OBLIGATIONS OF COMPANY.  
2.1. Compensation.
‍Company shall pay Modern Health fees for the Services, as set forth on the applicable Order Form. Unless otherwise specified in an Order Form, Company will pay all amounts due within thirty (30) days of the date of invoice.  Any amount not paid when due will be subject to finance charges equal to the lesser of 1.5% of the unpaid balance per month, or the highest interest rate permitted by applicable statute, law, regulation or court order (“Applicable Law”), calculated and compounded daily from the date due until paid.  Company agrees that it will reimburse Modern Health for any collection costs (including, but not limited to, reasonable attorneys’ fees).  Company shall reimburse Modern Health for any pre-approved expenses incurred by Modern Health and its agents and any individuals employed, contracted, or otherwise engaged by Modern Health to provide clinical and wellness Services (“Providers”) during the Term of this Agreement in furtherance of the Services on an as-incurred basis.  Company will bear all taxes, duties, and other governmental charges (collectively, “Taxes”) resulting from this Agreement. Company will pay any additional amounts as are necessary to ensure that the net amount received by Modern Health after all Taxes are paid are equal to the amounts that Modern Health would have been entitled to in accordance with this Agreement if such Taxes were not imposed.

2.2. Use Restrictions; Unauthorized Use.
Except as otherwise explicitly provided in this Agreement or as may be expressly permitted by Applicable Law, Company will not, and will not permit or authorize Participants or other third parties to: (i) rent, lease, or otherwise permit third parties to use the Services, Platform, or Documentation; (ii) use the Services to provide services to third parties (e.g., as a service bureau); or (iii) circumvent or disable or otherwise attempt to evade or interfere with any security measures of the Services or Platform. Company acknowledges and agrees that Modern Health has the right to limit or terminate access to the Services and the Platform to any Participant who violates the rules set forth in the Documentation.

2.3. Reports. 
The Reports contain information derived from Modern Health’s provision of Services to Participants. Reports are for Company’s internal use only and are Confidential Information of Modern Health. Reports may not be shared with any third parties without express written authorization of Modern Health.  Company may not, under any circumstances, use any data contained in Reports for purposes of attempting to re-identify any Person. Company may not link or attempt to link any data contained in Reports with any other public or non-public datasets, whether for the purposes of attempting to re-identify any Person or for any other reason.  Company will explicitly communicate the terms of this Section to any of their personnel or anyone else with whom they have been authorized by Modern Health to share the data contained in the Reports, and will ensure that such individuals are bound by the terms of confidentiality with respect to such Reports at least as restrictive as those set forth in this Section.

2.4. Eligibility File.
Company or an authorized third party will provide an eligibility file to Modern Health in a format requested by Modern Health that will contain, at a minimum, the first name, last name, and work email address for all employee Participants (“Eligibility File”) to enable Modern Health to provide the Services hereunder, including communication with Participants about the availability of the Services and verification of eligibility for Services when an individual attempts to access Services for the first time.  Modern Health is not able to, and shall not be obligated to, provide the Services if the Eligibility File is not provided to it. Further, Modern Health shall not be obligated to provide the Services to Participants located outside the territory where the Services are made available under this Agreement. Company represents and warrants that it has the necessary legal bases to provide Modern Health with the Eligibility File for the purposes described in this Agreement. For avoidance of doubt, for any data submitted to Modern Health by or on behalf of Company, including the Eligibility File, and which Modern Health then modifies such data through aggregation, anonymization, de-identification, or any other methodology which alters the nature and removes identifying features of the data, Modern Health shall own the resulting product of that alteration. To the extent the Eligibility File contains personal data (as such term is defined in Article 4 of the General Data Protection Regulation (EU) 2016/679 (GDPR)), then the Parties agree to comply with the terms of the Standard Contractual Clauses as executed by the Parties. In such case, the Parties agree each is a controller (as defined in Article 4 of the GDPR) regarding the personal data contained in the Eligibility File and the transfer between the Parties is a controller-to-controller exchange. 

