Terms of Service

Version 1.2
Last revised on: October 20, 2021
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These Terms of Service govern a customer’s use of Holmusk Technologies, Inc. (together with its Affiliates as defined herein, “Holmusk”) software and/or services, including the NeuroBlu™ platform. By mutually executing an Order Form with Holmusk that references these Terms of Service or by using the Holmusk website, a customer agrees to these Terms of Service and the applicable Order Form (together, the “Agreement”). Customer represents that the individual executing the Order Form is entering into this Agreement on behalf of the entity identified on the Order Form (“Customer”)and that the individual executing the Order Form has authority to bind the Customer to this Agreement.

These Terms of Service were last updated October 20, 2021. Holmusk reserves the right to periodically modify these Terms of Service upon written notice to Customer, and such modification will become effective in the next service term.

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1. BACKGROUND 
‍Holmusk Technologies, Inc. (“Company”) owns the NeuroBlu™ platform (the “Platform”, as defined below), a cloud-based platform that leverages behavioral health real world data.  Customer wishes to utilize the Platform to allow Authorized Users to securely access, view and use data within the Platform, and Company desires to make the Platform available to Customer as a service, subject to the following terms and conditions.

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2. DEFINITIONS 
‍Capitalized terms shall have the meanings set forth in this section, or in the section where they are first used.

• 2.1. “Access Protocols” means the passwords, access codes, technical specifications, connectivity standards or protocols, or other relevant procedures, as may be necessary to allow Customer or any Authorized Users to access the Services.
• 2.2. “Affiliates” means, with respect to a Party, any person that, directly or indirectly, through one or more intermediaries, controls, is controlled by or is under common control with such Party. For purposes of this definition, “control” and, with correlative meanings, the terms “controlled by” and “under common control with” mean (a)the possession, directly or indirectly, of the power to direct the manage mentor policies of a business entity, whether through the ownership of voting securities, by contract relating to voting rights or corporate governance, or otherwise; or (b) the ownership, directly or indirectly, of at least fifty percent (50%) of the voting securities or other ownership interest of a business entity (or, with respect to a limited partnership or other similar entity, its general partner or controlling entity).
• 2.3. “Authorized User” means any individual who is approved and authorized by the Customer or its Affiliates as set forth in an Order Form who is authorized to access the Services in accordance with Customer’s rights under this Agreement.
• 2.4. “Customer Content” means any Customer content, data or queries used with the Software or Platform.
• 2.5. “Data” means behavioral health data, including all related information, databases, manner of organization, presentation, rendering or display, that Company has collected and utilizes through the Platform, provided that the foregoing does not include Customer Content.
• 2.6. “Documentation” means the technical materials provided by Company to Customer, available at: https://app.neuroblu.ai.
• 2.7. “Intellectual Property Rights” means any and all now known or hereafter existing (a) rights associated with works of authorship, including copyrights, mask work rights, and moral rights; (b) trademark or service mark rights; (c)trade secret rights; (d) patents, patent rights, and industrial property rights; (e) layout design rights, design rights, and other proprietary rights of every kind and nature other than trademarks, service marks, trade dress, and similar rights; and (f) all registrations, applications, renewals, extensions, or reissues of the foregoing, in each case in any jurisdiction throughout the world.
• 2.8. “Order Form” means a document that references these Terms of Service which may be mutually executed by Holmusk and Customer or executed by using the Holmusk website.  Each Order Form shall identify one or more Authorized User(s) who may access the Services.
• 2.9. “Platform” means Company’s hosted cloud services, which it uses to provide Customer the ability to access, analyze and visualize the Data.
• 2.10. “Services” means the services to access and utilize the Platform ordered by Customer as set forth in an Order Form and provided in accordance with this Agreement.
• 2.11. “Service Levels” means the service levels set forth in the Service Level Agreement, available at: Service Level Agreement
• 2.12. “Software” means the software programs that are part of the Platform and any associated user interfaces and related technology that Company makes available pursuant to this Agreement.
• 2.13. “Subscription Fee” means the fees identified in the Order Form that Customer will remit to Company for Services listed in the Order Form, and further described in Section 5. a.
• 2.14. “Term” has the meaning given such term in Section 11. a.

