These subscription terms (the “Agreement”) governs your and your Users’ (defined below) access to and use of our Subscription Services (as defined below), which are made available to you (“Client”, “You” or “you”) by C8 Health Inc. (“C8 Health,” “we”, “us,” or “our”).
If you are entering into this Agreement on behalf of a legal entity, you represent that you have the authority to bind such entity to this Agreement, in which case the terms “Client” “you” or “your” refers to such entity.
BY ACCESSING AND/OR USING OUR SUBSCRIPTION SERVICES, YOU ACKNOWLEDGE THAT YOU HAVE REVIEWED AND AGREE TO BE LEGALLY BOUND BY THE TERMS AND CONDITIONS OF THIS AGREEMENT. IF YOU DO NOT ACCEPT THE TERMS OF THIS AGREEMENT, OR DO NOT HAVE THE AUTHORITY TO BIND THE ENTITY TO THIS AGREEMENT, YOU AND YOUR USERS MAY NOT ACCESS OR USE OUR SUBSCRIPTION SERVICES.
The parties intending to be legally bound, hereby agree as follows:
1.1 “Applicable Law” means, with respect to any party, any federal, state, or local statute, law, ordinance, rule, administrative interpretation, regulation, order, writ, injunction, directive, judgment, decree, or other requirement of any international, federal, state, or local court, administrative agency, or commission or other governmental or regulatory authority or instrumentality, domestic or foreign, applicable to such party or any of its properties, assets, or business operations.
1.2 “Client Content” means any information, text, graphics, images, documents, policies, procedures, and other materials that you or your Users provide or otherwise upload through the Platform, including any Third-Party Content, and all updates, modifications, improvements, enhancements, adaptations, translations, and derivative works thereof.
1.3 “Client Data” means any data, or other information that you or your Users provide or otherwise upload through the Platform, including without limitation, information about physicians and other health professionals.
1.4 “Documentation” means the standard written materials regarding the Platform or Subscription Services that C8 Health may make available to its customers.
1.5 “Harmful Code” means computer code, programs, or programming devices that are intentionally designed to disrupt, modify, access, delete, damage, deactivate, disable, harm, or otherwise impede in any manner, including aesthetic disruptions or distortions, the operation of the Services or the Platform, or any other associated software, firmware, hardware, computer system, or network (including, without limitation, “Trojan horses,” “viruses,” “worms,” “time bombs,” “time locks,” “devices,” “traps,” “access codes,” or “drop dead” or “trap door” devices) or any other harmful, malicious, or hidden procedures, routines or mechanisms that would cause the Services or the Platform to cease functioning or to damage or corrupt data, storage media, programs, equipment, or communications, or otherwise interfere with the operations of the Subscription Services or Platform.
1.6 “Order Form” means an order form signed by both parties for Client to receive Subscription Services, or purchase certain services from C8 Health. Each Order Form will be non-cancelable and non-refundable, except to the extent expressly provided in this Agreement or such Order Form.
1.7 “Platform” means the C8 Health software and mobile application developed and managed by C8 Health and the related services listed in the applicable Order Form, including any Third-Party Content included therein, and all enhancements, updates, upgrades, modifications or other releases thereof provided to Client, and Documentation.
1.8 “Subscription Services” means the Platform as made available to Client online and managed by C8 Health for use within the scope set in the applicable Order Form, including related services.
1.9 “Third-Party Content” means any information, and other materials owned by a third party.
1.10 “Users” means Your employees, contractors, or agents authorized by You to access and use the Subscription Services pursuant to the terms and conditions of this Agreement; provided, however, that any contractors’ or agents’ access to and use of the Subscription Services will be limited to their provision of services to You.
LICENSE RIGHTS; RESTRICTIONS
2.1 License. C8 Health grants You, subject to full compliance with the terms and conditions set forth herein, a limited, non-exclusive, non-transferable, non-sublicensable, revocable right during the Term as designated in the applicable Order Form, to:
2.1.1 Subscription Services: Access and use the Platform, solely for Your internal use and not for any further commercialization or provision of services which involve the provision of the Platform benefits to any third party, in accordance with Documentation;
2.1.2 Grant Your Users access to the Platform solely as necessary for Your internal business purposes. Access to the Platform by Users is made through authorized email addresses, which You provide to Users.
