Fireside Membership Agreement

This Membership Agreement is effective as of today's date of form submission and is by and between Fireside Dental Co. LLC, a Delaware limited liability company with offices located at 3300 Cahaba Road, Suite 200, Birmingham, AL 35223 ("Provider") and "Customer" and together with Provider, the "Parties", and each a "Party").
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WHEREAS, Provider is in the business of providing various purchasing and other services to dentists, dental offices, dental groups, and other health care providers through membership in its group purchasing
organization (“Membership Community”) and

WHEREAS, Customer desires to become a member of the Membership Community and to access the Services, and Provider desires to provide Customer such membership and access to the Services, subject to the terms and conditions of this Agreement.

NOW, THEREFORE, in consideration of the mutual covenants, terms, and conditions set forth herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties agree as follows:
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1. Definitions
(a)"Authorized User" means Customer's employees, consultants, contractors, and agents (i) who are authorized by Customer to access and use the Services under the rights granted to Customer pursuant to this Agreement and (ii) for whom access to the Services has been purchased here under.
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(b) "Customer Data" means information, data, and other content, in any form or medium, that is submitted, posted, or otherwise transmitted by or on behalf of Customer or an Authorized User through the Services.
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(c) "Documentation"; means Provider's user manuals, handbooks, and guides relating to the Services provided by Provider to Customer either electronically or in hard copy form, and/or end user documentation relating to the Services.
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(d) "Provider IP" means the Services, the Documentation, and any and all intellectual property provided to Customer or any Authorized User in connection with the foregoing. For the avoidance of doubt, Provider IP includes any information, data, or other content derived from Provider's monitoring of Customer's access to or use of the Services, but does not include Customer Data.
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(e) “Provider Procurement Platform” means the Provider’s third-party procurement software platform.
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(f) "Services" means various purchasing and other services, including the software-as-a-service offerings set out in one or more Statements of Work.
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(g) “Statement of Work” means the statement(s) of work to be issued by Customer and accepted by Provider.
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(h) "Third-Party Products" means any third-party products described in a Statement of Work provided with or incorporated into the Services.

