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TERMS AND CONDITIONS 

UDO SUBSCRIPTION AGREEMENT

Last modified: July 29, 2022

The following terms and conditions (the “Terms and Conditions”) govern the access and use of the Platform provided by Udo Care, LLC (“Udo”) during the subscription term and any renewal term (the “Subscription Term”), as described in the accompanying Order Form to this Subscription Agreement.

1.                                     IMPLEMENTATION

 

            1.1                      Implementation Period. Customer will be provided an implementation period starting on the Implementation Start Date during which Udo will configure and rollout the Platform to Customer’s facility (the “Implementation Services”). The implementation period will be credited to Customer at no charge for the length of time identified in the Order Form (“Implementation Length”). The Implementation Services will convert to a paid subscription on the Subscription Start Date identified in the Order Form. Notwithstanding the provisions of Section 10 herein, Customer may terminate this Subscription Agreement prior to the Subscription Start Date by providing written or actual notice to Udo.

2.                                    DEFINITIONS

         2.1                         Authorized Hardware” means an Udo-compatible mobile device or computer owned by the Customer or by an Authorized User through which the Platform is accessed.

 

         2.2                         “Authorized User” means a user operating in accordance with the internal policies and procedures of Customer, including treatment providers, assistants, nurses, and administrators within the Customer’s organization to whom a license has been provided to access and use the Platform.

 

         2.3                         “Case Data” means data, case information, communications, videos, photos, artifacts, links, quick response (QR) codes, and other information created by Customer or its Authorized Users and input into and/or stored by the Platform.

 

         2.4                         “Client” means any client of Customer, any patient of Customer, the client’s or patient’s associated family, friends, guardians, or caregivers, or any other party using the Platform for care of the patient other than Customer or Authorized User.

 

         2.5                         “Client Data” means data, case information, communications, videos, photos, artifacts, links, quick response (QR) codes, and other information created by Client and input into and/or stored by the Platform.

 

         2.6                         “Customer” means the person, company, firm, or other entity named in the Order Form as the subscriber who is subject to these Terms and Conditions.

 

         2.7                         “Implementation Services” means the services performed by Udo to configure and rollout the Platform to Customer .

 

         2.8                         “Order Form” means any online or written subscription order form for the Platform submitted by Customer either during an online subscription process or separately signed by Customer and submitted to Udo, and any future purchase order or order form that refers to this Subscription Agreement.

 

2.9                         “Platform” means the communication services provided by Udo on a software as a service (SaaS) basis, including the mobile case collaboration application, the web-based consultation tool, or other services developed, operated, maintained, or made available for download by Udo, as well as any ancillary online or offline products and services provided to Customer and Authorized Users, to which Customer and its Authorized Users are being granted access under this Subscription Agreement, including the Udo Technology.

 

         2.10                       “Udo Technology” means all of Udo’s proprietary technology (including software, hardware, products, processes, algorithms, user interfaces, know-how, techniques, designs, documentation, user guides, and other tangible or intangible technical material or information) made available to Customer or Authorized Users by Udo in providing access to and use of the Platform.

3.                                    AUTHORIZED USERS

 

         3.1                         Customer will determine the access controls for the Authorized Users in connection with Customer’s account. The Platform may only be accessed and used by Authorized Users (each with their own unique login credentials). Unless otherwise set forth in the Order Form, the account credentials for an Authorized User are for named individuals only and cannot be shared or used by more than one person. Customer is responsible for the activity occurring under its account by its Authorized Users and their compliance with this Subscription Agreement.

 

         3.2                         Subject to data usage levels referenced in Section 8.2 and to license availability, Customer may add additional Authorized Users to its account without restriction if such Authorized Users are agents of the Customer.

 

         3.3                         The Platform is offered and available to Customers and Authorized Users who have reached the age of majority where the Authorized User lives. If Customer or Authorized User is younger than the age of majority, the Customer or Authorized User cannot register with or use the Platform.

 

3.4                         Udo may revise and update this Subscription Agreement from time to time in its sole discretion. Unless set forth otherwise at the time of posting, all changes are effective immediately when posted and apply to all access to and use of the Platform thereafter. Customer’s continued use of the Platform following the posting of changes means that Customer accepts and agrees to the changes. It is Customer’s responsibility to check this Subscription Agreement periodically for changes, as these changes are binding on it and its Authorized Users.

