARRANTIES AS TO ANY GOVERNMENT PROVIDED DATA OR INFORMATION. FURTHER, PROVIDER SHALL HAVE NO OBLIGATION OR LIABILITY IN CONNECTION WITH THE STORAGE OR RETRIEVAL OF ANY SUBSCRIBER DATA OR THE INTEGRITY OF THE DATA SO STORED OR RETRIEVED. ADDITIONALLY, PROVIDER EMPLOYEES, CONSULTANTS, REPRESENTATIVES OR CONTRIBUTORS SHALL NOT BE AUTHORIZED TO GIVE ADVICE, INTERPRETATION, EXPLANATION OR ANALYSIS OF ANY INFORMATION GENERATED NOR MAY THE SUBSCRIBER RELY OR USE SUCH ADVICE IF SO GIVEN FOR ANY PURPOSE.
    6. PROVIDER’S ENTIRE LIABILITY FOR ANY CLAIM FOR ANY KIND OF LOSS OR DAMAGE ARISING OUT OF, IN CONNECTION WITH OR RESULTING FROM THIS AGREEMENT, OR ANY BREACH HEREOF, OR FROM THE ACCESS, PROGRAM, FORMAT OR PROVIDER PROPERTY OR GENERATED INFORMATION SHALL BE LIMITED TO ACTUAL AND PROVABLE DAMAGES UP TO THE AMOUNTS OF MONEY PAID HEREUNDER WHEREIN THE ACTUAL DAMAGES AWARDED SHALL BE PRO-RATED COMMENSURATE WITH THE UNUSED PORTION OF THE REMAINING TERM OF ACCESS AND WHICH FUNDS ARE NOT COMMITTED BY PROVIDER, AND IN NO EVENT, SHALL PROVIDER’S ENTIRE LIABILITY EXCEED ANY AMOUNTS PAID HEREUNDER BY THE SUBSCRIBER TO PROVIDER PRO-RATED AS PROVIDED HEREIN OR NOT COMMITTED, AND NO OTHER DAMAGES ARE AVAILABLE. EXCEPT WHERE OTHERWISE RECITED AND WITH RESPECT TO PROVIDER PROPERTY, IN NO EVENT, WHETHER AS A RESULT OF BREACH OF THIS AGREEMENT, BREACH OF WARRANTY OR ANY ACT OF NEGLIGENCE OR THE POSSESSION, USE, ACCESS OR OPERATION OF THE PROGRAM, FORMAT, REPORT OR THE SUBJECT MATTER HEREIN OR ANY OTHER CLAIMS MADE IN CONNECTION WITH THIS AGREEMENT, SHALL EITHER PARTY BE LIABLE TO THE OTHER FOR ANY CONSEQUENTIAL, SPECIAL, PUNITIVE OR INCIDENTAL DAMAGES, INCLUDING BUT NOT LIMITED TO, DAMAGES ASSOCIATED WITH OR ARISING FROM LOSS OF PROFIT OR REVENUES. SOME STATES DO NOT ALLOW SUCH LIMITATION, AND IN THAT EVENT THIS SECTION SHALL BE MODIFIED TO COMPORT WITH THAT PARTICULAR STATE’S REGULATORY STATUTE. THE ABOVE REMEDIES ARE THE ENTIRE REMEDIES AVAILABLE FOR THE BREACH OF ANY WARRANTY PROVIDED HEREIN OR THIS AGREEMENT.

  11. TERMINATION

    1. The SUBSCRIBER may terminate this Agreement with thirty (30) days written notice ONLY PRIOR TO EACH ANNUAL RENEWAL PERIOD. SUBSCRIBER shall not be permitted to terminate this Agreement except annually. Notwithstanding the foregoing, if SUBSCRIBER desires to terminate the Agreement prior to the Annual Renewal Period, all amounts paid hereunder shall be non-refundable and all amounts due and payable shall be immediately due based on the Subscription Tier elected for the annual renewal period.
    2. If the SUBSCRIBER breaches the Agreement by failing to pay in-full to PROVIDER any moneys due and owing hereunder; or if either party materially defaults in the performance of its obligations hereunder, or otherwise breaches this Agreement, the breaching party shall correct such breach within thirty (30) days after written notice from the non-breaching party. If any such breach is not remedied within such thirty (30)-day period, then the non-breaching party, at its option, may terminate this Agreement by giving final written notice to the other party.
    3. Upon any termination of this Agreement, the following shall occur: i) all rights granted to the SUBSCRIBER hereunder, shall immediately terminate; ii) the SUBSCRIBER shall immediately, at the option of PROVIDER, delete, with written confirmation, or return, any PROVIDER Property in the SUBSCRIBER’s possession or control to PROVIDER; and (iii) the SUBSCRIBER’s Access will immediately cease. The SUBSCRIBER acknowledges that any monies paid hereunder are not refundable for any type of termination hereunder and any monies due and owing as provided under 11 (a) shall be payable immediately, except as recited in Section 7.
  12. OTHER