2. Access and Use‍
(a) Provision of Access. Subject to and conditioned on Customer's payment of Fees and compliance with all other terms and conditions of this Agreement, Provider hereby grants Customer membership in the Membership Community (“Fireside Membership”), together with a non-exclusive, non-transferable (except in compliance with Section 13(g)) right to access and use the Services during the Term, solely for use by Authorized Users in accordance with the terms and conditions herein. Such use is limited to Customer's internal use. Provider shall provide to Customer the necessary passwords and network links or connections to allow Customer to access the Services.
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(b) Documentation License. Subject to the terms and conditions contained in this Agreement, Provider hereby grants to Customer a non-exclusive, non-sublicensable, non-transferable (except in compliance with Section 13(g)) license to use the Documentation during the Term solely for Customer's internal business purposes in connection with its use of the Services.
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(c) Training. Provider agrees to provide reasonable training opportunities for Customer and its Authorized Users to allow Customer a reasonable opportunity to remain current with respect to accessing and utilizing the Services. It will be Customer’s obligation to insure that its Authorized Users take advantage of such opportunities as needed or required.
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(d) Use Restrictions. Customer shall not use the Services for any purposes beyond the scope of the access granted in this Agreement. Customer shall not at any time, directly or indirectly, and shall not permit any Authorized Users to: (i) copy, modify, or create derivative works of the Services or Documentation, in whole or in part; (ii) rent, lease, lend, sell, license, sublicense, assign, distribute, publish, transfer, or otherwise make available the Services or
Documentation; (iii) reverse engineer, disassemble, decompile, decode, adapt, or otherwise attempt to derive or gain access to any software component of the Services, in whole or in part; (iv) remove any proprietary notices from the Services or Documentation; or (v) use the Services or Documentation in any manner or for any purpose that infringes, misappropriates, or otherwise violates any intellectual property right or other right of any person, or that violates any applicable law.
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(e) Reservation of Rights. Provider reserves all rights not expressly granted to Customer in this Agreement. Except for the limited rights and licenses expressly granted under this Agreement, nothing in this Agreement grants, by implication, waiver, estoppel, or otherwise, to Customer or any third party any intellectual property rights or other right, title, or interest in or to the Provider IP.
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(f) Suspension. Notwithstanding anything to the contrary in this Agreement, Provider may temporarily suspend Customer's and any Authorized User's access to any portion or all of the Services if: (i) Provider reasonably determines that (A) there is a threat or attack on any of the Provider IP; (B) Customer's or any Authorized User's use of the Provider IP disrupts or poses a security risk to the Provider IP or to any other customer or vendor of Provider; (C) Customer, or any Authorized User, is using the Provider IP for fraudulent or illegal activities; (D) subject to applicable law, Customer has ceased to continue its business in the ordinary course, made an assignment for the benefit of creditors or similar disposition of its assets, or become the subject of any bankruptcy, reorganization, liquidation, dissolution, or similar proceeding; or (E) Provider's provision of the Services to Customer or any Authorized User is prohibited by 3 applicable law; (ii) any vendor of Provider has suspended or terminated Provider's access to or use of any third-party services or products required to enable Customer to access the Services; or (iii) in accordance with Section 6(a)(iii) (any such suspension described in subclause (i), (ii), or (iii), a “Service Suspension”). Provider shall use commercially reasonable efforts to provide written notice of any Service Suspension to Customer and to provide updates regarding resumption of access to the Services following any Service Suspension. Provider shall use commercially reasonable efforts to resume providing access to the Services as soon as reasonably possible after the event giving rise to the Service Suspension is cured. Provider will have no liability for any damage, liabilities, losses (including any loss of data or profits), or any other consequences that Customer or any Authorized User may incur as a result of a Service Suspension.
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3. Customer Responsibilities
(a) General. Customer is responsible and liable for all uses of the Services and Documentation resulting from access provided by Customer, directly or indirectly, whether such access or use is permitted by or in violation of this
