COMMONLY WELL SUBSCRIPTION AND SERVICES AGREEMENT

2.1 By purchasing a Monthly Subscription, Customer agrees to an initial and recurring Monthly Subscription fee at the then-current Monthly Subscription rate, and Customer accepts responsibility for all recurring charges until Customer cancels the subscription. Customer may cancel the Monthly Subscription at any time, subject to the terms of cancellation as defined in Section 12.

2.2 Once Customer subscribes, CW will automatically process your Monthly Subscription fee in the next billing cycle (first of the month). CW will continue to automatically process Customer’s Monthly Subscription fee each month at the then-current Monthly Subscription rate, until Customer cancels the subscription, as defined in Section 12.

2.3 By purchasing an Annual Subscription, Customer agrees to an initial pre-payment for one full year of service per the packaged rate. After one year and annually thereafter, Customer will be billed a recurring Annual Subscription renewal fee at the then-current Annual Subscription rate. CW will notify Customer before the renewal fee is billed. Customer may cancel the Annual Subscription any time before the next billing cycle, subject to the terms of cancellation as defined in Section 12.

2.4 Once Customer subscribes, CW will automatically process the Annual Subscription fee at the then-current Annual Subscription rate, until Customer cancels the subscription, as defined in Section 12. CW will bill Customer’s credit card or complete an ACH payment for the Annual Subscription renewal fee in the first month of the Annual Subscription unless Customer cancels the Annual Subscription before renewal and subject to the terms of cancellation as defined in Section 12.

3.1 Bundled Subscription Services for (“Participant Census”) and 1 App Instances or Toll-Free-Numbers (“App Instances”).

Smart Bundle. Provides Customer with the following:
a. Standard on-demand and 30-day guided onboarding.

b. Access to the Gloo App based on stated Participant Census and number of App Instances. Includes the Recovery and Resilience Capital Index Assessments.

c. Single pre-launch Data Design workshop to tailor Commonly Well’s Standard Outcomes Model to Customer use case or primary workflow.

d. Single pre-launch Engagement Strategy workshop to customize Series and Survey templates to Customer’s use case or primary workflow.

e. Access to standard reports and dashboards as available in the Gloo App.

f. Scheduled quarterly check-in calls with CW customer success team, and

g. Invitation to CW’s weekly Virtual Office Hours.

Intelligent Bundle. Provides Customer with everything in the Smart Bundle, plus:

a. Up to 60-day guided onboarding.

b. Data Design workshop to develop up to 3 data and outcomes priorities.

c. Engagement workshop to develop up to 3 engagement strategies and communications priorities.

d. Access to CW assessment library and creation of up to 10 customized web-based assessments.

e. Development of custom reporting and analytics based on data and outcomes model.

f. Bi-annual data summary and analysis (print and dashboard view).

g. Bi-weekly check-ins for as long as desired.

Deep Intelligence Bundle. Provides Customer with everything in the Intelligent Bundle, plus:

a. 12-week guided onboarding.

b. Data Design workshop to develop full-scale program evaluation and outcomes strategy.

c. Engagement workshop to develop or co-author up to 7 Series and Surveys consistent with program engagement and communications strategies.

d. Unlimited customized web-based assessments.

e. Customized reporting dashboard for internal recovery decision-making, with option for embedded version on Customer website.

f. Quarterly data summary and analysis (print and dashboard view).

g. Annual Recovery Intelligence Report (program evaluation) with accompanying dashboard view.

h. Bi-weekly check-ins with Site Visit upon Request.

4.1 If Customer fails to make any payment when due, without limiting other rights and remedies due to CW: (a) CW may charge a late fee of 5%, and (b) if such failure continues for 90 days or more, CW may suspend Customer’s access to all or any portion of the Gloo App or other Services until such amounts are paid in full. Customer shall reimburse CW for all reasonable costs of collection.

5.1 Customers that utilize the RCI within or separate of the Gloo App will be subject to Commonly Well’s Terms of Use and Privacy Policy.

