PHARMASALESSUPPORT™
SAMPLE & PROMOTIONAL MATERIAL MANAGEMENT SOFTWARE
MASTER SUBSCRIPTION AGREEMENT

THIS PHARMASALESSUPPORT SAMPLE & PROMOTIONAL MATERIAL MANAGEMENT SOFTWARE MASTER SUBSCRIPTION AGREEMENT ("AGREEMENT") GOVERNS YOUR SUBSCRIPTION TO AND USE OF OUR SAMPLE & PROMOTIONAL MATERIAL MANAGEMENT SOFTWARE.

IF YOU REGISTERED FOR A FREE TRIAL OF OUR SAMPLE & PROMOTIONAL MATERIAL MANAGEMENT SOFTWARE, 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 SAMPLE & PROMOTIONAL MATERIAL MANAGEMENT SOFTWARE.

If You have entered into or enter into a master services or other agreement with Us for any non-Sample & Promotional Material Management Software, that master services or other agreement shall not apply to the Sample & Promotional Material Management Software, and Sample & Promotional Material Management Software shall not be considered a service or product or part of any service or product under such master services or other agreement, unless and only to the extent otherwise expressly agreed in writing by Us.

You may not access the Sample & Promotional Material Management Software if You are Our direct competitor, except with Our prior written consent. In addition, You may not access the Sample & Promotional Material Management Software for purposes of monitoring their availability, performance or functionality, or for any other benchmarking or competitive purposes. This Agreement was last updated on February 6, 2017. It is effective between You and Us as of the date You accept this Agreement.

  1. DEFINITIONS
  2. FREE TRIAL
  3. PURCHASED SAMPLE & PROMOTIONAL MATERIAL MANAGEMENT SOFTWARE
  4. USE OF THE SAMPLE & PROMOTIONAL MATERIAL MANAGEMENT SOFTWARE
  5. NON-HEALTH LOYALTY PROVIDERS
  6. FEES AND PAYMENT FOR PURCHASED SAMPLE & PROMOTIONAL MATERIAL MANAGEMENT SOFTWARE
  7. PROPRIETARY RIGHTS
  8. CONFIDENTIALITY
  9. 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. "Affiliate" means any entity which 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.

    "Malicious Code" means viruses, worms, time bombs, Trojan horses and other harmful or malicious code, files, scripts, agents or programs.

    "Sample & Promotional Material Management Software" means the products and services offered by Us under the name "PharmaSalesSupport", or successor branding, that You order under a free trial or an Order Form and We make available online via password-protected customer login, including associated offline components, as described in the User Documentation. "Sample & Promotional Material Management Software" exclude Non-Health Loyalty Applications.

    "Non-Health Loyalty Applications" means online applications and offline software products that are provided by entities or individuals other than Us and are clearly identified as such, and that interoperate with the Sample & Promotional Material Management Software.

    "Order Form" means the documents for placing orders for Sample & Promotional Material Management Software hereunder that are entered into between You and Us or any of Our Affiliates from time to time, including 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. Order Forms shall be deemed incorporated herein by reference.

    "Purchased Sample & Promotional Material Management Software" means Sample & Promotional Material Management Software that You or Your Affiliates purchase under an Order Form, as distinguished from those provided pursuant to a sponsored usage.

    "User Documentation" means Our training, help, how-to and explanatory materials that assist Users in using the Sample & Promotional Material Management Software, as such materials may be updated from time to time accessible via log-in to the Sample & Promotional Material Management Software or otherwise as made available by Us.

    "Users" means individuals who are authorized by You to use the Sample & Promotional Material Management Software, for whom subscriptions to a Loyalty Cloud Service have been ordered, and who have been supplied user identifications and passwords by You (or by Us at Your request). Users may include but are not limited to Your employees, consultants, contractors and agents, and third parties with which You transact business.

