Independa, Inc.


INDEPENDA SUBSCRIPTION AGREEMENT

THIS IS A LEGAL AGREEMENT BETWEEN THE “SUBSCRIBER” (EITHER AN INDIVIDUAL OR A SINGLE ENTITY) AND INDEPENDA, INC. (“INDEPENDA”) FOR THE INDEPENDA OFFERING (AS DEFINED BELOW).

PLEASE READ THESE TERMS OF THE INDEPENDA SUBSCRIPTION AGREEMENT (THIS “AGREEMENT”) CAREFULLY BEFORE USING THE PRODUCTS AND SERVICES OFFERED BY INDEPENDA. THIS AGREEMENT SETS FORTH THE LEGALLY BINDING TERMS AND CONDITIONS FOR EACH SUBSCRIBER’S, AND EACH SUBSCRIBER’S AUTHORIZED USER’S (AS DEFINED BELOW), USE OF THE INDEPENDA OFFERING.

BY CLICKING ON THE “ACCEPT” BUTTON BELOW SUBSCRIBER ACKNOWLEDGES THAT SUBSCRIBER HAS READ AND UNDERSTANDS THE FOLLOWING TERMS AND AGREE TO BE BOUND BY AND BECOME A PARTY TO THIS AGREEMENT, AND IF THE PERSON ACCEPTING THE TERMS HEREOF IS ACCEPTING ON BEHALF OF AN ENTITY (WHO WILL BE THE SUBSCRIBER FOR PURPOSES OF THIS AGREEMENT), THAT SUCH PERSON IS AUTHORIZED TO BIND SUCH ENTITY TO THE TERMS OF THIS AGREEMENT.

IF SUBSCRIBER DOES NOT AGREE TO ALL OF THE TERMS OF THIS AGREEMENT, INDEPENDA IS UNWILLING TO GRANT SUBSCRIBER THIS LICENSE TO ACCESS AND USE THE INDEPENDA OFFERING AND SUBSCRIBER SHOULD EXIT THE INDEPENDA APPLICATION AND CEASE ALL USE OF THE INDEPENDA OFFERING. IN SUCH EVENT, IF SUBSCRIBER HAS MADE ANY PAYMENT FOR THE INDEPENDA OFFERING, SUBSCRIBER SHALL BE SUBJECT TO THE REFUND POLICIES OF THE ENTITY TO WHICH SUCH PAYMENT WAS MADE.

This Agreement is made and entered into. as of the date that Subscriber accepts the terms hereof by clicking on the “ACCEPT” button below, the “Effective Date”), by and between Independa, a Delaware corporation with an office at 11455 El Camino, Suite 365, San Diego, CA 92130, and Subscriber (as identified in the order form for the Subscription). Independa and Subscriber are individually referred to in this Agreement as a “Party” and collectively as the “Parties.”

In consideration of the mutual promises contained in this Agreement, the Parties, intending to be legally bound, agree as follows:


BACKGROUND

Independa makes generally available the Independa Offering (as defined below), a suite of proprietary solutions that provide Subscribers with tools that are designed to enable care recipients, and other individuals, the ability to live more independently more comfortably; and,

The Parties desire to enter into an arrangement pursuant to which Subscriber will enter into this Agreement for access to and use of the Independa Offering by Authorized Users, and Independa will provide the Independa Offering pursuant to the terms and conditions set forth in this Agreement.


TERMS AND CONDITIONS

1. DEFINITIONS. Certain capitalized terms used in this Agreement, not otherwise defined herein, will have the meanings set forth below.

1.1. “Activation” and “Activation Date” have the meanings provided in Section 1.2.

1.2. “Authorized User(s)” means any person(s) authorized by the Subscriber to access the Independa Offering under Subscriber’s Subscription. Authorized Users may include Subscriber, Care Recipients, and Caregivers. Each Authorized User is identified during the Independa Offering registration process in accordance with a Policy established by Independa, but solely to the extent that any such individual is provided access to the Independa Offering by the Subscriber and is designated as an Authorized User. The act of registering the Authorized User in the Independa Offering is called “Activation” and the date of any such registration is the “Activation Date”. Subscriber purchases a Subscription (defined below) from Independa for an Authorized User who is a Care Recipient. Authorized Users who are Caregivers are each associated with a Care Recipient and are authorized and provided access to the Independa Offering by Subscriber.

