ePete™ Software User Agreement
(last updated October, 2019)
THIS IS A LEGAL AGREEMENT BETWEEN YOU (EITHER AN INDIVIDUAL PERSON OR A SINGLE LEGAL ENTITY, REFERRED TO HEREIN AS YOU OR CUSTOMER) AND VENDOR FOR THE LICENSE (NOT SALE) OF THE SOFTWARE (AS DEFINED HEREIN). THIS AGREEMENT SETS FORTH THE TERMS AND CONDITIONS UNDER WHICH YOU MAY USE THE SOFTWARE. BY CLICKING ON THE ACCEPT BUTTON, INSTALLING, HAVING SOFTWARE INSTALLED ON CUSTOMERS BEHALF, COPYING, HAVING SOFTWARE COPIED ON CUSTOMERS BEHALF, USING OR HAVING SOFTWARE USED ON CUSTOMERS BEHALF, CUSTOMER INDICATES THAT CUSTOMER HAS READ AND UNDERSTANDS THIS AGREEMENT AND AGREES TO BE BOUND BY THE TERMS SET FORTH IN THIS AGREEMENT. IF SOFTWARE IS INSTALLED, COPIED OR USED ON BEHALF OF CUSTOMER, THE TERMS SET FORTH IN THIS AGREEMENT SHALL APPLY TO CUSTOMER AS WELL AS TO THE INDIVIDUAL OR ENTITY INSTALLING, COPYING OR USING SOFTWARE ON BEHALF OF CUSTOMER. THIS AGREEMENT SHALL BE EFFECTIVE AS OF THE EARLIER OF THE DATE SOFTWARE IS INSTALLED OR USED. IF CUSTOMER DOES NOT AGREE WITH THE TERMS AND CONDITIONS SET FORTH IN THIS AGREEMENT, DO NOT INSTALL, DOWNLOAD, COPY, ACCESS OR USE SOFTWARE.
This SOFTWARE Agreement (Agreement) is made as of the Effective Date by and between Egoscue, Inc. (VENDOR), a California corporation with offices located at 12230 El Camino Real Ste. 110 San Diego, CA 92130, and the individual or entity identified on the Sales Agreement as customer (Customer) with reference to the following:
W I T N E S S E T H:
WHEREAS, VENDOR owns that certain SOFTWARE application entitled ePete™; and
WHEREAS, Customer has independently determined that SOFTWARE will meet the needs of Customer as a tool to assist Customer in the treatment of its clients’ anatomical dysfunction; and
WHEREAS, Customer desires to receive a license to use SOFTWARE and Vendor desires to grant such a license strictly in accordance with the terms and subject to the conditions contained herein.
NOW THEREFORE, in consideration of the mutual benefits of the covenants and restrictions herein contained, VENDOR and Customer hereby agree as follows:
ARTICLE I: RECITALS AND DEFINITIONS
Section 1.01 -- Recitals: The above recitals and identification of parties are true and correct.
Section 1.02 -- Definitions: The following definitions shall apply:
Access: The term Access and variants thereof shall mean to store data in, retrieve data from or otherwise approach or make use of (directly or indirectly) through electronic means or otherwise.
SOFTWARE: The term SOFTWARE shall mean the object code for that certain ePete application as described in the Sales Agreement, including the Documentation, as provided by VENDOR to Customer hereunder, including Updates.
Associate: The term Associate shall mean an employee of VENDOR or an independent contractor hired by VENDOR.
Authorized Person: The term Authorized Person shall mean Customer or employees of Customer, any and all of who shall agree in writing to maintain the confidentiality of Confidential Information and individuals or organizations that are authorized in writing by VENDOR to receive Confidential Information and who agree in writing to maintain the confidentiality of such Confidential Information.
Cancellation Notice: The term Cancellation Notice shall mean that written notice sent by VENDOR to Customer seeking to cancel this Agreement because of breach of this Agreement by Customer or for any other reason as permitted by this Agreement.
Confidential Information: The term Confidential Information shall mean all information concerning this Agreement, SOFTWARE, and the business and technical plans of VENDOR that are disclosed by VENDOR to Customer or learned by Customer.
