Terms of Use

RepuGen® Terms of Use  

Terms of Use, effective as of December 26, 2016

RepuGen, ("RepuGen," "we" or "us") provides small businesses and organizations with a variety of products and services and related offerings, features and functionalities (individually, a "Product" and collectively, the "Products"). This website (including any related sub-site, service, feature or functionality) (the "Site") and the Products are provided subject to these Website and Product Terms and Conditions of Use, as they may be amended by us, and any guidelines, rules or operating policies that we may post on this website, including, without limitation, our policies, which are specifically incorporated herein by reference (collectively, the "Agreement"). We may amend this Agreement from time to time due to changes to the Site or the Products, to account for developments under the law, or for any other commercially reasonable reason. Future performance by us of our obligations under this Agreement is sufficient consideration for any such amendment. Any amendment will only become effective upon notification to you (by email or by posting on our Site) and, if you do not want to agree to any such amendment, you should stop using the Site and the Products and contact us to cancel your account. By checking the box next to the "Do you agree?" button on the sign-up page, by logging in to your RepuGen account, by accessing the Site or by accessing any of the Products (including by means of any API interface), you accept this Agreement on behalf of yourself and any business or organization you represent (collectively, "you"). Any terms and conditions that may be contained in any acknowledgement, invoice, purchase order or other form you provide are specifically null and void.

The Site and the Products are available only to persons or organizations that can form legally binding contracts under applicable law. Without limiting the foregoing, the Site and the Products are not available to individuals under the age of 18. If you do not qualify, you are not permitted to use the Site or the Products. If you are using the Site or the Products on behalf of an organization, you represent and warrant that you have the ability to bind such organization by your use of the Site and the Products.

You agree to provide true, accurate, current and complete information about yourself and your organization, as applicable, as requested in the registration form and elsewhere on the Site, and agree to update such information if it changes.

We may, in our discretion, permit you to authorize additional users to use your RepuGen account. For purposes of this Agreement, you are the "Account Owner" and any other users you authorize will be deemed "Authorized Users." You will be responsible for each Authorized User’s use of your RepuGen account and each Authorized User’s compliance with this Agreement.

1. Review Sites

RepuGen utilizes the services of various review sites through an API connection. The security of this API connection is handled by the respective sites and RepuGen does not have control over what review sites can and will provide through these API's. For this reason, changes in our service offerings may occur due to changes in policies or access privileges enacted by these review sites. These include but are not limited to: review sites disabling reputation management platforms from accessing their API, changes in the type and frequency of the data RepuGen can receive, penalties against companies soliciting/gating reviews, etc. RepuGen keeps up with the latest policies and will always do what they can to comply with all review site policies as these review sites announce and explain them to the public. RepuGen will do what it can to protect its clients from review site penalties, by complying with these policies as they're described by the respective sites, but we acknowledge that these sites have the right to adjust their services and policies however they see fit, even if it affects our clients in the process.

2. Web sites covered

This Privacy Statement covers the information practices of Web sites that link to this Privacy Statement, including: https://www.RepuGen.com & https://www.gmrwebteam.com (collectively referred to as “RepuGen.com’s Web sites” or “the Company’s Web sites”).

RepuGen.com’s Web sites may contain links to other Web sites. The information practices or the content of such other Web sites is governed by the privacy statements of such other Web sites. The Company encourages you to review the privacy statements of other Web sites to understand their information practices.

3. Copyright and Trademark Information.

The Site and the information it contains, are the property of RepuGen and, in some cases, its affiliates and licensors, and are protected by United States and international intellectual property laws. "RepuGen," the RepuGen logo, are registered trademarks or trademarks of RepuGen in the United States and other countries. This is not intended as a complete list of our trademarks and other RepuGen product or service names or logos appearing in the Site may be trademarks of RepuGen or its affiliates.

4. Information collected

When expressing an interest in obtaining additional information about the Services or registering to use the Services, RepuGen.com requires you to provide the Company with personal contact information, such as name, company name, address, phone number, and email address (“Required Contact Information”). When purchasing the Services, RepuGen.com may require you to provide the Company with financial qualification and billing information, such as billing name and address, credit card number, and the number of employees within the organization that will be using the Services (“Billing Information”). RepuGen.com may also ask you to provide additional information, such as company annual revenues, number of employees, or industry (“Optional Information”). Required Contact Information, Billing Information, and Optional Information about Customers are referred to collectively as “Data About RepuGen.com Customers”, or in the case of Attendees, “Data About RepuGen.com Attendees”.

As you navigate the Company’s Web sites, RepuGen.com may also collect information through the use of commonly-used information-gathering tools, such as cookies and Web beacons (“Web Site Navigational Information”). Web Site Navigational Information includes standard information from your Web browser (such as browser type and browser language), your Internet Protocol (“IP”) address, and the actions you take on the Company’s Web sites (such as the Web pages viewed and the links clicked).

Use of information collected

The Company uses Data About RepuGen.com Customers to perform the services requested. For example, if you fill out a “Contact Me” Web form, the Company will use the information provided to contact you about your interest in the Services.

The Company may also use Data About RepuGen.com Customers and Customer Satisfaction Data of RepuGen.com Customers for marketing purposes. For example, the Company may use information you provide to contact you to further discuss your interest in the Services and to send you information regarding the Company, its affiliates, and its partners, such as information about promotions or events.

RepuGen.com may use your customers’ satisfaction data to aggregate with other data for industry level or other analysis. In no event will the company share your company’s specific data.

RepuGen.com uses credit card information solely to check the financial qualifications and collect payment from prospective Customers and Attendees.

RepuGen.com uses Web Site Navigational Information to operate and improve the Company’s Web sites. The Company may also use Web Site Navigational Information alone or in combination with Data About RepuGen.com Customers and Data About RepuGen.com

5. Web Site Navigational Information

Cookies, Web Beacons and IP Addresses

RepuGen.com uses commonly-used information-gathering tools, such as cookies and Web beacons, to collect information as you navigate the Company’s Web sites (“Web Site Navigational Information”). This section describes the types of Web Site Navigational Information used on the Company’s Web sites and how this information may be used.

Cookies

RepuGen.com uses cookies to make interactions with the Company’s Web sites easy and meaningful. When you visit one of the Company’s Web sites, RepuGen.com’s servers send a cookie to your computer. Standing alone, cookies do not personally identify you; they merely recognize your Web browser. Unless you choose to identify yourself to RepuGen.com, either by responding to a promotional offer, opening an account, or filling out a Web form (such as a “Contact Me” or a “30 Day Free Trial” Web form), you remain anonymous to the Company.

RepuGen.com uses cookies that are session-based and persistent-based. Session cookies exist only during one session. They disappear from your computer when you close your browser software or turn off your computer. Persistent cookies remain on your computer after you close your browser or turn off your computer. Please note that if you disable your Web browser’s ability to accept cookies, you will be able to navigate the Company’s Web sites, but you will not be able to successfully use the Services.

The following sets out how RepuGen.com uses different categories of cookies and your options for managing cookies’ settings:

Type of Cookies Description
Required cookies Required cookies enable you to navigate the Company’s Web sites and use its features, such as accessing secure areas of the Web sites and using RepuGen.com Services.
If you have chosen to identify yourself to RepuGen.com, the Company uses cookies containing encrypted information to allow the Company to uniquely identify you. Each time you log into the Services, a cookie containing an encrypted, unique identifier that is tied to your account is placed on your browser. These cookies allow the Company to uniquely identify you when you are logged into the Services and to process your online transactions and requests.
Performance cookies These cookies collect information about how Visitors use our Web site, including which pages visitors go to most often and if they receive error messages from certain pages. These cookies do not collect information that individually identifies a Visitor. All information these cookies collect is aggregated and anonymous. It is only used to improve how the Company’s Web site functions and performs.
From time-to-time, RepuGen.com engages third parties to track and analyze usage and volume statistical information from individuals who visit the Company’s Web sites. RepuGen.com may also utilize Flash cookies for these purposes.
Functionality cookies Functionality cookies allow the Company’s Web sites to remember information you have entered or choices you make (such as your username, language, or your region) and provide enhanced, more personal features. These cookies also enable you to optimize your use of RepuGen.com’s Services after logging in. These cookies can also be used to remember changes you have made to text size, fonts and other parts of web pages that you can customize.
RepuGen.com uses local shared objects, also known as Flash cookies, to store your preferences or display content based upon what you view on our Web sites to personalize your visit.
Targeting or Advertising cookies From time-to-time, RepuGen.com engages third parties to track and analyze usage and volume statistical information from individuals who visit the Company’s Web sites. RepuGen.com sometimes uses cookies delivered by third parties to track the performance of Company advertisements. For example, these cookies remember which browsers have visited the Company’s Web sites. The information provided to third parties does not include personal information, but this information may be re-associated with personal information after the Company receives it.
RepuGen.com also contracts with third-party advertising networks that collect IP addresses and other information from Web beacons (see below) on the Company’s Web sites, from emails, and on third-party Web sites. Ad networks follow your online activities over time by collecting Web Site Navigational Information through automated means, including through the use of cookies. They use this information to provide advertisements about products and services tailored to your interests. You may see these advertisements on other Web sites. This process also helps us manage and track the effectiveness of our marketing efforts.
Third parties, with whom the Company partners to provide certain features on our Web sites or to display advertising based upon your Web browsing activity, use Flash cookies to collect and store information. Flash cookies are different from browser cookies because of the amount of, type of, and how data is stored.

Web Beacons

RepuGen.com uses Web beacons alone or in conjunction with cookies to compile information about Customers and Visitors’ usage of the Company’s Web sites and interaction with emails from the Company. Web beacons are clear electronic images that can recognize certain types of information on your computer, such as cookies, when you viewed a particular Web site tied to the Web beacon, and a description of a Web site tied to the Web beacon. For example, RepuGen.com may place Web beacons in marketing emails that notify the Company when you click on a link in the email that directs you to one of the Company’s Web sites. RepuGen.com uses Web beacons to operate and improve the Company’s Web sites and email communications.

IP Addresses

When you visit RepuGen.com’s Web sites, the Company collects your Internet Protocol (“IP”) addresses to track and aggregate non-personal information. For example, RepuGen.com uses IP addresses to monitor the regions from which Customers and Visitors navigate the Company’s Web sites.

RepuGen.com also collects IP addresses from Customers whey they log into the Services as part of the Company’s “Identity Confirmation” and “IP Range Restrictions” security features.

Social Media Features

The Company’s Web sites may use social media features, such as the Facebook 'like' button ("Social Media Features"). These features may collect your IP address and which page you are visiting on the Company's Web site, and may set a cookie to enable the feature to function properly. You may be given the option by such Social Media Features to post information about your activities on the Company's Web site to a profile page of yours that is provided by a third party Social Media network in order to share with others within your network. Social Media Features are either hosted by a third party or hosted directly on the Company’s Web site. Your interactions with these features are governed by the privacy policy of the company providing the relevant Social Media Features.

Do Not Track

Currently, various browsers – including Internet Explorer, Firefox, and Safari – offer a “do not track” or “DNT” option that relies on a technology known as a DNT header, which sends a signal to Web sites' visited by the user about the user's browser DNT preference setting. RepuGen.com does not currently commit to responding to browsers' DNT signals with respect to the Company's Web sites, in part, because no common industry standard for DNT has been adopted by industry groups, technology companies or regulators, including no consistent standard of interpreting user intent. RepuGen.com takes privacy and meaningful choice seriously and will make efforts to continue to monitor developments around DNT browser technology and the implementation of a standard.

6. Public forums, refer a friend, and customer testimonials

RepuGen.com may provide bulletin boards, blogs, or chat rooms on the Company’s Web sites. Any personal information you choose to submit in such a forum may be read, collected, or used by others who visit these forums, and may be used to send you unsolicited messages. RepuGen.com is not responsible for the personal information you choose to submit in these forums.

Customers and Visitors may elect to use the Company’s referral program to inform friends about the Company’s Web sites. When using the referral program, the Company requests the friend’s name and email address. RepuGen.com will automatically send the friend a one-time email inviting him or her to visit the Company’s Web sites. RepuGen.com does not store this information.

