Legal & Security RoboVault™ Services Agreement

RoboVault™ Services Agreement

This RoboVault Services Agreement ("Agreement") is made and entered into as of the date of Sponsor's (defined below) assent to its terms in accordance with the obligations set forth below ("Effective Date"), between Advice Analytics, Inc. ("Company"), a Delaware corporation having a principal place of business at 3525 Del Mar Heights Rd #812 San Diego, California 92130 and Sponsor (defined below). This Agreement sets forth the terms pursuant to which Sponsor will be permitted to use the Services under the applicable Order Form (described below). Each Order Form incorporates the then-current version of this Agreement by reference. In the event of a conflict with this Agreement and the applicable Order Form, the terms of the Order Form shall prevail.

IN ACCEPTING THIS AGREEMENT, YOU: (A) AGREE TO THIS AGREEMENT AND THE TERMS OF THE APPLICABLE ORDER FORM ON BEHALF OF THE ORGANIZATION, COMPANY, EMPLOYER, PLAN (DEFINED BELOW) OR OTHER LEGAL ENTITY FOR WHICH YOU ACT ("SPONSOR"); AND (B) REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SPONSOR AND ITS AFFILIATES (DEFINED BELOW) TO ITS TERMS.

1. DEFINITIONS

1.1 "Affiliate" means any corporation, partnership, joint venture, or other entity: (i) as to which a party owns or controls, directly or indirectly, stock or other interest representing more than 50% of the aggregate stock or other interest entitled to vote on general decisions reserved to the stockholders, partners, or other owners of such entity; (ii) if a partnership, as to which a party or another Affiliate is a general partner; or (iii) that a party otherwise is in common control with, controlled by, or controls in matters of management and operations.

1.2 "Documentation" means Company-provided user documentation, in all forms, relating to the Services (e.g., user manuals, on-line help files).

1.3 "ERISA" means the Employee Retirement Income Security Act of 1974, as amended.>

1.4 "Order Form" means a writing between Company and Sponsor expressly referencing this Agreement identifying the Services purchased, the applicable fees and other terms as may be agreed.

1.5 "Plan" means the employee benefit plan as defined in section 3(3) of ERISA and maintained and sponsored by the Sponsor.

1.6 "Policy Documents" means the Technical Support Services, Data Security Addendum, Service Levels and such other terms incorporated herein by reference, and available at www.adviceanalytics.com/legal/.

1.7 "Scope Limitations" means the limitations on Sponsor’s use of the Services, described at www.adviceanalytics.com/legal/.

1.8 "Services" means the specific Company Services for which Sponsor has subscribed, described in the applicable Order Form.

1.9 "Sponsor Systems" means the systems and devices that Sponsor uses to access the Services.

1.10 "Submitted Files" means file content submitted by Sponsor to the Services through the Sponsor Systems.

1.11 "Technical Support Services" means the technical customer support services described at www.adviceanalytics.com/legal/.

2. USE OF THE SERVICES

2.1 Use of the Services. Subject to the terms and conditions of the applicable Order Form, Company grants to Sponsor a limited, worldwide, non-exclusive, non-transferable (except as permitted in Section 11.3) right during the term of the Order Form to use the Services and Documentation solely in connection with Sponsor’s Authorized Users’ (defined below) management and administration of its Plan. Sponsor’s right to use the Services is subject to the Scope Limitations.

2.2 Authorized Users. Use of the Services shall be limited to Sponsor’s employee-personnel responsible for the administration of the Plan on behalf of the Sponsor ("Authorized Users"). The Authorized Users may create other user accounts for the Services for additional Sponsor employee-personnel responsible for the administration of the Plan and non-employee personnel responsible for administration of Sponsor’s Services account. The Authorized User shall be responsible for: (a) identifying and authenticating such additional users; (b) approving access to such users to the Services; and (c) maintaining the confidentiality of all usernames, passwords and user account information. Sponsor shall be responsible for all activities that occur under its users’ usernames, passwords or accounts. Company is not responsible for any harm caused by Sponsor’s users, including individuals who were not authorized to have access to the Services.