    "We," "Us" or "Our" means the Health Loyalty 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. If You are an agency purchasing Sample & Promotional Material Management Software on behalf of Your clients, the terms "You" or "Your" shall include such clients, provided that You shall be responsible for such clients' compliance with Your obligations under this Agreement, for any breach of those obligations by such clients, and for payment for Sample & Promotional Material Management Software purchases on behalf of such clients.

    "Your Data" means any electronic data or information submitted by You or for You to the Purchased Sample & Promotional Material Management Software, or is collected and processed by You or for You, using the Purchased Sample & Promotional Material Management Software.

  2. We may make Sample & Promotional Material Management Software available to You on a trial basis, including Beta Services, as described in section 9.4 below, (collectively "Trial Sample & Promotional Material Management Software") free of charge until the earlier of (a) the end of the free trial period for which you registered or are registering to use the applicable Trial Sample & Promotional Material Management Software or (b) the start date of any purchased Sample & Promotional Material Management Software ordered by You. Your obligations with regards to Your Data shall apply to data submitted to or collected through the Trial Sample & Promotional Material Management Software. Additional trial terms and conditions may appear on the trial registration web page or other trial registration document entered into by You. Any such additional terms and conditions are incorporated into this Agreement by reference and are legally binding.

    IF YOU ELECT TO USE THE SAMPLE & PROMOTIONAL MATERIAL MANAGEMENT SOFTWARE FOR THE TRIAL PERIOD AND DO NOT PURCHASE A SUBSCRIPTION BEFORE THE END OF THE TRIAL PERIOD, YOUR TRIAL SUBSCRIPTION FOR THE SAMPLE & PROMOTIONAL MATERIAL MANAGEMENT SOFTWARE WILL EXPIRE AT THE END OF THE SPONSORSHIP PERIOD AND SHALL NOT AUTO-RENEW. ANY DATA ENTERED INTO THE TRIAL SAMPLE & PROMOTIONAL MATERIAL MANAGEMENT SOFTWARE BY YOU OR RECEIVED BY YOU IN CONNECTION WITH YOUR USE OF THE TRIAL SAMPLE & PROMOTIONAL MATERIAL MANAGEMENT SOFTWARE, AND ANY CUSTOMIZATIONS THAT MAY BE MADE TO THE TRIAL SAMPLE & PROMOTIONAL MATERIAL MANAGEMENT SOFTWARE BY YOU DURING FREE TRIAL PERIOD, WILL BE PERMANENTLY LOST UNLESS YOU PURCHASE A SUBSCRIPTION TO THE SAMPLE & PROMOTIONAL MATERIAL MANAGEMENT SOFTWARE AT THE END OF THE TRIAL PERIOD.

    NOTWITHSTANDING SECTION 10 (WARRANTIES, EXCLUSIVE REMEDIES, AND DISCLAIMERS), DURING THE FREE TRIAL, THE TRIAL SAMPLE & PROMOTIONAL MATERIAL MANAGEMENT SOFTWARE IS PROVIDED "AS-IS" WITHOUT ANY WARRANTY OR SUPPORT.

    1. Provision of Purchased Sample & Promotional Material Management Software. We shall make the Purchased Sample & Promotional Material Management Software available to You pursuant to this Agreement and the applicable Order Form(s) during each subscription term. You agree that Your purchases hereunder are neither contingent on the delivery of any future functionality or features nor dependent on any oral or written public comments made by Us regarding future functionality or features.

    2. Subscriptions. Unless otherwise specified in the applicable Order Form: (i) Sample & Promotional Material Management Software are purchased as subscriptions and may be accessed only in accordance with the applicable Order Form(s); (ii) additional quantities may be added during the applicable subscription term at the same pricing as that for the pre-existing quantities thereunder, prorated as applicable for the remainder of the subscription term; and (iii) the added quantities shall terminate on the same date as the pre-existing subscriptions. Any User-based subscriptions are for designated Users only and cannot be shared or used by more than one User but may be reassigned to new Users replacing former Users who no longer require ongoing use of the Sample & Promotional Material Management Software.

