SUBSCRIPTION TERMS AND CONDITIONS
Last Updated: July 15, 2026
IMPORTANT – READ CAREFULLY: This is a binding contract between Enhance USA Technologies USA, LLC (“Licensor” or “Enhance”) and the Party identified as “Company” in the Subscription Agreement. This “Agreement” includes these “Subscription Terms and Conditions,” the Subscription Agreement (including attached exhibits or schedules) between Enhance and Company, and any SOW(s). This Agreement is effective as of the date the Parties enter into that Subscription Agreement incorporating these “Subscription Terms and Conditions” (the “Effective Date”) and governs Company’s use of and access to the Services.
THROUGH ITS AUTHORIZED REPRESENTATIVE, WHEN COMPANY CLICKS THE “I ACCEPT” BUTTON DURING THE ONLINE ORDERING PROCESS, SIGNS THE SOW THAT REFERENCES THIS “SUBSCRIPTION TERMS AND CONDITIONS,” OR OTHERWISE ACCESSES OR USES THE SERVICES, OR AUTHORIZES OR PERMITS ANY USERS TO ACCESS OR USE THE SERVICES, COMPANY ACKNOWLEDGES THAT IT HAS READ AND AGREES TO BE BOUND BY THIS AGREEMENT. THE PARTIES EXPRESSLY DISCLAIM ANY RELIANCE ON ANY AND ALL PRIOR AGREEMENTS, UNDERSTANDINGS, RFP RESPONSES, VERBAL AND/OR WRITTEN COMMUNICATIONS RELATED TO THE APPLICABLE SERVICES.
If a natural person enters into this Agreement on behalf of a company, organization, or another legal entity (an “Entity”), such individual is agreeing to this Agreement for that Entity and represents to Enhance that such individual has the authority to bind the Entity and its Affiliates to this Agreement, in which case the term “Company” refers to such Entity and its Affiliates. If a natural person does not have such authority, or does not agree to the terms and conditions of this Agreement, such individual must not use or authorize any use of the Services for and on behalf of the applicable Company. Enhance and Company shall each be referred to as a “Party” and collectively referred to as the “Parties” for purposes of this Agreement. Capitalized terms used in this Agreement have the meanings assigned where they first appear. All defined terms include both plural and singular forms. Any reference to the word “day” or “days” shall mean calendar day or calendar days, respectively, unless otherwise expressly provided.
In consideration of the mutual promises and covenants of the Parties contained herein and for other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the Parties agree to the following terms and conditions:
1. SERVICES
1.1 Licensor Platform. Licensor owns, markets, and licenses its proprietary cloud-based services in object code format, known as Enhance Tech software platform and related mobile applications for iOS and Android platforms (“Licensor Platform”), among other products and services. Licensor shall provide online how-to instructions, FAQs, and other written guides relating to the use of the Licensor Platform in electronic form to Company upon request (“Documentation”). Licensor may update the content, functionality, and user interface of the Licensor Platform from time to time, provided that such update will not materially decrease the functionality of the Licensor Platform during the applicable Service Period. Company agrees that its use of or access to the Licensor Platform under this Agreement (“Subscription”) is not contingent on the delivery of future features or functionalities.
1.2 Additional Services. To the extent Company requires Licensor to provide additional product support, product customization, application, onboarding support, and/or technical services (such additional offerings, together with Licensor Platform, are collectively referred to as “Services”), the Parties will negotiate in good faith and document such additional Services in writing as an amendment to this Agreement and/or one or more SOW(s).
1.3 Users. In connection with the license to use Licensor Platform, Licensor will provide login information to employees, fitness trainers, gym members, and other individuals authorized by Company (and, where applicable in a Distribution Engagement, by an End-Client) to use and access Licensor Platform (each, a “User” and collectively, the “Users”); provided that Company will be responsible for any acts or omissions of Users in connection with their access to or use of the Licensor Platform in compliance with this Agreement (including SOWs, schedules, and applicable terms of use). Company shall require all professional trainer (“PT”) Users who are not employees of Company (or in a Distribution Engagement, shall cause each End-Client to require such End-Client’s PT Users) to execute written contract imposing confidentiality obligations that are no less protective than those imposed on Company by this Agreement.
