HTHR Terms of Use

These HTHR TERMS OF USE (this "Agreement") governs the use of the Services and Documentation (as each are defined below) and all information, data and other content made available to customer, as an individual or, if accessing or using the Services on behalf of another individual, organization, or entity ("Entity"), that Entity (in either case, "Customer") and Hthr LLC, 2140 South DuPont Hwy Camden, DE 19934 ("HTHR"). By entering into an Order, accessing or using any part of the Services, or by clicking "I agree" to this Agreement, Customer agrees that it shall be bound by this Agreement.

Any different or additional terms and conditions set forth in any purchase order, confirmation, statement of work, order form or similar ordering document, written or verbal, are rejected and shall have no force or effect on the Agreement unless it is an amendment or addendum to the Agreement signed by authorized representatives of both parties.

1. Definitions

• "Authorized Users" means Customer employees who are authorized by Customer to use the Services, for whom subscriptions to the Platform have been purchased, and who have been supplied user access credentials by Customer.
• "Customer Data" means the Leads, Interactive Data, Integration Data and such other data and information provided by Customer to HTHR to perform the Services. Customer Data does not include Usage Data or Aggregated Data.
• "Documentation" means the user manuals or Software specifications provided by HTHR to Customer in connection with the Services.
• "Error" means any reproducible error or defect in the Platform that causes the Platform not to operate substantially in accordance with the Documentation.
• "Intellectual Property Rights" means all worldwide intellectual property rights in existence now or in the future, including without limitation, copyrights, trademarks, service marks, trade secrets, know how, inventions, patents, patent applications, moral rights and all other proprietary rights, whether registered or unregistered.
• "Order" means the subscription package, including any upgrades, selected by Customer at https://www.hthr.ai/pricing or such other online ordering platform offered by HTHR, a purchase order and/or any other applicable ordering form between the Customer and HTHR that sets forth the Services, Fees, and the Term (as each are defined below), and such other terms that may be agreed to by and between the parties.
• "Platform" means HTHR's proprietary platform utilized by HTHR to provide the Software to Customer under this Agreement. The Platform does not include Customer's connectivity equipment, internet and network connections, hardware, software and other equipment as may be necessary for Customer and its Authorized Users to connect to and obtain access to the Platform or to utilize the Services. For the purposes of this Agreement, reference to the Platform shall include the Software.
• "Services" means the provision of AI generated sales development representative (SDR) and business development representative (BDR) services delivered through the Platform, training and consulting integration services in connection therewith, and such reports, data and other deliverables ("Deliverables") as may be specifically set forth in the applicable Order. For the purposes of this Agreement, reference to the Services shall include the Platform.
• "Software" means HTHR's proprietary software as a service offering AI generated SDR and BDR capabilities and made available through remote access by HTHR to Customer and its Authorized Users as part of the Platform, including any modified, updated, or enhanced versions that may become part of the Software.