2.2 Use Restrictions.
Unless otherwise expressly provided herein, you agree that You will not, nor will you authorize any third party to: (a) distribute, license, sublicense, or sell the Platform or Subscription Services to any third party; (b) modify, alter, copy, transfer, emulate or create any derivative works of the Platform, or Subscription Services; (c) reverse engineer, decompile, decode, decrypt, disassemble, or in any way attempt to derive source code, know-how or designs from the Platform, the Subscription Services or any part thereof; (d) remove, alter or obscure any copyright, trademark or other proprietary rights notice, on or in, the Platform or Subscription Services; (e) bundle, integrate, or attempt to integrate with the Platform or Subscription Services, any third-party software technology other than as expressly permitted in writing by C8 Health (including through the Documentation); (f) use the Platform or Subscription Services for any benchmarking or for competing development activities, (g) publish or disclose to any third party any technical features, quality, performance or benchmark test, or comparative analyses relating to the Platform or Subscription Services except for your internal use or as expressly permitted by C8 Health in writing, (h) use the Platform, Subscription Services, or any portion or component thereof in violation of any Applicable Law, (i) introduce, post, or upload to the Subscription Services or Platform any Harmful Code, (j) use the Subscription Services or Platform in connection with service bureau, timeshare, service provider or like activity whereby you operate the Subscription Services or Platform for the benefit of a third party, or (k) circumvent any processes, procedures, or technologies C8 Health has put in place to safeguard the Platform or Subscription Services.
Without derogating from the foregoing, you shall take commercially reasonable precautions to prevent any unauthorized access and/or unauthorized usage of the Platform. You shall be responsible and liable for any act or omission by any of your affiliates, Users or other personnel acting on your behalf and any other person who accesses and/or uses the Platform using any of your Users’ login credentials, as if performed by You.
2.3 Service Changes. C8 Health reserves the right to modify, correct, amend, enhance, improve, or make other changes which do not have a substantial adverse effect on the Platform or Subscription Services without notice, at any time. In the event of a temporary or permanent discontinuation of the Platform or Subscription Services, or in the event of a modification to the Platform or Subscription Service which is reasonably expected to have a material adverse impact on the Services, C8 Health will make reasonable efforts to provide You with reasonable prior written notice in advance. You agree that C8 Health shall not be liable to You or to any third party for any modification, suspension or discontinuance of the Platform or Subscription Services under this section.
2.4 Feedback. You may provide C8 Health with feedback regarding the use, operation, performance, and functionality of the Platform, Subscription Services or any beta features or functionality of the Platform or Subscription Services which are not generally available to C8 Health customers (“Pre-Release Features”), including identifying potential errors and improvements (“Feedback”). You hereby grant C8 Health a perpetual, irrevocable, worldwide, unlimited, sublicensable, fully paid-up and royalty-free right to use the Feedback in any manner.
2.5 Third Party Software. You hereby confirm and acknowledge the utilization of third-party software components in the Subscription Services or Platform including without limitation components licensed under free or open source licenses, and you hereby consent to use of such third party components and that the use of such third party components may be subject to separate terms, licenses and notices which will be made available to you together with the Platform. Without derogating from C8 Health’s limited warranty provided in section 4 below, such third-party components are utilized on an “AS IS” basis without any warranty whatsoever.
2.6 Export Restrictions. You acknowledge that the Platform or Subscription Services may be subject to United States’ export jurisdiction and to any other Applicable Laws concerning the transfer of the Platform or any part thereof across international borders. You will comply with all Applicable Laws that apply to Your use of the Platform or Subscription Services, including United States Export Administration Regulations, as well as end user, end use and destination restrictions which may be issued by the United States and other governments from time to time.
3. TERM AND TERMINATION
3.1 Term. This Agreement is binding upon signing and will continue through the Term of its Order Forms (“Term”), unless earlier terminated pursuant to this Section 3.
3.2 Material Breach. In the event that either party commits a material breach of this Agreement or any Order Form, and such breach remains uncured for thirty (30) days following receipt of written notice from the non-breaching party, the non-breaching party may terminate this Agreement or such Order Form by providing written notice of the breaching party’s failure to cure such breach. If such termination is due to C8 Health’ breach, C8 Health will refund Client any unused, pre-paid fees for the Subscription Services and/or Platform. In the event that C8 Health reasonably believes that You are breaching or have breached of the terms of this Agreement, C8 Health reserves the right to either suspend or terminate Your use of the Subscription Services, Platform or C8 Health’ provision of other products or services.