2.3 Technical Support Services and Training. For so long as Sponsor is current with its payment of the fees owed to Company, Company will: (a) perform the Technical Support Services during the term of the applicable Order Form; (b) provide Sponsor with its general training on use of the Services, as described at www.adviceanalytics.com/legal/.

2.4 Use Restrictions. Except as otherwise explicitly provided in this Agreement or Order Form or as may be expressly permitted by applicable law, Sponsor will not, and will not permit or authorize third parties to: (a) rent, lease, or otherwise permit third parties to use the Services or Documentation; (b) use the Services to provide Services to third parties, other than Affiliates; (c) transmit viruses, worms, malicious codes or similar through the Services; nor (d) circumvent or disable any security or other technological features or measures of the Services.

2.5 Submitted Files. Submitted Files do not include any data or other information generated by Company through any automated data analysis, processing or other operations of the Services, or aggregated and/or deidentified information related to any usage of the Services. Company may remove or restrict access to Submitted Files, including if Company believes such data may violate applicable law or if a third party brings or threatens legal action against Company. Company may use Submitted Files and other data specific to the Company and Plan only to perform its obligations hereunder. Sponsor represents that it has obtained all necessary permissions or approvals as may be necessary for Sponsor to submit such Submitted Files to Company in connection with the delivery of the Services.

2.6 Analysis and Insights. Nothing under an Order Form shall restrict Company from using and exploiting in full the analyses, insights, learnings, and Services improvements (including improvements to algorithms from machine learning) obtained or resulting from the Services; provided, however, any public disclosure of such analyses, insights and learnings shall be done in such a way that Sponsor is not identifiable.

2.7 Retention. Subject to the storage retention fees described in the applicable Order Form and if such Service is elected by Sponsor, Company will maintain Submitted Files as Company determines in its discretion is necessary to maintain in connection with the Services.

2.8 Service Levels. Service levels for the Services are set forth at www.adviceanalytics.com/legal/.

2.9 Order Form Changes. Sponsor understands and agrees that Company may change the terms of an Order Form, including fees for Services, at any time upon thirty (30) days prior written notice to Sponsor, effective on the renewal period under the applicable Order Form. If Sponsor discontinues using the affected Service(s) before the change becomes effective, it will not be bound by the change.

2.10 Compliance with Laws. Sponsor will use the Services and Documentation in compliance with all applicable laws and regulations, and refrain from any unethical conduct or any other conduct that tends to damage the reputation of Company or the Services.

2.11 Protection against Unauthorized Use. Sponsor will use its best efforts to prevent any unauthorized access or use of the Services and Documentation and immediately notify Company in writing of any unauthorized access or use that comes to Sponsor’s attention. If there is unauthorized access or use by anyone who obtained access to the Services directly or indirectly through Sponsor, Sponsor will take, at its expense, all steps reasonably necessary to terminate the unauthorized access or use. At its expense, Sponsor will cooperate and assist with any actions taken by Company to prevent or terminate unauthorized access or use of the Services or Documentation, and remediation of the event.

2.12 Reservation of Rights. Company grants to Sponsor a limited right to use the Services and Documentation under the applicable Order Form. Sponsor will not have any rights to the Services or Documentation except as expressly granted under an Order Form. Company reserves to itself all rights to the Services and Documentation not expressly granted to Sponsor in accordance with this Agreement and applicable Order Form.

2.13 Data Security. Company’s data security practices are set forth at www.adviceanalytics.com/legal/.

3. ACKNOWLEDGEMENTS

3.1 Sponsor Acknowledgements

(a) Sponsor understands and acknowledges that it is the Plan Administrator of the Plan within the meaning of ERISA section 3(16) (unless another party agrees to serve in this capacity) and is responsible for administering the Plan and carrying out its terms and provisions. Sponsor further understands and acknowledges that it retains complete authority and decision-making responsibility for all aspects of the Plan.

(b) Sponsor understands and acknowledges that it: (i) is independent of and unrelated to Company; (ii) is a fiduciary under the Plan; and (iii) has the authority to act on behalf of the Plan, including the authority to select service providers for the Plan, such as any Plan trustee, recordkeeper, investment manager, investment advisor, auditor, actuary, or other Sponsor consultant, advisor, or other service provider, including Company.