1.3. “Caregiver” means a family member or trusted friend of a Care Recipient, or a professional hired to provide caregiving services to a Care Recipient, who is authorized and designated by both the Care Recipient and Subscriber to be a Caregiver and receive access to the Caregiver Web Application. Any such authorization and designation will be pursuant to Independa’s standard practices for such designation and authorization.

1.4. “Caregiver Web Application” is the component of the Independa Offering marketed by Independa as the Caregiver Web Application. Through this consolidated app, care managers can use Independa Smart Reminders™ to help the Care Recipient with a wide and rich range of socially engaging activities, prescription reminders, calendar appointments, and even reminders for activities of daily living.

1.5. “Care Recipient” means an Authorized User that receives caregiving services and that is designated as a Care Recipient by Subscriber through the Independa Offering.

1.6. “Confidential Information” means all written or oral information, disclosed by either Party to the other, related to the operations of either Party or a third party that has been identified as confidential or that by the nature of the information or the circumstances surrounding disclosure ought reasonably to be treated as confidential.

1.7. “Documentation” means text and/or graphical materials, whether in print or electronic form, that describe the features, functions and use of the Independa Application as contained within the Independa Offering, which materials are designed to facilitate use of the Independa Offering and which are provided by Independa to Subscriber in accordance with the terms of this Agreement.

1.8. “Independa Application” means the component of the Independa Offering designated as Independa software application(s) and identified as Independa Applications on Exhibit A.

1.9. “Independa Brand” means any one or more of the trademarks, service marks, trade names, domain names, logos, business and product names, slogans, and registrations and applications for registration thereof owned by Independa and communicated to Subscriber.

1.10. “Independa Offering” means, collectively, Independa Applications and any Third Party Products available through Independa, as designated in Exhibit A.

1.11. “List Price” means Independa’s suggested list price for the Independa Offerings as is set forth in Independa’s then-current price list.

1.12. “Policy” or “Policies” mean policies promulgated by Independa and made available to Subscriber, as may be updated by Independa from time-to-time addressing, for example, the installation of the Independa Offerings, warranty claim processing, returns and refunds, and similar technical and administrative matters.

1.13. “Process” means any operation or set of operations which is performed, whether or not by automatic means, such as ordering, collection, recording, organization, storage, adaptation or alteration, retrieval, consultation, use, disclosure by transmission, dissemination or otherwise making available, alignment or combination, blocking or dispersed erasure, or destruction.

1.14. “Subscriber Data” means any data or materials of a Subscriber or an Authorized User that are provided to or collected by the Independa Offering, including information regarding Authorized Users.

1.15. “Subscription” means the right purchased by Subscriber from Independa that authorizes an Authorized User to access the Independa Offering in accordance with the terms of this Agreement. For the avoidance of doubt, the Parties state that each Subscription is: (a) limited to the applicable Subscription Period, and (b) associated with a specific Subscriber and encompasses the right of access of the applicable Authorized User and may include additional Authorized Users (such as, for example, Caregivers) that will utilize the Independa Offering solely as permitted in this Agreement, and not for any other purpose.

1.16. “Subscription Period” means, with respect to each Subscription, the period of time that an Authorized User may access the Independa Offering, commencing on the Activation Date and terminating as provided in this Agreement.

1.17. “Third Party Product” means the third party products and services, including hardware, software, and content included with the Independa Offering, including those set forth on Exhibit A.

2. SUBSCRIBER RIGHTS AND OBLIGATIONS.

2.1. License to Independa Application. Subject to the terms and conditions herein, Independa grants Subscriber a revocable non-exclusive, non-transferable, right and license to access the features and functions of the Independa Offering during the Term, solely for the benefit of Authorized Users. Subscriber acknowledges and agrees that, regarding Third Party Products accessed via the Independa Offering, Subscriber and Authorized Users are subject to and must comply with any terms and conditions that the owner of each such Third Party Product requires for its use, notwithstanding that access to such Third Party Product is being provided by the Independa Offering.