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3. PROVISION OF SERVICES

• 3.1. Ordering Services. Subject to all the terms and conditions of this Agreement, Holmusk will provide Customer with a non-exclusive, non-transferable, non-sublicensable right for the Authorized User(s) to access the Services during the Term solely for Customer’s internal use. The Services are accepted upon delivery and will work in accordance with Holmusk’s Service Level Agreement located at Service Level Agreement.  Customer may use the Services for its benefit or the benefit of its Affiliates.
• 3.2. Responsibility for Software and Content Hosting. Company shall, at its own expense, provide for the hosting of the Software which is accessible as part of the Services, provided that nothing herein shall be construed to require Company to provide for, or bear any responsibility with respect to any telecommunications or computer network hardware required by Customer or any Authorized User to provide access from the Internet to the Services.
• 3.3. Future Functionality. Customer agrees that Customer’s subscription to the Service and acceptance of this Agreement are not contingent on the delivery of any future functionality or features.
• 3.4. Feedback. Notwithstanding anything to the contrary, if Customer or any of its employees or contractors provide Holmusk with any ideas, suggestion(s), enhancement requests, feedback and/or recommendation(s) regarding the Services, including without limitation, new and/or improved features or functionality relating thereto (”Feedback”), Holmusk is free to use and disclose such Feedback without any obligation to Customer or such employees or contractors and to incorporate into any existing or future products or features.
• 3.5. Non-Exclusive. Nothing in this Agreement shall prevent Company from entering into similar agreements with third parties, or from independently developing, using, selling or licensing documentation, products and/or services which are similar to those provided under this Agreement, provided that Company shall not directly or indirectly use or rely upon Customer Content.

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4. SOFTWARE; INTELLECTUAL PROPERTY; DATA PROTECTION

• 4.1. License Grant. Subject to the terms and conditions of this Agreement, Company grants to Customer a non-exclusive, non-transferable, non-sublicense able license during the Term, solely for Customer’s internal business purposes and in accordance with the limitations set forth in this Agreement.  Authorized Users may (a) access and use the Services for Customer’s internal business purposes; and (b) use and reproduce a reasonable number of copies of the Documentation solely to support Customer’s use of the Services. Company agrees that Customer shall own all works created by Customer using the Services but shall not otherwise acquire any intellectual property rights to either the Platform or Software except for the license set forth above.
• 4.2. Other Software. Use of any third-party software and associated documentation that is made available via the Platform (“Other Software”) is governed by the terms of the license agreement that accompanies or is included with such Other Software.  These license terms may be posted in the Documentation or at the website page where the Other Software can be accessed.  Such Other Software may be offered under an open source license, and there may be provisions in the open source license that will apply to Customer’s use thereof.
• 4.3. Limitations. The Services, Software, Documentation, and all other materials provided by Company hereunder, including but not limited to all manuals, reports, records, programs, data and other materials, and all Intellectual Property Rights in each of the foregoing, are the exclusive property of Company and its suppliers.  Except as expressly permitted herein, Customer agrees that it will not, and will not permit any Authorized User or other party to: (a) permit any third party to access the Software or Documentation or use the Services; (b) modify, adapt, alter or translate the Software or Documentation, except as expressly allowed herein; (c) sublicense, lease, rent, loan, distribute, or otherwise transfer the Software or Documentation to any third party; (d) reverse engineer, decompile, disassemble, or otherwise derive or determine or attempt to derive or determine the source code (or the underlying ideas, algorithms, structure or organization) of the Software; (e) use or copy the Software or Documentation except as expressly allowed under Section 4.1, or the applicable open source license for Other Software; (f) disclose or transmit any Data contained in the Software to any individual other than an Authorized User, except as expressly allowed herein; or (g) export any raw Data from the Platform, including table and spreadsheet elements.  Except as expressly set forth herein, under this Agreement, no express or implied license or right of any kind is granted to Customer regarding the Services, Software, Documentation, or any part thereof, including any right to obtain possession of any source code, data or other technical material relating to the Software.
• 4.4. Ownership. The Services, Software, Data, Documentation, the Holmusk trademarks, logos, domain names, or other brand features, and all worldwide Intellectual Property Rights in each of the foregoing, are the exclusive property of Company and its suppliers (collectively, the “Company Materials”).  All rights in and to the Company Materials not expressly granted to Customer in this Agreement are reserved by Company and its suppliers.  Except as expressly set forth herein, under this Agreement no express or implied license or right of any kind is granted to Customer regarding the Company Materials or any part thereof, including any right to obtain possession of any source code, data or other technical material related thereto or to use the Holmusk trademarks, logos, domain names, or other brand features.
• 4.5. Data Protection and Security.
• (a) Holmusk will implement and maintain reasonable administrative, physical and technical safeguards that are designed to prevent any unauthorized use, access, processing, destruction, loss, alteration, or disclosure of any of Customer Content as may be held or accessed by Holmusk.
• (b) Customer understands that it has an independent duty to comply with any and all laws applicable to it. If any variation to the Agreement between the Parties is required to maintain compliance with changes to applicable data protection laws, the Parties will negotiate necessary variations to this Agreement in good faith to address changes