3.3 Bankruptcy. Either party may, by written notice to the other party, terminate this Agreement or any Order Form in the event such other party terminates or suspends its business, admits in writing to its inability to pay its debts as they mature, makes an assignment for the benefit of creditors, becomes subject to direct control of a trustee, receiver or similar authority, or becomes subject to any other bankruptcy or insolvency proceedings not dismissed within sixty (60) days.
3.4 Upon Termination or Expiration. If the Agreement is terminated or expires, each party will return to the other, or certify in writing the destruction of all Confidential Information (as defined below) or property of the other, provided, however, that neither party has to delete or erase any Confidential Information that has been saved to a back-up file or electronic archiving system in accordance with such party’s ordinary back-up or document retention policies or that is required for litigation, regulatory or corporate records retention reasons. Upon termination of the Agreement or any Order Form (other than for termination due to C8 Health’ breach of the Agreement), the payment obligation for all fees for the full applicable term will be paid to C8 Health at the time of termination of this Agreement or the Order Form. If this Agreement or an Order Form is terminated or expires, all rights granted under the Agreement and that Order Form will terminate and You shall immediately cease any and all use and access to the Subscription Services and Platform.
3.5 Survival. Sections 2.4, 3.4, 3.5, 5 through 9, 12, and any outstanding payment obligations will survive the termination or expiration of this Agreement.
4.1 In consideration for the rights and Subscription Services provided to You hereunder, you shall pay C8 Health the Fees set forth in the applicable Order Form.
4.2 Except to the extent expressly provided in the applicable Order Form, all fees are non-cancelable and non-refundable. All payments are due 30 days from the date of C8 Health’s invoice and will be subject to a late charge of 1.5% monthly or the maximum amount permitted by applicable law, whichever is less.
4.3 All Fees are stated and payable in US Dollars and are exclusive of any applicable taxes such as Sales Tax (State or Federal) or Value Added Tax (VAT). Client will bear and pay all taxes related to or arising from this Agreement, except for those taxes based on C8 Health’s income. Client may not withhold or set off any Fees due to C8 Health.
5. REPRESENTATIONS AND WARRANTIES; DISCLAIMERS
5.1 Mutual Representations and Warranties. Each Party represents and warrants to the other Party that: (i) to the extent it is an entity, it is duly organized, validly existing, and in good standing under its jurisdiction of organization and has the right to enter into this Agreement; (ii) the execution, delivery, and performance of this Agreement and the consummation of the transactions contemplated hereby constitute a valid and binding agreement of such Party; (iii) the individual accepting this Agreement on behalf of a legal entity has the authority to bind such entity to this Agreement; (iv) it has the full power, authority, and right to perform its obligations and grant the rights it grants hereunder; and (v) it will perform its obligations under this Agreement in compliance with all Applicable Laws.
5.2 Additional Representations and Warranties of Client. In addition to the representations and warranties set forth in Section 5.1, Client represents and warrants that: (i) Client has all rights, licenses and permissions necessary for Client to provide C8 Health with and grant C8 Health the rights granted hereunder with respect to Client Data and Client Content, (ii) Client has obtained all necessary and appropriate consents, permissions, and authorizations in accordance with all Applicable Laws with respect to Client Data and Client Content provided hereunder, and (iii) Client and Client’s Users will not include in the Client Data, Client Content or otherwise make available through the Platform or the Subscription Service, any protected/personal health information or any information that is otherwise regulated under HIPAA or other Applicable Law (“PHI”).
5.3 C8 Health Disclaimers. EXCEPT AS EXPRESSLY SET FORTH IN SECTION 5.1, THE PLATFORM,SUBSCRIPTION SERVICES, THEIR COMPONENTS, ANY DOCUMENTATION, AND ANY OTHER MATERALS AND INFORMATION, INCLUDING ANY THIRD-PARTY CONTENT PROVIDED BY C8 HEALTH HEREUNDER ARE PROVIDED “AS IS” AND “AS AVAILABLE,” AND C8 HEALTH AND ITS SUPPLIERS, SERVICE PROVIDERS AND LICENSORS MAKES NO REPRESENTATIONS OR WARRANTIES, ORAL OR WRITTEN, EXPRESS OR IMPLIED WITH RESPECT TO THE SAME OR OTHERWISE IN CONNECTION WITH THIS AGREEMENT, AND C8 HEALTH HEREBY DISCLAIMS ANY AND ALL EXPRESS OR IMPLIED WARRANTIES, INCLUDING WITHOUT LIMITATION, ANY WARRANTIES ARISING FROM COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE, QUALITY OF INFORMATION, QUIET ENJOYMENT OR OTHERWISE, INCLUDING IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, OR NON-INTERFERENCE.
