Additional Terms and Conditions

1. Incorporation; Definitions.

a. These Additional Terms and Conditions accompany and are incorporated into the PowerHealth OnDemand, LLC Software as a Services Agreement and executed between PHOD and Customer (the “Commercial Terms”). These Additional Terms and Conditions and the Commercial Terms shall be construed as consistent with one another whenever possible; provided; however, in the event of any conflict between any of these Additional Terms and Conditions and the Commercial Terms, the Commercial Terms shall prevail. In the event of conflict between this Agreement and the BAA, this Agreement shall control. Any capitalized terms herein shall have the meanings attributed to them below, or as otherwise set forth in the Commercial Terms. Additional terms may be defined throughout this Agreement.

b. “Applications” has the meaning set forth in the Commercial Terms; provided, however, the Applications do not include any third party software, information, technology or other items, the rights to which must be obtained by Customer independently.

c. “Authorized Users” means the Customer’s employees, customers or other representatives of Customer, each of whom is issued or accesses the Application with a unique password or similar permission.

d. “Documentation” means user documentation and/or explanatory materials provided by PHOD for use with the Applications, as such documentation and materials may be updated from time to time.

e. “IP Rights” means all forms of intellectual property rights and protections throughout the world, whether currently existing or hereafter developed or acquired and whether now known or hereafter recognized, including all right, title and interest arising under United States or foreign common or statutory law in and to all: (i) patents and all filed, pending or potential applications for patents, including any patent disclosure, reissue, reexamination, division, continuation or continuation-in-part applications throughout the world now or hereafter filed; (ii) trade secret rights, know-how, technical information, rights in databases, rights to confidential or other proprietary information and equivalent rights; (iii) copyrights, copyright registrations, design registrations and applications therefor, moral rights, other literary property or authors’ rights, whether or not protected by copyright or as a mask work; and (iv) proprietary indicia, trademarks, service marks, trade names, trade dress, logos, symbols, domain names, logos and/or brand names and all goodwill associated therewith.

f. “Law” means any applicable United States or foreign law, statute, ordinance, code, rule, regulation, order, judgment, decree, requirement or procedure enacted, adopted, applied, enforced or followed by any governmental authority.

g. “Professional Services” means all Services, excluding Support Services and the hosting of the Applications and Servers.

h. “Related Party” means any owner, parent, partner, affiliate, subsidiary, agent, subcontractor, director, officer, hired or leased employee or worker, agent, representative or permitted assignee or successor of PHOD or Customer, as the case may be and as the context requires.

i. “Services” means any services provided by or on behalf of PHOD to Customer pursuant to this Agreement, including the hosting of the Applications, any training, configuration, implementation and/or Support Services.

2. Applications.

a. License Grant. During the Term, and subject to the terms and conditions of this Agreement (including Customer’s obligation to pay all Fees when due), PHOD hereby grants to Customer a limited, non-exclusive, non-transferable (except as provided in Section 10.n (Assignment)), revocable right and license, without the right to grant sublicenses, to access and use the Applications electronically via the Internet and mobile telecommunication networks solely for Customer’s internal business purposes and in accordance with the limitations set forth in this Agreement. PHOD shall make the Applications available to Customer via a digital information processing, transmission and storage system (“Servers”) maintained by or on behalf of PHOD. PHOD reserves the right to modify the Applications at any time as business needs dictate in PHOD’s sole discretion; provided, however, that any such modification shall provide for materially the same level of functionality that Customer originally received under this Agreement and provided that the terms and conditions of this Agreement shall remain in effect and shall govern Customer’s use and obligations with respect to the Applications and any modifications thereof.

b. Customer Content. Customer shall be solely responsible for all data, information, content and/or materials used in connection with or otherwise displayed, linked or transmitted to, from or through, the Applications on Customer’s behalf, excluding the IP Rights held by PHOD in the Applications and Documentation, (such content, excluding the IP Rights held by PHOD in the Applications and Documentation, collectively, the “Customer Content”). Customer grants to PHOD a non-exclusive, worldwide, fully-paid and royalty free license to translate, restructure, modify, access, copy and publicly perform, display, distribute, transmit, make derivative works of, and use the Customer Content in connection with PHOD’s performance of its obligations under this Agreement and thereafter following the Term, on an aggregated, non-personally identifiable/de-identified basis for performance or data metrics, benchmarking purposes and to otherwise improve upon PHOD’s product and service offerings. Customer represents, warrants and covenants to PHOD that: (i) Customer is the owner and/or the licensee of all IP Rights relating to the Customer Content and has the necessary rights to fulfill its obligations and grant all licenses and rights granted under this Agreement, (ii) the Customer Content, and PHOD’s use thereof as contemplated by this Agreement, does not and shall not infringe any third party’s IP Rights, and (iii) all use of the Applications and Services by Customer, and PHOD’s use of the Customer Content as contemplated herein, shall at all times conform with all applicable Law. The Servers and the Applications are not an archive and PHOD shall have no liability to Customer or any other person for loss, damage or destruction of any Customer Content.

c. System Requirements. The minimum system requirements recommended by PHOD for access to and use of the Applications are specified in the Documentation and are available upon request (“System Requirements”). PHOD shall not be responsible for performance or operational issues experienced by Customer or Authorized Users with respect to access to or use of the Applications to the extent Customer or Authorized User is not adhering to a suitable operating environment as described in the Documentation and the System Requirements.

d. Availability of the Applications; Remedy for Non-Availability. Customer acknowledges that from time to time the Applications may be inaccessible or inoperable for any reason, including: (i) equipment malfunctions; (ii) periodic maintenance procedures or repairs to the Servers; or (iii) causes beyond PHOD’s control, including interruption or failure of telecommunication or digital transmission links, delays or failures due to Customer’s Internet service provider, hostile network attacks or network congestion. Customer acknowledges that PHOD has no control over the stability and throughput speed of the Internet or availability of the Applications on a continuous and uninterrupted basis. Customer and other Authorized Users shall be solely responsible for providing, maintaining and ensuring compatibility with the Applications, as well as Internet access connections.

e. Support and Other Services. Except for the Support Services expressly stated in the Commercial Terms, the Agreement does not entitle Customer to receive hard-copy code, source code, installation, training, technical support, telephone assistance, or enhancements, updates or bug fixes for the Applications. PHOD may provide Customer with Support Services upon terms mutually agreed upon between the parties in writing. Customer acknowledges and agrees that PHOD may use any technical information Customer provides to PHOD as part of the Support Services for its business purposes, including for product support and development. If requested by Customer, any consulting or professional services which may be provided by PHOD pursuant to such a request, including custom software development or similar services, shall be billed at PHOD’s standard rates and prices in effect from time to time.

f. No Implied Licenses. The Applications are licensed, not sold. All rights not expressly granted in Section 2.a (License Grant) are reserved by PHOD, and nothing in the Agreement will be deemed to grant, by implication, estoppel or otherwise, a license under any of PHOD’s existing or future IP Rights.

