TERMS OF SERVICE

(Last Updated October 11, 2022)

Thank you for using Clerk’s (“Clerk,” “we,” “our,” “us”) Call Tracking HQ, Clerk or LandLine platform (the “Platforms”). Clerk values and respects you, and these Terms of Service (the “Terms of Service”) are intended to form the foundation of the governing items with respect to your use of the Platforms. We may update these Terms of Service at any time. By accessing and using Clerk, completing the registration process, or signing up for an account, you are agreeing to these Terms of Service.

1. DEFINITIONS

• “Authorized User” means any of your employees, consultants, contractors or agents authorized by your administrator to access and use the Clerk Service on behalf of your business, in each case subject to such person’s agreement to be bound by the Terms of Service.

• “Front End Code” means our user interface display and usability platform. This includes, but is not limited to, the layout, color scheme, HTML pages and source code, etc.

• “Clerk Materials” means any documentation, user guides or other similar materials provided by Clerk to you in connection with your use of the Clerk Service.

• “Clerk Service” means any of the Clerk set of SaaS solutions that are developed, operated, and maintained by Clerk (and its third-party service providers) and that are subscribed to through a Clerk branded or controlled website (or Clerk partner website) that includes a link to these Terms of Service. The definition of Clerk Service does not include any separate professional Services (as defined below) that may be purchased by you from Clerk.

• “Order Form” means any online or written subscription order form for the Clerk Service or for Services submitted by you either during an online subscription process or separately signed by you and submitted to Clerk, and any future purchase order or order form that makes reference to this Agreement. The Clerk Order form(s) shall be governed by the Terms and Conditions of this Agreement and are incorporated herein by reference.

• “PHI” means: (i) “protected health information” as defined in 45 CFR § 160.103; and (ii) any other patient or health information protected by the Health Insurance Portability and Accountability Act of 1996, as it may be amended from time to time (“HIPAA”), including the regulatory revisions implemented pursuant to the Health Information Technology for Economic and Clinical Health Act (the “HITECH ACT”).

• “Services” means any implementation, training or other professional services provided by Clerk to you pursuant to the terms of an Order Form.

• “Subscription Term” means the use term for the Clerk Service set forth on your Order Form and any additional renewals of such term.

• “Telephone Consumer Protection Act (TCPA), 47 U.S.C. § 227” means the federal statute governing the use of telephone equipment.

• “Third Party Content” means the content, including software code that a Clerk partner or other third party may bundle with the Clerk Service, for a specific market or niche offering.

• “Your Data” means registration information, information concerning your Authorized User(s) and customers and contacts, business, marketing and financial information, and any similar data that you upload to the Clerk Service.

2. TERM & TERMINATION

• Standard Term. Unless a different term is specified in a signed Order Form between you and Clerk, the initial term of your subscription to a Clerk Service will begin on the submission or execution of your Order Form. Clerk offers only an annual subscription plan (collectively the “Subscription Term”) that is automatically renewed on a continual basis. The Subscription Term shall continue until the subscription is terminated as provided for in Section 2.2. The term of this Agreement will automatically terminate when all active Subscription Terms have been terminated.

a. 60-Day Customer Satisfaction Guarantee. You may cancel your annual subscription without penalty within the first sixty (60) days of your first annual subscription period by providing our Quality Control department with express written notice thereof. You may send such notice to support (at) getclerk.com. For the avoidance of doubt, no fees shall be refunded upon any such termination. Failure to terminate your subscription within the aforementioned sixty (60) day Customer Satisfaction Guarantee period shall cause your subscription to continue for its entire annual term, unless it is terminated in accordance with the terms herein.

b. Termination without Cause. As you have signed up for our annual subscription plan, you agree to pay the cumulative monthly subscription fees for the entire annual Term; however, you may prevent the annual subscription plan from automatically renewing for additional one-year terms by giving Clerk advanced written notice not less than sixty (60) days prior to expiration of the then-current annual Subscription Term. Clerk’s termination rights are in addition to any suspension rights it may have under this Agreement or the incorporated Acceptable Use Policy.