 

4.                                    PLATFORM

 

         4.1                         By accessing or using the Platform, signing the Order Form, or clicking to accept and agree to this Subscription Agreement when this option is made available, Customer represents to Udo that the person accepting this Subscription Agreement has the authority to bind the company, other entity, or individual identified below, represents that Customer is of legal age to form a binding contract with Udo, and acknowledges that it has read, understood, and agreed, without limitation or qualification, to be bound and abide by the Subscription Agreement, which includes Udo’s Privacy Policy (available at https://udo.com/privacy-policy/ and incorporated by reference herein) and Business Associate Agreement (available at https://udo.com/business-associate-agreement/ and incorporated by reference herein). If Customer does not wish to agree to the Subscription Agreement, Business Associate Agreement, or the Privacy Policy, Customer must not access or use the Platform.

 

4.2                         Subject to the Terms and Conditions of this Subscription Agreement, Customer may access and use the Platform for its internal business purposes as described in the Order Form during the Subscription Term and in accordance with the terms and conditions set forth in the Order Form. To the extent provided for in the applicable Order Form, and subject to the payment of the Fees set forth therein, Udo will provide to Customer the Implementation Services.

 

         4.3                         In order to use the mobile case collaboration application of the Platform, each Authorized User must download the Platform application onto Authorized Hardware and install it on each device that will use the Platform. As applicable, Customer agrees to use the most recent version of the Platform (when Udo releases an update or a new version). Use of any subsequent versions of the Platform may be subject to additional license terms. Customer will only allow the installation the Platform on compatible devices that are supported by Udo. Customer and its Authorized Users may not modify, alter, decompile, or reverse engineer the Platform.

 

4.4                         As applicable, Udo supports the web-based consultation tool of the Platform in Original Equipment Manufacturer (OEM) supported versions of the following browsers: Apple Safari, Google Chrome, Microsoft Edge, and Mozilla Firefox (collectively, the “Supported Browsers”). Versions of these browsers no longer supported by their maker may not function as intended and may expose Customer and Case Data to inherent security vulnerabilities. Customer agrees to use the most up-to-date version of the Supported Browsers when accessing or using the Platform. Customer and its Authorized Users may not modify, alter, decompile, or reverse engineer the Platform.

 

         4.5                         Customer acknowledges and agrees that Udo is not obligated to monitor or police communications or Case Data transmitted through the Platform and that Udo shall not be responsible for the content of any such communications or transmissions. Customer shall use, and Udo shall provide, the Platform exclusively for authorized and legal purposes, consistent with all applicable laws, regulations and the rights of others. Customer shall keep confidential and not disclose to any third parties and shall ensure that Authorized Users keep confidential and do not disclose to any third parties any user identifications or account profiles. Customer acknowledges that the Platform is not designed, intended, or authorized for use in emergency, hazardous, or mission-critical circumstances or environments, or where failure could lead to death, personal injury or environmental damage. Customer shall not use the Platform for such purposes or under such circumstances.

 

         4.6                         Customer acknowledges and agrees that the Platform is a tool that may be used to assist health care providers in the practice of health care, but it is not a substitute for competent human intervention or discretionary thinking. Customer and its Authorized Users agree to use the Platform only in accordance with applicable standards of good health care practice. Customer further agrees that it is solely responsible for decisions made in configuring the Platform and for the health care decision-making and judgments of its Authorized Users related to the treatment of patients and that Udo has no responsibility or liability therefor.

 

5.                                    USE OF THE PLATFORM; CASE DATA

 

         5.1                         Customer may provide Udo with certain login and other account information to use the Platform (“Account Information”). By providing Account Information, Customer authorizes Udo to use (and, if elected, store) the Account Information on behalf of Customer, so that Authorized Users can access those accounts using the Platform. Customer, and its Authorized Users, are responsible for using appropriate hardware and taking appropriate steps to maintain the security and confidentiality of its and their Account Information.

