User Agreement

Date of Last Revision: June 22, 2012. 

Please read this Terms and Conditions agreement (the “Agreement”) carefully.  By accessing or browsing this website, or accessing or registering for any course on this website, contstitues your agreement to be bound by this Agreement.  

This Agreement is between you (“you”, “your”, “Client”), the user of the Services, and Concussion Health (“CH”, “we”, “us”, “Company”) concerning your use of the website and controlled by us from which you are accessing this Agreement (together with any successor site(s), and all Site Services and Site Content, the “Site”).  The user of the Services and CH are referred to collectively as the “Parties,” and singularly as a “Party”.  This website and the courses are operated and maintained by CH and its vendors and licensees.  The word “Services” refers to this website and any courses offered through the website.  The words “Promo Code” for “Password” refers to an alphanumeric code which may be required in order to register for and access Courses.  The term “Use”

1.  Software Services

1.1  Schedule “A”.  Company shall make available to Client services (“Software Services” and/or “Services”) relating to those specific modules of its product (the “Product”) as are described on Schedule “A” to this Agreement on the terms and conditions of this Agreement, and on the price, delivery dates and specifications described on Schedule “A”.  The Product is hosted by Company and the Software Services may include software licensed by Company from third parties. 

1.2  Changes to Software Services.  In the event Client wishes to add additional modules of the Product or request enhancements to the Product, the Parties will agree on revised terms, which will be reflected in a new Schedule “A”, which shall be given a separate designation (e.g., Schedule  “A-1”) and executed and attached to this Agreement. 

2.  Access, Use Ownership of Intellectual Property

2.1.  Product and Client Enhancements. 

2.1.1  Product.  “Product” will consist of a subscription-access internet web-based with a custom user interface designed to educate medical providers on best practices on concussion management.  The Product includes modules designed for clinical assessment, rehabilitation and enhancement applications; continuing education; health care provider question-and-answer capabilities; community forums; marketing, and community outreach. 

2.1.2  Enhancements, Adaptations and Modifications.  Any enhancements, adapters, or modifications requested by Client shall be described in Schedule “A”, together with the price thereof. 

2.2  Right to Access Product

2.2.1  Right to Access.  Subject to the terms of this Agreement and Schedule “A”, Company grants user a limited, non-transferable, non-exclusive right to access and use the Product and certain third-party software licensed to Company via a Web browser and related documentation as described on Schedule “A”. The Product is made available to Client as a hosted service.  Company will host and retain physical control over the Product and make such computer programs and code available only through the Internet for access, use and operation through a Web browser (e.g., Internet Explorer, Mozilla Firefox and/or Google Chrome). No provision under this Agreement shall obligate Company to deliver or otherwise make available any copies of computer programs or code from the Product, whether in object code or source code form.

2.2.2  User subscriptions. Unless otherwise specified in Schedule “A”, (i) Software Services are purchased as User subscriptions and may be accessed by no more than the specified number of Users, who shall be persons designated by Client on an individual basis (“User(s)”), who shall each have completed and passed online minimum-proficiency testing.  All such additional User subscriptions shall terminate on the same date as the pre-existing subscriptions.  User subscriptions are for designated Users and cannot be shared or used by more than one User. 

2.2.3  License Restrictions.  Except as may be expressly provided elsewhere in this Agreement or except to the extent applicable law precludes such activities from being prohibited by contract, Client shall not, directly or indirectly, reverse engineer, decompile, disassemble or otherwise attempt to discover the source code or underlying ideas or algorithms of the Product; modify, translate, or create derivative works based on the Product or authorize any third Party to do so; rent, lease, distribute, sell, resell, assign, or otherwise transfer rights to the Product; use the Product for timesharing or service bureau purposes or otherwise for the benefit of a third Party; obfuscate, remove or alter any of the logos, trademarks, internet links, patent or copyright notices, confidentiality or proprietary legends or other notices or markings that are on or in the Product or the related documentation; or send or store material containing software viruses, worms, Trojan horses or other harmful computer code, files, scripts, agents or programs.    