    1. Our Responsibilities. We shall: (i) provide Our basic support for the Purchased Sample & Promotional Material Management Software to You at no additional charge, and/or upgraded support if purchased; and (ii) use commercially reasonable efforts to make the Purchased Sample & Promotional Material Management Software available 24 hours a day, 7 days a week, except for: (a) planned downtime (of which We shall give at least 8 hours' notice online via the Sample & Promotional Material Management Software or via email and which We shall schedule to the extent practicable during the weekend hours from 10:00 p.m. Friday to 5:00 p.m. Sunday Eastern Time), or (b) any unavailability caused by circumstances beyond Our reasonable control, including without limitation, acts of God, acts of government, floods, fires, earthquakes, civil unrest, acts of terror, strikes or other labor problems (other than those involving Our employees), failures, downtime or delays by an Internet service provider, hosting provider, Non-Health Loyalty Application, or denial of service attacks.

    2. Our Protection of Your Data. We shall maintain administrative, physical and technical safeguards for protection of the security, confidentiality and integrity of Your Data. We shall not: (a) modify Your Data; (b) disclose Your Data except as compelled by law in accordance with the "Confidentiality: Compelled Disclosure" section below or as expressly permitted in writing by You; or (c) access Your Data except to provide the Sample & Promotional Material Management Software and prevent or address service or technical problems, or at Your request in connection with customer support matters.

    3. Your Responsibilities.

      1. You shall: (i) be responsible for Users' compliance with this Agreement; (ii) be responsible for the accuracy, quality and legality of Your Data and of the means by which You acquire Your Data; (iii) use commercially reasonable efforts to prevent unauthorized access to or use of the Sample & Promotional Material Management Software, and notify Us promptly of any such unauthorized access or use; and (iv) use the Sample & Promotional Material Management Software only in accordance with the User Documentation and applicable laws and government regulations.

      2. You shall not: (i) make the Sample & Promotional Material Management Software available to anyone other than Users; (ii) sell, resell, rent, or lease the Sample & Promotional Material Management Software; (iii) use the Sample & Promotional Material Management Software to store or transmit infringing, libelous, or otherwise unlawful or tortious material, or to store or transmit material in violation of third-party rights; (iv) use the Sample & Promotional Material Management Software to store or transmit Malicious Code; (v) interfere with or disrupt the integrity or performance of the Sample & Promotional Material Management Software or third-party data contained therein; or (vi) attempt to gain unauthorized access to the Sample & Promotional Material Management Software or their related systems or networks.

      3. Additionally, You shall not: (i) use the Sample & Promotional Material Management Software for the purpose of serving as a factor in establishing an individual's eligibility for credit, employment or insurance, or for any other consumer-initiated transaction as defined in the U.S. Fair Credit Reporting Act; (ii) submit to the Sample & Promotional Material Management Software or use the Sample & Promotional Material Management Software to collect, store or process any of the following types of sensitive individually identifiable information, including, without limitation: (a) social security numbers, passport numbers, driver's license numbers, taxpayer numbers, or other government-issued identification numbers, (b) Protected Health Information (as defined in the U.S. Health Insurance Portability and Accountability Act of 1996 and regulations thereunder, as amended, "HIPAA") or similar information under other comparable laws or regulations, or (c) account numbers (including without limitation credit or debit card numbers, or any related security codes or passwords, bank account information, or Non-Public Information (as defined in the Gramm-Leach-Bliley Act of 1999, as amended, "GLBA") or similar information under other comparable laws or regulations.

    4. Usage Limitations. Sample & Promotional Material Management Software may be subject to other limitations, such as, for example, limits on disk storage space, on the number of calls You are permitted to make against Our application programming interface, or other usage limits. Any such limitations are specified in the User Documentation or an Order Form. The Sample & Promotional Material Management Software may provide real-time information to enable You to monitor Your compliance with such limitations. If You purchase Sample & Promotional Material Management Software subject to usage limits and You routinely exceed those limits, We may work with You to seek to reduce Your usage so that it conforms with such limits and if You are unable or unwilling to abide by applicable usage limits, after We have provided notice of such excess usage, We may require You to execute an Order Form for additional Sample & Promotional Material Management Software and/or invoice You for Your excess usage. In such event, You hereby agree to execute such additional Order Forms and/or pay such additional invoices, as applicable.