5.2 Customers that access the Gloo App will be subject to Gloo’s Terms of Service and Privacy Statement.

5.3 Commonly hereby grants to Customer a nonexclusive, revocable, non-transferable right to access, use, distribute, and display content provided within and separate of the Gloo solely for the purpose of the Services provided under this Agreement.

5.4 Customer shall not, unless otherwise agreed:

5.5 CW reserves all rights not expressly granted to Customer under this Agreement. No license or rights are granted to Customer by implication, estoppel, or otherwise, other than as expressly granted under Section 5. The Parties acknowledge that the non-exclusive nature of the access and use rights granted under Section 5 permits CW to execute access and use agreements with other persons in CW’s sole discretion.

5.6 CW may temporarily suspend Customer’s access to all or any portion of the RCI or other copyright materials if: (a) CW reasonably determines that (1) there is a threat or attack on the Gloo App; (2) Customer’s use of the Gloo App disrupts or poses a security risk to the Gloo App or to any other customer or vendor of CW; or (3) CW’s provision of the RCI or other copyright materials to Customer is prohibited by applicable law; (b) any vendor of CW has suspended or terminated CW’s access to or use of any third-party services required to enable Customer to access the the Gloo App or other Services; or (c) in accordance with Section 4.1 (collectively a “Service Suspension”). CW shall use commercially reasonable efforts to (A) provide notice of any Service Suspension and updates regarding resumption of access to the RCI, other copyright materials, or the Gloo App following any Service Suspension, and (B) resume providing access to the RCI, other copyright materials, or the Gloo App as soon as reasonably possible after the event giving rise to the Service Suspension is cured. CW will have no liability for any damage, liabilities, losses (including any loss of data or profits), or any other consequences that Customer may incur as a result of a Service Suspension.

6.1 Customer shall not alter, add, change, or remove any identification marks, including copyright or trademark notices, from the RCI or other copyright materials as provided to Customer. If Customer references the RCI or other copyright materials in written works, publishes any studies or findings relating to Customer’s use of the RCI, or in any other way publicizes Customer’s use of the RCI, Customer shall at all times refer to the RCI survey as the “Recovery Capital Index®” or “the RCI®” survey. Customer may not use CW’s trademarks, service marks, or other indicia of source or sponsorship, except with CW’s prior written consent or as expressly permitted by this Agreement.

6.2. Customer shall obtain any and all consents from Participants that may be necessary to provide the RCI or other surveys to them, including by means of an “automatic telephone dialing system” within the meaning of the Telephone Consumer Protection Act of 1991 as amended (codified at 47 U.S.C. §227) together with its implementing regulations (“TCPA”), or by means of an email message within the meaning of the Controlling the Assault of Non-Solicited Pornography and Marketing Act of 2003 as amended (codified at 15 U.S.C. §7701) together with its implementing regulations (“CAN-SPAM Act”). Customer shall only disclose to CW telephone numbers and email addresses of Participants who have voluntarily provided them for this purpose in compliance with the TCPA and CAN-SPAM Act. CW will provide to Customer an acceptable use Consent Form that Customer must use as is or incorporate the same or similar consent language into Customer’s intake or enrollment processes.

6.3. Each Party represents and warrants that it has not: (a) been listed as debarred, excluded, suspended or otherwise ineligible for participation in federal health care programs (as defined in Section 1128B(f) of the Social Security Act) (“Government Program”), or (b) been convicted of a criminal felony. Each Party agrees to immediately notify the other Party in the event it subsequently becomes debarred, excluded, suspended or otherwise ineligible for participation in, or is convicted of a criminal offense that may be a basis for mandatory exclusion from participation in, any Government Program. If a Party becomes debarred, excluded, suspended or ineligible, then the other Party may terminate this Agreement immediately upon notice.

