THIS IS A LEGAL AGREEMENT BETWEEN THE “SUBSCRIBER” (AN INDIVIDUAL) AND INDEPENDA, INC. (“INDEPENDA”).
PLEASE READ THESE TERMS OF SERVICE (THIS “AGREEMENT”) CAREFULLY BEFORE USING THE HARDWARE AND SOFTWARE SERVICES OFFERED BY INDEPENDA. THIS AGREEMENT SETS FORTH THE LEGALLY BINDING TERMS AND CONDITIONS FOR EACH SUBSCRIBER, AND EACH AUTHORIZED USERS’ (AS DEFINED BELOW) USE OF THE INDEPENDA SERVICES AS DESCRIBED BELOW.
BY USING THE INDEPENDA SERVICES SUBSCRIBER ACKNOWLEDGES THAT SUBSCRIBER HAS READ, UNDERSTANDS, AND ACCEPTS THE TERMS BELOW, AND AGREES TO BE BOUND BY AND BECOME A PARTY TO THIS AGREEMENT. YOU SHOULD NOT ENTER INTO A SUBSCRIPTION IF YOU DO NOT AGREE TO THESE TERMS OF SERVICE AND THIS AGREEMENT.
INDEPENDA may modify these Terms of Service at any time in its sole discretion, and any amendments will apply upon thirty (30) days prior written notice. Your continued use of the INDEPENDA SERVICES after any amendments shall signify your acceptance of the amendments. You should return to this page from time to time in order to ensure you are aware of any updated terms.
For the Term and any Renewal Period as defined in Section 8 below, Independa grants to Subscriber the non-exclusive, non-transferable right to permit an unlimited number of Authorized Users (a) to access, use, display and run the Software Services and any Add-On Services and connect with End Users through the Software Services, and (b) to access, use and display any documentation made available by Independa for the Software Services and Add-On Services. For the purpose of this Section, “Authorized User(s)” shall be defined as any person (s) authorized by Subscriber to access, use, display, and run the Software Services. “End User(s)” shall be defined as any person(s) who is invited to connect through the Software Services with Subscriber or an Authorized User. “Software Service(s)” shall be defined as the Software Platform, and any related services further described in Section 5 below, which are made available by Independa to Subscriber. “Software Platform” shall be defined as the then-current version of the Independa Core Services developed and hosted by Company for use by Subscriber as well as any Add-On Services obtained by Subscriber, along with any updates, upgrades, modifications, or improvements made thereof. “Independa Core Services” shall constitute the software solution containing the following features and functionality: simplified video chat, photo sharing, message sharing, life stories, health vitals, personal shared calendar, call button, video playback, and music station as further described in any written documentation provided by Independa. “Add-On Services” shall constitute any one or more software solutions or services made available by Independa to Subscriber for an additional charge.
2. INTELLECTUAL PROPERTY AND DATA
2.1 Ownership of Software Platform. Subscriber acknowledges and agrees that no title to the intellectual property in the Software Platform is transferred to Subscriber under this Agreement. Subscriber further acknowledges that all right, interest, title and full ownership rights to the Software Platform and all intellectual property rights therein will remain the exclusive property of Independa. Subscriber agrees not to remove any trademark, copyright, or other proprietary notices on the knowledge base as delivered, and to reproduce all such notices on and in all authorized copies.
2.2 Restrictions. Subscriber may not share, distribute, resell, rent, lease, sublicense, transfer, create derivative works of the Software Platform, or otherwise permit any unauthorized third party to access, use, or display the Software Platform. The Software Platform contain Independa’s trade secrets, and in order to protect those trade secrets, Subscriber agrees not to take any action to reverse engineer, compile, translate, disassemble, copy, or create derivative works of the Software Platform in whole or in part, nor to permit any third party to do so. Any use of the Software Platform by Subscriber or Authorized Users that exceeds the scope of the subscription shall constitute a material breach of the subscription.
2.3 Ownership of Logos and Trademarks. Subscriber acknowledges and agrees that Independa owns all right, title, and interest in the logos and trademarks used by Independa in conjunction with the marketing and advertising of the Software Platform, and that no right to use any such logos and trademarks is granted herein.
2.4 Ownership of Data and Content. Subscriber shall retain all right, title, and interest in any data and content (i) imported into the Software Platform by Subscriber or Authorized Users or (ii) generated by Subscriber or Authorized Users from the Software Services.