    1. Acquisition of Non-Health Loyalty Products and Services. We or third parties may from time to time make available to You third-party products or services, including but not limited to Non-Health Loyalty Applications and implementation, customization, and other consulting services. Any exchange of data between You and any non-Health Loyalty provider, is solely between You and the applicable non-Health Loyalty provider. We do not warrant or support non-Health Loyalty products or services, whether or not they are designated by Us as "certified" or otherwise, except as expressly stated otherwise in an Order Form. Subject to Section 5.2 (the Integration with Non-Health Loyalty Applications), no purchase of non-Health Loyalty products or services is required to use the Sample & Promotional Material Management Software except a supported computing device, operating system, web browser, and Internet connection.

    2. Integration with Non-Health Loyalty Applications. The Sample & Promotional Material Management Software may contain features designed to interoperate with Non-Health Loyalty Applications. To use such features, You may be required to obtain access to such Non-Health Loyalty Applications from their providers. If the provider of any such Non-Health Loyalty Application ceases to make the Non-Health Loyalty Application available for interoperation with the corresponding Loyalty Cloud Service features on reasonable terms, We may cease providing such Loyalty Cloud Service features without entitling You to any refund, credit, or other compensation.

    1. Fees. You shall pay all fees specified in all Order Forms hereunder. Except as otherwise specified herein or in an Order Form, (i) fees are based on both services purchased and 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 stated on the Order Form.

    2. Invoicing and Payment. Upon receipt of a valid purchase order or alternative document reasonably acceptable to Us, we will invoice you for all Sample & Promotional Material Management Software listed in the Order Form, including the initial subscription term and any renewal subscription term(s) as set forth in Section 13.2 (Term of Purchased Subscriptions). 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.

    3. Taxes. Unless otherwise stated, Our fees do not include any taxes, levies, duties or similar governmental assessments of any nature, including but not limited to value-added, sales, use or withholding taxes, assessable by any local, state, provincial, federal or foreign jurisdiction (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 under this paragraph, the appropriate amount shall be invoiced to and paid by You, 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.

    1. Reservation of Rights. Subject to the limited rights expressly granted hereunder, We reserve all rights, title and interest in and to the Sample & Promotional Material Management Software, including all related intellectual property rights. No rights are granted to You hereunder other than as expressly set forth herein.

    2. Restrictions. You shall not: (i) in the course of using the Sample & Promotional Material Management Software, access or use Your Data in violation of applicable laws or applicable website terms of service, as applicable; (ii) permit any third party to access the Sample & Promotional Material Management Software except as permitted herein or in an Order Form; (iii) create derivative works based on the Sample & Promotional Material Management Software except as permitted herein; (iv) copy, frame, or mirror any part or content of the Sample & Promotional Material Management Software, other than copying or framing on Your own intranets or otherwise for Your own internal business purposes; (v) reverse engineer the Sample & Promotional Material Management Software; (vi) access the Sample & Promotional Material Management Software in order to (a) build a competitive product or service, or (b) copy any features, functions or graphics of the Sample & Promotional Material Management Software.

    3. Your Data. As between You and Us, You shall own all Your Data, including all reports, statistics, and other data to the extent generated solely from Your Data, and all intellectual property rights therein; provided, however, that during the term of this Agreement, You grant to Us a worldwide, non-exclusive, royalty-free license to aggregate or compile Your Data with other data, including the customer data of other Loyalty Cloud customers so long as such aggregation or compilation omits any data that would enable the identification of You, Your clients, or any individual, company or organization ("Aggregated Data"). We shall have a worldwide, perpetual, royalty-free license to use, modify, distribute and create derivative works based on such Aggregated Data, including all reports, statistics or analyses created or derived therefrom. Additionally, You grant to Us the right to access Your Data to provide feedback to You concerning Your use of the Sample & Promotional Material Management Software.