3. Restrictions on Use; Ownership.

a. Trade Secrets; Restrictions. Customer acknowledges that the Applications and their structure, organization, and source code constitute valuable trade secrets of PHOD and its suppliers. Customer agrees that Customer shall not, nor shall it permit, assist or encourage any third party to: (i) sell, rent, lease, use for service bureau use, sublicense or otherwise transfer or distribute the Applications or Documentation, in whole or in part, to any third parties; (ii) modify, translate, reverse engineer, decompile, disassemble the Applications or otherwise attempt to derive the source code for the Applications (except to the extent applicable law specifically permits such activity, it is essential to do so in order to achieve operability of the Applications with another software program, and Customer has first requested PHOD to provide the information necessary to achieve such operability and PHOD has not made such information available) or modify the Documentation; (iii) merge the Applications with other software; (iv) create derivative works based upon the Applications or Documentation; (v) alter, destroy or otherwise remove any proprietary notices or labels on or embedded within the Applications or Documentation; or (vi) use the Applications to develop any application or program having the same primary function as the Applications or otherwise exercise any rights in or to the Applications or the Documentation except as expressly permitted under Section 2.a (License Grant). With respect to the decompilation exception set forth in clause (ii) above, PHOD has the right to impose reasonable conditions and to request a reasonable fee before providing such information. Any such information supplied by PHOD and any information obtained by Customer by such permitted decompilation may only be used by Customer for the purpose described herein and may not be disclosed to any third party or used to create any software which is substantially similar to the expression of the Applications.

b. Ownership. Customer acknowledges that (i) the Applications and Documentation and all right, title and interest therein, including all IP Rights in and to the Applications and Documentation, are the sole and exclusive property of PHOD and its suppliers, and (ii) Customer receives no rights, title or interests in the Applications or Documentation except as expressly set forth herein. If Customer or any Related Party is deemed to have any ownership interest or rights in the Applications or Documentation, then Customer shall assign and/or cause such parties to assign, and Customer does hereby assign, irrevocably and royalty-free, all of such ownership interest and rights exclusively to PHOD and Customer shall, at PHOD’s reasonable request and expense, complete, execute and deliver any and all documents necessary to effect or perfect such assignments.

c. Protection. In no event shall Customer take any action that might encumber or expose the Applications or Documentation to any claims, liens or other forms of encumbrance.

4. Security; Acceptable Use.

a. Storage and Security; Password. Notwithstanding anything herein to the contrary, Customer shall be solely responsible for ensuring the confidentiality of Customer’s and/or its Authorized Users’ passwords and members accounts, as appropriate. If any Customer or Authorized User password is lost, stolen or otherwise compromised, Customer shall promptly change the password within the Applications or, if Customer is unable to access the Applications or change the password, Customer shall notify PHOD, whereupon PHOD shall undertake efforts to suspend access to the Applications by use of such password and issue a replacement password.

b. Acceptable Use Policy. Customer is solely responsible for any authorized or unauthorized access to and use of the Applications, including all acts, omissions and use under Customer and/or Authorized User accounts or passwords and/or in connection with any Customer Content displayed, linked, transmitted through or stored on the Servers or Applications. Customer shall not, and shall use best efforts to ensure that Authorized Users do not, in connection with the Applications, engage in any of the following: (i) creation of a false identity or other attempt to mislead any person as to the identity, source or origin of any communication or any act in violation of any Law; (ii) interference, disruption or attempt to gain unauthorized access to any computer system, server, network or account for which Customer or Authorized User does not have authorization to access or at a level exceeding Customer’s or Authorized User’s authorization; (iii) dissemination or transmission of any virus, trojan horse or other malicious, harmful or disabling data, work, code or program; or (iv) dissemination or transmission of any material, data, information or consent that (1) to a reasonable person may be abusive, obscene, pornographic, defamatory, harassing, grossly offensive, vulgar, threatening or malicious, or (2) actually or potentially infringes or violates the IP Rights of any third person or otherwise violates any Law, or (3) that is in violation of Law.

c. Reliance on Information. In providing the Application and the Services, PHOD shall be entitled to rely upon and act in accordance with any instructions, guidelines, data or information provided by Customer and any Authorized User who has actual or apparent authority to provide such instructions, guidelines or information, and shall incur no liability in doing so. Customer shall indemnify, defend and hold PHOD and PHOD’s Related Parties harmless from any and all third party claims, losses, actions, suits, proceedings or judgments, including, costs and reasonable attorneys’ fees, incurred by or assessed against such parties resulting, in whole or in part from (i) any action or failure to act by PHOD in reliance on any instruction, approval, election, decision, action, inaction, omission or nonperformance by Customer, its Authorized Users, officers, directors, shareholders, employees and agents relating to the Services, (ii) any information or data provided to PHOD by any Authorized User in connection with the Services, and/or (iii) any breach of any term or condition of this Agreement by Customer or its Authorized.

5. Termination and Effect

a. Termination. In addition to a party’s rights to terminate this Agreement as set forth elsewhere in this Agreement, either party may terminate this Agreement, in whole or in part, if the other party materially breaches any term of this Agreement and such breach is not cured within 60 days of written notice thereof. If Customer rightfully terminates for breach by PHOD, PHOD shall refund to Customer a ratable share of any fees actually paid by Customer for Recurring Services not rendered prior to the date the termination of this Agreement takes effect. Customer acknowledges and agrees that such refund, together with Customer’s termination right, shall be Customer’s sole and exclusive remedy for a breach of this Agreement by PHOD. Customer acknowledges and agrees that in all other circumstances any Fees paid are non-refundable, and PHOD shall have no obligation to refund or return any Fees paid pursuant to this Agreement. This Agreement shall automatically terminate upon termination of the BAA, unless the parties enter into a new business associate agreement to replace the BAA. Nothing in this section is intended to preclude PHOD from seeking immediate appropriate injunctive relief in the event of any violation of PHOD’s IP Rights, including rights in the Applications.

b. Effect of Termination. Upon the expiration or termination of this Agreement, (i) any amounts owed to PHOD under this Agreement prior to such expiration or termination shall be immediately due and payable, (ii) no residual rights will remain with Customer, and Customer and any Authorized Users shall discontinue all use of the Applications and Documentation, (iii) PHOD shall cease providing access to the Applications, and (iv) Customer shall erase and remove all copies of the Applications and Documentation from any computer equipment and media in Customer’s possession, custody or control.