Defects: The term Defects shall mean programming errors which substantially impair the performance, utility and functionality of SOFTWARE, as represented in the Documentation.
Defect Notice: The term Defect Notice shall mean that certain written notice from Customer to VENDOR identifying Defects.
Delivery Date: The term Delivery Date shall mean the date SOFTWARE is delivered to Customer (as applicable).
Documentation: The term Documentation shall mean the SOFTWARE user guide (in electronic or printed format) as provided to Customer on the Delivery Date.
Effective Date: The term Effective Date shall mean the first date on which both the Sales Agreement has been executed by VENDOR and the SOFTWARE has been installed or downloaded by Customer.
Event of Bankruptcy: The term Event of Bankruptcy shall mean: (1) the filing of a petition under any insolvency or bankruptcy statute seeking the declaration of Customer as insolvent or bankrupt; (2) the filing of any action seeking receivership or reorganization of Customer pursuant to or under any insolvency or bankruptcy statute; or (3) the filing of any involuntary petition against Customer pursuant to any insolvency or bankruptcy statute and such petition is not stayed or dismissed within a period of thirty (30) days after filing.
Facility. The term Facility shall mean the nature, extent and scope of Implementation and subsequent use of the Software on Customer’s System(as defined herein) as is set forth in the Sales Agreement.
Implement: The term Implement and variants thereof (including, but not limited to, the terms implementation, implementing and implemented) shall mean to load.
Maintenance Services: The term Maintenance Services shall mean Defect resolution services concerning SOFTWARE (excluding the System) as provided by VENDOR to Customer for the prevailing fees and time and material rates published by VENDOR and subject to VENDOR standard maintenance terms.
Restatements: The term Restatements shall mean Section 757 of the Restatement of Torts, Section 39 of the Restatement (Third) of Unfair Competition, Section 1 of the Uniform Trade Secrets Act, and Section 1839 of Title 18 of the United States Code (18 U.S.C. § 1839).
Services: The term Services shall mean Maintenance Services and that certain SOFTWARE installation, training, telephone support, development and consulting services as requested by Customer and approved by VENDOR in writing.
System: The term System shall mean the Customers hardware, platform, and configuration, approved by the VENDOR, used to enable Implementation and use the SOFTWARE at Customers Facility.
Term: The term Term shall mean that period of time as set forth in the Sales Agreement.
Third Party Technology: The term Third Party Technology shall mean third party software, computer, hardware, peripherals, components, devices, equipment and technology used in connection with or related to SOFTWARE.
Unauthorized Access: The term Unauthorized Access shall mean any use of or access to SOFTWARE other than in accordance with the terms and conditions of this Agreement and the Sales Agreement.
Unauthorized User: The term Unauthorized User shall mean any individual who accesses SOFTWARE except for: (1) employees of Customer authorized by Customer to access SOFTWARE and who agrees to maintain the confidentiality of Confidential Information for the exclusive purpose of performing [Primary Software Purpose], and training employees of Customer in the use of SOFTWARE and (2) Authorized Persons authorized in writing by VENDOR to access SOFTWARE.
Updates: The term Updates shall mean the object code for updates, upgrades, new versions, new releases or modifications to SOFTWARE as generally made available by VENDOR from time to time to VENDOR customers for the applicable fee.
Warranty Term: The term Warranty Term shall mean a period of time commencing on the Delivery Date and ending on the date which is sixty (60) days thereafter.
ARTICLE II: SOFTWARE
Section 2.01 -- Grant of License: VENDOR hereby grants to Customer a non-exclusive and non-transferable license to use SOFTWARE and to use the Documentation only at the Facility for the License Term, subject to the terms and provisions of this Agreement.
Section 2.02 -- At the Effective Date, the Sales Agreement shall be deemed to be an exhibit to this Agreement and the terms and conditions of such Sales Agreement shall be fully incorporated herein.
Section 2.03 -- Implementation: Customer shall install the SOFTWARE. Customer shall implement SOFTWARE on the System, subject to the terms and conditions of this Agreement.
Section 2.04 -- Risk of Loss: Customer shall assume risk of loss to SOFTWARE as of the Delivery Date.