6.2 License to Use Client Data. You hereby grant C8 Health a worldwide, royalty-free, fully paid-up, non-exclusive, non-transferable right and license, with the right to grant sublicenses through multiple tiers to vendors providing services to C8 Health (such as hosting providers) to access, use, execute, store, archive, perform, display, process, modify, distribute and reproduce the Client Data and Client Content during the Term, for the purposes of providing the Subscription Services, support or as otherwise expressly provided in this Agreement and the applicable Order Form.
6.3 Anonymous Cumulative Information. You hereby acknowledge and consent that the Subscription Services or Platform may collect and store certain Client Data and other data and diagnostic information in connection with the routine operation of the Subscription Services and Platform (“Usage Data”). Without derogating from the foregoing, you hereby grant HeadToe a perpetual, irrevocable, non-exclusive, worldwide, royalty-free license to use aggregated Usage Data that has been anonymized and that cannot be used to identify or otherwise understood to be related to an individual or attributed to you or your Users, for the purpose of internal use, research or otherwise improving or enhancing the Subscription Services, the Platform or other services provided by C8 Health.
6.5 Data Security. C8 Health (and third-party hosting and other service providers that C8 Health may engage) will employ commercially reasonable physical, administrative, and technical safeguards to secure the Client Data and Client Content, from unauthorized use or disclosure.
7. PROPRIETARY RIGHTS; CONFIDENTIALITY
7.1 Proprietary Rights. You agree and acknowledge that, as between You and C8 Health, C8 Health is and shall remain the sole and exclusive owner of any and all Intellectual Property rights in or pertaining to the Platform, Subscription Services, Usage Data, and any part thereof, including any modifications, enhancements, improvements, updates and upgrades, and derivative works, thereof. “Intellectual Property” shall mean all inventions, ideas, concepts, analyses, (whether patented, or patentable, or not), methods, methodologies, designs, processes, patents, patent applications, rights associated with works of authorship, including copyrights, copyrights applications, copyrights restrictions, moral rights, any information, ancillary materials, devices, results, know-how, and all rights relating to the protection of trade secrets and confidential information; design rights and industrial property rights; mask works, software, all code including source code, object code, firmware; and any other proprietary rights relating to intangible property. Other than as explicitly stated hereunder, no license, express or implied, in or to the Platform, Subscription Services and Intellectual Property of C8 Health, is granted to You under these terms.
7.2 The terms of this Agreement do not grant You any rights to C8 Health’s trademarks, trade names, design marks or service marks.
7.3 Confidentiality. Each party, on behalf of itself and its agents, employees and representatives (collectively, “Representatives”) shall hold and treat in confidence all confidential and proprietary information it learns regarding the other party’s business and any other confidential and proprietary information disclosed by such other party hereunder (“Confidential Information”). The Subscription Services, Platform, the Documentation and the Usage Data are considered Confidential Information of C8 Health and the Client Data and Client Content are considered Confidential Information of Client. Each party and its Representatives shall utilize the other party’s Confidential Information disclosed hereunder for the sole limited purpose of the Subscription Services in accordance with this Agreement. Without prior written consent from the other party, neither party nor any of its Representatives shall disclose any of the other party’s Confidential Information in any manner whatsoever, in whole or in part, nor use any such Confidential Information other than for the aforementioned purpose, unless compelled by law (and then only to the minimum extent necessary). Each party will at all times remain responsible for any violations of this Agreement by any of its Representatives. If a party receives any legal request for any Confidential Information, such party will provide the other party, without undue delay, a copy of such request, in order to give such other party an opportunity to respond or object before the party that received the request turns over such information. The undertakings of this Section 7.3 shall not apply to information that (i) becomes generally available to the public other than as a result of a disclosure by the receiving party or its Representatives; (ii) was available to the receiving party on a nonconfidential basis prior to its disclosure to the receiving party by the disclosing party as can be evidenced by receiving party’s dated records; (iii) becomes available to the receiving party on a nonconfidential basis from a source other than disclosing party, provided such source was entitled to make the disclosure to the receiving party; or (iv) was independently developed by the receiving party or its employees without any use or reference to such Confidential Information. Each party acknowledges that the other party may be irreparably harmed by any breach of this Section 7.3, and agrees that such other party may seek, in any court of appropriate jurisdiction, an injunction and/or any other equitable relief necessary to prevent or cure any such actual or threatened breach thereof, without the necessity of proving monetary damages or posting a bond or other security. The preceding sentence shall in no way limit any other legal or equitable remedy, including monetary damages, the non-breaching Party would otherwise have under or with regard to this Agreement.