(c) Sponsor agrees that it has reviewed the Services and fees payable to Company and has concluded that the Services are appropriate for the Plan, and the fees are reasonable and in the best interests of the Plan and its participants and beneficiaries.

(d) Sponsor is solely responsible for originating and amending the Plan documents, to the extent necessary, so that the provisions of the Plan are consistent with the Services contemplated under the applicable Order Form.

3.2 Company and Sponsor Acknowledgements

(a) Company and Sponsor understand and acknowledge that Company does not practice law and does not provide legal or tax advice.

(b) Sponsor understands and acknowledges that it is responsible for maintaining the tax-qualified status of the Plan and any associated trust under applicable law, and Company will have no responsibility for any Plan disqualification resulting from operation of the Plan not in accordance with its terms.

(c) The parties hereby agree that Sponsor is solely responsible for its compliance with ERISA and regulations applicable to its Plan, and Sponsor implements any outputs of the Services or recommendations by the Sponsor in its sole discretion and at its own risk.

3.3 Policy Documents. The Policy Documents shall be effective 30 days from Company’s posting of any new versions.

4. FEES AND PAYMENT

4.1 Fees and Payment Terms

(a) Sponsor will pay Company the fees and any other amounts owing under an applicable Order Form, plus any applicable sales, use, excise, or other taxes, as specified in the Order Form. The fees are in some cases available on a tier-based structure. However, where Sponsor’s Plan qualifies for a higher tier, such as where the number of eligible participants increases or where Sponsor must obtain another Plan due to a corporate reorganization or other business demand, Sponsor is subject to the fees of the then-applicable tier rate. Sponsor will reimburse Company for travel expenses reasonably incurred while performing work under an Order Form at locations requested by Sponsor and agreed to by the parties for such work, at the then-current rate. Unless otherwise agreed, Sponsor will pay all amounts due within 30 days of the date of the applicable invoice.

(b) Any amount not paid when due will be subject to finance charges equal to 1.5% of the unpaid balance per month or the highest rate permitted by applicable usury law, whichever is less, determined and compounded daily from the date due until the date paid. Sponsor will reimburse any costs or expenses (including, but not limited to, reasonable attorneys’ fees) incurred by Company to collect any amount that is not paid when due. All amounts payable under an Order Form are denominated in United States dollars, and Sponsor will pay all such amounts in United States dollars.

4.2 Taxes. Other than net income taxes imposed on Company, Sponsor will bear all taxes, duties, and other governmental charges (collectively, "taxes") resulting from an Order Form. Sponsor will pay any additional taxes as are necessary to ensure that the net amounts received by Company after all such taxes are paid are equal to the amounts that Company would have been entitled to in accordance with this Agreement as if the taxes did not exist.

5. TERM AND TERMINATION

5.1 Term. The Services are subject to specific renewal periods specified in the applicable Order Form.

5.2 Termination for Material Breach. If either party fails to perform any of its material obligations under an Order Form, the other party may terminate such Order Form by giving 30 days prior written notice, provided that the matters set forth in such notice are not cured to the other party’s reasonable satisfaction within the 30-day period. Without limiting the foregoing, any failure by Sponsor to timely pay to Company any amounts owing under an Order Form will constitute a material breach.

5.3 Post-Termination Obligations. If an Order Form is terminated for any reason, (a) Sponsor will pay to Company any fees, reimbursable expenses, compensation, or other amounts that have accrued prior to the effective date of the termination, (b) any and all liabilities accrued prior to the effective date of the termination will survive, and (c) Sponsor will provide Company with a written certification signed by an authorized Sponsor representative certifying that all use by Sponsor of the Services and Documentation has been discontinued. The parties agree that Company shall retain a copy of Submitted Files for the period, and subject to the fees, specified in the applicable Order Form.

