Terms & Conditions

Genote Platform as a Service Agreement

This Genote Platform as a Service Agreement (the “Agreement”) is entered into by and between Genote, LLC, a Utah limited liability company, with offices at 447 W. 1300 N. American Fork, Utah 84003 (“Genote”) and the entity or person agreeing to such terms in the Order Form (“Customer,” “you,” or “your”)), and govern Customer’s access and use of the Services (as defined below).  Genote and Customer may be referred to herein collectively as the "Parties" or individually as a "Party."

WHEREAS, Genote offers its proprietary Genote music library based on state of the art sound and music analysis as non-invasive therapeutic music therapy as individual health solutions that can be experienced in homes, schools, workplace, and medical facilities.

WHEREAS, Genote is the owner and has the right to grant rights to Customer to access and use Music Platform, and Customer desires to access the Music Platform for the uses and purposes described herein, each subject to the terms and conditions set forth herein.

NOW, THEREFORE, in consideration of the mutual covenants, terms, and conditions set forth herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties agree as follows:

This Agreement governs your use of Genote’s Health Music Platform™ available on its website (https://www.genotelab.com/) and on IOS/Android mobile platforms (including all related documentation, collectively the “Music Platform”) and becomes effective as of the date of the Order Form signed between Customer and Genote (“Effective Date”).  Customer represents and warrants that (i) Customer has reviewed and understand this Agreement, (ii) you have the full right, power, and authority to enter into this Agreement and perform your obligations hereunder; and (iii) you hereby waive any and all defenses you may have based on the electronic form of this Agreement and the lack of signing by the Parties hereto to execute this Agreement.

1. DEFINITIONS. “Aggregated Statistics” means data and information related to Customer's use of the Services that is used by Genote in an aggregate and anonymized manner, including to compile statistical and performance information related to the provision and operation of the Services.  “Authorized User” means Customer and those invididuals (i) who are authorized by Customer to access and use the Services under the rights granted to Customer pursuant to this Agreement and (ii) for whom access to the Services has been purchased hereunder. “Customer Data” means other than Aggregated Statistics, information, data, and other content, in any form or medium, that is submitted, posted, or otherwise transmitted by or on behalf of Customer or an Authorized User through the Services.  For the avoidance of doubt, Customer Data does not include Aggregated Statistics or any other information reflecting the access or use of the Services by or on behalf of Customer or any Authorized User. “Documentation” means Genote's user manuals, handbooks, and guides relating to the Services provided by Genote to Customer relating to the Services including any aspect of the installation, configuration, integration, operation, use, support, or maintenance thereof.  “Genote IP” means the Services, the Documentation, and any and all intellectual property provided to Customer or any Authorized User in connection with the foregoing. For the avoidance of doubt, Genote IP includes Aggregated Statistics and any information, data, or other content derived from Genote's monitoring of Customer's access to or use of the Services, but does not include Customer Data.  “Intellectual Property Rights” means all rights in and to US and foreign (i) patents, patent disclosures, and inventions (whether patentable or not), (ii) trademarks, service marks, trade dress, trade names, logos, corporate names, and domain names, and other similar designations of source or origin, together with the goodwill symbolized by any of the foregoing, (iii) copyrights and works of authorship (whether copyrightable or not), including computer programs, mask works, and rights in data and databases, (iv) trade secrets, know-how, and other confidential information, and (v) all other intellectual property rights, in each case whether registered or unregistered, and including all registrations and applications for, and renewals or extensions of, such rights, and all similar or equivalent rights or forms of protection in any part of the world. “Non-Platform Application” means web-based, mobile, offline, accounting tools or other software functionality that interoperates with the Services via APIs that is provided by Customer or a third party (e.g. Google Analytics).  “Person” means an individual, partnership, corporation, trust, joint venture, other business entity, union, or any federal, state, or local governmental entity, department, or agency. “Services” means the platform-as-a-service Music Platform offering described in the applicable Order Form; “Support Services” means training, dedicated support, troubleshooting of the Services. “Third-Party Products” means any materials and information, in any form or medium, including any open-source or other software, documents, data, content, specifications, products, or components of or relating to the Services that are not proprietary to Genote that are provided with or incorporated into the Services. 

