Software End User License Agreement

 

This Software End User License Agreement, including the Order Form which by this reference is incorporated herein (this “Agreement”) is a binding agreement by and between Health LX, Inc., a Wisconsin corporation, whose registered office address is 1350 14th Ave., Suite 1, Grafton, WI 53024 (“HealthLX”) and the person or entity identified on the Order Form as the licensee of the HealthLX Software (“Customer”) and is entered into and effective as of the date of Customer’s accepting this Agreement  (the “Effective Date”).

HEALTHLX PROVIDES THE HEALTHLX SOFTWARE SOLELY ON THE TERMS AND CONDITIONS SET FORTH IN THIS AGREEMENT AND ON THE CONDITION THAT CUSTOMER ACCEPTS AND COMPLIES WITH THEM. BY DOWNLOADING THE SOFTWARE AND CHECKING THE "ACCEPT" BOX ON THE ORDER FORM, YOU (A) ACCEPT THIS AGREEMENT AND AGREE THAT CUSTOMER IS LEGALLY BOUND BY ITS TERMS; AND (B) REPRESENT AND WARRANT THAT: (I) YOU ARE OF LEGAL AGE TO ENTER INTO A BINDING AGREEMENT; AND (II) IF CUSTOMER IS A CORPORATION, GOVERNMENTAL ORGANIZATION, OR OTHER LEGAL ENTITY, YOU HAVE THE RIGHT, POWER, AND AUTHORITY TO ENTER INTO THIS AGREEMENT ON BEHALF OF CUSTOMER AND BIND CUSTOMER TO ITS TERMS. IF CUSTOMER DOES NOT AGREE TO THE TERMS OF THIS AGREEMENT, HEALTHLX WILL NOT AND DOES NOT LICENSE THE HEALTHLX SOFTWARE TO CUSTOMER AND YOU MUST NOT DOWNLOAD OR INSTALL THE HEALTHLX SOFTWARE OR DOCUMENTATION.

NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT OR YOUR OR CUSTOMER’S ACCEPTANCE OF THE TERMS AND CONDITIONS OF THIS AGREEMENT, NO LICENSE IS GRANTED (WHETHER EXPRESSLY, BY IMPLICATION, OR OTHERWISE) UNDER THIS AGREEMENT, AND THIS AGREEMENT EXPRESSLY EXCLUDES ANY RIGHT, CONCERNING ANY HEALTHLX SOFTWARE THAT CUSTOMER DID NOT ACQUIRE LAWFULLY OR THAT IS NOT A LEGITIMATE, AUTHORIZED COPY OF HEALTHLX’S SOFTWARE.

1. Definitions.

 

The following capitalized terms shall have the meaning set forth below. Other defined terms and phrases will have the meanings given to them in the text of this Agreement.

 

“Computational Objects” means blocks of computer code written in Java Script and other programming languages, which may be provided as part of the HealthLX Software.

“Design Components” means the components of the HealthLX Software that enable users to create Generated Code Designs which when applied to the Computational Objects result in the output of Generated Code, and more generally allow users to interface with the HealthLX Software to perform and execute various functions.

“Documentation” means the documentation provided with the HealthLX Software to Customer hereunder, together with any and all new releases, corrections, updates and applicable training materials furnished by HealthLX to Customer under this Agreement.

“Extended Applications” means application software other than HealthLX Software either licensed to Customer under this Agreement or by separate agreement with a third party.

“Generated Code” means an independently executable program consisting of Computational Objects configured to implement a Generated Code Design.

“Generated Code Design” means a specific sequencing of Computational Objects created using the Design Components of the HealthLX Software.

“HealthLX Software” means the object code version of the HealthLX proprietary software, as indicated on the applicable Order Form, along with any updates thereto provided by HealthLX to Customer hereunder, and including, without limitation, any Design Components, Computational Objects and Generated Code.

“License” means a license granted under Section 2.1.

“Open Source Software” means individual software components that are provided with the HealthLX Software, for which the source code is made generally available, and that are licensed under the terms of various published open source software license agreements or copyright notices accompanying such software components. Open Source Software includes any software that is subject to: the GNU General Public License, GNU Library General Public License, Eclipse Public License, BSD Licenses, MIT License, Mozilla Public License, GNU General Public License, Apache License 2.0, or any license listed on www.opensource.org/licenses

“Order Form” means a HealthLX order form, pursuant to which Customer may order the HealthLX Software from HealthLX.

