Terms and conditions (provider)
These Terms and Conditions (“Terms”) are between Telespine, Inc. dba Orbit Telehealth, a Delaware corporation (“Orbit Telehealth”) and the individual or entity identified in the Order Form (“Customer” or “you”). These Terms will govern the use and provision of any Services purchased or used by Customer. Any terms not defined herein have the meaning given to them in the applicable Order Form. The “Agreement” shall refer to any Order Form, these Terms, any additional Order Forms and all Appendixes and any other attachments to the Order Form. The Agreement is effective as of the date the Customer completes the Order Form (“Effective Date”).
Any individual agreeing to be bound by these Terms on behalf of an organization or other legal entity represents that such individual has the authority to bind such entity to the Terms.
1.1 Access Credentials” means login information, passwords, security protocols, and policies through which Users access the Services.
1.2 Confidential Information” means all written or oral information, disclosed or made available by one party (the “Disclosing Party”) to the other (the “Recipient”), related to the business, products, services or operations of the Disclosing Party or a third party that has been identified as confidential or that by the nature of the information or the circumstances surrounding disclosure ought reasonably to be treated as confidential, including, without limitation: (i) trade secrets, inventions, ideas, processes, computer source and object code, formulae, data, programs, other works of authorship, know-how, improvements, discoveries, developments, designs and techniques; (ii) information regarding products, plans for research and development, marketing and business plans, budgets, financial statements, contracts, prices, employees, suppliers and agents; and (iii) information regarding the skills and compensation of the Disclosing Party’s employees, contractors, and other agents.
1.3 “Documentation” means Orbit Telehealth’s documentation, user manuals, help files and videos, and other materials that describe the features, functions and operation of the Services.
1.4 “Order Form” means Orbit Telehealth’s ordering process for Services that was completed by Customer, which may include an online registration or a document signed by an authorized representative of each party.
1.5 “Services” means Orbit Telehealth’s online services identified in the Order Form. References to any Services include the Documentation.
1.6 “Orbit Telehealth Content” means all content made available by Orbit Telehealth through the Services, which may include, without limitation, exercise plans, articles, blogs, and newsletters.
1.7 “User” means each of Customer’s named employees and independent contractors who are provided Access Credentials by Customer. The number of Users authorized by Orbit Telehealth to access the Services is set forth in the applicable Order Form.
Access, Rights, Restrictions
2.1 Access Grant to Services. Subject to Customer’s compliance with the terms and conditions contained in the Agreement, including the restrictions or limitations set forth in any Order Form, Orbit Telehealth grants to Customer a non-exclusive, non-transferable, non-sublicensable, revocable right to allow the number of Users set forth in the applicable Order Form to access and use the Services during the Term (as defined below) for Customer’s internal business purposes.
2.2 Technical Support. Orbit Telehealth shall provide Customer with reasonable technical support services throughout the Term in accordance with Orbit Telehealth’s standard policies Monday-Friday, 8:00AM – 6:00 PM MT. Orbit Telehealth agrees to use commercially reasonable efforts to make the Services available to Customer at least 99.5% of the time excluding planned maintenance, measured monthly, during each month of the Term.
2.3 Access Credentials. Customer will safeguard, and ensure that all Users safeguard the Access Credentials. Customer will be responsible for all acts and omissions of Users.
2.4 Customer Restrictions. During the Term (as defined in Section 6) and thereafter, Customer shall not, and shall not permit any of its employees, contractors or Users to, directly or indirectly: (a) act as a reseller or distributor of, or a service bureau for, the Services or otherwise use, exploit, make available or encumber any of the Services to or for the benefit of any third party other than Customer’s customers; (b) use or demonstrate the Services in any other way that is in competition with Orbit Telehealth; (c) reverse engineer, disassemble or decompile the Services or attempt to derive the source code or underlying ideas or algorithms of any part of the Services (except to the limited extent applicable laws specifically prohibit such restriction); (d) access or use the Services without the prior written consent of Orbit Telehealth if customer is or becomes a direct competitor to Orbit Telehealth’s contract management application; (e) share access, use, or information about the Services with a direct competitor of Orbit Telehealth (f) remove any notice of proprietary rights from the Services; (g) copy, modify, translate or otherwise create derivative works of any part of the Services; (h) use the Services in a manner that interferes or attempt to interfere with the proper working of the Services or any activities conducted on the Services, including bypassing or attempting to bypass any privacy settings or measures used to prevent or restrict access to the Services; (i) use manual or automated software, devices, robot, spider, or other processes to “crawl” or “spider” or to retrieve, index, “scrape”, “data mine” or in any way gather information, content or other materials from the Services in an unauthorized manner or reproduce or circumvent the navigational structure or presentation of the Services; (j) use the Services in a manner which interferes with or disrupt its integrity or performance; or (k) use the Services to share or store inappropriate materials, including (i) materials containing viruses or other harmful or malicious code; (ii) unsolicited mail (spam); (iii) copyrighted materials to which Customer does not have sufficient rights; (iv) harassing, tortious, or defamatory materials; or (v) other materials prohibited by applicable international, federal, state, or local laws and regulations.