2. ORDER FORMS: Genote will provide those Services set forth in a service order or product order, each of which becomes subject to and a part of this Agreement upon the Effective Date (each, an “Order Form”). Any change to an Order Form must be in writing and will be effective only when signed by an authorized representative of each party (each, a “Change Order”). If a purchase order is required for processing an invoice, upon signing an Order Form or Change Order, Customer will submit a purchase order to Genote that covers all fees and expenses.

3. SERVICES:

   (a) Access and Use. Subject to terms and conditions of this Agreement, Genote hereby grants Customer a non-exclusive, nonsublicensable, non-transferable (except in compliance with Section 13(h)) right to access and use the Services during the Term, solely for use by Authorized Users in accordance with the terms and conditions herein. Such use is limited to Customer's internal use.  All rights in the Services not expressly granted hereunder are reserved to Genote.

   (b) Use Restrictions. Customer shall not and shall not permit any other Person to, access or use the Services for any purposes beyond the scope of the access granted in this Agreement. Customer shall not at any time, directly or indirectly, and shall not permit any Authorized Users to: (i) copy, modify, or create derivative works of the Services or Documentation, in whole or in part; (ii) rent, lease, lend, sell, license, sublicense, assign, distribute, publish, transfer, or otherwise make available the Services or Documentation; (iii) reverse engineer, disassemble, decompile, decode, adapt, or otherwise attempt to derive or gain access to any software component of the Services, in whole or in part; (iv) remove any proprietary notices from the Services or Documentation; (v) access or use the Services or Non-Platform Application for purposes of competitive analysis of the Services or Non-Platform Application, the development, provision, or use of a competing software service or product or any other purpose that is to Genote’s detriment or commercial disadvantage; or (vi) use the Services  in any manner or for any purpose that infringes, misappropriates, or otherwise violates any intellectual property right or other right of any person, or that violates any applicable law.

   (c) Support Services.  Genote shall maintain reasonable and appropriate technical, administrative and physical security measures designed to protect against unauthorized access to or use of Customer Data. Genote shall use commercially reasonable efforts to provide the Support Services and standard maintenance support that will include updates, bug fixes, enhancements, new releases, new versions, and other improvements to the Services that Genote provides at no additional charge to its other similarly situated customers.  Genote will provide such services and repairs as are required to maintain the Services or are ancillary, necessary, or otherwise related to Customer’s access to or use of the Services, so that the Services operate properly in accordance with this Agreement. 

   (d) Suspension of Services. Notwithstanding anything to the contrary in this Agreement, Genote may suspend, terminate, or otherwise deny Customer's and any Authorized User's access to any portion or all of the Services if: (i) Genote reasonably determines that (A) Customer or any Authorized User has failed to comply with any material term of this Agreement; (B) Customer’s or any Authorized User’s use of the Genote IP disrupts or poses a security risk to the Genote IP or to any other customer or vendor of Genote; (C) Customer, or any Authorized User, is using the Genote IP for fraudulent or illegal activities; (D) subject to applicable law, Customer has ceased to continue its business in the ordinary course, made an assignment for the benefit of creditors or similar disposition of its assets, or become the subject of any bankruptcy, reorganization, liquidation, dissolution, or similar proceeding; or (E) Genote’s provision of the Services to Customer or any Authorized User is (i) prohibited by judicial or other governmental demand or order, subpoena, law enforcement request, or  applicable law; or (ii) in accordance with Section 5(a)(iii) any such suspension described in subclause (i) or (ii), a “Service Suspension”). Genote shall use commercially reasonable efforts under the circumstances to provide Customer with notice and an opportunity to remedy such violation or threat prior to any such Service Suspension. Genote will have no liability for any damage, liabilities, losses (including any loss of data or profits), or any other consequences that Customer or any Authorized User may incur as a result of a Service Suspension.  This Section 3(d) does not limit any of Genote’ other rights or remedies, whether at law, in equity, or under this Agreement.