2. PROPRIETARY RIGHTS
2.1 Provision of Access. Subject to Company's payment of Fees and compliance with the terms and conditions of this Agreement, Licensor grants Company and/or its Affiliates (including their Users) a limited, non-exclusive, non-transferable license to access and use the Licensor Platform solely for its internal business purposes (“Corporate Use”) during the applicable “Service Period” (as defined in the applicable SOW).
2.1.1 For purposes of this Agreement, “Affiliate” means, as to a Party, any other entity or individual that directly or indirectly, through one or more intermediaries, controls the Party, is under common control with the Party, or is controlled by the Party; as used in this definition, “control” (including the terms "controlled by" and "under common control") means ownership or control of more than a 50% interest of another legal entity or the direct or indirect power to direct the management, activities, and/or policies of an entity, but only for as long as such control exists or is retained. Company’s Affiliates shall expressly exclude franchises owned or controlled by one or more separate third-party entities that are licensed by Company to operate fitness centers, gyms, and/or personal training studios under Company Marks (each, a “Franchisee” and collectively, “Franchisees”). Upon mutual agreement, Licensor may grant Company a limited license in the applicable Territory to market, distribute, and sublicense the Licensor Platform under Company’s brand name or other Company Marks (“Company-branded Platform”) for access and use by one or more Franchisees that have procured the right to use such Company-branded Platform through written agreements with Company (“End-Client(s)”). Each such distribution and sublicense arrangement is known as a “Distribution Engagement”, and shall be specified in the applicable SOW and subject to additional terms and conditions to be negotiated by the Parties in good faith.
2.2 Proprietary Rights. Each Party owns and retains all rights, title, and interests in and to its Intellectual Property Rights owned (or licensed from a third-party provider) by such Party as of the Effective Date or developed by such Party independent of this Agreement without use of or reference to the other Party’s Confidential Information. For purposes of this Agreement, “Intellectual Property Rights” or “IPR” include, but are not limited to, (i) copyrights, (ii) trademarks, service marks, logos, trade names (including internet domain names) (together, “Marks”), (iii) patents (subsections (i)-(iii), whether registered or unregistered), and (iv) trade secrets, processes, methodologies, inventions, know-how, rights in designs, and any other proprietary rights of any kind, and all rights to enforce the foregoing.
(a) Company Properties. All materials provided to Licensor in connection with this Agreement, including all Company’s Confidential Information, communications, business rules, and any other materials provided by Company to Licensor in connection with this Agreement (collectively, “Company Properties”), shall be and remain the exclusive property of Company unless otherwise agreed in writing. Licensor will use such Company Properties as necessary to provide the Services.
(b) Licensor Properties. Except as expressly set forth herein or in the applicable SOW, Licensor shall own and retain all right, title, and interest in and to (a) the Licensor Platform, including any upgrades and enhancements, and related Documentation; (b) Licensor’s Confidential Information; (c) software, application programming interfaces, and other technologies, information, and materials provided by Licensor to Company to enable Company to use and access Licensor Platform for Corporate Use (and, if mutually agreed, to market, distribute, or sublicense Licensor Platform for Distribution Engagement); and (d) all Intellectual Property Rights (including Licensor Marks) related to any of the foregoing, including the designs, look-and-feel, combinations of colors, user interface, and the source code (together, “Licensor Properties”). All rights not expressly granted to Company are reserved by Licensor.
(c) Feedback. Licensor shall have a royalty-free, worldwide, irrevocable, perpetual license to use and incorporate into the Services any suggestions, enhancement requests, feedback, or recommendations provided by Company (which expressly excludes Company’s Confidential Information) (“Feedback”) for the purposes of optimizing, improving, or enhancing Licensor Platform, or creating derivative products. Feedback is provided by Company “as-is” without warranty of any kind, and Company shall have no liability for Licensor’s use of Feedback.