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5. FEES AND EXPENSES; PAYMENTS

• 5.1. Subscription Fees. In consideration for the access rights granted to Customer for the Services, Customer will pay to Company the Subscription Fees set for thin the associated Order Form.  Except as otherwise provided in an Order Form, all fees for Services are due and payable to Company net 30 days from date of invoice.  Company shall be entitled to withhold performance and discontinue Service until all amounts due are paid in full. If Customer believes that Holmusk has billed Customer incorrectly, Customer must contact Holmusk no later than thirty (30) days after the closing date on the first billing statement in which the error or problem appeared, to receive an adjustment or credit. Inquiries should be directed to legal@holmusk.com. Except as expressly set forth in this Agreement, all Subscription Fees are non-cancellable and non-refundable.
• 5.2. Taxes. All Subscription Fees are exclusive of all applicable sales, use, value-added and other taxes, and all applicable duties, tariffs, assessments, export and import fees, or other similar charges, and Customer will be responsible for payment of all such taxes (other than taxes based on Company’s income), fees, duties, and charges and any related penalties and interest, arising from the payment of the Subscription Fees or the delivery of the Services.  Customer will make all payments of fees to Company free and clear of, and without reduction for, any withholding taxes; any such taxes imposed on payments of fees to Company will be Customer’s sole responsibility, and Customer will provide Company with official receipts issued by the appropriate taxing authority, or such other evidence as the Company may reasonably request, to establish that such taxes have been paid.
• 5.3. Interest. Any amounts not paid when due shall bear interest at the rate of one and one half percent (1.5%) per month, or the maximum legal rate if less.  Customer will permit Company or its representatives to review Customer’s relevant records and inspect Customer’s facilities to ensure compliance with this Agreement.
• 5.4. Audit. Company will have the right to audit Customer’s use of the Platform to ensure its compliance with the terms of this Agreement.  Company will give Customer at least ten (10)days advance written notice of any such inspection and will conduct the same during normal business hours in a manner that does not unreasonably interfere with Customer’s normal operations.  If any such audit should disclose any underpayment of fees, Customer shall promptly pay Company such underpaid amount, together with interest thereon at the rate specified in this section.  If the amount of such underpayment exceeds five percent (5%) of fees actually paid during the audited period, Customer shall also pay Company for Company’s expenses associated with such audit.

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6. CUSTOMER RESPONSIBILITIES