c. Termination for Material Breach. In the event it is alleged during an annual Subscription Term that Customer experiences a loss of business critical functionality caused by Clerk more than three (3) times during any rolling twelve (12) month period which causes substantial harm to Customer (“Repeated Severe Issues”) and Clerk is unable to cure such alleged issue(s) within thirty (30) days of Customer’s written notice to Clerk after the third instance, then, Customer may terminate this Agreement and/or annual Subscription Service Order (“the Date of Termination”).

d. Effect of Termination. Upon termination of the Subscription Term other than termination for material breach in section 2(c) above, all Fees (defined in section 10
below) then due and payable to Clerk must be paid in full. Contingent upon its receipt of all such Fees, Clerk will continue to make your Data available for downloading through the termination date. In the event an annual Subscription Term is terminated in accordance with Section 2(c) above, then Customer shall pay for all fees up to the Date of Termination and shall be relieved of its remaining payment obligations for the remainder of the annual Subscription Term.

3. NON-COMPETE and NON-SOLICITATION.

You agree that during the Terms of Service, you and/or your Authorized User(s) may not use any of Clerk’s Confidential Information, data, or other content relating to the Platforms or user accounts in any manner whatsoever other than for purposes of the Subscription Term, and shall not use any such information to compete, directly or indirectly with Clerk, or solicit any competitor of Clerk.

4. INCORPORATION BY REFERENCE.

The following documents are incorporated by reference as though fully included within these Terms of Service. Your acceptance of these Terms of Service constitutes your agreement to follow the following policies and laws.

• Clerk Privacy Policy;

• Clerk Order Form;

• Call Recording Laws and Regulations;

• Clerk Acceptable Use Policy;

• Testimonial Disclaimer Statement; and

• Business Associate Agreement

5. NOTICE TO MINORS.

Clerk aims to fully comply with all federal laws and, thus, at a minimum, you must be at least eighteen (18) years of age to use the Platforms. If you are a minor, you must obtain the consent of your parent or legal guardian to use the Platforms and agree to these Terms of Service. No one under eighteen (18) years of age may provide any personal information, and Clerk does not knowingly collect personal information from children under the age of eighteen (18).

If you are under eighteen (18) years of age, please do not send any information about yourself to us, or to anyone else through the Platforms. Personal information includes, but is not limited to, your name, address, telephone number, or email address. If we learn we have collected any personal information from anyone under the age of eighteen (18), we will immediately delete that information per the requirements of the Children’s Online Privacy Protection Act and any other applicable laws. If you believe we have received information from or about a child under the age of eighteen (18), please contact us at support@getclerk.com with a subject heading Terms of Service.

6. USER ACCOUNTS.

In order to use certain features of the Platforms, you may need to create an account. If the Platforms require you to create a user account, you are only to use your user account and not the user account of another without their permission.

You agree you shall immediately notify Clerk of any unauthorized use of your username, password, or any other breach of security whatsoever. In order to safeguard your security, the security of these Platforms, and the user experience of others, you agree to log out of your account at the end of each session on the Platforms. Please remember to exercise particular caution when accessing your account from a public or shared computer so others are not able to view or record your password or other personal information.

As you browse these Platforms, you may be asked to provide certain registration details or other information. It is a condition of your use of the Platforms that all the information you provide on the Platforms is correct, current, and complete.

We reserve the right to disable any user identification code, username, or password, whether chosen by you or provided by us, at any time in our sole discretion for any or no reason, including if, in our opinion, you have failed to comply with any provision of the Terms of Service, or any other applicable agreement, law, or regulation.

7. MOBILE APPLICATIONS.

From time to time, we may offer mobile applications for public consumption and/or download (the “Apps”). Please note, Apple, Inc. and Google, Inc. or any other third-party provider for the Apps may have separate Terms of Service, which must be followed. You should always read and understand the policies of any third-party provider before making any purchase or downloading any of the Apps.