2.5. Ownership of MH Content.
In the course of delivering the Services, Modern Health may deliver to Company, or provide Company with access to, certain audio, video or other audio-visual content, or written materials (“MH Content”).  Unless otherwise expressly agreed to in writing by the Parties, all title and intellectual property rights (including without limitation, copyrights, patents, trademarks, trade secrets) in and to the MH Content is owned exclusively by Modern Health, its affiliates or licensors, and Modern Health reserves all rights pertaining to the MH Content not specifically granted herein or in an Order Form.  Modern Health hereby grants Company a limited, non-exclusive, non-transferable, non-sublicensable right and license  to the MH Content during the Term solely for its internal business purposes; no license is granted whatsoever to distribute or publicly perform or display any MH Content to any third parties nor to create any derivative works of the MH Content.  At the expiration or any early termination of the Term (as defined in Section 3 below), Company shall destroy or return to Modern Health any copies of MH Content in its possession, and upon request shall certify in writing to Modern Health that it has done so.

TERM.
This Agreement will commence upon the effective date of the applicable Order Form and continue for successive one (1) year periods thereafter unless terminated earlier in accordance with the terms hereof (“Term”). This Agreement will automatically terminate on the date that is sixty (60) days after the termination or expiration of all Order Forms.

TERMINATION.
4.1. Termination for Material Breach.
Modern Health may terminate this Agreement if Company does not cure its material breach of this Agreement within thirty (30) days of receiving written notice specifying the material breach. Modern Health may terminate this Agreement immediately if Company: (i) terminates or suspends its business; (ii) becomes subject to any bankruptcy or insolvency proceeding under Federal or state statute; (iii) becomes insolvent or subject to direct control by a trustee, receiver or similar authority; or (iv) has wound up or liquidated, voluntarily or otherwise. If this Agreement or an Order Form is terminated for any reason specified in this Section, Company will immediately pay to Modern Health any fees or other amounts then due that have accrued prior to the effective date of the termination, and any and all liabilities accrued prior to termination will survive.

CONFIDENTIAL INFORMATION.
‍‍Each Party shall retain in confidence all non-public information and know-how disclosed or made available by the other Party pursuant to this Agreement which is either designated in writing as confidential, if disclosed in writing, or if disclosed orally, is designated in writing (which may be via email) as confidential within thirty (30) days of disclosure, or which should reasonably be understood to be confidential by the recipient ( “Confidential Information”); provided, however, that even if they would otherwise constitute Confidential Information, the foregoing definition does not include information that: (i) have come within the public domain through no fault of or action by the receiving Party or its representatives; (ii) are discovered or created by the receiving Party without use of, or reference to, the Confidential Information of the disclosing Party, as shown in records of the receiving Party; or (iii) are otherwise known to the receiving Party through no wrongful conduct of the receiving Party. Notwithstanding any failure to so designate them, the Services, and Documentation shall be Modern Health’s Confidential Information, the Eligibility File shall be the Confidential Information of Company, and the terms and conditions of this Agreement shall be the Confidential Information of both Parties. Each Party agrees to: (a) preserve and protect the confidentiality of the other Party’s Confidential Information; (b) refrain from using the other Party’s Confidential Information, except as contemplated herein; and (c) not disclose such Confidential Information to any third party, except to employees and subcontractors as is reasonably required in connection with the exercise of its rights and obligations under this Agreement (and only subject to binding written use and disclosure restrictions at least as protective as those set forth herein). Each Party agrees to promptly notify the other Party of (x) any unauthorized disclosure or use of any Confidential Information and to assist the other Party in remedying such unauthorized use or disclosure by taking such steps as are reasonably requested, and (y) any instance in which Confidential Information is required to be disclosed by Applicable Law; provided, however, that in such instance of a required disclosure, the receiving Party shall provide prompt notice thereof and reasonable assistance to the disclosing Party to enable it to seek a protective order or otherwise prevent or restrict such disclosure; and provided, further, that a Party may disclose any Confidential Information hereunder to its agents, attorneys and other representatives (and only subject to confidentiality obligations at least as protective as those set forth herein) or any court of competent jurisdiction as reasonably required to resolve any dispute between the Parties. Within thirty (30) days after the expiration or termination of this Agreement, if either Party has any of the other Party’s Confidential Information in its possession, such Party shall either destroy such Confidential Information or return it to the other Party. Further, the confidentiality provisions of this Agreement shall control the provisions of any non-disclosure or similar agreements the Parties may have entered into prior or subsequent to this Agreement in relation to the subject matter hereof.