Section 2.05 -- Authorized Use: Customer shall prevent Unauthorized Users from accessing SOFTWARE. Customer shall prevent Unauthorized Access to SOFTWARE. Customer shall promptly inform VENDOR of any and all Unauthorized Access (or suspected Unauthorized Access) and Unauthorized Users (or suspected Unauthorized Users) of which Customer has knowledge or suspicion. Access to SOFTWARE using third party products for purposes of manipulating, viewing, disclosing or using the internal structure of SOFTWARE or for creating a database, data dictionary or data model shall be deemed Unauthorized Access.
Section 2.06 -- Site Restriction: Customer shall use SOFTWARE only on the System and only at the Facility.
Section 2.07 -- End Use: Customer hereby represents and warrants that SOFTWARE is being licensed by Customer for its own use at the Facility and not for rental, leasing, resale, sublicensing, distribution, outsourcing, or offering service bureau services.
Section 2.08 -- Services: Customer may request Services, as approved by VENDOR. All Services shall be subject to the discretion of VENDOR and shall be subject to VENDOR standard service terms and applicable time and material rates.
ARTICLE III: PAYMENT
Section 3.01 -- Price: Customer shall pay compensation to VENDOR as set forth in the governing Sales Agreement.
Section 3.02 -- Documentation Fee: Customer may purchase additional copies of the Documentation from VENDOR upon request by Customer and upon payment of the Documentation Fee as set forth in the Sales Agreement.
Section 3.03 -- Costs: Customer shall pay all costs incurred by VENDOR in performing this Agreement. Such costs shall include (without limitation) postage, freight, telecommunications, fees charged by third parties, telephone, travel, lodging, per diem, material and reproduction costs, if any.
Section 3.04 -- Taxes: Customer shall pay any and all taxes attributable to this Agreement, to the transactions contemplated hereunder or to the transactions performed by Customer or third parties using SOFTWARE, including, without limitation, any applicable sales or use taxes. Notwithstanding the foregoing, Customer shall not be responsible for paying any income taxes assessed against VENDOR.
Section 3.05 -- Late Fee: Any amount which is not paid when due shall be increased by a late charge equal to 1% of such unpaid amount for each month (or portion thereof) in which such amount is due and not paid.
Section 3.06 -- Invoicing and Payment: VENDOR shall perform Services at the time and material rates of VENDOR prevailing at the time such Services are rendered. VENDOR shall invoice Customer for fees and costs in connection with the Services. Customer shall pay any such invoice in full on the due date thereof or within thirty (30) days of receiving such invoice (whichever is earlier).
ARTICLE IV: TERMINATION
Section 4.01 -- Termination Limitations: This Agreement shall only be terminated or canceled as provided under this Article IV.
Section 4.02 -- Term: This Agreement shall be valid for the Term.
Section 4.03 -- Termination: Either Vendor or Customer may terminate this Agreement for convenience for any reason, or no reason, upon providing thirty (30) days written notice of termination to the other party.
Section 4.04 -- Cancellation for Cause: If Customer violates its obligations under this Agreement, VENDOR may cancel this Agreement by sending Cancellation Notice describing the noncompliance to Customer. Upon receiving Cancellation Notice, Customer shall have ten (10) days from the date of such notice to cure any such noncompliance. If such noncompliance is not cured within the required ten (10) day period, VENDOR shall have the right to cancel this Agreement as of the eleventh day after the date of the Cancellation Notice.
Section 4.05 -- Return: Upon termination or cancellation of this Agreement, Customer shall promptly remove (at Customers expense) all customer information and data stored in SOFTWARE and return to VENDOR the SOFTWARE, the Documentation and all VENDOR materials provided by VENDOR to Customer hereunder and shall provide VENDOR with a certificate of compliance with this Section 4.05 signed by an authorized representative of Customer. Upon termination or cancellation of this Agreement ten (10) days after the Effective Date or after implementation of the SOFTWARE, VENDOR shall be entitled to retain all payments rendered to VENDOR under this Agreement.