 

         5.2                         Customer, and its Authorized Users, agree not to: (1) use the Platform other than as authorized in this Subscription Agreement; (2) resell, sublicense, or otherwise make the Platform available to any third party; (3) use the Platform to support any activity that is illegal or that violates the proprietary rights of others; (4) interfere with or disrupt the integrity or performance of the Platform or any related websites or web-based applications; (5) use the Platform in a manner which causes undue strain on the Udo network through any non-standard use; (6) deactivate, impair, or circumvent any security or authentication measures of the Platform or any related websites or web-based applications; (7) access the Platform for purposes of monitoring its performance or functionality; or (8) authorize any third parties to do the above.

 

         5.3                         Customer will use Case Data for the sole purpose of providing care to or communicating with Authorized Users and/or improving the Platform and not for any harmful or unauthorized purpose.

 

6.                                    SUPPORT

 

         6.1                         During the Subscription Term, Udo will provide technical support via email and phone for use of the Platform on Authorized Hardware during regular business hours, at no additional charge. Subject to the terms of this Subscription Agreement, Udo will use commercially reasonable efforts to make the Platform available 99.5% of the time per month, except for any scheduled maintenance or any unanticipated or unscheduled downtime or unavailability as a result of system failures or circumstances outside or beyond the reasonable control of Udo. Udo will use reasonable efforts to maintain the Platform in a manner that minimizes errors and service interruptions. Customer will promptly inform Udo of any issue or problems regarding the Platform.

 

         6.2                         The Platform is programmed to perform data backups of database records. In the event of any loss, destruction, damage, or corruption of Case Data caused by the Platform, Udo, as its sole obligation and liability and as Customer’s sole remedy, will use commercially reasonable efforts to restore Case Data from Udo’s most current backup of Customers Case Data.

 

7.                                    COMPLIANCE; DATA SECURITY

 

7.1                         Customer acknowledges and agrees that its use of the Platform may be subject to regulation by a variety of different federal, state, and local laws and regulations, including those of jurisdictions where its Client or Authorized User may be located, and that it is Customer’s sole responsibility to both research and confirm whether its use of the Platform fully complies with such laws and regulations applicably to Customer. Customer’s or its Authorized Users’ access to the Platform may be limited or suspended immediately in Udo’s discretion if Udo believes that this Section has been violated.

 

7.2                         Customer acknowledges and agrees that it retains full responsibility and liability for complying with federal, state, and local laws and regulations governing access, privacy, and security of the protected health information (as defined under HIPAA) and other private data of its Clients. By accessing, using, and continuing to use the Platform, Customer represents and warrants to Udo that it will continue to do so in compliance with any and all applicable laws.

 

7.3                         Customer acknowledges and agrees that it is solely responsible for determining and ensuring that Customer’s or its Authorized Users’ provision or uploading of Client information into the Platform complies with applicable federal, state, and local laws. Customer shall obtain, and will maintain accurate records of, all necessary rights, contracts, permissions, and consents from each individual and entity that Customer contacts, uploads Case Data related to, or in any other manner uses the Platform with, as required by all applicable laws and regulations, including without limitation HIPAA and 45 CFR 164.508 and any successor regulation thereto and the Part 2 Regulations. Customer will immediately stop contacting and remove information related to any individual or entity that no longer wishes to receive contact from Customer or otherwise withdraws necessary rights, permissions or consents required to maintain such information. Notwithstanding the foregoing, Udo reserves the right to remove immediately from Customer’s contact database or otherwise block Customer or its Authorized Users from communicating through the Platform with any individual or entity identified to Udo by network providers or the authorities as filing a spam report or complaint against Customer or that contacts Udo directly to request removal from Customer’s contact database.

 

7.4                         The Parties agree to comply with the Business Associate Agreement.

8.                                    SUBSCRIPTION FEES

 

         8.1                         Customer will pay the subscription fees, implementation fees, and other applicable fees or charges for the Platform as specified in the Order Form (collectively, “Fees”). All Fees are quoted in United States dollars. After prior written notice, Udo may suspend Customer’s use of the Platform until payment is made. All payment obligations are non-cancelable and, except as expressly set forth in the Order Form, are nonrefundable.