2.2.4  Ownership.  Client retains all right, title and interest in and to any and all information provided, inputted or uploaded to the Product by Client, or by Company on Client’s behalf.  Company shall retain all right, title and interest in and to the Product, Software Services, the documentation for the Product, and all adaptations, modifications and/or enhancements to the Product, regardless of the source of inspiration for any such enhancement or modification and regardless of whether Client has paid for or provided input regarding such modifications and/or enhancements.  Client acknowledges that Company will retain all right, title and interest in and to (i) transactional and performance information related to use of the Product which Company may collect, use and disclose for its business purposes (including software use optimization and its own product marketing) and 
(ii) Company’s general know how, design tools, methodologies, research, processes, applications, third-Party software, third-Party fonts, or other means that may be used to conceive, design, assemble, manage or deliver the Software Services, and improvements or modifications to the foregoing.  Custom developed documents, designs, computer programs, computer documentation and other tangible materials authored or prepared for Client by Company (“Deliverables”) as required by Schedule “A” are hereby licensed, solely for Client’s internal use, for the term of this Agreement.  Company retains ownership and may reuse any Deliverables.

2.3.  Use Restrictions

2.3.1  Prohibited Uses.  Client may not use the Software Services for spamming, chain letters, junk mail or distribution lists to contact any person who has not given specific permission to be included in such list.  Client agrees not to transmit, or permit Client’s employees to transmit, through the Software Services any unlawful, harassing, libelous, abusive, threatening, vulgar, obscene or otherwise objectionable material of any kind. Client agrees to only use the Software Services for lawful purposes, in compliance with all applicable laws including, without limitations, copyright, trademark, anti-spamming, privacy, obscenity and defamation laws.  Unlawful activities may include (without limitation) storing, distributing or transmitting any unlawful material, attempting to compromise the security of any networked account or site, or making direct threats of physical harm.  Client further agrees not to use the Product and/or Software Services in such a way as to infringe, violate or impair the privacy rights of any third Party under the Health Insurance Portability and Accountability Act of 1996 (“HIPAA”) (29 U.S.C. § 1181, et seq.) and the Privacy Rule enacted pursuant thereto (45 C.F.R. Parts 160 and 164), as amended.

2.4  Uptime and Support

2.4.1  Downtime.  The Product will be accessible a minimum of ninety-five percent (95%) of the time, calculated on a monthly basis, except for any inaccessibility caused by circumstances beyond Company’s reasonable control, including without limitation, acts of God, acts of government, flood, fire, earthquakes, civil unrest, acts of terror, strikes or other labor problems (other than those involving Company employees), or Internet service provider failures or delays.  In addition, the Product may be unavailable during planned downtime (of which of which Company shall give at least 8 hours notice and which shall be scheduled to the extent practicable during the weekend hours from 6:00 p.m. Central time Friday to 3:00 a.m. Central time Monday).  In the event the Product is inaccessible for more than five percent (5%) of a given month, Client shall be entitled to a prorata credit toward its invoice payment obligation for that month.

2.4.2  Support.  Company will provide Client <st1:personname>support</st1:personname> during the hours of 9 A.M. to 5 P.M. Central time in accordance with Company’s then current <st1:personname>support</st1:personname> policy, which may be acquired from Client’s Company contact.  Support provided pursuant hereto will not require Company to provide upgrades, enhancements, or modifications, except that Client will receive all such upgrades, enhancements and modifications made available to all Clients using the Software Services.

2.4.3  Conditions.  Unless otherwise provided on Schedule “A”, Client <st1:personname>support</st1:personname> shall be subject to the following (i) User questions will be answered via e-mail or phone within 24 hours of submission during business hours; (ii) Company will address within 8 hours of submission bugs that impact mission critical features (access to the Product, ability to access records, notes, history, tasks and reports.   All non-mission critical bugs will be addressed and Company will make a diagnostic report back to Client within 24 hours of submission, excluding intervening Saturdays, Sundays and legal holidays; and (iii) Company will assume no <st1:personname>support</st1:personname> obligations for third Party applications included in or used with the Product, including but not limited to any hosting services, but will provide a telephone number to call for <st1:personname>support</st1:personname> of such third Party applications. 