ARTICLE V: WARRANTY
Section 5.01 -- Warranty: VENDOR represents and warrants that SOFTWARE shall perform substantially as represented in the Documentation for the Warranty Term. Customers exclusive remedy for breach of warranty shall be modification or replacement of SOFTWARE, as determined by VENDOR.
Section 5.02 -- Third Party Warranties: VENDOR hereby assigns to Customer the benefit of any and all Manufacturer warranties for the Third Party Technology and may cooperate (as determined by VENDOR) with Customer in securing the benefit of any remedies available to Customer under any such Manufacturer warranty.
Section 5.03 -- Service Warranty: Any Services provided by VENDOR pursuant to this Agreement shall be performed on a reasonable efforts basis in a timely and professional manner and shall conform to the standards generally observed in the industry for similar Services and shall be subject to Sections 5.01, 5.04, 5.05 and 5.08.
SECTION 5.04 -- DISCLAIMER: THE WARRANTIES SET FORTH IN SECTIONS 5.01 AND 5.03 ARE IN LIEU OF ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, AND VENDOR HEREBY DISCLAIMS AND CUSTOMER HEREBY WAIVES ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING (WITHOUT LIMITATION) ANY AND ALL IMPLIED WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE AND IMPLIED WARRANTIES OF MERCHANTABILITY. WITHOUT LIMITING IN ANY WAY THE FOREGOING, CUSTOMER HEREBY ACKNOWLEDGES AND AGREES THAT SOFTWARE IS INTENDED AND LICENSED SOLEY AS AN TOOL FOR THE TREATMENT OF IMPROPER POSTURE AND IS NOT IN ANY WAY INTENDED TO BE USED TO ASSIST PAIN DIAGNOSIS OR MANAGEMENT.
Section 5.05 -- Express Warranties: Customer hereby acknowledges and agrees that VENDOR (including VENDOR officers, employees, agents, directors, independent contractors, affiliates, distributors and successors) has not made or granted any express warranties concerning the Services and SOFTWARE except as expressly set forth in Sections 5.01 and 5.03 of this Agreement.
Section 5.06 -- Third Party Claims: If a final judgment from a court of competent jurisdiction is entered against Customer upholding claims that SOFTWARE violates a United States patent, copyright, trade secret or other proprietary rights of a third party in the United States, provided that Customer gives VENDOR prompt written notice upon Customers knowledge of any such claim, permits VENDOR to answer and defend (at VENDOR option) such claim or action and provides VENDOR with information, assistance and authority to assist VENDOR in the defense of such claim or action, VENDOR shall perform one or more of the following actions (as determined by VENDOR) within one year of the date final judgment in favor of such third parties claim is rendered by a court of competent jurisdiction:
(1) Replacement: Replace SOFTWARE with a non-infringing SOFTWARE product of substantially equivalent functional and performance capability;
(2) Modification: Modify SOFTWARE to avoid the infringement without substantially eliminating the functional and performance capabilities of SOFTWARE;
(3) Obtain Agreement: Obtain a license for use of SOFTWARE from the Third party claiming infringement for use of SOFTWARE.
VENDOR shall have the right to participate or assume the defense (as determined by VENDOR) and Customer shall permit and authorize VENDOR to participate in or assume the defense of any such claim or action through legal counsel. The foregoing remedy does not apply and VENDOR shall have no obligation in connection with or relating to any third party infringement claim in connection with or related to (i) Customers modification of SOFTWARE; (ii) Customers failure to use SOFTWARE in accordance with the Documentation in effect; (iii) Customers failure to use the most current release or version of SOFTWARE; (iv) Customers combination, interface, operation or use of SOFTWARE with Third Party Technology; and (v) VENDOR compliance with designs, instructions, or specifications required by Customer. The remedies set forth herein shall be the sole and exclusive remedies of Customer under this Agreement for any and all claims of indemnification relating to infringement. VENDOR obligations set forth in this Section 5.06 shall not apply to the Third Party Technology.
Section 5.07 -- Remedies: The exclusive remedy of Customer for any reason and for any cause of action whatsoever in connection with or relating to this Agreement, the SOFTWARE or any transaction involving SOFTWARE, regardless of the form of action, whether in contract or in tort, including negligence and breach of warranty, shall be limited to repair or replacement of SOFTWARE as determined by VENDOR.