RepuGen.com posts a list of Customers and testimonials on the Company’s Web sites that contain information such as Customer names and titles. RepuGen.com obtains the consent of each Customer prior to posting any information on such a list or posting testimonials.

7. Sharing of information collected

Service Providers

RepuGen.com may share Data About RepuGen.com Customers and Data About RepuGen.com Customers’ Satisfaction Data with the Company's contracted service providers so that these service providers can provide services on our behalf. Without limiting the foregoing, RepuGen.com may also share Data About RepuGen.com Customers and Data About Satisfaction for individual customers with the Company's service providers to ensure the quality of information provided, and with third-party social networking and media Web sites, such as Facebook, for marketing and advertising on those Web sites. Unless described in this Privacy Statement, RepuGen.com does not share, sell, rent, or trade any information with third parties for their promotional purposes.

RepuGen.com Affiliates

The Company may share Data About RepuGen.com Customers with other companies in order to work with them, including affiliates of the RepuGen.com corporate group. For example, the Company may need to share Data About RepuGen.com Customers for customer relationship management purposes.

Business Partners

From time to time, RepuGen.com may partner with other companies to jointly offer products or services. If you purchase or specifically express interest in a jointly-offered product or service from RepuGen.com, the Company may share Data About RepuGen.com Customers collected in connection with your purchase or expression of interest with our joint promotion partner(s). RepuGen.com does not control our business partners’ use of the Data About RepuGen.com Customers we collect, and their use of the information will be in accordance with their own privacy policies. If you do not wish for your information to be shared in this manner, you may opt not to purchase or specifically express interest in a jointly offered product or service.

RepuGen.com does not share Data About RepuGen.com Attendees with business partners unless: (1) you specifically opt in to such sharing via an event registration form; or (2) you attend a Company event and allow RepuGen.com or any of its designees to scan your attendee badge. If you do not wish for your information to be shared in this manner, you may choose not to opt in via event registration forms and elect not to have your badge scanned at Company events. If you choose to share your information with business partners in the manners described above, your information will be subject to the business partners’ respective privacy statements.

Third Parties

This Privacy Statement sets forth the information RepuGen.com collects on the Company’s Web sites and the information we share with third parties. RepuGen.com does not authorize the collection of personal information by third parties through advertising technologies deployed on the Company's Web sites, nor do we share personal information with any third parties collected from the Company's Web sites, except as provided in this Privacy Statement. Section 4 of this Privacy Statement, Web Site Navigational Information, specifically addresses the information we collect through cookies and web beacons, and how you can control cookies through your Web browsers.

Billing

RepuGen.com uses a third-party service provider to manage credit card processing. This service provider is not permitted to store, retain, or use Billing Information except for the sole purpose of credit card processing on the Company’s behalf.

Compelled Disclosure

RepuGen.com reserves the right to use or disclose information provided if required by law or if the Company reasonably believes that use or disclosure is necessary to protect the Company’s rights and/or to comply with a judicial proceeding, court order, or legal process.

8. Communications preferences

RepuGen.com reserves the right to contact Visitors and Customers who provide contact information. You may manage your receipt of marketing and non-transactional communications by clicking on the “unsubscribe” link located on the bottom of the Company’s marketing emails.

9. Correcting and updating your information

Customers may update or change their registration information by editing their user or organization record. To update a user profile, please login to http://www.RepuGen.com with your RepuGen.com username and password and click “Setup.” To update Billing Information or have your registration information deleted, please email support@RepuGen.com or call +1 (949) 396-2120. To discontinue your account and to have information you maintained in the Services returned to you, please email support@RepuGen.com or call +1 (949) 396-2120. Requests to access, change, or delete your information will be handled within 30 days.

10. Customer Data

RepuGen.com Customers may electronically submit data or information to the Services for hosting and processing purposes (“Customer Data”). RepuGen.com will not review, share, distribute, or reference any such Customer Data except as provided in the RepuGen.com Master Subscription Agreement, or as may be required by law. In accordance with the RepuGen.com Master Subscription Agreement, RepuGen.com may access Customer Data only for the purpose of providing analysis or preventing or addressing service or technical problems or as may be required by law.

11. Security

RepuGen.com uses robust security measures to protect Data About RepuGen.com Customers and Data of RepuGen.com Customers. Because the Company uses the Services to maintain Data About RepuGen.com Customers and Data of RepuGen.com Customers, this information, which is stored in the Services, can only be accessed by Hackers. While RepuGen.com does its best to prevent Hackers; the company cannot guarantee that your information cannot be hacked.

12. Mobile applications

Mobile Applications may provide RepuGen.com with information related to Users’ use of the Mobile Application services, information regarding Users’ computer systems, and information regarding Users’ interaction with Mobile Applications, which RepuGen.com may use to provide and improve the Mobile Application services. For example, all actions taken in a Mobile Application may be logged, along with associated information (such as the time of day when each action was taken). RepuGen.com may also share anonymous data about these actions with third party providers of analytics services. In addition, if a User downloads a RepuGen.com Mobile Application after clicking on a third-party mobile advertisement for the Mobile Application or for RepuGen.com, the third-party advertiser may provide RepuGen.com with certain information, such as the User’s Device identification information, which RepuGen.com may use to track the performance of its advertising campaigns.

Customers may configure RepuGen.com Mobile Application services, and the information accessed or obtained by the Mobile Application on a User’s Device may be affected by the Customer’s configuration. In addition, if a Customer purchases more than one Service from RepuGen.com and its affiliates, a Mobile Application may be designed to interoperate with those Services; for instance, to provide a User with access to information from any or all of those Services or to provide information from a User’s Device to any or all of those Services. Information accessed or obtained by the Mobile Application on a User’s Device may be accessible to the Customer and its organization, depending on the intended functionality of the Mobile Application.

13. Contacting us

Questions regarding this Privacy Statement or the information practices of the Company’s Web sites should be directed to RepuGen.com Privacy by mailing RepuGen.com
Privacy, 19800 MacArthur Boulevard Suite 300, Irvine, CA 92612.

Master Subscription Agreement
THIS AGREEMENT GOVERNS YOUR ACQUISITION AND USE OF OUR SERVICES.
IF YOU REGISTER FOR A FREE TRIAL FOR OUR SERVICES, THE APPLICABLE PROVISIONS OF THIS AGREEMENT WILL ALSO GOVERN THAT FREE TRIAL.
BY ACCEPTING THIS AGREEMENT, EITHER BY CLICKING A BOX INDICATING YOUR ACCEPTANCE OR BY EXECUTING AN ORDER FORM THAT REFERENCES THIS AGREEMENT, YOU AGREE TO THE TERMS OF THIS AGREEMENT. IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY AND ITS AFFILIATES TO THESE TERMS AND CONDITIONS, IN WHICH CASE THE TERMS "YOU" OR "YOUR" SHALL REFER TO SUCH ENTITY AND ITS AFFILIATES. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH THESE TERMS AND CONDITIONS, YOU MUST NOT ACCEPT THIS AGREEMENT AND MAY NOT USE THE SERVICES.
You may not access the Services if You are Our direct competitor, except with Our prior written consent. In addition, You may not access the Services for purposes of monitoring their availability, performance or functionality, or for any other benchmarking or competitive purposes.
This Agreement was last updated on January 13, 2016. It is effective between You and Us as of the date of You accepting this Agreement.

Table of Contents

  1. Definitions
  2. Free Trial
  3. Our Responsibilities
  4. Use of the Services and Content
  5. Non-RepuGen.com Providers
  6. Fees and Payment for Purchased Services
  7. Proprietary Rights and Licenses
  8. Confidentiality
  9. Representations, Warranties, Exclusive Remedies and Disclaimers
  10. Mutual Indemnification
  11. Limitation of Liability
  12. Term and Termination
  13. Who You Are Contracting With, Notices, Governing Law and Jurisdiction
  14. General Provisions

1. DEFINITIONS

"Affiliate" means any entity that directly or indirectly controls, is controlled by, or is under common control with the subject entity. "Control," for purposes of this definition, means direct or indirect ownership or control of more than 50% of the voting interests of the subject entity.

Agreement” means this Master Subscription Agreement.

“Beta Services” means REPUGEN services or functionality that may be made available to Customer to try at its option which is clearly designated as beta, pilot, limited release, developer preview, non-production, evaluation, or by a similar description.

“Content” means information obtained by REPUGEN from publicly available sources or third party content providers and made available to Customer through the Services, Beta Services or pursuant to an Order Form, as more fully described in the Documentation.

Documentation” means the applicable Service’s Trust and Compliance documentation, and its usage guides and policies, as updated from time to time, accessible via help.RepuGen.com or login to the applicable Service.

Malicious Code” means code, files, scripts, agents or programs intended to do harm, including, for example, viruses, worms, time bombs and Trojan horses.

Order Form” means an ordering document or online order specifying the Services to be provided hereunder that is entered into between You and Us or any of Our Affiliates, including any addenda and supplements thereto. By entering into an Order Form hereunder, an Affiliate agrees to be bound by the terms of this Agreement as if it were an original party hereto.

Purchased Services” means Services that You or Your Affiliate purchase under an Order Form, as distinguished from those provided pursuant to a free trial.

Services” means the products and services that are ordered by You under an Order Form or contract, or provided to You under a free trial, and made available online by Us, including associated REPUGEN offline or mobile components, as described in the Documentation.

User” means an individual who is authorized by You to use a Service, for whom You have purchased a subscription (or in the case of any Services provided by Us without charge, for whom a Service has been provisioned), and to whom You (or, when applicable, Us at Your request) have supplied a user identification and password (for Services utilizing authentication). Users may include, for example, Your employees, consultants, contractors and agents, and third parties with which You transact business.

We,” “Us” or “Our” means the RepuGen.com company described in Section 13 (Who You Are Contracting With, Notices, Governing Law and Jurisdiction).

You” or “Your” means the company or other legal entity for which you are accepting this Agreement, and Affiliates of that company or entity which have signed Order Forms.

Your Data” means electronic data and information submitted by or for Customer to the Services, excluding Content and Non-REPUGEN Applications.
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2. FREE TRIAL

If You register on Our website for a free trial, We will make one or more Services available to You on a trial basis free of charge until the earlier of (a) the end of the free trial period for which You registered to use the applicable Service(s), or (b) the start date of any Purchased Service subscriptions ordered by You for such Service(s), or (c) termination by Us in our sole discretion. Additional trial terms and conditions may appear on the trial registration web page. Any such additional terms and conditions are incorporated into this Agreement by reference and are legally binding.

ANY DATA YOU ENTER INTO THE SERVICES, AND ANY CUSTOMIZATIONS MADE TO THE SERVICES BY OR FOR YOU, DURING YOUR FREE TRIAL WILL BE PERMANENTLY LOST UNLESS YOU PURCHASE A SUBSCRIPTION TO THE SAME SERVICES AS THOSE COVERED BY THE TRIAL, PURCHASE APPLICABLE UPGRADED SERVICES, OR EXPORT SUCH DATA, BEFORE THE END OF THE TRIAL PERIOD. YOU CANNOT TRANSFER DATA ENTERED OR CUSTOMIZATIONS MADE DURING THE FREE TRIAL TO A SERVICE THAT WOULD BE A DOWNGRADE FROM THAT COVERED BY THE TRIAL (E.G., FROM ENTERPRISE EDITION TO PROFESSIONAL EDITION); THEREFORE, IF YOU PURCHASE A SERVICE THAT WOULD BE A DOWNGRADE FROM THAT COVERED BY THE TRIAL, YOU MUST EXPORT YOUR DATA BEFORE THE END OF THE TRIAL PERIOD OR YOUR DATA WILL BE PERMANENTLY LOST.

NOTWITHSTANDING SECTION 9 (REPRESENTATIONS, WARRANTIES, EXCLUSIVE REMEDIES AND DISCLAIMERS), DURING THE FREE TRIAL THE SERVICES ARE PROVIDED “AS-IS” WITHOUT ANY WARRANTY.