2.5 Application License. Independa will make available to Subscriber and Authorized Users the Application pursuant to the end user license agreement for the applicable device (the “EULA”). “Application” shall be defined as a software application, which when downloaded, run, displayed, and operated from a mobile device, tablet, computer, television, or other hardware device will access, connect to, and manage the features associated with the Software Platform.
2.6 Data Use Rights. Subscriber grants to Independa a royalty-free, worldwide, perpetual, non-exclusive right to use the data imported into the Software Platform or generated by the Software Services in de-identified form for any business purpose.
3. SUBSCRIBER AND AUTHORIZED USER OBLIGATIONS
3.1 Equipment & Utilities. Subscriber shall furnish an HDMI-enabled television and maintain electricity and Internet services.
3.2 Payment. Subscriber shall timely pay all fees due and payable to Independa.
3.3 Compliance. Subscriber and Authorized Users shall fully comply with the terms and conditions of Independa’s Acceptable Use Policy posted at https://independa.com/acceptable-use-policy/, which is incorporated herein by reference.
3.4 Notification. Subscriber will promptly notify Independa upon becoming aware of any security breach of the Software Services or in the event it becomes aware of an Authorized User or End User’s violation of any terms or conditions of this Agreement.
3.5 Authorized User Accounts. Subscriber shall assume full responsibility for all use of the Software Services by the Authorized Users. For the avoidance of doubt, any violation of this Agreement by an Authorized User shall be deemed a material breach of this Agreement by Subscriber.
3.6 Safeguards. Subscriber acknowledges and agrees that it will use appropriate administrative, physical and technical safeguards to protect Independa’s Confidential Information.
4. THIRD PARTY HARDWARE
Independa resells certain third party hardware, which connect to the Software Services and are made available to Subscriber pursuant to separate third party terms and conditions and documentation (the “Hardware”). Any Hardware returns will be subject to the Return Policy posted at https://independa.com/return-policy/.
5. Software Services Made Available to Subscriber
5.1 Hosting and Maintenance Services. As part of the Software Services made available to Subscriber, Independa will host and maintain the Software Platform and any Add-On Services in accordance with the Service Level Agreement posted at https://independa.com/service-level-agreement/ and incorporated by reference.
5.2 Technical Support Services. Independa makes available to Subscriber and Authorized Users unlimited technical support services for the Software Platform on Business Days between the hours of 8 a.m. to 6 p.m. Pacific. Independa responds to all technical support requests received within one Business Day. For the purposes of this Section 5.2, a “Business Day” shall constitute Monday through Friday, excluding Thanksgiving, Christmas, Christmas Eve, New Year’s Day, New Year’s Eve, Labor Day and Memorial Day.
5.4 Training Services. Independa shall make available to Subscriber and Authorized Users on-demand, training services for the Software Platform, which are accessible within the Software Platform.
5.5 Back-Up Services. All data will be routinely backed up to and stored at servers located in the United States. Independa shall make available functionality to Subscriber that enables Subscriber to independently back up or export to separate hardware health data and all life story data and content uploaded to the Software Platform. For the avoidance of doubt, journal information, photos and messages are not currently exportable by Subscriber.
5.6 Add-On Services. Subscriber may elect to subscribe to Add-On Services made available by Independa to subscribers for an additional charge.
5.7 Integration Services. Any future integration services will be made available upon written notice to Subscriber as either Independa Core Services or Add-On Services.
6. FEES AND PAYMENT
6.1 Independa Core Services Fees and Payment Plans. At the time of any order for the Independa Core Services Subscriber may elect at his or her sole and absolute discretion one of three fees and payment plans as further described below:
- Option 1: Upon electing Option 1, Subscriber will be charged an initial annual subscription for the Independa Core Services in the amount of $399.00. Thereafter, Subscriber will be charged a recurring annual subscription fee in the amount of $399.00.
- Option 2: Upon electing Option 2, Subscriber will be charged an initial subscription fee to the Independa Core Services in the amount of $39.00. Thereafter, Subscriber will be charged a recurring monthly subscription fee in the amount of $39.00. Subscriber will be charged a $199.00 cancellation fee for any subscription cancelled by Subscriber during the first twelve (12) months of the subscription.
6.2 Payments. Payment for initial subscription fees shall be due and payable at the time the order is placed. Subscription fees shall be due and payable in advance of the applicable Renewal Period as defined in Section 8 below. All payments shall be made in US Dollars and may be made via any major credit card. Subscriber shall be solely responsible for any taxes imposed. Any taxes incurred by Independa shall be reflected on the invoice and billed directly to Subscriber.