Section 5.08 -- Limitation of Damages: VENDOR shall not be liable to Customer in connection with or relating to this Agreement, the SOFTWARE and any transactions involving SOFTWARE for any direct, indirect, lost profits, consequential, exemplary, incidental or punitive damages, regardless of the form of action, whether in contract or in tort, including breach of warranty and negligence, regardless of whether VENDOR has been advised of the possibility of such damages in advance or whether such damages are reasonably foreseeable. Notwithstanding anything to the contrary, the liability of VENDOR for any reason and for any cause of action whatsoever in connection with or relating to this Agreement, the SOFTWARE and any transactions involving SOFTWARE shall be limited to the license fee for SOFTWARE.
Section 5.09 -- Force Majeure: VENDOR shall not be liable for any failure by VENDOR to perform its obligations under this Agreement because of circumstances beyond the reasonable control of VENDOR, which such circumstances shall include (without limitation) natural disaster, terrorism, riot, sabotage, labor disputes, war, any acts or omissions of any government, governmental authority or third party, declarations of governments, transportation delays, power failure, computer failure, telecommunications failure, Third Party Technology, failure of Customer to cooperate with the reasonable requests of VENDOR, misuse of the SOFTWARE by Customer or third party, breach of this Agreement by Customer or a third party and any other events reasonably beyond the control of VENDOR.
Section 5.10 -- Customer Indemnification: Customer acknowledges and agrees that Customer is solely responsible for: (1) the proper accumulation, manipulation and input into Software, of Customers clients/patients personal information; (2) determination of individual client/patient eligibility and suitability for a treatment plan utilizing Software; and (3) Customers System. Customer shall release, defend, indemnify and hold harmless VENDOR (including its officers, directors, employees, affiliates, independent contractors, distributors, agents and successors) against any expense, loss, cost or liability (including, without limitation, interest, penalties, attorney fees and paralegal fees) arising from any and all claims, demands, damages or actions resulting from or related to (1) use of SOFTWARE by Customer, (including, without limitation, any claim regarding use of SOFTWARE by Customer in an infringing manner or any claim by third parties for breach of warranty, negligence, loss of data, libel, slander, unfair competition, trademark infringement, or invasion of privacy); (2) performance of SOFTWARE; (3) Customers negligence or the acts (or any failure to act) of Customer hereunder or any failure of Customers System; (4) any breach by Customer of the obligations of Customer hereunder; and (5) investigation or defense of any of the above or in asserting VENDOR rights hereunder.
Section 5.11 -- Cooperation: Customer shall cooperate with VENDOR by providing VENDOR with information concerning SOFTWARE and the System as may be requested by VENDOR from time to time and by providing VENDOR with unrestricted access to the personnel, facilities, computers, computer SOFTWARE and data of Customer.
Section 5.12 -- Maintenance: Customer hereby acknowledges and agrees that Customer shall solely be responsible for acquiring, installing, implementing, updating, upgrading, maintaining and replacing the System and all Third Party Technology for any reason, including (without limitation) for Updates or correction of Defects, including (without limitation) all costs, fees, taxes and payments in connection therewith or related thereto.
Section 5.13 -- Security Interest: VENDOR hereby reserves and Customer hereby grants to VENDOR a purchase money security interest in the SOFTWARE to secure payment of the Price by Customer. In order to perfect such security interest, Customer hereby appoints VENDOR as the true and lawful attorney-in-fact of Customer and Customer hereby authorizes VENDOR to execute in the name of Customer all forms, documents and financing statements deemed desirable by VENDOR, and file such copies with appropriate government agencies and offices as deemed necessary by VENDOR to perfect such purchase money security interest.
Section 5.14 -- Repossession: If Customer fails to pay the balance of the Price when due (as provided in Section 3.01 of this Agreement), VENDOR shall have the right to terminate Customers access and use of the SOFTWARE. If any Event of Bankruptcy occurs before payment of the balance of the Price when due (as provided in Section 3.01 of this Agreement), VENDOR shall be entitled to any and all remedies available to a secured creditor under the U.S. Bankruptcy Code and applicable state or federal law.