2.5 Customer Obligations. Customer shall create an account with Orbit Telehealth’s then-current payment processor (“Processor”) at its own cost and expense. Customer acknowledges that it must have an account with the Processor in order to use the Services, pay for Services, and receive the Revenue Share (defined below). Customer shall use commercially reasonable efforts to prevent unauthorized access to, or use of, the Services or Orbit Telehealth Content and notify Orbit Telehealth promptly of any such unauthorized use known to Customer. Customer shall use reasonable efforts to market and promote Orbit Telehealth’s “Plan Builder” and “Virtual Clinic” services or any rebranded or future service targeting patients (“Patient Services”) to its patients (“Patients”). Customer shall provide Patients that are interested in Patient Services with the unique URL provided to it by Orbital Telehealth, through which the Patient may sign up for and pay for Patient Services.
2.6 Orbit Telehealth Content. Customer acknowledges that the Orbit Telehealth Content is protected under applicable intellectual property and other laws, and as between Customer and Orbit Telehealth, Orbit Telehealth retains all ownership, right, title, and interest in and to the Orbit Telehealth Content, whether now existing or hereafter developed. Orbit Telehealth hereby grants you a limited, non-sublicensable, non-transferable, non-exclusive license to access and use the Orbit Telehealth Content as presented within the Services for viewing only for your own internal business purposes. Except as provided in these Terms, Customer has no right to modify, edit, copy, reproduce, create derivative works of, reverse engineer, alter, enhance, download, reproduce, screen share, distribute, or exploit any of the Orbit Telehealth Content. You shall not allow any third party access to the Orbit Telehealth Content. You acknowledge and agree that Orbit Telehealth does not provide, and the Orbit Telehealth Content does not constitute, medical advice. Orbit Telehealth provides Orbit Telehealth Content as a convenience only, and Customer must determine if Orbit Telehealth Content is appropriate for Customer’s needs and circumstances.
2.7 Proprietary Rights
(a) Confidential Information.
(i) Use and Disclosure. During the Term (as defined below) of the Agreement, each party will have access to the other party’s Confidential Information. Except as otherwise expressly permitted, and without limiting each party’s obligations, under the Agreement, each Recipient agrees as follows: (A) it will not disclose the Confidential Information of the Disclosing Party to anyone except its employees, and independent contractors who have a need to know and who have been advised of and have contractually agreed to treat such information in accordance with the terms of the Agreement (each a “Representative”) and (B) it will not use or reproduce the Confidential Information disclosed by the Disclosing Party for any purpose other than exercising its rights and performing its obligations as described herein. Each Recipient will be liable for the acts and omissions of its Representatives with respect to the Disclosing Party’s Confidential Information.
(ii) Exceptions. The provisions of Section 2.6 (a)(i) will not apply to Confidential Information that: (A) becomes generally available to the public through no fault of the Recipient; (B) is lawfully provided to the Recipient by a third party free of any confidentiality duties or obligations; (C) Recipient can prove, by clear and convincing evidence, was already known to the Recipient without restriction at the time of disclosure; or (D) Recipient can prove, by clear and convincing evidence, was independently developed by employees and contractors of Recipient who had no access to the Confidential Information.. Notwithstanding Section 2.6 (a)(i), each party may disclose Confidential Information to the limited extent required by a court or other governmental body, or as otherwise necessary to comply with applicable law, provided that the party making the disclosure pursuant to the order will first have given written notice to the other party and made a reasonable effort to obtain a protective order.
(b) Services and Orbit Telehealth Content. Except for the limited access grant provided to Customer in the Agreement, Orbit Telehealth reserves all right, title and interest in its intellectual property and business, including the Services, Orbit Telehealth Content, Documentation, and Marks.