    4. Suggestions. You agree that any contribution that You make to any improvement of the Sample & Promotional Material Management Software will not give or grant You any right, title or interest in such improvements, and to the extent that all Intellectual Property Rights in and to such improvement does not immediately vest in Us, You, upon creation of such works, assign any and all right, title, and interest (including all Intellectual Property Rights) that You possess in the improvement to Us. Upon Our request, You will execute any document, registration or filing required to give effect to the foregoing assignment.

    1. Definition of Confidential Information. As used herein, "Confidential Information" means all confidential 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 shall include Your Data; Our Confidential Information shall include the Sample & Promotional Material Management Software; and Confidential Information of each party shall include the terms and conditions of this Agreement and all Order Forms, 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 shall 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.

    2. Protection of Confidential Information. The Receiving Party shall (i) use the same degree of care that it uses to protect the confidentiality of its own confidential information of like kind (but in no event less than reasonable care), (ii) not use any Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement, and (iii) except as otherwise authorized by the Disclosing Party in writing, to limit access to Confidential Information of the Disclosing Party to those of its and its Affiliates' employees, contractors and agents who need such access for purposes consistent with this Agreement and who have signed agreements with the Receiving Party containing protections no less stringent than those herein. Neither party shall disclose the terms of this Agreement or any Order Form to any third party other than its Affiliates and their legal counsel and accountants without the other party's prior written consent.

    3. Compelled Disclosure. The Receiving Party may disclose Confidential Information of the Disclosing Party if it is compelled by law to do so, provided the Receiving Party gives the Disclosing Party prior notice of such 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 such Confidential Information.

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

    2. Our Warranties. We warrant that: (i) the Purchased Sample & Promotional Material Management Software shall perform materially in accordance with the User Documentation; (iii) subject to Section 5.2 (Integration with Non-Health Loyalty Applications), the functionality of the Purchased Sample & Promotional Material Management Software will not be materially decreased during a subscription term; and (iv) We will not transmit Malicious Code to You, provided We are not in breach of this subpart (iv) if You or a User uploads a file containing Malicious Code into the Purchased Sample & Promotional Material Management Software and later downloads that file containing Malicious Code. For any breach of a warranty above, Your exclusive remedy shall be as provided in Section 12.3 (Termination for Cause) and Section 12.4 (Refund or Payment upon Termination) below.

    3. Disclaimer. EXCEPT AS EXPRESSLY PROVIDED HEREIN, NEITHER PARTY MAKES ANY WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND EACH PARTY SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING ANY WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. ALTHOUGH OUR ENVIRONMENT IS COMPLIANT WITH 21 CFR (PART 11) REQUIREMENTS, WE MAKE NO REPRESENTATION OR WARRANTY AS TO YOUR ABILITY TO MEET FULL 21 CFR (PART 11) COMPLIANCE MERELY AS A FUNCTION OF USING OUR SAMPLE & PROMOTIONAL MATERIAL MANAGEMENT SOFTWARE. WE ALSO MAKE NO REPRESENTATION OR WARRANTY WITH RESPECT TO HIPAA OR GLBA IN PROVIDING THE SAMPLE & PROMOTIONAL MATERIAL MANAGEMENT SOFTWARE. SAMPLE & PROMOTIONAL MATERIAL MANAGEMANT SOFTWARE PROVIDED UNDER A FREE TRIAL AT NO CHARGE ARE PROVIDED "AS IS", EXCLUSIVE OF ANY WARRANTY OR AVAILABILITY COMMITMENT WHATSOEVER. EACH PARTY DISCLAIMS ALL LIABILITY AND INDEMNIFICATION OBLIGATIONS FOR ANY HARM OR DAMAGES CAUSED BY ANY THIRD-PARTY HOSTING PROVIDERS.