2. Access Rights; Data Usage

• Access Rights; Customer's Use of the Platform. Subject to the terms and conditions of this Agreement, HTHR hereby grants to Customer, during the Term (as defined below), a non-exclusive, non-transferable (except as permitted by Section 11.2), non-sublicensable right to access and use the Platform for Customer's internal business purposes in accordance with the Documentation and the terms and conditions of this Agreement. HTHR and its licensors reserve all rights in and to the Platform not expressly granted to Customer under this Agreement.
• Restrictions. Customer shall not, and shall not permit any third party to: (a) modify, adapt, alter, translate, or create derivative works from the Platform or the Documentation; (b) merge the Platform with other software other than through interfaces published by HTHR; (c) sublicense, distribute, sell, use for service bureau use or as an application service provider, lease, rent, loan, or otherwise transfer the Platform or the Documentation to any third party; (d) reverse engineer, decompile, disassemble, or otherwise attempt to derive the source code for the Platform; (e) remove, alter, cover or obfuscate any copyright notices or other proprietary rights notices included in the Platform; (f) use the Platform to store or transmit any code, files, scripts, agents, or programs intended to do harm, including, for example, viruses, worms, time bombs and Trojan horses; or (g) share Authorized User credentials. Customer shall notify HTHR of any unauthorized use of the Platform.
• Data Collection; Data Use. Customer acknowledges that the Platform contains features that will allow the Platform to periodically collect and transmit to HTHR certain data that does not identify Customer or its Authorized Users and which is related to use of the Platform, including without limitation, license count, integration usage, usage patterns, traffic logs, order count, Platform versions, operating system versions, and operational telemetry ("Usage Data"). Customer further acknowledges that in the course of providing the Services, HTHR collects (i) transcriptions, recordings and summaries of sales interactions with Leads (as defined below) through the Platform, (ii) metadata and analytical data arising from sales interactions with Leads through the Platform, (iii) demographic data and certain personal data and related questions, certain input and information communicated through the Platform, and that HTHR may record any such communications and create transcriptions and summaries thereof ("Interactive Data"). By accessing the Services, Customer hereby consents to HTHR's collection and use of the Interactive Data (i) for the purpose of providing the Services to Customer and otherwise performing its obligations and exercising its rights under this Agreement; (ii) to operate HTHR's business, including to develop, enhance, modify, inform and improve HTHR's products and services and any future products and services; (iii) for internal research purposes, (iv) for benchmarking purposes to create (in aggregated form) statistical comparisons among users of the Services and (v) to improve its products, improve the quality of its analytics and improve ("train") any artificial intelligence algorithms and machine learning models associated with the Services. HTHR may also create one or more de-identified, anonymized, or aggregated data set based upon the Interactive Data ("Aggregate Data"). Customer acknowledges and agrees that HTHR may make use of the Usage Data and Aggregate Data for any lawful purpose.

