Subscription Agreement

Last updated September 20, 2023BY CHECKING THE ACCEPTANCE BOX OR ACCESSING OR USING ALL OR ANY PORTION OF THE CALLVITALZ INC. SERVICES YOU ARE ACCEPTING ALL OF THE TERMS AND CONDITIONS OF THIS AGREEMENT AS PUBLISHED ON CALLVITALZ’S WEBSITE AT https://www.callvitalz.com/termsofuse (AS MAY BE RELOCATED BY CALLVITALZ FROM TIME TO TIME). YOU AGREE THAT THIS AGREEMENT IS ENFORCEABLE LIKE ANY WRITTEN AGREEMENT SIGNED BY YOU AND LEGALLY BINDING BETWEEN YOU AND CALLVITALZ INC. (“CALLVITALZ”). IF YOU DO NOT AGREE TO ALL OF THESE TERMS AND CONDITIONS, DO NOT ACCESS OR USE CALLVITALZ SERVICES. IF YOU WISH TO USE CALLVITALZ SERVICES AS AN EMPLOYEE, CONTRACTOR, OR AGENT OF A CORPORATION, PARTNERSHIP OR OTHER ENTITY, THEN YOU MUST BE AUTHORIZED TO SIGN FOR AND BIND THE ENTITY IN ORDER TO ACCEPT THE TERMS OF THIS AGREEMENT AND YOU REPRESENT AND WARRANT THAT YOU HAVE THE RIGHT AND AUTHORITY TO DO SO. CALLVITALZ MAY MODIFY THIS AGREEMENT AS SET FORTH IN SECTION 10.14 (MODIFICATIONS TO THIS AGREEMENT).This CallVitalz Services Subscription Agreement (“Agreement”) is between CallVitalz and the customer (individual or entity) that has purchased a subscription to CallVitalz Services (“you” or “your”). “Order Form” means any order on a CallVitalz order form which references this Agreement. Each Order Form which references this Agreement shall be deemed a part of this Agreement. The “Effective Date” of this Agreement is the date which is the earlier of (a) your initial access to CallVitalz Services through any online provisioning, registration or order process, or (b) the effective date of the first Order Form referencing this Agreement.

1.   CALLVITALZ SERVICES
‍1.1.    Provision of CallVitalz Services.
CallVitalz Services is a hosted service permitting you to access [CallVitalz’s analytic and data visualization products,] as such products may be modified, enhanced, and/or updated from time to time (“CallVitalz Services”). Provision of CallVitalz Services to you involves the ongoing operation, support and improvement of CallVitalz Services for  all users. CallVitalz Services is described more fully in the then-current version of any supporting product help and technical specifications documentation provided by CallVitalz with CallVitalz Services to you (“Documentation”). CallVitalz Services is provided on a subscription basis for a set term designated herein or in the applicable Order Form (each, a “Service Term”).
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‍1.2. Access to CallVitalz Services.
Subject to the terms and conditions of the Agreement, and except as set forth in Section 5 (Term and Termination) CallVitalz hereby grants to you a subscription right to access and use CallVitalz Services solely for your business purposes and only in accordance with: (i) the CallVitalz Terms of Use, which can be found here https://www.callvitalz.com/termsofuse
‍1.3. and (ii) the restrictions set forth in Section 1.5 (General Restrictions), and Section 2 (Customer Data and Your Obligations) and (iii) any restrictions in service capacity designated on the applicable Order Form. You will use reasonable efforts to prevent any unauthorized access to or use of CallVitalz Services and the Documentation, and will promptly notify CallVitalz in writing of any unauthorized access or use of which you become aware and provide all reasonable cooperation to prevent and terminate such access or use.
‍1.4. Authorized Users. “Authorized Users” means those uniquely identified persons or entities who are authorized by you to use and access CallVitalz Services for any purpose regardless of whether those individuals are actively using CallVitalz Services at any given time. You may allow your Contractors and Affiliates to access CallVitalz Services as Authorized Users in accordance with this Agreement, provided you shall remain liable for all acts and omissions of your Affiliates and Contractors as if their breach were your own. “Affiliate” means any entity that directly or indirectly controls, is controlled by, or is under common control with you (where “control,” means direct or indirect ownership or control of more than 50% of your voting interests). “Contractor” means those independent third parties who perform services related to this Agreement for you, but solely to the extent they are acting on your behalf.
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‍1.5. Third-Party Code.
CallVitalz Services may contain or be provided with components which are licensed from third parties (“Third Party Code”), including components subject to the terms and conditions of “open source” software licenses (“Open Source Software”).
‍1.6. (a) Open Source Software. Open Source Software may be identified in the Documentation, or in a list of the Open Source Software provided to you upon written request. To the extent required by the license that accompanies the Open Source Software, the terms of such license will apply in lieu of the terms of this Agreement with respect to such Open Source Software, including, without limitation, any provisions governing access to source code, modification or reverse engineering.