Agreement. Without limiting the generality of the foregoing, Customer is responsible for all acts and omissions of Authorized Users, and any act or omission by an Authorized User that would constitute a breach of this Agreement if taken by Customer will be deemed a breach of this Agreement by Customer. Customer shall use reasonable efforts to make all Authorized Users aware of this Agreement's provisions as applicable to such Authorized User's use of the Services, and shall cause Authorized Users to comply with such provisions.
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(b) Connectivity and Hardware. Customer is responsible for insuring that Customer and its Authorized Users has and maintains hardware and a level of connectivity that complies with Provider’s requirements and specifications therefor as described on Provider’s website.
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(c) Third-Party Products. Provider may from time to time make Third-Party Products available to Customer. For purposes of this Agreement, such Third-Party Products are subject to their own terms and conditions and the applicable flow-through provisions referred to in each applicable Statement of Work. If Customer does not agree to abide by the applicable terms for any such Third-Party Products, then Customer should not install or use such Third-Party Products. Without limiting the generality of the foregoing, (i) in the event Customer elects to utilize the procurement platform of Method Procurement Technologies LLC, Customer agrees to abide by the following Terms of Use: Method Terms of Use, and (ii) (i) in the event Customer elects to utilize the procurement platform of ZenSupplies Inc. d/b/a ZenOne, Customer agrees to abide by the following Terms of Use: ZenOne Terms of Use.
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(d) Provider Procurement Platform. At all times following the Customer’s 30-day onboarding process hereunder, for so long as Customer holds a Fireside Membership, Customer agrees that it shall acquire all clinical supplies through the Provider Procurement Platform. In addition, Customer agrees that as soon as the technological capability exists all orders shall be delivered electronically from the Provider Procurement Platform to the supplier.
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4. Provider as Authorized Agent
Customer hereby authorizes Provider to negotiate the pricing of items, including but not limited to dental supplies, equipment and services, on behalf of Customer and as Customer’s authorized group purchasing and contract agent. To that end, Provider may sign participation agreements with group purchasing organizations, vendors or distributors on Customer’s behalf to obtain better pricing and services for Customer, and Provider shall have authority to sign letters
of commitment with vendors and distributors on Customer’s behalf in order to secure products, services and pricing for the benefit of Customer.
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5. Service Levels and Support
Subject to the terms and conditions of this Agreement, the Services shall include Provider’s standard customer support services and provide the support for the Services set out in each Statement of Work.
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6. Fees and Payment
(a) Fees for Fireside Membership. In exchange for Provider granting Customer a Fireside Membership, Customer shall pay Provider [OPTION 1: a monthly fee (“Membership Fee”) in the amount of $350.00 per office location per month (plus $125.00 per month for each additional office location, per location)] [OPTION 2: an annual, non-refundable fee of $3,600, payable in advance for each 12-month period of Customer’s Fireside Membership (plus $1,500
per year for each additional office location, per location)]. Customer’s Fireside Membership shall be on a month-to-month basis, and either party may terminate the Fireside Membership at any time. Customer shall make all payments of Membership Fees in US dollars on or before the first (1st) day of [each calendar month/each year] during the Term.
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(b) Financial Guarantee. In the event that (i) the term of Customer’s Fireside Membership exceeds twelve (12) months, and (ii) during such period Customer purchases at least 70% of its annual clinical supply purchases through the Membership Community, then to the extent that the Membership Fees paid by Customer during the intial twelve (12) months of its Fireside Membership exceeds the aggregate savings achieved by Customer as a result of its utilization of Provider’s Profitability Enhancement Services (defined below), Provider will refund to Customer the difference between the amount of Membership Fees paid by Customer and the savings achieved by Customer during such period. For purposes hereof, “Profitability Enhancement Services” means discounted clinical supplies, payment processing services, and other cost-saving services and opportunities provided to Customers in the Membership Community.
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(d) Fees for Services. Customer shall pay Provider the fees for Services ("Service Fees", and together with the Membership Fee, the “Fees”) as set forth in each Statement of Work without offset or deduction. Customer shall make all payments of Service Fees in US dollars on or before the due date set forth in the applicable Statement of Work.5