7.1. “Participant Data” means data or information in any form that is submitted, posted, or otherwise transmitted by or on behalf of Customer through the Gloo App or other data capture methods provided to Customer by CW. Participant Data includes all individual data captured through Participants’ use of the Gloo App, but does not include Validation Data. “Validation Data” means all usage data captured through Customer’s use of the Gloo App, all individual data captured through Participants’ use of the Gloo App that has been de-identified within the meaning of the HIPAA Privacy Rule, and any derivatives of such usage data or de-identified data that are used by CW in an aggregate and anonymized manner.

7.2 As between CW and Customer, Customer owns all right, title, and interest, including all intellectual property rights, in and to the Participant Data. Customer is responsible for the accuracy, quality, and reliability of Participant’s Data and to use Participant’s Data in accordance with applicable law. Customer hereby grants to CW during the term of this Agreement a non-exclusive, royalty-free, worldwide license to reproduce, distribute, and otherwise use and display the Participant Data and perform all acts with respect to the Participant Data as may be necessary for CW to provide the RCI, Gloo App, and other Services to Customer.

7.3 If the Parties have executed a BAA to comply with the HIPAA Privacy Rule or 42 C.F.R. Part2, the BAA shall govern and shall supersede this Section 7.3. If the Parties have not executed a BAA, this Section 7.3 shall apply. CW, or Customer if integrating the RCI or other CW surveys into their technology, shall implement administrative, physical, and technical safeguards to protect the Participant Data from unauthorized access, disclosure, alteration, or damage that are in accordance with generally recognized industry practices, which shall at minimum require compliance with SOC 2 data security criteria and standards. CW, or Customer, shall implement commercially reasonable data backup and disaster recovery procedures with respect to the Participant Data. CW, or Customer, shall promptly report to the Other any breach of security or unauthorized access to the Participant Data that CW or the Other becomes aware of, shall use diligent efforts to remedy such breach of security or unauthorized access in a timely manner, and shall keep Customer or the other reasonably informed on the progress of such remedy.

7.4 CW may compile Validation Data based on Participant Data input into the Gloo App or other data capture methods provided by CW and may monitor Customer’s use of the Gloo App in order to collect and compile Validation Data. With respect to Participant Data captured through Participants’ use of the Gloo App that is not input into the Gloo App, Customer shall provide all such Participant Data to CW for inclusion in the Validation Data, (a) in a form that has been de-identified within the meaning of the HIPAA Privacy Rule, (b) in the electronic format agreed upon by the Parties, and (c) at least quarterly, and as reasonably requested from time to time.

7.5 As between CW and Customer, CW owns all right, title, and interest, including all intellectual property rights, in the Validation Data. CW may make Validation Data publicly available in compliance with applicable law and may otherwise use Validation Data to the extent and in the manner permitted under applicable law. Customer hereby grants to CW a non-exclusive, perpetual, irrevocable, royalty-free, worldwide license to reproduce, distribute, modify, and otherwise use and display Participant Data to the extent incorporated within the Validation Data.

8.1. For purposes of this Agreement, “Confidential Information” means all information disclosed by a Party (“Disclosing Party”) to the other Party (“Receiving Party”), orally, in writing, or in any other medium, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure. The terms of this Agreement shall be treated as Confidential Information of both Parties. The Recovery Capital Index shall be treated as Confidential Information of CW. However, except for Protected Health Information as defined in the Privacy Rule, Confidential Information shall not include any information that (a) is or becomes generally known to the public without breach of any confidentiality obligation by the Receiving Party or its representatives, (b) was known to the Receiving Party or its representatives prior to its disclosure by the Disclosing Party, (c) is received from a third party without breach of any confidentiality obligation owed by such third party, or (d) was independently developed by the Receiving Party without reference to or use of, in whole or in part, any of the Disclosing Party’s Confidential Information.