2.5  Data Backup, Encryption, Passwords and Security

2.5.1  Data Backup.  Company shall use commercially reasonable efforts to protect Client’s data behind a secure firewall system, to conduct daily data backups, and to store weekly full-system backup in a separate, fire-safe facility.

2.5.2  Encryption.  Company will use 128 bit encryption for all communications to and from the Product. 

2.5.3  Passwords.  Client will choose or be given all applicable passwords to use in connection with the Software Services.  Client is responsible for maintaining the confidentiality of Client’s passwords and account (including, if applicable, the passwords and accounts of each User accessing the Software Services by means of an account established by Client).  Furthermore, Client is responsible for any and all activities that occur under Client’s account (including, if applicable, the accounts of each User accessing the Software Services by means of an account established by Client).  Each password may be used by one individual named person only.  Passwords may not be used concurrently or shared by more than one User.  Abrogation of this limitation on use of individual User passwords shall constitute a material breach of this Agreement.

2.5.4  Security.  Client shall not (i) make the Software Services available to anyone other than Users, (ii) interfere with or disrupt the integrity or performance of the Software Services or third-Party data contained therein, or (iii) attempt to gain unauthorized access to the Software Services or their related systems or networks.  Client shall notify Company immediately of any unauthorized use of its account (including, if applicable, the passwords and accounts of each User accessing the Software Services by means of an account established by Client) or any other breach of security.  Client shall use commercially reasonable efforts to prevent unauthorized access to or use of the Software Services.  Company will not be liable for any loss or damage arising from Client’s failure to comply with these requirements.

2.5.5  Client Responsibility. Client shall be responsible for (i) Users’ compliance with this Agreement and (ii) the accuracy, quality, integrity and legality of data submitted by Client and of the means by which Client acquired such data. 

2.6  Warranty

Company represents, warrants, and covenants that the Product will perform substantially in accordance with any instructions, manuals, or technical requirements documents that are generally provided by Company in connection with the Product.  In the event of a breach of the foregoing warranty, Company’s sole obligations, and Client’s sole remedy, shall be, at Company’s option, to use commercially reasonable efforts to correct the Product or replace the Product free-of-charge, provided, however, that if Company is unable to correct any substantial non-conformance within 60 days, Client may terminate the Agreement with respect to the Software Services.

3.  Additional General Provisions

3.1  Confidential Information.  By reason of the relationship hereunder, each Party will have access to certain information and materials concerning the other Party’s technology, business, plans, and customers that are confidential and of substantial value to such Party, which value would be impaired if such information were disclosed to third parties (“Confidential Information”).  Confidential Information of Company shall include, without limitation, information specifically designated as confidential, the features and functions of the Software Services that are not available to the general public via the public internet (including screen shots of the same), future product plans, any documentation or specifications provided to Client, the commercial terms (including pricing) of this Agreement but not the mere existence of this Agreement, any Schedules, statements of work, addenda or amendments to this Agreement, performance and security test results (whether conducted by Company or Client), and any other proprietary, financial or business information supplied to Client by Company.  Each Party agrees that it will not, and will ensure that its employees, agents and contractors do not, make use of (except in furtherance of the Agreement), disseminate, or in any way disclose any Confidential Information of the other Party to any person, firm or business, except for any purpose the disclosing Party may hereafter authorize in writing.  Each Party agrees that it will treat all Confidential Information with the same degree of care as it accords to its own Confidential Information, and each Party represents and warrants, without limitation, that it exercises at least reasonable care to protect its own Confidential Information.  Notwithstanding the foregoing, “Confidential Information” shall not include: (i) information previously known to the receiving Party without reference to Confidential Information, (ii) information which is or becomes publicly known through no act or omission of the receiving Party, (iii) information which has been independently developed by the receiving Party without reference to the disclosing Party’s Confidential Information, (iv) information received from a third Party under no confidentiality obligation with respect to the Confidential Information, (v) information required to be disclosed pursuant to civil process in a pending court action, administrative proceeding or arbitration arising out of this Agreement.  