(e) If Customer fails to make any payment when due, without limiting Provider's other rights and remedies: (i) Provider may charge interest on the past due amount at the rate of 1.5% per month calculated daily and compounded monthly or, if lower, the highest rate permitted under applicable law; (ii) Customer shall reimburse Provider for all costs incurred by Provider in collecting any late payments or interest, including attorneys' fees, court costs, and collection
agency fees; and (iii) if such failure continues for thirty (30) days or more, Provider may suspend Customer's and its Authorized Users' access to any portion or all of the Services until such amounts are paid in full.
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(f) Expenses. Customer shall reimburse Provider for all reasonable expenses incurred in accordance with the Statement of Work, within thirty (30) days following receipt by the Customer of an invoice from Service Provider accompanied by receipts and reasonable supporting documentation.
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(g) Taxes. All Fees and other amounts payable by Customer under this Agreement are exclusive of taxes and similar assessments. Customer is responsible for all sales, use, and excise taxes, and any other similar taxes, duties, and charges of any kind imposed by any federal, state, or local governmental or regulatory authority on any amounts payable by Customer hereunder, other than any taxes imposed on Provider's income.
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7. Confidential Information
From time to time during the Term, either Party may disclose or make available to the other Party information about its business affairs, pricing, products, confidential intellectual property, trade secrets, third-party confidential information, and other sensitive or proprietary information, whether orally or in written, electronic, or other form or media, whether or not marked, designated, or otherwise identified as & "confidential" (collectively, "Confidential Information"). Without
limiting the generality of the foregoing, and for the sake of clarity, the terms and provisions of this Agreement, as well as the clinical supply pricing, payment processing costs and other services and opportunities made available by Provider to Customer as part of the Membership Community, shall be Confidential Information hereunder, and it shall be a breach of this Section 7 if such information is shared by Customer with any current or potential supplier or vendor of Customer or any other third party.
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Confidential Information does not include information that, at the time of disclosure is: (a) in the public domain; (b) known to the receiving Party at the time of disclosure; (c) rightfully obtained by the receiving Party on a non-confidential basis from a third party; or (d) independently developed by the receiving Party. The receiving Party shall not disclose the disclosing Party's Confidential Information to any person or entity, except to the receiving Party's employees who have a need to know the Confidential Information for the receiving Party to exercise its rights or perform its obligations hereunder. Notwithstanding the foregoing, each Party may disclose Confidential Information to the limited extent required (i) in order to comply with the order of a court or other governmental body, or as otherwise
necessary to comply with applicable law, provided that the Party making the disclosure pursuant to the order shall first have given written notice to the other Party and made a reasonable effort to obtain a protective order; or (ii) to establish a Party's rights under this Agreement, including to make required court filings. On the expiration or termination of the Agreement, the receiving Party shall promptly return to the disclosing Party all copies, whether in written, electronic, or other form or media, of the disclosing Party's Confidential Information, or destroy all such copies and certify in writing to the disclosing Party that such Confidential Information has been destroyed. Each Party's obligations of non-disclosure with regard to Confidential Information are effective as of the Effective Date and will expire five years from the date first disclosed to the receiving Party; provided, however, with respect to any Confidential Information that constitutes a trade secret (as determined under applicable law), such obligations of non- disclosure will survive the termination or expiration of this Agreement for as long as such Confidential Information remains subject to trade secret protection under applicable law.
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8. Intellectual Property Ownership; Feedback
(a) Provider IP. Customer acknowledges that, as between Customer and Provider, Provider owns all right, title, and interest, including all intellectual property rights, in and to the Provider IP and, with respect to Third-Party Products, the applicable third-party providers own all right, title, and interest, including all intellectual property rights, in and to the Third-Party Products.
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(b) Customer Data. Provider acknowledges that, as between Provider and Customer, Customer owns all right, title, and interest, including all intellectual property rights, in and to the Customer Data. Customer hereby grants to Provider a non-exclusive, royalty-free, worldwide license to reproduce, distribute, and otherwise use and display the Customer Data and perform all acts with respect to the Customer Data as may be necessary for Provider to provide the Services
to Customer , and a non-exclusive, perpetual, irrevocable, royalty-free, worldwide license to reproduce, distribute, modify, and otherwise use and display Customer Data incorporated within the Aggregated Statistics.
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(c) Feedback. If Customer or any of its employees or contractors sends or transmits any communications or materials to Provider by mail, email, telephone, or otherwise, suggesting or recommending changes to the Provider IP, including without limitation, new features or functionality relating thereto, or any comments, questions, suggestions, or the like ("Feedback"), Provider is free to use such Feedback irrespective of any other obligation or limitation between
the Parties governing such Feedback. Customer hereby assigns to Provider on Customer's behalf, and on behalf of its
employees, contractors and/or agents, all right, title, and interest in, and Provider is free to use, without any attribution or compensation to any party, any ideas, know- how, concepts, techniques, or other intellectual property rights contained in the Feedback, for any purpose whatsoever, although Provider is not required to use any Feedback.
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9. Limited Warranty and Warranty Disclaimer
(a) Provider warrants that the Services will conform in all material respects to the
service levels set forth in the applicable Statement of Work when accessed and used in
accordance with the Documentation. Provider does not make any representations or guarantees
regarding uptime or availability of the Services unless specifically identified in the Statement of
Work.