‍1.7. General Restrictions.
‍As a condition to the rights granted to you hereunder, you shall not (and shall not allow any third party to): (a) decompile, disassemble, or otherwise reverse engineer CallVitalz Services or any Third Party Code or attempt to reconstruct or discover any source code, APIs, underlying ideas, algorithms, file formats, data or programming interfaces of CallVitalz Services or the Third Party Code by any means whatsoever (except and only to the extent that applicable law prohibits or restricts reverse engineering restrictions, or as permitted by an applicable Open Source Software license); (b) distribute, sell, sublicense, rent, lease or use CallVitalz Services or any Third Party Code (or any portion thereof) for time sharing, hosting, service provider or like purposes; (c) remove any product identification, proprietary, copyright trademark, service mark, or other notices contained in CallVitalz Services or any Third Party Code (including any reports or data printed via the use of CallVitalz Services); (d) modify any part of CallVitalz Services or any Third Party Code, create a derivative work of any part of CallVitalz Services or any Third Party Code, or incorporate CallVitalz Services or any Third Party Code into or with other software, except to the extent expressly authorized in writing by CallVitalz or as permitted by an applicable Open Source Software license; (e) publicly disseminate performance information or analysis (including, without limitation, benchmarks) from any source relating to CallVitalz Services; (f) utilize any equipment, device, software, or other means designed to circumvent or remove any form of copy or other protection used by CallVitalz in connection with CallVitalz Services, or use CallVitalz Services together with any user credentials or other copy protection device not supplied by CallVitalz; (g) use CallVitalz Services to develop a product which is competitive with any CallVitalz product offerings; (h) use unauthorized user credentials or distribute or publish such credentials except as may be expressly permitted by CallVitalz in writing; (i) enable access to CallVitalz Services for a greater number of Authorized Users than the sum quantity of subscriptions purchased on the applicable Order Form(s); (j) reassign subscription access rights between Authorized Users so frequently as to enable a single subscription to be shared between multiple users; (k) assert, nor will you authorize, assist or encourage any third-party to assert, against CallVitalz or any of its affiliates, customers, vendors, business partners, or licensors, any patent infringement or other intellectual property infringement claim regarding CallVitalz Services or any support you have purchased or used hereunder; (l) use CallVitalz Services to develop a product that converts any CallVitalz file format to an alternative report file format used by any general-purpose report writing, data analysis or report delivery product that is not the property of CallVitalz; or (m) use CallVitalz Services in a way that has a detrimental impact on CallVitalz’s and its licensors ability to provide CallVitalz Services to their other customers.

2.  CUSTOMER DATA AND YOUR OBLIGATIONS

‍2.1 Customer Data. “Customer Data” means any data which you input, or provide to CallVitalz for input and analysis, into CallVitalz Services.