2.2. Breaches. Subscriber will promptly notify Independa of a security breach of the Independa Offering or in the event it becomes aware of an Authorized User’s breach of this Agreement.

2.3. Responsibility for Authorized User Accounts. Subscriber will manage the accounting applicable to this Agreement for all Authorized Users. Independa shall collect its fees directly from Subscriber in accordance with the fee schedule set forth in the order Process. Subscriber shall be responsible to Independa for all use of the Independa Offering by the Authorized Users, and any breach of this Agreement by any Authorized User shall be deemed a breach of this Agreement by Subscriber.

2.4. Security. Subscriber represents and warrants that it will use appropriate administrative, physical and technical safeguards to protect Independa’s Confidential Information.

3. INDEPENDA RIGHTS AND OBLIGATIONS; OWNERSHIP.

3.1. Retained Rights; Ownership. Independa retains the right to use, and to grant third parties the right to use, the Independa Offering(s), Documentation and the Independa Brand for any and all purposes whatsoever. Independa, or its licensors, retains all right, title and interest in the Independa Offering, Documentation and the Independa Brand. All goodwill arising in or from the Independa Brand will inure solely to Independa’s benefit. Except to the extent granted in this Agreement, Subscriber acquires no rights in the Independa Brand, Documentation or Independa Offering. For purposes of clarity, despite any use of the terms “sale” or “purchase” or “distribute” or similar terms, Subscriber is only granted the right to access the Independa Offering pursuant to this Agreement and no ownership rights in the Independa Application are transferred. For the avoidance of doubt, the Parties agree that, as between Independa and Subscriber, Subscriber retains ownership of the Subscriber Data, and provides Independa the following license in connection therewith: Subscriber hereby grants Independa a worldwide, non-exclusive, fully paid-up, and royalty free right and license to access and use the Subscriber Data, as Independa deems appropriate, for Independa’s business purposes and as otherwise necessary for Independa to perform its obligations and receive its benefits under this Agreement.

3.2. Changes to the Independa Offering. Independa may add, suspend, change or modify the Independa Offering (“Modification”) at any time, in its sole discretion.

3.3. Feedback.

Independa may send Subscriber questionnaires or surveys on a periodic basis in written or electronic form as mutually agreed between the Parties and Subscriber agrees to complete all such surveys. Any comments, ideas and/or reports provided to Independa, whether in such questionnaires or otherwise (collectively, “Feedback”) will be considered Independa’s proprietary and confidential information, and Subscriber hereby irrevocably transfers and assigns to Independa all intellectual property rights embodied in or arising in connection with such Feedback.

3.4. Subscriber Orders, Returns, and Warranties. Subscriber orders, returns of product and warranty claims will be submitted pursuant to Policies published by Independa.

3.5. Installation and Support. Either Independa, or an authorized third party as designated by Independa, shall be responsible for: (i) the installation of the Independa Offering on the applicable hardware purchased by Subscriber, and, (ii) support of the Independa Offering in accordance with Independa’s, or such authorized third party’s standard support Policies. Notwithstanding the foregoing, the Parties may mutually agree in writing that Subscriber shall be responsible for the installation and support of the Independa Offering, in which case Independa shall provide Subscriber with the information necessary for Subscriber to implement such installation and support, and Subscriber will be responsible for such installation and support.

4. FEES AND EXPENSES.

4.1. Fees. Subscriber shall be responsible to pay all fees due Independa, as set forth in in the fee schedule agreed to by Subscriber in the order Process, in accordance with the payment terms set forth therein.

4.2. Taxes. Subscriber shall be solely responsible for all applicable sales, use and other taxes and all applicable export and import fees, customs duties and similar charges applicable to its activities hereunder, and to the revenue share received by Subscriber hereunder. Subscriber will be responsible for payment of all such taxes (other than taxes based on Independa’s income in the United States), fees, duties and charges, and any related penalties and interest, arising from the Subscriber’s activities hereunder and/or Subscriber’s revenue share hereunder. Any such taxes imposed on any payments hereunder to Independa will be Subscriber’s sole responsibility, and Subscriber will indemnify and hold Independa harmless in the event Independa is required to pay such taxes.