3.2  Billing and Payment

3.2.1  Fees.  During the term of this Agreement, Client agrees to pay Company the fees associated with use of the Software Services reflected on the Schedule(s).  Except as otherwise provided in this Agreement or the Schedule(s), fees are non-refundable.    

3.2.2  Taxes.  All payments, fees and other charges payable by Client to Company under this Agreement are exclusive of all applicable federal, state, local and foreign taxes, levies and assessments.  Client shall be responsible for the payment of all such taxes, levies and assessments imposed on Client or Company as a result of this Agreement, except for tax(es) based on Company’s net income.  If Client is required by any applicable law to deduct or withhold amounts otherwise payable to Company hereunder, Client agrees to pay the amounts thereof to the applicable governmental authority and pay to Company, in addition to the payment to which Company is otherwise entitled under this Agreement, such additional amounts as are necessary to ensure that the net amount actually received by Company free and clear of all tax(es) equals the full amount Company would have received had no such deduction or withholding been required.

3.2.3  Invoices.  Company shall invoice Client for all amounts due hereunder.  If not otherwise specified in the Schedule, Client will make initial payment and yearly renewal payment, and invoices will be issued a month in advance of the renewal payment.  Alternatively, Client may set up automatic payment by credit card with the approval of Company.  Client agrees and hereby authorizes Company to use Client’s  credit card to pay Client’s financial obligations to Company under this Agreement on an ongoing basis, from time to time, without prior notice, until Company receives written notice that this authorization is permanently withdrawn or temporarily suspended, as applicable. 

3.2.4  Delinquencies.  All invoices shall be paid within 30 days of their date.  In the event that any payment is past due, or if a credit card company refuses for any reason to pay the amount billed to it and that amount remains unpaid thirty (30) days following the billing cycle, Client’s account is delinquent, and Company reserves the right to suspend Client’s access to the Software Services until such amounts are paid in full.  Client agrees that, in the case of a suspension of Software Services, Company may impose a charge to restore archived data from delinquent accounts.  Unpaid charges (except those charges under reasonable and good faith dispute, provided that any undisputed amount is paid) are subject to interest of 1.5% per month on any outstanding balance, or the maximum permitted by law, whichever is less, plus all expenses of collection, including reasonable and necessary attorney’s fees.

3.2.5  Adjustments.  To dispute an invoice, Client must notify Company in writing within thirty (30) days of the billing date on the first invoice in which an error exists or problem appears, in order to be eligible to receive an adjustment or credit.  Company shall in good faith investigate and promptly report the results of its investigation of all such notices of invoice disputes.  If Client does not timely provide notice of a dispute, the amount(s) of the invoice(s) shall be conclusively deemed accurate, due and payable.

3.3  Term and Termination

3.3.1 Term.  This Agreement will be in effect with respect to the Software Services for the period set forth in the Schedule(s), and will renew automatically upon the same terms and conditions, including fees set forth in the Schedule(s), for an additional period equal to the subscription period or one (1) year (whichever is shorter), unless Client or Company requests change or termination without renewal at least thirty (30) days prior to the expiration of the applicable term of this Agreement, as may be amended. 

3.3.2  Termination.  Client or Company may terminate this Agreement for cause: (i) upon thirty (30) days written notice of a material breach to the other Party if such breach remains uncured at the expiration of the thirty (30)-day 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.  Additionally, any Software Services account which is suspended for more than thirty (30) days due to delinquent payments may be terminated, without notice to Client and without any obligation on the part of Company to maintain, store or return any of Client’s data or information related to Client and/or or User(s)’s use of the Software Services. 