    4. Beta Services. From time to time We may invite You to try, at no charge, Our products or services that are not generally available to Our customers ("Beta Services"). You may accept or decline any such trial in Your sole discretion. Any Beta Services will be clearly designated as beta, or by a similar description. Beta Services are provided for evaluation purposes and not for production use, are not supported, may contain bugs or errors, and may be subject to additional terms. BETA SERVICES ARE PROVIDED "AS IS" WITH NO EXPRESS OR IMPLIED WARRANTY. We may discontinue Beta Services at any time in Our sole discretion and may never make them generally available.

    1. Indemnification by Us. We shall defend You against any claim, demand, suit, or proceeding made or brought against You by a third party alleging that the use of the Purchased Sample & Promotional Material Management Software as permitted hereunder infringes or misappropriates the intellectual property rights of a third party (a "Claim Against You"), and shall indemnify You for any damages, attorney fees and costs finally awarded against You as a result of, and for amounts paid by You under a court approved settlement of, a Claim Against You; provided that You: (a) promptly give Us written notice of the Claim Against You; (b) give Us sole control of the defense and settlement of the Claim Against You (provided that We may not settle any Claim Against You unless the settlement unconditionally releases You of all liability); and (c) provide to Us all reasonable assistance, at Our expense. If We receive information regarding an infringement , misappropriation or other claim We may in Our discretion, and at no cost to you (i) modify the Sample & Promotional Material Management Software, so that they no longer infringe misappropriate or give rise to any other claim, without breaching Our warranties under "Our Warranties" above, (ii) obtain a license for Your continued use of the subject Sample & Promotional Material Management Software in accordance with this Agreement, (iii) terminate Your subscriptions for such Sample & Promotional Material Management Software upon 30 days' written notice and refund to You any prepaid fees covering the remainder of the term of the terminated subscriptions, or (iv) require You to immediately, upon receipt of notice from Us, discontinue all use of Your Data that may be related to an actual or potential infringement, misappropriation or other claim, to the extent not prohibited by law, delete from Your systems or permit Us to delete from the Sample & Promotional Material Management Software, any of Your Data, in each case within five days of receipt of notice from Us. You shall, if so requested by Us, certify such deletion and discontinuance of use in writing. We shall be authorized to provide a copy of such certification to the third party claimant. We shall have no obligation to indemnify You to the extent any Claim Against You arises from Your breach of the terms of this Agreement or actions of a third party hosting provider.

    2. Indemnification by You. You shall defend Us against any claim, demand, suit or proceeding made or brought against Us by a third party alleging that Your Data, or Your use of the Sample & Promotional Material Management Software in breach of this Agreement, infringes or misappropriates the intellectual property rights of a third party or violates applicable law (a "Claim Against Us"), and shall indemnify Us for any damages, attorney fees and costs finally awarded against Us as a result of, or for any amounts paid by Us under a court-approved settlement of, a Claim Against Us; provided that We (a) promptly give You written notice of the Claim Against Us; (b) give You sole control of the defense and settlement of the Claim Against Us (provided that You may not settle any Claim Against Us unless the settlement unconditionally releases Us of all liability); and (c) provide to You all reasonable assistance, at Your expense. In the event We receive information regarding an actual or potential Claim Against Us, We may, in Our discretion, require You to immediately, upon receipt of notice from Us, discontinue all use of Your Data that may be related to an actual or potential Claim Against Us and, to the extent not prohibited by law, delete from Your systems or permit Us to delete from the Sample & Promotional Material Management Software, any of Your Data, in each case within five days of receipt of notice from Us. You shall, if so requested by Us, certify such deletion and discontinuance of use in writing. We shall be authorized to provide a copy of such certification to the third party claimant.