5. TREATMENT OF CONFIDENTIAL INFORMATION.

5.1. Ownership of Confidential Information. The Parties acknowledge that during the performance of this Agreement, each Party will have access to certain of the other Party’s Confidential Information or Confidential Information of third parties that the disclosing Party is required to maintain as confidential. Both Parties agree that all items of Confidential Information are proprietary to the disclosing Party or such third party, as applicable, and will remain the sole property of the disclosing Party or such third party. For the sake of clarity, as between the Parties, the Confidential Information of Independa includes: (i) this Agreement; and (ii) any non-publicly available documentation related to the Independa Offering.

5.2. Mutual Confidentiality Obligations. Each Party agrees as follows: (i) to use the other Party’s Confidential Information only for the purposes described herein; (ii) that, except as necessary to perform its obligations hereunder, such Party will not reproduce the other Party’s Confidential Information and will hold in confidence and protect the Confidential Information from dissemination to, and use by, any third party; (iii) that, except as permitted under this Agreement, neither Party will create, or permit any third party to create, any derivative work from Confidential Information disclosed to such Party by the other Party; (iv) to restrict access to the other Party’s Confidential Information to such of its personnel, agents, and/or consultants, if any, who have a need to have access for purposes of performing such Party’s obligations hereunder and who have been advised of and have agreed to treat such information in accordance with the terms of this Agreement; and (v) to return or destroy, to the extent required by Section 9.4, all Confidential Information of the other Party in its possession upon termination or expiration of this Agreement.

5.3. Confidentiality Exceptions. Notwithstanding the foregoing, the provisions of Sections 5.1 and 5.2 will not apply to Confidential Information that: (i) is publicly available or in the public domain at the time disclosed; (ii) is or becomes publicly available or enters the public domain through no fault of the recipient; (iii) is rightfully communicated to the recipient by persons not bound by confidentiality obligations with respect thereto; (iv) is already in the recipient’s possession free of any confidentiality obligations with respect thereto at the time of disclosure; or (v) is approved for release or disclosure by the disclosing Party without restriction. Notwithstanding the foregoing, each Party may disclose Confidential Information to the limited extent required: (x) 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 will first have given written notice to the other Party and made a reasonable effort to obtain a protective order or (y) to establish a Party’s rights under this Agreement, including to make such court filings as it may be required to do.

6. REPRESENTATIONS AND WARRANTIES.

6.1. Mutual Representations. Each Party hereby represents and warrants: (i) that it is duly organized, validly existing and in good standing under the laws of its jurisdiction of incorporation; (ii) that the execution and performance of this Agreement will not conflict with or violate any provision of any law having applicability to such Party; and (iii) that this Agreement, when executed and delivered, will constitute a valid and binding obligation of such Party and will be enforceable against such Party in accordance with its terms.

6.2. No False Representations. Each Party warrants that it will not knowingly make or publish any false or misleading representations, warranties, or guarantees concerning the other Party or its tools, products, or services.

6.3. By Subscriber. Subscriber further represents and warrants that it has all rights necessary to provide the Subscriber Data to Independa as set forth in this Agreement, and that Subscriber will comply with all applicable laws and regulations in performing its obligations hereunder.

6.4. By Hardware Manufacturer. All warranties regarding any hardware (including, without limitation, any televisions containing the Independa Offering), obtained by Subscriber in connection with this Agreement, shall be solely those warranties provided by the manufacturer of such hardware. If Independa provides any such hardware to Subscriber, then Independa shall, to the extent permitted by the manufacturer, pass-through the manufacturer’s warranties for such hardware to Subscriber. For avoidance of doubt, the manufacturer’s warranties are the only warranties provided under this Agreement regarding hardware – Independa does not provide any separate hardware warranties to Subscriber.

6.5. Internet Delays. THE INDEPENDA OFFERING MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS. INDEPENDA IS NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES, OR OTHER DAMAGE RESULTING FROM SUCH PROBLEMS.