“Person” means an individual, corporation, partnership, joint venture, limited liability company, governmental authority, unincorporated organization, trust, association, or other entity.

“Software Subscription” means Customer’s right to use the applicable HealthLX Software, subject to the License type restrictions provided for in this Agreement.

“Software Subscription Term” means the period of time for which a Software Subscription is valid, as set forth in the applicable Order Form. 

2.         Software License, Delivery, Acceptance and Restrictions.

 

2.1       License Grants. Subject to and conditioned upon Customer’s strict compliance with all terms and conditions set forth in this Agreement, HealthLX hereby grants to Customer, solely for Customer’s internal business operations, a limited, non-exclusive, non-transferable, non-sublicensable right and license during the Software Subscription Term to use the HealthLX Software and Documentation. This license grants Customer the right, exercisable solely by and through Customer’s authorized users, to:

(a)        Use the HealthLX Software during the Software Subscription Term, subject to the applicable License type restrictions (as specified on an Order Form and this Agreement);

(b)       Use, reproduce and distribute internally a reasonable number of copies of the Documentation, provided that Customer must include on such copies all HealthLX trademarks, trade names, logos and notices present on the Documentation as originally provided by HealthLX;

(c)        Permit third party contractors performing services on Customer’s behalf to use the HealthLX Software and Documentation in accordance with the terms and conditions of this Agreement provided that; (i) such use must be solely for the benefit of Customer and (ii) Customer shall be responsible for all acts and omissions of such contractors; and

(d)       Make a reasonable number of copies of the HealthLX Software for backup and archival purposes.

2.2       Reservation of Rights. HealthLX owns all right title and interest in and to the HealthLX Software and any derivative works thereof, and no other license to the HealthLX Software is granted to Customer by implication, estoppel or otherwise. 

2.3 Use Restrictions. Customer shall not, and shall require its authorized users not to, directly or indirectly:

 

(a)        use (including make any copies of) the HealthLX Software or Documentation beyond the scope of the License granted under Section 2.1;

 

(b)       provide any other Person, including any subcontractor, independent contractor, affiliate, or service provider of Customer, with access to or use of the HealthLX Software or Documentation;

 

(c)        modify, translate, adapt, or otherwise create derivative works or improvements, whether or not patentable, of the HealthLX Software or Documentation or any part thereof;

 

(d)       combine the HealthLX Software or any part thereof with, or incorporate the HealthLX Software or any part thereof in, any other programs;

 

(e)        reverse engineer, disassemble, decompile, decode, or otherwise attempt to derive or gain access to the source code of the HealthLX Software or any part thereof;

 

(f)        remove, delete, alter, or obscure any trademarks or any copyright, trademark, patent, or other intellectual property or proprietary rights notices provided on or with the HealthLX Software or Documentation, including any copy thereof;

 

(g)       except as express set forth in Section 2.1(d), copy the HealthLX Software or Documentation, in whole or in part;

 

(h)       rent, lease, lend, sell, sublicense, assign, distribute, publish, transfer, or otherwise make available the HealthLX Software, or any features or functionality of the HealthLX Software, to any third party for any reason, whether or not over a network or on a hosted basis, including in connection with the internet or any web hosting, wide area network (WAN), virtual private network (VPN), virtualization, time-sharing, service bureau, software as a service, cloud, or other technology or service;

 

(i)        use the HealthLX Software or Documentation in, or in association with, the design, construction, maintenance, or operation of any hazardous environments or systems, including:

 

(i)        power generation systems;

(ii)       aircraft navigation or communication systems, air traffic control systems, or any other transport management systems;

(iii)      safety-critical applications, including medical or life-support systems, vehicle operation applications, or any police, fire, or other safety response systems; and

(iv)      military or aerospace applications, weapons systems, or environments;

 

(j)        use the HealthLX Software or Documentation in violation of any law, regulation, or rule; 

 

(k)       use the HealthLX Software or Documentation for purposes of competitive analysis of the HealthLX Software, the development of a competing software product or service, or any other purpose that is to the HealthLX’s commercial disadvantage; 

 

(l)        attempt to circumvent, disable or defeat the limitations on Customer’s use of the HealthLX Software; 

 

(m)      use the HealthLX Software for providing time-sharing services, any software-as-a-service offering, service bureau services or as part of an application services provider or as a service offering; or

 

(n)       make available to any third party any analysis of the results of operation of the HealthLX Software, including benchmarking results, without the prior written consent of HealthLX.

2.4       Delivery. The HealthLX Software is only available electronically via download and will not be available in any other format. HealthLX Software shall be deemed delivered to Customer upon HealthLX making the HealthLX Software available to Customer. 