    3. Exclusive Remedy. This Section 11 (Mutual Indemnification) 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.

    1. Limitation of Liability. NEITHER PARTY'S LIABILITY WITH RESPECT TO ANY SINGLE INCIDENT ARISING OUT OF OR RELATED TO THIS AGREEMENT SHALL EXCEED THE AMOUNT PAID BY YOU HEREUNDER IN THE 12 MONTHS PRECEDING THE INCIDENT, PROVIDED THAT IN NO EVENT SHALL EITHER PARTY'S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT EXCEED THE TOTAL AMOUNT PAID BY YOU HEREUNDER. THE ABOVE LIMITATIONS WILL APPLY WHETHER AN ACTION IS IN CONTRACT OR TORT AND REGARDLESS OF THE THEORY OF LIABILITY: THE FOREGOING SHALL NOT LIMIT YOUR PAYMENT OBLIGATIONS UNDER SECTION 6 (FEES AND PAYMENT FOR PURCHASED SAMPLE & PROMOTIONAL MATERIAL MANAGEMENT SOFTWARE).

    2. Exclusion of Consequential and Related Damages. IN NO EVENT SHALL EITHER PARTY HAVE ANY LIABILITY TO THE OTHER PARTY FOR ANY LOST PROFITS OR REVENUES OR FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, COVER OR PUNITIVE DAMAGES HOWEVER CAUSED, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, AND WHETHER OR NOT THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE FOREGOING DISCLAIMER SHALL NOT APPLY TO THE EXTENT PROHIBITED BY APPLICABLE LAW.

    1. Term of Agreement. This Agreement commences on the date You accept it and continues until all subscriptions granted in accordance with this Agreement have expired or been terminated. If You elect to use the Sample & Promotional Material Management Software for a free trial period and do not purchase a subscription before the end of that period, this Agreement will terminate at the end of that free trial period.

    2. Term of Purchased Subscriptions. Subscriptions purchased by You commence on the start date specified in the applicable Order Form and continue for the subscription term specified therein. Except as otherwise specified in the applicable Order Form, all subscriptions shall 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 such renewal term shall be the same as that during the prior term unless We have given You written notice of a pricing increase at least 60 days before the end of such prior term, in which case the pricing increase shall be effective upon renewal and thereafter. Any such pricing increase shall not exceed 5% of the pricing for the relevant Sample & Promotional Material Management Software in the immediately prior subscription term, unless the pricing in such prior term was designated in the relevant Order Form as promotional or one-time.

    3. Termination for Cause. A party may 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.

    4. Refund or Payment upon Termination. Upon any termination for cause by You, We shall refund You any prepaid fees covering the remainder of the term of all subscriptions after the effective date of termination. Upon any termination for cause by Us, You shall pay any unpaid fees covering the remainder of the term of all Order Forms after the effective date of termination. In no event shall any termination relieve You of the obligation to pay any fees payable to Us for the period prior to the effective date of termination.

    5. Return of Your Data. Upon request by You made within 30 days after the effective date of termination, We will provide You with a copy of Your Data from the Purchased Sample & Promotional Material Management Software in a mutually agreed format or delete Your Data from the Sample & Promotional Material Management Software except for data held for backup or archival purposes.

    6. Surviving Provisions. Section 6 (Fees and Payment for Purchased Sample & Promotional Material Management Software), 7 (Proprietary Rights), 8 (Confidentiality), 9 (Warranties, Exclusive Remedies and Disclaimer), 10 (Mutual Indemnification), 11 (Limitation of Liability), 12.4 (Refund or Payment upon Termination), 12.5 (Return of Your Data), 12.6 (Surviving Provisions), 13 (Who You Are Contracting With, Notices, Governing Law and Jurisdiction), and 14 (General Provisions) shall survive any termination or expiration of this Agreement.

    1. General. Who You are contracting with under this Agreement, who You should direct notices to under this Agreement, what law will apply in any lawsuit arising out of or in connection with this Agreement, and which courts can adjudicate any such lawsuit, depend on where You are domiciled.