3.3.3  Effect of Termination on Software Services.  If Client terminates this Agreement for cause pursuant to this Section 3.3, Company shall refund to Client the prorated amount of the fees prepaid by Client that were to apply to the remainder of the unexpired term, as calculated from the termination date through the remainder of the unexpired term.  Upon termination of this Agreement for any reason, (i) the license to use the Software Services will terminate, and Client, and any User(s) having access to the Software Services by virtue of such Client’s account, if applicable, will immediately cease using the Product; and (ii) except where such termination is due to delinquent or fraudulent payment, or false or fraudulent submission of contact information, Client may request a copy of the most recent back-up of Client’s data.  Fees may apply to retrieve data from back-ups.  Company may, but is not obligated to, delete archived data, but will not do so until thirty (30) days after the termination of this Agreement.  Delinquent accounts must be brought to good standing in order to receive data.  In the event of a termination by Company for cause, Company shall have no obligation to refund any fees paid by Client, and Client shall pay any remaining fees and/or audit costs for the remainder of the subscription term.

3.3.4  Non-Exclusivity.  The termination of this Agreement for any breach by a Party shall not be deemed to be the exclusive remedy for any such breach, and, subject to any other provision of this Agreement limiting liability for a breach, shall not preclude the exercise of any other remedy permitted by law.

3.3.5  Survival.  Each provision of this Agreement reasonably intended by its terms to survive termination or expiration of this Agreement shall so survive.

3.4  Publicity

Client agrees that Company can disclose the fact that Client is a client of Company.  During the term of this Agreement, Client grants Company the right to reference Client, along with Client’s logo, on the customer section of Company’s public web site.

3.5  Disclaimer and Limitation of Liability

3.5.1  Disclaimer.  EXCEPT AS SPECIFICALLY PROVIDED IN THIS AGREEMENT, THE SOFTWARE SERVICES ARE PROVIDED "AS IS" WITHOUT WARRANTY OF ANY KIND, AND COMPANY DISCLAIMS ALL WARRANTIES, EITHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NONINFRINGEMENT.  EXCEPT AS PROVIDED IN THIS AGREEMENT, COMPANY DOES NOT REPRESENT OR WARRANT THAT THE SOFTWARE SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE.  ANY MATERIAL DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE SOFTWARE SERVICES IS DONE AT CLIENT’S RISK AND CLIENT WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO CLIENT’S COMPUTER SYSTEM OR NETWORK, OR LOSS OF DATA THAT RESULTS FROM CLIENT’S USE OF THE SOFTWARE SERVICES.  COMPANY IS NOT A HEALTH SERVICE PROVIDER, AS DEFINED IN HIPAA, WITH RESPECT TO PATIENTS IN CLIENT’S CARE, AND CLIENT IS SOLELY RESPONSIBLE FOR ESTABLISHING AND MAINTAINING THE PRIVACY OF ITS RECORDS AND INFORMATION CONCERNING ITS PATIENTS.  COMPANY DOES NOT RENDER MEDICAL ADVICE.  CLIENT’S USE OF THE SOFTWARE SERVICES AND/OR PRODUCT SHALL NOT BE CONSTRUED TO GIVE RISE TO ANY RESPONSIBILITY BY COMPANY FOR DECISIONS AFFECTING THE DIAGNOSIS AND/OR TREATMENT OF CLIENT’S PATIENTS, WHO SHOULD CONSULT WITH THEIR RESPECTIVE PHYSICIAN(S) WHEN MAKING HEALTH CARE DECISIONS.  THE SECURITY OF LOGON IDS FOR USER(S), AND THEIR RESECTIVE PASSWORD(S), ARE SOLELY THE RESPONSIBILITY OF CLIENT TO PRESERVE.

3.5.2  Limitation of Liability.  COMPANY’S TOTAL LIABILITY WITH RESPECT TO THE SUBJECT MATTER OF THIS AGREEMENT (INCLUDING, BUT NOT LIMITED TO, LIABILITY ARISING OUT OF CONTRACT, TORT, STRICT LIABILITY, BREACH OF WARRANTY OR OTHERWISE), WILL BE LIMITED TO THE FEES PAID BY CLIENT TO COMPANY FOR THE SOFTWARE SERVICES UNDER THIS AGREEMENT IN THE 12 MONTHS PRIOR TO THE ACT OF INJURY THAT GAVE RISE TO THE LIABILITY.  NEITHER PARTY SHALL BE LIABLE IN ANY EVENT FOR LOSS OR INACCURACY OF DATA, LOSS OF PROFITS OR REVENUE, OR INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES (INCLUDING, WITHOUT LIMITATION, THE COST OF ANY SUBSTITUTE PROCUREMENT), WHETHER OR NOT FORESEEABLE AND EVEN IF THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.  COMPANY SHALL NOT BE LIABLE UNDER HIPAA FOR THE UNAUTHORIZED RELEASE OF ANY PATIENT HEALTH INFORMATION, THE SOLE RESPONSIBILITY FOR THE PRESERVATION OF WHICH BELONGS TO CLIENT.