4. CUSTOMER OBLIGATIONS. 

   (a) General.  Customer is responsible and liable for all uses of the Services and Documentation resulting from access provided by Customer, directly or indirectly, whether such access or use is permitted by or in violation of this Agreement. Without limiting the generality of the foregoing, Customer is responsible for all acts and omissions of Authorized Users, and notify Genote of any act or omission by an Authorized User that would constitute a breach of this Agreement. Customer shall cause  all Authorized Users to be aware of this Agreement's provisions as applicable to such Authorized User's use of the Services, and shall cause Authorized Users to comply with such provisions.  

   (b) Third-Party Products. Genote may from time to time make Third-Party Products available to Customer in connection with the Services. For purposes of this Agreement, such Third-Party Products are subject to their own terms and conditions and the applicable flow-through provisions and Genote has no liability for any Third-Party Products.  Customer will provide all permissions, access and licenses required for Genote to access, use and integrate Third-Party Products in connection with the Services.  If Customer does not agree to abide by the applicable terms for any such Third-Party Products, then Customer should not install or use such Third-Party Products.

   (c) Customer Control and Security.  Customer has and will has and will retain sole responsibility for: (i) all Customer Data, including its content and use and backing up all Customer Data; (ii) all information, instructions, and materials provided by or on behalf of Customer or any Authorized User in connection with the Services; (iii) Customer's information technology infrastructure, including computers, software, databases, electronic systems (including database management systems), and networks, whether operated directly by Customer or through the use of Third-Party Products; and (iv) all physical administrative and technical controls, screening, and security procedures and other safeguards necessary to protect against any unauthorized access to or use of the Services.

5. FEES, EXPENSES AND PAYMENT. 

   (a) Fees. Customer shall pay all fees specified in the Order Form ("Fees") as set forth above without offset or deduction. Customer shall make all payments hereunder in U.S. dollars on or before the due date set forth on the invoice. Customer will pay Genote all actual, reasonable travel and living expenses incurred by Genote in the performance of the Services that have been pre-approved in writing by Customer.  All payment obligations are non-cancelable, and Fees paid are non-refundable. Genote will invoice Customer for Fees as set forth in the applicable Order Form and for monthly expenses as incurred. Customer will pay all invoices within thirty (30) days following the date of invoice.   If Customer disputes any amounts invoiced, it must notify Genote in writing on or before the applicable due date. The Parties will negotiate in good faith to promptly resolve the dispute, following which all amounts due will become immediately payable.  If Customer fails to make any payment when due, without limiting Genote's other rights and remedies may charge interest on the past due amount at the rate of 1.5% per month calculated daily and compounded monthly or, if lower, the highest rate permitted under applicable law; (ii) Customer shall reimburse Genote for all reasonable costs incurred by Genote in collecting any late payments or interest, including attorneys' fees, court costs, and collection agency fees; and (iii) if such failure continues for thirty (30) days or more, Genote may suspend Customer's and its Authorized Users' access to any portion or all of the Services until such amounts are paid in full.

   (b) Taxes. All Fees and other amounts payable by Customer under this Agreement are exclusive of taxes and similar assessments. Customer is responsible for all sales, use, and excise taxes, and any other similar taxes, duties, and charges of any kind imposed by any federal, state, or local governmental or regulatory authority on any amounts payable by Customer hereunder, other than any taxes imposed on Genote's income. If any amounts payable by Customer are subject to withholding, the amount payable will be grossed up by Customer when Customer remits payment such that the amount paid net of withholding equals the amount invoiced by Genote.  