6.3 Past Due Payments. On all amounts outstanding and payable to Independa, interest shall accrue from the date such amounts are due and payable at the rate of One and One-Half Percent (1.5%) per month or the maximum amount allowable by applicable law, whichever is less. Subscriber’s payment of interest on overdue amounts shall not cure or waive any default pursuant to this Agreement. Independa shall further have the rights on ten (10) days prior written notice to suspend the performance of all Software Services if any payment due and payable goes unpaid. Independa also reserves the right to submit any balance to collections which goes unpaid for ninety (90) days following the invoice date, in which case Subscriber will be responsible for all costs of collection and attorney’s fees.
6.4 Fee Increases. Upon sixty (60) days’ prior written notice in advance of the commencement of a Renewal Period, Independa shall have the right to raise any fees in an amount not to exceed twenty percent (20%) more than the published fees charged to Subscriber in the preceding calendar year.
7. HARDWARE SERVICES MADE AVAILABLE TO SUBSCRIBER
Independa will have no obligation to provide any third party hardware services to Subscriber, and Subscriber should direct any concerns about Hardware to the third party manufacturer in accordance with such third party’s applicable terms and conditions.
8. TERM, TERMINATION & SUSPENSION
8.1 Term; Renewal Periods. The subscription shall commence on the Activation Date and shall remain in effect until the expiration of the annual term in Payment Options 1, or alternatively the expiration of the monthly term in Payment Option 2 (the “Term”). Upon the expiration of the Term, the subscription shall automatically renew for successive periods of one year in the case of Payment Options 1 or twelve months in the case of Payment Option 2 (collectively, the “Renewal Period(s)”), unless either Independa or Subscriber notifies the other party that such party intends to termination upon at least thirty (30) days written notice prior to the expiration of the applicable Term or Renewal Period. Notwithstanding the foregoing, in the case of Payment Option 2, Subscriber shall have the right to terminate during the Term immediately upon notice, subject to cancellation fees outlined herein.
(a) Termination for Nonpayment. Independa may terminate for material breach in the event that Subscriber fails to make a payment and Independa suspends the performance of Software Services as a result of the nonpayment upon twenty (20) days prior written notice following any suspension and Subscriber’s failure to cure the breach during the twenty (20) day notice period.
(b) Termination for Other Material Breach. Either Party may terminate for material breach in the event that the other Party materially breaches any term or condition of this Agreement upon fifteen (15) days prior written notice to the other Party of the breach and its intent to terminate and the breaching Party’s failure to cure the breach during such fifteen(15) day notice period.
(c) Suspension of Services; Survival Clauses. Upon any termination of the Agreement, Independa shall have the right to immediately and permanently suspend the performance of all Hardware and Software Services. In addition, (i) Subscriber shall immediately discontinue using the Software Services 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 Software Services shall be immediately terminated. The following terms and conditions shall survive any termination of this Agreement until such time as they are exhausted: Sections 2.1-2.4, 2.6, 3, 4, 6, 8.2, 8.3, 9, 10, 11.8, 11.9, 12-15.
8.3 Data Expungement. Independa shall maintain Subscriber’s data stored to the Software Platform for ninety (90) days immediately following the termination of the Agreement, at which time such data will be expunged. Notwithstanding the foregoing, Independa shall have the right to independently maintain a copy of Subscriber’s de-identified data in accordance with Section 2.6 above.
8.4 Force Majeure. The failure of either Party to perform any obligation pursuant to this Agreement by reason of “acts of God,” acts of governments, pandemic, terrorism, riots, wars, accidents, or deficiencies in materials or transportation, or other causes of any nature beyond its control shall not be deemed to be a breach of this Agreement, provided that the nonperforming or delayed Party provides to the other Party written notice of the existence and nature of such reason for the nonperformance and delay, and resumes performance immediately upon the elimination of the relevant force majeure. In the event the force majeure event continues for more than thirty (30) days, then the non-delayed Party may terminate the Agreement.
8.5 Suspension or Termination of Authorized Users. Independa may, in the event it becomes aware of a violation of this Agreement by an Authorized User, suspend or terminate, in its sole discretion, any Authorized User’s access to the Software Services. Independa will notify Subscriber of such suspension or termination when reasonably possible.
9. CONFIDENTIAL INFORMATION
9.1. 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 Software Services.
9.2 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 9.2, all Confidential Information of the other Party in its possession upon termination or expiration of this Agreement.