2.3 Use Restrictions. Unless otherwise expressly permitted by Licensor in writing, Company will not, directly or indirectly, conduct any of the following: (a) copy, modify, or create derivative works or improvements of the Services or Documentation, in whole or in part; (b) distribute, republish, download, display, post, or transmit any portion of the Licensor Properties, or provide support or other offerings for the Services outside the Territory or for potential use outside the Territory; (c) reverse engineer, disassemble, decompile, decode, or otherwise attempt to derive or gain access to the source code of any Licensor Properties or any part thereof; (d) combine or merge any part of the Licensor Properties with or into any other software, document, or work; (e) refer to or otherwise use any part of the Licensor Properties as part of any effort to develop a product or service having any functional attributes, visual expressions, or other features or purposes similar to those of Licensor Properties; (f) remove, erase, or tamper with any copyright, logo, or other proprietary or trademark notice in the Licensor Properties, or otherwise engage in any conduct that obscures any of the foregoing, infringes or misappropriates Licensor’s IPR, or confuses a User as to Licensor’s rights in the Licensor Properties; (g) sell, market, license, sublicense, distribute, rent, loan, or otherwise grant to any third party any right to possess, access, or utilize any portion of the Licensor Properties without the express prior written consent of Licensor; (h) use the Licensor Properties to store, receive, or distribute any information or data that contains, transmits, or activates any virus, worm, malware, or other malicious computer code, interferes with or disrupts the integrity or performance of any Services, or otherwise violates any applicable Laws; (i) access or use the Licensor Properties for purposes of conducting a competitive analysis of the Licensor Properties, developing, improving, or distributing any products or services that would compete with the Licensor Properties, or otherwise building, training, or configuring any artificial intelligence model not provided by Licensor; and/or (j) attempt to, or assist any individual or entity in attempting to, do any of the foregoing.
2.4 Compliance. Company will use the Services in compliance with Documentation, the Use Restrictions in Section 2.3, and all applicable Laws. Although Licensor has no obligation to monitor Company’s use of the Services, Licensor may temporarily suspend Company's, its Users’, and, where applicable, any End-Client’s access to any portion or all of the Services if Licensor reasonably determines that such use of the Services (i) materially or knowingly breaches Section 2.3 (Use Restrictions), in which case Licensor shall provide written notice of suspension at least 5 business days in advance; or (ii) poses an imminent or material security risk to the Services or to any other customers or vendors of Licensor, in which case Licensor may suspend access immediately.
2.5 Company Contingencies. Company shall be responsible for obtaining and maintaining, at its own cost, any equipment and ancillary services needed to connect to, access, or otherwise use the Services, including, without limitation, modems, hardware, servers, software, operating systems, networking, web servers, and the like (collectively, “Equipment”). Company shall also be responsible for maintaining the security of the Equipment, Company account, and/or passwords (including but not limited to administrative Users’ passwords). Company shall ensure that it and its Users abide by all Laws applicable to Company’s use of the Services. Company is solely responsible for (i) providing, or causing the provision of, any required notices to Users regarding terms of use relating to the Services; and (ii) obtaining Users’ consents, acknowledgments, waivers, releases of liability, and authorizations in accordance with then-current existing policies and release forms prior to such User’s use of the Services. The release and waiver obtained from the Users shall be at least as broad as the “Acceptable Use Policy” available at [AUP LINK].
2.6 Third Party Materials. To the extent Company requires Licensor to incorporate or integrate any third-party product, materials, or application programming interfaces (APIs) with the Services (“Third Party Materials”), the use of such Third Party Materials will be subject to a separate end-user license agreement, API license agreement, or other terms and conditions separate from this Agreement (collectively, “EULA(s)”). Company acknowledges and agrees that (i) such Third Party Materials are added at Company’s request; (ii) such Third Party Materials do not constitute a part of the Services; and (iii) the selection of, and decision to procure, implement, use, license, and/or subscribe to, such Third Party Materials are at Company’s sole risk and discretion. Company further acknowledges and agrees that the actual operation, performance, availability, and scalability of any Third Party Materials may vary based on factors, such as the final configuration of the Services and/or Company’s contingencies to meet technical specifications for the proper function and operation of such Third Party Materials in conjunction with the Services. Company will indemnify and defend Licensor from any claims by licensors of such Third Party Materials arising from Licensor Platform’s integration or operation with such Third Party Materials to facilitate Company’s use of the Licensor Platform.