6. Disclaimer; Limitation of Liability.

a. Limited Warranty. Each party represents and warrants to the other party that it has the requisite corporate right, power and authority to enter into, and perform under, this Agreement.

b. Disclaimer. THE APPLICATIONS AND DOCUMENTATION ARE PROVIDED ON AN “AS IS” BASIS, AND CUSTOMER’S USE OF THE SAME IS AT CUSTOMER’S OWN RISK. EXCEPT AS EXPRESSLY SET FORTH IN SECTION 6.a (LIMITED WARRANTY), PHOD MAKES NO WARRANTIES, EXPRESS OR IMPLIED, WITH RESPECT TO THIS AGREEMENT, THE APPLICATIONS OR THE DOCUMENTATION, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE OR NONINFRINGEMENT AND ANY WARRANTIES ARISING OUT OF COURSE OF DEALING OR COURSE OF PERFORMANCE. WITHOUT LIMITING THE FOREGOING, PHOD DOES NOT WARRANT THAT THE APPLICATIONS WILL MEET THE REQUIREMENTS OR EXPECTATIONS OF CUSTOMER OR THAT THE APPLICATIONS OR CUSTOMER’S USE OF THE SAME WILL BE UNINTERRUPTED, ERROR-FREE, OR COMPLETELY SECURE. PHOD SHALL HAVE NO LIABILITY FOR ANY INACCESSIBILITY OF THE APPLICATIONS, DELAY, FAILURE, UNAUTHORIZED ACCESS TO OR ALTERATION OF ANY AUTHORIZED USER TRANSMISSION OR DATA, ANY MATERIAL OR DATA SENT OR RECEIVED OR NOT SENT OR RECEIVED, ANY TRANSACTION OR AGREEMENT ENTERED INTO VIA THE APPLICATIONS, OR ANY DATA OR MATERIAL FROM A THIRD PERSON ACCESSED ON OR THROUGH THE APPLICATIONS. PHOD DOES NOT AND CANNOT CONTROL THE FLOW OF DATA TO OR FROM THE SERVERS AND OTHER PORTIONS OF THE INTERNET. SUCH FLOW DEPENDS IN LARGE PART ON THE PERFORMANCE OF INTERNET AND TELECOMMUNICATIONS SERVICES PROVIDED OR CONTROLLED BY THIRD PARTIES. BECAUSE SOME JURISDICTIONS DO NOT ALLOW CERTAIN EXCLUSIONS OR DISCLAIMERS, IN SUCH JURISDICTIONS, THE PARTIES AGREE THAT THE FOREGOING EXCLUSIONS AND DISCLAIMERS SHALL BE PERMITTED TO THE FULLEST EXTENT PERMITTED BY SUCH JURISDICTION.

c. Limitation of Liability. NEITHER PHOD NOR ITS RELATED PARTIES, SHALL BE LIABLE FOR ANY CONSEQUENTIAL, INDIRECT, EXEMPLARY, SPECIAL, OR INCIDENTAL DAMAGES, INCLUDING WITHOUT LIMITATION ANY LOST DATA OR LOST PROFITS, OR COSTS OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, ARISING FROM OR RELATING TO THIS AGREEMENT OR THE BAA, THE USE OF OR INABILITY TO USE THE APPLICATIONS, OR ANY MATERIAL OR DATA SENT OR RECEIVED OR NOT SENT OR RECEIVED AND ANY TRANSACTION OR AGREEMENT ENTERED INTO VIA THE APPLICATIONS, HOWEVER CAUSED AND UNDER ANY THEORY OF LIABILITY (INCLUDING CONTRACT, TORT OR NEGLIGENCE), EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. UNDER NO CIRCUMSTANCES SHALL PHOD’S AGGREGATE AND TOTAL CUMULATIVE LIABILITY IN CONNECTION WITH THIS AGREEMENT OR THE BAA EXCEED THE FEES PAID TO PHOD HEREUNDER. EACH OF THE PARTIES ACKNOWLEDGES THAT THESE LIMITATIONS REFLECT A FAIR ALLOCATION OF RISK AND THAT PHOD WOULD NOT HAVE ENTERED INTO THIS AGREEMENT WITHOUT THESE LIMITATIONS ON ITS LIABILITY, AND EACH OF THE PARTIES AGREES THAT THESE LIMITATIONS SHALL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY. BECAUSE SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF CERTAIN CATEGORIES OF DAMAGES, IN SUCH JURISDICTIONS, THE PARTIES AGREE THAT THE LIABILITY OF PHOD SHALL BE LIMITED TO THE FULLEST EXTENT PERMITTED BY SUCH JURISDICTION.

7. Payments

a. Fees. Customer shall pay PHOD the Fees listed in the Commercial Terms, as such pricing may be increased from time to time in accordance with the Commercial Terms. Unless expressly provided to the contrary in the Commercial Terms, all Fees payable under this Agreement shall be paid net 30 days from the invoice date. All Fees are non-refundable except as otherwise expressly provided by this Agreement. All payments must be made in U.S. dollars unless otherwise specified in the Commercial Terms. Any portion of the Fees that is not paid when due will accrue interest at 1.5% per month or the maximum rate permitted by applicable law, whichever is less, from the due date until paid. Customer will be responsible for the cost of any collection activity, including attorneys’ fees. Failure of Customer to make any payment when due shall be deemed to be a material breach of this Agreement. In addition to any other rights and remedies specified in this Agreement, PHOD reserves the right to suspend access to and use of the Applications until such time as any overdue payments, plus any applicable interest payments, are made and Customer agrees that PHOD shall have no liability for suspending such access and use in such circumstances. The acceptance by PHOD of any partial payment shall not constitute a waiver of payment in full by Customer.

b. Taxes. The Fees exclude all applicable sales, use, and other taxes, and all applicable export and import fees, customs duties and similar charges attributable to any use by Customer of the Applications, and Customer will be responsible for payment of all such taxes (other than taxes based on PHOD’s net income), fees, duties, and charges, and any related penalties and interest, arising from the payment of the Fees or the delivery, provision or license of the Applications to Customer. Customer will defend, indemnify, and hold harmless PHOD and its Related Parties from all claims and liability arising from Customer’s failure to report or pay any such taxes, fees, duties or charges.

c. Out-of-Pocket Expenses. Customer shall reimburse PHOD for all reasonable travel, living, and other related out-of-pocket expenses associated with PHOD’s provision of installation, testing, training, maintenance and support and other services requested by Customer and provided by PHOD in connection with this Agreement.

8. Public Disclosure.

Each party will treat this Agreement and its terms as confidential hereunder and will make no press release or public disclosure, either written or oral, regarding the existence of, or transactions contemplated by, this Agreement without the prior written consent of the other party hereto, which consent shall not be unreasonably withheld or delayed; provided that the foregoing will not prohibit any disclosure to the extent required by applicable securities laws or the rules of any stock exchange where a party’s securities are traded. Notwithstanding anything herein to the contrary, PHOD shall have the right to list Customer as a customer on PHOD’s website, on publicly available customer lists, and in media releases.