REPRESENTATIONS AND WARRANTIES; DISCLAIMER.
6.1. Representations and warranties.
Each Party represents and warrants that: (i) it is duly organized, validly existing and in good standing under the Applicable Law of its jurisdiction of incorporation, organization or chartering; (ii) it has the full right, power and authority to enter into this Agreement, to grant the rights and licenses granted hereunder and to perform its obligations hereunder; (iii) the execution of this Agreement by its representative whose signature is set forth at the end hereof has been duly authorized by all necessary corporate action of the Party; (iv) when executed and delivered by such Party, this Agreement will constitute the legal, valid and binding obligation of such Party, enforceable against such Party in accordance with its terms; (v) it will discharge their obligations under this Agreement in accordance with  Applicable Law; and (vi) it shall obtain at its own cost all necessary consents, licenses, approvals and permits required in connection with its responsibilities under this Agreement.

6.2. Disclaimer.
EXCEPT FOR THE EXPRESS REPRESENTATIONS AND WARRANTIES STATED IN THIS AGREEMENT, MODERN HEALTH MAKES NO ADDITIONAL REPRESENTATION OR WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED (EITHER IN FACT OR BY OPERATION OF LAW), OR STATUTORY, AS TO ANY MATTER WHATSOEVER. MODERN HEALTH EXPRESSLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUALITY, ACCURACY, TITLE, AND NON-INFRINGEMENT. NOTWITHSTANDING ANYTHING SET FORTH HEREIN, MODERN HEALTH MAKES NO WARRANTY AGAINST INTERFERENCE WITH THE ENJOYMENT OF THE SERVICES. MODERN HEALTH DOES NOT WARRANT THAT THE SERVICES ARE ERROR-FREE OR THAT OPERATION OF THE SERVICES WILL BE SECURE OR UNINTERRUPTED, OR THAT ANY INFORMATION PROVIDED THROUGH THE SERVICES IS OR WILL BE ACCURATE OR COMPLETE. MODERN HEALTH IS NOT RESPONSIBLE FOR UNAUTHORIZED ACCESS TO OR DISCLOSURE OF ANY UNENCRYPTED DATA PROVIDED BY COMPANY TO MODERN HEALTH OR OTHERWISE IN THE COURSE OF USING THE SERVICES WHILE SUCH DATA IS IN TRANSIT TO OR FROM THE SYSTEMS OR NETWORKS CONTROLLED BY MODERN HEALTH. 

INDEMNIFICATION.
7.1. Indemnification by Modern Health.
Modern Health will indemnify and hold Company and its respective personnel (each, a “Company Indemnified Person”) harmless from and against any and all liabilities,  losses, damages, judgments, claims, costs and expenses (including reasonable attorneys’ fees and expenses) (collectively, “Losses”) against Company Indemnified Person by reason of its use of the Services as permitted hereunder, brought by a third party alleging that Company’s use of the Platform infringes or misappropriates any patent, copyright, trademark, or trade secret right during the term of this Agreement ( “MH Claim”).  Modern Health shall, at its expense, defend or settle a MH Claim and pay damages finally awarded against Company Indemnified Person in connection therewith (other than attorneys’ fees and costs incurred without Modern Health’s consent after Modern Health has accepted defense of the MH Claim). Modern Health will have no obligation under this Section or otherwise for any infringement or misappropriation to the extent that it arises out of or is based upon (i) use of the Platform or Services by Company Indemnified Person or Participants in combination with other products or services, excluding use of Other Technology, if such infringement or misappropriation would not have arisen but for such combination; (ii) the Services or Platform having been provided to comply with designs, requirements, or specifications required by or provided by Company Indemnified Person, if the alleged infringement would not have arisen but for the compliance with such designs, requirements, or specifications; (iii) a use of the Services or Platform by Company Indemnified Person or Participants for purposes not intended by this Agreement or the Documentation or use outside the limitations set forth in an Order Form; or (iv) a failure by Company Indemnified Person or Participants to use the Services or Platform in accordance with written instructions provided by Modern Health, if the infringement or misappropriation would not have occurred but for such failure; or (v) any modification of the Services or Platform by Company Indemnified Person or Participants not made or authorized in writing by Modern Health where such infringement or misappropriation would not have occurred absent such modification.