3. Services

• 3.1 Provision of Services. Subject to the terms and conditions of this Agreement, HTHR shall provide the Services to Customer and its Authorized Users. Customer shall supply to HTHR the Customer Data along with access and personnel resources that HTHR reasonably requests in order for HTHR to provide the Services. Customer is solely responsible for, at its own expense, acquiring, installing, and maintaining all connectivity equipment, internet and network connections, hardware, software, third party telephone networks (to the extent applicable), intermediary service providers, API vendors or carriers, and other equipment as may be necessary for its Authorized Users to connect to and access the Platform.
• 3.2 Authorized Users. The total number of Authorized Users is set forth in the Order. Customer shall ensure that its Authorized Users comply with the terms of this Agreement. Customer is responsible for ensuring that only its Authorized Users have access to system access credentials for the Platform, and Customer will contact immediately HTHR if Customer becomes aware of any unauthorized use or access to its account. Customer shall be responsible for any breach of this Agreement by its Authorized Users and any other such parties to whom Customer permits access to the Platform.
• 3.3 Customer Obligations. Customer shall provide such Customer Data as is required to perform the Services hereunder. In respect thereof, Customer represents and warrants that it has the right to: (a) use the Customer Data as contemplated by this Agreement and (b) grant HTHR the license in Section 8.3. The parties acknowledge and agree that Customer shall be solely responsible for (i) ensuring that any actual or potential clients of Customer contacted through or in connection with the Platform and the Services (hereinafter "Leads") have given prior express consent to be contacted by telephone calls, including through the use of automated dialing technology, in accordance with applicable laws and regulations, including but not limited to the Telephone Consumer Protection Act (TCPA) and any other federal or state laws governing telemarketing and communications ("Applicable Law") and (ii) reviewing the Platform, and any consent functions in connection therewith, to ensure that Customer's use thereof complies with Applicable Law. Customer shall indemnify, defend and hold harmless HTHR for any failure to comply with the foregoing obligations of this Section 3.3.
• 3.4 Third Party Offerings. HTHR may make access to or use of third-party Platform services, applications, or functionality that link to, interoperate with, or are incorporated into the Platform available to Customer (collectively, "Third-Party Offerings"). Customer acknowledges that HTHR does not own or control such Third-Party Offerings, they are made available as a convenience only and are not part of the Platform or subject to any of the warranties, service commitments, or other obligations with respect to Platform under this Agreement and that such Third-Party Offerings are subject to their own terms and conditions. Any acquisition by Customer of Third-Party Offerings, and any exchange of data between Customer and/or its Authorized Users and any Third-Party Offering is solely between Customer and/or its Authorized Users and the applicable Third-Party Offering provider. Access to and use of any Third-Party Offering is at Customer's own risk and is solely determined by the relevant third-party provider and is subject to such additional terms and conditions applicable to such Third-Party Offering. HTHR may disable or restrict access to any Third-Party Offerings on the Platform at any time without notice. HTHR is not liable for Third-Party Offerings or any Customer Data provided to a third party via a Third-Party Offering.
• 3.5 Evaluation Services & Beta Products. HTHR may make available to Customer access to the Platform and related Services on a limited trial basis at no cost to Customer ("Evaluation"), and may, from time to time, invite Customer to participate in pre-release or beta versions of features, functionalities, or modules (each, a "Proof of Concept" or "POC"), in each case solely for evaluation and testing purposes during the specified trial period (the POC and Evaluation, the "Trial Period"). Participation in a Trial Period is voluntary. The Evaluation shall end upon the first occurrence of (i) thirty (30) days following initiation, (ii) one hundred (100) connected calls or (iii) four-hundred (400) minutes, unless extended by HTHR in its sole discretion. POC will end on the earlier of (i) the general release of the POC; (ii) HTHR's decision to discontinue the POC; (iii) the end date specified in writing; or (iv) as otherwise outlined in the POC documentation. As a condition of the Trial Period, Customer shall provide HTHR with feedback regarding the Evaluation and POC promptly after the Trial Period. Customer acknowledges and agrees that use of the Platform and POC is for evaluation purposes only and is provided "as-is" with no warranties of any kind. Customer acknowledges and agrees that the Trial Period is not part of the services under the Agreement and may be subject to additional terms and conditions. The Trial Period is intended solely for feasibility or functionality assessment, and HTHR does not provide production or operational support in connection therewith. HTHR reserves the right, at its sole discretion, to discontinue or suspend Customer's or any user's use or access to the Platform and/or POC at any time in its sole discretion. If Customer or its Authorized Users are accessing and using a POC, the Platform or any services in connection therewith during a Trial Period, this Section 3.5 will apply and take precedence over any inconsistent or conflicting terms with respect to the Trial Period.

4. Fees and Payment

• 4.1 Fees. Customer shall pay HTHR the Fees set forth in the Order, and other agreed upon fees and expenses, in accordance with this Section 4.1 and Section 4.2 ("Fees"). All Fees are non-cancelable and non-refundable, except as otherwise expressly set forth in this Agreement. Fees exclude, and Customer shall make all payments of Fees to HTHR free and clear of, all applicable sales, use, and other taxes and all applicable export and import fees, customs duties and similar charges. Customer agrees that Customer has not relied on the future availability of any Platform, programs, updates or upgrades in entering into any payment obligations under this Agreement.
• 4.2 Payment Terms. Unless otherwise agreed to by the parties in writing, Customer shall pay to HTHR the Fees and other services, expenses or charges as set forth in the Order within the earlier of (i) 30 days after Customer's receipt of the applicable invoice or (ii) if payment terms are established through an online payment portal, in accordance with the time period set forth therein. All payments must be made in U.S. dollars. HTHR may charge Customer interest on any amounts not paid when due at the rate of 1½% per month or the maximum rate permitted by applicable law; whichever is less, from the due date until paid. Unless otherwise set forth in the Order, all Fees are non-refundable.
• 4.3 Inflationary Impact. To account for inflationary adjustments, HTHR reserves the right to increase its subscription based Fees on an annual basis, not to exceed the greater of 5% or the amount set forth under the Consumer Price Index published by the U.S. Department of Labor, Bureau of Labor Statistics.
• 4.4 Audit Rights. Customer shall maintain complete and accurate records of all information relevant to Customer's usage of the Platform and other performance related to this Agreement. HTHR may, during normal business hours and upon at least 5 business days prior notice, audit Customer's records relating to Customer's use of the Platform and performance under the Agreement in order to verify that Customer has complied with the terms of this Agreement, including Authorized User limitations. Customer shall promptly pay to HTHR any amounts shown by any such audit to be owing, as reasonably determined by HTHR, plus interest as provided in Section 4.2 above. Such audits may be conducted no more than once in any period of 6 consecutive months.