‍2.2 Your Obligations(a)    
‍General. You are solely responsible for the accuracy and content of all Customer Data. You represent and warrant to CallVitalz that (i) you have sufficient rights in the Customer Data to authorize CallVitalz to process, analyze, distribute and display the Customer Data as contemplated by this Agreement and the Documentation, (ii) the Customer Data and its use hereunder will not violate or infringe the rights of any third party, and (iii) your use of CallVitalz Services and all Customer Data is at all times compliant with your privacy policies and all applicable local, state, federal and international laws, regulations and conventions, including without limitation those related to data privacy, international communications and the exportation of technical or personal data.
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‍2.3 Rights in Customer Data.
‍As between the parties, you shall retain all right, title and interest (including any and all intellectual property rights) in and to your Customer Data as published on CallVitalz Services. Subject to the terms of this Agreement, you hereby grant to CallVitalz a non-exclusive, worldwide, royalty-free right to use, copy, store, transmit, and distribute, perform and display (including publicly), modify and create derivative works of the Customer Data solely to the extent necessary to provide CallVitalz Services in accordance with this Agreement, the Documentation, and for the ongoing development of the CallVitalz Services during and subsequent to the Service Term.

3.  OWNERSHIP
‍3.1. CallVitalz Technology. Notwithstanding anything to the contrary contained herein, except for the limited access and use rights expressly provided herein, CallVitalz and its licensors retain all right, title and interest (including, without limitation, all patent, copyright, trade secret and other intellectual property rights) in and to CallVitalz Services, the Documentation, the Third Party Code, any other CallVitalz deliverables and any and all related and underlying software (including interfaces), databases (including data models, structures, and any other non-customer specific data and statistical data), technology, reports, documentation, as well as any related process or methodology provided or used by CallVitalz, and with respect to each of the foregoing, any copies, modifications, improvements, derivative works, or enhancements thereto however developed or provided (including any which incorporate any of your ideas Feedback or suggestions)(collectively, “CallVitalz Technology”). You acknowledge that you are obtaining only a limited right to access and use CallVitalz Services on a hosted basis and that irrespective of any use of the words “purchase”, “sale”, “sublicense” or like terms hereunder no ownership rights are being conveyed to you under this Agreement or otherwise, and further acknowledge that nothing contained in this Agreement shall be construed to convey to you ownership of any intellectual property rights in or to any CallVitalz Technology or any related methodologies or processes. Nothing in this Section
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‍3.1 shall be deemed as granting CallVitalz ownership of Customer Data or in any way impacting your ownership of Customer Data.

‍3.2. Feedback. From time to time, you or your Authorized Users may submit suggestions, enhancements, requests, recommendations, corrections, or other feedback relating to CallVitalz Services, Content or other CallVitalz software or services (“Feedback”). You agree that all Feedback is and shall be given entirely voluntarily. Feedback, even if designated as confidential by you, shall not, absent a separate written agreement, create any confidentiality obligation for or upon CallVitalz. CallVitalz may in connection with any of its products or services freely use, copy, disclose, license, distribute and exploit any Feedback in any manner it sees fit without any obligation, royalty or restriction based on intellectual property rights or otherwise.

4.  SERVICE TERM, FEES & PAYMENT

‍4.1.      Service Term. Unless otherwise specified on the applicable Order Form, each Service Term shall begin on the effective date of the applicable Order Form and will continue on a month-to-month basis. All applicable fees for such renewals will be at CallVitalz’s then-current rates. If your subscription is not renewed, your access to CallVitalz Services will terminate at the end of the then-current Service Term.
‍4.2. Fees and Payment. You shall pay all fees set forth in the applicable Order Form. The Implementation Fee shall be due upon execution of the Service Agreement. All subsequent payments shall be made in the currency noted on the applicable Order Form within fifteen (15) days of the receipt of each monthly invoice. Invoices shall be sent on the first day of each month during the Trial Use Period, the ongoing month-to-month Service Term, and any subsequent Service Term. Your Monthly Service Fee shall be determined by your Service Level tier, as set forth in the Order Form. CallVitalz reserves the right to review your Service Level use every six (6) months and, upon written notice to you, amend your Service Level tier as appropriate based on your use of the Services during that prior period.