6. CONFIDENTIAL INFORMATION. In connection with this Agreement each Party (as the "Disclosing Party") may disclose or make available Confidential Information to the other Party (as the "Receiving Party"). "Confidential Information" means information in any form or medium (whether oral, written, electronic or other) that the Disclosing Party considers confidential or proprietary, including information consisting of or relating to the Disclosing Party’s technology, trade secrets, know-how, business operations, plans, strategies, customers, suppliers,  pricing, and information with respect to which the Disclosing Party has contractual or other confidentiality obligations, in each case whether or not marked, designated or otherwise identified as "confidential".  Confidential Information does not include any information that: (a) is or becomes generally available to the public other than as a result of a breach by Receiving Party; (b) is obtained by Receiving Party on a non-confidential basis from a third party that was not legally or contractually restricted from disclosing such information; or (c) Receiving Party establishes by documentary evidence, was in its possession prior to disclosure hereunder.  The Receiving Party shall not disclose the disclosing Party's Confidential Information to any person or entity, except to the Receiving Party's employees who have a need to know the Confidential Information for the Receiving Party to exercise its rights or perform its obligations hereunder. The Receiving Party may disclose Confidential Information of the Disclosing Party to the extent compelled by law to do so, provided the Receiving Party gives the Disclosing Party prior notice of the compelled disclosure (to the extent legally permitted) and reasonable assistance, at the Disclosing Party's cost, if the Disclosing Party wishes to contest the disclosure. Upon Disclosing Party's request, Receiving Party shall promptly return or destroy return all documents and other materials received from Disclosing Party. Disclosing Party shall be entitled to injunctive relief for any violation of this Section.

7. INTELLECTUAL PROPERTY OWNERSHIP; AGGREGATED STATISTICS; FEEDBACK. 

   (a) Genote IP. Customer acknowledges that, as between Customer and Genote, Genote owns all right, title, and interest, including all Intellectual Property Rights, in and to the Genote IP.

   (b) Customer Data. Genote acknowledges that, as between Genote and Customer, Customer owns all right, title, and interest, including all Intellectual Property Rights, in and to the Customer Data. Customer hereby grants to Genote a non-exclusive, royalty-free, worldwide license to reproduce, distribute, and otherwise use and display the Customer Data and perform all acts with respect to the Customer Data as may be necessary for Genote to provide the Services to Customer.  

   (c) Aggregated Statistics.  Genote may use the data and information related to Customer’s use of the Services  in an aggregate, de-identified or anonymized manner so it does not identify Customer, any Authorized User or any Confidential Information of Customer (“Aggregated Statistics”).  Genote shall not attempt or re-idenitfy any Aggregated Data.  Customer acknowledges that Genote shall own all right, title and interest in the Aggregated Data and all related intellectual property rights thereto.  Customer agrees that Genote may (i) make the Aggregated Data publicly available, and (ii) use the Aggregated Data to compile statistical and performance information related to the Services and for its own purposes to the extent permitted by applicable law.

   (d) Feedback. Customer grants to Genote a worldwide, perpetual, irrevocable, royalty-free license to use, distribute, disclose, and make and incorporate into its services any suggestion, enhancement request, recommendation, correction or other feedback provided by Customer or Authorized Users relating to the operation of Services.

8. REPRESENTATIONS AND WARRANTIES

   Mutual Representations and Warranties. Each party represents and warrants to the other party that (i) it is a duly organized, validly existing, and in good standing as a corporation or other entity under the laws of the jurisdiction of its incorporation or other organization; (ii) it has the full right, power, and authority to enter into this Agreement and perform its obligations hereunder; and (iii)  this Agreement will constitute the legal, valid, and binding obligation of such party, enforceable against such party in accordance with its terms.