8. Clerk TECHNOLOGY.

Clerk may make available technology to you on their Platforms, which may also be included in connection with the Clerk Services. These include, but are not limited to the following:

8.1 Call Recording. When a calling party initiates a call to a tracking phone number, Clerk will, at your discretion, create a digital audio recording of the telephone call. The laws regarding the notice and notification requirements of such recorded conversations vary by jurisdiction. You are responsible for applying and complying with the local laws in the relevant jurisdiction, including without limitation, those of the Federal Telephone Consumer Protection Act (“TCPA”) when using this feature. Clerk provides the ability to play a customizable voice message at the beginning of each call to alert callers that the call will be recorded. If you choose to record telephone calls, you expressly agree and acknowledge that: (1) you are authorized to make incoming call recordings of the intended call recipient and have received their consent; (2) you have indicated to the call recipient at the beginning of the call that their call is being recorded; (3) you have provided a mechanism to your intendent call recipient(s) where they can opt-out of calls recorded by you; and (4) Clerk shall have no liability whatsoever in respect of any use made by you, your employee, contractor, officer, agent, authorized representative or other third party, of the recordings and its contents, and/or of any personal information. You either: (1) authorize Clerk to play a voice message advising the caller that the call is being recorded prior to the call being connected to the party answering the call; or (2) make the necessary arrangements to ensure that the caller is provided with the necessary warning about the presence of any recordings made of a call-in accordance with the law.

8.1.1 Text Appointment Reminders. Clerk may provide an optional appointment reminder service, which may include additional related fees. As a matter of practice, Clerk requires that you obtain the necessary consent from the parties to be contacted via text prior to utilizing our text appointment reminder services. Before utilizing our text services, you specifically represent that you have complied with the local laws in the relevant jurisdiction, including without limitation, those of the Federal Telephone Consumer Protection Act (“TCPA”) when using this feature. Additionally, if you choose to use our text appointment reminder services, you expressly agree and acknowledge that: (1) you are authorized to make outbound text messages to the intended recipients; (2) you have notified your text recipient in advance that an appointment reminder text will be sent by you; (3) you have notified your text recipient in advance that carrier text message fees may apply to their receipt of the appointment reminder texts from you; (4) you have provided a mechanism to your intended recipient(s) on how to opt-out of the text appointment reminder services; and (5) Clerk shall have no liability whatsoever in respect of any use made by you, your employee, contractor, officer, agent, authorized representative or third party, of the text message and its contents, and/or of any personal information.

8.2 Voicemail. Clerk may provide optional voicemail services, which may include premium transcription services. In order to provide transcription services, Clerk may leverage third-party transcription providers. If you wish to opt-out of voicemail transcription services, please contact our support team.

8.3 Call Transcriptions. Clerk may make available technology that offers you and/or your Authorized User(s) the ability to transcribe the conversation on incoming telephone calls and voicemail messages (if customer requests). When a calling party initiates a call to a tracking phone number, Clerk will, at your discretion, create a digital audio recording of the telephone call, transcribe the call (potentially using a third-party provider) and display the transcription to the customer.

8.4 Postcard Product. By opting in to use Clerk’s postcard product, you will be subject to the service fees charged per printed postcard. You assume full responsibility that any custom content you submit is correct, and in the event that you submit incorrect information, misspellings, grammatical errors, etc., you agree to pay any and all associated correction fees.

8.5 Listing Services. Clerk may offer a complimentary listing service (the “Listing Service”) under which your business information and customer reviews (collectively, the “Business Information”) are submitted to search engines, indexes and websites. You agree to participate in the Listing Service and allow Clerk to make this data available and provide registration services to third party sites. It is up to third party sites to accept the submissions, and Clerk makes no warranty as to such sites’ willingness to do so. For so long as you continue to subscribe to the Clerk Service, Clerk will make a good faith attempt to ensure accuracy and confidentiality of the information we provide to third party sites under the Listing Service. We have no control of third party websites or resources that are provided by companies or persons other than that of Clerk. Additional tools may be available from the third parties to provide additional updates to your information, but if you use such services, Clerk is not liable for any claim arising out of the combination of such services with the information provided by the Listing Service. If you no longer have an active subscription, Clerk may remove Your Data and any consumer reviews from websites controlled by Clerk, at our sole discretion. You may request in writing explicit removal of the Your Data from such websites controlled by Clerk. Clerk is not obligated to request third parties to remove Your Data and any consumer reviews from third party websites. Clerk may terminate your participation in the Listing Service, or these Terms of Service, at any time in that you are not in compliance with any other applicable agreement. Upon termination of this Terms of Service by either party, Your Data and any consumer reviews may remain in any data feeds provided to third parties under the Listing Service. Clerk reserves the right to terminate the Listing Service as to you or any other user at any time for any reason or no reason.