Please review the applicable Service’s Documentation during the trial period so that You become familiar with the features and functions of the Services before You make Your purchase.


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3. OUR RESPONSIBILITIES

3.1. Provision of Purchased Services. We will (a) make the Services and Content available to You pursuant to this Agreement and the applicable Order Forms, (b) provide applicable REPUGEN standard support for the Services to You at no additional charge, and/or upgraded support if purchased, (c) use commercially reasonable efforts to make the online Services available 24 hours a day, 7 days a week, except for: (i) planned downtime (of which We shall give advance electronic notice as provided in the Documentation), and (ii) any unavailability caused by circumstances beyond Our reasonable control, including, for example, an act of God, act of government, flood, fire, earthquake, civil unrest, act of terror, strike or other labor problem (other than one involving Our employees), Internet service provider failure or delay, or denial of service attack.

3.2. Protection of Your Data. We will maintain administrative, physical, and technical safeguards for protection of the security, confidentiality and integrity of Your Data. Those safeguards will include, but will not be limited to, measures for preventing access, use, modification or disclosure of Your Data by Our personnel except (a) to provide the Purchased Services and prevent or address service or technical problems, (b) as compelled by law in accordance with Section 8.3 (Compelled Disclosure) below, or (c) for aggregating it with other data for analysis purposes, or (d) as You expressly permit in writing.

3.3. Our Personnel. We will manage the performance of Our personnel (including Our employees and contractors) and their compliance with Our obligations under this Agreement.

3.4. Beta Services. From time to time, We may make Beta Services available to You at no charge. You may choose to try such Beta Services or not in Your sole discretion. Beta Services are intended for evaluation purposes and not for production use, are not supported, and may be subject to additional terms. Beta Services are not considered “Services” under this Agreement, however, all restrictions, Our reservation of rights and Your obligations concerning the Services shall apply equally to Your use of Beta Services. Unless otherwise stated, any Beta Services trial period will expire upon the earlier of one year from the trial start date or the date that a version of the Beta Services becomes generally available without the applicable Beta Services designation. We may discontinue Beta Services at any time in Our sole discretion and may never make them generally available. We will have no liability for any harm or damage arising out of or in connection with a Beta Service.


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4. USE OF SERVICES AND CONTENT

4.1 Subscriptions. Unless otherwise provided in the applicable Order Form or Documentation, (a) Services and access to Content are purchased as subscriptions, (b) subscriptions may be added during a subscription term at the same pricing as the underlying subscription pricing, prorated for the portion of that subscription term remaining at the time the subscriptions are added, and (c) any added subscriptions will terminate on the same date as the underlying subscriptions.

4.2 Usage Limits. Services and Content are subject to usage limits, including, for example, the quantities specified in Order Forms and Documentation. Unless otherwise specified, (a) a quantity in an Order Form refers to Users, and the Service or Content may not be accessed by more than that number of Users, (b) a User’s password may not be shared with any other individual, and (c) except as set forth in an Order Form, a User identification may only be reassigned to a new individual replacing one who will no longer use the Service or Content. If You exceed a contractual usage limit, We may work with You to seek to reduce Your usage so that it conforms to that limit. If, notwithstanding Our efforts, You are unable or unwilling to abide by a contractual usage limit, You will execute an Order Form for additional quantities of the applicable Services or Content promptly upon Our request, and/or pay any invoice for excess usage.

4.3 Your Responsibilities. You will (a) be responsible for Users’ compliance with this Agreement, Documentation and Order Forms, (b) be responsible for the accuracy, quality and legality of Your Data and the means by which You acquired Your Data, (c) use commercially reasonable efforts to prevent unauthorized access to or use of Services and Content, and notify Us promptly of any such unauthorized access or use, (d) use Services and Content only in accordance with this Agreement, Documentation, Order Forms and applicable laws and government regulations, and (e) comply with terms of service of any Non-REPUGEN Applications with which You use Services or Content.

You will not (a) make any Service or Content available to, or use any Service or Content for the benefit of, anyone other than You or Users, unless expressly stated otherwise in an Order Form or the Documentation, (b) sell, resell, license, sublicense, distribute, make available, rent or lease any Service or Content, or include any Service or Content in a service bureau or outsourcing offering, (c) use a Service or Non-REPUGEN Application to store or transmit infringing, libelous, or otherwise unlawful or tortious material, or to store or transmit material in violation of third-party privacy rights, (d) use a Service or Non-REPUGEN Application to store or transmit Malicious Code, (e) interfere with or disrupt the integrity or performance of any Service or third-party data contained therein, (f) attempt to gain unauthorized access to any Service or Content or its related systems or networks, (g) permit direct or indirect access to or use of any Service or Content in a way that circumvents a contractual usage limit, or use any of Our Services to access or use any of Our intellectual property except as permitted under this Agreement, an Order Form, or the Documentation, (h) copy a

Service or any part, feature, function or user interface thereof, (i) copy Content except as permitted herein or in an Order Form or the Documentation, (j) frame or mirror any part of any Service or Content, other than framing on Your own intranets or otherwise for Your own internal business purposes or as permitted in the Documentation, (k) access any Service or Content in order to build a competitive product or service or to benchmark with a Non-REPUGEN product or service, or (l) reverse engineer any Service (to the extent such restriction is permitted by law). Any use of the Services in breach of this Agreement, Documentation or Order Forms, by You or Users that in Our judgment threatens the security, integrity or availability of Our services, may result in Our immediate suspension of the Services, however We will use commercially reasonable efforts under the circumstances to provide You with notice and an opportunity to remedy such violation or threat prior to such suspension.

4.4 Use of Site and Products. You further agree to comply with the following in connection with your use of the Site and the Products:

  • You may not access or use the Site or the Products in a way that uses technology or other means to access, index, re-render, frame, mirror, truncate, add to, inject, filter or link to the Site or the Products that is not authorized by us (including by removing, disabling, bypassing, or circumventing any content protection or access control mechanisms intended to prevent the unauthorized use, download, linking, framing, reproduction, access to, or distribution of the Site or the Products).
  • You may not use any deep-link, page-scrape, robot, crawl, index, spider, offline reader, click spam, macro programs, internet agent, or other automatic device, program, algorithm or methodology which does the same things, to use, access, copy, index, acquire information, generate impressions or clicks, input information, store information, search, generate searches, or monitor any portion of the Site or the Products for any unauthorized purpose.
  • You may not use the Site or the Products in a way that, to be determined in our sole discretion, damages, disables, overburdens, impairs, or gains unauthorized access to the Site or the Products, including RepuGen’s servers, computer network, or user accounts.
  • You may not use the Site or the Products in a way that removes, modifies, disables, blocks, obscures or otherwise impairs any advertising in connection with the Site or the Products.
  • You may not copy, display, distribute, download, license, modify, publish, re-post, reproduce, reuse, sell, transmit, use to create a derivative work, or otherwise use the content of the Site or the Products for public or commercial purposes without our express written permission.
  • You shall not interfere with or disrupt the Site or any related RepuGen websites or servers or networks connected to the Site or the Products.
  • You shall not use the Site or the Products in violation of applicable law or third party rights (including third party terms of service), and shall not use the Site or the Products for hosting content (for example, images and documents) that infringes on the intellectual property rights of others.
  • You shall not repeatedly upload and remove unique email addresses or otherwise try to manipulate data in an attempt to circumvent our Fee Schedule or other billing procedures.
  • You shall not set up multiple accounts for any individual or organization in order to send substantially similar content unless you are part of a franchise.
  • You shall not include any incentives (for example, coupons, discounts or awards) in any messages you send by means of the Site or the Products that encourage a recipient to forward the message to another recipient, other than as expressly encouraged and permitted within the applicable Product (such as when you offer a Deal (defined below) and we encourage you to incentivize third parties to share your Deal).

4.5 External-Facing Services. If You subscribe to a Service for sending electronic messages or for the creation and hosting of, or for posting content on, external-facing websites, You are solely responsible for complying with applicable law in Your use of any cookies or other tracking technologies.

4.6 Removal of Content and Non-RepuGen.com Applications. If We are required by a licensor to remove Content, or receive information that Content provided to You may violate applicable law or third-party rights, We may so notify You and in such event You will promptly remove such Content from Your systems. If We receive information that a Non-RepuGen.com Application hosted on a Service by You may violate applicable law or third-party rights, We may so notify You and in such event You will promptly disable such Non-RepuGen.com Application or modify the Non-RepuGen.com Application to resolve the potential violation. If You do not take required action in accordance with the above, We may disable the applicable Content, Service and/or Non-RepuGen.com Application until the potential violation is resolved.

4.7 Prohibition on Spam; Permission Practices.

(a) Prohibition on Spam. The Site and the Products may not be used for the sending of unsolicited text or email messages (sometimes called "spam"). All messages sent by means of the Site or the Products shall be in compliance with standard anti-spam policies.

You are responsible for ensuring that your use of the Site and the Products do not generate a number of spam or other complaints in excess of industry norms. We may terminate your access to or use of the Site and the Products if we determine that your level of spam or other complaints is higher than industry norms, as determined by us in our sole discretion. As a matter of privacy, we will not share with you information about those recipients who complain about your use of the Products or file a spam report against you.

You agree to import, access or otherwise use only contact lists in connection with the Site and the Products for which all listed parties have consented to receive correspondence from you (such as by opting into your "Join My Mailing List" link or signing on as your customer). You agree not to send messages through the Site or the Products to distribution lists, newsgroups, publicly available press or media addresses or purchased email addresses.

We reserve the right without notice to take all measures of any nature (whether legal, technical or otherwise) to prevent unsolicited bulk test or email and/or other unauthorized text/email, messages or campaigns from entering, utilizing or remaining within our network.

You agree that you are the sole or designated "sender" (as such term is defined in the CAN-SPAM Act of 2003 and any rules or regulations adopted under such act (the "CAN-SPAM Act")) of any message sent by you using the Site or the Products. Similarly, for messages sent to Canadian email accounts, you are the sole person sending or causing or permitting the message to be sent by you using the Site or the Products (within the meaning of Canada's Anti-Spam Legislation, S.C. 2010, c. 23 ("Canada's Anti-Spam Legislation")).

You agree that for any email message sent by you using the Site or the Products, (i) the "from" line of any email message sent by you using the Site or the Products will accurately and in a non-deceptive manner identify your organization, your product or your service, (ii) the "subject" line of any email message sent by you using the Site or the Products will not contain any deceptive or misleading content regarding the overall subject matter of the email message, and (iii) you will include your valid physical address, which, if you are located in the United States, may be a valid post office box meeting the registration requirements established by the United States Postal Service.


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5. NON-REPUGEN.COM PROVIDERS

5.1. We or third parties may make available (for example, through a Marketplace or otherwise) third-party products or services, including, for example, Non-REPUGEN Applications and implementation and other consulting services. Any acquisition by You of such products or services, and any exchange of data between You and any Non-REPUGEN provider, product or service is solely between You and the applicable Non-REPUGEN provider. We do not warrant or support Non-REPUGEN Applications or other Non-REPUGEN products or services, whether or not they are designated by Us as “certified” or otherwise, unless expressly provided otherwise in an Order Form.

5.2. Non-REPUGEN Applications and Your Data. If You choose to use a Non-REPUGEN Application with a Service, You grant Us permission to allow the Non-REPUGEN Application and its provider to access Your Data as required for the interoperation of that Non-REPUGEN Application with the Service. We are not responsible for any disclosure, modification or deletion of Your Data resulting from access by such Non-REPUGEN Application or its provider.

5.3. Integration with Non-REPUGEN Applications. The Services may contain features designed to interoperate with Non-REPUGEN Applications. To use such features, You may be required to obtain access to such Non-REPUGEN Applications from their providers, and may be required to grant Us access to Your account(s) on such Non-REPUGEN Applications. We cannot guarantee the continued availability of such Service features, and may cease providing them without entitling You to any refund, credit, or other compensation, if for example and without limitation, the provider of a Non-REPUGEN Application ceases to make the Non-REPUGEN Application available for interoperation with the corresponding Service features in a manner acceptable to Us.