9. WARRANTY DISCLAIMER.  EXCEPT AS EXPRESSLY PROVIDED HEREIN, ALL GENOTE IP IS PROVIDED “AS IS” AND GENOTE HEREBY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE. GENOTE SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT, AND ALL WARRANTIES ARISING FROM COURSE OF DEALING, USAGE, OR TRADE PRACTICE. GENOTE MAKES NO WARRANTY OF ANY KIND THAT THE GENOTE IP, OR ANY PRODUCTS OR RESULTS OF THE USE THEREOF, WILL MEET CUSTOMER’S OR ANY OTHER PERSON’S REQUIREMENTS, OPERATE WITHOUT INTERRUPTION, ACHIEVE ANY INTENDED RESULT, BE COMPATIBLE OR WORK WITH ANY SOFTWARE, SYSTEM, OR OTHER SERVICES, OR BE SECURE, ACCURATE, COMPLETE, FREE OF HARMFUL CODE, OR ERROR FREE.

10. INDEMNIFICATION. 

    (a) Genote Indemnification.

    (i) Genote shall indemnify, defend, and hold harmless Customer from and against any and all losses, damages, liabilities, costs finally awarded including reasonable attorneys’ fees (“Losses”) incurred by Customer resulting from any third-party claim, suit, action, or proceeding (“Third-Party Claim”) that the Services, or any use of the Services in accordance with this Agreement, infringes or misappropriates such third party’s intellectual property rights, provided that Customer promptly notifies Genote in writing of the claim, cooperates with Genote, and allows Genote sole authority to control the defense and settlement of such claim.  

    (ii) If a Third-Party Claim is made or appears possible, Customer agrees to permit Genote, at Genote’s sole discretion, to (A) modify or replace the Services, or component or part thereof, to make it non-infringing, or (B) obtain the right for Customer to continue use. If Genote determines that neither alternative is reasonably available, Genote may terminate this Agreement, in its entirety or with respect to the affected component or part, effective immediately on written notice to Customer.

    (iii) This Section 10(a) will not apply to the extent that the alleged infringement arises from: (A) use of the Services in combination with data, software, hardware, equipment, or technology not provided by Genote or authorized by Genote in writing; (B) modifications to the Services not made by Genote; or (C) Third-Party Products or Customer Data.

    (b) Customer Indemnification. Customer shall indemnify, defend, and hold harmless Genote and its officers, directors,  employees, agents, contractors, permitted successors, and assigns from and against any and all Losses incurred by Genote resulting from a Third-Party Claim to the extent such Losses allegedly arise from or result from (i) Customer Data, or any use of  Customer Data that infringes or misappropriates such third party's intellectual property rights; (ii) any  breach of any representation, warranty, covenant or obligation under this Agreement; and (iii) any gross negligence or willful misconduct in connection with the performance or non-performance of Customer’s obligations under the Agreement.   Customer shall not settle any Third-Party Claim against Genote unless Genote consents to such settlement, and that Genote will have the right, at its option, to defend itself against any such Third-Party Claim or to participate in the defense thereof by counsel of its own choice. 

    (c) Sole Remedy. THIS SECTION 10 SETS FORTH CUSTOMER’S SOLE REMEDIES AND GENOTE’ SOLE LIABILITY AND OBLIGATION FOR ANY ACTUAL, THREATENED, OR ALLEGED THIRD PARTY CLAIMS  THE SERVICES INFRINGE, MISAPPROPRIATE, OR OTHERWISE VIOLATE ANY INTELLECTUAL PROPERTY RIGHTS OF ANY THIRD PARTY. 