6. WARRANTIES AND DISCLAIMER

6.1 Mutual Warranties. Each party represents and warrants to the other that: (a) this Agreement, including the appliable Order Form, has been duly executed and delivered and constitutes a valid and binding agreement enforceable against such party in accordance with its terms; (b) no authorization or approval from any third party is required in connection with such party’s execution, delivery, or performance of an Order Form; and (c) the execution, delivery, and performance of an Order Form does not violate the laws of any jurisdiction or the terms or conditions of any other agreement to which it is a party or by which it is otherwise bound.

6.2 Disclaimer. EXCEPT FOR THE EXPRESS REPRESENTATIONS AND WARRANTIES STATED IN THIS SECTION 6, COMPANY MAKES NO ADDITIONAL REPRESENTATION OR WARRANTY OF ANY KIND WHETHER EXPRESS, IMPLIED (EITHER IN FACT OR BY OPERATION OF LAW), OR STATUTORY, AS TO ANY MATTER WHATSOEVER. COMPANY EXPRESSLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUALITY, ACCURACY, TITLE, AND NON-INFRINGEMENT. COMPANY DOES NOT WARRANT AGAINST INTERFERENCE WITH THE ENJOYMENT OF THE SERVICES. COMPANY DOES NOT WARRANT THAT THE SERVICES ARE ERROR-FREE OR THAT OPERATION OF THE SERVICES WILL BE SECURE, UNINTERRUPTED, OR THAT SPONSOR’S USE OF THE SERVICES SHALL RESULT IN ITS COMPLIANCE WITH REGULATORY REQUIREMENTS APPLICABLE TO ITS PLANS. COMPANY EXERCISES NO CONTROL OVER AND EXPRESSLY DISCLAIMS ANY LIABILITY ARISING OUT OF OR BASED UPON SPONSOR’S USE OF THE SERVICES.

7. INTELLECTUAL PROPERTY INFRINGEMENT

7.1 Infringement Defense. Company will defend Sponsor from any actual or threatened third party claim that the Services infringe or misappropriate any intellectual property right of any third party during the term of the applicable Order Form if: (a) Sponsor gives Company prompt written notice of the claim; (b) Company has full and complete control over the defense and settlement of the claim; (c) Sponsor provides assistance in connection with the defense and settlement of the claim as Company may reasonably request; and (d) Sponsor complies with any settlement or court order made in connection with the claim (e.g., relating to the future use of any infringing materials).

7.2 Infringement Indemnification. Company will indemnify Sponsor against: (a) all damages, costs, and attorneys’ fees finally awarded against Sponsor in any proceeding under Section 7.1; (b) all out-of-pocket costs (including reasonable attorneys’ fees) reasonably incurred by Sponsor in connection with the defense of such proceeding (other than attorneys’ fees and costs incurred without Company’s consent after Company has accepted defense of such claim); and (c) if any proceeding arising under Section 7.1 is settled, all amounts paid to any third party as agreed to by Company in settlement of any such claims.

7.3 Mitigation of Infringement Action. If Sponsor’s use of the Services is, or in Company’s reasonable opinion is likely to become, enjoined or materially diminished as a result of a proceeding arising under Section 7.1, then Company will either: (a) procure the continuing right of Sponsor to use the Services; (b) replace or modify the Services in a functionally equivalent manner so that it no longer infringes; or if, despite its commercially reasonable efforts, Company is unable to do either (a) or (b), Company will (c) terminate the licenses with respect to the Services subject to the infringement claim and refund to Sponsor all unused Fees pre-paid by Sponsor.

7.4 Exclusions. Company will have no obligation under this Section 7 for any infringement to the extent that it arises out of or is based upon: (a) the combination, operation, or use of the Services with a third party product or service if such infringement would have been avoided but for such combination, operation, or use; (b) designs, requirements, or specifications for the Services required by or provided by Sponsor, if the alleged infringement would not have occurred but for such designs, requirements, or specifications; (c) use of the Services outside of the scope of the license granted to the Sponsor; (d) Sponsor’s failure to use the latest release of the Services or to comply with instructions provided by Company, if the alleged infringement would not have occurred but for such failure; (e) any modification of the Services not made by Company where such infringement would not have occurred absent such modification; or (f) unauthorized use of the Services. Sponsor will reimburse Company for any costs or damages that result from these actions.