ARTICLE VI: INTELLECTUAL PROPERTY
Section 6.01 -- Ownership and Title: Title to SOFTWARE, including all ownership rights to patents, copyrights, trademarks and trade secrets therein or in connection therewith shall be and shall remain the exclusive property of VENDOR. Customer hereby assigns, transfers and conveys to VENDOR any and all rights, title and interests Customer may have or accrue in SOFTWARE, including (without limitation) any and all ownership rights to patents, copyrights, trademarks and trade secrets therein or in connection therewith.
Section 6.02 -- Confidential Information: SOFTWARE shall be deemed Confidential Information of VENDOR. Customer shall maintain the Confidential Information in strict confidence. Customer shall not disclose Confidential Information except to Authorized Persons. Customer shall not access, duplicate or use the Confidential Information except as otherwise permitted under this Agreement.
Section 6.03 -- Trade Secrets: Customer hereby acknowledges and agrees that the Confidential Information (i) derives independent economic value (actual or potential) from not being generally known to, or readily ascertainable by, other persons who can obtain economic value from its disclosure or use; and (ii) is the subject of reasonable efforts by VENDOR under the circumstances to maintain its secrecy.
Section 6.04 -- Reverse Engineering: Customer shall not reverse engineer SOFTWARE and shall not allow SOFTWARE to be reverse engineered.
Section 6.05 -- Backup Copy: Customer may create one copy of SOFTWARE (excluding the printed Documentation) at the Facility only for routine archival or backup purposes.
Section 6.06 -- Copies: Except as provided in Section 6.05, Customer shall not copy SOFTWARE and shall not allow SOFTWARE to be copied, or used or Implemented outside the Facility without the prior written consent of VENDOR.
Section 6.07 -- Modifications: Customer shall not modify SOFTWARE and shall not allow SOFTWARE to be modified without the prior written consent of VENDOR. Customer shall not use SOFTWARE or any materials incident thereto to develop computer SOFTWARE without the prior written consent of VENDOR. If SOFTWARE is modified, such modifications shall be the sole and exclusive property of VENDOR and VENDOR shall own any and all rights, title and interests to such modifications and any resulting computer SOFTWARE, including (without limitation) any and all copyrights, patents and trade secrets therein or in connection therewith.
Section 6.08 -- No Contest: Customer shall not contest or aid in contesting the ownership or validity of the trademarks, service marks, trade secrets, or copyrights of VENDOR.
Section 6.09 -- Employee Pirating: Customer shall not induce or solicit (directly or indirectly) any Associate to leave the employ or hire of VENDOR. Customer shall not engage (directly or indirectly) the services of such Associate (as an employee, consultant, independent contractor, or otherwise) without the advance written consent of VENDOR.
Section 6.10 -- U.S. Government Restricted Rights: If Customer is the U.S. Government or an agency or department thereof (collectively Government), SOFTWARE is provided with RESTRICTED RIGHTS. Use, duplication or disclosure by the Government is subject to restrictions as set forth in subparagraphs (c)(1) and (2) of the Commercial Computer SOFTWARE Restricted Rights clause at 48 C.F.R. 52.227-19.
Section 6.11 -- Proprietary Notices: Customer shall not remove, alter or obscure any copyright notices or other proprietary legends displayed by or used by VENDOR in connection with or related to SOFTWARE.
Section 6.12 -- Trademarks: VENDOR trademarks, trade dress, logos, trade names or insignia (VENDOR Marks), including (without limitation) SOFTWARE, are owned exclusively by VENDOR. VENDOR shall retain all rights, title and ownership interests in VENDOR Marks. Customer shall not (directly or indirectly) use any trademark, trade name, trade dress, insignia or logo that is similar to or a colorable imitation of any VENDOR Marks.
Section 6.13 -- Continuation: The terms and conditions of this Article VI shall survive termination and cancellation of this Agreement.
ARTICLE VII: MISCELLANEOUS
Section 7.01 -- Assignments: All assignments of rights under this Agreement by Customer without the prior written consent of VENDOR shall be void.