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6. FEES AND PAYMENT FOR PURCHASED SERVICES

6.1. Fees. You will pay all fees specified in Order Forms. Except as otherwise specified herein or in an Order Form,(i) fees are based on Services and Content subscriptions purchased and not actual usage, (ii) payment obligations are non-cancelable and fees paid are non-refundable, and (iii) quantities purchased cannot be decreased during the relevant subscription term.

6.2. Invoicing and Payment. You will provide Us with valid and updated credit card information, or with a valid purchase order or alternative document reasonably acceptable to Us. If You provide credit card information to Us, You authorize Us to charge such credit card for all Purchased Services listed in the Order Form for the initial subscription term and any renewal subscription term(s) as set forth in Section 12.2 (Term of Purchased Subscriptions). Such charges shall be made in advance, either annually or in accordance with any different billing frequency stated in the applicable Order Form. If the Order Form specifies that payment will be by a method other than a credit card, We will invoice You in advance and otherwise in accordance with the relevant Order Form. Unless otherwise stated in the Order Form, invoiced charges are due net 30 days from the invoice date. You are responsible for providing complete and accurate billing and contact information to Us and notifying Us of any changes to such information.

6.3. Overdue Charges. If any invoiced amount is not received by Us by the due date, then without limiting Our rights or remedies, (a) those charges may accrue late interest at the rate of 2.5% of the outstanding balance per month, or the maximum rate permitted by law, whichever is lower, and/or (b) We may condition future subscription renewals and Order Forms on payment terms shorter than those specified in Invoicing and Payment.

6.4. Suspension of Service and Acceleration. If any amount owing by You under this or any other agreement for Our services is 30 or more days overdue (or 10 or more days overdue in the case of amounts You have authorized Us to charge to Your credit card), We may, without limiting Our other rights and remedies, accelerate Your unpaid fee obligations under such agreements so that all such obligations become immediately due and payable, and suspend Our services to You until such amounts are paid in full. Other than for customers paying by credit card or direct debit whose payment has been declined, We will give You at least 10 days’ prior notice that Your account is overdue before suspending Your services.

6.5. Payment Disputes. We will not exercise Our rights under Section 6.3 (Overdue Charges) or 6.4 (Suspension of Service and Acceleration) above if You are disputing the applicable charges reasonably and in good faith and are cooperating diligently to resolve the dispute.

6.6. Taxes. Our fees do not include any taxes, levies, duties or similar governmental assessments of any nature, including, for example, value-added, sales, use or withholding taxes, assessable by any jurisdiction whatsoever (collectively, “Taxes”). You are responsible for paying all Taxes associated with Your purchases hereunder. If We have the legal obligation to pay or collect Taxes for which You are responsible, We will invoice You and You will pay that amount unless You provide Us with a valid tax exemption certificate authorized by the appropriate taxing authority. For clarity, We are solely responsible for taxes assessable against Us based on Our income, property and employees.

6.7. Future Functionality. You agree that Your purchases are not contingent on the delivery of any future functionality or features, or dependent on any oral or written public comments made by Us regarding future functionality or features.


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7. PROPRIETARY RIGHTS AND LICENSES

7.1. Reservation of Rights. Subject to the limited rights expressly granted hereunder, We and Our licensors and Content Providers reserve all of Our/their right, title and interest in and to the Services and Content, including all of Our/their related intellectual property rights. No rights are granted to You hereunder other than as expressly set forth herein.

7.2. Access to and Use of Content. You have the right to access and use applicable Content subject to the terms of applicable Order Forms, this Agreement and the Documentation.

7.3. License to Host Your Data and Applications. You grant Us, Our Affiliates and applicable contractors a worldwide, limited-term license to host, copy, transmit and display Your Data, and any Non-REPUGEN Applications and program code created by or for You using a Service or for use by You with the Services, as reasonably necessary for Us to provide the Services in accordance with this Agreement. Subject to the limited licenses granted herein, We acquire no right, title or interest from You or Your licensors under this Agreement in or to any of Your Data, Non-REPUGEN Application or such program code.

7.4. License to Use Feedback. You grant to Us and Our Affiliates a worldwide, perpetual, irrevocable, royalty-free license to use and incorporate into Our and/or Our Affiliates’ services any suggestion, enhancement request, recommendation, correction or other feedback provided by You or Users relating to the operation of Our or Our Affiliates’ services.

7.5. Federal Government End Use Provisions. We provide the Services, including related software and technology, for ultimate federal government end use solely in accordance with the following: Government technical data and software rights related to the Services include only those rights customarily provided to the public as defined in this Agreement. This customary commercial license is provided in accordance with FAR 12.211 (Technical Data) and FAR 12.212 (Software) and, for Department of Defense transactions, DFAR 252.227-7015 (Technical Data – Commercial Items) and DFAR 227.7202-3 (Rights in Commercial Computer Software or Computer Software Documentation). If a government agency has a need for rights not granted under these terms, it must negotiate with Us to determine if there are acceptable terms for granting those rights, and a mutually acceptable written addendum specifically granting those rights must be included in any applicable agreement.

7.6. No Rights in Software.

This is an Agreement for services and access to the Site, and, except as expressly set forth herein, you are not granted a license to any software by this Agreement and nothing on the Site shall be construed to confer any grant or license of any intellectual property rights, whether by estoppel, by implication, or otherwise. You will not, directly or indirectly, reverse engineer, decompile, disassemble, or otherwise attempt to discover the source code, object code, or underlying structure, ideas, or algorithms of, or found at or through the Site or the Products or any software, documentation, or data related to the Site or the Products ("Software"); remove any proprietary notices or labels from the Site or the Products or any Software; modify, translate, or create derivative works based on the Site or the Products or any Software; or copy, distribute, pledge, assign, or otherwise transfer or encumber rights to the Site or the Products or any Software. If you are using the Site or the Products in any jurisdiction which restricts the ability of a software provider to restrict your right to reverse engineer, decompile, disassemble, or otherwise attempt to discover the source code, object code, or underlying structure, ideas, or algorithms of the Site, the Software or the Products, then you hereby covenant that, prior to engaging in such activities, you will first request that we perform such work at our standard professional services rates. We can then decide either: (a) to perform the work in order to achieve such interoperability and charge our then standard rates for such work to you; (b) to permit you to reverse engineer parts of the Software in order to obtain such source code, but only to the extent necessary to achieve such interoperability; or (c) to provide you with the information that you need regarding the Software for the purpose for which applicable law permits you to engage in such activities despite a contractual prohibition on such activities.

7.6.1. Permitted Use of the Site or the Products.

The Site and the Products shall be used for your personal or internal business (which includes civic or charitable) purposes only, in compliance with this Agreement (including, without limitation, Section 5 hereof) and you shall not use the Site, the Products or any Software for timesharing or service-bureau purposes or otherwise for the benefit of a third party. Unless you are an authorized reseller of the Products, you may not display, copy, reproduce, or distribute the Software, any component thereof, any documentation provided in connection with Site, the Products or the Software, or any content, including but not limited to newsletters distributed to you by us in connection with the Products.

7.6.2. Compliance with Laws.

The Site and the Products shall only be used for lawful purposes and you shall use the Site and the Products only in compliance with this Agreement, the CAN-SPAM Act and regulations thereunder and all other applicable U.S., state, local and international laws in your jurisdiction, including but not limited to (a) Canada's Anti-Spam Legislation and any other policies and laws related to unsolicited emails, spamming, privacy, obscenity, or defamation, copyright and trademark infringement and child protective email address registry laws, (b) laws relating to advertising, sales or promotional efforts or practices, redemption, refunds and provision of your products or services, (c) laws that govern false, unfair and deceptive practices, coupons, gift cards/certificates, defective products or services, unclaimed property, alcohol or tobacco, health and safety, fire, and hygiene standards, and (d) laws that govern lotteries, sweepstakes, contests and promotions and (e) laws that govern the collection of donations and charitable giving.

7.6.3. Monitoring and Removal.

Although we have no obligation to monitor the content provided by you or your use of the Site or the Products, we may do so and may block any messages or campaigns, remove any content, including surveys, event registrations, social campaigns, Promotions, Deals or Business Content, or prohibit any use of the Site or the Products that we believe may be in violation of the foregoing or any other provision of this Agreement. You further understand and agree that we and any applicable third party who supports, posts, publishes or distributes your Promotions, Deals or Business Content also has the right to reformat, edit, monitor, reject, block or remove any of your Promotions, Deals or Business Content at any time. In no case will the foregoing make us responsible or liable for compliance with any such laws or obligations, for which you remain solely responsible and liable.

7.6.4. Assistance.

You acknowledge that we may from time to time provide you with marketing advice and other coaching, template design, frequently asked questions and tips on best practices and complying with applicable law, including any sample Offer Terms. You acknowledge that such assistance and information is provided as a convenience to you and that such assistance and information are not intended to and do not constitute legal advice and that no attorney-client relationship is formed. We do not warrant or guarantee that use of or compliance with this information will be sufficient to comply with your obligations hereunder, applicable law or with third party rights.


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8. CONFIDENTIALITY

8.1. Definition of Confidential Information. Confidential Information” means all information disclosed by a party (“Disclosing Party”) to the other party (“Receiving Party”), whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure. Your Confidential Information includes Your Data; Our Confidential Information includes the Services and Content; and Confidential Information of each party includes the terms and conditions of this Agreement and all Order Forms (including pricing), as well as business and marketing plans, technology and technical information, product plans and designs, and business processes disclosed by such party. However, Confidential Information does not include any information that (i) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party, (ii) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party, (iii) is received from a third party without breach of any obligation owed to the Disclosing Party, or (iv) was independently developed by the Receiving Party.

8.2. The Receiving Party will use the same degree of care that it uses to protect the confidentiality of its own confidential information of like kind (but not less than reasonable care) to (i) not use any Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement and (ii) except as otherwise authorized by the Disclosing Party in writing, limit access to Confidential Information of the Disclosing Party to those of its and its Affiliates’ employees and contractors who need that access for purposes consistent with this Agreement and who have signed confidentiality agreements with the Receiving Party containing protections not materially less protective of the Confidential Information than those herein. Neither party will disclose the terms of this Agreement or any Order Form to any third party other than its Affiliates, legal counsel and accountants without the other party’s prior written consent, provided that a party that makes any such disclosure to its Affiliate, legal counsel or accountants will remain responsible for such Affiliate’s, legal counsel’s or accountant’s compliance with this “Confidentiality” section. Notwithstanding the foregoing, We may disclose the terms of this Agreement and any applicable Order Form to a subcontractor or Non-REPUGEN Application Provider to the extent necessary to perform Our obligations to You under this Agreement, under terms of confidentiality materially as protective as set forth herein.

8.3. Compelled Disclosure. The Receiving Party may disclose Confidential Information of the Disclosing Party to the extent compelled by law to do so, provided the Receiving Party gives the Disclosing Party prior notice of the compelled disclosure (to the extent legally permitted) and reasonable assistance, at the Disclosing Party's cost, if the Disclosing Party wishes to contest the disclosure. If the Receiving Party is compelled by law to disclose the Disclosing Party’s Confidential Information as part of a civil proceeding to which the Disclosing Party is a party, and the Disclosing Party is not contesting the disclosure, the Disclosing Party will reimburse the Receiving Party for its reasonable cost of compiling and providing secure access to that Confidential Information.


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9. Warranty Disclaimer; Remedies; Release.

YOU EXPRESSLY AGREE THAT THE SITE AND THE PRODUCTS (INCLUDING ANY CUSTOM SERVICES OFFERINGS) ARE PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS. USE OF THE SITE OR THE PRODUCTS AND ANY RELIANCE BY YOU UPON THE SITE OR THE PRODUCTS, INCLUDING ANY ACTION TAKEN BY YOU BECAUSE OF SUCH USE OR RELIANCE, IS AT YOUR SOLE RISK. WE DO NOT WARRANT THAT THE USE OF THE SITE OR THE PRODUCTS WILL BE UNINTERRUPTED OR ERROR FREE, NOR DO WE MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE SAME. WE DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NONINFRINGEMENT. NO STATEMENT OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED FROM US IN ANY MEANS OR FASHION SHALL CREATE ANY WARRANTY NOT EXPRESSLY AND EXPLICITLY SET FORTH IN THIS AGREEMENT.