5. Warranties; Disclaimer

• 5.1 Access to the Platform. HTHR warrants that the Platform will perform materially in accordance with the Documentation and this Agreement. HTHR does not warrant that the Platform will be completely error-free or uninterrupted. If Customer notifies HTHR of an Error within 30 days after Customer experiences such Error, HTHR shall, at its own expense and as its sole obligation and Customer's exclusive remedy: (a) use commercially reasonable efforts to correct or provide a workaround for such Error; or (b) if HTHR is unable to correct or provide a workaround for such Error within 30 days after receiving notice of such Error from Customer, Customer may terminate this Agreement upon notice to HTHR and HTHR shall refund the amounts paid by Customer for access to the Platform for the period during which the Platform was not usable by Customer. The warranties set forth in this Section 5.1 do not apply to any Third Party Offerings or cover any Error caused by: (i) Customer or its Authorized Users; (ii) the Customer Data; (iii) use of the Platform in any manner or in any environment inconsistent with its intended purpose; or (iv) any equipment, software, or other material utilized by Customer in connection with the Platform contrary to the provider's instructions.
• 5.2 Disclaimer. EXCEPT FOR THE EXPRESS WARRANTIES SET FORTH IN THIS SECTION 5, HTHR MAKES NO REPRESENTATION OR WARRANTY, EXPRESS OR IMPLIED, WHETHER ARISING FROM STATUTE, CUSTOM, COURSE OF DEALING OR TRADE USAGE, WITH RESPECT TO THE SUBJECT MATTER OF THIS AGREEMENT, AND TO THE MAXIMUM EXTENT PERMISSIBLE UNDER APPLICABLE LAW, HTHR SPECIFICALLY DISCLAIMS ANY AND ALL STATUTORY OR IMPLIED WARRANTIES OR CONDITIONS REGARDING THE SERVICES, THEIR FEATURES AND FUNCTIONALITY, THEIR SECURITY, AND ANY CONTENT OR OTHER MATERIAL MADE AVAILABLE THEREIN OR THEREBY, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT. HTHR DOES NOT WARRANT THAT THE SERVICES WILL MEET CUSTOMER'S EXPECTATIONS, SPECIFICATIONS, OR REQUIREMENTS; THAT THE SERVICES WILL BE FREE OF VIRUSES, MALWARE, OR ERRORS. HTHR FURTHER EXPRESSLY DISCLAIMS ANY WARRANTY REGARDING THE LOSS OR CORRUPTION OF DATA UPLOADED TO, STORED BY, OR TRANSMITTED BY THE SERVICES.