8.1 Indemnification by C8 Health. C8 Health shall indemnify, defend and hold You and your officers, directors, employees and successors and permitted assigns (“Client Indemnified Parties”) harmless from and against any and all liabilities, costs and expenses actually (including reasonable attorneys’ fees) (“Losses”) incurred by any such party in connection with any third-party claim, action, or proceeding (each, a “Claim”) arising alleging that the Platform, the Subscription Services, or any portion thereof, infringes any third party Intellectual Property rights.
8.2 Infringement Claims. Should the Platform, Subscription Services, or any part thereof, become, or in C8 Health’s opinion be likely to become, the subject of any infringement claim as specified above, then C8 Health will, at its own option and expense either: (i) procure the right to continue using the Platform and/or Subscription Services without infringement; (ii) replace or modify the Platform and/or Subscription Services without non-negligibly reducing its functionality, so that it becomes non-infringing; or (iii) if (i) or (ii) cannot be achieved with by using reasonable commercial efforts, C8 Health shall be entitled to terminate your license to use the Platform or Subscription Services immediately upon written notice. This section 8.2 together with the indemnity provided in Section 8.1, states the exclusive remedy of the Client and the entire liability of C8 Health with respect to infringement claims involving the Platform, the Subscription Services or any part or use thereof.
8.3 Exceptions to C8 Health’s Indemnification Obligations. Notwithstanding the foregoing, C8 Health shall have no liability for any claim which results from (a) the use of the Platform or the Subscription Services in violation of any provision of this Agreement, (b) your failure to install changes, revisions or new releases as instructed or provided by C8 Health at no cost, (c) use of a combination of the Platform, the Subscription Services or any part thereof with other products, equipment, or software not provided or approved in writing for such use under the Documentation or by C8 Health, (d) modifications of the Platform or the Subscription Services not made by C8 Health, on C8 Health’s behalf or without C8 Health’s prior written consent, (e) Client Data and/or Client Content, or (f) any updates, enhancements, modifications, adaptations, translations, improvements, and derivative works of Client Content that you or your Users create through the Platform or Subscription Services.
8.4 Indemnification by Client. Client will indemnify, defend and hold C8 Health and its officers, directors, employees and successors and permitted assigns (“C8 Health Indemnified Parties”) harmless from and against any and all Losses incurred by any such party in connection with any Claim arising from: (i) your or your Users breach or violation of this Agreement, including any of your representations and warranties hereunder; (ii) alleging that the use of Client Data and/or Client Content in accordance with this Agreement infringes, violates or misappropriates any third party Intellectual Property rights; (iii) gross negligence or willful misconduct; or (iv) any updates, enhancements, modifications, adaptations, translations, improvements, and derivative works of Client Content that you or your Users create through the Platform or Subscription Services.
8.5 Procedure. The indemnification obligations set forth in this Section 8 are subject to: (i) the indemnified party promptly notifying the indemnifying party in writing of any such claim; (ii) indemnifying party having the ability to assume sole control of the defense and/or settlement of such claim; (iii) the indemnified party furnishing to indemnifying party, on request, all reasonable information available to the indemnified party for such defense; and (iv) the indemnified party not admitting fault with respect to any such claim and/or making any payments or concessions with respect to such claim without the prior written consent of indemnifying party. The indemnifying party shall (i) keep the indemnified party duly informed in connection with the litigation and/or settlement negotiations, and (ii) not execute any settlement covenant that imposes any liability or obligations on the indemnified party without the prior written consent from the indemnified party.