WE SHALL HAVE NO LIABILITY OF ANY NATURE WHATSOEVER FOR YOUR COMPLIANCE WITH OR BREACH OF ANY LICENSE OR TERMS AND CONDITIONS OF ANY THIRD PARTIES OR THIRD PARTY SERVICES.

WE DO NOT ENDORSE AND ARE NOT RESPONSIBLE FOR (a) THE ACCURACY OR RELIABILITY OF ANY THIRD PARTY CONTENT, OPINION, ADVICE OR STATEMENT MADE BY ANYONE OTHER THAN US, OR (b) ANY EVENT HOSTED, DONATION SOLICITED, THE RESULTS OF ANY SURVEY, OR ANY PRODUCT OR SERVICE PURCHASED OR OTHERWISE OBTAINED FROM ANY THIRD PARTY, INCLUDING OUR CUSTOMERS.

NO CLAIM MAY BE ASSERTED BY YOU AGAINST US MORE THAN 12 MONTHS AFTER THE DATE OF THE CAUSE OF ACTION UNDERLYING SUCH CLAIM. YOUR SOLE AND EXCLUSIVE REMEDY FOR ANY FAILURE OR NONPERFORMANCE OF THE SITE OR THE PRODUCTS SHALL BE FOR US TO USE COMMERCIALLY REASONABLE EFFORTS TO ADJUST OR REPAIR THE SITE OR THE PRODUCTS.

TO THE EXTENT THE LAW PERMITS, YOU RELEASE US FROM ANY CLAIMS OR LIABILITY RELATED TO (a) ANY CONTENT POSTED ON YOUR SITE OR IN ANY MATERIALS YOU SEND USING THE SITE OR THE PRODUCTS, (b) THE CONDUCT OF ANY OTHER CUSTOMERS OF OURS OR THEIR RESPECTIVE SUBSCRIBERS AND (c) ANY PROBLEMS THAT MAY ARISE FROM ANY REMOTE ACCESS TO YOUR COMPUTERS OR OTHER SYSTEMS YOU PROVIDE TO OUR PERSONNEL OR AGENTS FOR THE PURPOSE OF TROUBLESHOOTING ISSUES. YOU HEREBY WAIVE CALIFORNIA CIVIL CODE SECTION 1542 (IF YOU ARE A CALIFORNIA RESIDENT), AND ANY SIMILAR PROVISION IN ANY OTHER JURISDICTION (IF YOU ARE A RESIDENT OF SUCH JURISDICTION).

9.1. Representations. Each party represents that it has validly entered into this Agreement and has the legal power to do so.

9.2. Our Warranties. We warrant that during an applicable subscription term (a) this Agreement, the Order Forms and the Documentation will accurately describe the applicable administrative, physical, and technical safeguards for protection of the security, confidentiality and integrity of Your Data, (b) We will not materially decrease the overall security of the Services, (c) the Services will perform materially in accordance with the applicable Documentation, and (d) subject to the “Integration with Non-REPUGEN Applications” section above, We will not materially decrease the overall functionality of the Services. For any breach of a warranty above, Your exclusive remedies are those described in the “Termination” and “Refund or Payment upon Termination” sections below.

9.3. Disclaimers. EXCEPT AS EXPRESSLY PROVIDED HEREIN, NEITHER PARTY MAKES ANY WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND EACH PARTY SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. CONTENT AND BETA SERVICES ARE PROVIDED “AS IS,” EXCLUSIVE OF ANY WARRANTY WHATSOEVER. EACH PARTY DISCLAIMS ALL LIABILITY AND INDEMNIFICATION OBLIGATIONS FOR ANY HARM OR DAMAGES CAUSED BY ANY THIRD-PARTY HOSTING PROVIDERS.

9.4 Your Content and Contacts. We will also obtain any information that you provide to us in connection with your use of the Site or the Products, such as contact lists (including email addresses and phone numbers of your subscribers) and content (including Business Content). We acknowledge your ownership rights in such contact lists and content ("Customer Information"). We will never sell or rent your Customer Information to anyone without your permission, and will never use your Customer Information for any purpose other than providing our products and services or as described herein. In the event we amend or revise the policy described in the immediately preceding sentence, we will provide advance notice of such amendment or revision.

You are solely responsible for the accuracy, quality, integrity, legality, reliability and appropriateness of all Customer Information, and you are responsible for maintaining, securing and storing all Customer Information in accordance with applicable law and any contractual obligations you may have (including this Agreement). You represent and warrant that you own or have secured all rights and interest in and to the Customer Information required for us to use the Customer Information as contemplated by this Agreement. To the extent you use images or templates provided by us, we hereby grant to you a revocable, non-exclusive, royalty-free, worldwide license to use, reproduce, publish, distribute, perform and display the images solely in connection with your use of the Site or the Products.

To the extent permitted by applicable law, we may make and preserve copies of all Customer Information as necessary to provide the Site or the Products and for internal back-up and other legal or regulatory purposes.

Submissions. If you submit any suggestions, business information, ideas, concepts or inventions or content to us through the Site or otherwise ("Submissions"), you agree such Submission is non-confidential for all purposes and you automatically grant, or warrant that the owner of such content or intellectual property has expressly granted, us a non-exclusive, royalty-free, perpetual, irrevocable, worldwide license, with the right to sublicense, to use, reproduce, create derivative works from, modify, publish, edit, translate, distribute, perform and display such Submission in any manner or in any media now known or hereafter created.

Automated Data Collection. You consent to us collecting data from your website through automated means, such as through harvesting bots, robots, spiders, or scrapers ("Automated Data Collection") and the use of that data for internal business purposes. We will not use Automated Data Collection to collect data from your website if you have set the /robots.txt file to disallow such collection.

Backups. You are responsible for making frequent backup copies of your Customer Information, including your contact lists.


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10. INDEMNIFICATION

You hereby agree to defend, indemnify and hold harmless us and our underlying service providers (i.e. vendors who help us provide the Products), business partners, third-party suppliers and providers, members of our Network, account providers, licensors, officers, directors, employees, distributors and agents from and against any damages, losses, liabilities, penalties, settlements and expenses (including costs and reasonable attorneys' fees) in connection with any claim or action that (a) arises from any actual or alleged breach by you of this Agreement; (b) arises from your Customer Information, including the content or effects of any messages you distribute, surveys you administer, social media campaigns you publish, Promotions or Deals you offer, or services you sell (including, without limitation, claims relating to violations of law, false advertising, injuries, illness, damages, death, taxes, fulfillment, breach of Offer Terms, defective products or services or unclaimed property); (c) arises from your provision of incomplete or inaccurate information to your subscribers or customers; (d) arises from your activities or postings in any Community; (e) arises from your use of any Third Party Service (as defined below); (f) arises from your activities related to the RepuGen Authorized Local Expert Program or the RepuGen Boot Camp; or (g) otherwise arises from or relates to your use of the Site or the Products. You agree to provide us with prompt written notice in the event of any such claims or actions. In addition, you acknowledge and agree that we have the right to seek damages when you use the Site or the Products for unlawful purposes, in an unlawful manner, or in a manner inconsistent with the terms of this Agreement, and that such damages may include, without limitation, direct, indirect, special, incidental, cover, reliance and/or consequential damages. In the event that we are required to respond to a third party or law enforcement subpoena or court order that is related to your use of the Site or the Products, we may, in our sole discretion, require you to reimburse us for our reasonable expenses associated with complying with such subpoena or order.

10.3. Exclusive Remedy. This Section 10 states the indemnifying party’s sole liability to, and the indemnified party’s exclusive remedy against, the other party for any type of claim described in this Section 10.


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11. LIMITATION OF LIABILITY

EXCEPT WITH RESPECT TO DEATH OR PERSONAL INJURY DUE TO THE NEGLIGENCE OF REPUGEN, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, UNDER NO CIRCUMSTANCES AND UNDER NO LEGAL THEORY, TORT, CONTRACT, OR OTHERWISE, SHALL REPUGEN OR ANY OF ITS UNDERLYING SERVICE PROVIDERS, BUSINESS PARTNERS, THIRD PARTY SUPPLIERS AND PROVIDERS AND MEMBERS OF OUR NETWORK, ACCOUNT PROVIDERS, LICENSORS, OFFICERS, DIRECTORS, EMPLOYEES, DISTRIBUTORS OR AGENTS (COLLECTIVELY REFERRED TO FOR PURPOSES OF THIS SECTION AS "REPUGEN") BE LIABLE TO YOU OR ANY OTHER PERSON FOR ANY MONEY DAMAGES, WHETHER DIRECT, INDIRECT, SPECIAL, INCIDENTAL, COVER, RELIANCE OR CONSEQUENTIAL DAMAGES, EVEN IF REPUGEN SHALL HAVE BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGES, OR FOR ANY CLAIM BY ANY OTHER PARTY, AND REGARDLESS OF THE FORM OF ACTION (WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR OTHERWISE), THE MAXIMUM AGGREGATE LIABILITY OF REPUGEN TO YOU ARISING IN CONNECTION WITH THIS AGREEMENT SHALL BE LIMITED TO THE AMOUNT YOU PAID FOR THE APPLICABLE PRODUCT IN THE 12 MONTHS PRIOR TO THE ACCRUAL OF THE APPLICABLE CLAIM, LESS ANY DAMAGES PREVIOUSLY PAID BY REPUGEN TO YOU IN THAT 12 MONTH PERIOD. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THIS LIMITATION AND EXCLUSION MAY NOT APPLY TO YOU.

You agree that RepuGen has set its prices and entered into this Agreement in reliance upon the disclaimers of warranty and the limitations of liability set forth herein, that they reflect an allocation of risk between the parties (including the risk that a contract remedy may fail of its essential purpose and cause consequential loss), and that they form an essential basis of the bargain between the parties.


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12. TERM AND TERMINATION

12.1 Term of Agreement. This Agreement commences on the date You first accept it and continues until all subscriptions hereunder have expired or have been terminated.

12.2. Term of Purchased Subscriptions. Term of Subscriptions. The term of each subscription shall be as specified in the applicable Order Form. Except as otherwise specified in an Order Form, subscriptions will automatically renew for additional periods equal to the expiring subscription term or one year (whichever is shorter), unless either party gives the other notice of non-renewal at least 30 days before the end of the relevant subscription term. The per-unit pricing during any renewal term will increase by up to 7% above the applicable pricing in the prior term, unless We provide You notice of different pricing at least 60 days prior to the applicable renewal term. Except as expressly provided in the applicable Order Form, renewal of promotional or one-time priced subscriptions will be at Our applicable list price in effect at the time of the applicable renewal. Notwithstanding anything to the contrary, any renewal in which subscription volume for any Services has decreased from the prior term will result in re-pricing at renewal without regard to the prior term’s per-unit pricing.

12.3. Termination.

Termination.

You may terminate your RepuGen account at any time by calling RepuGen Customer Support. Except as specifically set forth herein or on the Site, there are no refunds for any fees paid. YOU ARE SOLELY RESPONSIBLE FOR TERMINATING YOUR REPUGEN ACCOUNT AND THIS AGREEMENT. WE ARE NOT RESPONSIBLE FOR YOUR FAILURE TO PROPERLY TERMINATE YOUR REPUGEN ACCOUNT AND THIS AGREEMENT OR FOR ANY CREDIT CARD OR OTHER CHARGES OR FEES YOU INCUR AS A RESULT OF YOUR FAILURE TO PROPERLY TERMINATE YOUR REPUGEN ACCOUNT AND THIS AGREEMENT.

We may, in our sole discretion, terminate your RepuGen account or your access to or use of the Site or the Products, disable your RepuGen account or access to the Site or the Products, remove all or a portion of your Customer Information or data, cancel or suspend any of your Campaigns, or put your RepuGen account on inactive status, in each case at any time, with or without cause, with or without notice and without refund. We shall have no liability to you or any third party because of such termination or action, except that we will refund a pro rata portion of any prepaid amounts if we terminate you without cause. After termination, you shall get the database of your customers from RepuGen on MS Excel spreadsheet.