8.2. During and after the term of this Agreement, the Receiving Party shall (a) protect and safeguard the confidentiality of the Disclosing Party’s Confidential Information with at least the same degree of care as the Receiving Party would use to protect its own Confidential Information, but in no event with less than a reasonable degree of care, (b) not use the Disclosing Party’s Confidential Information, or permit it to be accessed or used, for any purpose other than to exercise its rights or perform its obligations under this Agreement, and (c) not disclose any such Confidential Information, except to the Receiving Party’s representatives who need to know the Confidential Information to assist the Receiving Party to exercise its rights or perform its obligations under this Agreement, and who are subject to confidentiality obligations at least as protective as those herein. The Receiving Party shall be responsible for any breach of this Section 6 caused by any of its representatives. The Receiving Party shall immediately inform the Disclosing Party in writing of any unauthorized possession or use of the Disclosing Party’s Confidential Information of which the Receiving Party becomes aware, and shall reasonably cooperate with the Disclosing Party, at the Disclosing Party’s cost, to protect its proprietary rights in such Confidential Information.

8.3. The Receiving Party may disclose Confidential Information of the Disclosing Party if it is compelled by law to do so, provided the Receiving Party gives the Disclosing Party prior notice of such compelled disclosure (to the extent legally permitted) and reasonable assistance, at the Disclosing Party’s cost, if the Disclosing Party wishes to contest or limit the disclosure.

9.1. Each Party (as the “Indemnifying Party”) shall indemnify, defend and hold harmless the other Party and its affiliates, and each of their respective officers, directors, employees, and agents (collectively the “Indemnified Parties”), from and against any and all losses, liabilities, damages, expenses and costs, including reasonable attorneys’ fees and expenses, incurred by the Indemnified Party as a result of any third party claim, demand, action or other proceeding arising from or related to any act or omission of the Indemnifying Party, its officers, directors, employees, agents, or assigns, that constitutes an actual or alleged breach of this Agreement, violation of law, or negligence or willful misconduct (each a “Claim”).

9.2. CW (as the “Indemnifying Party”) shall indemnify, defend and hold harmless Customer and its affiliates, and each of their respective officers, directors, employees, and agents (collectively the “Indemnified Parties”), from and against any and all losses, liabilities, damages, expenses and costs, including reasonable attorneys’ fees and expenses, incurred by the Indemnified Party as a result of any third party claim, demand, action or other proceeding asserting that the RCI, other copyright materials, or Gloo App, or any use of the RCI, copyright materials, or Gloo App in accordance with this Agreement, infringes or misappropriates such third party’s U.S. intellectual property rights (each a “Claim”). If such a Claim is made or appears possible, Customer agrees to permit CW, in CW’s sole discretion, (a) to modify or replace the RCI, copyright materials, or Gloo App, or any portion thereof, to make it non-infringing, or (b) to obtain the right for Customer to continue its use. If CW determines that neither alternative is reasonably available, CW may terminate this Agreement, in its entirety or with respect to the affected portion, effective immediately on notice to Customer. This Section 9.2 will not apply to the extent that the alleged infringement arises from (A) use of the RCI, copyright materials, or Gloo App in combination with data or technology not provided by CW or authorized by CW in writing, (B) modifications to the RCI, copyright materials, or Gloo App not made by CW, or (C) Customer Data. THIS SECTION 9.2 SETS FORTH CUSTOMER’S SOLE REMEDIES AND CW’s SOLE LIABILITY AND OBLIGATION FOR ANY ACTUAL OR THREATENED CLAIMS THAT THE RCI, COPYRIGHT MATERIALS, OR GLOO APP INFRINGE, MISAPPROPRIATE, OR OTHERWISE VIOLATE ANY INTELLECTUAL PROPERTY RIGHTS OF ANY THIRD PARTY.

9.3. The Indemnified Party shall (a) give the Indemnifying Party reasonably prompt written notice of the Claim (provided that the failure to give prompt written notice shall not relieve the Indemnifying Party of its indemnification obligations, except and only to the extent that the Indemnifying Party forfeits rights or defenses by reason of such failure); (b) give the Indemnifying Party sole control of the defense and settlement of the Claim (provided that the Indemnifying Party shall not enter into any stipulated judgment or settlement that purports to bind an Indemnified Party without the Indemnified Party’s express written authorization, which shall not be unreasonably withheld or delayed); and (c) provide to the Indemnifying Party all reasonable assistance, at the Indemnifying Party’s expense. The Indemnified Party may participate in the defense of such Claim with counsel of its own choosing and at its own expense. Any Indemnified Party who is not a Party to this Agreement is an express third-party beneficiary of this Section 9.