7.2. Indemnification by Company.
Company shall indemnify Modern Health, and any entity that directly or indirectly, controls, is controlled by, or is under common control with Modern Health and its and their respective personnel (each, a “Modern Health Indemnified Person”) for, and defend and hold Modern Health Indemnified Persons harmless from and against, any Losses actually suffered, paid or incurred by any Modern Health Indemnified Person in any suit, action or proceeding brought by any third party or Participant as a result of or related to (i) Company’s failure to properly provide the Eligibility File hereunder, and (ii) Company’s violation of Applicable Law relating to offering or paying for health care benefits (each, a “Company Claim” and together with MH Claims – “Claims”).

7.3. Participation in Defense.
Each Party (in such case, the "Indemnified Party") will have the right to participate in the defense of the Claims defended by the other Party (in such case, the "Indemnifying Party") at its own expense and with counsel of its own choosing.

7.4. Exclusive Remedy.
This Section states the Indemnifying Party’s sole and exclusive liability, and Indemnified Party’s sole and exclusive remedy, for any Claims. In no event shall the Indemnifying Party be responsible for any Losses of the Indemnified Party to the extent that such Loss results from the Indemnified Party’s material breach of this Agreement, gross negligence or willful misconduct in connection with this Agreement.

7.5. Indemnification Process.
The foregoing indemnity is conditioned upon (i) prompt written notice by the Indemnified Party to the Indemnifying Party of the Claim; (ii) complete control of the defense and settlement thereof by the Indemnifying Party, provided that the Indemnifying Party will not settle any claim without consent of the Indemnified Party if such settlement involves admission of guilt or material monetary obligations for the Indemnified Party; and (iii) such reasonable cooperation by the Indemnified Party in the defense as the Indemnifying Party may request. 

LIMITATIONS OF LIABILITY.
8.1.  Disclaimer of Indirect Damages.
EXCEPT FOR EACH PARTY’S INDEMNIFICATION OBLIGATIONS HEREUNDER AS IT APPLIES TO INDIRECT DAMAGES AND NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED IN THIS AGREEMENT, NEITHER PARTY WILL, UNDER ANY CIRCUMSTANCES, BE LIABLE TO THE OTHER PARTY FOR CONSEQUENTIAL, INCIDENTAL, SPECIAL, OR EXEMPLARY DAMAGES ARISING OUT OF OR RELATED TO THIS AGREEMENT, INCLUDING BUT NOT LIMITED TO LOST PROFITS OR LOSS OF BUSINESS, EVEN IF SUCH PARTY WAS APPRISED OF THE LIKELIHOOD OF SUCH DAMAGES OCCURRING.

8.2  Cap on Liability.
UNDER NO CIRCUMSTANCES WILL MODERN HEALTH’S TOTAL LIABILITY OF ALL KINDS ARISING OUT OF OR RELATED TO THIS AGREEMENT OR ANY EXHIBIT, ORDER FORM, OR ADDENDUM HERETO (INCLUDING BUT NOT LIMITED TO WARRANTY CLAIMS), REGARDLESS OF THE FORUM AND REGARDLESS OF WHETHER ANY ACTION OR CLAIM IS BASED ON CONTRACT, TORT, OR OTHERWISE, EXCEED THE TOTAL AMOUNT PAID BY COMPANY TO MODERN HEALTH DURING THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE CLAIM.