9. Miscellaneous.

a. Entire Agreement. This Agreement and the BAA represent the entire agreement of the parties, and supersedes any prior or contemporaneous understandings, whether written or oral. This Agreement and the BAA may be modified, supplemented or changed only by an agreement in writing which makes specific reference to this Agreement or BAA (as applicable) and which is signed by both PHOD and Customer.

b. Force Majeure. Neither party shall be responsible to the other for any failure or delay in its performance under this Agreement, other than with respect to its payment obligations, if such failure or delay is due to war, act of terrorism, riot, strike, fire, sabotage, flood, or other natural disaster, catastrophe, or other similar cause outside the control of the affected party provided that such party provides the other with written notice of such force majeure condition and resumes its performance as soon as possible.

c. Waiver. No delay or omission by either party to exercise any right or power will impair any such right or power or be construed to be a waiver thereof. A waiver by any party of any of the covenants, conditions, or contracts to be performed by the other or any breach thereof shall not be construed to be a waiver of any succeeding breach thereof or of any other covenant, condition, or contract herein contained. No change, waiver, or discharge hereof shall be valid unless in writing and signed by an authorized representative of the party against which such change, waiver, or discharge is sought to be enforced.

d. Independent Contractors. PHOD and Customer are independent contractors, each acting for its own account, and neither is authorized to make any commitment or representation, or incur any obligation, express or implied, on the other’s behalf. In all matters relating to this Agreement and the BAA, neither party or its employees or agents are, or will act as, employees or agents of the other party within the meaning or application of any federal or state laws.

e. Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be unenforceable, such provision will be changed and interpreted to accomplish the objectives of such provision to the greatest extent possible under applicable law and the remaining provisions will continue in full force and effect.

f. Remedies. Except as expressly provided otherwise in this Agreement, in addition to any remedies provided in this Agreement, the parties shall have all remedies provided at law or in equity. The rights and remedies provided in this Agreement or otherwise under Law shall be cumulative and the exercise of any particular right or remedy shall not preclude the exercise of any other rights or remedies in addition to, or as an alternative of, such right or remedy, except as expressly provided otherwise in this Agreement.

g. No Third Party Beneficiaries. Except with respect to indemnification for indemnified parties expressly identified herein, no term or provision of this Agreement is intended to be, or shall be, for the benefit of any person, firm, organization or corporation not a party hereto, and no such third party shall have any right or cause of action hereunder.

h. Attorneys’ Fees. If any party shall commence any action or proceeding against the other in order to enforce the provisions of this Agreement, or to recover damages as the result of the alleged breach of any of the provisions of this Agreement, the prevailing party therein shall be entitled to recover all reasonable costs incurred in connection therewith against the party commencing such action or the party who has breached this Agreement, as the case may be, including reasonable attorneys’ fees.

i. Survival. The rights and obligations of the parties set forth in Sections 2.b (Customer Content), 2.f (No Implied Licenses), 3.a (Trade Secrets; Restrictions), 3.b (Ownership), 3.c (Protections), 4.c (Reliance on Information), 5.b (Effect of Termination), 6.b (Disclaimer), 6.c (Limitation of Liability), 7 (Payments), 8 (Public Disclosure) and 9 (Miscellaneous), and any other provision of this Agreement that by its nature is intended to survive, shall survive the expiration or termination of this Agreement for any reason whatsoever.

j. Construction. The captions and headings contained herein are for purposes of convenience only and are not a part of this Agreement; all references to this Agreement and the words “herein”, “hereof”, “hereto” and “hereunder” and other words of similar import refer to this Agreement as a whole and not to any particular Exhibit, Section, or other subdivision; and the words “including,” “included” and “includes” mean inclusion without limitation. In the event of any ambiguities in the language hereof, there shall be no inference drawn in favor of or against either party.

k. Export. Customer acknowledges that the Applications, Documentation, deliverables, Services and all related technical information, documents and materials are subject to export controls under the U.S. Export Administration Regulations and other applicable Laws. Customer will (i) comply strictly with all legal requirements established under these controls, (ii) cooperate fully with PHOD in any official or unofficial audit or inspection that relates to these controls, and (iii) not export, re-export, divert or transfer, directly or indirectly, any such item to any country or individual that is embargoed by Law or Executive Order, unless Customer has obtained the prior written authorization of PHOD and the U.S. Commerce Department.

l. Dispute Resolution. This Agreement and the BAA is made under and will be construed in accordance with the laws of the State of Colorado, other than such laws, rules, regulations and case law that would result in the application of the laws of a jurisdiction other than the State of Colorado. Any suit to enforce any provision of this Agreement or the BAA, or arising out of or based upon this Agreement or the BAA, shall be brought exclusively in the state or federal courts of the State of Colorado. Subject to Section 10.o (Equitable Remedies), each party hereby agrees that such courts shall have in personam jurisdiction and venue with respect to such party, and each party hereby submits to the in personam jurisdiction and venue of such courts and waives any objection based on inconvenient forum. This Agreement will not be governed by the conflict of law rules of any jurisdiction or the United Nations Convention on Contracts for the International Sale of Goods, the application of which is expressly excluded.

m. Notices. Any notice, request, approval, authorization, consent, demand or other communication required or permitted to be given or made pursuant to this Agreement shall be in writing and shall be deemed given on the earliest of (i) actual receipt, irrespective of the method of delivery, (ii) on the delivery day following dispatch if sent by express mail (or similar next day air courier service), or (iii) on the 6th day after mailing by registered or certified United States mail, return receipt requested, postage prepaid and addressed as set froth in the Cover Sheet.

n. Assignment. PHOD, in its sole discretion, may assign, subcontract, or otherwise transfer any of its rights or obligations under this Agreement. Customer shall not assign, sublicense or transfer, by operation of law or otherwise, any of its rights or obligations under this Agreement (including its license with respect to the Applications) to any third party without PHOD’s prior written consent; provided, however, that Customer may assign this Agreement to an entity that acquires all or substantially all of Customer’s business and assets, whether by merger, sale of assets, sale of stock or otherwise, provided further that such transferee assumes and agrees in writing to be bound to the terms and conditions to this Agreement and the BAA in every respect that Customer is bound. In the event of such assignment, Customer will provide PHOD with 30 days prior written notice thereof. Notwithstanding anything herein to the contrary, in no event shall Customer assign, sublicense or transfer, by operation of law or otherwise, any of its rights under this Agreement to a competitor of PHOD. Any attempted assignment or transfer in violation of the foregoing will be void. This Agreement shall be binding upon, and shall inure to the benefit of, the parties hereto and their respective permitted successors and assigns.

o. Equitable Remedies. The parties acknowledge and agree that a breach or threatened breach by Customer of Sections 2.a (License Grant), 3 (Restrictions on Use; Ownership), and 4.b (Acceptable Use Policy) could result in irreparable harm to the non-breaching party or its suppliers for which a remedy at law would be inadequate, and therefore, such party shall have the right to seek to obtain injunctive relief in any court of competent jurisdiction upon any violation or threatened violation of the terms of the foregoing sections without the necessity of posting bond or other security, in addition to all other rights and remedies available at law or in equity.

p. Notices. Any notice required or permitted to be given under the terms of this Agreement shall be deemed given when reduced to writing and delivered and addressed to (i) if to Customer, the mailing and/or email address set forth for Customer on the Terms and Conditions, or (ii) if to PHOD, then by certified mail, return receipt requested, or overnight national courier with a tracking system, to PowerHealth OnDemand, LLC., Attn: Chief Executive Officer, 6500 South Quebec Street, Suite 300, Greenwood Village, CO 80111, or to such other address as may be provided by PHOD to Customer using notice consistent with this section.

q. Counterparts. This Agreement may be executed in any number of counterparts, each of which shall be deemed an original, but all of which shall constitute one and the same instrument. A document, including the Agreement and the BAA, signed and transmitted by .pdf or electronic copy shall have the same binding effect as an original signature.