6. Indemnification

• 6.1 Customer Claims. HTHR shall defend any claim, suit, or action against Customer brought by a third party to the extent based on an allegation that the Services, as delivered, infringes any intellectual property rights of such third party (each, a "Customer Claim"), and HTHR shall indemnify and hold Customer harmless, from and against damages, losses, liabilities, and expenses (including reasonable attorneys' fees and other legal expenses) (collectively, "Losses") that are specifically attributable to such Customer Claim or those costs and damages agreed to in a settlement of such Customer Claim. The foregoing obligations are conditioned on Customer: (a) promptly notifying HTHR in writing of such Customer Claim; (b) giving HTHR sole control of the defense thereof and any related settlement negotiations; and (c) cooperating and, at HTHR's expense, assisting in such defense. If HTHR believes that the Services infringes or has infringed a third party's Intellectual Property Rights, then HTHR may, at its option and at its own expense either (w) procure for Customer the right to continue using the Services, (x) replace the Services with a non-infringing but functionally equivalent product, (y) modify the Services so it becomes non-infringing, or (z) if none of the foregoing alternatives is commercially reasonable, then HTHR may terminate the applicable Order and refund a pro-rated amount of the Fees Customer may have paid to HTHR, computed according to a 60 month straight-line amortization schedule beginning on the effective date of such Order. Notwithstanding the foregoing, HTHR will have no obligation under this Section 6 with respect to any Customer Claim based upon: (1) any use of the Services not in accordance with this Agreement; (2) any use of the Services in combination with products, equipment, software or data that HTHR did not supply or approve of, if such infringement would have been avoided without the combination with such other products, equipment, software, or data; (3) any modification of the Services by any person other than HTHR or its authorized agents or subcontractors; (4) any information, design, specification, instruction, software, data, or material not furnished by HTHR, (5) use of an older version of the Services that has been superseded or (6) a Customer Claim in connection with the Customer Data. This Section 6 states HTHR's entire liability and Customer's sole and exclusive remedy for Customer Claims.
• 6.2 HTHR Claims. Customer shall defend any claim, suit, or action against HTHR brought by a third party to the extent that such claim, suit, or action is based upon (i) HTHR's use of any Customer Data in accordance with this Agreement, (ii) Customer's or any other party's use of the Customer Data and (iii) Customer's breach of this Agreement and/or violation of Applicable Law (a "HTHR Claim"), and Customer shall indemnify and hold HTHR harmless, from and against Losses that are specifically attributable to such HTHR Claim or those costs and damages agreed to in a settlement of such HTHR Claim. The foregoing obligations are conditioned on HTHR: (a) promptly notifying Customer in writing of such HTHR Claim; (b) giving Customer sole control of the defense thereof and any related settlement negotiations; and (c) cooperating and, at Customer's request and expense, assisting in such defense.

7. Limitation of Liability

8. Proprietary Rights and Ownership; Data Protection

• 8.1 The Services. Except for the limited licenses explicitly granted in this Agreement, HTHR and/or its licensors or suppliers, retain all right, title and interest in and to the Services, Software, Usage Data, Aggregate Data, Documentation, and all new software or product enhancements, improvements, or derivative works created or developed by HTHR in the performance of this Agreement, and all Intellectual Property Rights in each of the foregoing. Any rights not expressly granted to Customer hereunder are reserved by HTHR.
• 8.2 Feedback. In HTHR's sole discretion, HTHR may include ideas, features, functions, or other enhancements suggested by Customer ("Feedback") in any future releases to any past, present or future Platform with no obligation or financial or other remuneration whatsoever to the Customer, and Customer hereby irrevocably assigns to HTHR all of Customer's rights in the Feedback, including any Intellectual Property Rights.
• 8.3 Customer Data. As between HTHR and Customer, Customer retains sole ownership of Customer Data. Customer hereby grants to HTHR and its authorized representatives and contractors, during the Term, a limited, non-exclusive, non-transferable (except as permitted by Section 11.2) license to use the Customer Data solely for the limited purpose of performing the Services for Customer, to exercise the limited rights granted in Section 2.3 and fulfilling its other obligations under this Agreement.
• 8.4 Personal Data. To the extent Customer Data contains any personal data governed by applicable data protection laws, the parties agree and acknowledge that HTHR is a service provider or processor, as such terms are defined under applicable data protection laws, and the parties obligations thereto shall be subject to the provisions of the HTHR Data Processing Addendum, the terms of which are incorporated herein by reference.