‍4.3. Suspension of Services. If your account is thirty (30) days or more overdue, in addition to any of its other rights or remedies (including but not limited to any termination rights set forth herein), CallVitalz reserves the right to suspend your access to CallVitalz Services without liability to you until such amounts are paid in full. Within a reasonable time after written notice by CallVitalz that your use of the CallVitalz Services service is having a detrimental impact on CallVitalz’s ability to provide CallVitalz Services to its other customers, CallVitalz reserves the right, at its sole discretion, to suspend or limit your access to CallVitalz Services.

5.  TERM AND TERMINATION
‍5.1. Term. This Agreement is effective as of the Effective Date and expires on the date of expiration or termination of the Service Term(s).

‍5.2. Termination for Cause. Either party may terminate this Agreement (including all related Order Forms) if the other party:(a) fails to cure any material breach of this Agreement within thirty (30) days after written notice of such breach including without limitation your failure to pay, provided that CallVitalz may terminate this Agreement immediately upon any breach of Section 1.5 (General Restrictions) or if you violate any other restrictions contained in Section 2 (Customer Data and Your Obligations); (b) ceases operation without a successor; or (c) seeks protection under any bankruptcy, receivership, trust deed, creditors arrangement, composition, or comparable proceeding, or if any such proceeding is instituted against that party (and not dismissed within sixty (60) days thereafter). Termination is not an exclusive remedy and the exercise by either party of any remedy under this Agreement will be without prejudice to any other remedies it may have under this Agreement, by law, or otherwise.

‍5.3. Early Termination.    Either party may terminate this Agreement on a quarterly basis throughout the Service Period upon thirty (30) days written notice to the other party.

‍5.4. Effect of Termination. Upon any effective termination or expiration of this Agreement, you shall immediately cease any and all use of and access to CallVitalz Services. You acknowledge that, except as exported or printed prior to termination or expiration by you as may be permitted through the functionality of CallVitalz Services, following termination or expiration you shall have no further access to CallVitalz Services. Except where an exclusive remedy is specified in this Agreement, the exercise by either party of any remedy under this Agreement, including termination, will be without prejudice to any other remedies it may have under this Agreement, by law, or otherwise.

‍5.5. Survival. The following Sections shall survive any expiration or termination of this Agreement: Sections 1.5 (General Restrictions), 3 (Ownership), 4.2 (Fees and Payment), 5 (Term and Termination), 6.3 (Warranty Disclaimer), 7 (Limitation of Remedies and Damages), 8.2 (Indemnification by You), 9 (Confidential Information) and 10 (General Terms).

6.  LIMITED WARRANTY

‍6.1. Limited Warranty. CallVitalz warrants to you that CallVitalz Services will operate in substantial conformity with the applicable Documentation. CallVitalz does not warrant that your use of CallVitalz Services will be uninterrupted or error-free, nor does CallVitalz warrant that it will review the Customer Data for accuracy or that it will preserve or maintain the Customer Data without loss. CallVitalz’s sole liability (and your sole and exclusive remedy) for any breach of this warranty shall be, in CallVitalz’s sole discretion and at no charge to you, to use commercially reasonable efforts to correct the reported non-conformity, or if CallVitalz determines such remedy to be impracticable, to allow you to terminate the applicable Service Term and receive as your sole remedy a refund of: (a) the monthly subscription fees specified in the applicable Order Form which are allocable to the thirty (30) day period prior to the date the warranty claim was made and (b) any fees you have pre-paid for use of CallVitalz Services or related services you have not received as of the date of the warranty claim.