10.1. CW PROVIDES ACCESS TO THE RCI, COPYRIGHT MATERIALS, AND THE GLOO APP ON AN “AS IS” BASIS. EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, CW DOES NOT MAKE ANY REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED. FOR EXAMPLE, CW MAKES NO REPRESENTATIONS OR WARRANTIES OF MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE (EVEN IF CW KNOWS OF SUCH PURPOSE), TITLE, NONINFRINGEMENT, OR ANY IMPLIED WARRANTIES ARISING FROM STATUTE, COURSE OF PERFORMANCE, USAGE, OR TRADE PRACTICE. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, CW AND ITS LICENSORS AND SUPPLIERS MAKE NO WARRANTY: (A) AS TO THE ACCURACY, COMPLETENESS, CURRENCY, LEGALITY, USEFULNESS, OR RELIABILITY OF ANY DATA OR RESULTS AVAILABLE THROUGH THE RCI, GLOO APP, OR ANY SERVICES HEREUNDER, OR (B) THAT THE USE OF THE RCI, COPYRIGHT MATERIALS, GLOO APP, OR ANY SERVICES HEREUNDER WILL BE UNINTERRUPTED, TIMELY, COMPLETE, OR ERROR-FREE.

10.2. EACH PARTY ACKNOWLEDGES AND AGREES THAT THE OTHER PARTY’S LIABILITY IS TO BE LIMITED AS FOLLOWS, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW: NEITHER PARTY WILL BE LIABLE TO THE OTHER PARTY OR ANY PERSON FOR ANY SPECIAL, INDIRECT, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES, INCLUDING LOSS OF PROFITS, DATA, BUSINESS OR GOODWILL, IN CONNECTION WITH THIS AGREEMENT, WHETHER ARISING OUT OF BREACH OF CONTRACT, TORT, STATUTE, OR OTHERWISE, REGARDLESS OF ANY NOTICE OF THE POSSIBILITY OF SUCH DAMAGES. EACH PARTY’S LIABILITY FOR DAMAGES HEREUNDER SHALL IN NO EVENT EXCEED THE AMOUNT OF FEES PAID (OR DUE AND OWING) TO COMMONLY UNDER THIS AGREEMENT FOR THE ONE YEAR PERIOD IMMEDIATELY PRIOR TO THE EVENT GIVING RISE TO SUCH DAMAGES, EXCEPT IN CONNECTION WITH A CLAIM (A) FOR FEES DUE AND OWING UNDER SECTION 4, (B) FOR BREACH OF A PARTY’S CONFIDENTIALITY OBLIGATIONS UNDER SECTION 8, OR (C) FOR WHICH A PARTY OWES INDEMNITY UNDER SECTION 10. In no event will CW’s licensors or suppliers have any liability to Customer for any damages (whether direct or indirect, consequential, or otherwise) arising from or related to this Agreement, and Customer agrees not to assert any claim against CW’s licensors or suppliers in connection with this Agreement. CW’s licensors and suppliers are express third-party beneficiaries of this Section 10.2.

11.1. Either Party may terminate this Agreement upon written notice if the other Party materially breaches this Agreement and such breach (a) is incapable of cure, or (b) remains uncured 30 days after written notice thereof. CW may terminate this Agreement immediately upon written notice to Customer if Customer breaches any of its obligations under Section 5 or Section 8.

11.2. Either Party may terminate this Agreement upon written notice if the other Party: (a) files a petition for protection under bankruptcy or insolvency law, or has a petition filed against it and such involuntary petition is not dismissed within 60 days; (b) applies for or has appointed a receiver, trustee, custodian, or similar agent appointed to take charge of or sell any material portion of its property or business; (c) enters into a general assignment for the benefit of its creditors, or an agreement for the readjustment of substantially all of its obligations; or (d) is dissolved or liquidated or takes any corporate action for such purpose.