• 6.1. License; Ownership. Customer grants Company a non-exclusive, worldwide, royalty-free and fully paid license to use the Customer Content as necessary for purposes of providing the Services.  As between Company and Customer, the Customer Content, and all Intellectual Property Rights therein are the exclusive property of Customer; provided, however, that the Parties acknowledge that some Customer Content may be subject to the terms of the license agreements applicable to Other Software that Customer is accessing.  All rights in and to the Customer Content not expressly granted to Company in this Agreement are reserved by Customer. Customer acknowledges and agrees that Company may monitor, compile, and use aggregated and de-identified usage metrics (“Usage Metrics”) to improve and enhance its Services (e.g., development, diagnostic and corrective uses).
• 6.2. Authorized Users Access to Services. Customer is responsible for approving and authorizing persons that are Authorized Users to access and use the Services.  If a Customer wishes to add additional Authorized User(s), Customer may request such additional Authorized User(s) at any time by executing a new Order Form detailing the identity and number of additional Authorized User(s), and shall be required to pay additional fees associated with such increased number of Authorized Users. Upon written acceptance by Company of the Order Form, Company shall make the additional Customer keys available for the Authorized User(s).  Customer shall use commercially reasonable efforts to prevent unauthorized access to, or use of, the Services, and notify Company promptly of any such unauthorized use known to Customer.
• 6.3. Usernames and Passwords. Company will provide each Authorized User a unique user name and password to enable such Authorized User to access the Services.  Company reserves the right to store, change or update user data, usernames and passwords in Company’s sole discretion from time to time.  Each username and password may only be used to access the Services during one (1) concurrent login session.  Customer acknowledges and agrees that only Authorized Users are entitled to access the NeuroBlu™ Services with the username and password provided to Customer.  Customer will provide Company with the information and other assistance as necessary to enable Company to establish usernames for Authorized Users, and Customer will verify all Authorized User requests for account passwords.  Customer will ensure that each username and password issued to an Authorized User will be used only by that Authorized User.  Customer is responsible for maintaining the confidentiality of all Authorized Users’ usernames and passwords, and is solely responsible for all activities that occur under these usernames.  Customer agrees (a) not to allow a third party to use its account, usernames or passwords at any time; and (b) to notify Company promptly of any actual or suspected unauthorized use of its account, usernames or passwords, or any other breach or suspected breach of this Agreement. Company reserves the right to terminate any username and password, which Company reasonably determines may have been used by an unauthorized third party or by any Authorized User or individual other than the Authorized User to whom such username and password was originally assigned.
• 6.4. Customer Warranty. Customer represents and warrants that any Customer Content hosted by Company as part of the Services shall not, to the best knowledge of Customer, (a) infringe any copyright, trademark, or patent; (b) misappropriate any trade secret; (c) be deceptive, defamatory, obscene, pornographic or unlawful; (d) contain any viruses, worms or other malicious computer programming codes intended to damage Company’s system or data; or (e) otherwise violate the rights of a third party. Customer agrees that any use of the Services contrary to or in violation of the representations and warranties of Customer in this section constitutes unauthorized and improper use of the Services.
• 6.5. Publishing. Customer will cite Company and its use of the Platform as a source of Data in Customer’s publication of any information based on Customer’s use of the Data in a clear and prominent manner, as follows: “We obtained data used in the preparation of this [article/manuscript/publication]from Holmusk Technology and the use of the NeuroBlu™ platform.”
• 6.6. Applicable Laws. Customer shall always comply with all international and domestic laws, ordinances, regulations, and statutes that are applicable to its purchase and use of the Software, Documentation or Services hereunder.

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7. WARRANTIES AND DISCLAIMERS

• 7.1. Limited Warranty. Company will use commercially reasonable efforts to provide the Services in accordance with the Service Levels.  This warranty gives Customer specific legal rights, and Customer may also have other rights which vary from jurisdiction to jurisdiction.  Company represents and warrants that any Data provided or utilized by Company as part of the Services shall not, to the best knowledge of Company, (a) infringe any copyright, trademark, or patent; (b) misappropriate any trade secret; (c) contain any Protected Health Information(PHI) as such term is defined in The Health Insurance Portability and Accountability Act of 1996 (HIPPA); (d) be deceptive, defamatory, obscene, pornographic or unlawful; (e) contain any viruses, worms or other malicious computer programming codes intended to damage Customer’s system or data; or (f) otherwise violate the rights of a third party.
• 7.2. Disclaimer. THE LIMITED WARRANTY SET FORTH IN THIS SECTION IS MADE FOR THE BENEFIT OF CUSTOMER ONLY. EXCEPT AS EXPRESSLY PROVIDED IN THIS SECTION AND TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE SOFTWARE, DOCUMENTATION AND SERVICES ARE PROVIDED “AS IS,” AND COMPANY MAKES NO (AND HEREBY DISCLAIMS ALL) OTHER WARRANTIES, REPRESENTATIONS, OR CONDITIONS, WHETHER WRITTEN, ORAL, EXPRESS, IMPLIED OR STATUTORY, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF SATISFACTORY QUALITY, COURSE OF DEALING, TRADE USAGE OR PRACTICE, MERCHANTABILITY, TITLE, NONINFRINGEMENT, OR FITNESS FOR A PARTICULAR PURPOSE, WITH RESPECT TO THE USE, MISUSE, OR INABILITY TO USE THE SOFTWARE, DOCUMENTATION, OR SERVICES (IN WHOLE OR IN PART) OR ANY OTHER PRODUCTS OR SERVICES PROVIDED TO CUSTOMER BY COMPANY.  COMPANY DOES NOT WARRANT THAT ALL ERRORS CAN BE CORRECTED, OR THAT OPERATION OF THE SOFTWARE, AND SERVICES SHALL BE UNINTERRUPTED OR ERROR-FREE.  SOME STATES AND JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES OR CONDITIONS OR LIMITATIONS ON HOW LONG AN IMPLIED WARRANTY LASTS, SO SOME OF THE ABOVE LIMITATIONS MAY NOT APPLY TO CUSTOMER.