3. CONFIDENTIALITY; DATA USE
3.1 Confidentiality
(a) From time to time during the Term of this Agreement, either Party ("Disclosing Party") may disclose or make available to the other Party (“Recipient”) non-public proprietary and confidential information of the Disclosing Party that (i) if disclosed in writing or other tangible form, is clearly labeled as “confidential”; (ii) if disclosed orally, is identified as confidential when disclosed and/or within 10 days thereafter, is summarized in writing and confirmed as confidential; (iii) refers to the terms or existence of this Agreement; or (iv) a reasonably prudent person would understand as containing proprietary or confidential information of a Party and/or Users’ information ("Confidential Information"); provided, however, that Confidential Information does not include any information that: (a) is or becomes generally available to the public other than as a result of the Recipient's breach of its confidentiality obligations under this Agreement; (b) is or becomes available to the Recipient on a non-confidential basis from a third-party source, provided that such third party is not and was not prohibited from disclosing such Confidential Information; (c) was in the Recipient's lawful possession without obligation to keep it confidential, prior to the Disclosing Party's disclosure hereunder; or (d) was or is independently developed by the Recipient without the use of or reference to the Disclosing Party’s Confidential Information. If the Recipient is required by Laws or legal process to disclose any Confidential Information, it shall, prior to making such disclosure, use commercially reasonable efforts to notify (to the extent legally permitted) the Disclosing Party of such requirements to afford the Disclosing Party the opportunity to seek, at the Disclosing Party's sole cost and expense, a protective order or other remedy. For the avoidance of doubt, Company Confidential Information expressly includes original data, information, or content in any form, uploaded or inputted to the cloud-based platform hosting the Licensor Platform by or on behalf of Company (and, where applicable, an End-Client), or by Users through their use of the Services (together, “Company Data”). Licensor’s Confidential Information expressly includes pricing information, business proposal(s), product information, audit reports, and/or financial records.
(b) The Recipient shall: (x) implement appropriate physical, technical, and administrative measures to protect the Disclosing Party's Confidential Information with at least the same degree of care as the Recipient would protect its own Confidential Information, but in no event with less than a commercially reasonable degree of care; (y) not use the Disclosing Party's Confidential Information, or permit it to be accessed or used, for any purpose other than exercising its rights or performing its obligations under this Agreement; and (z) not disclose any such Confidential Information to any natural person or legal entity, except to the Recipient's representatives who (1) have a legitimate need to know the Confidential Information to assist the Recipient, or act on its behalf, to exercise its rights or perform its obligations under this Agreement; (2) have been informed of the confidential nature of the Confidential Information and the Recipient's obligations under this Section 3.1; and (3) are bound by written confidentiality obligations (or professional rules of conduct) at least as protective of the Confidential Information as the terms set forth in this Agreement.
3.2 Data Use
(a) Company Data. As between Licensor and Company, all Company Data is and shall remain the property of Company, and Company retains any and all rights, title, and interest in and to the Company Data. Company shall have sole responsibility for the accuracy, quality, integrity, legality, reliability, appropriateness, and the IPR ownership of Company Data. Company shall ensure that it has and will continue to have all rights and consents necessary to allow Licensor to use, process, and store Company Data for the purposes of performing Licensor’s obligations under this Agreement.
(b) Services Improvement. Subject to Licensor’s confidentiality obligations under this Agreement, the Parties agree and acknowledge that Licensor shall be permitted to create, analyze, and use Usage Data for measuring and enhancing the functionalities and operations of the Services during the Term and thereafter. For purposes of this Agreement, “Usage Data” means any and all deidentified and anonymized datasets reflecting the access or use of the Services by or on behalf of Company (and where applicable, an End-Client) or any Users, including any User profile-, visit-, session-, impression-, click through- or click stream- data and any statistical or other analysis, information or data based on or derived from any of the foregoing; provided that such aggregated or de-identified datasets do not identify any Users or Company, or otherwise constitute Personal Information subject to Section 3.2(c).