6.6. General Disclaimer. EXCEPT FOR ANY EXPRESS WARRANTIES SET FORTH IN THIS AGREEMENT, THE INDEPENDA OFFERING IS PROVIDED “AS IS” AND “WITH ALL FAULTS.” TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, INDEPENDA DISCLAIMS ANY AND ALL OTHER PROMISES, REPRESENTATIONS AND WARRANTIES, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, SYSTEM INTEGRATION, DATA ACCURACY, TITLE AND/OR NON-INFRINGEMENT. INDEPENDA DOES NOT WARRANT THAT THE INDEPENDA OFFERING WILL MEET SUBSCRIBER’S REQUIREMENTS OR THAT THE OPERATION OF THE INDEPENDA APPLICATION WILL BE SECURE, UNINTERRUPTED OR ERROR-FREE, OR THAT ALL ERRORS WILL BE CORRECTED. INDEPENDA MAKES NO REPRESENTATIONS OR WARRANTIES ABOUT THE INDEPENDA OFFERING’S COMPLIANCE WITH LAWS AND REGULATIONS IN THE JURISDICTION WHERE SUBSCRIBER IS LOCATED, AND DISCLAIMS ALL LIABILITY ASSOCIATED THEREWITH. WITHOUT LIMITING THE FOREGOING, INDEPENDA MAKES NO WARRANTIES WITH RESPECT TO THE THIRD PARTY PRODUCTS. NOTWITHSTANDING THE ABOVE, WITH RESPECT TO ANY THIRD PARTY PRODUCT, INDEPENDA AGREES TO PASS THROUGH TO ANY AUTHORIZED USER ANY THIRD PARTY WARRANTY FOR SUCH THIRD PARTY PRODUCT (TO THE EXTENT PERMITTED BY SUCH THIRD PARTY).

SOME JURISDICTIONS DO NOT ALLOW LIMITATIONS ON HOW LONG AN IMPLIED WARRANTY LASTS, SO THE ABOVE LIMITATIONS MAY NOT APPLY TO SUBSCRIBER IN THEIR ENTIRETY.

6.7. Specific Disclaimer. THE INDEPENDA OFFERING IS NOT A MEDICAL DEVICE AND SHOULD NOT BE USED FOR THE PURPOSE OF DIAGNOSIS OR TREATMENT. FURTHER, WHILE IT IS POSSIBLE THAT THE INDEPENDA OFFERING MAY INCREASE THE SPEED WITH WHICH IMPORTANT INFORMATION IS TRANSMITTED, NEITHER SUBSCRIBER NOR ANY CAREGIVER OR CARE RECIPIENT SHOULD RELY ON THE ERROR-FREE OPERATION OF THE INDEPENDA OFFERING (E.G., THE RECEIPT OF ACCURATE AND TIMELY INFORMATION). THE PARTIES ACKNOWLEDGE AND AGREE THAT INDEPENDA WILL NOT BE RESPONSIBLE FOR THE USE OF THE EQUIPMENT OR THE SOFTWARE AS IT RELATES TO ANY FDA REGULATIONS. USE OF THE INDEPENDA OFFERING IN CONJUNCTION WITH MEDICAL DEVICES (E.G., INGESTING AND UPLOADING READINGS FROM AN INSULIN MONITOR) DOES NOT MAKE THE INDEPENDA OFFERING A MEDICAL DEVICE AND IT IS NOT REGULATED AS A MEDICAL DEVICE. CARE RECIPIENT’S DOCTORS AND OTHER MEDICAL SUPPORT PROFESSIONALS SHOULD ALWAYS BE CONSULTED FOR ANY MEDICAL OR HEALTH ISSUES, AND NO INFORMATION FROM THE INDEPENDA OFFERING SHOULD BE RELIED UPON TO DIAGNOSE OR OTHERWISE ASSESS THE MEDICAL CONDITION OF THE CARE RECIPIENT.