 

8.2                         As applicable, fees identified in the Order Form are based on data usage levels for the mobile case collaboration application of the Platform. Additional charges may be incurred to Customer for exceeding the data usage levels agreed upon as identified in the Order Form. Customer cannot withhold, reduce, or set-off fees owed nor reduce the data usage levels agreed upon as identified in the Order Form during the Subscription Term.

 

8.3                         Customer agrees to provide to Udo a payment method for recurring payments. Unless otherwise provided, Customer authorizes Udo to use the method of payment used to initiate the subscription for such recurring payments.

 

         8.4                         Late payments will accrue interest at one percent (1.0%) per month or the maximum rate permitted by law, whichever is less calculated from the date such amount was due until the date that payment is received by Udo. All billing disputes must be made in writing within sixty (60) days of the date of the invoice containing the amount in question to be eligible to receive an adjustment or credit. Fees are exclusive of all taxes or other charges imposed by taxing authorities, and Customer is responsible for payment of all such taxes and charges, but excluding any taxes based on Udo’s income. If Udo has the legal obligation to pay or collect the taxes for which Customer is responsible, that amount will be invoiced to and paid by Customer, unless Customer provides Udo with a valid tax exemption certificate authorized by the applicable taxing authority.

 

8.5                         The amounts to be paid to Udo hereunder have been determined by the parties through good faith and arms-length bargaining, to be the fair market value of the services to be rendered hereunder. No amount paid or to be paid hereunder is intended to be, or nor will it be construed as, an offer, inducement, or payment, whether directly or indirectly, overtly, or covertly, for the referral of Clients or individual users by Udo to Customer, or by Customer to Udo, or for the recommending or arranging of the purchase, lease or order of any item or services. For purposes of this Section, Customer and Udo will include each such person or entity and any affiliate thereof. No referrals are required under this Subscription Agreement. This Subscription Agreement is intended to be in compliance with the discount safe harbor provisions of the Anti-Kickback Statute and its implementing regulations, 42 CFR § 1001.952(h). All discounts and rebates will be provided based on purchases of goods and/or services within a single fiscal year of Customer and the terms of the discounts and rebates are fixed as set forth herein. Procurement shall disclose the amounts of discounts at the time of invoice or at such time as the discounts or rebates are ascertainable.

 

9.                                    RENEWAL

 

         9.1                         Unless otherwise set forth in an applicable Order Form, the Subscription Term will automatically renew for a subsequent renewal term, unless either party notifies the other party of its intent not to renew on the same terms, at least thirty (30) days prior to the end of the then current Subscription Term.

 

         9.2                         Udo reserves the right to make changes to Fees at the time of renewal with notice at least sixty (60) days prior to the end of the then current Subscription Term.

 

10.                                 TERMINATION

 

         10.1                       Without limiting other available remedies, Udo reserves the right to disable Customer’s account and suspend access to the Platform if Customer has undisputed amounts more than thirty (30) days past due. Udo also reserves the right to suspend access to the Platform if: (1) Udo suspects that someone other than an Authorized User is using (or attempting to use) Customer’s account; (2) Customer or any of its Authorized Users use of the Platform disrupts, harms, or poses a security risk to the Platform or to any website or web-based application; or (3) Customer is using the Platform in a manner that breaches any term of this Subscription Agreement, the Platform’s User Agreement (available at https://udo.com/user-agreement/ and incorporated by reference herein), or the Platform’s Terms of Use (available at https://udo.com/terms-of-use/ and incorporated by reference herein).

 

         10.2                       A party may terminate this Subscription Agreement with written notice if the other party breaches a material term of this Subscription Agreement and fails to correct the breach within thirty (30) days following written notice specifying the breach. If Customer terminates this Subscription Agreement for an uncured material breach pursuant to this Section 10.2 by Udo, then Udo will refund the unused portion of the subscription fees that Customer paid for the Platform for the remainder of the Subscription Term.

 

         10.3                       Upon any expiration or termination of this Subscription Agreement, Customer’s right to access and use the Platform will terminate. For a period of 60 days following the termination of the Subscription Agreement, Customer may access the Platform to export Case Data and health information. Following the 60-day export period, Customer may not continue to access or use the Platform. Udo will have no liability for any costs, losses, damages, or liabilities arising out of or related to Udo’s exercise of its termination rights under this Subscription Agreement. Any payment obligations as of the expiration or termination (or that relate to activity during the Subscription Term) will remain in effect. The obligations and provisions of Sections 11 through 21 will survive any expiration or termination of this Subscription Agreement.