You represent and warrant that you have obtained all necessary consents and/or approvals to use Your Data, specifically including any personal information of third parties, to contact such third parties located in Your Data to perform the Clerk Services, specifically including those referenced herein. You acknowledge and agree that Clerk may use any and all personal information of the third parties in conjunction herewith. You acknowledge and agree that Clerk shall not be liable for and that you will defend, indemnify, and hold harmless Clerk from any third-party claims arising from the use of the third party personal information, specifically including any contact made with third parties in association with the Clerk Services you have elected to use.

8.6 Bulk SMS Services. Clerk may provide an optional SMS bulk service, which may include additional related fees. As a matter of practice, Clerk requires that you obtain the necessary consent from the parties to be contacted via text prior to utilizing our bulk SMS services. Before utilizing our SMS services, you specifically represent that you have complied with the local laws in the relevant jurisdiction, including without limitation, those of the Federal Telephone Consumer Protection Act (“TCPA”) when using this feature. Additionally, if you choose to use our SMS services, you expressly agree and acknowledge that: (1) you are authorized to make outbound text messages to the intended recipients and have received their consent; (2) you have notified your SMS recipient in advance that SMS will be sent from you; (3) you have notified your SMS recipient in advance that carrier SMS message fees may apply to their receipt of the SMS from you; (4) you have provided a mechanism to your intended recipient(s) on how to opt-out of SMS from you; and (5) Clerk shall have no liability whatsoever in respect of any use made by you, your employee, contractor, officer, agent, authorized representative or third party, of the text message and its contents, and/or of any personal information.

8.7 Bulk Email Services. Clerk may provide optional bulk email services, which may include additional related fees. As a matter of good practice and anti-spam compliance, Clerk recommends that you obtain and comply with the local anti-spam laws of the jurisdictions where you intend to send emails to prior to utilizing our bulk email services. For US based email recipients, the US CAN-SPAM Act applies and you agree to abide by the recommendations as listed by the Federal Trade Commission Guidelines located at https://www.ftc.gov/tips-advice/business-center/guidance/can-spam-act-compliance-guide-business . By way of example, you explicitly warrant to your email recipients that: 1) the header information is not false or misleading (including the to and from in the email addresses or domain names); 2) the subject line accurately reflects the contents of the email message; 3) the message is an advertisement; 3) you have disclosed to your recipients where you are located (e.g. a valid US postal address or PO Box); 4) you have given clear instructions on how to opt-out of future email messages; and 5) you will promptly honor opt-out requests (e.g. within ten (10) business days). Before utilizing our bulk email services, you specifically represent that you have complied with the local laws in the relevant jurisdiction, including without limitation, those of the US CAN-SPAM Act and specifically the FTC guidelines linked above when using this feature. Additionally, if you choose to use our bulk email services, you expressly agree and acknowledge that: (1) you authorize Clerk to make outbound email messages on your behalf; (2) you have complied with local email laws in the relevant jurisdiction without limitation; and (3) Clerk shall have no liability whatsoever in respect of any use made by you, your employee, contractor, officer, agent, authorized representative or third party, of the email message and its contents, and/or of any personal information.

8.8 Scheduling Widget. Clerk may offer or make available a scheduling widget which will allow you, as applied in this instance “you” refers to a provider’s patient or customer, to schedule an appointment with a given provider(s). By utilizing this scheduling widget, you expressly consent and acknowledge that you: 1) agree to be contacted by your provider via telephone, email, and/or text message; 2) agree and acknowledge that carrier charges may apply with respect to text messages; and 3) that we have provided a mechanism for you to opt-out of these communications by emailing us to remove you from this scheduling service by emailing us at support@getclerk.com

8.9 Search Engine Optimization (SEO) Services. Clerk may offer or make available SEO services which may include additional Fees. SEO services offered may include but are not limited to the following: 1) providing a dashboard to manage your business listings across the internet with approximately 60 different sites, these sites are subject to change.