(c) Data Privacy. To the extent the Company Data constitutes “Personal Information” as defined under the California Privacy Rights Act of 2020 and related regulations (“California Privacy Laws”) or other applicable U.S. data privacy Laws (together, “U.S. Data Protection Laws”), the Parties agree that Company is a business or controller and that it appoints Licensor as its service provider or processor to process Company’s Personal Information as permitted under the Agreement and the U.S. Data ProtectionLaws, or for other purposes agreed in writing (the “Permitted Purposes”). The Parties agree that: (i) Licensor shall not retain, use, or disclose Personal Information for any purpose other than the Permitted Purposes; (ii) Personal Information was not sold to Licensor, and Licensor shall not “sell” or “share” Personal Information (as the terms “sell” and “share” are defined by the California Privacy Laws); (iii) Licensor shall not retain, use, or disclose such Personal Information for a commercial purpose other than the Permitted Purposes; and (iv) Licensor shall not retain, use, or disclose Personal Information outside of the direct business relationship between Company and Licensor. Licensor certifies that it understands the restrictions set out in this Section and will comply with them.
4. FEES; INVOICES; AND TAXES
4.1 Fees. Fees payable for the Services (the “Fees”) are set forth in the applicable SOW. Unless otherwise provided in the applicable SOW, Company will pay Fees within 30 days following its receipt of a Licensor-issued invoice (to be delivered electronically, i.e., PDF). If Company believes that Fees set forth in the applicable invoices are calculated incorrectly, Company must contact Licensor no later than 30 days following Company’s receipt of the applicable invoice, in which the error or problem appears, to be eligible for receiving an adjustment or credit. If no issue has been raised about the Fees within the 30-day period, the Fees will be deemed undisputed and final.
4.2 Invoices. Company agrees to provide Licensor with accurate billing and contact information, including Company’s legal name, street address, e-mail address, and the name and telephone number of an authorized billing or accounts payable contact. Company agrees to update this information within 30 days of any changes to its account payable contract information. Any portion of any undisputed Fees or other amount payable hereunder that is not paid when due will accrue interest at the lesser of 1.5% per month or the maximum rate permitted by applicable Laws plus collection costs, from the invoice due date until paid in full. Licensor reserves the right to suspend Company’s access to the Services if Company’s account becomes delinquent and remains uncured for a period of 45 days following the invoice due date. Suspension will not relieve Company’s obligation to pay amounts due. Fees due from Company under this Agreement may not be withheld or offset by Company against other amounts due to Company for any reason.
4.3 Taxes. All amounts payable hereunder will exclude all applicable sales, use, and other taxes and all applicable export and import fees, customs duties, and similar charges. Company will be responsible for payment of all such taxes (other than taxes based on Licensor’s income or payroll obligations), fees, duties, and charges, and any related penalties and interest arising from the payment of any Fees hereunder. Company will make all payments of Fees required hereunder to Licensor free and clear of, and without reduction for, any withholding taxes.
5. TERM; TERMINATION; SUSPENSION
5.1 Term. This Agreement commences on the Effective Date and will remain in effect for the “Term” as defined in the “Business Terms” of the Subscription Agreement. Unless otherwise set forth in the applicable SOW, the Parties agree that Company’s Subscription will automatically renew at the end of the then-current Service Period (the “Renewal Date”) for a renewal period equal to a twelve-month period (the “Renewal Service Period”, which together with Initial Service Period set forth in the SOW, are collectively known as “Service Period”). Notwithstanding the expiration or termination of the Agreement, the Parties agree that this “Subscription Terms and Conditions” will continue in effect solely to govern any outstanding SOWs that are executed during the Term and not expressly terminated concurrently with the Agreement through the remainder of such SOW’s then-current Service Period.
5.2 Termination. In addition to any other remedies it may have, either Party may terminate this Agreement and/or an SOW for cause if the other Party materially breaches any of the terms or conditions of this Agreement and fails to cure such material breach within 30 days following written notice by the non-defaulting Party. Termination or expiration of this Agreement or an SOW will not extinguish Company’s obligations to pay all Fees due to Licensor under the applicable SOW. Upon any termination, Licensor will make all Company Data available for electronic retrieval by Company for a period of up to 30 days. All sections of this Agreement which by their nature should survive termination will survive termination, including, without limitation, Sections 2 (Proprietary Rights), 3 (Confidentiality; Data Use), 4 (Fees; Invoices; and Taxes), 5.2 (Termination), 6.2 (Warranty Disclaimer), 7 (Indemnification; Risk Allocation), and 8 (Miscellaneous).