‍6.2. Exclusions. The above warranty shall not apply: (a) unless you make a claim within thirty (30) days of the date on which the condition giving rise to the claim first appeared; (b) if CallVitalz Services is used with hardware or software not authorized in the Documentation; (c) if the error was caused by misuse, unauthorized modifications or third-party hardware, software or services; (d) to any Pilot Use as set forth on an applicable Order Form; or (e) to any Third Party Code.

‍6.3. Warranty Disclaimer. THIS SECTION 6 IS A LIMITED WARRANTY AND, EXCEPT AS EXPRESSLY SET FORTH IN IN THIS SECTION 6, CALLVITALZ SERVICES, INCLUDING WITHOUT LIMITATION ANY THIRD-PARTY CODE ARE PROVIDED “AS IS”. NEITHER CALLVITALZ NOR ITS LICENSORS MAKES ANY OTHER WARRANTIES, CONDITIONS OR UNDERTAKINGS, EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, INCLUDING BUT NOT LIMITED TO WARRANTIES OF TITLE, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, ACCURACY, COMPLETENESS OR NONINFRINGEMENT. YOU MAY HAVE OTHER STATUTORY RIGHTS. HOWEVER, TO THE FULL EXTENT PERMITTED BY LAW, THE DURATION OF STATUTORILY REQUIRED WARRANTIES SHALL BE LIMITED AS PROVIDED HEREIN. CALLVITALZ SHALL NOT BE LIABLE FOR DELAYS, INTERRUPTIONS, SERVICE FAILURES AND OTHER PROBLEMS INHERENT IN USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS OR OTHER SYSTEMS OUTSIDE THE REASONABLE CONTROL OF CALLVITALZ.

7.  LIMITATION OF REMEDIES AND DAMAGES

‍7.1. BUT FOR: (1) BREACH OF SECTION
1.3 (CLIENT SUBLICENSEES), SECTION 1.5 (GENERAL RESTRICTIONS), OR (2) DAMAGES ARISING OUT OF CLIENT SUBLICENSEE’S USE OF CALLVITALZ SERVICES, INCLUDING YOUR OBLIGATIONS UNDER SECTION 8.2, NEITHER PARTY SHALL BE LIABLE FOR ANY LOSS OF USE, LOST OR INACCURATE DATA, FAILURE OF SECURITY MECHANISMS, INTERRUPTION OF BUSINESS, COSTS OF DELAY OR ANY INDIRECT, SPECIAL, INCIDENTAL, RELIANCE OR CONSEQUENTIAL DAMAGES OF ANY KIND (INCLUDING LOST PROFITS), REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE, EVEN IF INFORMED OF THE POSSIBILITY OF SUCH DAMAGES IN ADVANCE.

‍7.2. BUT FOR: (1) BREACH OF SECTION 1.3 (CLIENT SUBLICENSEES), SECTION 1.5 (GENERAL RESTRICTIONS), OR (2) DAMAGES ARISING OUT OF CLIENT SUBLICENSEE’S USE OF CALLVITALZ SERVICES, INCLUDING YOUR OBLIGATIONS UNDER SECTION 9.2, EACH PARTY’S ENTIRE LIABILITY AND OBLIGATION TO THE OTHER PARTY SHALL NOT EXCEED THE TOTAL FEES PAID OR OWED BY YOU TO CALLVITALZ UNDER THIS AGREEMENT DURING THE TWELVE MONTHS PRECEDING THE CLAIM. IN THE CASE WHERE NO AMOUNT WAS PAID FOR THE SERVICE GIVING RISE TO THE CLAIM, CALLVITALZ AND ITS LICENSORS’ ENTIRE LIABILITY TO YOU UNDER THIS AGREEMENT SHALL NOT EXCEED US$100.