1. Incorporation; Definitions.

a. These Additional Terms and Conditions accompany and are incorporated into the PowerHealth OnDemand, LLC Software as a Services Agreement hand-executed between PHOD and Customer (the “Commercial Terms”). These Additional Terms and Conditions and the Commercial Terms shall be construed as consistent with one another whenever possible; provided; however, in the event of any conflict between any of these Additional Terms and Conditions and the Commercial Terms, the Commercial Terms shall prevail. In the event of conflict between this Agreement and the BAA, this Agreement shall control. Any capitalized terms herein shall have the meanings attributed to them below, or as otherwise set forth in the Commercial Terms. Additional terms may be defined throughout this Agreement.

b. “Applications” has the meaning set forth in the Commercial Terms; provided, however, the Applications do not include any third party software, information, technology or other items, the rights to which must be obtained by Customer independently.

c. “Authorized Users” means the Customer’s employees, customers or other representatives of Customer, each of whom is issued or accesses the Application with a unique password or similar permission.

d. “Documentation” means user documentation and/or explanatory materials provided by PHOD for use with the Applications, as such documentation and materials may be updated from time to time.

e. “IP Rights” means all forms of intellectual property rights and protections throughout the world, whether currently existing or hereafter developed or acquired and whether now known or hereafter recognized, including all right, title and interest arising under United States or foreign common or statutory law in and to all: (i) patents and all filed, pending or potential applications for patents, including any patent disclosure, reissue, reexamination, division, continuation or continuation-in-part applications throughout the world now or hereafter filed; (ii) trade secret rights, know-how, technical information, rights in databases, rights to confidential or other proprietary information and equivalent rights; (iii) copyrights, copyright registrations, design registrations and applications therefor, moral rights, other literary property or authors’ rights, whether or not protected by copyright or as a mask work; and (iv) proprietary indicia, trademarks, service marks, trade names, trade dress, logos, symbols, domain names, logos and/or brand names and all goodwill associated therewith.

f. “Law” means any applicable United States or foreign law, statute, ordinance, code, rule, regulation, order, judgment, decree, requirement or procedure enacted, adopted, applied, enforced or followed by any governmental authority.

g. “Professional Services” means all Services, excluding Support Services and the hosting of the Applications and Servers.

h. “Related Party” means any owner, parent, partner, affiliate, subsidiary, agent, subcontractor, director, officer, hired or leased employee or worker, agent, representative or permitted assignee or successor of PHOD or Customer, as the case may be and as the context requires.

i. “Services” means any services provided by or on behalf of PHOD to Customer pursuant to this Agreement, including the hosting of the Applications, any training, configuration, implementation and/or Support Services.

2. Applications.

a. License Grant. During the Term, and subject to the terms and conditions of this Agreement (including Customer’s obligation to pay all Fees when due), PHOD hereby grants to Customer a limited, non-exclusive, non-transferable (except as provided in Section 10.n (Assignment)), revocable right and license, without the right to grant sublicenses, to access and use the Applications electronically via the Internet and mobile telecommunication networks solely for Customer’s internal business purposes and in accordance with the limitations set forth in this Agreement. PHOD shall make the Applications available to Customer via a digital information processing, transmission and storage system (“Servers”) maintained by or on behalf of PHOD. PHOD reserves the right to modify the Applications at any time as business needs dictate in PHOD’s sole discretion; provided, however, that any such modification shall provide for materially the same level of functionality that Customer originally received under this Agreement and provided that the terms and conditions of this Agreement shall remain in effect and shall govern Customer’s use and obligations with respect to the Applications and any modifications thereof.

b. Customer Content. Customer shall be solely responsible for all data, information, content and/or materials used in connection with or otherwise displayed, linked or transmitted to, from or through, the Applications on Customer’s behalf, excluding the IP Rights held by PHOD in the Applications and Documentation, (such content, excluding the IP Rights held by PHOD in the Applications and Documentation, collectively, the “Customer Content”). Customer grants to PHOD a non-exclusive, worldwide, fully-paid and royalty free license to translate, restructure, modify, access, copy and publicly perform, display, distribute, transmit, make derivative works of, and use the Customer Content in connection with PHOD’s performance of its obligations under this Agreement and thereafter following the Term, on an aggregated, non-personally identifiable/de-identified basis for performance or data metrics, benchmarking purposes and to otherwise improve upon PHOD’s product and service offerings. Customer represents, warrants and covenants to PHOD that: (i) Customer is the owner and/or the licensee of all IP Rights relating to the Customer Content and has the necessary rights to fulfill its obligations and grant all licenses and rights granted under this Agreement, (ii) the Customer Content, and PHOD’s use thereof as contemplated by this Agreement, does not and shall not infringe any third party’s IP Rights, and (iii) all use of the Applications and Services by Customer, and PHOD’s use of the Customer Content as contemplated herein, shall at all times conform with all applicable Law. The Servers and the Applications are not an archive and PHOD shall have no liability to Customer or any other person for loss, damage or destruction of any Customer Content.

c. System Requirements. The minimum system requirements recommended by PHOD for access to and use of the Applications are specified in the Documentation and are available upon request (“System Requirements”). PHOD shall not be responsible for performance or operational issues experienced by Customer or Authorized Users with respect to access to or use of the Applications to the extent Customer or Authorized User is not adhering to a suitable operating environment as described in the Documentation and the System Requirements.

d. Availability of the Applications; Remedy for Non-Availability. Customer acknowledges that from time to time the Applications may be inaccessible or inoperable for any reason, including: (i) equipment malfunctions; (ii) periodic maintenance procedures or repairs to the Servers; or (iii) causes beyond PHOD’s control, including interruption or failure of telecommunication or digital transmission links, delays or failures due to Customer’s Internet service provider, hostile network attacks or network congestion. Customer acknowledges that PHOD has no control over the stability and throughput speed of the Internet or availability of the Applications on a continuous and uninterrupted basis. Customer and other Authorized Users shall be solely responsible for providing, maintaining and ensuring compatibility with the Applications, as well as Internet access connections.

e. Support and Other Services. Except for the Support Services expressly stated in the Commercial Terms, the Agreement does not entitle Customer to receive hard-copy code, source code, installation, training, technical support, telephone assistance, or enhancements, updates or bug fixes for the Applications. PHOD may provide Customer with Support Services upon terms mutually agreed upon between the parties in writing. Customer acknowledges and agrees that PHOD may use any technical information Customer provides to PHOD as part of the Support Services for its business purposes, including for product support and development. If requested by Customer, any consulting or professional services which may be provided by PHOD pursuant to such a request, including custom software development or similar services, shall be billed at PHOD’s standard rates and prices in effect from time to time.

f. No Implied Licenses. The Applications are licensed, not sold. All rights not expressly granted in Section 2.a (License Grant) are reserved by PHOD, and nothing in the Agreement will be deemed to grant, by implication, estoppel or otherwise, a license under any of PHOD’s existing or future IP Rights.