6. WARRANTY AND DISCLAIMER
6.1 General Warranties. Each Party represents and warrants that (a) it has the right, power, and authority to execute and deliver the SOW; and (b) the Agreement, when duly authorized, executed, and delivered by such Party, constitutes the legal, valid, and binding obligation of such Party, enforceable in accordance with applicable Laws and terms of this Agreement.
6.2 Warranty Disclaimer. The Parties acknowledge that the Services may be subject to limitations, delays, and other types of interruptions that are inherent in the use of the internet and other types of electronic communications such as failure in performance resulting from acts or events beyond Licensor’s reasonable control. Therefore, Licensor does not warrant that the Services will be uninterrupted or error free; nor does it make any warranty as to the results that may be obtained from the use of the Services. EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT AND TO THE MAXIMUM EXTENT PERMITTED BY LAW, THE SERVICES ARE PROVIDED “AS IS” AND LICENSOR DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. EACH PARTY DISCLAIMS ALL LIABILITY AND INDEMNIFICATION OBLIGATIONS FOR ANY HARM OR DAMAGES CAUSED BY ANY THIRD-PARTY HOSTING PROVIDERS.
7. INDEMNIFICATION; RISK ALLOCATION
7.1 Indemnification:
(a) Company agrees to indemnify and hold harmless Licensor, its officers, directors, shareholders, employees, contractors, representatives, and successors and assigns (“Licensor Indemnitees”) against any damages, losses, liabilities, settlements, and expenses (including, without limitation, reasonable costs and attorneys’ fees) (“Losses”) arising from or in connection with any third-party claim or action alleging (i) Licensor’s use of Company Data or Company’s or any of its Users’ use of the Services infringes or otherwise violates such third party’s proprietary, privacy, or other rights, or otherwise breaches any applicable Laws; or (ii) any negligence, misconduct, or breach of this Agreement by Company or any of its Users in connection with their access to or use of the Services.
(b) Licensor agrees to indemnify and hold harmless Company and its officers, directors, shareholders, employees, contractors, representatives, and successors and assigns (“Company Indemnitees”) against any Losses to the extent resulting from a third-party claim or action alleging that Company’s use of any Services infringes upon any third party’s IPR (“Infringement Claim”). Notwithstanding the foregoing, if the Services become the subject of such Infringement Claim, then Licensor may, at its option: (x) procure for Company the right to use the Services free of any liability for infringement; (y) replace or modify the Services to make them non-infringing but with reasonably comparable functionality; or (z) if Licensor determines that the previous two options are not commercially feasible, terminate the applicable SOW and refund any unused Fees prepaid by Company for the affected Services covering the remainder of the Service Period. Furthermore, Licensor has no liability for, and no obligation to indemnify Company against, any third-party claim arising from or based in whole or in part on (i) use of the Services in combination with Third Party Materials not provided or authorized by Licensor in writing (including Documentation); (ii) modification to the Services not made by Licensor; (iii) Company’s failure to incorporate updates or upgrades to the Services as directed by Licensor; or (iv) Company’s or its Users’ breach of Section 2.3 (Use Restrictions). THE FOREGOING IS THE INDEMNIFYING PARTY’S SOLE OBLIGATION AND THE INDEMNITEE’S SOLE AND EXCLUSIVE REMEDY WITH RESPECT TO ANY INFRINGEMENT CLAIMS UNDER THIS SECTION 7.1(B).
(c) The Party seeking indemnity under this Section 7.1 (“Indemnitee”) will use commercially reasonable endeavors to mitigate its damages arising out of any third-party claims. The Party undertaking the indemnity obligations (“Indemnifying Party”) shall have sole control of the defense and of all negotiations for settlement of such action; provided that the Indemnitee has the right to participate at its own expense in the claim or suit and in selecting its own counsel therefor. At the Indemnifying Party’s request and cost, the Indemnitee will reasonably cooperate with the Indemnifying Party in defending or settling any such action. Without the Indemnitee’s prior written consent, which shall not be unreasonably conditioned, withheld, or delayed, the Indemnifying Party shall not enter into or otherwise consent to an adverse judgment or order, make any admission as to liability or fault that would adversely affect Indemnitee, or settle such claim or suit. Each Party’s respective indemnification obligations do not apply to the extent any Losses are caused by the Party seeking indemnification or arise as a result of such Party’s breach of this Agreement.