2.5       Protection Against Unauthorized Use. Customer shall promptly notify HealthLX of any unauthorized use, reproduction or distribution of the HealthLX Software or Documentation of which it becomes aware. In the event of any unauthorized use, reproduction or distribution by any of Customer’s employees, agents or representatives, Customer shall use commercially reasonable efforts to terminate any such unauthorized use and to retrieve any unauthorized copy of the HealthLX Software or Documentation in the possession or control of the Person engaging in such unauthorized use. HealthLX may, at its option and expense, participate in any such proceeding and, in such an event, Customer shall provide such authority, information and assistance related to such proceeding as HealthLX may reasonably request.

2.6       Extended Applications.  Customer understands and acknowledges that the HealthLX Software requires certain Extended Applications to be installed with it in order to operate.  The Extended Applications necessary for the HealthLX Software to function are referenced in the applicable Order Form and will be incorporated herein.  The Extended Applications may require the Customer to execute a license agreement or other form of click wrap agreement with the owner of the Extended Applications and, in some instances Extended Applications are Open Source Software.  

2.7       Open Source Notices. Certain components of the Software may be subject to open source software licenses (“Open Source Components”), which means any software licenses approved as open source licenses by the Open Source Initiative or any substantially similar licenses, including but not limited to any license that, as a condition of distribution of the software licensed under such license, requires that the distributor make the software available in source code format. [The Software documentation includes copies of the licenses applicable to the Open-Source Components / Please visit http://healthlx.com/ for a list of applicable Open Source Software included in this Software from time to time, and the applicable terms and conditions governing its use.] Such terms and conditions may be changed by the applicable third party at any time without liability to you. To the extent required by the licenses covering Open Source Components, the terms of such licenses will apply in lieu of the terms of this Agreement. To the extent the terms of the licenses applicable to Open Source Components prohibit any of the restrictions in this Agreement with respect to such Open Source Components, such restrictions will not apply to such Open Source Component. To the extent the terms of the licenses applicable to Open Source Components require HealthLX to make an offer to provide source code in connection with the Software, such offer is hereby made, and you may exercise it by contacting support@healthlx.com.

3.         Term and Termination.

 

3.1       Term. This Agreement and the License granted hereunder shall begin on the Effective Date and remain in effect until terminated as set forth herein.

3.2       Termination; Post Termination. 

(a)        Customer may terminate this Agreement by ceasing to use and destroying all copies of the HealthLX Software and Documentation; 

(b)       HealthLX may terminate this Agreement, effective upon written notice to Customer, if Customer, breaches this Agreement and such breach: (i) is incapable of cure; or (ii) being capable of cure, remains uncured 30 days after HealthLX provides written notice thereof; 

(c)        HealthLX may terminate this Agreement for any reason or no reason, by providing 90 days’ notice to Customer, which termination will be effective on the 90th day after the date on which the notice is received unless a later date is set out in the notice; and

(d)       HealthLx may terminate this Agreement, effective immediately, if Customer files, or has filed against it, a petition for voluntary or involuntary bankruptcy or pursuant to any other insolvency law, makes or seeks to make a general assignment for the benefit of its creditors or applies for, or consents to, the appointment of a trustee, receiver, or custodian for a substantial part of its property.

Upon expiration or earlier termination of this Agreement, the license granted hereunder shall also terminate, and Customer shall cease using and destroy all copies of the HealthLX Software and Documentation (and certify to HealthLX in writing the fact of such destruction) or return to HealthLX, all copies of the HealthLX Software and Documentation in Customer’s possession or under Customer’s control. No expiration or termination shall affect Customer’s obligation to pay all fees that may have become due before such expiration or termination, or entitle Customer to any refund.

3.3       Survival. Any terms of this Agreement that would, by their nature, survive the Software Subscription Term will survive the Software Subscription Term indefinitely.

4.         Confidentiality.

 

4.1       Confidential Information. “Confidential Information” means, without limitation, all non-public, confidential, secret, or proprietary information or materials provided by one party  and any information which a reasonable person would believe to be confidential, including but not limited to the HealthLX Software, Documentation, employee and customer lists, customer profiles, project plans, design documents, product strategies and pricing data, research, advertising plans, leads and sources of supply, development activities, design and coding, interfaces with HealthLX Software and other information of the parties which by its nature can be reasonably expected to be proprietary and confidential, whether it is presented in oral, printed, written, graphic or photographic or other form (including information received, stored or transmitted electronically) even though specific designation as Confidential Information has not been made.