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8. LIMITATION OF LIABILITY

• 8.1. Types of Damages. TO THE EXTENT LEGALLY PERMITTED UNDER APPLICABLE LAW AND EXCEPT WITH RESPECT TO BREACHES OF SECTION 9, NEITHER PARTY, NOR ITS SUPPLIERS SHALL BE LIABLE TO THE OTHER PARTY FOR ANY SPECIAL, INDIRECT, EXEMPLARY, PUNITIVE, INCIDENTAL OR CONSEQUENTIAL DAMAGES OF ANY NATURE INCLUDING, BUT NOT LIMITED TO DAMAGES OR COSTS DUE TO LOSS OF PROFITS, DATA, REVENUE, GOODWILL, PRODUCTION OR USE, BUSINESS INTERRUPTION, PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, OR PERSONAL OR PROPERTY DAMAGE ARISING OUT OF OR IN CONNECTION WITH EACH PARTY’S PERFORMANCE HEREUNDER, REGARDLESS OF THE CAUSE OF ACTION OR THE THEORY OF LIABILITY, WHETHER IN TORT, CONTRACT, OR OTHERWISE, EVEN IF SUCH PARTY HAS BEEN NOTIFIED OF THE LIKELIHOOD OF SUCH DAMAGES.
• 8.2. Amount of Damages. THE COMPANY’S MAXIMUM LIABILITY ARISING OUT OF OR IN ANY WAY CONNECTED TO THIS AGREEMENT SHALL NOT EXCEED THE FEES PAID BY CUSTOMER TO COMPANY DURING THE SIX (6) MONTHS PRECEDING THE ACT, OMISSION OR OCCURRENCE GIVING RISE TO SUCH LIABILITY. IN NO EVENT SHALL COMPANY’S SUPPLIERS HAVE ANY LIABILITY ARISING OUT OF OR IN ANY WAY CONNECTED TO THIS AGREEMENT.  NOTHING IN THIS AGREEMENT SHALL LIMIT OR EXCLUDE THE COMPANY’S INDEMNITY OBLIGATIONS, BREACHES OF DATA PRIVACY OBLIGATIONS IF APPLICABLE (SECTION 4.5), BREACHES OF CONFIDENTIALITY (SECTION 9), OR MISAPPROPRIATION OF INTELLECTUAL PROPERTY RIGHTS (SECTION 7.1).
• 8.3. Basis of the Bargain. The parties agree that the limitations of liability set forth in this section shall survive and continue in full force and effect despite any failure of consideration or of an exclusive remedy.  The parties acknowledge that the prices have been set and the Agreement entered into in reliance upon these limitations of liability and that all such limitations form an essential basis of the bargain between the parties.