‍7.3. Failure of Essential Purpose. The parties agree that the limitations specified in this Section 7 will survive and apply even if any limited remedy specified in this Agreement is found to have failed of its essential purpose.8. INDEMNIFICATIO

N8.1. CallVitalz Indemnification. CallVitalz shall defend you from and against any claim by a third party alleging that CallVitalz Services, when used as authorized under this Agreement, infringes a U.S. patent,U.S. copyright, or U.S. trademark and shall indemnify and hold your harmless from and against any damages and costs awarded against you or agreed to in settlement by CallVitalz (including reasonable attorneys’ fees). Provided that CallVitalz shall have received from you: (i) prompt written notice of such claim (but in any event notice in sufficient time for CallVitalz to respond without prejudice); (ii) the exclusive right to control and direct the investigation, defense, and settlement (if applicable) of such claim; and (iii) all reasonably necessary cooperation from you. If your use of CallVitalz Services is (or in CallVitalz’s opinion is likely to be) enjoined, if required by settlement or if CallVitalz determines such actions are reasonably necessary to avoid material liability, CallVitalz may, in its sole discretion: (a) substitute for CallVitalz Services substantially functionally similar programs and documentation; (b) procure for you the right to continue using CallVitalz Services; or if (a) and (b) are not commercially reasonable, (c) terminate the Agreement and refund to you the subscription fees paid by you for the portion of the Service Term which was paid by you but not rendered by CallVitalz. The foregoing obligations of CallVitalz shall not apply: (1) if CallVitalz Services is combined with other non-CallVitalz Services or processes not provided or authorized by CallVitalz, but solely to the extent the alleged infringement is caused by such combination; (2) to any unauthorized use of CallVitalz Services; (3) to any action arising as a result of Customer Data or any third-party components contained within or uploaded to CallVitalz Services; (4) to any Third Party Code, or (5) if you settle or make any admissions with respect to a claim without CallVitalz’s prior written consent. SECTIONS 7 AND 8 SET FORTH CALLVITALZ AND ITS LICENSOR’S SOLE LIABILITY AND YOUR SOLE AND EXCLUSIVE REMEDY WITH RESPECT TO ANY CLAIM OF INTELLECTUAL PROPERTY INFRINGEMENT.

‍8.2. Indemnification by You. Subject to this Section 8, you shall defend CallVitalz from and against any and all claims by third parties (including any Client Sublicensees and Contractors) resulting from or relating to: (i) the Customer Data, including without limitation any claim based on your breach or alleged breach of Section 2.2 (Your Obligations), alleging that the Customer Data infringes upon any valid patent, copyright, trademark, trade secret, or other proprietary right of, or otherwise harms, such third party; (ii) any  breach by you of Section 1.3 (Client Sublicensees); (iii) your own products or offerings used by Client Sublicensees or relationships with Client Sublicensees; (iv); a Client Sublicensee’s use of CallVitalz Services; or (v) in use of the CallVitalz Services in an unlawful manner or in violation of the Agreement or other appliable license terms and shall indemnify and hold  CallVitalz harmless from and against any damages and costs awarded against CallVitalz or agreed in settlement by you (including reasonable attorney’s fees) resulting from such claims, provided that you shall have received from CallVitalz: (a) prompt written notice of such claim (but in any event notice in sufficient time for you to respond without prejudice); (b) the exclusive right to control and direct the investigation, defense, and settlement (if applicable) of such claim; and (c) all reasonably necessary cooperation from CallVitalz. You may not settle any such claim relating to CallVitalz Services without CallVitalz’s prior written consent, which shall not be unreasonably withheld, conditioned or delayed.9.  CONFIDENTIAL INFORMATION.