      2. If you are domiciled in: You are contracting with: Notices should be addressed to: The governing law is: The courts having exclusive jurisiction are:
      The United States of America Health Loyalty Inc., a Delaware Corporation Southeast Financial Center, 200 South Biscayne Boulevard, Suite 2790
      Miami, Florida, USA, 33131      		 Florida and controlling United States federal law Miami, Florida, U.S.A.
      Canada Health Loyalty Canada Inc., an Ontario Corporation 505 Apple Creek Boulevard, Unit 5, Markham, Ontario, Canada. L3R 5B1 Ontario and controlling Canadian federal law Toronto, Ontario, Canada

    2. Manner of Giving Notice. Except as otherwise specified in this Agreement, all notices, permissions and approvals hereunder shall be in writing and shall be deemed to have been given upon: (i) personal delivery; (ii) the second business day after mailing; or (iii) except for notices of termination or an indemnifiable claim ("Legal Notices"), the first business day after sending by email. Billing-related notices to You shall be addressed to the relevant billing contact designated by You, and Legal Notices to You shall be addressed to You and be clearly identified as Legal Notices. All other notices to You shall be addressed to the relevant Marketing Cloud Services system administrator designated by You.

    3. Agreement to Governing Law and Jurisdiction. Each party agrees to the applicable governing law above without regard to choice or conflicts of law rules, and to the exclusive jurisdiction of the applicable courts above.

    4. Waiver of Jury Trial. Each party hereby waives any right to jury trial in connection with any action or litigation in any way arising out of or related to this Agreement.

    1. Export Compliance. The Sample & Promotional Material Management Software, other technology We make available, and derivatives thereof may be subject to export laws and regulations of the United States and other jurisdictions. Each party represents that it is not named on any U.S. government denied-party list. You shall not permit Users to access or use the Marketing Cloud Services in a U.S.-embargoed country (currently Cuba, Iran, North Korea, Sudan, or Syria) or in violation of any U.S. export law or regulation.

    2. Anti-Corruption. You have not received or been offered any illegal or improper bribe, kickback, payment, gift, or thing of value from any of Our employees in connection with this Agreement. Reasonable gifts and entertainment provided in the ordinary course of business do not violate the above restriction. If You learn of any violation of the above restriction, You will use reasonable efforts to promptly notify Our Compliance Department (compliance@health-loyalty.com).

    3. Relationship of the Parties. The parties are independent contractors. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary, or employment relationship between the parties.

    4. No Third-Party Beneficiaries. There are no third-party beneficiaries to this Agreement.

    5. Waiver. No failure or delay by either party in exercising any right under this Agreement shall constitute a waiver of that right.

    6. Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, the provision shall be modified by the court and interpreted so as best to accomplish the objectives of the original provision to the fullest extent permitted by law, and the remaining provisions of this Agreement shall remain in effect.

    7. Assignment. Neither party may assign any of its rights or obligations hereunder, whether by operation of law or otherwise, without the prior written consent of the other party (not to be unreasonably withheld). Notwithstanding the foregoing, either party may assign this Agreement in its entirety (including all Order Forms), without consent of the other party, to its Affiliate or in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets not involving a direct competitor of the other party. A party's sole remedy for any purported assignment by the other party in breach of this paragraph shall be, at the non-assigning party's election, termination of this Agreement upon written notice to the assigning party. In the event of such a termination, We shall refund to You any prepaid fees covering the remainder of the term of all subscriptions after the effective date of termination. Subject to the foregoing, this Agreement shall bind and inure to the benefit of the parties, their respective successors and permitted assigns.

    8. Entire Agreement. This Agreement is the entire agreement between You and Us regarding your use of the Sample & Promotional Material Management Software and supersedes all prior and contemporaneous agreements, proposals or representations, written or oral, concerning its subject matter. No modification, amendment, or waiver of any provision of this Agreement shall be effective unless in writing and either signed or accepted electronically by the party against whom the modification, amendment, or waiver is to be asserted. The parties agree that any term or condition stated in Your purchase order or in any other of Your other documentation (excluding Order Forms) is void. In the event of any conflict or inconsistency between the provisions in the body of this Agreement and any Order Form, the terms of such Order Form shall prevail.

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