7. Limitations and Exclusions of Liability.

7.1. Limitations. IN NO EVENT WILL INDEPENDA BE LIABLE TO SUBSCRIBER, OR ANY THIRD PARTY FOR ANY LOST PROFITS OR ANY INCIDENTAL, INDIRECT, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES, REGARDLESS OF THE NATURE OF THE CLAIM, INCLUDING, WITHOUT LIMITATION, COSTS OF DELAY, ANY FAILURE OF DELIVERY, BUSINESS INTERRUPTION, COSTS OF LOST OR DAMAGED DATA OR DOCUMENTATION, OR LIABILITIES TO THIRD PARTIES ARISING FROM ANY SOURCE, EVEN IF INDEPENDA HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE CUMULATIVE LIABILITY OF INDEPENDA TO SUBSCRIBER FOR ALL CLAIMS ARISING FROM OR RELATING TO THIS AGREEMENT, INCLUDING, WITHOUT LIMITATION, ANY CAUSE OF ACTION SOUNDING IN CONTRACT, TORT, OR STRICT LIABILITY, WILL NOT EXCEED THE AMOUNTS PAID TO INDEPENDA BY SUBSCRIBER UNDER THIS AGREEMENT DURING THE TWELVE (12)-MONTH PERIOD PRIOR TO THE ACT, OMISSION OR EVENT GIVING RISE TO SUCH LIABILITY. THESE LIMITATIONS OF LIABILITY ARE INTENDED TO APPLY WITHOUT REGARD TO WHETHER OTHER PROVISIONS OF THIS AGREEMENT HAVE BEEN BREACHED OR HAVE PROVEN INEFFECTIVE, AND SHALL BE ENFORCED TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW.

SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATIONS AND EXCLUSIONS MAY NOT APPLY TO SUBSCRIBER IN THEIR ENTIRETY.

7.2. Essential Basis. Subscriber acknowledges and understands that the disclaimers, exclusions and limitations of liability set forth in Sections 6 and 7 form an essential basis of the agreement between the Parties, that the Parties have relied upon such disclaimers, exclusions and limitations of liability in negotiating the terms and conditions in this Agreement, and that absent such disclaimers, exclusions and limitations of liability, the terms and conditions of this Agreement would be substantially different.

8. INDEMNITY.

8.1. Independa’s Indemnity Obligations. Independa agrees to indemnify, defend and hold harmless Subscriber from and against any and all losses, liabilities, costs (including reasonable attorneys’ fees), expenses or damages awarded by a court or agreed upon in settlement based on any claim by a third party that the Independa Offering or the Independa Brand, each as used in accordance with this Agreement, infringes a third party’s intellectual property rights that exist in the Territory. In the event such a claim occurs or, in Independa’s opinion, is likely to occur, Independa may, in its sole discretion: (i) procure the right for Subscriber to continue using the Independa Offering in accordance with this Agreement; (ii) repair or modify the Independa Offering so as to make it non-infringing; or (iii) terminate this Agreement. Notwithstanding the foregoing, Independa shall have no indemnity obligation hereunder if the alleged infringement arises, in whole or in part, from: (x) the unauthorized modification of the Independa Offering or the Independa Brand by a party other than Independa, or (y) the unauthorized combination, operation or use of the Independa Offering with other software, hardware or technology not provided by Independa. THIS SECTION STATES INDEPENDA’S ENTIRE OBLIGATION AND LIABILITY WITH RESPECT TO ANY CLAIM OF INFRINGEMENT BY THE INDEPENDA OFFERING AND INDEPENDA BRAND.

8.2. Subscriber’s Indemnity Obligations. Subscriber agrees to hold harmless, indemnify, and, at Independa’s option, defend Independa from and against any losses, liabilities, costs (including reasonable attorneys’ fees), expenses or damages based on any claim by a third party resulting from: (i) Subscriber’s negligence or willful misconduct; (ii) a breach by Subscriber of its representations, warranties and obligations hereunder; (iii) a breach of this Agreement by an Authorized User; or (iv) any claim brought against Independa, in connection with this Agreement, by any Authorized User (other than Subscriber).

8.3. Procedures. The indemnification obligations set forth above are conditioned on the indemnified Party: (i) promptly notifying the indemnifying Party of any claim which may be subject to an indemnification obligation; (ii) granting the indemnifying Party sole control over the defense and/or settlement of any such claim (provided that the indemnifying Party may not, without the indemnified Party’s prior consent, enter into any settlement that does not unconditionally release the indemnified Party, except for the payment of money damages that will be paid by the indemnifying Party); and (iii) assisting the indemnifying Party as reasonably requested and at the indemnifying Party’s sole expense.