 

11.                                 PROPRIETARY RIGHTS

 

11.1                       Customer owns all right, title and interest in and to the Case Data, including all intellectual property rights therein, subject to all applicable federal and state data privacy and retention laws and regulations, including HIPAA. This Subscription Agreement does not convey any proprietary interest in or to any Case Data or rights of entitlement to the use thereof to Udo, except as expressly set forth herein.

 

         11.2                       Customer agrees to grant Client a non-exclusive, irrevocable, perpetual, worldwide license to access, add to, and duplicate the Case Data which applies to or is accessible to Client on the Platform. Please refer to the Platform’s Terms of Use, which govern Client’s rights and responsibilities regarding licensure of the Client Data to Customer.

 

         11.3                       Udo owns all right, title, and interest in and to the Platform and the Udo Technology, including all worldwide intellectual property rights therein, including but not limited to any proprietary inventions, patent applications, patents, design rights, copyrights, trademarks, service marks, trade names, domain name rights, mask work rights, know-how and other trade secret rights, and all other intellectual property rights, derivatives thereof, and forms of protection of a similar nature anywhere in the world (including methodologies and business processes used by Udo to develop or provide the Platform or Udo Technology), and any and all updates, enhancements, modifications, customizations and future releases and any other changes relating to the foregoing (collectively, the “Udo IP”). This Subscription Agreement does not convey any proprietary interest in or to any Udo IP or rights of entitlement to the use thereof except as expressly set forth herein.

 

11.4                       Customer grants Udo the right to use its name (and the corresponding trademark or logo) on Udo’s website and marketing materials to identify Customer as a customer of Udo, provided that Udo agrees to cease or alter such use at Customer’s request where such use is contrary to Customer’s branding policies or is otherwise objectionable to Customer. Similarly, Customer may use Udo’s name and credentials in an appropriate and acceptable manner for its standard publicity promotions, provided that Customer agrees to alter such use at Udo’s request where such use is contrary to Udo’s then-current trademark policies or is otherwise objectionable to Udo.

 

11.5                       Udo may use any suggestions, ideas, feedback, or recommendations provided by Customer regarding the Platform and the Udo Technology (“Feedback”), and by providing any Feedback, Customer grants Udo a worldwide, perpetual, irrevocable, fully paid and royalty-free license to use and exploit that Feedback for any purpose and without any further obligation.

 

12.                                 CONFIDENTIALITY

 

         12.1                       Each party (the “Receiving Party”) understands that the other party (the “Disclosing Party”) has disclosed or may disclose business, technical, or financial information relating to the Disclosing Party’s business (hereinafter referred to as “Confidential Information” of the Disclosing Party). Proprietary Information of Udo includes non-public information regarding features, functionality, and performance of the Platform. Proprietary Information of Customer includes non-public data provided by Customer to Udo to enable the provision of the Platform. The Receiving Party agrees: (i) to take reasonable precautions to protect such Proprietary Information, Confidential Information, and Case Data, and (ii) not to use (except in performance of the services or as otherwise permitted herein) or divulge to any third person any such Proprietary Information, Confidential Information, and Case Data. The Disclosing Party agrees that the foregoing shall not claim as Confidential Information any information that the Receiving Party can document and prove (a) is or becomes generally available to the public, (b) was in its possession or known by it prior to receipt from the Disclosing Party, (c) was rightfully disclosed to it without restriction by a third party, (d) was independently developed without use of any Proprietary Information of the Disclosing Party, or (e) is required to be disclosed by law.

 

         12.2                       Udo may use Customer’s protected health information (as defined under HIPAA), including that within Case Data, to perform data aggregation services (as that term is defined by HIPAA), to create limited data sets (as that term is defined by HIPAA) and/or to de-identify information in accordance with 45 CFR 164.514(a)–(c). Customer grants a non-exclusive, irrevocable, perpetual, worldwide right to incorporate its protected health information into aggregated data or data sets maintained by Udo and agree that Udo retains any and all ownership claims related to its data sets and the de-identified data it creates from protected health information. Udo may use, during and after this Agreement, all aggregated information, and de-identified data for purposes of enhancing the Platform, technical support, and other business purposes, all in compliance with the HIPAA privacy standards and the Part 2 Regulations. Udo may create limited data sets using Customer’s Protected Health Information and further use and disclose those Limited Data Sets in accordance with the BAA.