(c) Trademark License. Subject to the terms and conditions of this Agreement, Orbit Telehealth grants to Customer a non-exclusive, non-transferable, revocable, license (without the right to grant sublicenses) to use and reproduce those trademarks, service marks, trade dress, trade names, brand names, product names, logos, and symbols used by Orbit Telehealth in order to identify the source of the Services (collectively, the “Marks”) solely in connection with marketing the Services to its patients. Customer agrees to state in appropriate places on all materials using the Marks that the Marks are trademarks of Orbit Telehealth and to include the symbol TM or ® as appropriate. Customer shall comply with any usage guidelines for the Marks provided by Orbit Telehealth from time-to-time. Orbit Telehealth grants no rights in the Marks other than those expressly granted in this paragraph. Customer acknowledges Orbit Telehealth’s exclusive ownership of the Marks. Customer agrees not to take any action inconsistent with such ownership and to cooperate, at Orbit Telehealth’s request and expense, in any action, which Orbit Telehealth deems necessary or desirable to establish or preserve Orbit Telehealth’s exclusive rights in and to the Marks. Customer shall not adopt, use, or attempt to register any trademarks, trade names or domain names using any of the Marks or that are confusingly similar to the Marks or in such a way as to create combination marks with the Marks. At Orbit Telehealth’s request, Customer shall modify or discontinue any use of the Marks.
(d) Promotional Literature. Customer shall use any brochures and other promotional literature describing the Services that Orbit Telehealth may provide to Customer (“Promotional Literature”). Customer may reproduce the Promotional Literature to market and promote the Services. All reproductions will include all required and directed Orbit Telehealth copyright and other proprietary notices.
(e) Branding. Orbit Telehealth may brand the Services “[Customer Name] – Trusted Partner of Orbit Telehealth.” Customer hereby grants to Orbit Telehealth the nonexclusive, non-transferable, paid-up, royalty free right to use Customer’s name and logo while Customer is using the Services solely to brand the Services as contemplated by this Section. All goodwill arising from Orbit Telehealth’s use of Customer’s name shall inure to Customer’s benefit. Customer reserves all rights not expressly granted.
2.8 Development. Customer acknowledges that Orbit Telehealth may continually develop, deliver and provide to Customer on-going innovation to the Services in the form of new features, functionality, and efficiencies. Accordingly, Orbit Telehealth reserves the right to modify the Services, from time to time. Some modifications will be provided to Customer at no additional charge. In the event Orbit Telehealth adds additional functionality to a particular Service, Orbit Telehealth may condition the implementation of such modifications on Customer’s payment of additional fees provided Customer may continue to use the version of the Services that Orbit Telehealth makes generally available (without such features) without paying additional fees.
2.9 Third Party Services. Customer acknowledges that the Services are dependent on interoperability with certain third-party services that provide certain functionality or features, such as chat or video conferencing features (“Third Party Services”). Orbit Telehealth is not liable or responsible for Third Party Services. Customer is responsible for configuring the Services to achieve its desired goals.
2.10 Training. Orbit Telehealth will provide its standard online, remote training sessions for up to three hours to up to three Customer Users in exchange for the training fee identified in the Order Form, along with training resources available through the Services found in the Orbit Telehealth Content.
2.11 Aggregate Data. Orbit Telehealth retains ownership of all right, title, and interest in and to Usage Data. Orbit Telehealth may use Usage Data in connection with Orbit Telehealth’s rights and obligations under this Agreement and to operate, improve, analyze, and support the Services, for benchmarking and reporting, and for any other lawful business purposes. “Usage Data” means any content, data, or information that is collected or produced by the Services in connection with the use of the Services that does not identify Customer or its Users, and may include, but is not limited to, usage patterns, traffic logs and user conduct associated with the Services.
3.1 Customer Fees. Customer will pay Orbit Telehealth the then applicable fees described in the Order Form for the Services in accordance with the terms therein (the “Fees”), along with any applicable sales and use taxes. If Customer’s use of the Services exceeds number of Users set forth on the Order Form or otherwise requires the payment of additional fees (per the Agreement), Customer shall be billed for such usage and Customer agrees to pay the additional fees in the manner provided herein. Orbit Telehealth reserves the right to change the Fees or applicable charges and to institute new charges and Fees for any renewal term by providing at least sixty (60) days’ notice to Customer prior to the beginning of such Renewal Term (which may be sent by email). If Customer believes that Orbit Telehealth has billed Customer incorrectly, Customer must contact Orbit Telehealth no later than sixty (60) days after the invoice date on the invoice in which the error or problem appeared, in order to receive an adjustment or credit (if applicable).