THE FOREGOING WARRANTY DOES NOT APPLY, AND PROVIDER STRICTLY DISCLAIMS ALL WARRANTIES, WITH RESPECT TO ANY THIRD-PARTY PRODUCTS. (b) EXCEPT FOR THE LIMITED WARRANTY SET FORTH IN SECTION 9(a),THE PROVIDER IP IS PROVIDED "AS IS" AND PROVIDER HEREBY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE. PROVIDER SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT, AND ALL WARRANTIES ARISING FROM COURSE OF DEALING,7USAGE, OR TRADE PRACTICE. EXCEPT FOR THE LIMITED WARRANTY SET FORTH IN SECTION 9(a), PROVIDER MAKES NO WARRANTY OF ANY KIND THAT THE PROVIDER IP, OR ANY PRODUCTS OR RESULTS OF THE USE THEREOF, WILL MEET CUSTOMER'S OR ANY OTHER PERSON'S REQUIREMENTS, OPERATE WITHOUT INTERRUPTION, ACHIEVE ANY INTENDED RESULT, BE COMPATIBLE OR WORK
WITH ANY SOFTWARE, SYSTEM, OR OTHER SERVICES, OR BE SECURE, ACCURATE,
COMPLETE, FREE OF HARMFUL CODE, OR ERROR FREE.
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10. Indemnification
(a) Provider Indemnification.
(i) Provider shall indemnify, defend, and hold harmless Customer from and against any and all losses, damages, liabilities, costs (including reasonable attorneys' fees) ("Losses") incurred by Customer resulting from any third-party claim, suit, action, or proceeding ("Third-Party Claim") that the Services, or any use of the Services in accordance with this Agreement, infringes or misappropriates such third party's US intellectual property rights, provided that Customer promptly notifies Provider in writing of such Third-Party Claim, cooperates with Provider, and allows Provider sole authority to control the defense and settlement of such Third-Party Claim. (ii) If a Third Party-Claim is made or appears possible, Customer agrees to permit Provider, at Provider's sole discretion, to (A) modify or replace the Services, or
component or part thereof, to make it non-infringing, or (B) obtain the right for Customer to continue use. If Provider determines that neither alternative is reasonably available, Provider may terminate this Agreement, in its entirety or with respect to the affected component or part, effective immediately on written notice to Customer. (iii) This Section 10(a) will not apply to the extent that the alleged infringement arises from: (A) use of the Services in combination with data, software, hardware, equipment, or technology not provided by Provider or authorized by Provider in writing; (B) modifications to the Services not made by Provider; (C) Customer Data; or (D) Third-Party Products.
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(b) Customer Indemnification. Customer shall indemnify, hold harmless, and, at Provider's option, defend Provider from and against any Losses resulting from any Third-Party Claim that the Customer Data, or any use of the Customer Data in accordance with this Agreement, infringes or misappropriates such third party's intellectual property rights and any Third-Party Claims based on Customer's or any Authorized User's (i) negligence or willful misconduct; (ii) use of the Services in a manner not authorized by this Agreement; (iii) use of the Services in combination with data, software, hardware, equipment, or technology not provided by Provider or authorized by Provider in writing; or (iv) modifications to the Services not made by Provider, provided that Customer may not settle any Third-Party Claim against Provider unless Provider consents to such settlement, and further provided that Provider will have the right, at its option, to defend itself against any such Third-Party Claim or to participate in the defense thereof by counsel of its own choice.
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(c) Sole Remedy. THIS 10 SETS FORTH CUSTOMER'S SOLE REMEDIES AND PROVIDER'S SOLE LIABILITY AND OBLIGATION FOR ANY ACTUAL, THREATENED, OR ALLEGED CLAIMS THAT THE SERVICES INFRINGE, MISAPPROPRIATE, OR8OTHERWISE VIOLATE ANY INTELLECTUAL PROPERTY RIGHTS OF ANY THIRD PARTY. IN NO EVENT WILL PROVIDER'S LIABILITY UNDER THIS SECTION 10 EXCEED THE TOTAL AMOUNTS PAID TO PROVIDER UNDER THE APPLICABLE STATEMENT OF WORK IN THE TWELVE MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO THE CLAIM.
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11. Limitations of Liability
IN NO EVENT WILL PROVIDER BE LIABLE UNDER OR IN CONNECTION WITH THIS AGREEMENT UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE, FOR ANY: (a) CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, ENHANCED, OR PUNITIVE DAMAGES; (b) INCREASED COSTS, DIMINUTION IN VALUE OR LOST BUSINESS, PRODUCTION, REVENUES, OR PROFITS; (c) LOSS OF GOODWILL OR REPUTATION; (d) USE, INABILITY TO USE, LOSS, INTERRUPTION, DELAY, OR RECOVERY OF ANY DATA, OR BREACH OF DATA OR SYSTEM SECURITY; OR (e) COST OF REPLACEMENT GOODS OR SERVICES, IN EACH CASE REGARDLESS OF WHETHER PROVIDER WAS ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES OR SUCH LOSSES OR DAMAGES WERE OTHERWISE FORESEEABLE. IN NO EVENT WILL PROVIDER'S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE EXCEED THE TOTAL AMOUNTS PAID TO PROVIDER UNDER THE APPLICABLE STATEMENT OF WORK IN THE TWELVE MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO THE CLAIM.