 

         12.3                       Notwithstanding anything to the contrary, Udo shall have the right to collect and analyze data and other information relating to the provision, use, and performance of various aspects of the Platform and related systems and technologies (including, without limitation, information concerning Case Data and data derived therefrom), and Udo will be free (during and after the term hereof) to use such information and data to improve and enhance the Platform and for other development, diagnostic and corrective purposes in connection with the Platform and other Udo offerings, all in compliance with HIPAA privacy standards and any other applicable laws and regulations.

 

13.                                 DISCLAIMERS

 

         13.1        The Platform is provided “AS IS” and on an “AS AVAILABLE” basis. Udo does not warrant that the Platform will be provided without interruption or be completely error free. UDO DISCLAIMS ANY WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NONINFRINGEMENT, AND ANY WARRANTIES ARISING OUT OF COURSE OF DEALING OR USAGE OF TRADE. WITHOUT LIMITING THE FOREGOING, THE PLATFORM IS PROVIDED FOR INFORMATIONAL PURPOSES ONLY, DOES NOT CONTAIN OR CONSTITUTE, AND SHOULD NOT BE INTERPRETED AS, PROFESSIONAL, COUNSELING, MEDICAL OR HEALTH ADVICE OR OPINION OF ANY KIND, AND IS NOT A SUBSTITUTE FOR PROFESSIONAL, MEDICAL, OR HEALTH ADVICE, OPINION, DIAGNOSIS, OR TREATMENT OF ANY KIND. THE USE OF THE PLATFORM DOES NOT CREATE A DOCTOR-PATIENT RELATIONSHIP BETWEEN UDO AND CUSTOMER, CLIENT, OR ANY AUTHORIZED USER.

 

         13.2        Customer acknowledges that, despite the security features of the Platform, no service can provide a completely secure mechanism of electronic transmission and that there are persons and entities that may attempt to breach Udo’s security measures. Udo will not be liable for any security breach (or other events) caused by circumstances outside of its reasonable control. Udo is not responsible for any data or information that Customer, or its Authorized Users, download or access through the use of the Platform. Customer assumes all risk from the use of the Platform, including any damage to its computer system or devices or the corruption or loss of its data and information when accessing or using the Platform.

 

14.                                 LIMITATION OF LIABILITY

 

         14.1        IN NO EVENT WILL UDO BE LIABLE FOR ANY INDIRECT, PUNITIVE, SPECIAL, EXEMPLARY, INCIDENTAL, CONSEQUENTIAL OR OTHER DAMAGES OF ANY TYPE OR KIND (INCLUDING, BUT NOT LIMITED TO, ANY LOST PROFITS, REVENUE, OR DATA) IN CONNECTION WITH THE PLATFORM, INCLUDING, BUT NOT LIMITED TO, THE USE OR INABILITY TO USE THE PLATFORM, OR FOR ANY INFORMATION OR DATA TRANSMITTED THROUGH THE PLATFORM, ANY INTERRUPTION, INACCURACY, ERROR OR OMISSION, REGARDLESS OF CAUSE, AND WHETHER OR NOT PREVIOUSLY ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE FOREGOING WILL APPLY TO THE FULLEST EXTENT PERMITTED BY LAW. IN NO EVENT WILL THE TOTAL LIABILITY OF UDO EXCEED THE GREATER OF THE FOLLOWING: (A) TOTAL AMOUNTS PAID BY AND/OR DUE FROM CUSTOMER IN THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO SUCH CLAIM; OR (B) FIFTY U.S. DOLLARS ($50.00).

 

15.                                 INDEMNIFICATION

 

         15.1        Udo will: (1) defend Customer against any third-party suit, claim, action, or demand (a “Claim”) alleging that the Platform infringes any copyright or trademark or misappropriates a trade secret of a third party; and (2) indemnify and hold Customer harmless from any final award of damages or settlement amount arising in connection with any Claim that the Platform infringes any copyright or trademark or misappropriates a trade secret of a third party.