8.9.1 SEO Limitations and Disclaimers. Clerk has no control over the policies of search engines with respect to the type of sites and/or content that they accept now or in the future. As a result, your website may be excluded from any directory or search engine at any time at the sole discretion of the search engine or directory. Due to the competitiveness of some keywords/phrases, ongoing changes in search engine ranking algorithms, and other competitive factors, Clerk not guarantee #1 positions or consistent top 10 positions for any particular keyword, phrase, or search term. Google has been known to hinder the rankings of new websites (or pages) until they have proven their viability to exist for more than “x” amount of time. This is referred to as the “Google Sandbox.” Clerk assumes no liability for ranking/traffic/indexing issues related to Google Sandbox penalties. Occasionally, search engines will drop listings for no apparent or predictable reason. Often, the listing will reappear without any additional SEO.

8.9.2 Client SEO Obligations. In order for Clerk to provide SEO services, you agree to provide / enter your information into the Clerk software including but not limited to the following: 1) Business Name, Address, Phone Number, Categories, Website, Description 2) Authorization to use client pictures, logos, trademarks, web site images, pamphlets, content, etc., for any use as deemed necessary by Clerk for search engine optimization purposes.

8.9.3 Client SEO Warranties. You guarantee any elements of text, graphics, photos, designs, trademarks, or other artwork provided to Clerk for inclusion on the website above are owned by the Client, or that the Client has received permission from the rightful owner(s) to use each of the elements, and will hold harmless, protect, and defend Clerk and its subcontractors from any liability or suit arising from the use of such elements.

8.9.4 Unified Inbox. Clerk provides unified inbox services, whereby one or more of your inboxes for e-mails/messages from separate providers may be aggregated into a single, unified, inbox (the “Unified Inbox”)

You hereby warrant that your use of the Unified Inbox service is in strict accordance with any terms, conditions, or policies governing your use of the third-party e-mail and/or messaging services from which you are importing, reading, accessing, or sending messages, or on which you are otherwise manipulating messages, via the Unified Inbox.

You acknowledge and agree that Clerk shall not be liable for and that you will defend, indemnify, and hold harmless Clerk from any third-party claims arising from the use of the Unified Inbox.

8.9.5 VOIP Services. Clerk provides access to voice over internet protocol (“VoIP”) services, giving you the ability to make voice calls over the internet. For the purposes of these Terms of Services, any such voice calls made over the internet using such services shall be subject to the same terms, restrictions, and other conditions as a voice call made over a traditional telephone system, including but not limited to Sections 8.1 and 8.3 herein.

VoIP services may leverage the services and/or technologies of a third-party service provider.

8.9.6 Calendar Services. Clerk shall not be liable to you for any failure or malfunction of its calendaring service. Per Section 25 of these Terms of Service, you are solely responsible for maintaining backups of your data, including but not limited to any information stored on the Clerk calendaring service.

8.9.7 Third Party Terms. To the extent that any Clerk service or portion of the Platforms leverages the services of a third-party service providers, you acknowledge and agree that your use of said services may be subject to the terms, conditions, and/or policies of such third-parties; and hereby warrant and agree that you have carefully read such terms, conditions, and policies, and that you will adhere to them in all material respects.

8.9.8 Domain Registration. As used within these Terms of Service, “Clerk Services” includes the domain registration services provided by Clerk. You agree to all agreements, guidelines, policies, practices, procedures, registration requirements or operational standards of the top-level domain (“TLD”) in which you register any domain (“Registry Policies”); to comply with all ICANN requirements, standards, policies, procedures, and practices, all of which are hereby incorporated by reference herein.

You acknowledge and agree that Clerk may modify these Terms of Service in order to comply with any terms and conditions set forth by (i) ICANN and/or (ii) any registry applicable to the TLD or country code top level domain (“ccTLD”) you register. This Section 8.9.8 shall survive the termination of these Terms of Service for any reason.