8.3. Excused Performance.
IF MODERN HEALTH FAILS TO PERFORM ITS OBLIGATIONS UNDER THIS AGREEMENT (INCLUDING FAILING TO MEET ANY SERVICE LEVELS INCLUDED IN AN ORDER FORM), SUCH FAILURE WILL BE EXCUSED TO THE EXTENT THAT IT IS CAUSED BY (i) THE GROSSLY NEGLIGENT ACTS OR OMISSIONS, WILLFUL MISCONDUCT OR FRAUD OF COMPANY OR ITS AGENTS OR VENDORS; (ii) A “FORCE MAJUERE EVENT”, MEANING CIRCUMSTANCES BEYOND AND MODERN HEALTH’S  REASONABLE CONTROL, INCLUDING ACTS OF GOD, ACTS OF WAR, TERRORIST ACTS, NATURAL DISASTERS, EPIDEMICS/PANDEMICS, ACCIDENTS, LABOR DISRUPTION ACTS, OMISSIONS, AND DEFAULTS OF THIRD PARTIES (BUT NOT ACTS, OMISSIONS, OR DEFAULTS OF THIRD PARTIES WITH WHOM MODERN HEALTH HAS CONTRACTUAL, EMPLOYMENT, OR AGENCY RELATIONSHIP, EXCEPT TO THE EXTENT THAT THE THIRD PARTY’S DEFAULT IS RELATED TO A FORCE MAJEURE EVENT), (iii) OFFICIAL, GOVERNMENTAL, AND JUDICIAL ACTION NOT THE FAULT OF MODERN HEALTH, OR (iv) THE THREAT OF ANY OF THE FOREGOING. MODERN HEALTH WILL, AS A CONDITION TO CLAIMING EXCUSED PERFORMANCE, PROMPTLY NOTIFY COMPANY OF EVENTS THAT WOULD EXCUSE ITS PERFORMANCE AND USE ITS COMMERCIALLY REASONABLE EFFORTS TO CONTINUE PERFORMANCE AND TO MITIGATE THE IMPACT OF SUCH EVENTS. MODERN HEALTH WILL BE ENTITLED TO RECOVER ANY INCREASED COSTS OF PERFORMANCE WHICH THE PARTIES MUTUALLY AGREE TO HAVE BEEN CAUSED BY SUCH EVENTS.

8.4. Independent Allocations of Risk.
EACH PROVISION OF THIS AGREEMENT THAT PROVIDES FOR A LIMITATION OF LIABILITY, DISCLAIMER OF WARRANTIES, OR EXCLUSION OF DAMAGES IS TO ALLOCATE THE RISKS OF THIS AGREEMENT BETWEEN THE PARTIES. THIS ALLOCATION IS REFLECTED IN THE PRICING OFFERED BY MODERN HEALTH TO COMPANY AND IS AN ESSENTIAL ELEMENT OF THE BASIS OF THE BARGAIN BETWEEN THE PARTIES. EACH OF THESE PROVISIONS IS SEVERABLE AND INDEPENDENT OF ALL OTHER PROVISIONS OF THIS AGREEMENT. THE LIMITATIONS IN THIS SECTION WILL APPLY NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY IN THIS AGREEMENT.

NON-SOLICITATION.
Providers supplied by Modern Health to Company have been or will be recruited at significant time and expense by Modern Health and Modern Health has a compelling interest in maintaining its contractual relationships and expectancy of future contractual relationships with such Providers. Company covenants that it, its employees, agents, or representatives shall not, during the Term and for a period of twelve (12) months thereafter, without obtaining written consent by Modern Health: (i) make offers or contracts of employment or offer or contract for services with Providers who are introduced by Modern Health to Company or Participants in connection with this Agreement, or (ii) direct or otherwise encourage Providers to contract with a competitor of Modern Health. 

EFFECT OF NEW AND EXISTING LAWS AND CHANGE OF CONDITIONS.
10.1. Renegotiate in Good Faith.
The Parties agree to renegotiate this Agreement in good faith upon the occurrence of any of the following events: (i) if any Party would be materially and adversely affected by continued performance as a result of a change in Applicable Law which requires that one Party comply with Applicable Law contrary to the Party’s prior reasonable understanding; (ii) any material portion or provision of this Agreement is declared illegal or in violation of Applicable Law by any court or state or federal agency; or (iii) Company or Modern Health receives notice from any federal or state agency that, in such agency’s opinion, any material provision or provision of this Agreement is in violation of Applicable Law. 