11.3. Upon termination or expiration of this Agreement, all rights relating to the RCI, copyright materials, or the Gloo App granted to Customer in this Agreement shall cease, and Customer shall immediately cease (a) accessing the Gloo App, and (b) all use of the RCI, copyright materials and CW’s Confidential Information. Promptly following termination, Customer shall return to CW or destroy all documents and tangible materials containing, incorporating, or based on CW’s Confidential Information, permanently erase all of CW’s Confidential Information from all systems Customer controls, and upon CW’s written request, certify in writing that it has complied with the requirements of this Section 11.3.

11.4. Upon termination or expiration of this Agreement, CW shall immediately cease all use of Participant Data and Customer’s Confidential Information. Upon written request by Customer made within 60 days following termination, CW will make available to Customer a complete copy of all Participant Data in CW’s possession, in CW’s native format or other format as mutually agreed. After this 60-day period, CW will have no obligation to maintain or provide any of Participant’s Data except as required by law. Promptly following such transfer of Partcipant Data, CW shall return to Customer or destroy all documents and tangible materials containing, incorporating, or based on Customer’s Confidential Information, permanently erase all of Customer’s Confidential Information from all systems CW controls, and upon Customer’s written request, certify in writing that it has complied with the requirements of this Section 11.4. For clarity, CW obligations under this Section 10.5 do not apply to the Validation Data.

11.5. Notwithstanding Section 11.3 and Section 11.4, the Receiving Party may retain the Disclosing Party’s Confidential Information, and CW may retain Participant Data, in each case in its then current state and solely to the extent and for so long as required by applicable law. CW may also retain Participant Data in its backup systems until such Participant Data is deleted in the ordinary course. All information described in this Section 11.5 will remain subject to all confidentiality, security, and other applicable requirements of this Agreement.

11.6. Termination of CW’s agreement with Face It TOGETHER, Inc., for the right to use and sublicense the Recovery Capital Index shall terminate this Agreement; provided, however, that Customer may request continuation of this Agreement by making written request to CW, within 60 days of Customer’s receipt of notice of termination, to assign this Agreement to Face It TOGETHER, Inc. Such request for assignment shall be subject to approval of each of CW and Face It TOGETHER, Inc., in its sole discretion.

11.7. Termination of CW agreement with Gloo, LLC., for the right to access and use the Gloo App shall terminate this Agreement; provided, however, that Customer may request continuation of this Agreement by making written request to CW, within 60 days of Customer’s receipt of notice of termination, to assign this Agreement to Gloo. Such request for assignment shall be subject to approval of each of CW and Gloo, in its sole discretion.

12.1. CW may display Customer’s name and logo on CW’s website and other promotional materials for the purpose of indicating that Customer is a customer of CW. Any other public statement regarding the subject matter of this Agreement including press releases or blog posts shall require mutual agreement of the Parties.

12.2. This Agreement shall be binding upon the Parties’ respective successors and permitted assigns. The rights granted hereunder, and this Agreement may not be assigned, transferred, or sublicensed directly or indirectly, by operation of law, contract or otherwise, by Customer except with the express written consent of CW, which may be withheld at CW’s sole discretion.

12.3. This Agreement replaces and supersedes any prior agreements between the Parties and sets forth the entire agreement between the Parties with respect to the subject matter hereof, WITH THE EXCEPTION OF ANY NON-DISCLOSURE AGREEMENT EXECUTED BETWEEN THE PARTIES. This Agreement may be modified only by an amendment signed by each Party. If any provision of this Agreement shall be found to be illegal or unenforceable, the remaining provisions of this Agreement shall remain in full force and effect, and such term or provision shall be deemed stricken to the extent necessary for compliance with applicable law. 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.