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9. CONFIDENTIALITY

• 9.1. Confidential Information. During the term of this Agreement, each party and its Affiliates (the “Disclosing Party”) may provide the other party and its Affiliates (the “Receiving Party”) with certain information regarding the Disclosing Party’s business, technology, products, or services or other confidential or proprietary information (collectively, “Confidential Information”).  The Disclosing Party will mark all Confidential Information in tangible form as “confidential” or “proprietary” or with a similar legend, and identify all Confidential Information disclosed orally as confidential at the time of disclosure and provide a written summary of such Confidential Information within thirty (30) days after such oral disclosure.  Regardless of whether so marked or identified, (i) the Software, Data, Documentation, and all enhancements and improvements thereto will be considered Confidential Information of Company; and (ii) the Customer Content and all enhancements and improvements thereto will be considered Confidential Information of Customer.
• 9.2. Protection of Confidential Information. The Receiving Party agrees that it will not use or disclose to any third party any Confidential Information of the Disclosing Party, except as expressly permitted under this Agreement.  The Receiving Party will limit access to the Confidential Information to Authorized Users (with respect to Customer) or to those employees who have a need to know, who have confidentiality obligations no less restrictive than those set forth herein, and who have been informed of the confidential nature of such information (with respect to Company).  In addition, the Receiving Party will protect the Disclosing Party’s Confidential Information from unauthorized use, access, or disclosure in the same manner that it protects its own proprietary information of a similar nature, but in no event with less than reasonable care.  At the Disclosing Party’s request or upon termination of this Agreement, the Receiving Party will return to the Disclosing Party or destroy (or permanently erase in the case of electronic files) all copies of the Confidential Information that the Receiving Party does not have a continuing right to use under this Agreement, and the Receiving Party shall provide to the Disclosing Party a written affidavit certifying compliance with this sentence.
• 9.3. Exceptions. The confidentiality obligations set forth in this section will not apply to any information that (a) becomes generally available to the public through no fault of the Receiving Party; (b) is lawfully provided to the Receiving Party by a third party free of any confidentiality duties or obligations; (c) was already known to the Receiving Party at the time of disclosure; or (d) the Receiving Party can prove, by clear and convincing evidence, was independently developed by employees and contractors of the Receiving Party who had no access to the Confidential Information.  In addition, the Receiving Party may disclose Confidential Information to the extent that such disclosure is necessary for the Receiving Party to enforce its rights under this Agreement or is required by law or by the order of a court or similar judicial or administrative body, provided that the Receiving Party promptly notifies the Disclosing Party in writing of such required disclosure and cooperates with the Disclosing Party if the Disclosing Party seeks an appropriate protective order.

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10. INDEMNIFICATION

• 10.1. By Company. Company will defend at its expense any suit brought against Customer, and will pay any settlement Company makes or approves, or any damages finally awarded in such suit, insofar as such suit is based on a claim by any third party alleging that the Software or the Services misappropriates any trade secret or infringes any copyright or patent issued as of the Effective Date, or insofar as such suit is otherwise based on a third party claim arising out of or relating to Company’s breach or alleged breach of Section 7.1.  If any portion of the Software or the Services becomes, or in Company’s opinion is likely to become, the subject of a claim of infringement, Company may, at Company’s option: (a) procure for Customer the right to continue using the Software or the Services; (b) replace the Software or the Services with non-infringing software or services which do not materially impair the functionality of the Software or the Services; (c) modify the Software or the Services so that it becomes non-infringing; or (d) terminate this Agreement and refund any fees actually paid by Customer to Company for the remainder of the Term then in effect, and upon such termination, Customer will immediately cease all use of the Software, Documentation and Services.  Notwithstanding the foregoing, Company shall have no obligation under this section or otherwise with respect to any infringement claim based upon (w) any use of the Software or the Services not in accordance with this Agreement or as specified in the Documentation; (x) any use of the Software or the Services in combination with other products, equipment, software or data not supplied by Company; or (y) any modification of the Software or the Services by any person other than Company or its authorized agents.  This subsection states the sole and exclusive remedy of Customer and the entire liability of Company, or any of the officers, directors, employees, shareholders, contractors or representatives of the foregoing, for infringement claims and actions.
• 10.2. By Customer. Customer will defend at its expense any suit brought against Company, and will pay any settlement Customer makes or approves, or any damages finally awarded in such suit, insofar as such suit is based on a third party claim arising out of or relating to Customer’s breach or alleged breach of Section 6.4.  Notwithstanding the foregoing, Company shall have no obligation under this section or otherwise with respect to any infringement claim to the extent based upon Company’s gross negligence, fraud or willful misconduct.
• 10.3. Procedure. The indemnifying party’s obligations as set forth above are expressly conditioned upon each of the foregoing: (a) the indemnified party shall promptly notify the indemnifying party in writing of any threatened or actual claim or suit; (b) the indemnifying party shall have sole control of the defense or settlement of any claim or suit; and (c) the indemnified party shall cooperate with the indemnifying party to facilitate the settlement or defense of any claim or suit.