 

         15.2        Customer will: (1) defend Udo against any Claim arising out of or related to (a) Customer’s misuse of the Platform (other than as permitted by this Subscription Agreement), (b) any violation of the terms of this Subscription Agreement by Customer or its Authorized Users, or (c) the unauthorized accessing and/or use of the websites and web-based applications through the Platform; and (2) indemnify and hold Udo harmless from any final award of damages or settlement amount arising in connection with any such Claim.

 

         15.3        The foregoing indemnity obligations are conditioned on the indemnified party notifying the indemnifying party promptly in writing of any actual or threatened Claim, the indemnified party giving the indemnifying party sole control of the defense thereof and any related settlement negotiations, and the indemnified party cooperating and, at the indemnifying party’s request and expense, assisting in such defense.

 

16.                                 RELATIONSHIP OF THE PARTIES

 

         16.1        The parties are independent contractors, and no branch or agency, partnership, association, joint venture, employee-employer, or franchiser-franchisee relationship is intended or created by this Subscription Agreement. This Subscription Agreement is intended for the sole and exclusive benefit of the parties and is not intended to benefit any third party. Only the parties to this Subscription Agreement may enforce it.

 

17.                                 CHOICE OF LAW; DISPUTE RESOLUTION

 

         17.1        This Subscription Agreement is governed by and construed in accordance with the laws of the State of Utah, as if performed wholly within the state and without giving effect to the principles of conflict of law. Any legal action or proceeding arising under this Subscription Agreement will be brought exclusively in the federal or state courts located in Salt Lake County, Utah, and the parties hereby consent to such venue and personal jurisdiction. If any portion of this Subscription Agreement is found to be void or unenforceable, the remaining provisions of this Subscription Agreement will remain in full force and effect.

 

         17.2        The parties agree to meet and confer in good faith to resolve any dispute(s) that may raise out of and/or relate to the Subscription Agreement. If such dispute(s) remain unresolved, the parties mutually agree that all claims and disputes arising under or relating to this Subscription Agreement are to be settled by arbitration in the state of Utah or another location mutually agreeable to the parties. Either party may commence arbitration by sending a written demand for arbitration to the other party, setting for the nature of the controversy, the dollar amount involved, if any, the remedies sought, and attaching to such demand a copy of this fully executed Subscription Agreement. All decisions resulting from the arbitration shall be final, binding and conclusive on the parties and shall constitute the only method of resolving disputes or matters subject to arbitration pursuant to this Subscription Agreement. The arbitrator or any court of competent jurisdiction may issue a writ of execution to enforce the arbitrator’s judgment. Judgment may be entered upon such a decision in accordance with applicable law in any court having jurisdiction thereof.

 

18.                                 ASSIGNABILITY

 

         18.1        Neither party may assign this Subscription Agreement, in whole or in part, without the other party’s prior written consent. Notwithstanding the foregoing, Udo may, in connection with a merger, reorganization, or sale of all or substantially all the assets or equity of such party, assign this Subscription Agreement in its entirety to Udo’s successor without Customer’s consent. Any attempt to assign this Subscription Agreement other than as permitted above will be null and void.

19.                                 FORCE MAJEURE

 

         19.1        Any delay in performance (other than for the payment of amounts due) caused by conditions beyond the reasonable control of the performing party is not a breach of this Subscription Agreement. The time for performance will be extended for a period equal to the duration of the conditions preventing performance.

20.                                 NOTICE

 

         20.1        All notices required or permitted under this Subscription Agreement will be in writing and delivered by confirmed electronic submission, by courier or overnight delivery services, or by certified mail, and in each instance will be deemed given upon receipt. All communications will be sent to the addresses set forth in the Order Form or to such other address as may be specified by either party to the other in accordance with this Section.

 

21.                                 MODIFICATION

 

         21.1        This Subscription Agreement constitutes the complete and exclusive understanding and agreement between the parties regarding this subject matter and supersedes all prior or contemporaneous agreements or understandings, written or oral, relating to this subject matter. Any waiver, modification, or amendment of any provision of this Subscription Agreement will be effective only if in writing and signed by duly authorized representatives of both parties.