4.2       Non-use and Non-disclosure. The parties will, during the term of this Agreement and for five (5) years after the termination or expiration of this Agreement, keep in trust and confidence all Confidential Information of the other party and shall not use such Confidential Information other than as necessary to carry out its duties under this Agreement, nor shall either party disclose any such Confidential Information to third parties without the other party’s prior written consent. The party receiving Confidential Information from the other party (the “Recipient”) will use the same degree of care as it uses to protect its own confidential information of a similar nature, but no less than reasonable care, to prevent the unauthorized use, dissemination or publication of the Confidential Information.  Notwithstanding the foregoing and with respect to Confidential Information that constitutes a trade secret under the Wisconsin Uniform Trade Secrets Act, Wis. Stat. § 134.90, or the Defend Trade Secrets Act, 18 U.S.C. § 1836, whether or not the information or any document or file containing that information is marked as “Confidential,” such rights and obligations hereunder will survive such termination or expiration of this Agreement indefinitely until such Confidential Information loses its trade secret protection other than due to an act or omission of Recipient or its employees, contractors, or representatives. Recipient will be responsible for any breach of this Section 4 caused by its employees, contractors, or representatives.  Recipient will promptly notify the other party upon discovery of any unauthorized use or disclosure of the Confidential Information, will take reasonable steps to regain possession of the Confidential Information, and will take reasonable steps to prevent further unauthorized actions or other breach of this Section 4.  

4.3       Non-Applicability. The obligations of confidentiality shall not apply to information which (i) has entered the public domain except where such entry is the result of a party’s breach of this Agreement; (ii) prior to disclosure hereunder was already in the receiving party’s possession without restriction; (iii) subsequent to disclosure hereunder is obtained by the receiving party on a non-confidential basis from a third party who has the right to disclose such information; or (iv) was developed by the receiving party without use of the Confidential Information.

4.4       Disclosure Required by Law. Notwithstanding anything to the contrary herein, each party may comply with an order from a court or other governmental body of competent jurisdiction and disclose the other party’s Confidential Information in compliance with that order only if such party: (i) unless prohibited by law, gives the other party prior notice to such disclosure if the time between that order and such disclosure reasonably permits or, if time does not permit, gives the other party notice of such disclosure promptly after complying with that order and (ii) fully cooperates with the other party, at the other party’s cost and expense, in seeking a protective order, confidential treatment, or taking other measures to oppose or limit such disclosure. Each party must not release any more of the other party’s Confidential Information than is reasonably necessary to comply with an applicable order.

5.         Indemnification. 

 

Customer agrees to defend HealthLX, its parent, subsidiaries, affiliates and their respective successors and assigns, officers, directors, members, managers, employees, agents, licensors, representatives, advertisers, business and promotional partners, operational service providers, suppliers, resellers and contractors (the “HealthLX Indemnified Parties”) against any and all claims, demands, or actions and indemnify and hold the HealthLX Indemnified Parties harmless from and against any and all losses, damages, costs and expenses (including reasonable attorneys’ fees), resulting from any breach or violation of this Agreement or any third-party Open Source Components; infringement, misappropriation or any violation of the rights of any other party; violation or noncompliance with any law or regulation; the breach or violation of any term or condition of any other agreement you have with HealthLX including any Order Form; or any use, alteration or export of the Software or otherwise in connection with this Agreement. 

6.         No Warranty. 

 

THE DOCUMENTATION AND THE HEALTHLX SOFTWARE ARE PROVIDED TO CUSTOMER “AS IS” AND WITH ALL FAULTS AND DEFECTS WITHOUT WARRANTY OF ANY KIND, AND HEALTHLX AND ITS LICENSORS MAKE NO WARRANTIES WHETHER EXPRESSED, IMPLIED OR STATUTORY REGARDING OR RELATING TO THE HEALTHLX SOFTWARE, DOCUMENTATION, OR MATERIALS SERVICES FURNISHED OR PROVIDED TO CUSTOMER UNDER THIS AGREEMENT. TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW. HEALTHLX AND ITS LICENSORS SPECIFICALLY DISCLAIM ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT, AND WARRANTIES THAT MAY ARISE OUT OF COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE, OR TRADE PRACTICE. WITH RESPECT TO THE HEALTHLX SOFTWARE, AND DOCUMENTATION PROVIDED BY HEALTHLX HEREUNDER, AND WITH RESPECT TO THE USE OF THE FOREGOING. WITHOUT LIMITATION TO THE FOREGOING, HEALTHLX PROVIDES NO WARRANTY OR UNDERTAKING, AND MAKES NO REPRESENTATION OF ANY KIND THAT THE HEALTHLX SOFTWARE, DOCUMENTATION, OR OTHERWISE WILL MEET THE CUSTOMER’S REQUIREMENTS, ACHIEVE ANY INTENDED RESULTS, BE COMPATIBLE, OR WORK WITH ANY OTHER SOFTWARE, APPLICATIONS, SYSTEMS, OR SERVICES, OPERATE WITHOUT INTERRUPTION, MEET ANY PERFORMANCE OR RELIABILITY STANDARDS OR BE ERROR FREE, OR THAT ANY ERRORS OR DEFECTS CAN OR WILL BE CORRECTED.