11. LIMITATIONS OF LIABILITY. IN NO EVENT WILL EITHER PARTY BE LIABLE UNDER OR IN CONNECTION WITH THIS AGREEMENT UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE, FOR ANY: (a) CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, ENHANCED, OR PUNITIVE DAMAGES; (b) INCREASED COSTS, DIMINUTION IN VALUE OR LOST BUSINESS, PRODUCTION, REVENUES, OR PROFITS; (c) LOSS OF GOODWILL OR REPUTATION; (d) USE, INABILITY TO USE, LOSS, INTERRUPTION, DELAY, OR RECOVERY OF ANY DATA, OR BREACH OF CUSTOMER DATA OR SYSTEM SECURITY; OR (e) COST OF REPLACEMENT GOODS OR SERVICES, IN EACH CASE REGARDLESS OF WHETHER  EITHER PARTY WAS ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES OR SUCH LOSSES OR DAMAGES WERE OTHERWISE FORESEEABLE. IN NO EVENT WILL  AGGREGATE LIABILITY OF EITHER PARTY ARISING OUT OF OR RELATED TO THIS AGREEMENT UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE EXCEED THE TOTAL AMOUNTS PAID TO GENOTE UNDER THIS AGREEMENT IN THE TWELVE MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO THE CLAIM. 

12. TERM AND TERMINATION

    (a) Term.  This Agreement commences on the Effective Date and will continue until all subscriptions as specified in the applicable Order Form(s) have expired or terminated (the “Initial Term”).  Unless otherwise specified in the Order Form, subscriptions will automatically renew for additional one-year terms (each a “Renewal Term”) unless either Party gives the other Party notice of non-renewal at least thirty (30) days prior to the expiration of the then-current term (the Initial Term and Renewal Term(s) are collectively referred to herein as the “Term”). 

    (b) Termination. In addition to any other express termination right set forth in this Agreement: 

    (i) Genote may terminate this Agreement, effective on written notice to Customer, if Customer fails to pay any amount when due hereunder, and such failure continues more than thirty days after Genote's delivery of written notice thereof; 

    (ii) either Party may terminate this Agreement, effective on written notice to the other Party, if the other Party breaches this Agreement, and such breach: (A) is incapable of cure; or (B) being capable of cure, remains uncured 30 days after the non-breaching Party provides the breaching Party with written notice of such breach; or 

    (iii) either Party may terminate this Agreement, effective immediately upon written notice to the other Party, if the other Party: (A) becomes insolvent or is generally unable to pay, or fails to pay, its debts as they become due; (B) files or has filed against it, a petition for voluntary or involuntary bankruptcy or otherwise becomes subject, voluntarily or involuntarily, to any proceeding under any domestic or foreign bankruptcy or insolvency law; (C) makes or seeks to make a general assignment for the benefit of its creditors; or (D) applies for or has appointed a receiver, trustee, custodian, or similar agent appointed by any court of competent jurisdiction to take charge of or sell any material portion of its property or business.

    (c) Effect of Expiration or Termination. Upon expiration or earlier termination of this Agreement, Customer shall immediately discontinue use of the Genote IP and, without limiting Customer's obligations under Section 6, Customer shall delete, destroy, or return all copies of the Genote IP and certify in writing to the Genote that the Genote IP has been deleted or destroyed. No expiration or termination will affect Customer's obligation to pay all Fees that may have become due before such expiration or termination or entitle Customer to any refund; 

    (d) Survival. This Section 12(d) and Sections 1, 5, 6, 7, 9, 10, 11 and 13 survive any termination or expiration of this Agreement. No other provisions of this Agreement survive the expiration or earlier termination of this Agreement.

13. MISCELLANEOUS. 

    (a) Entire Agreement. This Agreement, together with any other documents incorporated herein by reference and all related Exhibits, constitutes the sole and entire agreement of the Parties with respect to the subject matter of this Agreement and supersedes all prior and contemporaneous understandings, agreements, and representations and warranties, both written and oral, with respect to such subject matter. No amendment to or modification of this Agreement is effective unless it is in writing and signed by an authorized representative of each Party.  Failure by either Party to enforce any term of this Agreement will not be deemed a waiver of future enforcement of that or any other term in this Agreement or any other agreement that may be in place between the Parties.  In the event of any conflict or inconsistency among the following documents, the order of precedence shall be: (1) the applicable Order Form, (2) any Exhibit, schedule or addendum to this Agreement, (3) this Agreement, and (4) the Documentation.