3. Restrictions on Use; Ownership.

a. Trade Secrets; Restrictions. Customer acknowledges that the Applications and their structure, organization, and source code constitute valuable trade secrets of PHOD and its suppliers. Customer agrees that Customer shall not, nor shall it permit, assist or encourage any third party to: (i) sell, rent, lease, use for service bureau use, sublicense or otherwise transfer or distribute the Applications or Documentation, in whole or in part, to any third parties; (ii) modify, translate, reverse engineer, decompile, disassemble the Applications or otherwise attempt to derive the source code for the Applications (except to the extent applicable law specifically permits such activity, it is essential to do so in order to achieve operability of the Applications with another software program, and Customer has first requested PHOD to provide the information necessary to achieve such operability and PHOD has not made such information available) or modify the Documentation; (iii) merge the Applications with other software; (iv) create derivative works based upon the Applications or Documentation; (v) alter, destroy or otherwise remove any proprietary notices or labels on or embedded within the Applications or Documentation; or (vi) use the Applications to develop any application or program having the same primary function as the Applications or otherwise exercise any rights in or to the Applications or the Documentation except as expressly permitted under Section 2.a (License Grant). With respect to the decompilation exception set forth in clause (ii) above, PHOD has the right to impose reasonable conditions and to request a reasonable fee before providing such information. Any such information supplied by PHOD and any information obtained by Customer by such permitted decompilation may only be used by Customer for the purpose described herein and may not be disclosed to any third party or used to create any software which is substantially similar to the expression of the Applications.

b. Ownership. Customer acknowledges that (i) the Applications and Documentation and all right, title and interest therein, including all IP Rights in and to the Applications and Documentation, are the sole and exclusive property of PHOD and its suppliers, and (ii) Customer receives no rights, title or interests in the Applications or Documentation except as expressly set forth herein. If Customer or any Related Party is deemed to have any ownership interest or rights in the Applications or Documentation, then Customer shall assign and/or cause such parties to assign, and Customer does hereby assign, irrevocably and royalty-free, all of such ownership interest and rights exclusively to PHOD and Customer shall, at PHOD’s reasonable request and expense, complete, execute and deliver any and all documents necessary to effect or perfect such assignments.

c. Protection. In no event shall Customer take any action that might encumber or expose the Applications or Documentation to any claims, liens or other forms of encumbrance.

4. Security; Acceptable Use.

a. Storage and Security; Password. Notwithstanding anything herein to the contrary, Customer shall be solely responsible for ensuring the confidentiality of Customer’s and/or its Authorized Users’ passwords and members accounts, as appropriate. If any Customer or Authorized User password is lost, stolen or otherwise compromised, Customer shall promptly change the password within the Applications or, if Customer is unable to access the Applications or change the password, Customer shall notify PHOD, whereupon PHOD shall undertake efforts to suspend access to the Applications by use of such password and issue a replacement password.

b. Acceptable Use Policy. Customer is solely responsible for any authorized or unauthorized access to and use of the Applications, including all acts, omissions and use under Customer and/or Authorized User accounts or passwords and/or in connection with any Customer Content displayed, linked, transmitted through or stored on the Servers or Applications. Customer shall not, and shall use best efforts to ensure that Authorized Users do not, in connection with the Applications, engage in any of the following: (i) creation of a false identity or other attempt to mislead any person as to the identity, source or origin of any communication or any act in violation of any Law; (ii) interference, disruption or attempt to gain unauthorized access to any computer system, server, network or account for which Customer or Authorized User does not have authorization to access or at a level exceeding Customer’s or Authorized User’s authorization; (iii) dissemination or transmission of any virus, trojan horse or other malicious, harmful or disabling data, work, code or program; or (iv) dissemination or transmission of any material, data, information or consent that (1) to a reasonable person may be abusive, obscene, pornographic, defamatory, harassing, grossly offensive, vulgar, threatening or malicious, or (2) actually or potentially infringes or violates the IP Rights of any third person or otherwise violates any Law, or (3) that is in violation of Law.

c. Reliance on Information. In providing the Application and the Services, PHOD shall be entitled to rely upon and act in accordance with any instructions, guidelines, data or information provided by Customer and any Authorized User who has actual or apparent authority to provide such instructions, guidelines or information, and shall incur no liability in doing so. Customer shall indemnify, defend and hold PHOD and PHOD’s Related Parties harmless from any and all third party claims, losses, actions, suits, proceedings or judgments, including, costs and reasonable attorneys’ fees, incurred by or assessed against such parties resulting, in whole or in part from (i) any action or failure to act by PHOD in reliance on any instruction, approval, election, decision, action, inaction, omission or nonperformance by Customer, its Authorized Users, officers, directors, shareholders, employees and agents relating to the Services, (ii) any information or data provided to PHOD by any Authorized User in connection with the Services, and/or (iii) any breach of any term or condition of this Agreement by Customer or its Authorized.

5. Termination and Effect

a. Termination. In addition to a party’s rights to terminate this Agreement as set forth elsewhere in this Agreement, either party may terminate this Agreement, in whole or in part, if the other party materially breaches any term of this Agreement and such breach is not cured within 60 days of written notice thereof. If Customer rightfully terminates for breach by PHOD, PHOD shall refund to Customer a ratable share of any fees actually paid by Customer for Recurring Services not rendered prior to the date the termination of this Agreement takes effect. Customer acknowledges and agrees that such refund, together with Customer’s termination right, shall be Customer’s sole and exclusive remedy for a breach of this Agreement by PHOD. Customer acknowledges and agrees that in all other circumstances any Fees paid are non-refundable, and PHOD shall have no obligation to refund or return any Fees paid pursuant to this Agreement. This Agreement shall automatically terminate upon termination of the BAA, unless the parties enter into a new business associate agreement to replace the BAA. Nothing in this section is intended to preclude PHOD from seeking immediate appropriate injunctive relief in the event of any violation of PHOD’s IP Rights, including rights in the Applications.

b. Effect of Termination. Upon the expiration or termination of this Agreement, (i) any amounts owed to PHOD under this Agreement prior to such expiration or termination shall be immediately due and payable, (ii) no residual rights will remain with Customer, and Customer and any Authorized Users shall discontinue all use of the Applications and Documentation, (iii) PHOD shall cease providing access to the Applications, and (iv) Customer shall erase and remove all copies of the Applications and Documentation from any computer equipment and media in Customer’s possession, custody or control.