7.2 RISK ALLOCATION: TO THE FULLEST EXTENT PERMITTED UNDER APPLICABLE LAW AND NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT, THE PARTIES AGREE THAT:
(a) NEITHER PARTY SHALL BE LIABLE FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, OR PUNITIVE DAMAGES, INCLUDING ANY DAMAGES FOR BUSINESS INTERRUPTION, LOSS OF REVENUE OR PROFIT, OR COST OF SUBSTITUTE GOODS OR SERVICES, WHETHER ARISING OUT OF BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE AND WHETHER OR NOT THE PARTY WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
(b) SUBJECT TO SECTION 7.2(C), A PARTY’S AGGREGATE LIABILITY TO THE OTHER FOR DIRECT DAMAGES ARISING OUT OF OR RELATING TO THIS AGREEMENT, REGARDLESS OF WHETHER BASED ON AN ACTION OR CLAIM IN CONTRACT, EQUITY, NEGLIGENCE, TORT, INDEMNIFICATION, OR OTHERWISE, SHALL NOT EXCEED ALL FEES PAID BY COMPANY DURING THE TWELVE-MONTH PERIOD PRECEDING THE OCCURRENCE GIVING RISE TO THE CLAIM. THE FOREGOING LIMITATIONS SHALL APPLY EVEN IF OTHER REMEDIES UNDER THIS AGREEMENT FAIL THEIR ESSENTIAL PURPOSE.
(c) NOTWITHSTANDING ANYTHING ELSE TO THE CONTRARY, IN RESPECT OF A DEFAULTING PARTY, NOTHING IN THIS AGREEMENT LIMITS OR EXCLUDES LIABILITY FOR (i) FRAUD, GROSS NEGLIGENCE, OR WILLFUL MISCONDUCT, (ii) INDEMNIFICATION OBLIGATIONS, OR (iii) ANY MATTER FOR WHICH IT WOULD BE ILLEGAL TO EXCLUDE OR LIMIT LIABILITY.
8. MISCELLANEOUS:
(i) Waiver; Severability. If any provision of this Agreement is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect and enforceable. A waiver of any breach or default in one instance shall not constitute a waiver for any other purpose or in any other instance. (ii) Assignment. This Agreement is not assignable, transferable, or sublicensable by Company without Licensor’s prior written consent. Notwithstanding the foregoing, either Party may assign this Agreement in its entirety, together with all rights and obligations hereunder, without consent of the other Party, in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets not involving a direct competitor of the other Party. (iii) Entire Agreement. These “Subscription Terms and Conditions,” together with the Subscription Agreement, are the complete and exclusive statement of the mutual understanding of the Parties and supersede and cancel all previous written and oral agreements, communications, and other understandings relating to the subject matter of this Agreement. If there is any conflict between these “Subscription Terms and Conditions” and the provisions of any SOW, the SOW shall control and govern the terms of Services. (iv) Amendment. All waivers, modifications, and/or amendments must be in writing signed by both Parties, except as otherwise provided herein. (v) Relationship. No agency, partnership, joint venture, or employment is created as a result of this Agreement, and neither Party has any authority of any kind to bind the other Party in any respect whatsoever. (vi) Notice. All notices under this Agreement will be in writing and be sent to the Recipient’s contact information as provided on the first page of this Agreement (as specified in writing after the Effective Date). Notice will be deemed to have been duly given when received, if personally delivered; when receipt is electronically confirmed, if transmitted by e-mail; the day after it is sent, if sent for next-day delivery by recognized overnight delivery service; and upon receipt, if sent by certified or registered mail, return receipt requested. (vii) Force Majeure Event. Except for Company’s obligation to pay the applicable Fees when due, no Party will be liable to the other for failure or delay in performance caused by an event beyond the affected Party’s reasonable control, such as acts of God, civil or military authority, civil disturbance, war, terrorism, strikes, pandemics, hurricanes, tornadoes, floods, fires, or other natural or unnatural catastrophes (“Force Majeure Event”), and such failure or delay will not constitute a material breach of this Agreement. (viii) Non-Disparagement. Other than as necessary to respond to any legal or regulatory process or proceeding or as may be required by law, each Party shall refrain from making, or causing or encouraging others to make, any public or private statements (including on social media) that disparage, denigrate, criticize, or malign the other Party. (ix) Dispute Resolution. If a dispute arises out of this Agreement, a Party will be entitled to refer the dispute by notice ("Dispute Notice") for resolution by the Parties' respective managers or