3.5.3  Exceptions.  The foregoing limitations of liability do not apply to fees owed by Client hereunder, or to indemnification for third Party claims described in Section 3.6 below.  

3.6  No Medical Advice, Etc.  Company is not a health service provider, as defined in HIPAA, with respect to patients in Client’s care, and Client is solely responsible for establishing and maintaining the privacy of its records and information concerning its patients.  Company does not render medical advice.  Client’s use of the Software Services and/or the Product shall not be construed to give rise to any responsibility by Company for decisions affecting the diagnosis and/or treatment of Client’s patients, who should consult with their respective physicians(s) when making health care decisions.  The security of logon IDs for Users and their respective passwords are solely the responsibility of Client to preserve. 

3.7  Indemnification

3.7.1  Company Indemnity.  Company shall, at its expense, defend or at its option, settle any claim, action or allegation brought against Client based on allegation(s) that the Software Services, the Product and/or any material or deliverable connected therewith infringes any valid copyright, patent, trade secret, or any other proprietary right of any third party, and shall pay any final judgments awarded or settlements entered into; provided that Client give immediate written notice to Company of any such claim, action or allegation of infringement and give Company the authority to proceed as contemplated herein.  Company will have the exclusive right to defend any such claim, action or allegation and make settlements thereof at its own discretion, and Client may not settle or compromise such claim, action or allegation, except with prior written consent of Company.  Client shall assist and provide information, evidence and testimony, including expert witness testimony, as Company may reasonably require in settling or opposing such claims.  In the event any infringement claim, action or allegation is brought or threatened relating to the Product, Company may, at its sole option and expense (i) procure for Client the right to continue use of the Product or infringing part thereof; or (ii) modify or amend the Product or infringing part thereof; or (iii) replace the Product or infringing part thereof with other software having substantially the same or better capabilities; or (iv) terminate this Agreement and refund to Client the prorated amount of the fees prepaid by Customer that were to apply to the remainder of the unexpired term, as calculated from the termination date through the remainder of the unexpired term.  The foregoing obligations will not apply to the extent the infringement arises as a result of (A) any use of the Product in a manner other than as specified in this Agreement; (B) any use of the Product in combination with other products, equipment, devices, software, systems or data not supplied by Company to the extent such claim is directed against such combination; or (C) any alteration, modification or customization of the Product made by any Party other than Company or Company’s authorized representative if such infringement would not have occurred without such modification or combination.  This Section 3.6 states the entire liability of Company with respect to infringement of any patent, copyright, trade secret or other intellectual property right.

3.7.2  Client Indemnity.  Client shall, at its expense, indemnify, defend and hold harmless Company for, or at Client’s option settle, any claim, action or allegation brought against Company or any of its affiliates or any of the officers, directors managers, employees or agents that arises out of (a) any data or other information supplied by Client to or through the Product and/or the Software Services; (b) any Client use, including by and through User(s), of the Product and/or the Software Services in violation of this Agreement, or in violation of applicable law; (c) any claim for personal injury to any patient of Client or other recipient of Client’s services relating to the Services or Product and/or (d) any infringement, violation or impairment of the privacy rights of any third Party under HIPAA.  Client shall pay any final judgments awarded or settlements entered into, provided that Company give prompt written notice to Client of any such claim, action or allegation of infringement and give Client the authority to proceed as contemplated herein.  Company shall assist and provide information as Client may reasonably require in settling or opposing such claims.

3.8  Miscellaneous

3.8.1  No Third Party Beneficiaries. This Agreement is between Company and Client, and is not for the benefit of any third party, whether directly or indirectly (including, if applicable, any User accessing the Software Services by means of an account established by Client).  