6. Disclaimer; Limitation of Liability.

a. Limited Warranty. Each party represents and warrants to the other party that it has the requisite corporate right, power and authority to enter into, and perform under, this Agreement.

b. Disclaimer. THE APPLICATIONS AND DOCUMENTATION ARE PROVIDED ON AN “AS IS” BASIS, AND CUSTOMER’S USE OF THE SAME IS AT CUSTOMER’S OWN RISK. EXCEPT AS EXPRESSLY SET FORTH IN SECTION 6.a (LIMITED WARRANTY), PHOD MAKES NO WARRANTIES, EXPRESS OR IMPLIED, WITH RESPECT TO THIS AGREEMENT, THE APPLICATIONS OR THE DOCUMENTATION, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE OR NONINFRINGEMENT AND ANY WARRANTIES ARISING OUT OF COURSE OF DEALING OR COURSE OF PERFORMANCE. WITHOUT LIMITING THE FOREGOING, PHOD DOES NOT WARRANT THAT THE APPLICATIONS WILL MEET THE REQUIREMENTS OR EXPECTATIONS OF CUSTOMER OR THAT THE APPLICATIONS OR CUSTOMER’S USE OF THE SAME WILL BE UNINTERRUPTED, ERROR-FREE, OR COMPLETELY SECURE. PHOD SHALL HAVE NO LIABILITY FOR ANY INACCESSIBILITY OF THE APPLICATIONS, DELAY, FAILURE, UNAUTHORIZED ACCESS TO OR ALTERATION OF ANY AUTHORIZED USER TRANSMISSION OR DATA, ANY MATERIAL OR DATA SENT OR RECEIVED OR NOT SENT OR RECEIVED, ANY TRANSACTION OR AGREEMENT ENTERED INTO VIA THE APPLICATIONS, OR ANY DATA OR MATERIAL FROM A THIRD PERSON ACCESSED ON OR THROUGH THE APPLICATIONS. PHOD DOES NOT AND CANNOT CONTROL THE FLOW OF DATA TO OR FROM THE SERVERS AND OTHER PORTIONS OF THE INTERNET. SUCH FLOW DEPENDS IN LARGE PART ON THE PERFORMANCE OF INTERNET AND TELECOMMUNICATIONS SERVICES PROVIDED OR CONTROLLED BY THIRD PARTIES. BECAUSE SOME JURISDICTIONS DO NOT ALLOW CERTAIN EXCLUSIONS OR DISCLAIMERS, IN SUCH JURISDICTIONS, THE PARTIES AGREE THAT THE FOREGOING EXCLUSIONS AND DISCLAIMERS SHALL BE PERMITTED TO THE FULLEST EXTENT PERMITTED BY SUCH JURISDICTION.

c. Limitation of Liability. NEITHER PHOD NOR ITS RELATED PARTIES, SHALL BE LIABLE FOR ANY CONSEQUENTIAL, INDIRECT, EXEMPLARY, SPECIAL, OR INCIDENTAL DAMAGES, INCLUDING WITHOUT LIMITATION ANY LOST DATA OR LOST PROFITS, OR COSTS OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, ARISING FROM OR RELATING TO THIS AGREEMENT OR THE BAA, THE USE OF OR INABILITY TO USE THE APPLICATIONS, OR ANY MATERIAL OR DATA SENT OR RECEIVED OR NOT SENT OR RECEIVED AND ANY TRANSACTION OR AGREEMENT ENTERED INTO VIA THE APPLICATIONS, HOWEVER CAUSED AND UNDER ANY THEORY OF LIABILITY (INCLUDING CONTRACT, TORT OR NEGLIGENCE), EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. UNDER NO CIRCUMSTANCES SHALL PHOD’S AGGREGATE AND TOTAL CUMULATIVE LIABILITY IN CONNECTION WITH THIS AGREEMENT OR THE BAA EXCEED THE FEES PAID TO PHOD HEREUNDER. EACH OF THE PARTIES ACKNOWLEDGES THAT THESE LIMITATIONS REFLECT A FAIR ALLOCATION OF RISK AND THAT PHOD WOULD NOT HAVE ENTERED INTO THIS AGREEMENT WITHOUT THESE LIMITATIONS ON ITS LIABILITY, AND EACH OF THE PARTIES AGREES THAT THESE LIMITATIONS SHALL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY. BECAUSE SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF CERTAIN CATEGORIES OF DAMAGES, IN SUCH JURISDICTIONS, THE PARTIES AGREE THAT THE LIABILITY OF PHOD SHALL BE LIMITED TO THE FULLEST EXTENT PERMITTED BY SUCH JURISDICTION.

7. Payments

a. Fees. Customer shall pay PHOD the Fees listed in the Commercial Terms, as such pricing may be increased from time to time in accordance with the Commercial Terms. Unless expressly provided to the contrary in the Commercial Terms, all Fees payable under this Agreement shall be paid net 30 days from the invoice date. All Fees are non-refundable except as otherwise expressly provided by this Agreement. All payments must be made in U.S. dollars unless otherwise specified in the Commercial Terms. Any portion of the Fees that is not paid when due will accrue interest at 1.5% per month or the maximum rate permitted by applicable law, whichever is less, from the due date until paid. Customer will be responsible for the cost of any collection activity, including attorneys’ fees. Failure of Customer to make any payment when due shall be deemed to be a material breach of this Agreement. In addition to any other rights and remedies specified in this Agreement, PHOD reserves the right to suspend access to and use of the Applications until such time as any overdue payments, plus any applicable interest payments, are made and Customer agrees that PHOD shall have no liability for suspending such access and use in such circumstances. The acceptance by PHOD of any partial payment shall not constitute a waiver of payment in full by Customer.

b. Taxes. The Fees exclude all applicable sales, use, and other taxes, and all applicable export and import fees, customs duties and similar charges attributable to any use by Customer of the Applications, and Customer will be responsible for payment of all such taxes (other than taxes based on PHOD’s net income), fees, duties, and charges, and any related penalties and interest, arising from the payment of the Fees or the delivery, provision or license of the Applications to Customer. Customer will defend, indemnify, and hold harmless PHOD and its Related Parties from all claims and liability arising from Customer’s failure to report or pay any such taxes, fees, duties or charges.

c. Out-of-Pocket Expenses. Customer shall reimburse PHOD for all reasonable travel, living, and other related out-of-pocket expenses associated with PHOD’s provision of installation, testing, training, maintenance and support and other services requested by Customer and provided by PHOD in connection with this Agreement.

8. Public Disclosure.

Each party will treat this Agreement and its terms as confidential hereunder and will make no press release or public disclosure, either written or oral, regarding the existence of, or transactions contemplated by, this Agreement without the prior written consent of the other party hereto, which consent shall not be unreasonably withheld or delayed; provided that the foregoing will not prohibit any disclosure to the extent required by applicable securities laws or the rules of any stock exchange where a party’s securities are traded. Notwithstanding anything herein to the contrary, PHOD shall have the right to list Customer as a customer on PHOD’s website, on publicly available customer lists, and in media releases.