7.         Disclaimer of Liability. 

 

CUSTOMER ACKNOWLEDGES THAT THE SOFTWARE IS PROVIDED AT NO-CHARGE, REFLECTING THE ALLOCATION OF RISK SET FORTH IN THIS AGREEMENT AND THAT HEALTHLX WOULD NOT ENTER INTO THIS AGREEMENT OR OFFER THE SOFTWARE AT NO CHARGE WITHOUT THESE LIMITATIONS ON ITS LIABILITY. THEREFORE, HEALTHLX AND ITS LICENSORS SHALL HAVE NO LIABILITY FOR ANY DAMAGES WHATSOEVER. WITHOUT LIMITING THE FOREGOING, IN NO EVENT WILL HEALTHLX OR ITS AFFILIATES, OR ANY OF ITS OR THEIR RESPECTIVE LICENSORS OR SERVICE PROVIDERS, BE LIABLE TO CUSTOMER OR ANY THIRD PARTY FOR ANY USE, INTERRUPTION, DELAY, OR INABILITY TO USE THE SOFTWARE; LOST REVENUES OR PROFITS; DELAYS, INTERRUPTION, OR LOSS OF SERVICES, BUSINESS, OR GOODWILL; LOSS OR CORRUPTION OF DATA; LOSS RESULTING FROM SYSTEM OR SYSTEM SERVICE FAILURE, MALFUNCTION, OR SHUTDOWN; FAILURE TO ACCURATELY TRANSFER, READ, OR TRANSMIT INFORMATION; FAILURE TO UPDATE OR PROVIDE CORRECT INFORMATION; SYSTEM INCOMPATIBILITY OR PROVISION OF INCORRECT COMPATIBILITY INFORMATION; OR BREACHES IN SYSTEM SECURITY; OR FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, OR PUNITIVE DAMAGES, WHETHER ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE AND WHETHER OR NOT HEALTHLX WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. CUSTOMER AGREES THAT THE FOREGOING LIMITATIONS, EXCLUSIONS AND DISCLAIMERS ARE A REASONABLE ALLOCATION OF THE RISK BETWEEN THE PARTIES AND WILL APPLY TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, EVEN IF ANY REMEDY FAILS IN ITS ESSENTIAL PURPOSE. NOTHING IN THIS AGREEMENT LIMITS OR EXCLUDES ANY LIABILITY THAT CANNOT BE LIMITED OR EXCLUDED UNDER APPLICABLE LAW.

8.         Miscellaneous.

 

8.1       Assignment. Customer may not assign this Agreement, in whole or in part, without the prior written consent of HealthLX. Any assignment in violation of this Section 8.1 shall be void and of no effect. Subject to the foregoing, this Agreement is binding upon, inures to the benefit of and is enforceable by the parties and their respective successors and assigns.

8.2       No-Third Party Beneficiaries. Except as provided for in Section 5, 6, and 7, this Agreement is for the sole benefit of the parties hereto and their respective successors and permitted assigns and nothing herein, express or implied, is intended to or shall confer on any other Person any legal or equitable right, benefit, or remedy of any nature whatsoever under or by reason of this Agreement.

8.3       Customer Identification. Customer consents to HealthLX’s identification of Customer as a user of the HealthLX Software on its website, through a press release issued by HealthLX and in other promotional materials. Customer also agrees to cooperate with HealthLX in writing a case study exposing how the HealthLX Software is being used and the benefits the Customer is deriving from this use.