9. TERM AND TERMINATION.

9.1. Term. This Agreement will commence on the Effective Date and, unless earlier terminated as provided herein, continue for the time period set forth in the initial order for the Independa Offering as placed by Subscriber during the ordering Process (the “Initial Term”). Prior to the end of the Initial Term (and any applicable renewal term), so long as Independa is willing to continue to provide the Independa Offering to Subscriber, Independa will provide Subscriber with a renewal notice that will include subscription pricing and terms for the upcoming renewal period (each renewal period will be an additional one (1) year). Payment of such invoice by Subscriber shall indicate Subscriber’s express acceptance of such pricing and terms, and shall extend the Term of this Agreement for the renewal period. Independa’s failure to provide such renewal invoice (or Independa providing an express notice of non-renewal), or Subscriber’s failure to pay the renewal invoice in the required payment period, shall indicate a non-renewal of the Agreement by the applicable Party, and the Agreement shall expire at the end of the Initial Term, or the then-current renewal term, as applicable. The Initial Term, together with any renewal terms, collectively constitute, the “Term”).

9.2. Termination for Breach. Each Party will have the right to terminate this Agreement upon notice to the other Party if such other Party materially breaches this Agreement and fails to cure such breach within thirty (30) days after receiving written notice thereof.

9.3. Suspension. Independa may, in the event it becomes aware of a breach of this Agreement, suspend or terminate, in its sole discretion, any Authorized User’s access to the Independa Offering. Independa will notify Subscriber of such suspension or termination when reasonably possible.

9.4. Effect of Termination. Upon any termination or expiration of this Agreement: (i) Subscriber will immediately discontinue using the Independa Offering, and notify all other Authorized Users to discontinue such use; (ii) each Party will delete any of the other Party’s Confidential Information from computer storage or any other media including, but not limited to, online and off-line libraries; (iii) each Party will return to the other Party or, at the other Party’s option, destroy, all physical copies of any of the other Party’s Confidential Information; (iv) each Authorized User’s access to the Independa Offering shall be immediately terminated. Notwithstanding the foregoing, in no event will this Section 9.4 require Independa to delete or destroy any Subscriber Data.

9.5. No Additional Termination-related Liability. NEITHER INDEPENDA NOR SUBSCRIBER WILL BE LIABLE TO THE OTHER FOR DAMAGES OF ANY KIND, INCLUDING INCIDENTAL OR CONSEQUENTIAL DAMAGES, ON ACCOUNT OF THE TERMINATION OR EXPIRATION OF THIS AGREEMENT IN ACCORDANCE WITH ITS TERMS (PROVIDED THAT THE FOREGOING SHALL NOT PREVENT OR OTHERWISE LIMIT A PARTY FROM BEING ABLE TO OBTAIN DAMAGES IN CONNECTION WITH A TERMINATION FOR BREACH, AS SET FORTH IN SECTION 9.2, BY SUCH PARTY).

9.6. Survival. Each section of this Agreement that should reasonably be deemed to survive, including, without limitation, sections regarding payment of fees, intellectual property ownership, confidentiality, indemnity, disclaimers, limitation of liability and general terms, will survive termination or expiration of this Agreement.

10. GENERAL.

10.1. Entire Agreement. This Agreement (including Exhibit A) sets forth the complete, final, and entire agreement and understanding between the Parties hereto with respect to the subject matter hereof and, except as specifically provided herein, supersedes and merges all prior or contemporaneous oral and written agreements, discussions and understandings between the Parties with respect to the subject matter hereof, and neither of the Parties will be bound by any conditions, inducements or representations other than as expressly provided for herein.

10.2. Publicity Restriction. Customer shall not use Independa’s name, logo, or other mark, nor make any verbal or written mention of Independa to a third party, for any marketing, product evaluation or testing, or other purpose, without Independa’s prior written approval in each instance, such approval to be granted or withheld in Independa’s sole discretion.  The foregoing approval requirement shall apply to, but shall not be limited to, the following uses: (i) advertisements in any media; (ii) comments or other statements regarding Independa on blogs or other social media; (iii) interviews or other verbal comments regarding Independa made to any third party; (iv) participation in surveys; or (v) written articles in any media.