8.9.8.1 Registration Requirements. To the extent any TLD or ccTLD requires you meet eligibility (e.g., residency for .JP, .EU, etc.), validation (e.g., DNS validation) or other authentication requirements as a condition to registering a domain name, by submitting an application or registering or renewing your domain name, you represent and warrant that: (a) all information provided (including all supporting documents, if any) is true, complete, correct, and not misleading in any way, and the application is made in good faith; (b) you meet, and will continue to meet, the eligibility criteria prescribed in the Registry Policies for the duration of the registration; (c) you have not previously had your application for the domain name with another registrar rejected using the same eligibility criteria; (d) you acknowledge and agree that even if the domain name is accepted for registration, your entitlement to register the domain name may be challenged by others who claim to have an entitlement to the domain name; and (e) you acknowledge and agree that the Registry or the registrar can cancel the registration of the domain name if any of the information provided is found to be untrue, incomplete, incorrect or misleading.

8.9.8.2 Ownership. You acknowledge and agree that registration of a domain name does not create any proprietary right for you, the registrar, or any other person in the name used as a domain name or its registration. You acknowledge and agree that the entry of a domain name in the registry shall not be construed as evidence or ownership thereof. You shall not in any way transfer or purport to transfer a proprietary right in any domain name registration or grant or purport to grant as security or in any other manner encumber or purport to encumber a domain name registration.

8.9.8.3 Applicable Laws. You agree to adhere to all applicable laws, including but not limited to those that relate to privacy, data collection, data security, consumer protection, fair lending, debt collection, disclosure of data, personally identifiable information, and website accessibility requirements (such as the Americans with Disabilities Act).

8.9.8.4 Your Information. You agree to provide all of the following pieces of information for each domain name registered: postal address, email address, telephone number, and if available, a facsimile number; and, if a different person or different people, the same contact information for a technical contact, an administrative contact, and a billing contact. You are responsible for keeping all of your registration information current and accurate. You agree to notify Clerk within five (5) business days when any information provided during your registration changes.

You acknowledge and agree that domain name registration requires that your contact information, in whole or in part, be shared with the registry operator, for their use, copying, distribution, publication, modification and other processing for the purpose of administration of the domain name registration, which may require such information be transferred back and forth across international borders, to and from the U.S. to the EU, for example. As required by ICANN or for certain ccTLDs (.am, .com.au, .net.au, .org.au, .ca, .cz, .fr, .it, .jp, .co.jp, .kr, .co.kr, .ne.kr, .re.kr, .no, .co.nz, .net.nz, .org.nz, .vg, .se, .so, .sg, .com.sg, .tw, .com.tw, .net.tw, .org.tw, .uk, .co.uk, .me.uk, .org.uk, .us), this information may be made publicly available by the registry operator via Whois or its successor protocol (collectively referred to as the “Whois” Directory) that is beyond, and not subject to, Clerk’s control. Both Clerk and the registry operator may be required to archive this information with a third-party escrow service.

Further, you represent and warrant that, if you are providing information about a third party, you have notified the third party of the disclosure and the purpose for the disclosure and you have obtained the third party’s consent to such disclosure.

You agree that for each domain name registered by you the following information may be made publicly available in the Whois Directory as determined by ICANN or the Registry Policies and may be sold in bulk as set forth in the ICANN agreement:

• The domain name;
• Your name and postal address;
• The name, email address, postal address, voice and fax numbers for technical and administrative contacts;
• The Internet protocol numbers for the primary and secondary name servers;
• The corresponding names of the name servers;
• The original date of registration and expiration date;
• The name of primary name server and secondary name server; and
• The identity of the registrar.

Clerk may make use of such publicly available information provided by you to the extent permitted by ICANN.

In order for us to comply with any current or future rules and policies for domain name systems including any rules or policies established by the CIRA or any provincial or federal government or by other organization having control or authority to establish rules or policies, you hereby grant to us the right to disclose to third parties the following information that you are required to provide when applying for a domain name:

1. The domain or sub-domain name(s) registered by you;
2. Your organization name, type and postal address;
3. The name(s), position(s), postal address(es), e-mail address(es), voice telephone number(s) and where available the fax number(s) of the technical and administrative contacts for your domain or sub-domain name(s);
4. The full hostnames and Internet protocol (IP) addresses of at least two (2) name server hosts (one primary and at least one secondary) for your domain or sub-domain name. Up to six (6) name servers may be specified. If a host has more than one (1) IP address, use a comma-separated list;
5. The corresponding names of those name servers;
6. The original creation date of the registration; and
7. The expiration date of the registration.