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11. TERM AND TERMINATION

• 11.1. Term and Termination. This Agreement will remain in full force and effect for the Term as specified in an Order Form and will automatically renew for additional one year periods (each a “Renewal Service Term”).  Each Renewal Service Term together with the initial term constitutes the “Term” of the Agreement, unless either party requests termination unless either party requests termination in writing at least thirty (30) days prior to the end of the then-current Term.  The Term identified in each Order Form will commence on the effective date of the Order Form. A termination request by either party will be given via certified mail or via e-mail to legal@holmusk.com.
• 11.2. Breach. Either party may terminate this Agreement immediately upon notice to the other party if the other party materially breaches this Agreement, and such breach remains uncured more than thirty (30) days after receipt of written notice of such breach.
• 11.3. Effect of Termination. Upon termination or expiration of this Agreement for any reason: (a) all rights and obligations of both parties, including all licenses granted hereunder, shall immediately terminate; (b) within ten (10) days after the effective date of termination, each party shall comply with the obligations to return all Confidential Information of the other party, as set forth in the section titled Confidentiality; and (c) within ten (10) days after the effective date of termination, Company shall discontinue all use of Customer Content and destroy all copies of Customer Content in its possession.  The sections and subsections titled Definitions, Limitations, Warranties and Disclaimers, Limitation of Liability, Confidentiality, Indemnification, Effect of Termination, and Miscellaneous will survive expiration or termination of this Agreement for any reason.