10.3. Assignment; Parties In Interest. Subscriber may not assign this Agreement or any of its rights hereunder or delegate its duties hereunder, in whole or in part, without the prior written consent of Independa. Any attempted assignment in violation of the foregoing shall be void. Independa may assign this Agreement, or any of its rights hereunder, or delegate its duties hereunder, in whole or in part, to a third party, provided that such third party agrees to be bound by the terms of this Agreement. Subject to the foregoing, this Agreement will inure to the benefit of and be binding upon Subscriber, Independa and their permitted successors and assigns.

10.4. Governing Law. This Agreement will be governed by and interpreted in accordance with the laws of the State of California, without regards to its conflict of laws principles or any other principles that would result in the application of a different body of law. For purposes of all claims brought under this Agreement, each of the Parties hereby irrevocably submits to the exclusive jurisdiction of the state and federal courts located in San Diego, California; provided that each Party may, at any time, seek injunctive or other equitable relief from any court of competent jurisdiction.

10.5. Independent Contractors. Each Party hereto is an independent contractor of the other and neither shall be deemed an employee, agent, partner or joint venturer of the other. Subscriber and its agents will not hold themselves out to third parties as having the power to contractually bind Independa with respect to any matter, and will be responsible for their own employees and agents, and such employees and agents will not be deemed to have an employment relationship with Independa.

10.6. Force Majeure. If the performance of this Agreement is interfered with, in whole or in part, by circumstances beyond the reasonable control of either Party including, without limitation, failure of the Internet, any Internet service provider, or any telecommunications network, unavailability of utilities, fire, explosion, power failure, acts of God, war, terrorism, revolution, civil commotion, acts of public enemies, law, order, regulation, ordinance or requirement of any government or its representative or legal body having jurisdiction, or labor unrest such as strikes, slowdowns, picketing or boycotts, then the Party affected will be excused from such performance on a day-by-day basis to the extent that such Party’s obligations relate to the performance so interfered with; provided the Party so affected will use commercially reasonable efforts to expeditiously remove such causes of non performance and provides written notice of any such incapacity as soon as practicable.

10.7. Notices. All notices, requests, and other communications to any Party hereunder will be in writing (including telecopy or similar writing) and will be given at the address set forth on the Cover Page.

10.8. Amendments. This Agreement may not be modified or amended except by a written agreement signed by the Parties.

10.9. No Third Party Beneficiaries. The Parties acknowledge that the covenants set forth in this Agreement are intended solely for the benefit of the Parties, their successors and permitted assigns. Nothing in this Agreement, whether express or implied, will confer upon any Subscriber or any other person or entity other than the Parties, their successors and permitted assigns, any legal or equitable right whatsoever to enforce any provision of this Agreement.

10.10. Counterparts. This Agreement may be executed in two or more counterparts, each of which will be an original, with the same effect as if the signatures thereto were upon the same instrument.

10.11. Severability. If any provision of this Agreement is invalid or unenforceable for any reason in any jurisdiction, such provision will be construed to have been adjusted to the minimum extent necessary to cure such invalidity or unenforceability. The invalidity or unenforceability of one or more of the provisions contained in this Agreement will not have the effect of rendering any such provision invalid or unenforceable in any other case, circumstance or jurisdiction, or of rendering any other provisions of this Agreement invalid or unenforceable whatsoever.

10.12. Headings. The headings in this Agreement are inserted merely for the purpose of convenience and will not affect the meaning or interpretation of this Agreement.

10.13. Waiver. No waiver under this Agreement will be valid or binding unless set forth in writing and duly executed by the Party against whom enforcement of such waiver is sought. Any such waiver will constitute a waiver only with respect to the specific matter described therein and will in no way impair the rights of the Party granting such waiver in any other respect or at any other time. Any delay or forbearance by either Party in exercising any right hereunder will not be deemed a waiver of that right.


Exhibit A


INDEPENDA OFFERING

INDEPENDA OFFERING(S):

As of the Effective Date, the Independa Applications are:

As of the Effective Date, the Third Party Products are:

Independa may update this list of Independa Offerings upon notice to Subscriber. In no event will Subscriber have the right to resell products or services other than those listed herein except with the express, written consent of Independa.