We may be required to make this information available in bulk form to third parties. We may also transfer or assign this information to CIRA or such other third party as we may decide, in our sole discretion.

8.9.8.5 No Refunds. Domain name registration fees are non-refundable, even if registration is denied (e.g., due to inability to verify your country of residence if so required).

8.9.8.6 Indemnity. You agree to defend, indemnify and hold harmless Clerk, the registry operator, the registry service provider, and their subcontractors, subsidiaries, affiliates, divisions, shareholders, directors, officers, employees, accountants, attorneys, insurers, agents, predecessors, successors and assigns from and against all Claims that may, at any time, arise out of or relate to your use of, or inability to use, the domain name registration, including but not limited to the use, registration, extension, renewal, deletion, and/or transfer thereof and/or the violation of any applicable terms or conditions governing the registration. IN NO EVENT SHALL Clerk OR THE REGISTRY OPERATOR BE LIABLE TO YOU OR ANY OTHER PERSON FOR ANY DIRECT, INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, EXEMPLARY OR PUNITIVE DAMAGES, INCLUDING LOSS OF PROFIT OR GOODWILL, FOR ANY MATTER, WHETHER SUCH LIABILITY IS ASSERTED ON THE BASIS OF CONTRACT, TORT (INCLUDING NEGLIGENCE), BREACH OF WARRANTIES, EITHER EXPRESS OR IMPLIED, ANY BREACH OF THIS AGREEMENT OR ITS INCORPORATED AGREEMENTS AND POLICIES YOUR INABILITY TO USE THE DOMAIN NAME, YOUR LOSS OF DATA OR FILES OR OTHERWISE, EVEN IF THE REGISTRY OPERATOR OR Clerk HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

8.9.8.7 TLD Specific Provisions. You agree that your use and registration of any TLD adheres to all applicable terms, including but not limited to any terms restricting the purpose of use of the domain name; or otherwise placing requirements on the individual or entity registering the domain name, or its purpose of use.

You represent and warrant that you meet the eligibility requirements of each TLD and ccTLD you apply for. You further agree to be bound by any registry rules, policies, and agreements for that particular TLD or ccTLD. These may include, but are not limited to, agreeing to indemnify the TLD or ccTLD provider, limiting the liability of the TLD or ccTLD provider, and requirements that any disputes be resolved under that particular country’s laws.

By way of example and without limiting the foregoing, .BIZ domain names must be used primarily for business or commercial purposes; .NAME registrations are limited to sending 500 e-mails at a time; .REISE registrations should be used for purposes dedicated to travel topics; .SEXY domain names shall not permit content unsuitable for viewing by a minor to be viewed from the main or top-level directory; .JP registrations require a local presence in Japan; and so on and so forth. You are solely responsible for your adherence with all applicable agreements, terms, conditions, restrictions, policies, and regulations.

8.9.9 Website Hosting. As used within these Terms of Service, “Clerk Services” includes the website hosting services provided by Clerk. Website hosting services place your website and/or content on one or more servers and assign it an IP Address.

8.9.9.1 IP Address. We do not warrant that you will be able to maintain your IP address. You acknowledge and agree that it may be necessary to change your IP address.

8.9.9.2 Hosting Services Termination. Upon expiration or termination of your hosting services, you shall immediately discontinue use of the hosting services and relinquish all use of the IP addresses and server names assigned to you in connection therewith, including but not limited to pointing the DNS for your domain names away from our servers. All of your content will be irretrievably deleted upon cancellation of your hosting services.

8.9.9.3 Justification. Upon Clerk’s request, you shall provide justification in connection with your use of the hosting services, including but not limited to your reasons for acquiring hosting services and/or purchasing any IP addresses, and any and all information reasonably sought by Clerk in connection therewith. You acknowledge and agree that your name and justification may be disclosed to certain registries including, but not limited to, the American Registry of Internet Numbers, and such information may be displayed publicly on the Whois database.