If your RepuGen account is classified (at our sole discretion) as inactive for over 120 days, we have the right to permanently delete any of your Customer Information or data.

Upon termination of your RepuGen account by you or us, this Agreement and any rights or licenses granted to you hereunder, shall immediately terminate.

A party may also terminate this Agreement for cause (i) upon 30 days written notice to the other party of a material breach if such breach remains uncured at the expiration of such period, or (ii) if the other party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors.

12.4. Refund or Payment upon Termination. If this Agreement is terminated by You in accordance with Section

12.3 (Termination), We will refund You any prepaid fees covering the remainder of the term of all Order Forms after the effective date of termination. If this Agreement is terminated by Us in accordance with Section 12.3, You will pay any unpaid fees covering the remainder of the term of all Order Forms. In no event will termination relieve You of Your obligation to pay any fees payable to Us for the period prior to the effective date of termination.

12.5. Your Data Portability and Deletion. Upon request by You made within 30 days after the effective date of termination or expiration of this Agreement, We will make Your Data available to You for export or download as provided in the Documentation. After such 30-day period, We will have no obligation to maintain or provide any Your Data, and as provided in the Documentation will thereafter delete or destroy all copies of Your Data in Our systems or otherwise in Our possession or control, unless legally prohibited.

12.6. Surviving Provisions. The sections titled “Fees and Payment,” “Proprietary Rights and Licenses,” “Confidentiality,” “Disclaimers,” “Mutual Indemnification,” “Limitation of Liability,” “Refund or Payment upon Termination,” “Customer Data Portability and Deletion,” “Removal of Content and Non-REPUGEN Applications,” “Surviving Provisions” and “General Provisions” will survive any termination or expiration of this Agreement.

12.7 Disputes. Notwithstanding anything set forth herein to the contrary, any disputes about any charges to you under this Agreement must be submitted to us in writing within 60 days of the date such charges are incurred. You agree to waive all disputes not brought within the 60 day period, and all such charges will be final and not subject to challenge.

12.8 Username and Password.

You are responsible for maintaining the security of your RepuGen account, passwords and files (including the passwords and files that your Authorized Users, if any, have access to) and any Accounts. We will accept the instructions of any individual who claims to be authorized to direct changes to your RepuGen account so long as such person presents the Account Owner username and password or provides other appropriate account identifying information, as determined by us in our sole discretion, by email or by phone, or through a Third Party Service, if any, through which you access the Site or the Products. We have no knowledge of your organizational structure, if you are registering for the Products as an organization, or your personal relationships, if you are a person. You will be solely responsible and liable for any activity that occurs under your username and the activities of your Authorized Users, if any, and we shall not be responsible for the actions of any individuals who misuse or misappropriate your contact lists or other assets using your username and password or other appropriate account identifying information. You agree to notify us immediately of any unauthorized use of your RepuGen account or any other breach of security.


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13. Miscellaneous.

13.1. Full Force and Effect.

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.

13.2. Entire Agreement.

We and you agree that this Agreement is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements, communications and other understandings relating to the subject matter of this Agreement, and that all waivers and modifications must be in a writing signed by both parties, except as otherwise provided herein. No delay or omission by either party in exercising any right or remedy under this Agreement or existing at law or equity shall be considered a waiver of such right or remedy.

13.3. Assignment.

You may not assign any of your rights hereunder. We may assign all rights to any other individual or entity in our sole discretion.

13.4. Further Assurances.

You agree to execute any and all documents and take any other actions reasonably required to effectuate the purposes of this Agreement.

13.5. Third Party Beneficiaries.

RepuGen’s underlying service providers, business partners, third-party suppliers and providers, members of our Network, account providers, licensors, officers, directors, employees, distributors and agents are expressly made third party beneficiaries of this Agreement. Except as set forth in the immediately preceding sentence, nothing express or implied in this Agreement is intended to confer, nor shall anything herein confer, upon any person other than the parties and the respective permitted successors or assigns of the parties, any rights, remedies, obligations or liabilities whatsoever.

13.6. Titles.

The titles of the paragraphs of this Agreement are for convenience only and have no legal or contractual effect.

13.7. Attorney Fees.

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

19.9. Governing Law and Legal Actions.

This Agreement shall be governed by the laws of the state of California, USA and all claims relating to or arising out of this Agreement, or the breach thereof, whether sounding in contract, tort or otherwise, shall likewise be governed by the laws of the state of California, in each case, without regard to its choice or law or conflict of law’s provisions. All legal actions in connection with this Agreement shall be brought in the state or federal courts located in Los Angeles, California.


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Business Associate’s Agreement With a Covered Entity

THIS AGREEMENT GOVERNS YOUR ACQUISITION AND USE OF OUR SERVICES. IF YOU REGISTER FOR A FREE TRIAL FOR OUR SERVICES, THE APPLICABLE PROVISIONS OF THIS AGREEMENT WILL ALSO GOVERN THAT FREE TRIAL. BY ACCEPTING THIS AGREEMENT, EITHER BY CLICKING A BOX INDICATING YOUR ACCEPTANCE OR BY EXECUTING AN ORDER FORM THAT REFERENCES THIS AGREEMENT, YOU AGREE TO THE TERMS OF THIS AGREEMENT. IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY AND ITS AFFILIATES TO THESE TERMS AND CONDITIONS, IN WHICH CASE THE TERMS "YOU" OR "YOUR" SHALL REFER TO SUCH ENTITY AND ITS AFFILIATES. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH THESE TERMS AND CONDITIONS, YOU MUST NOT ACCEPT THIS AGREEMENT AND MAY NOT USE THE SERVICES. You may not access the Services if You are Our direct competitor, except with Our prior written consent. In addition, You may not access the Services for purposes of monitoring their availability, performance or functionality, or for any other benchmarking or competitive purposes. This Agreement was last updated on January 13, 2016. It is effective between You and Us as of the date of You accepting this Agreement.

You may not access the Services if You are Our direct competitor, except with Our prior written consent. In addition, You may not access the Services for purposes of monitoring their availability, performance or functionality, or for any other benchmarking or competitive purposes. This Agreement was last updated on January 13, 2016. It is effective between You and Us as of the date of You accepting this Agreement.

1. THE PARTIES

The Parties to this Agreement are:

1.A RepuGen, a DBA (doing business as) of Global Marketing Resources LLC (referred to in this Agreement as “Business Associate”). and

1.B You (referred to in this Agreement as “Covered Entity”). Business Associate and Covered Entity are sometimes referred to in this Agreement individually as a “Party” and collectively as the “Parties”.

2. HIPAA AND THE HIPAA RULES

2.A HIPAA

The Parties must comply with United States law governing privacy and security of Protected Health Information referred to in this Agreement as “HIPAA”.

2.B THE HIPAA RULES

The Parties must comply with Federal regulations authorized by HIPAA called the Privacy Rule, Security Rule, Breach Notification Rule and Enforcement Rule that is referred to collectively in this Agreement as “The HIPAA Rules”.

3. THIS AGREEMENT

This Agreement is a Business Associate Contract between the Parties in compliance with The HIPAA Rules to accomplish the following purposes:

3.A For Covered Entity to obtain satisfactory assurances from Business Associate that it will appropriately safeguard all Protected Health Information (PHI) including Electronic Protected Health Information (EPHI)that Covered Entity Discloses to Business Associate and that Business Associates creates, receives, maintains or transmits on behalf of Covered Entity,

3.B To document the satisfactory assurances described Sub-section 3.A in writing;

3.C To establish the permitted and required Uses and Disclosures of PHI including EPHI by Business Associate; and

3.D To confirm and document the exchange and receipt of mutual promises made by the Parties that during the Term of this Agreement each Party will perform its obligations in compliance with HIPAA and The HIPAA Rules and establish and document the performance required of each Party by this Agreement.


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4. DEFINED TERMS USED IN THIS AGREEMENT

The following terms are defined in The HIPAA Rules and are capitalized for clarity and ready reference in this Agreement. Any change to HIPAA or The HIPAA Rules modifying a defined term or the citation of a defined term in this Agreement shall be deemed incorporated into this Agreement on the effective date of such change.

4.A “Access of Individuals to Protected Health Information” shall mean the procedures described in 45 CFR §164.524 of The HIPAA Rules and is referred to in this Agreement as “Access of an Individual to PHI.”

4.B “Accounting of Disclosures of Protected Health Information” shall mean the procedures described in 45 CFR §164.528 of The HIPAA Rules and is referred to in this Agreement as “Accounting of Disclosures of PHI.”

4.C “Amendment of Protected Health Information” shall mean the procedure described in 45 CFR §164.526 of The HIPAA Rules and is referred to in this Agreement as “Amendment of PHI.”

4.D “Availability” shall have the same meaning as the term “availability” defined in 45 CFR §164.304 of The HIPAA Rules.

4.E “Breach” means the acquisition, access, use, or disclosure of Protected Health Information in a manner not permitted under the Privacy Rule which compromises the security or privacy of the Protected Health Information as defined in 45 CFR §164.402 of The HIPAA Rules.

4.F “Breach Notification Rule” shall mean the regulations set forth in The HIPAA Rules at 45 CFR § 164.400-414.

4.G “Business Associate” shall have the same meaning as the term “business associate” defined in 45 CFR §160.1-3 of The HIPAA Rules. Business Associate identified in this Agreement as a Party is a “business associate” as defined by the HIPAA Rules.

4.H “Business Associate Contract” shall mean written contract required by The HIPAA Rules and described at 45 CFR §§ 164.308(b), 164.314(a), 164.502(e) and 164.504(e). Business Associate Contracts are often referred to as Business Associate Agreements. This Agreement is a Business Associate Contract as defined by The HIPAA Rules.

4.I “Confidentiality” shall have the same meaning as the term “confidentiality” defined in 45 CFR §164.304 of The HIPAA Rules.

4.J “Covered Entity” shall have the same meaning as the term “covered entity” defined in 45 CFR §160.103 of The HIPAA Rules. Covered Entity identified in this Agreement as a Party is a “covered entity” as defined by The HIPAA Rules.

4.K “Data Aggregation” shall have the same meaning as the term “data aggregation” defined in 45 CFR §164.501 of The HIPAA Rules.

4.L “Date of Discovery” means the first day on which a Breach is known or, by exercising Reasonable Diligence would have been known to any person, other than the person committing the breach, who is a workforce member or agent of the Covered Entity or Business Associate as defined by 45 CFR §164.404(a)(2) and 45 CFR §164.410(a)(2) of The HIPAA Rules.

4.M “Designated Record Set” shall have the same meaning as the term “designated record set” defined in 45 CFR §164.501 of The HIPAA Rules.

4.N “Disclosure” shall have the same meaning as the term “disclosure” defined in 45 CFR §160.103 of The HIPAA Rules and Disclose means to make a Disclosure.

4.O “Electronic Protected Health Information” shall have the same meaning as the term “electronic protected health information” defined in 45 CFR § 160.103 of The HIPAA Rules. Electronic Protected Health Information is referred to in this Agreement as “EPHI”. All EPHI is also “Protected Health Information” (PHI) – see definition in Sub-section 4.W.

4.P “Enforcement Rule” shall mean the regulations set forth in The HIPAA Rules at 45 CFR Part 160, Subparts C, D, and E.

4.Q “Individual” shall have the same meaning as the term “individual” defined in 45 CFR §160.103 of The HIPAA Rules.

4.R “Integrity” shall have the same meaning as the term “integrity” defined in 45 CFR §164.304 of The HIPAA Rules.

4.S “Marketing” shall have the same meaning as the term “marketing” defined in 45 CFR §164.501 of The HIPAA Rules.

4.T “Minimum Necessary” shall have the same meaning as “minimum necessary” defined in 45 CFR §164.502(b) and 45 CFR §164.514(d) of The HIPAA Rules.