10.2. Cooperation and Notice.
The Party affected under Section 10.1 must promptly notify the other Party of the change, and its desire to renegotiate this Agreement in order to address the occurrence of one or more of the events enumerated in Section 10.1. If the Parties hereto are unable to agree in good faith on a modification to such portion or provision of this Agreement pursuant to Section 10.1, which modification does not materially alter a material benefit of the original Agreement enjoyed by either Party, and if an amendment to this Agreement is not executed within thirty (30) days of receipt of the renegotiation notice, the Party adversely affected shall have the right to immediately terminate this Agreement upon written notice to the other Party.

MISCELLANEOUS.
11.1. Other Technology.
‍Company acknowledges that Modern Health may make available to Company and/or Participants third-party apps and other technology in connection with their use of the Services (“Other Technology”), for example, Zoom to conduct video visits for clinical/wellness visits with Providers, and the services of Looker Inc. (a Google subsidiary company) to generate or provide access to Reports, in which case Company agrees to abide by any and all terms and conditions applicable to the use of such Other Technology as communicated to Company.  In such event, Company and/or Participants may have to create their own account with the Other Technology, and Company’s and/or Participant’s access to and use of such Other Technology through their own account shall be governed solely by the terms and conditions for such Other Technology. Modern Health is not responsible or liable for, and makes no representations as to any aspect of such Other Technology, and is not liable for any damage or loss caused by or in connection with Company’s and/or Participant’s use of Other Technology. 

11.2. Notices.
All notices and other communications hereunder shall be in writing and shall be deemed to have been given: (i) when delivered by hand (with written confirmation of receipt); (ii) when received by the addressee if sent by a nationally recognized overnight courier (receipt requested) or if sent by email; or (iii) on the third day after the date mailed, by certified or registered mail, return receipt requested, postage prepaid. Such communications must be sent to the respective Party at the addresses indicated below (or at such other address for a Party as shall be specified in a notice given in accordance with this Section).

If to Modern Health:
Modern Health Arizona, P.L.L.C.
650 California Street, Fl. 7, Office 07-128
San Francisco, CA 94108
Attn: President
Email: legal@modernhealth.com

If to Company, at the address provided to Modern Health in the corresponding Order Form.

11.3. Export Controls.
Company acknowledges that the Services may be subject to U.S. export control laws, including the Export Administration Regulations (“EAR”) maintained by the U.S. Department of Commerce and trade and economic sanctions maintained by the Treasury Department’s Office of Foreign Assets Control (“OFAC”). Company agrees, and to require all Participants, to comply with all applicable U.S. and international export control laws, as well as end-user, end-use, and destination restrictions imposed by U.S. and other governments. None of the Services may be downloaded or otherwise exported or re-exported (i) into any country for which the United States has a trade embargo, or (ii) to anyone on the U.S. Treasury Department’s list of Specially Designated Nationals or the U.S. Commerce Department’s Table of Denial Orders. Company represents and warrants that it is not located in, under the control of, or a national or resident of any such country or on any such list. This export control clause shall survive termination or cancellation of this Agreement.

11.4. Assignment.
Company may not assign its rights, duties, and obligations under this Agreement without Modern Health’s prior written consent, except to a successor (including a successor by way of merger, acquisition, sale of all or substantially all assets, or operation of law) if the successor agrees to assume and fulfill all of Company’s obligations under this Agreement.

11.5. Third Party Beneficiaries.
This Agreement is for the sole benefit of the Parties and their respective successors and permitted assigns and nothing herein, express or implied, is intended to or shall confer upon any other individual or entity any legal or equitable right, benefit or remedy of any nature whatsoever, under or by reason of this Agreement.

11.6. Survival.
The rights and obligations of the Parties set forth in Sections 4-9 and 11 and any right or obligation of the Parties in this Agreement which, by its nature, should survive termination or expiration of this Agreement, will survive any such termination or expiration of this Agreement.