12.4. This Agreement shall be governed and interpreted according to the laws of the State of New York, without giving effect to any provisions thereof that would require the application of the law of a different state. Any dispute concerning this Agreement that cannot be resolved by informal negotiation shall be submitted to non-binding mediation in St. Lawrence County in the State of New York. Within 20 days after either Party refers a dispute to mediation, the parties shall agree upon an impartial mediator experienced in commercial transactions, and upon a procedure and schedule for (a) exchange of information related to the dispute, and (b) conducting the mediation. All conduct and statements made by any participant in the course of the mediation are confidential, privileged and inadmissible for any purpose, including impeachment, in any other proceeding between the parties, unless such evidence is otherwise admissible or discoverable. If a mediation fails or if any Party so chooses, a proceeding may be brought solely and exclusively in the appropriate state or federal court located in St. Lawrence County in the State of New York. Each of the Parties consents to the jurisdiction of such courts and waives any objection to jurisdiction or venue laid therein.

12.5. Notices under this Agreement shall be in writing and sent to the other Party at the address listed on the signature page, by certified or registered mail (return receipt requested), or by a nationally recognized courier service. Notice will be effective upon receipt or refusal of delivery. Notice by email will be effective upon receipt if confirmed by another method specified in this Section 12.5. Each Party may change its address for receipt of notice by giving notice of such change to the other Party.

12.6. If any one or more provisions of this Agreement shall be adjudicated to be illegal, invalid, or unenforceable in any respect, the validity, legality, and enforceability of the remaining provisions shall not in any way be affected or impaired thereby. The adjudicating body may substitute for any illegal, invalid, or unenforceable provision a valid or enforceable one, which achieves the economic, legal, and commercial objectives of the invalid or unenforceable provision to the greatest extent possible.

12.7. Any delays or failure in performance by any Party under this Agreement shall not be considered a breach of this Agreement if and to the extent caused either directly or indirectly by occurrences beyond the reasonable control of the affected Party, including acts of God, governmental restrictions, power outages, pandemics or epidemics, fire, flood, explosion, or the like (each a “Force Majeure Event”). Financial inability to perform will not excuse performance under this Section 12.7. The affected Party shall give the other Party prompt notice of any Force Majeure Event and shall use commercially reasonable efforts to resume full performance under this Agreement as promptly as reasonably practicable.

12.8. Except as specifically provided in Section 11 and Section 12.2, nothing in this Agreement shall be construed to give any rights or benefits to anyone other than the Parties.

12.9. The headings in this Agreement are for convenience only and shall not affect the interpretation hereof. The terms “hereof”, “herein” and similar words refer to the entire Agreement and not to any particular Article, Section, Exhibit or other subdivision of this Agreement. References to “days” mean calendar days unless specified otherwise. The words “include,” “includes” and “including” are deemed to be followed by the words “without limitation”, and the word “or” is not exclusive.

12.10. The provisions of this Agreement which by their nature are intended to survive the termination or expiration of the Agreement, including confidentiality, indemnities, limitations of liability, and reservations of rights, shall continue as valid and enforceable obligations of the parties notwithstanding any such termination or expiration.

12.11. Each Party acknowledges and agrees that a breach or threatened breach by such Party of any of its obligations under Section 8, or in the case of Customer a breach or threatened breach of any of its rights under Section 5.1 or obligations under Section 5.3, would cause the other Party irreparable harm for which monetary damages would not be an adequate remedy. Each Party agrees that, in the event of such breach or threatened breach, the other Party will be entitled to equitable relief, including a restraining order, an injunction, specific performance and any other relief that may be available from any court, without any requirement to post a bond or other security. Such remedies are not exclusive and are in addition to all other remedies that may be available at law, in equity or otherwise.

12.12. Each Party shall, upon request of the other Party, promptly execute and deliver such further documents and instruments and take such further actions as are reasonably necessary to give full effect to the terms of this Agreement.

12.13. This Agreement may be executed in counterparts, each of which is deemed an original, but all of which together are deemed to be one and the same agreement. A signed copy of this Agreement delivered by facsimile, email, or other means of electronic transmission is deemed to have the same legal effect as delivery of an original signed copy of this Agreement.