8.4       Export Control. Customer acknowledges that the goods, software and technology acquired from HealthLX are subject to U.S. export control laws and regulations, including but not limited to the International Traffic In Arms Regulations (“ITAR”) (22 C.F.R. Parts 120-130 (2010)); the Export Administration Regulations (“EAR”) (15 C.F.R. Parts 730-774 (2010)); the U.S. antiboycott regulations in the EAR and U.S. Department of the Treasury regulations; the economic sanctions regulations and guidelines of the U.S. Department of the Treasury, Office of Foreign Assets Control, and the USA Patriot Act (Title III of Pub. L. 107-56, signed into law October 26, 2001), as amended.  Customer is now and will remain in the future compliant with all such export control laws and regulations, and will not export, re-export, otherwise transfer any HealthLX goods, software or technology or disclose any HealthLX software or technology to any Person contrary to such laws or regulations.  Customer acknowledges that remote access to HealthLX Software may in certain circumstances be considered a re-export of HealthLX Software, and accordingly, may not be granted in contravention of U.S. export control laws and regulations.

8.5       Attorneys’ Fees. Customer shall pay on demand all of HealthLX’s reasonable attorney fees and other costs incurred by HealthLX to collect any fees or charges or damages due to HealthLX under this Agreement.

8.6       Force Majeure. HealthLX will not be responsible or liable to Customer, or deemed in default or breach hereunder by reason of any failure or delay in the performance of its obligations hereunder where such failure or delay is due to strikes, labor disputes, civil disturbances, riot, rebellion, invasion, epidemic, hostilities, war, pandemic, terrorist attack, embargo, natural disaster, acts of God, flood, fire, sabotage, fluctuations or non-availability of electrical power, heat, light, air conditioning, or Customer equipment, loss and destruction of property, or any other circumstances or causes beyond HealthLX’s reasonable control.

8.7       Governing Law. This Agreement will be governed by the laws of the state of Wisconsin, notwithstanding its conflicts of laws principles. The state and federal courts located in Milwaukee, Wisconsin shall have exclusive jurisdiction over any and all disputes arising out of or in connection with this Agreement. The parties hereby irrevocably waive any and all claims and defenses either might otherwise have in any such action or proceeding in any of such courts based upon any alleged lack of personal jurisdiction, improper venue, forum non conveniens or any similar claim or defense. A breach by either party of Sections 2.1, 2.5, 4 or any other sections related to the confidential information or proprietary information of either party may cause irreparable harm for which the non-breaching party shall be entitled to seek injunctive relief without the requirement of posting a bond or surety. If any provision(s) hereof is held unenforceable, this Agreement will continue without said provision and be interpreted to reflect the original intent of the parties.

8.8       Notices. All notices, requests, consents, claims, demands, waivers, and other communications hereunder shall be in writing and shall be deemed to have been given: (i) when delivered by hand (with written confirmation of receipt); (ii) when received by the addressee if sent by a nationally recognized overnight courier (receipt requested); (iii) on the date sent by facsimile or email (with confirmation of transmission) if sent during normal business hours of the recipient, and on the next business day if sent after normal business hours of the recipient; or (iv) on the third day after the date mailed, by certified or registered mail, return receipt requested, postage prepaid. Such communications must be sent to the respective parties at the addresses set forth on the Order Form (or to such other address as may be designated by a party from time to time in accordance with this Section 8.8).

8.9       Amendment. This Agreement may only be amended, modified, or supplemented by an agreement in writing signed by each party hereto. No waiver by any party of any of the provisions hereof shall be effective unless explicitly set forth in writing and signed by the party so waiving. Except as otherwise set forth in this Agreement, no failure to exercise, or delay in exercising, any right, remedy, power, or privilege arising from this Agreement shall operate or be construed as a waiver thereof; nor shall any single or partial exercise of any right, remedy, power, or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power, or privilege.

8.10     Severability. If any term or provision of this Agreement is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction.

8.11     Entire Agreement. This Agreement, together with the Order Form, all annexes, schedules, and exhibits attached hereto and all other documents that are incorporated by reference herein, constitutes the sole and entire agreement between Customer and HealthLX with respect to the subject matter contained herein, and supersedes all prior and contemporaneous understandings, agreements, representations, and warranties, both written and oral, with respect to such subject matter. The terms of this Agreement shall supersede and control over any conflicting or additional terms and conditions of any purchase order, acknowledgement or confirmation or other document issued by Customer, unless the parties execute a written agreement expressly indicating: (i) that such purchase order shall modify this Agreement; or (ii) that the terms of such purchase order shall supersede and control in the event of any inconsistency. The headings in this Agreement are for reference only and do not affect the interpretation of this Agreement.