3.2 Payment. Customer shall maintain complete and accurate credit card information on file with Orbit Telehealth at all times. Orbit Telehealth will charge Customer’s credit card on file on or before the 15th of each month for all usage of the Services in the preceding month. Invoices shall be for the fees and applicable taxes. Unpaid undisputed amounts are subject to a finance charge of 1.5% per month on any outstanding balance, or the maximum permitted by law, whichever is lower, plus all expenses of collection, and may result in immediate termination of Service. Customer shall be responsible for all taxes associated with the Services other than taxes based on Orbit Telehealth’s net income.
3.3 Revenue Share. Orbit Telehealth will pay Customer 50% of the Net Revenue actually received by Orbit Telehealth from Patients that sign up with and pay Orbit Telehealth for access to the Patient Services (“Revenue Share”). “Net Revenue” means the net amount that is actually received by Orbit Telehealth from a Patient for Patient Services, less all rebates, payment processing fees, discounts, credits, adjustments or allowances, sales or other taxes. Orbit Telehealth shall pay to Customer all Revenue Share accrued within 30 days after the end of the calendar month during which Orbit Telehealth actually receives the applicable Patient Services fees from such Patient via its then current payment method. The Revenue Share is exclusive of, and Customer shall pay all taxes, fees, duties, and other governmental charges arising from the payment of any fees or any amounts owed to Customer under this Agreement (excluding any taxes arising from Orbit Telehealth’s income).
Warranties; Disclaimers; Limitations on liability
4.1 General Representations. Each party represents and warrants that: (a) as of the Effective Date and throughout the Term, it is duly organized, validly existing and in good standing under the laws of its jurisdiction of incorporation or organization; (b) that the execution and performance of the Agreement, or use of the Services, will not conflict with or violate any provision of any law having applicability to such party; and (c) that the Agreement, when executed and delivered, will constitute a valid and binding obligation of such party and will be enforceable against such party in accordance with its terms.
4.2 Orbit Telehealth Warranties. Orbit Telehealth shall use reasonable efforts consistent with industry standards to maintain the Services in a manner which minimizes errors and interruptions in the Services. Services may be temporarily unavailable for scheduled maintenance or for unscheduled emergency maintenance, either by Orbit Telehealth or by third-party providers, or because of other causes beyond Orbit Telehealth’s reasonable control, but Orbit Telehealth shall use reasonable efforts to provide advance notice in writing or by e-mail of any scheduled service disruption. Orbit Telehealth does not warrant that the Platform will be completely error-free or uninterrupted. If Customer notifies Orbit Telehealth of a reproducible error in the Services that indicates a breach of the foregoing warranty (each, an “Error”) within 30 days after Customer experiences such Error, Orbit Telehealth shall, at its own expense and as its sole obligation and Customer’s exclusive remedy for any nonconformance with this warranty, use commercially reasonable efforts to correct or provide a workaround for such Error.
4.3 Compliance with Laws and Policies. Customer will use the Services and operate its business in accordance with all applicable laws, rules and regulations; as well as any of Orbit Telehealth’s standard published policies, if any, in effect as of the date Customer and Orbit Telehealth execute an Order Form and as may be amended by Orbit Telehealth, in its sole discretion, from time to time. Although Orbit Telehealth has no obligation to monitor Customer’s use of Services, Orbit Telehealth may do so and may prohibit any use of the Services it believes may be (or alleged to be) in violation of the foregoing. Orbit Telehealth will comply with all applicable laws, rules and regulations in the performance of this Agreement.
4.4 Warranty Disclaimer. EXCEPT AS EXPRESSLY PROVIDED IN THE AGREEMENT, ORBIT TELEHEALTH DOES NOT MAKE, AND HEREBY DISCLAIMS, ANY AND ALL WARRANTIES OF ANY KIND REGARDING THE AGREEMENT, ORBIT TELEHEALTH CONTENT, AND THE SERVICES, WHETHER EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, INCLUDING BUT NOT LIMITED TO ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON-INFRINGEMENT, OR FROM A COURSE OF DEALING, COURSE OF PERFORMANCE OR USAGE IN TRADE. ORBIT TELEHEALTH DOES NOT WARRANT, AND SPECIFICALLY DISCLAIMS, THAT THE SERVICES AND ORBIT TELEHEALTH CONTENT WILL BE ACCURATE, COMPLETE, WITHOUT INTERRUPTION, OR ERROR-FREE.