Section 7.02 -- Marketing: VENDOR shall have the right to use the name of Customer as a reference for marketing purposes in connection with SOFTWARE.
Section 7.03 -- Entire Agreement: This Agreement and the Sales Agreement contain the entire understanding of the parties and supersede previous verbal and written agreements between the parties concerning the SOFTWARE. In the event of a conflict between the terms of this Agreement and the terms of the Sales Agreement, the terms of this Agreement shall prevail.
Section 7.04 -- Amendments and Modifications: Alterations, modifications or amendments of a provision of this Agreement shall not be binding unless such alteration, modification or amendment is in writing and signed by VENDOR and Customer.
Section 7.05 -- Severability: If a provision of this Agreement is rendered invalid, the remaining provisions shall remain in full force and effect.
Section 7.06 -- Captions: The headings and captions of this Agreement are inserted for convenience of reference and do not define, limit or describe the scope or intent of this Agreement or any particular section, paragraph, or provision thereof.
Section 7.07 -- Counterparts: This Agreement may be executed in multiple counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument.
Section 7.08 -- Governing Law: This Agreement shall be governed by the laws of the State of California without regard to any rules of conflict or choice of laws which require the application of laws of another jurisdiction and venue shall be in San Diego, California.
Section 7.09 -- Notice: Notices shall be in writing and shall be deemed delivered when delivered by commercial overnight delivery service, by courier, Certified or Registered Mail with Return Receipt Requested or by hand to the address set forth below for VENDOR and to the address set forth on the Sales Agreement for Customer. Notice shall be deemed given on the date of receipt - as evidenced in the case of Certified or Registered Mail by Return Receipt.
VENDOR: Egoscue, Inc., with offices located at 12230 El Camino Real Ste. 110 San Diego, CA 92130.
Attn: Training Director
CUSTOMER: ADDRESS AS INDICATED IN SALES AGREEMENT
Section 7.10 -- Pronouns/Gender: Pronouns and nouns shall refer to the masculine, feminine, neuter, singular or plural, as the context shall require.
Section 7.11 -- Bankruptcy: If VENDOR must institute, defend, appear or attend a bankruptcy proceeding as a result of the filing of bankruptcy by Customer, fees and expenses shall be paid by Customer. If Customer has a bankruptcy proceeding filed against it, VENDOR shall recover attorney fees, expert witness fees, and other costs incurred by VENDOR in connection with the bankruptcy proceeding, hearing or trial.
Section 7.12 -- Waiver: Any waiver of a provision of this Agreement by VENDOR shall not be binding unless such waiver is in writing and signed by VENDOR. Waiver by VENDOR of any breach of this Agreement shall not constitute waiver of any other breach. Any failure by VENDOR to enforce a provision of this Agreement shall not constitute a waiver or create an estoppel from enforcing such provision.
Section 7.13 -- Relationship of the Parties: It is agreed that the relationship of VENDOR and Customer is primarily that of licensor and licensee. Nothing herein shall be construed as creating a partnership, an employment relationship, or an agency relationship between the parties, or as authorizing either party to act as agent for the other. Each party shall maintain its separate identity.
Section 7.14 -- Arbitration: Any controversy or claim arising out of or relating to this Agreement, or breach thereof, shall be settled by arbitration in accordance with the Commercial Rules of the American Arbitration Association in San Diego, California. The prevailing party as determined by the Arbitrator(s) shall be entitled to its reasonable attorneys’ fees as fixed by such Arbitrator(s). Judgment upon the award rendered by the arbitrators may be entered in any court having jurisdiction thereof.
Section 7.15 -- Assurances: Each party hereby represents and warrants that all representations, warranties, recitals, statements and information provided to the other under this Agreement are true, correct and accurate as of the Effective Date to the best of their knowledge.
Section 7.16 -- Equitable Remedies: The parties hereby acknowledge that damages at law may be an inadequate remedy to VENDOR. VENDOR shall have the right of specific performance, injunction or other equitable remedy in the event of a breach or threatened breach of this Agreement by Customer.