12. Term and Termination
(a) Term. This Agreement shall commence as of the Effective Date and shall continue thereafter until the later of (i) the final day of the calendar month during which Customer terminates its Fireside Membership, or (ii) completion of the Services under all Statements of Work (the “Term”), unless sooner terminated pursuant to Section 12(b).
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(b) Termination. In addition to any other express termination right set forth in this Agreement:(i) In the event Provider fails in a material way to provide the Services as outlined in this Agreement or in the applicable Statement of Work (which shall be deemed to occur where the Services provided fail to perform in substantial accordance with the specifications in the applicable Documentation in a way that has a material, adverse impact upon the Services as a whole), Customer shall give written notice to Provider, which notice shall make explicit reference to this Section 12(b) and shall itemize all acts or omissions which Customer believes to constitute a material failure to so perform under this Agreement (the “Default Notice”), and Provider shall have thirty (30) days from the receipt of the Default Notice to cure any specified default. In the event Provider cures such specified default(s) within such thirty (30) day period, Provider
shall have no liability or further obligations to Customer in connection therewith. In the event Provider fails to cure within this thirty (30) day period and Customer so notifies Provider in writing, Customer shall have the right to terminate the Service (and the underlying Statement of Work) as to which Provider has failed to perform after such Default Notice and opportunity to cure, and Provider's sole liability, if any, to Customer shall be the cancellation of the remaining charges due from Customer to Provider for such terminated Service(s) or Statement of Work for the balance of the then-existing term9from the date of the Default Notice, and the preparation and delivery of Customer data related to such Services in accordance with the termination provisions of this Agreement. (ii) In the event Customer is in breach of any of its obligations under this Agreement, including, without limitation, the failure to pay any fees or other amount
hereunder or under any Statement of Work upon the date when due, and fails to cure such breach within thirty (30) days after receipt of written notice from Service Provider containing sufficient detail to allow Customer to cure the breach, Service Provider shall have the right, by written notice to Customer, in addition to any other rights or remedies
set forth in this Agreement or available at law or in equity, to terminate (i) this Agreement, or (ii) the Service or Statement of Work as to which Customer remains in breach. Upon Service Provider’s termination of the Agreement in accordance with this subsection, Service Provider shall have no further obligation or liability hereunder, and
may refuse to process Customer's data from and after such date of termination. In the event Service Provider, after providing such termination notice to Customer, refuses to process data, Customer's data will be returned in accordance with the termination provisions of this Agreement. Nothing in this subsection shall be construed as a waiver of
Customer's obligation to make payments when they come due for Services previously provided by Service Provider to Customer under this Agreement and prior to the effective date of such termination. (iii) Either Party may terminate this Agreement, effective immediately upon written notice to the other Party, if the other Party: (A) files or has filed against it, a petition for voluntary or involuntary bankruptcy or otherwise becomes subject, voluntarily or involuntarily, to any proceeding under any domestic or foreign bankruptcy or insolvency law; (B) makes or seeks to make a general assignment for the benefit of its creditors; or (C) applies for or has appointed a receiver, trustee, custodian, or similar
agent appointed by order of any court of competent jurisdiction to take charge of or sell any material portion of its property or business. (iv) Either Party may terminate this Agreement at any time for any reason by providing at least thirty (30) days prior written notice to the other Party.
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(c) Effect of Expiration or Termination. Upon expiration or earlier termination of this Agreement, Customer shall immediately discontinue use of the Provider IP and, without limiting Customer's obligations under 7, Customer shall delete, destroy, or return all copies of the Provider IP and certify in writing to the Provider that the Provider IP has been deleted or destroyed. No expiration or termination will affect Customer's obligation to pay all Fees that may have become due before such expiration or termination or entitle Customer to any refund.