11.7. Amendments. Waiver.
This Agreement may only be amended, modified or supplemented by an agreement in writing signed by each Party hereto. No waiver by Modern Health of any of the provisions hereof shall be effective unless explicitly set forth in writing and signed by Modern Health. The waiver by Modern Health of any breach of any provision of this Agreement does not waive any other breach. The failure of Modern Health to insist on strict performance of any covenant or obligation in accordance with this Agreement will not be a waiver of its right to demand strict compliance in the future, nor will the same be construed as a novation of this Agreement.

11.8. Governing Law and Dispute Resolution.
This Agreement shall be governed by and construed in accordance with the internal laws of the State of Delaware without giving effect to any choice or conflict of laws provision or rule (whether of the State of Delaware or any other jurisdiction) that would cause the application of laws of any jurisdiction other than those of the State of Delaware.  The Parties agree to submit any dispute that cannot be resolved directly by the Parties to binding arbitration ( “Arbitration”). The Arbitration shall be held in Delaware; the exact time and location shall be decided by the arbitrator(s) selected in accordance with the then current Rules of JAMS. The Arbitration shall be initiated and administered by and in accordance with the then current Rules of JAMS, or if JAMS is not in existence or otherwise unable to conduct the Arbitration in Delaware, with the then current Commercial Rules of the American Arbitration Association. The arbitrator(s) shall apply Delaware substantive law or federal substantive law where state law is preempted. The arbitrator(s) selected shall have the power to enforce the rights, remedies, duties, liabilities and obligations of discovery by the imposition of the same terms, conditions, and penalties as can be imposed in like circumstances in a civil action by a court of competent jurisdiction of the State of Delaware. The arbitrator(s) shall have the power to grant all legal and equitable remedies provided by Delaware law and award compensatory damages provided by Delaware law, except that punitive damages shall not be awarded. Each Party in any Arbitration hereunder shall bear its own costs and fees including expert and non-expert witness costs and any other expenses incurred directly or indirectly with said Arbitration (except for reasonable attorneys’ fees), provided, however, that the Parties shall each pay a pro rata share of the fees and expenses of the arbitrator(s).

11.9. Equitable Relief.
Each Party acknowledges that a breach by a Party of Section 5 or 9 above may cause the non-breaching Party irreparable damages, for which an award of damages would not be adequate compensation and agrees that, in the event of such breach or threatened breach, the non-breaching Party will be entitled to seek equitable relief, including a restraining order, injunctive relief, specific performance and any other relief that may be available from any court, in addition to any other remedy to which the non-breaching Party may be entitled at law or in equity. Such remedies shall not be deemed to be exclusive but shall be in addition to all other remedies available at law or in equity, subject to any express exclusions or limitations in this Agreement to the contrary. 

11.10. Modern Health Customer List.
Modern Health may disclose Company as a customer of Modern Health, use Company’s name and logo on Modern Health’s website and in Modern Health’s promotional materials, and may issue press releases that reference Company and its use of the Services.

11.11. Construction and Interpretation.
This Agreement shall be construed without regard to any presumption or rule requiring construction or interpretation against the Party drafting an instrument or causing any instrument to be drafted.  If any part of this Agreement is found to be illegal, unenforceable, or invalid, the remaining portions of this Agreement will remain in full force and effect. If any material limitation or restriction on the use of the Services under this Agreement is found to be illegal, unenforceable, or invalid, Company’s right to use the Services will immediately terminate without further action by or on behalf of Modern Health.  This Agreement, together with all Exhibits and any other documents incorporated herein by reference, constitutes the sole and entire agreement of the Parties with respect to the subject matter contained herein, and supersedes all prior and contemporaneous understandings and agreements, both written and oral, with respect to such subject matter.  This Agreement may be executed in counterparts, each of which shall be deemed an original, but all of which together shall be deemed to be one and the same agreement. A signed copy of this Agreement delivered by e-mail or other means of electronic transmission shall be deemed to have the same legal effect as delivery of an original signed copy of this Agreement.