9. Confidentiality

• 9.1 Definitions. "Confidential Information" means all information disclosed by one party ("Discloser") to the other party ("Recipient") under this Agreement during the Term. Confidential Information includes information that is marked or identified as confidential and, if not marked or identified as confidential, information that should reasonably have been understood by Recipient to be proprietary and confidential to Discloser or to a third party. HTHR's Confidential Information includes the Platform, Documentation, and all routines, subroutines, directories, tools, programs, or any other technology included therein.
• 9.2 Protection. Recipient shall not use any Confidential Information for any purpose not expressly permitted by this Agreement and shall not disclose Confidential Information to anyone other than Recipient's employees and independent contractors who have a need to know such Confidential Information for purposes of this Agreement and who are subject to confidentiality obligations no less restrictive than Recipient's obligations under this Section 9. Recipient shall protect Confidential Information from unauthorized use, access, and disclosure in the same manner as Recipient protects its own confidential or proprietary information of a similar nature and with no less than reasonable care.
• 9.3 Exceptions. Recipient shall have no confidentiality obligations under Section 9.2 above with respect to any information of Discloser that Recipient can document: (a) was already known to Recipient prior to Discloser's disclosure; (b) is disclosed to Recipient by a third party who had the right to make such disclosure without violating any confidentiality agreement with or other obligation to the party who disclosed the information; or (c) is, or through no fault of Recipient has become, generally available to the public; or (d) is independently developed by Recipient without use of or reliance on the Confidential Information of Discloser. Recipient may disclose Confidential Information if required to as part of a judicial process, government investigation, legal proceeding, or other similar process on the condition that, to the extent permitted by applicable law, Recipient gives prior written notice of such requirement to Discloser. Recipient shall take reasonable efforts to provide this notice in sufficient time to allow Discloser to seek an appropriate confidentiality agreement, protective order, or modification of any disclosure, and Recipient shall reasonably cooperate in such efforts at the expense of Discloser.

10. Term and Termination

• 10.1 Term. This Agreement shall run coterminous with all active Orders.
• 10.2 Order Term. The term of an Order shall be in accordance with the length of Service set forth in the Order (the "Term"). Unless otherwise stated in the Order, the Term shall renew automatically at the end of the Term unless and until terminated in accordance with this Section 10.
• 10.3 Termination. A party may terminate an Order upon notice if the other party breaches any material provision of this Agreement and (provided that such breach is capable of cure) does not cure such breach within 15 days after being provided with written notice of such breach. Customer may terminate an Order for any reason or no reason at all with thirty (30) days prior written notice; provided that for any monthly Term, such notice shall be within thirty (30) days of the next renewal Term.
• 10.4 Effects of Termination. Upon termination of an Order: (a) all amounts owed to HTHR under this Agreement and such Order before such termination will be due and payable in accordance with Section 4; (b) Customer's rights granted in this Agreement will immediately cease; (c) Customer shall promptly discontinue all access and use of the Platform and return or erase, all copies of the Documentation in Customer's possession or control; and (d) HTHR shall promptly return or erase all Customer Data, except that HTHR may retain Customer Data in HTHR's archived backup files.
• 10.5 Suspension. Notwithstanding anything to the contrary in this Agreement, HTHR may suspend Customer's access to the Services if HTHR determines that: (a) there is an attack on the Platform; (b) Customer's or any of its Authorized Users' use of the Services poses a reasonable risk of harm or liability to HTHR and, if capable of being cured, Customer is not taking appropriate action to cure such risk; (c) Customer or an Authorized User has breached Sections 2.2, 3.3 or 8; (d) Customer's or its Authorized Users' use of the Services violates applicable law; or (e) Customer has failed to pay any undisputed amounts owed under this Agreement when due and has failed to cure such late payment within 15 days after HTHR has provided Customer with written notice of such late payment. HTHR shall use commercially reasonable efforts to provide Customer with notice of such suspension. HTHR may suspend Customer's access to the Platform until the situation giving rise to the suspension has been remedied to HTHR's reasonable satisfaction. HTHR's suspension of Customer's access to the Platform will not relieve Customer of its payment obligations under this Agreement.
• 10.6 Survival. Sections 1, 2.3, 2.9, 3.2, 3.5, 4.2, 5.2, 6, 7, 8, 9, 10.4 and 11 of the Agreement, together with any accrued payment obligations, will survive expiration or termination of the Agreement for any reason.