(d) Survival. This Section 12(d) and 1, 6, 7, 8, 9(b), 10, 11, 12 and 13 survive any
termination or expiration of this Agreement. No other provisions of this Agreement survive the
expiration or earlier termination of this Agreement.
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13. Miscellaneous
(a) Entire Agreement. This Agreement, including and together with any related Statements of Work, exhibits, schedules, attachments and appendices, constitutes the sole and entire agreement of the Parties with respect to the subject matter contained herein, and supersedes all prior and contemporaneous understandings, agreements, representations and warranties, both10written and oral, regarding such subject matter. The parties acknowledge and agree that if there is any conflict between the terms and conditions of this Agreement and the terms and conditions of any Statement of Work, the terms and conditions of this Agreement shall supersede and control.

(b) Notices. All notices, requests, consents, claims, demands, waivers, and other communications hereunder (each, a "Notice") must be in writing and addressed to the Parties at the addresses set forth on the first page of this Agreement (or to such other address that may be designated by the Party giving Notice from time to time in accordance with this Section). All Notices must be delivered by personal delivery, nationally recognized overnight courier (with all fees pre-paid), facsimile or email (with confirmation of transmission), or certified or registered mail (in each case, return receipt requested, postage pre-paid). Except as otherwise provided in this Agreement, a Notice is effective only: (i) upon receipt by the receiving Party; and (ii) if the Party giving the Notice has complied with the requirements of this Section.

(c) Force Majeure. In no event shall either Party be liable to the other Party, or be deemed to have breached this Agreement, for any failure or delay in performing its obligations under this Agreement (except for any obligations to make payments), if and to the extent such failure or delay is caused by any circumstances beyond such Party's
reasonable control, including but not limited to acts of God, flood, fire, earthquake, epidemics, explosion, war, terrorism, invasion, riot or other civil unrest, strikes, labor stoppages or slowdowns or other industrial disturbances, or passage of law or any action taken by a governmental or public authority, including imposing an embargo.
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(d) Amendment and Modification; Waiver. No amendment to or modification of this Agreement is effective unless it is in writing and signed by an authorized representative of each Party. No waiver by any Party of any of the provisions hereof will be effective unless explicitly set forth in writing and signed by the Party so waiving. Except as otherwise set forth in this Agreement, (i) no failure to exercise, or delay in exercising, any rights, remedy, power, or privilege arising from this Agreement will operate or be construed as a waiver thereof, and (ii) no single or partial exercise of any right, remedy, power, or privilege hereunder will preclude any other or further exercise thereof or the exercise of any other right, remedy, power, or privilege.

(e) Severability. If any provision of this Agreement is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability will not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction. Upon such determination that any term or other provision is invalid, illegal, or unenforceable, the Parties shall negotiate in good faith to modify this Agreement so as to effect their original intent as closely as possible in a mutually acceptable manner in order that the transactions contemplated hereby be consummated as originally contemplated to the greatest extent possible.
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(f) Governing Law; Submission to Jurisdiction. This Agreement is governed by and construed in accordance with the internal laws of the State of Alabama without giving effect to any choice or conflict of law provision or rule that would require or permit the application of the laws of any jurisdiction other than those of the State of Alabama. Any legal suit, action, or proceeding arising out of or related to this Agreement or the licenses granted hereunder will be instituted exclusively in the federal courts of the United States or the courts of the State of Alabama in each case located in the city of Birmingham and County of Jefferson, and each Party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action, or proceeding.

(g) Assignment. Customer may not assign any of its rights or delegate any of its obligations hereunder, in each case whether voluntarily, involuntarily, by operation of law or otherwise, without the prior written consent of Provider, which consent shall not be unreasonably withheld, conditioned, or delayed. Any purported assignment or delegation in violation of this Section will be null and void. No assignment or delegation will relieve the assigning or delegating Party of any of its obligations hereunder. This Agreement is binding upon and inures to the benefit of the Parties and their respective permitted successors and assigns.

(h) Export Regulation. Customer shall comply with all applicable federal laws, regulations, and rules, and complete all required undertakings (including obtaining any necessary export license or other governmental approval), that prohibit or restrict the export or re-export of the Services or any Customer Data outside the US.
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(i) Equitable Relief. Each Party acknowledges and agrees that a breach or threatened breach by such Party of any of its obligations under 7 or, in the case of Customer, Section 2(c), would cause the other Party irreparable harm for which monetary damages would not be an adequate remedy and agrees that, in the event of such breach or threatened breach, the other Party will be entitled to equitable relief, including a restraining order, an injunction, specific
performance, and any other relief that may be available from any court, without any requirement to post a bond or other security, or to prove actual damages or that monetary damages are not an adequate remedy. Such remedies are not exclusive and are in addition to all other remedies that may be available at law, in equity, or otherwise.
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(j) Counterparts. This Agreement may be executed in counterparts, each of which is deemed an original, but all of which together are deemed to be one and the same agreement.