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.
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
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.
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.
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.