4.5 Disclaimer of Indirect Damages. IN NO EVENT WILL EITHER PARTY BE LIABLE FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, PUNITIVE OR EXEMPLARY DAMAGES, OR ANY LOSS OF PROFITS, INTERRUPTION OF SERVICE, OR LOSS OF BUSINESS OR BUSINESS OPPORTUNITY, EVEN IF SUCH DAMAGES ARE FORESEEABLE AND WHETHER OR NOT SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY THEREOF. IN NO EVENT WILL ORBIT TELEHEALTH BE LIABLE FOR THE PROCUREMENT OF SUBSTITUTE SERVICES.
4.6 Limitations on Liability. EXCEPT FOR DAMAGES, LIABILITIES, OR OBLIGATIONS ARISING FROM SECTION 5 (INDEMNIFICATION), CUSTOMER’S PAYMENT OBLIGATIONS, OR A PARTY’S GROSS NEGLIGENCE, FRAUD, OR INTENTIONAL MISCONDUCT, EACH PARTY’S MAXIMUM AGGREGATE LIABILITY UNDER THE AGREEMENT WILL NOT EXCEED THE TOTAL AMOUNT OF FEES RECEIVED BY ORBIT TELEHEALTH UNDER THE APPLICABLE ORDER FORM DURING THE TWELVE (12) MONTH PERIOD PRIOR TO THE FIRST DATE ON WHICH THE LIABILITY AROSE.
4.7 Exceptions. BECAUSE SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF CERTAIN LIABILITY, IN SUCH JURISDICTIONS THE LIABILITY OF ORBIT TELEHEALTH WILL BE LIMITED TO THE MAXIMUM EXTENT PERMITTED BY LAW. THE PROVISIONS OF THIS SECTION 4 WILL APPLY WITHOUT REGARD TO WHETHER OTHER PROVISIONS OF THE AGREEMENT HAVE BEEN BREACHED, ANY LIMITED REMEDY HEREIN IS HELD TO FAIL OF ITS ESSENTIAL PURPOSE OR THE FORM OF THE CLAIM OR CAUSE OF ACTION, WHETHER IN CONTRACT, WARRANTY, STATUTE, TORT (INCLUDING BUT NOT LIMITED TO NEGLIGENCE).
5.1 Orbit Telehealth Indemnity. Orbit Telehealth will, defend Customer, its directors, officers, and employees (“Indemnified Parties”) against any third party claim against Customer to the extent alleging that the Services infringe any U.S. or foreign patent, copyright, trademark or trade secret (“Claim”), and Orbit Telehealth shall indemnify Indemnified Parties from and against any and all losses, damages, liability, costs and expenses awarded by a court or agreed upon in settlement, as well as all reasonable and related attorneys’ fees and court costs (collectively “Losses”) arising out of the Claim.
5.2 Customer Indemnity. Customer will indemnify, defend and hold harmless Orbit Telehealth, its directors, officers, and employees from and against any and all Losses arising out of any third party claim (a) arising out of or related to Customer’s products, services, or Patients, and (b) arising out of any Customer Indemnity Responsibility (defined below).
5.3 Exclusions. Section 5.1 will not apply if the alleged claim arises, in whole or in part, from: (a) a use or modification of the Services by Customer or any User in breach of the Agreement, (b) a combination, operation or use of the Services with other software, hardware or technology not provided by Orbit Telehealth if the claim would not have arisen but for the combination, operation or use, or (c) where Customer continues allegedly infringing activity after being notified thereof or after being informed of modifications that would have avoided the alleged infringement, (any of the foregoing circumstances under clauses (a), (b), or (c) will be collectively referred to as a “Customer Indemnity Responsibility”).
5.4 Indemnification Process. The foregoing indemnification obligations are conditioned on the indemnified party: (a) notifying the indemnifying party promptly in writing of such action, (b) reasonably cooperating and assisting in such defense and (c) giving sole control of the defense and any related settlement negotiations to the indemnifying party with the understanding that the indemnifying party may not settle any claim in a manner that admits guilt or otherwise prejudices the indemnified party, without consent.
5.5 Infringement. If the Services are, or in Orbit Telehealth’s opinion, are likely to become, the subject of any infringement-related claim, then Orbit Telehealth will, at its expense and in its discretion: (a) procure for Customer the right to continue using the Services; (b) replace or modify the infringing technology or material so that the Services become non-infringing and remain materially functionally equivalent; or (c) terminate the Order Form pursuant to which the Services are provided and give Customer a refund for any pre-paid but unused Fees.