11. General

• 11.1 Compliance with Laws. The Services may be subject to export restrictions. Customer shall comply with all applicable export and import control laws and regulations in its use of the Platform.
• 11.2 Assignments. Neither party may assign this Agreement or any of its rights under this Agreement to any third party without the other party's prior written consent; except that a party may assign this Agreement without consent from the other party to (a) an affiliate; or (b) any successor to its business or assets to which this Agreement relates, whether by merger, acquisition, or sale of all or substantially all of its assets, or otherwise. Any attempted assignment in violation of the foregoing will be void and of no force or effect.
• 11.3 Subcontractors. HTHR may utilize subcontractors, subprocessors, and other third-party providers (collectively, "Subcontractors") in the performance of its obligations, provided that HTHR will remain liable and responsible for the Subcontractors' acts and omissions to the extent any of such acts or omissions, if performed by HTHR, would constitute a breach of, or otherwise give rise to liability to HTHR under, this Agreement when they are performing for or on behalf of HTHR.
• 11.4 Independent Contractor. The relationship of the parties established under this Agreement is that of independent contractors and neither party is a partner, employee, agent, or joint venture partner of or with the other, and neither party has the right or authority to assume or create any obligation on behalf of the other party.
• 11.5 Force Majeure. Except for payment obligations, neither party will be liable under this Agreement, or for any failure or delay in the performance of its obligations, resulting from any cause beyond that party's reasonable control.
• 11.6 Notices. To be effective, notices under this Agreement must be delivered in writing by courier, or certified or registered mail (postage prepaid and return receipt requested) to the other party at the address for each party first set forth in the Order and will be effective upon receipt, except that e-mail may be used for routine communications and to obtain operational approvals and consents but may not be used for any other notices.
• 11.7 Governing Law and Venue. The laws of the State of Delaware govern this Agreement and any matters related to this Agreement, without regard to any conflicts of laws principles that would require the application of the laws of a different jurisdiction. Except for emergency injunctive relief as contemplated under Section 11.8, any dispute arising hereunder shall be settled by binding arbitration in accordance with the Comprehensive Arbitration Rules and Procedures promulgated by JAMS (formerly Judicial Arbitration and Mediation Services, Inc.) in effect as of the initiation of said arbitration. Such ruling and judgment shall also be binding, final, and non-appealable and may be entered by any court having jurisdiction thereof. The place of arbitration shall be conducted in Wilmington, Delaware, and all proceedings and communications shall be in English.
• 11.8 Remedies. Except as otherwise expressly provided in this Agreement, the parties' rights and remedies under this Agreement are cumulative. Each party acknowledges that any actual or threatened breach of Sections 2.2, 8 or 9 may constitute immediate, irreparable harm to the non-breaching party for which monetary damages may not be an inadequate remedy, that injunctive relief is an appropriate remedy for such breach, and that if granted, the breaching party agrees to waive any bond that would otherwise be required. If any legal action is brought by a party to enforce this Agreement, the prevailing party will be entitled to receive its attorneys' fees, court costs, and other legal expenses, in addition to any other relief it may receive from the non-prevailing party.
• 11.9 Waivers. To be effective, any waivers must be in writing and signed by the party to be charged. Any waiver or failure to enforce any provision of this Agreement on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion.
• 11.10 Severability. If any provision of this Agreement is unenforceable, the other provisions of this Agreement will be unimpaired, and the unenforceable provision will be deemed modified so that it is enforceable to the maximum extent permitted by law (unless such modification is not permitted by law, in which case such provision will be disregarded).
• 11.11 Entire Agreement. This Agreement (and the Data Processing Addendum and/or Business Associate Agreement, as may be applicable) and any exhibits or attachments hereto constitute the final and entire agreement between the parties regarding the subject hereof and supersedes all other agreements, whether written or oral, between the parties concerning such subject matter. No terms and conditions proposed by either party shall be binding on the other party unless accepted in writing by both parties, and each party hereby objects to and rejects all terms and conditions not so accepted. No amendment to this Agreement will be effective unless in writing and signed by the party to be charged.