7.5 Exclusive Remedy. This Section 7 states Company's sole and exclusive liability, and Sponsor's sole and exclusive remedy, for the actual or alleged infringement of any third party intellectual property right by the Services.

8. SPONSOR INDEMNIFICATION

8.1 Defense. Sponsor will defend Company from any actual or threatened third party claim arising out of or based upon Sponsor’s use of the Services or Sponsor's breach of any of the provisions under an Order Form. Company will: (a) give Sponsor prompt written notice of the claim; (b) grant Sponsor full and complete control over the defense and settlement of the claim; (c) assist Sponsor with the defense and settlement of the claim as Sponsor may reasonably request and at Sponsor's expense; and (d) comply with any settlement or court order made in connection with the claim.

8.2 Indemnification. Sponsor will indemnify Company against: (a) all damages, costs, and attorneys’ fees finally awarded against Company in any proceeding under Section 8.1; (b) all out-of-pocket costs (including reasonable attorneys' fees) reasonably incurred by Company in connection with the defense of such proceeding (other than attorneys’ fees and costs incurred without Sponsor’s consent after Sponsor has accepted defense of such claim); and (c) if any proceeding arising under Section 8.1 is settled, Sponsor will pay any amounts to any third party agreed to by Sponsor in settlement of any such claims.

9. LIMITATIONS OF LIABILITY

9.1 Disclaimer of Indirect Damages. NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED UNDER AN ORDER FORM, COMPANY WILL NOT, UNDER ANY CIRCUMSTANCES, BE LIABLE TO SPONSOR FOR CONSEQUENTIAL, INCIDENTAL, SPECIAL, OR EXEMPLARY DAMAGES ARISING OUT OF OR RELATED TO AN ORDER FORM, INCLUDING BUT NOT LIMITED TO LOST PROFITS OR LOSS OF BUSINESS, EVEN IF COMPANY IS APPRISED OF THE LIKELIHOOD OF SUCH DAMAGES OCCURRING.

9.2 Cap on Liability. UNDER NO CIRCUMSTANCES WILL COMPANY’S TOTAL LIABILITY OF ALL KINDS ARISING OUT OF OR RELATED TO AN ORDER FORM (INCLUDING BUT NOT LIMITED TO WARRANTY CLAIMS), REGARDLESS OF THE FORUM AND REGARDLESS OF WHETHER ANY ACTION OR CLAIM IS BASED ON CONTRACT, TORT, OR OTHERWISE, EXCEED THE TOTAL AMOUNT PAID BY SPONSOR TO COMPANY DURING THE 12 MONTHS IMMEDIATELY PRECEDING THE CLAIM (DETERMINED AS OF THE DATE OF ANY FINAL JUDGMENT IN AN ACTION).

9.3 Independent Allocations of Risk. EACH PROVISION OF UNDER AN ORDER FORM, THAT PROVIDES FOR A LIMITATION OF LIABILITY, DISCLAIMER OF WARRANTIES, OR EXCLUSION OF DAMAGES IS TO ALLOCATE THE RISKS OF THIS AGREEMENT BETWEEN THE PARTIES. THIS ALLOCATION IS REFLECTED IN THE PRICING OFFERED BY COMPANY TO SPONSOR AND IS AN ESSENTIAL ELEMENT OF THE BASIS OF THE BARGAIN BETWEEN THE PARTIES. EACH OF THESE PROVISIONS IS SEVERABLE AND INDEPENDENT OF ALL OTHER PROVISIONS UNDER AN ORDER FORM. THE LIMITATIONS IN THIS SECTION 9 WILL APPLY NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY IN THIS AGREEMENT.

10. CONFIDENTIALITY

10.1 Definition. "Confidential Information" means any trade secrets or other information of a party, whether of a technical, business, or other nature (including, without limitation, information relating to a party’s technology, software, products, services, designs, methodologies, business plans, finances, marketing plans, customers, prospects, or other affairs), that is disclosed to a party during the term of an Order Form and that such party knows or has reason to know is confidential, proprietary, or trade secret information of the disclosing party. Confidential Information does not include any information that: (a) was known to the receiving party prior to receiving the same from the disclosing party in connection with an Order Form; (b) is independently developed by the receiving party without use of or reference to the Confidential Information of the disclosing party; (c) is acquired by the receiving party from another source without restriction as to use or disclosure; or (d) is or becomes part of the public domain through no fault or action of the receiving party.