4.U “Organized Health Care Arrangement” shall have the same meaning as “organized health care arrangement” as defined in 45 CFR §160.103.501 of The HIPAA Rules.

4.V “Privacy Rules” shall mean the regulations set forth in The HIPAA Rules at 45 CRF Part 160 and Subparts A and E of Part 164.

4.W “Protected Health Information” shall have the same meaning as the term “protected health information” defined in 45 CFR §160.103 of The HIPAA Rules. Protected Health Information is referred to in this Agreement as “PHI”.

4.X “Reasonable Diligence” in the Breach Notification Rule defines the Date of Discovery of a Breach as the date a Covered Entity or Business Associate would have discovered the Breach if they had used “Reasonable Diligence”. Whether a Covered Entity or Business Associate used Reasonable Diligence to discover a Breach depends on circumstances like, for example, whether it has procedures and training to detect Breaches or promptly investigated an indication a Breach may have occurred.

4.Y “Required by Law” shall have the same meaning as the term “required by law” defined in 45 CFR §164.103 of The HIPAA Rules.

4.Z “Restriction” shall mean a restriction of Uses and Disclosures of Protected Health Information in accordance with 45 CFR §164.522(a), a restriction to accommodate an Individual’s request for confidential communications in accordance with 45 CFR §164.522(b) or a restriction of unencrypted electronic transmission of an Individual’s PHI to the Individual in accordance with The HIPAA Rules explained at 78 FR 5634, Jan. 25, 2013 and 79 FR 7302, Feb. 6, 2014.


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4.AA “Sale of Protected Health Information” shall have the same meaning as the term “sale of protected health information” defined in 45 CFR §164.502(a)(5)(ii)(b) of The HIPAA Rules. Sale of Protected Health Information sometimes is referred to in this Agreement as “Sale of PHI.”

4.BB “Secretary” shall mean the Secretary of U.S. Department of Health and Human Services (HHS) or any other officer or employee of HHS to whom the authority involved has been delegated as defined in 45 CFR § 160.103 of The HIPAA Rules.

4.CC “Security Incident” shall have the same meaning as the term “security incident” defined in 45 CFR § 164.304 of The HIPAA Rules.

4.DD “Security Rule” shall mean the regulations set forth in The HIPAA Rules at 45 CFR Part 160 and Subparts A and C of Part 164.

4.EE “State Law” shall have the same meaning as the term “state law” defined in 45 CFR §164.202 of The HIPAA Rules.

4.FF “Subcontractor” means a Business Associate that creates, receives, maintains, or transmits Protected Health Information on behalf of a Business Associate as defined in 45 CFR § 160.103 of The HIPAA Rules and are referred to in this Agreement as “Subcontractor Business Associates”.

4.GG “Unsecured Protected Health Information” shall have the same meaning as the term “unsecured protected health information” defined in 45 CFR §164.402 of The HIPAA Rules and means Protected Health Information that is not rendered unusable, unreadable, or indecipherable to unauthorized persons through the use of a technology or methodology specified by the Secretary in guidance issued under HIPAA (section 13402(h)(2) of Public Law 111-5). Unsecured Protected Health Information is referred to in this Agreement as “Unsecured PHI.”

4.HH “Use” shall have the same meaning as the term “use” defined in 45 CFR§160.103 of The HIPAA Rules.

5. THE SPECIFIC PROTECTED HEALTH INFORMATION (PHI) AND ELECTRONIC PROTECTED HEALTH INFORMATION (EPHI) THAT ARE THE SUBJECT OF THIS AGREEMENT

In this Agreement the defined terms Protected Health Information – PHI and Electronic Protected Health Information – EPHI refer exclusively and only to:

5.A PHI and EPHI Business Associate creates, receives, maintains or transmits on behalf of Covered Entity to perform a function or activity regulated by The HIPAA Rules;

5.B PHI and EPHI Disclosed to Business Associate by or on behalf of Covered Entity so that Business Associate may provide legal, actuarial, accounting, consulting, Data Aggregation, management, administrative, accreditation, or financial services to or for Covered Entity

5.C PHI and EPHI that a Subcontractor Business Associate creates, receives, maintains, or transmits on behalf of Business Associate related to a function or activity described in Sub-section 5.A or provision of a service described in Sub-section 5.B.

6. UNDERLYING BUSINESS AGREEMENT

Business Associate and Covered Entity have a business relationship established by one or more written or oral contracts or agreements made before, on or after the Effective Date involving Use, Disclosure, creation, receipt, maintenance or transmission of PHI and/or EPHI described in Section 5 that are referred to in this Agreement collectively as the “Underlying Business Agreement”.

6.A THE UNDERLYING BUSINESS AGREEMENT – HIPAA AND THE HIPAA RULES

The Underlying Business Agreement requires Business Associate to perform a function or activity or provide a service involving the PHI and/or EPHI described in Section 5 that is subject to compliance with HIPAA and The HIPAA Rules. Accordingly, the Business Associate and Covered Entity must enter into a Business Associate Contract.

6.B EFFECT OF THIS AGREEMENT – CONSIDERATION

This Agreement is a Business Associate Contract. The Parties agree that the terms, conditions, promises, and performance described in this Agreement are required by HIPAA and The HIPAA Rules to perform their respective obligations established by the Underlying Business Agreement. Accordingly, the mutual promises and obligations of the Parties set forth in this Agreement are good, valuable, sufficient and mutual consideration given, received, and accepted by each Party for this Agreement and elements of the good, valuable, sufficient and mutual consideration given, received, and accepted by each Party for the Underlying Business Agreement that permits the Parties to continue their established business relationship or establish a new business relationship.

6.C THIS AGREEMENT INCORPORATED IN UNDERLYING BUSINESS AGREEMENT

The Parties agree that this Agreement is incorporated by reference in the Underlying Business Agreement and by the execution of this Agreement, do hereby amend the Underlying Business Agreement to include this Agreement. This Agreement supersedes and renders null and void any provision in the Underlying Business Agreement, whether made before or after the Effective Date, that conflicts with HIPAA or The HIPAA Rules.


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7. OBLIGATIONS OF BUSINESS ASSOCIATE UNDER THIS AGREEMENT

7.A Business Associate shall not Use or further Disclose PHI other than as permitted or required by this Agreement, the Underlying Business Agreement or as Required by Law.

7.B Business Associate shall appropriately safeguard all PHI including EPHI that Covered Entity Discloses to Business Associate and that Business Associate creates, receives, maintains, or transmits on behalf of Covered Entity.

7.C Business Associate shall comply with the applicable requirements of the Security Rule during the Term of the Agreement and, if necessary, comply with the Security Rule and The HIPAA Rules that are applicable to fulfill any obligations that survive the Agreement’s termination in accordance with Section 12 and Sub-section 10.C of this Agreement.

7.D Business Associate shall enter into a written Business Associate Contract with any Subcontractor Business Associate to which it Discloses PHI including EPHI or that creates, receives, maintains, or transmits EPHI on its behalf by which it shall obtain satisfactory assurances that the Subcontractor Business Associate agrees to comply with the same restrictions and conditions that apply to Business Associate with respect to all PHI including EPHI, comply with applicable requirements of the Security Rule and appropriately safeguard all such PHI including EPHI.

7.E Business Associate shall not engage the services of a Subcontractor Business Associate, enter into a Business Associate Contract with a Subcontractor Business Associate described in Sub-section 7.D, Disclose PHI including EPHI or permit a Subcontractor Business Associate to create, receive, maintain, or transmit PHI and EPHI on its behalf unless the Subcontractor Business Associate is at all relevant times subject to the laws of the United States including the Secretary’s Enforcement of HIPAA and The HIPAA Rules and civil enforcement by Business Associate of the Business Associate Contract with a Subcontractor Business Associate.

7.F If Business Associate knows of a pattern of activity of practice of a Subcontractor Business Associate that constitutes a material breach or violation of the Subcontractor Business Associate’s obligations under the Business Associate Contract described in Sub-section 7.D, Business Associate shall take reasonable steps to cure the breach or end the violation, as applicable, and, if such steps are unsuccessful, terminate the Business Associate Contract with the Subcontractor Business Associate.

7.G Business Associate shall not make a Sale of PHI for which an authorization is required unless the Individual has duly authorized the Sale of PHI in accordance to 45 CFR § 164.508(a)(4) of The HIPAA Rules.

7.H Business Associate, when Using, Disclosing, or requesting PHI, shall make reasonable efforts to limit the PHI to the Minimum Necessary to accomplish the intended purpose of the Use, Disclosure, or request.

7.I Business Associate shall comply with applicable requirements of the Breach Notification Rule and shall notify Covered Entity of any Breach of Unsecured PHI it discovers not later than ten (10) business days after Business Associate's Date of Discovery of the Breach of Unsecured PHI.

7.J Business Associate shall report to Covered Entity any Use or Disclosure of information not provided for by this Agreement or the Underlying Business Agreement of which it becomes aware not later than ten (10) business days after it becomes aware of such Use or Disclosure.

7.K Business Associate shall report any Security Incident of which it becomes aware to Covered Entity not later than thirty (30) calendar days after it becomes aware of such Security Incident.vThe Parties agree that this Sub-section 7.K constitutes ongoing notice by Business Associate to Covered Entity of “unsuccessful” Security Incidents that do not represent substantial risks to PHI, such as Pings and other broadcast attacks on Business Associate’s firewall, port scans, unsuccessful log-on attempts, denial of service and any combination of the above and no additional notice to Covered Entity shall be required provided that no such unsuccessful Security Incident results in Unauthorized Acquisition, Access, Use, Disclosure, Modification or destruction of EPHI or interference with Business Associate's Information System operations related to EPHI.

7.L If Business Associate maintains PHI of an Individual in a Designated Record Set, Business Associate shall make the PHI available to Covered Entity within five (5) business days after receiving a request for the PHI from Covered Entity as provided in Sub-section 9.B in order for Covered Entity to satisfy Covered Entity’s obligations regarding Access of an Individual to PHI in accordance with 45 CFR § 164.524 of The HIPAA Rules.

7.M If Business Associate maintains PHI of an Individual in a Designated Record Set, Business Associate shall make the PHI available to Covered Entity within five (5) business days after receiving notice from Covered Entity as provided in Sub-section 9.C. that the PHI is subject to an Individual's request for Amendment in accordance with 45 CFR § 164.526 of The HIPAA Rules. Covered Entity shall be solely responsible for determining the appropriate response to a request for Amendment and Business Associate shall incorporate any such amendments in the Individual's Designated Record Set maintained by Business Associate

7.N Business Associate will maintain and make available to Covered Entity the information required to provide an Accounting of Disclosures of PHI in accordance with 45 CFR § 164.528 of The HIPAA Rules within five (5) business days of receipt of the notice requesting such information from Covered Entity as provided in Sub-section 9.D.

7.O Business Associate, to the extent it is required to carry out an obligation of Covered Entity under the Privacy Rule, shall comply with the requirements of the Privacy Rule that apply to Covered Entity in the performance of the obligation.

7.P Business Associate, if required by the Underlying Business Agreement to make Uses or Disclosures of PHI subject to Restrictions, shall comply with each such Restriction immediately upon receipt of notification of the Restriction from Covered Entity as provided in Sub-section 9.E and shall comply with the Restriction during the Term of this Agreement or until Covered Entity notifies Business Associate that the Restriction has been terminated.

7.Q Business Associate will Disclose PHI to the Secretary in accordance with 45 CFR § 164.502(a)(4)(i) of The HIPAA Rules when required by the Secretary under the Enforcement Rule to investigate or determine Business Associate’s compliance with The HIPAA Rules.

7.R Business Associate will make its internal practices, books and records relating to the Use and Disclosure of PHI received from Covered Entity, or created or received by Business Associate on behalf of Covered Entity, or created or received by Business Associate on behalf of Covered Entity, available to the Secretary in accordance with 45 CFR § 164.504(e)(2)(ii)(I) of The HIPAA Rules for purposes of determining Covered Entity’s compliance with The Privacy Rule.