3.8.2  No Waiver.  The failure of either Party to exercise in any respect any right provided for herein will not be deemed a waiver of any further rights hereunder.  

3.8.3  Severability.  If any provision of this Agreement is held by a court of competent jurisdiction to be invalid or unenforceable, then such provision(s) shall be construed, as nearly as possible, to reflect the intentions of the invalid or unenforceable provision(s), with all other provisions remaining in full force and effect.  

3.8.4  No Assignment.  Client may not assign, transfer, or sublicense this Agreement except with Company's prior written consent.  

3.8.5  Governing Law; Jurisdiction and Venue.  This Agreement will be governed by and construed in accordance with the laws of the State of <st1:place>Texas</st1:place> without regard to the conflict of laws provisions thereof.  Exclusive personal jurisdiction over the Parties, and those acting through them, and venue shall exist respecting any dispute arising from this Agreement solely in the state and federal courts located in Austin, Travis County, Texas.  In no event shall this Agreement be governed by the United Nations Convention on Contracts for the International Sale of Goods.

3.8.6  Injunctions.  It is agreed that in the event of any breach by a Party of the confidentiality provisions set forth in Section 3.1, the disclosing Party would be irreparably and immediately harmed, and money damages would be inadequate as a remedy.  Accordingly, it is agreed that such disclosing Party shall be entitled to temporary, preliminary and/or permanent injunctive relief, including on an ex parte basis, specific performance and/or any other appropriate equitable remedy for any such breach or threatened breach, without necessity of posting bond.  Such remedies shall not be deemed to be the exclusive remedy for a breach of such provisions, but shall be in addition to all other remedies available to such disclosing Party at law or in equity.

3.8.7  Entire Agreement, No Oral Modification.  Both parties agree that this Agreement is the entire agreement between the Parties as to the subject matter of this Agreement, and that the provisions of this Agreement supersede and cancel all previous or contemporaneous written and oral agreements, communications and other understandings relating to the subject matter of this Agreement, and that all modifications must be in writing signed by both Parties, except as otherwise provided herein.  

3.8.8  No Agency, Etc.  Except as specifically provided herein, no agency, partnership, joint venture, or employment is created as a result of this Agreement and neither Party has any authority of any kind to bind the other Party in any respect whatsoever.  

3.8.9  Attorneys’ Fees.  In any action or proceeding to enforce this Agreement, the prevailing Party will be entitled to recover its reasonable and necessary attorneys' fees and costs of litigation.  

3.8.10  Execution in Counterparts.  This Agreement may be executed in one or more counterparts and may be exchanged by facsimile or electronically scanned copy, each of which shall for all purposes be deemed to be an original and all of which shall constitute the same instrument.

3.8.11  Warranties.  Each Party hereto represents and warrants that this Agreement has been duly executed and delivered, and that the performance by it under this agreement does not violate any other agreement of such Party.  

3.8.12  Notice.  All notices under this Agreement will be in writing and will be deemed to have been duly given when received, if personally delivered; when receipt is confirmed by the receiver, if transmitted by facsimile or e-mail; the day after it is sent, if sent for next day delivery by recognized overnight delivery service; and upon receipt, if sent by certified or registered mail, return receipt requested.  Notices shall be sent, as follows:

Schedule “A”

Software Services 

1.  Compensation and Payment Schedule. 

(a)   The Set-up and Implementation Fee of $981.00 is due on execution of Agreement ($).  The first payment is due on execution of this Agreement.

(b)   The annual renewal fee shall be $199.00.    The next payment is due on or before the first business day of the calendar year following the execution of this Agreement, and the remaining payments are due on or before the first business day of each succeeding calendar year.

2.  Additional Services.  Any additional services, including the fees associated therewith, will be agreed in writing.

3.  Term.  The initial term shall be one year from the effective date of the Agreement.

4.  Client Enhancements (Description and Fees).  None.

5.  Deliverables.  Login, Password, Customized Alt Fields and Reporting Set-Up.

6.  Special Provisions.  None.