‍9.1. Use of Confidential Information. Each party (as “Receiving Party”) agrees that all source code, inventions, know-how, business, technical and financial information it obtains from the disclosing party (“Disclosing Party”) constitute the confidential property of the Disclosing Party (“Confidential Information”), provided that it is identified as confidential at the time of disclosure or should be reasonably known by the Receiving Party to be Confidential Information due to the nature of the information disclosed and the circumstances surrounding the disclosure. Any software, pricing, documentation or technical information provided by CallVitalz (or its agents), performance information relating to CallVitalz Services, and the terms and conditions of this Agreement shall be deemed Confidential Information of CallVitalz without any marking or further designation. Customer Data shall be deemed your Confidential Information without any marking or further designation. Except as expressly authorized herein, the Receiving Party will hold in confidence and not use or disclose any Confidential Information to anyone other than its affiliates, employees and consultants (“Representatives”) who have a need to know and who agree in writing to keep the information confidential on terms no less restrictive than those contained in this Agreement. Both CallVitalz and you will ensure that their respective Representatives comply with this Agreement and will be responsible for any unauthorized use or disclosure of Confidential Information by such Representatives. The Receiving Party’s nondisclosure obligation shall not apply to information which the Receiving Party can document: (a) was rightfully in its possession or known to it prior to receipt of the Confidential Information; (b) is or has become public knowledge through no fault of the Receiving Party; (c) is rightfully obtained by the Receiving Party from a third party without breach of any confidentiality obligation; (d) is independently developed by employees of the Receiving Party who had no access to such information; or (e) is required to be disclosed pursuant to a regulation, law or court order (but only to the minimum extent required to comply with such regulation or order and with advance notice to the Disclosing Party). The Receiving Party acknowledges that disclosure of Confidential Information could cause substantial harm for which damages alone would not be a sufficient remedy, and therefore upon any such disclosure by the Receiving Party the Disclosing Party shall be entitled to seek appropriate equitable relief in addition to whatever other remedies it might have at law.9.2.        Privacy Statement: CallVitalz may collect certain personal information in connection with your use of CallVitalz Services, including without limitation, registration data and usage data, in accordance with CallVitalz Software’s Privacy Policy, a current version of which is available at [LINK TO PRIVACY POLICY].[1]10.  GENERAL TERMS

‍10.1. Assignment. Neither party may assign any of its rights or obligations hereunder, whether by operation of law or otherwise, without the other party’s prior written consent (not to be unreasonably withheld); provided, however, either party may assign this Agreement in its entirety (including all Order Forms), without the other party’s consent to its affiliate or in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets.

‍10.2. Severability. If any provision of this Agreement shall be adjudged by any court of competent jurisdiction to be unenforceable or  invalid, that provision shall be limited to the minimum extent necessary so that this Agreement shall otherwise remain in effect.

‍10.3. Governing Law; Jurisdiction and Venue. Excluding conflict of laws rules, this Agreement shall be governed by and construed under the laws of the State of Delaware. The parties agree that Delaware will be the venue of any dispute and will have jurisdiction over the parties.  
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‍10.4. Attorneys’ Fees and Costs. The prevailing party in any action to enforce this Agreement will be entitled to recover its attorneys’ fees and costs in connection with such action.

‍10.5.    CallVitalz’s Customer List. You agree that CallVitalz may disclose you as a customer of CallVitalz and use your name and logo on CallVitalz’s website and in CallVitalz’s promotional materials.

‍10.6. Notice. Any notice or communication required or permitted under this Agreement shall be in writing or in electronic format. If to CallVitalz by mail, such notice or report shall be sent to CallVitalz at 5030 Forge Road, Perry Hall, MD  21128 to the attention of Sandra Lee. If to CallVitalz by email, such notice or report shall be sent to: agreements@callvitalz.com. If to you such notice or report shall be sent to the mailing or email address you provided upon placing your order. Notices  and reports sent by mail shall be deemed given: (a) upon receipt if by personal delivery; (b) upon receipt if sent by certified or registered mail (return receipt requested); or (c) one day after it is sent if by next day delivery by a major commercial delivery service. Any notices and reports sent by email shall be effective upon receipt of the same.

‍10.7. Amendments; Waivers. Except as otherwise provided in this Agreement, no supplement, modification, or amendment of this Agreement shall be binding, unless executed in writing by a duly authorized representative of each party to this Agreement. No waiver will be implied from conduct or failure to enforce or exercise rights under this Agreement, nor will any waiver be effective unless in a writing signed by a duly authorized representative on behalf of the party claimed to have waived. All conflicting terms in any purchase order or other business form employed by you, including any electronic invoicing portals and vendor registration processes are void, and any such document relating to this Agreement shall be for administrative purposes only and shall have no legal effect.