8. PERMITTED USES AND DISCLOSURES OF PHI BY BUSINESS ASSOCIATE

8.A Business Associate may Use or Disclose PHI for its proper management and administration or carry out its legal responsibilities if the Disclosure is Required by Law or Business Associate obtains reasonable assurances from the person to whom the information is Disclosed that it will be held confidentially and used or further Disclosed only as Required by Law or for the purposes for which it was Disclosed to the person and that person notifies Business Associate of any instances of which it is aware in which the Confidentiality of the information has been Breached.

8.B Business Associate may provide Data Aggregation services if performance of such services is provided for in the Underlying Business Agreement.


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9. OBLIGATIONS OF COVERED ENTITY

9.A Covered Entity shall make reasonable efforts to limit any Use, Disclosure or request of PHI made to Business Associate to the Minimum Necessary to accomplish the intended purpose of the Use, Disclosure, or request.

9.B Covered Entity shall notify Business Associate in a timely manner in accordance with 45 CFR § 164.524 and 45 CFR § 164.502(a)(4)(ii) of The HIPAA Rules, so that Business Associate may make the PHI available to Covered Entity as necessary to satisfy Covered Entity's obligations regarding a request for Access of Individuals to PHI as provided in Sub-section 7.L.

9.C Covered Entity shall notify Business Associate in a timely manner in accordance with 45 CFR § 164.526 of The HIPAA Rules, as necessary, so Business Associate may make available PHI for Amendment of PHI and incorporate any Amendment of PHI in a Designated Record Set as provided in Sub-section 7.M.

9.D Covered Entity shall notify Business Associate in a timely manner in accordance with 45 CFR § 164.528 of The HIPAA Rules, as necessary, to enable Business Associate to fulfill any obligation regarding an Accounting of Disclosures of PHI as provided in Sub-section 7.N.

9.E Covered Entity shall notify Business Associate of any Restriction of the Use or Disclosure of an Individual's PHI that is applicable to Business Associate's performance of its obligations required by the Underlying Business Agreement when and if such Restriction becomes effective during the Term of this Agreement and shall notify Business Associate when and if such Restriction is terminated.

10. TERM AND TERMINATION

10.A TERM

The Term of this Agreement shall commence on the Effective Date and shall continue in full force and effect until such time as the Parties terminate the business relationship referred to in Sub-section 5.A or terminate this Agreement pursuant to a provision of this Section 10, provided, however, that any termination is subject to the provisions of Sub-section 10.C and Section 12 concerning the survival of certain obligations and provisions of this Agreement.

10.B TERMINATION

The Parties may terminate this Agreement by mutual consent in writing executed by the Parties and on terms that are agreeable to the Parties provided the Agreement is no longer required under HIPAA or The HIPAA Rules.

10.B.1 If Business Associate knows of a pattern of activity or practice of Covered Entity that constitutes a material breach or violation of Covered Entity’s obligations under this Agreement, Business Associate shall take reasonable steps to cure the breach or end the violation, as applicable. If such steps are unsuccessful, Business Associate, if feasible, shall terminate this Agreement and the Underlying Business Agreement with Covered Entity by providing notice in accordance with Section 13.

10.B.2 Either Party, upon learning or having reasonable cause to believe that the other Party has committed a material breach or violation of this Agreement, shall give written notice to the other Party describing the material breach or violation and granting the other Party a period of thirty (30) days to cure the material breach or violation or submit proof that it has not committed such material breach or violation. If such material breach or violation was committed and is not cured within thirty (30) days, this Agreement and the Underlying Business Agreement shall be terminated by written notice to the Party that committed the material breach or violation, provided, however, that if substantial cure is in progress the Parties may extend the period to cure the material breach or violation by mutual agreement in writing by providing notice in accordance with Section 13.

10.B.3Business Associate may terminate this Agreement and the Underlying Business Agreement immediately if Covered Entity is determined to have violated HIPAA or The HIPAA Rules in any administrative, judicial or other legal proceeding regardless of whether the violation involves this Agreement or the Underlying Business Agreement by giving written notice to Covered Entity.

10.B.4 If either Party believes in good faith that any provision of this Agreement fails to comply with modifications or administrative or judicial interpretations of HIPAA or The HIPAA Rules, such Party shall give written notice to the other Party stating its specific concerns. For a period of thirty (30) days following provision of notice, the Parties shall address in good faith such concerns and amend this Agreement, if necessary. If, after such thirty-day period, a Party believes in good faith that the Agreement fails to comply with HIPAA or The HIPAA Rules, that Party has the right to terminate this Agreement and the Underlying Business Agreement by written notice to the other Party.

10.C EFFECT OF TERMINATION

When this Agreement is terminated, if feasible, Business Associate shall return to Covered Entity or destroy all PHI (including EPHI) received from, or created or received by Business Associate on behalf of, Covered Entity that Business Associate still maintains in any form and retain no copies of such PHI or, if such return or destruction is not feasible, extend the protections of this Agreement to PHI and EPHI and limit further Uses and Disclosures to those purposes that make the return or destruction of the information infeasible. When it becomes feasible, Business Associate shall return to Covered Entity or, if agreed to by Covered Entity, destroy PHI and EPHI retained by Business Associate. Business Associate’s obligations under this Agreement regarding PHI and EPHI that is not returned or destroyed at termination of this Agreement shall remain in full force and effect and survive termination of this Agreement in accordance with Section 12 and Sub-section 7.C.


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11. SEVERABILITY CLAUSE

If an Arbitrator or Court of competent jurisdiction shall declare any provision of this Agreement to be invalid, illegal or unenforceable, that provision shall be severed from this Agreement and all the remaining provisions of this Agreement shall continue in full force and effect. The invalidity, illegality or unenforceability of any term of this Agreement shall not affect the validity, legality or enforceability of the remaining terms of this Agreement. However, if permitted by applicable law, any invalid, illegal or unenforceable provision may be considered in determining the intent of the Parties with respect to other provisions of this Agreement.

12. SURVIVAL OF COVENANTS

Any provision in this Agreement that is specifically stated to survive the termination of this Agreement and any provision which, by its terms, cannot be performed prior to the termination of this Agreement or which, by its terms, continues beyond the Term of this Agreement shall be deemed to survive the termination of this Agreement and shall be enforceable by the Parties including but not limited to Business Associate’s obligation to extend all protections described in this Agreement to PHI and EPHI that is not returned or destroyed upon termination in accordance with Sub-section 10.C.

13. NOTICE

Any notice or other communication required or permitted under this Agreement shall be in writing and shall be deemed sufficiently given to a Party if (a) delivered personally; (b) sent by certified U.S. Mail, return receipt requested; or (c) sent by a national overnight delivery service (such as Federal Express or UPS with delivery verification) addressed to the Party at the address of its principal place of business set forth in this Agreement or to such other address furnished by written notice to the other Party by means of the procedures set forth in this Section.

14. ASSIGNABILITY

No Party may assign its respective rights and obligations under this Agreement without the prior written consent of the other Party and such consent shall not be withheld unreasonably.

15. ENTIRE BUSINESS ASSOCIATE AGREEMENT – AMENDMENT MUST BE IN WRITING

This is the entire Business Associate Agreement between the Parties. This Agreement shall not be altered, amended or modified except in writing executed by the Parties.

15.A Amendments to the Underlying Business Agreement or the making of an Underlying Business Agreement between the Parties after the Effective Date shall not be construed as an amendment of this Agreement.

15.B The Parties agree to take such action as is necessary to amend this Agreement to the extent necessary to allow either Party to comply with HIPAA and The HIPAA Rules during the Term of this Agreement.

15.C Regardless of whether this Agreement is amended in writing to conform to an amendment of HIPAA or The HIPAA Rules it shall be construed to comply with HIPAA, The HIPAA Rules and applicable State Law in accordance with Sub-sections 20.A and 20.B.

16. WAIVER

Failure of either Party at any time to require strict performance of any provision of this Agreement shall not be considered to be an implied waiver of any breach, or of any succeeding breach, of such provision or an implied waiver of any right of the Party to take any action or obtain any relief permitted under this Agreement. A waiver of any right, duty or obligation established by this Agreement must be an express written waiver executed by the Party making the waiver.


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17. FORCE MAJEURE – SECURITY RULE EXCEPTION

17.A FORCE MAJEURE

If either Party is delayed or prevented from fulfilling its obligations under this Agreement by Force Majeure, the Party shall not be liable under this Agreement for the delay or failure. Force Majeure means any cause beyond the reasonable control of a Party, including but not limited to acts of God, civil or military disruption, terrorism, fire, strike, flood, riot, war, or inability, due to the aforementioned causes, to obtain necessary labor, materials or facilities.

17.B HIPAA SECURITY RULE EXCEPTION TO FORCE MAJEURE

The provisions of Sub-section 17.A concerning Force Majeure shall not relieve either Party of its responsibility under the Security Rule to implement security measures sufficient to reduce risks and vulnerabilities to a reasonable and appropriate level to ensure the Confidentiality, Integrity and Availability of all EPHI the Party creates, receives, maintains, or transmits; protect against any reasonably anticipated threats or hazards to the security or Integrity of such information and protect against any reasonably anticipated Uses or Disclosures of such information that are not permitted or required under Privacy Rule.

18. RELATIONSHIP BETWEEN THE PARTIES

The Parties to this Agreement are independent contractors.

18.A This Agreement does not create a joint venture, partnership, merger, and employer – employee relationship or Organized Health Care Arrangement between the Parties nor does it make either Party an agent of the other.

18.B Nothing in this Agreement is intended to confer on either Party the authority or right to control the conduct of the other Party in complying with this Agreement.

18.C No provision of this Agreement is intended to create, nor may be deemed to create, any relationship between the Parties other than that of independent parties contracting with each other for the purpose of complying with HIPAA and The HIPAA Rules.

19. EXECUTION AND COUNTERPARTS, COUNTERPARTS AND FACSIMILE DELIVERY

The Parties may execute this Agreement in any number of counterparts, and each counterpart shall, for all purposes, be deemed an original instrument. All such counterparts together shall constitute but one and the same Agreement. The Parties may sign and deliver this Agreement by facsimile or electronic transmission and may execute this Agreement in compliance with applicable e-signature law. At the request of either Party, the Parties shall also provide signed counterparts to each other.

20. MISCELLANEOUS

20.A COMPLIANCE WITH HIPAA AND THE HIPAA RULES

Any ambiguity in this Agreement shall be construed and resolved to permit the Parties to comply with HIPAA and The HIPAA Rules.

20.B STATE LAW

In accordance with 45 CFR § 160.203 of The HIPAA Rules, the Parties shall comply with applicable State Law that is not preempted by The HIPAA Rules.

20.C GOVERNING LAW

This Agreement and the rights and obligations of the Parties shall be governed and construed by HIPAA, The HIPAA Rules and the law of the State of California.

20.D VENUE

Any dispute relating to this Agreement shall be resolved by alternative dispute resolution or in a state or federal court located in California and Covered Entity consents to such venue.

20.E SUCCESSORS AND ASSIGNS

This Agreement is binding upon all successors and assigns of the Parties.

20.F NO THIRD PARTY BENEFICIARY

Nothing in this Agreement, whether expressed or implied, shall be considered or construed to confer any rights, remedies, obligations, or liabilities or to impose any obligation whatsoever on any person other than the Parties and the respective successors or assigns of the Parties.

20.G CAPTIONS

Each Section and Sub-section in this Agreement is identified by a caption for convenience only. No caption is substantive or may be used to construe the meaning of any Section, Sub-section or provision of this Agreement.

20.H EQUITABLE RELIEF

The Parties recognize that a breach of this Agreement by one Party may result in irreparable or immediate harm to the other Party. Accordingly, either Party shall have the right to seek equitable relief to enjoin, restrain, redress, mitigate or prevent irreparable harm in a court of competent jurisdiction to enforce the terms of this Agreement while reserving its rights to pursue all other available remedies from the other Party under this Agreement or the Underlying Business Agreement. In the event a Party seeks equitable relief from a court of competent jurisdiction under this section, the prevailing Party shall be entitled to receive its costs from the other Party including actual attorneys’ fees that are reasonably incurred.


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