designated representatives, who will meet to resolve the dispute within 15 days after delivery of such Dispute Notice. If the Parties fail to resolve the dispute within the foregoing period, the dispute will then be automatically referred to a senior representative of each Party, who will meet to resolve the dispute within 30 days following the delivery of the Dispute Notice. If the dispute cannot be resolved within such 30 days, each Party may exercise all other rights and remedies available to it under this Agreement. (x) Governing Law; Arbitration. This Agreement shall be governed by the Laws of the State of Delaware without regard to its conflict of laws provisions. For purposes of this Agreement, “Laws” means laws, regulations, and rules enacted by any federal, state, or local government in the relevant jurisdiction, including any regulatory requirement contemplated thereunder. Any dispute Any dispute (other than efforts to seek injunctive relief in a court or other judicial body to protect any IPR, including trade secrets or confidentiality) shall be resolved by final and binding individual arbitration, rather than in court. Each Party may obtain injunctive relief (preliminary or permanent) and orders to compel arbitration or enforce arbitral awards in any court of competent jurisdiction. The arbitration will be conducted by the American Arbitration Association (AAA) under its current rules for commercial disputes at a place mutually agreed by the Parties. Jurisdictional and arbitrability disputes, including disputes over the formation, existence, validity, interpretation, or scope of this Agreement, and who are proper parties to the arbitration, shall be submitted to and ruled on by the arbitrators. Claims shall be brought in a Party’s individual capacity, and not as a plaintiff or class member in any purported class or representative proceeding. Claims shall be heard by a panel of three (3) arbitrators, to be chosen as follows: within fifteen (15) days after the commencement of arbitration, each Party shall select one individual to act as arbitrator; thereafter, the two individually selected arbitrators shall select a third arbitrator within ten (10) days of their appointment. If the arbitrators selected by the Parties are unable or fail to agree upon the third arbitrator, the third arbitrator shall be selected by the AAA. Each Party shall bear its own legal fees and costs for all claims subject to the arbitration. The award of the arbitrators shall be accompanied by a reasoned opinion, and judgment on the award rendered by the arbitration panel may be entered in any court having jurisdiction thereof. Except as may be required by Laws or to enforce an award, neither Party nor the arbitrators may disclose the existence, content, or results of any arbitration hereunder without the prior written consent of the Parties. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAWS, EACH PARTY IRREVOCABLY WAIVES ALL RIGHTS TO TRIAL BY JURY IN ANY ACTION, PROCEEDING, OR COUNTERCLAIM RELATING TO THIS AGREEMENT. (xi) Remedies Cumulative. Except as otherwise provided in the Agreement, the remedies provided herein are intended to be cumulative and will not be deemed to exclude any other right or remedy that a Party may have at law or in equity. (xii) No Third-Party Beneficiaries. This Agreement does not create any rights, claims, or benefits in any person other than the Parties or their respective successors or permitted assigns. (xiii) Headings. The headings in this Agreement are for reference only and do not affect the interpretation of this Agreement. (xiv) Publicity. Licensor may use, and Company agrees to grant Licensor a non-exclusive, royalty-free, and fully paid license during the Term to use Company’s name and logo to identify Company as a customer of the Services, including, without limitation, on Licensor’s website and marketing materials. (xv) Counterparts. This Agreement may be executed in counterparts, each of which will be deemed an original, but which together constitute one and the same instrument. The Parties may exchange signature pages by email or electronic signature process, and such signatures will be effective to bind the Parties to the Agreement. (xvi) Interpretation. No rule of interpretation will apply against the drafter of these terms and conditions. Both Parties acknowledge they have had ample time to review and negotiate the terms and conditions and have had the opportunity to review these terms and conditions with their respective legal advisers.