9.3 Confidentiality Exceptions. Notwithstanding the foregoing, the provisions of Sections 9.1 and 9.2 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.
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.
11. REPRESENTATIONS AND WARRANTIES
11.1 Mutual Representations. Each Party hereby represents and warrants: (i) that the agreement to and performance of this Agreement will not conflict with or violate any provision of any law having applicability to such Party; and (ii) that this Agreement will constitute a valid and binding obligation of such Party and will be enforceable against such Party in accordance with its terms.
11.2 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, including but not limit to such Party’s tools, products, or services.
11.3 Representations By Subscriber. Subscriber further represents and warrants that it has all rights necessary to provide any uploaded data or content to Independa as set forth in this Agreement, and that Subscriber will comply with all applicable laws and regulations in performing its obligations hereunder.
11.4 Subscriber Warranty. Subscriber warrants and represents that Subscriber and Authorized Users will perform all obligations set forth in Section 3 above.
11.5 Independa Warranty. Independa warrants and represents that (i) all services provided under this Agreement will be performed in a professional, workmanlike manner in accordance with generally accepted industry standards, and (ii) the Software Platform will perform substantially in accordance with any documentation for the Term of the Agreement and any Renewal Period and will be free from any material defects. This warranty shall not apply to problems affecting the Software Platform due to (i) electrical work or problems external to the Software Platform; (ii) repairs to data files; (iii) modifications to the Software Platform other than those performed by Independa; (iv) accident, negligence, or misuse of the Software Platform; (v) operation of the Software Platform with hardware other than the Hardware; (vi) interoperability issues with third party software applications; (vii) Internet speed and/or Internet connectivity issues; or (viii) onsite network, cabling, or infrastructure. Upon receipt by Independa of Subscriber’s written notice of any breach of this Independa Warranty, Independa’s liability and Subscriber’s sole remedy shall be to (1) in the case of the Software Platform, to use reasonable commercial measures to correct the material non-conformity or provide a work-around to avoid the non-conformity, taking into account the severity of the non-conformity, or (2) in the case of nonconforming services, using reasonable commercial measures at Independa’s expense to re-perform or correct the performance or delivery of the services so that the services meet the standards set in the Independa Warranty.
11.6 Hardware Warranties. All Hardware is subject to a warranty provided by the third party manufacturer. For the 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.
11.7 Internet Delays. THE SOFTWARE SERVICES 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.
11.8 General Disclaimer. EXCEPT FOR ANY EXPRESS WARRANTIES SET FORTH IN THIS AGREEMENT, THE SOFTWARE PLATFORM, THE APPLICATION, THE HARDWARE, AND THE SOFTWARE AND HARDWARE SERVICES ARE 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 SOFTWARE PLATFORM, THE APPLICATION, THE HARDWARE, OR THE SOFTWARE AND HARDWARE SERVICES WILL MEET SUBSCRIBER’S REQUIREMENTS, THAT THE OPERATION OF THE SOFTWARE PLATFORM OR SOFTWARE SERVICES WILL BE SECURE, UNINTERRUPTED OR ERROR-FREE, OR THAT ALL ERRORS WILL BE CORRECTED. INDEPENDA MAKES NO REPRESENTATIONS OR WARRANTIES ABOUT THE COMPLIANCE OF THE SOFTWARE PLATFORM, THE APPLICATION, THE HARDWARE, OR THE SOFTWARE AND HARDWARE SERVICES WITH LAWS AND REGULATIONS IN THE JURISDICTION WHERE SUBSCRIBER IS LOCATED OR OTHER APPLICABLE LAW, AND DISCLAIMS ALL LIABILITY ASSOCIATED THEREWITH. WITHOUT LIMITING THE FOREGOING, INDEPENDA MAKES NO WARRANTIES WITH RESPECT TO THE HARDWARE OR ANY OTHER THIRD PARTY PRODUCTS.
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.