5.6 THE PROVISIONS OF THIS SECTION 5 STATE ORBIT TELEHEALTH’S ENTIRE LIABILITY AND CUSTOMER’S EXCLUSIVE REMEDIES FOR ANY CLAIM THAT THE SERVICES INFRINGE A THIRD PARTY’S INTELLECTUAL PROPERTY RIGHT.
Term and Termination
6.1 Term. Subject to earlier termination as provided below, the term of the Agreement will commence on the Effective Date and extend for one month, and thereafter shall automatically extend on a month-to-month basis unless either party terminates the Agreement by delivering at least thirty (30) days prior written notice to the other party.
6.2 Termination. Either party may terminate the Agreement or any Order Form, at its discretion, effective immediately upon written notice to the other if the other party materially breaches any provision of the Agreement and does not substantially cure the breach within fifteen (15) days after receiving written notice.
6.3 Suspension of Service(s). At any time during the Term, Orbit Telehealth may, immediately upon notice to Customer, suspend access to any Service for the following reasons: (a) a threat to the technical security or technical integrity of the Services; (b) any undisputed amount due under the Agreement is not received by Orbit Telehealth within five (5) days after it was due, (c) breach or violation by Customer of any laws, rules, or regulations in connection with Customer’s acts or omissions related to this Agreement, or (d) use of the Services in a manner that overburdens the Services or otherwise impacts the integrity or quality of the Services.
6.4 Effects of Termination. Upon termination or expiration of the Agreement for any reason, (a) any amounts owed to Orbit Telehealth prior to such termination or expiration will be immediately due and payable, (b) all licensed and access rights granted will immediately cease to exist, (c) Customer shall discontinue all access and use of the Services, and Orbit Telehealth may disable access to the Services. Sections 1, 2.5, 2.7, 3, 4, 5, 6.4, and 7 will survive any expiration or termination of the Agreement.
7.1 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.
7.2 Force Majeure. Except for payment obligations, neither party will be liable for any breach of this Agreement, or for any delay or failure of performance, resulting from any cause beyond that party’s reasonable control.
7.3 Assignment. The Agreement may not be assigned by Customer without the prior written consent of Orbit Telehealth. Any attempted assignment or delegation in violation of this Section 7.1 will be null, void and of no effect.
7.4 Publicity. During the Term and thereafter, Orbit Telehealth may refer to Customer as an Orbit Telehealth customer, orally and in writing (including in promotion or marketing materials and on Orbit Telehealth’s website and social media postings).
7.5 Relationship. No agency, partnership, joint venture, or employment is created as a result of the Agreement and Customer does not have any authority of any kind to bind Orbit Telehealth in any respect whatsoever.
7.6 Notices. All notices, consents, and approvals under the Agreement must be delivered via email or in writing by courier, by electronic facsimile (fax), or by certified or registered mail, (postage prepaid and return receipt requested) to the other party at the address set forth in the Order Form and will be effective upon receipt. Either party may change its address by giving notice of the new address to the other party.
7.7 Governing Law; Disputes. The Agreement will be governed by the laws of the State of Colorado without reference to its conflicts of law principles. The United Nations Convention for the International Sale of Goods will not apply to the Agreement. Any dispute, controversy or claim arising out of or relating to the Agreement, will be made exclusively in the state or federal courts located in Denver County, Colorado and both parties submit to the jurisdiction and venue of such courts.
7.8 Waivers. All waivers must be in writing. Any waiver or failure to enforce any provision of the Agreement on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion.
7.9 Severability. If any provision of the Agreement is unenforceable, such provision will be changed and interpreted to accomplish the objectives of such provision to the greatest extent possible under applicable law and the remaining provisions will continue in full force and effect.
7.10 No Third Party Beneficiaries. The parties acknowledge that the covenants set forth in the Agreement are intended solely for the benefit of the parties, their successors and permitted assigns. Nothing herein, whether express or implied, will confer upon any person or entity (including any User or any employee) other than the parties, their successors and permitted assigns, any legal or equitable right whatsoever to enforce any provision of the Agreement.
7.11 Counterparts. This Agreement may be executed in counterparts, each of which will be considered an original, but all of which together will constitute the same instrument.
7.12 Entire Agreement. This Agreement, including the Order Form and any exhibits or attachments thereto, 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. To the extent of any conflict between the provisions of this Agreement and the provisions of any Order Form, the provisions of the Agreement shall govern unless the Order Form specifically overrides this Agreement. No amendment to this Agreement will be effective unless in writing and signed by the party to be charged.