9. LIMITATION OF LIABILITY. IN NO EVENT WILL C8 HEALTH, NOR ITS AFFILIATES, OR THEIR RESPECTIVE DIRECTORS, OFFICERS, SHAREHOLDER, AND EMPLOYEES’ (“C8 HEALTH’S PARTIES”)
AGGREGATE LIABILITY TO YOU, EXCEED THE AMOUNTS PAID BY YOU TO C8 HEALTH UNDER THE APPLICABLE OREDER FORM IN THE 12 MONTHS PRECEDING THE EVENT THAT GAVE RISE TO SUCH LIABILITY. IN NO EVENT WILL C8 HEALTH OR C8 HEALTH PARTIES, HAVE ANY LIABILITY TO YOU FOR ANY INDIRECT, CONSEQUENTIAL, SPECIAL, EXEMPLARY OR INCIDENTAL DAMAGES, INCLUDING WITHOUT LIMITATION DAMAGES FOR LOST PROFITS OR REVENUES, BUSINESS INTERRUPTION, LOSS OF GOODWILL, COMPUTER FAILURE OR MALFUNCTION, LOSS OF DATA OR BUSINESS INFORMATION ARISING FROM THE INSTALLATION, OPERATION, USE OF OR INABILITY TO USE THE SOLUTION, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR IF SUCH POSSIBILITY WAS REASONABLY FORESEEABLE. NO ACTION, REGARDLESS OF FORM, ARISING OUT OF OR RELATING TO THIS AGREEMENT MAY BE BROUGHT AGAINST C8 HEALTH MORE THAN TWELVE (12) MONTHS AFTER THE TERMINATION OR EXPIRATION OF THE APPLICABLE ORDER FORM.
C8 Health will provide maintenance and support as set in the applicable Order Form.
You hereby agree that C8 Health may publicly refer to you and identify you as C8 Health’s client or business partner and use Client’s marks such as name and logo, in its sales presentations, marketing materials and in press releases, and on C8 Health’s website.
In the event any provision or part of the terms of this Agreement is held to be invalid or unenforceable by any court of competent jurisdiction, it shall be amended to the extent required to render it valid, legal and enforceable, or deleted if no such amendment is feasible, and such amendment or deletion shall not affect the enforceability of the other provisions hereof; No waiver of any breach of the terms of this Agreement will be a waiver of any other breach, and no waiver will be effective unless made in writing and signed by an authorized representative of the waiving party. The failure of either party to enforce any rights granted hereunder or to take action against the other party in the event of any breach hereunder shall not be deemed a waiver by that party as to subsequent enforcement of rights or subsequent actions in the event of future breaches. The parties are independent contractors. Neither party will be deemed to be an employee, agent, partner, joint venturer, or legal representative of the other party for any purpose, and neither Party will have any right, power, or authority to obligate the other party. Neither party may assign or otherwise transfer any of its rights or obligations under this Agreement without the prior, written consent of the other party; provided, however, that C8 Health may, upon written notice to you, assign or otherwise transfer this Agreement in connection with a change of control transaction (whether by merger, consolidation, sale of equity interests, sale of all or substantially all assets, or otherwise). Any assignment or other transfer in violation of this Section will be null and void. Subject to the foregoing, this Agreement will be binding upon and inure to the benefit of the parties hereto and their permitted successors and assigns. Neither party will be deemed to be in breach of this Agreement for any failure or delay in performance to the extent caused by reasons beyond its reasonable control, including, but not limited to, acts of God, acts of any governmental body, war, insurrection, sabotage, armed conflict, terrorism, embargo, fire, flood, strike or other labor disturbance, COVID-19, quarantine restrictions, freight embargoes, unavailability of or interruption or delay in telecommunications or third-party services, or virus attacks or hackers (collectively, “Force Majeure Event”). When such Force Majeure Event arises, either party shall notify the other immediately in writing of its failure to perform, describing the cause of failure and how it affects performance, and the anticipated duration of the inability to perform. For the avoidance of doubt, nothing in this Section 11 shall be construed to excuse any payment obligations hereunder. The terms of this Agreement supersede all previous agreements or representations, written or oral, with respect to the subject matter hereof between You and C8 Health. The terms of this Agreement may not be modified or amended except in writing signed by a duly authorized representative of each party. The validity, interpretation, and performance of the terms of this Agreement shall be controlled by and construed under the laws of the State of California, USA as if performed wholly within California and without giving effect to the principles of conflicts of laws. The Parties hereby consent to the exclusive jurisdiction of the courts of California.