11.9 Specific Disclaimer. NEITHER THE HARDWARE NOR THE SOFTWARE PLATFORM IS A MEDICAL DEVICE AND SHOULD NOT BE USED FOR THE PURPOSE OF DIAGNOSIS OR TREATMENT. FURTHER, WHILE IT IS POSSIBLE THAT THE SOFTWARE PLATFORM OR SOFTWARE SERVICES MAY INCREASE THE SPEED WITH WHICH IMPORTANT INFORMATION IS TRANSMITTED, NEITHER SUBSCRIBER NOR ANY AUTHORIZED USER SHOULD RELY ON THE ERROR-FREE OPERATION OF THE SOFTWARE PLATFORM OR SOFTWARE SERVICES (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 HARDWARE OR THE SOFTWARE PLATFORM AS IT RELATES TO ANY FDA REGULATIONS. USE OF THE SOFTWARE SERVICES IN CONJUNCTION WITH MEDICAL DEVICES (E.G., INGESTING AND UPLOADING READINGS FROM AN INSULIN MONITOR) DOES NOT MAKE THE SOFTWARE PLATFORM OR SOFTWARE SERVICES A MEDICAL DEVICE AND IT IS NOT REGULATED AS A MEDICAL DEVICE. DOCTORS AND OTHER MEDICAL SUPPORT PROFESSIONALS SHOULD ALWAYS BE CONSULTED FOR ANY MEDICAL OR HEALTH ISSUES, AND NO INFORMATION FROM THE SOFTWARE PLATFORM OR SOFTWARE SERVICES SHOULD BE RELIED UPON TO DIAGNOSE OR OTHERWISE ASSESS THE MEDICAL CONDITION OF ANY PERSON. FURTHERMORE, COMMUNICATION THROUGH THIS SOFTWARE PLATFORM AND THE SOFTWARE SERVICES SHOULD NOT BE RELIED UPON TO COMMUNICATE ANY URGENT MEDICAL NEED.
12. CONSEQUENTIAL DAMAGES AND LIMITATION OF LIABILITY
12.1 CONSEQUENTIAL DAMAGES. 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.
12.2 LIMITATION OF LIABILITY. 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.
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 violation of Independa’s Acceptable Use Policy by an Authorized User; (iv) any claim brought against Independa, in connection with this Agreement, by any Authorized User (other than Subscriber); (v) any misappropriation of trade secrets by Subscriber or an Authorized User; (vi) any infringement by Subscriber or an Authorized User of intellectual property in the Software Platform, the logos or trademark, or any content uploaded to the Software Platform; and (vii) any violation of applicable law by Subscriber or an Authorized User.
14. CLASS ACTION WAIVER
BY ENTERING INTO THIS AGREEMENT, SUBSCRIBER, AUTHORIZED USERS, AND INDEPENDA EACH ACKNOWLEDGE AND AGREE THAT THEY JOINTLY AND INDIVIDUALLY WAIVE THEIR RIGHTS TO PARTICIPATE IN A CLASS ACTION OR OTHER REPRESENTATIVE ACTION AGAINST ANY ONE OR MORE OF THE OTHERS IN A COURT OR ARBITRATION, EXCEPT WHERE SUCH WAIVER IS PROHIBITED BY LAW OR DEEMED BY A COURT TO BE AGAINST PUBLIC POLICY. THE PARTIES FURTHER AGREE THAT EACH OF SUBSCRIBER, AN AUTHORIZED USER, OR INDEPENDA MAY BRING DISPUTES AGAINST EACH OTHER ONLY IN AN INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. TO THE EXTENT ANY PARTY IS PERMITTED BY LAW OR COURT OF LAW TO PROCEED WITH A CLASS OR REPRESENTATIVE ACTION AGAINST ANOTHER, THE PARTIES AGREE THAT (I) THE PREVAILING PARTY SHALL NOT BE ENTITLED TO RECOVER ATTORNEYS’ FEES OR COSTS ASSOCIATED WITH PURSUING THE CLASS OR REPRESENTATIVE ACTION (NOTWITHSTANDING ANY OTHER PROVISION IN THIS AGREEMENT) AND (II) THE PARTY WHO INITIATES OR PARTICIPATES AS A MEMBER OF THE CLASS WILL NOT SUBMIT A CLAIM OR OTHERWISE PARTICIPATE IN ANY RECOVERY SECURED THROUGH THE CLASS OR REPRESENTATIVE ACTION.
15.1 Entire Agreement. This Agreement 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.
15.2 Publicity Restriction. Neither Subscriber nor Authorized Users shall 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.
15.3 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.
15.4 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.
15.5. 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.
15.6 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.
15.7 Amendments. This Agreement may not be modified or amended except by a written agreement signed by the Parties.
15.8 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.
15.9 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.
15.10 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.
15.11 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.
15.2 Conflict. In the event of any conflict between the terms and conditions of this Agreement and the terms of any web page linked and incorporated into this Agreement, the terms of this Agreement shall be controlling.
Last Modified: September 16, 2020