9. Miscellaneous.

a. Entire Agreement. This Agreement and the BAA represent the entire agreement of the parties, and supersedes any prior or contemporaneous understandings, whether written or oral. This Agreement and the BAA may be modified, supplemented or changed only by an agreement in writing which makes specific reference to this Agreement or BAA (as applicable) and which is signed by both PHOD and Customer.

b. Force Majeure. Neither party shall be responsible to the other for any failure or delay in its performance under this Agreement, other than with respect to its payment obligations, if such failure or delay is due to war, act of terrorism, riot, strike, fire, sabotage, flood, or other natural disaster, catastrophe, or other similar cause outside the control of the affected party provided that such party provides the other with written notice of such force majeure condition and resumes its performance as soon as possible.

c. Waiver. No delay or omission by either party to exercise any right or power will impair any such right or power or be construed to be a waiver thereof. A waiver by any party of any of the covenants, conditions, or contracts to be performed by the other or any breach thereof shall not be construed to be a waiver of any succeeding breach thereof or of any other covenant, condition, or contract herein contained. No change, waiver, or discharge hereof shall be valid unless in writing and signed by an authorized representative of the party against which such change, waiver, or discharge is sought to be enforced.

d. Independent Contractors. PHOD and Customer are independent contractors, each acting for its own account, and neither is authorized to make any commitment or representation, or incur any obligation, express or implied, on the other’s behalf. In all matters relating to this Agreement and the BAA, neither party or its employees or agents are, or will act as, employees or agents of the other party within the meaning or application of any federal or state laws.

e. Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be unenforceable, such provision will be changed and interpreted to accomplish the objectives of such provision to the greatest extent possible under applicable law and the remaining provisions will continue in full force and effect.

f. Remedies. Except as expressly provided otherwise in this Agreement, in addition to any remedies provided in this Agreement, the parties shall have all remedies provided at law or in equity. The rights and remedies provided in this Agreement or otherwise under Law shall be cumulative and the exercise of any particular right or remedy shall not preclude the exercise of any other rights or remedies in addition to, or as an alternative of, such right or remedy, except as expressly provided otherwise in this Agreement.

g. No Third Party Beneficiaries. Except with respect to indemnification for indemnified parties expressly identified herein, no term or provision of this Agreement is intended to be, or shall be, for the benefit of any person, firm, organization or corporation not a party hereto, and no such third party shall have any right or cause of action hereunder.

h. Attorneys’ Fees. If any party shall commence any action or proceeding against the other in order to enforce the provisions of this Agreement, or to recover damages as the result of the alleged breach of any of the provisions of this Agreement, the prevailing party therein shall be entitled to recover all reasonable costs incurred in connection therewith against the party commencing such action or the party who has breached this Agreement, as the case may be, including reasonable attorneys’ fees.

i. Survival. The rights and obligations of the parties set forth in Sections 2.b (Customer Content), 2.f (No Implied Licenses), 3.a (Trade Secrets; Restrictions), 3.b (Ownership), 3.c (Protections), 4.c (Reliance on Information), 5.b (Effect of Termination), 6.b (Disclaimer), 6.c (Limitation of Liability), 7 (Payments), 8 (Public Disclosure) and 9 (Miscellaneous), and any other provision of this Agreement that by its nature is intended to survive, shall survive the expiration or termination of this Agreement for any reason whatsoever.

j. Construction. The captions and headings contained herein are for purposes of convenience only and are not a part of this Agreement; all references to this Agreement and the words “herein”, “hereof”, “hereto” and “hereunder” and other words of similar import refer to this Agreement as a whole and not to any particular Exhibit, Section, or other subdivision; and the words “including,” “included” and “includes” mean inclusion without limitation. In the event of any ambiguities in the language hereof, there shall be no inference drawn in favor of or against either party.

k. Export. Customer acknowledges that the Applications, Documentation, deliverables, Services and all related technical information, documents and materials are subject to export controls under the U.S. Export Administration Regulations and other applicable Laws. Customer will (i) comply strictly with all legal requirements established under these controls, (ii) cooperate fully with PHOD in any official or unofficial audit or inspection that relates to these controls, and (iii) not export, re-export, divert or transfer, directly or indirectly, any such item to any country or individual that is embargoed by Law or Executive Order, unless Customer has obtained the prior written authorization of PHOD and the U.S. Commerce Department.

l. Dispute Resolution. This Agreement and the BAA is made under and will be construed in accordance with the laws of the State of Colorado, other than such laws, rules, regulations and case law that would result in the application of the laws of a jurisdiction other than the State of Colorado. Any suit to enforce any provision of this Agreement or the BAA, or arising out of or based upon this Agreement or the BAA, shall be brought exclusively in the state or federal courts of the State of Colorado. Subject to Section 10.o (Equitable Remedies), each party hereby agrees that such courts shall have in personam jurisdiction and venue with respect to such party, and each party hereby submits to the in personam jurisdiction and venue of such courts and waives any objection based on inconvenient forum. This Agreement will not be governed by the conflict of law rules of any jurisdiction or the United Nations Convention on Contracts for the International Sale of Goods, the application of which is expressly excluded.

m. Notices. Any notice, request, approval, authorization, consent, demand or other communication required or permitted to be given or made pursuant to this Agreement shall be in writing and shall be deemed given on the earliest of (i) actual receipt, irrespective of the method of delivery, (ii) on the delivery day following dispatch if sent by express mail (or similar next day air courier service), or (iii) on the 6th day after mailing by registered or certified United States mail, return receipt requested, postage prepaid and addressed as set froth in the Cover Sheet.

n. Assignment. PHOD, in its sole discretion, may assign, subcontract, or otherwise transfer any of its rights or obligations under this Agreement. Customer shall not assign, sublicense or transfer, by operation of law or otherwise, any of its rights or obligations under this Agreement (including its license with respect to the Applications) to any third party without PHOD’s prior written consent; provided, however, that Customer may assign this Agreement to an entity that acquires all or substantially all of Customer’s business and assets, whether by merger, sale of assets, sale of stock or otherwise, provided further that such transferee assumes and agrees in writing to be bound to the terms and conditions to this Agreement and the BAA in every respect that Customer is bound. In the event of such assignment, Customer will provide PHOD with 30 days prior written notice thereof. Notwithstanding anything herein to the contrary, in no event shall Customer assign, sublicense or transfer, by operation of law or otherwise, any of its rights under this Agreement to a competitor of PHOD. Any attempted assignment or transfer in violation of the foregoing will be void. This Agreement shall be binding upon, and shall inure to the benefit of, the parties hereto and their respective permitted successors and assigns.

o. Equitable Remedies. The parties acknowledge and agree that a breach or threatened breach by Customer of Sections 2.a (License Grant), 3 (Restrictions on Use; Ownership), and 4.b (Acceptable Use Policy) could result in irreparable harm to the non-breaching party or its suppliers for which a remedy at law would be inadequate, and therefore, such party shall have the right to seek to obtain injunctive relief in any court of competent jurisdiction upon any violation or threatened violation of the terms of the foregoing sections without the necessity of posting bond or other security, in addition to all other rights and remedies available at law or in equity.

p. Notices. Any notice required or permitted to be given under the terms of this Agreement shall be deemed given when reduced to writing and delivered and addressed to (i) if to Customer, the mailing and/or email address set forth for Customer on the Terms and Conditions, or (ii) if to PHOD, then by certified mail, return receipt requested, or overnight national courier with a tracking system, to PowerHealth OnDemand, LLC., Attn: Chief Executive Officer, 6500 South Quebec Street, Suite 300, Greenwood Village, CO 80111, or to such other address as may be provided by PHOD to Customer using notice consistent with this section.

q. Counterparts. This Agreement may be executed in any number of counterparts, each of which shall be deemed an original, but all of which shall constitute one and the same instrument. A document, including the Agreement and the BAA, signed and transmitted by .pdf or electronic copy shall have the same binding effect as an original signature.