10.2 Restricted Use and Nondisclosure. During and after the term an Order Form, each party will: (a) use the other party's Confidential Information solely for the purpose for which it is provided; (b) not disclose the other party’s Confidential Information to a third party unless the third party must access the Confidential Information to perform in accordance with an Order Form, and the third party has executed a written agreement that contains terms that are substantially similar to the terms contained in this Section 10; and (c) maintain the secrecy of, and protect from unauthorized use and disclosure, the other party's Confidential Information to the same extent (but using no less than a reasonable degree of care) that it protects its own Confidential Information of a similar nature.

10.3 Required Disclosure. If either party is required by law to disclose the Confidential Information or the terms of an Order Form, the disclosing party must give prompt written notice of such requirement before such disclosure, to the extent permitted by law, and assist the non-disclosing party in obtaining an order protecting the Confidential Information from public disclosure.

10.4 Return of Materials. Upon the termination or expiration of an Order Form, or upon earlier request, each party will deliver to the other all Confidential Information that it may have in its possession or control. Notwithstanding the foregoing, neither party will be required to return materials that it must retain in order to receive the benefits of an Order Form or properly perform in accordance with the Order Form.

10.5 Feedback. Company may use and exploit in any manner on a worldwide, irrevocable, royalty-free basis any feedback or requests provided by Sponsor.

11. GENERAL

11.1 Relationship. Company will be and act as an independent contractor (and not as the agent or representative of Sponsor) in the performance of an Order Form. An Order Form will not be interpreted or construed as: (a) creating or evidencing any association, joint venture, partnership, fiduciary relationship, or franchise between the parties; (b) imposing any partnership, franchise or fiduciary obligation or liability on either party; or (c) prohibiting or restricting Company’s performance of any services for any third party or the provision of products to any third party.

11.2 Fiduciary Status. Company and Sponsor agree that the Services as described in an Order Form are nondiscretionary and ministerial in nature, and that Company will not engage in actions that could cause Company to be a fiduciary to the Plan solely as a result of providing Services under an Order Form. Company shall not have any discretion with respect to the management or administration of the Plan or with respect to determining or changing the rules or policies pertaining to eligibility or entitlement of any participant or beneficiary in the Plan to benefits under the Plan. All discretion and control with respect to the terms, administration, management or assets of the Plan shall remain with the Sponsor and other named fiduciaries under the Plan. Notwithstanding any other provision of an Order Form to the contrary, neither Company nor its employees, representatives or agents shall be deemed to be the administrator, Sponsor or a fiduciary of the Plan as defined in sections 3(16)(A), 3(16)(B) or 3(21)(A), respectively, of ERISA.

11.3 Assignability. Sponsor may not assign its right, duties, or obligations under an Order Form without prior written notice to the Company, other than in connection with a sale or change of control of Sponsor whether by merger or otherwise, where the applicable Plan is also transferring. If notice is given, the applicable Order Form will bind Sponsor's successors and assigns. Any attempt by Sponsor to transfer its rights, duties, or obligations under an Order Form except as expressly provided in the applicable Order Form is void.

11.4 Subcontractors. Company may utilize a subcontractor or other third party to perform its duties under an Order Form so long as Company remains responsible for all of its obligations under the Order Form.

11.5 Reference. Subject to Section 10 regarding confidentiality, Sponsor will: (a) make one or more representatives reasonably available for reference inquiries from potential Company customers, partners, and investors; (b) permit Company to create and publish a case study describing in general terms the nature of Sponsor's use of the Services; (c) permit Company to issue and publish a press release containing a quotation from a representative of Sponsor announcing that Sponsor has subscribed to use the Services and the general context of the intended use; and (d) allow Sponsor’s name and logo to be posted on Company's web site and in marketing and advertising materials, subject to compliance with Sponsor's brand guidelines or other specifications regarding logo usage.