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12. MISCELLANEOUS

• 12.1. Governing Law and Venue. This Agreement and any action related thereto will be governed and interpreted by and under the laws of the State of New York, without giving effect to any conflicts of laws principles that require the application of the law of a different jurisdiction. Any dispute arising out of or relating to this Agreement shall be settled by confidential binding arbitration in accordance with the Commercial Arbitration Rules of the American Arbitration Association. Any decision or award as a result of any such arbitration proceeding shall be in writing and shall provide an explanation for all conclusions of law and fact and shall include the assessment of costs, expenses, and reasonable attorneys’ fees. The prevailing party shall be entitled to an award of reasonable attorney fees. The arbitration will be conducted in English and will be held in the city of New York, NY, USA.  The award of the arbitration shall be final and binding upon the Parties.  Judgment upon such award may be entered in any court having jurisdiction thereof. The United Nations Convention on Contracts for the International Sale of Goods does not apply to this Agreement.
• 12.2. Marketing. The Parties agree to obtain written approval for all marketing, Customer’s logo or name or press publications prior to publishing such materials.
• 12.3. Export. Customer agrees not to export, re-export, or transfer, directly or indirectly, any Services, U.S. technical data acquired from Company, or any products utilizing such data (collectively “Controlled Subject Matter”), in violation of any restrictions, laws or regulations of the United States Department of Commerce, the United States Department of Treasury Office of Foreign Assets Control, or any other United States or foreign agency or authority. Without limiting the foregoing Customer acknowledges and agrees that the Controlled Subject Matter will not be used or transferred or otherwise exported or re- exported to countries as to which the United States maintains an embargo (collectively, “Embargoed Countries”), or to or by a national or resident thereof, or any person or entity on the U.S. Department of Treasury’s List of Specially Designated Nationals or the U.S. Department of Commerce’s Table of Denial Orders (collectively, “Designated Nationals”). The lists of Embargoed Countries and Designated Nationals are subject to change without notice. The Controlled Subject Matter may use or include encryption technology that is subject to licensing requirements under the U.S. Export Administration Regulations. As defined in FAR section 2.101, any software and documentation provided by Holmusk are “commercial items” and according to DFAR section 252.227-7014(a)(1) and (5) are deemed to be “commercial computer software” and “commercial computer software documentation.” Consistent with DFAR section 227.7202 and FAR section 12.212, any use modification, reproduction, release, performance, display, or disclosure of such commercial software or commercial software documentation by the U.S. Government will be governed solely by the terms of this Agreement and will be prohibited except to the extent expressly permitted by the terms of this Agreement.
• 12.4. Severability. If any provision of this Agreement is, for any reason, held to be invalid or unenforceable, the other provisions of this Agreement will remain enforceable and the invalid or unenforceable provision will be deemed modified so that it is valid and enforceable to the maximum extent permitted by law.  Without limiting the generality of the foregoing, Customer agrees that the section titled Limitation of Liability will remain in effect notwithstanding the unenforceability of any provision in the subsection titled Limited Warranty.
• 12.5. Waiver. 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.
• 12.6. Remedies. Except as provided in the sections titled Limited Warranty and Indemnification, the parties’ rights and remedies under this Agreement are cumulative.  Customer acknowledges that the Services, Software, Data and Documentation contain valuable trade secrets and proprietary information of Company, that any actual or threatened breach of the sections titled Intellectual Property or Confidentiality or any other breach by Customer of its obligations with respect to Intellectual Property Rights of Company will constitute immediate, irreparable harm to Company for which monetary damages would be an inadequate remedy.  In such case, Company will be entitled to immediate injunctive relief without the requirement of posting bond, including an order that any Software, Documentation, or any portions thereof, which Customer attempts to import into any country or territory be seized, impounded and destroyed by customs officials.  If any legal action is brought to enforce this Agreement, the prevailing party will be entitled to receive its attorneys’ fees, court costs, and other collection expenses, in addition to any other relief it may receive.
• 12.7. No Assignment. Customer may not assign, subcontract, delegate, or otherwise transfer this Agreement, or its rights and obligations herein, without obtaining the prior written consent of Holmusk, which shall not be unreasonably withheld, or conditioned, and any attempted assignment, subcontract, delegation, or transfer in violation of the foregoing will be null and void; provided, however, that Customer may assign this Agreement in connection with a merger, acquisition, reorganization or sale of all or substantially all of its assets, or other operation of law, without any consent of Holmusk.  The terms of this Agreement shall be binding upon the parties and their respective successors and permitted assigns.
• 12.8. Force Majeure. Any delay in the performance of any duties or obligations of either party (except the payment of money owed) will not be considered a breach of this Agreement if such delay is caused by a labor dispute, shortage of materials, fire, earthquake, flood, or any other event beyond the control of such party, provided that such party uses reasonable efforts, under the circumstances, to notify the other party of the cause of such delay and to resume performance as soon as possible.
• 12.9. Independent Contractors. Customer’s relationship to Company is that of an independent contractor, and neither party is an agent or partner of the other.  Customer will not have, and will not represent to any third party that it has, any authority to act on behalf of Company.
• 12.10. Notices. All notices, requests, consents, claims, demands, waivers, and other communications under this Agreement (each, a “Notice”) must be in writing and to:
  ‍
  Holmusk:
  54 Thompson St., 4th Floor, New York, NY 90012
  legal@holmusk.com
  Customer: Billing Contact identified in the Order Form.
  
  
  Notice will be effective upon receipt or refusal of delivery, as applicable.  If delivered by certified or registered mail, any such notice will be considered to have been given five (5) business days after it was mailed, as evidenced by the postmark. If delivered by courier or express mail service, any such notice shall be considered to have been given on the delivery date reflected by the courier or express mail service receipt. If delivered by electronic means, any such notice will be considered to have been given upon delivery confirmation. Each party may change its address for receipt of notice by giving notice of such change to the other party.‍
• 12.11. Counterparts. This Agreement may be executed in one or more counterparts, each of which shall be deemed an original and all of which shall be taken together and deemed to be one instrument.
• 12.12. Entire Agreement. This Agreement, including any Exhibits specifically referenced herein, is the final, complete and exclusive agreement of the parties with respect to the subject matters hereof and supersedes and merges all prior discussions between the parties with respect to such subject matters. No modification of or amendment to this Agreement, or any waiver of any rights under this Agreement, will be effective unless in writing and signed by an authorized signatory of Customer and the Company.  Please contact Holmusk at 54 Thompson St., 4thFloor, New York, NY with any questions regarding these Terms.