    1. The parties hereto are independent contractors with respect to each other. Each party is not and shall not be deemed to be an employee, agent, partner or legal representative of the other for any purpose and shall not have any right, power or authority to create any obligation or responsibility on behalf of the other.
    2. This Agreement, including only payment terms and Subscription Tiers recited on the associated Program website, constitute the entire and complete agreement between the parties with respect to the subject matter hereof, and supersedes any and all prior or contemporaneous oral or written understandings or agreements, including but not limited to the SUBSCRIBER purchase order terms and conditions, concerning the subject matter hereof.
    3. All amendments or modifications of this Agreement shall be binding upon the parties so long as the same shall be in writing and executed by each of the parties hereto.
    4. No waiver of any provision of this Agreement or any rights or obligations of either party hereunder shall be effective, except pursuant to a written instrument signed by the party waiving compliance, and any such waiver shall be effective only in the specific instance and for the specific purpose stated in such writing. The provisions of this Agreement are severable; and if any provision shall be deemed invalid or unenforceable, the applicability or validity of any other provision of this Agreement shall not be affected, and this Agreement shall be construed as if such invalid or unenforceable provisions are not contained in this Agreement.
    5. The SUBSCRIBER shall comply with U.S. Export Control laws and regulations, and Internet laws and regulations.
    6. The SUBSCRIBER shall not, without the prior written consent of PROVIDER, assign or delegate this Agreement, or any rights or duties hereunder, directly, indirectly, by operation of law, or otherwise to any third party. In the event of any permitted assignment hereunder, the assignee shall accept, without modification, in its entirety all the terms and obligations recited herein.
    7. Neither party shall be deemed to have breached this Agreement by reason of delay or failure in performance or force majeure resulting from causes beyond the control, and without the fault or negligence, of the party. Such causes include, but may not be limited to, an act of God, an act of war, riot, epidemic, fire, flood or other disaster; or as a result of suppliers unavailability, where no equivalent, alternate suppliers are available; or hosting or server unavailability, where no equivalent alternate host or server are available; or any other failure of data communication, transmission or reception functions, which is beyond the reasonable control of a party. This Agreement shall remain in effect unless such delay or failure persists for one hundred twenty (120) consecutive days and there is no foreseeable remedy or cure available in which case this Agreement shall terminate as provided under Section 11.
    8. The following sections, as appropriate, shall survive termination of this Agreement: Sections 5, 8, 10, 11 and 12.
    9. In the event of a dispute, prior to any formal action being taken, the parties shall try and resolve this dispute at the executive level within thirty (30) days following receipt of written notice that a dispute exists. If such dispute is not resolved within such thirty (30) days, then the parties may resort to formal action in the form of Arbitration as provided below in Section 12(j).
    10. This Agreement shall be governed by the laws of the State of Colorado applicable to contracts entered into and to be performed entirely within the State of Colorado, without regard to the principles of conflicts of law, and if a claim or controversy arises, such claim or controversy shall be submitted to binding arbitration in Boulder, Colorado in accordance with the subsequent understanding. PROVIDER shall be entitled to seek all available legal and equitable remedies available. With regard to any claims hereunder for damages, the prevailing party shall also be entitled to reasonable attorney’s fees and arbitration costs. All limitations of liability as recited herein shall apply to any award. Notwithstanding the provisions of this section 12(j) regarding arbitration, PROVIDER or the SUBSCRIBER may proceed to any court of competent jurisdiction to obtain immediate injunctive relief with regard to protecting any intellectual property or confidential and proprietary information.
    11. For all claims submitted to binding arbitration, the parties agree to have the claim(s) submitted before three arbitrators and conducted pursuant to the Rules of Commercial Arbitration of the American Arbitration Association (“AAA”). Each party shall pick one arbitrator from the panel list supplied by the AAA, and the third arbitrator shall be chosen by the two appointed by the parties. The parties agree that the award of the Arbitrators shall be the sole and exclusive remedy between them regarding any claims, counterclaims, issues or accountings presented or pled to the Arbitrators. The decision of the Arbitrators shall be final, binding and incontestable and may be used as a basis for judgment, thereon in Colorado, or elsewhere as the situation dictates. Pending the submission to arbitration and thereafter, until the Arbitrators publish their decision, the parties shall, except in the event of termination, continue to perform all their obligations under this Agreement without prejudice to a final adjustment in accordance with the arbitrator’s award.
    12. All requirements for notices hereunder must be in writing; and forwarded to the above address either via a reputable national overnight courier or registered certified mail, return receipt requested. The parties further acknowledge that electronic acceptance, or facsimile signatures or signatures in PDF format are fully binding and constitute a legal method of executing this Agreement or any modifications hereto. The parties further acknowledge the SUBSCRIBER is authorized to accept this Agreement.
    13. This Agreement may be executed in one or more counterparts, each of which shall be deemed to be a duplicate original, but all of which, taken together, shall be deemed to constitute a single instrument.