11.6 Nonsolicitation. During the term of an Order Form and for a period of one year thereafter, Sponsor will not, directly or indirectly, employ or solicit the employment or services of a Company employee or independent contractor without the prior written consent of Company.

11.7 Notices. Any notice required or permitted to be given in accordance with an Order Form will be effective if it is in writing and sent by certified or registered mail, or insured courier, return receipt requested, to the appropriate party at the address set forth above or to such other address as the notifying party has been advised in writing by the other party hereto. Either party may change its address for receipt of notice by notice to the other party in accordance with this Section. Notices are deemed given two business days following the date of mailing or one business day following delivery to a courier.

11.8 Force Majeure. Company will not be liable for, or be considered to be in breach of or default under an Order Form on account of, any delay or failure to perform as required by an Order Form as a result of any cause or condition beyond Company's reasonable control, so long as Company uses all commercially reasonable efforts to avoid or remove such causes of non-performance.

11.9 Governing Law. All terms under an Order Form will be interpreted, construed, and enforced in all respects in accordance with the local laws of the State of California, U.S.A., without reference to its choice of law rules and not including the provisions of the 1980 U.N. Convention on Contracts for the International Sale of Goods. Each party hereby irrevocably consents to the exclusive jurisdiction and venue of the federal, state, and local courts in San Diego County, California, in connection with any action arising out of or in connection with an Order Form.

11.10 Commencing Legal Action. An action for breach of an Order Form or any other action otherwise arising out of an Order Form must be commenced within one year from the date the right, claim, demand, or cause of action first occurs or be barred forever.

11.11 Waiver. The waiver by either party of any breach of any provision of an Order Form does not waive any other breach. The failure of any party to insist on strict performance of any covenant or obligation in accordance with an Order Form will not be a waiver of such party's right to demand strict compliance in the future, nor will the same be construed as a novation of an Order Form.

11.12 No Third-Party Beneficiaries. Company and Sponsor intend that an Order Form shall not benefit, or create any right or cause of action in or on behalf of, any person other than the Sponsor and Company, including any permitted assignees.

11.13 Severability. If any part of an Order Form is found to be illegal, unenforceable, or invalid, the remaining portions of the Order Form will remain in full force and effect. If any material limitation or restriction on the use of the Services under an Order Form is found to be illegal, unenforceable, or invalid, Sponsor's right to use the Services will immediately terminate.

11.14 Counterparts. An Order Form, including this Agreement, may be executed in any number of identical counterparts, notwithstanding that the parties have not signed the same counterpart, with the same effect as if the parties had signed the same document. All counterparts will be construed as and constitute the same agreement.

Entire Agreement. Each Order Form, including this Agreement and all exhibits, is the final and complete expression of the agreement between these parties regarding Sponsor’s use of the Services. Each Order Form supersedes, and the terms of the Order Form govern, all previous oral and written communications regarding these matters, all of which are merged into the applicable Order Form, except that the applicable Order Form does not supersede any prior nondisclosure or comparable agreement between the parties executed prior to the Order Form being executed, nor does it affect the validity of any agreements between the parties relating to professional services relating to the Services that Company may provide. For the avoidance of doubt, any new versions of this Agreement shall be effective as of posting such terms, except for any Order Forms then currently in effect. Upon the renewal any Order Form it shall be made under the then-current version this Agreement at the time of renewal. No employee, agent, or other representative of Company has any authority to bind Company with respect to any statement, representation, warranty, or other expression unless the same is specifically set forth in the applicable Order Form. No usage of trade or other regular practice or method of dealing between the parties will be used to modify, interpret, supplement, or alter the terms of an Order Form. An Order Form may be changed only by a written agreement signed by an authorized agent of the party against whom enforcement is sought. Company will not be bound by, and specifically objects to, any term, condition, or other provision that is different from or in addition to an Order Form (whether or not it would materially alter an Order Form) that is proffered by Sponsor in any receipt, acceptance, confirmation, correspondence, or otherwise, unless Company specifically agrees to such provision in writing and signed by an authorized agent of Company.