    (b) Compliance With Laws.  Notwithstanding anything contained in this Agreement to the contrary, the obligations of the Parties with respect to the consummation of the transactions contemplated by this Agreement shall be subject to all laws, present and future, of any government having jurisdiction over the Parties and this transaction, and to Order Forms, regulations, directions or requests of any such government; 

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

    (d) Force Majeure. In no event shall either Party be liable to the other Party, or be deemed to have breached this Agreement, for any failure or delay in performing its obligations under this Agreement (except for any obligations to make payments), if and to the extent such failure or delay is caused by any circumstances beyond such Party's reasonable control, including but not limited to acts of God, flood, fire, earthquake, explosion, war, terrorism, invasion, riot or other civil unrest, strikes, labor stoppages or slowdowns or other industrial disturbances, or passage of law or any action taken by a governmental or public authority, including imposing an embargo.

    (e) Severability. If any provision of this Agreement is found to be invalid or unenforceable, then the remainder of this Agreement will have full force and effect, and the invalid provision will be modified, or partially enforced, to the maximum extent permitted to effectuate the original objective 

    (f) Disputes; Governing Law; Submission to Jurisdiction. 

    (i) The Parties shall resolve any dispute, controversy, or claim arising out of or relating to this Agreement, or the breach, termination or invalidity hereof (each, a “Dispute”) under this Section 13(g).  The procedures set forth herein shall be the exclusive mechanism for resolving any Dispute that may arise from time to time.  A party shall send written notice to the other party of any Dispute ("Dispute Notice").  The Parties shall first attempt in good faith to resolve any Dispute after sending a Dispute Notice by negotiation and consultation between themselves.  If the Parties cannot timely resolve the Dispute through negotiation, the Parties will try in good faith to settle the Dispute by mediation before a mutually agreed mediator in Salt Lake City, Utah.  

    (ii)This Agreement will be interpreted, construed, and enforced in all respects in accordance with the laws of the State of Utah, without reference to its choice of law principles to the contrary.  Neither Party will commence or prosecute any action, suit, proceeding or claim arising under or by reason of this Agreement other than in the state or federal courts located in Utah.  Each Party irrevocably consents to the jurisdiction and venue of the courts identified in the preceding sentence in connection with any action, suit, proceeding, or claim arising under or by reason of this Agreement.

    (g) Assignment. Neither Party may assign any of its rights or obligations hereunder, whether by operation of law or otherwise, without the other Party’s prior written consent (not to be unreasonably withheld); provided, however, either Party may assign this Agreement in its entirety (including all Order Form Forms), without the other Party’s consent in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets.  Any purported assignment or delegation in violation of this Section will be null and void. No assignment or delegation will relieve the assigning or delegating Party of any of its obligations hereunder. This Agreement is binding upon and inures to the benefit of the Parties and their respective permitted successors and assigns.

    (h) Export Regulation. Customer shall comply with all applicable federal laws, regulations, and rules, and complete all required undertakings (including obtaining any necessary export license or other governmental approval), that prohibit or restrict the export or re-export of the Services or any Customer Data outside the U.S. 

    (i) Equitable Relief. Each Party acknowledges and agrees that a breach or threatened breach by such Party of any of its obligations under Section 6 or, in the case of Customer, Section 4(c), would cause the other Party irreparable harm for which monetary damages would not be an adequate remedy and agrees that, in the event of such breach or threatened breach, the other Party will be entitled to equitable relief, including an injunction, specific performance, and any other relief that may be available from any court, without any requirement to post a bond or other security, or to prove actual damages or that monetary damages are not an adequate remedy. Such remedies are not exclusive and are in addition to all other remedies that may be available at law, in equity, or otherwise.