‍10.8. Entire Agreement. This Agreement (including each Order Form, the Terms of Use and any other mutually agreed exhibits or attachments) is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements and communications relating to the subject matter of this Agreement. You acknowledge that CallVitalz Services is an on-line, subscription-based product, and that in order to provide improved customer experience CallVitalz may make changes to CallVitalz Services (which may include making available different or substitute code compared to those available as of the Effective Date), and CallVitalz will update the Documentation accordingly.

‍10.9.  Independent Contractors. The parties are independent contractors. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between the parties. Each party will be solely responsible for payment of all compensation owed to its employees, as well as all employment-related taxes.

‍10.10. Audit Rights. You understand that CallVitalz may monitor your use of CallVitalz Services in order to verify that you have not exceeded your Service Capacity. If CallVitalz becomes aware of any excess usage of CallVitalz Services, then you will pay for the excess usage and for any ongoing excess usage at CallVitalz’s then-current rates. Upon CallVitalz’s written request, you shall furnish CallVitalz with a signed certification certifying that CallVitalz Services is being used pursuant to the terms of this Agreement, including any access and user limitations. With prior reasonable notice, CallVitalz may audit your compliance with this Agreement, your use of CallVitalz Services, and your software monitoring system and records, provided such audit is during regular business hours. If such inspections or audits disclose that you have accessed or permitted access to CallVitalz Services in a manner that is not permitted under this Agreement, then CallVitalz may terminate this Agreement pursuant to Section 5 and you are liable for the reasonable costs of the audit in addition to any other fees, damages and penalties CallVitalz may be entitled to under this Agreement and applicable law.

‍10.11. Force Majeure. Neither party shall be liable to the other for any delay or failure to perform any obligation under this Agreement (except for a failure to pay fees) if the delay or failure is due to unforeseen events which occur after the signing of this Agreement and which are beyond the reasonable control of such party, such as a strike, blockade, war, act of terrorism, riot, natural disaster, failure or diminishment of power or telecommunications or data networks or services, or refusal of a license by the government or other governmental agencies, in so far as such an event prevents or delays the affected party from fulfilling its obligations and such party is not able to prevent or remove the force majeure at reasonable cost.10.12.      Third Party Beneficiaries. There are no third-party beneficiaries under this Agreement.

‍10.13. Anti-Corruption. Neither party has received or been offered any illegal or improper bribe, kickback, payment, gift, or thing of value from an employee or agent of the other party in connection with this Agreement. Reasonable gifts and entertainment provided in the ordinary course of business do not violate the above restriction.

‍10.14.   Modifications to this Agreement. CallVitalz may modify this Agreement from time to time by giving notice to you through CallVitalz’s online user interfaces. Unless a shorter period is specified by CallVitalz (e.g. due to changes in the law or exigent circumstances), the modifications become effective upon renewal of your current Service Term or entry into a new Order Form. If CallVitalz specifies that the modifications to this Agreement will take effect prior to your next renewal or order and you notify CallVitalz in writing at agreements@callvitalz.com of your objection to the modifications within thirty (30) days after the date of such notice, CallVitalz (at its option and as your exclusive remedy) will either: (a) permit you to continue under the existing version of the Agreement until expiration of the then-current Service Term (after which time the modified Agreement will go into effect), or (b) allow you to terminate this Agreement and receive a refund of any pre-paid CallVitalz Services fees allocable to the terminated portion of the applicable Service Term. You may be required to click to accept or otherwise agree to the modified Agreement in order to continue using CallVitalz Services, and, in any event, continued use of CallVitalz Services after the modified version of this Agreement becomes effective will constitute your acceptance of such modified version.