8.9.9.4 Appropriate Use. You shall not use our servers or your website as a source, intermediary, reply to address, or destination address for abusive activities, including but not limited to mail bombs, Internet packet flooding, packet corruption, denial of service attacks, or other activities that threaten the stability of our network or will damage the systems of, or cause a disruption of internet services to, Clerk, our customers, or third-parties. Clerk may remove sites containing inappropriate at its sole discretion. Use of your website as an anonymous gateway is prohibited. The use of software or scripts that cause the server to load beyond a reasonable level, as determined at our sole discretion, is strictly prohibited. Clerk reserves the right to remove your website temporarily or permanently from our servers if you are in violation of these Terms of Service, any applicable law or regulation, and/or there are activities on your site that affect or threaten the performance of our network. Clerk reserves the right to scan your hosted account for malicious content (e.g., malware), and such content may be removed in Clerk’s discretion for security purposes.

8.9.9.5 Storage of Data. You shall be solely responsible for: a.) loss or damage of your website or server content; b.) backing up your website and server content; and c.) securing your website and server content.

Clerk may carry out a forensic examination in the event of a compromise to your server or account.

8.9.9.6 Website Content. You are solely responsible for your website and/or server content; and any files, pages, data, works, information, materials, and/or content that is on, within, displayed, linked, or transmitted to, from, or through your website or server. To the extent that you provide us with access to a third-party hosting account for the purposes of providing services hereunder, you warrant that you are authorized to do so.

8.9.9.7 Indemnity. You agree to defend, indemnify and hold harmless Clerk, and its subcontractors, subsidiaries, affiliates, divisions, shareholders, directors, officers, employees, accountants, attorneys, insurers, agents, predecessors, successors and assigns from and against all Claims that may, at any time, arise out of or relate to your website or server content that is hosted pursuant to these hosting services. IN NO EVENT SHALL Clerk BE LIABLE TO YOU OR ANY OTHER PERSON FOR ANY DIRECT, INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, EXEMPLARY OR PUNITIVE DAMAGES, INCLUDING LOSS OF PROFIT OR GOODWILL, FOR ANY MATTER, WHETHER SUCH LIABILITY IS ASSERTED ON THE BASIS OF CONTRACT, TORT (INCLUDING NEGLIGENCE), BREACH OF WARRANTIES, EITHER EXPRESS OR IMPLIED, ANY BREACH OF THIS AGREEMENT OR ITS INCORPORATED AGREEMENTS AND POLICIES, YOUR INABILITY TO USE THE HOSTING SERVICES, YOUR WEBSITE OR YOUR SERVER CONTENT, YOUR LOSS OF DATA OR FILES, OR OTHERWISE, EVEN IF Clerk HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

8.9.9.8 Compliance with Regulations. You shall be solely responsible for compliance with any applicable regulations, including but not limited to PCI (Payment Card Industry), HIPAA (Health Insurance Portability and Accountability Act), and ADA (the Americans with Disabilities Act). Clerk makes best efforts to comply with regulations such as PCI and HIPAA with respect to website hosting, but does not warrant compliance therewith.

9. TECHNICAL SUPPORT.

In connection with the provision of technical support, training, and other Clerk Services, you agree that Clerk may remotely log-in to your computers, devices, and systems for purposes of providing the support, training, or other Clerk Services, including, without limitation, technical trouble shooting, answering questions, benchmarking and providing training to you or your personnel. Remote login may be conducted through the use of third party entities. You further agree that Clerk may also remotely log-in at any time as necessary or appropriate to maintain our Clerk Services. Clerk reserves the right to log off accounts that are inactive for an extended period of time. In addition, Clerk may quarantine suspected messages. Clerk also may modify any domain and user settings with or without notice, including without limitation, altering settings so that spam or bulk e-mail is denied, rather than being quarantined, to avoid space capacity issues which jeopardize the technical or economic viability of the services offered, or the system used to implement the services. You agree that Clerk may automatically check the version of a Clerk Service that you are utilizing and may provide updates or upgrades remotely via the Internet. You consent to the receipt of updates or upgrades by means of download to your computers and systems. You agree to keep your computers powered on during the Clerk Services runtimes that you specify. You must add Clerk or its third-party affiliate to the “allowed” list of programs and ensure that your firewall and anti-virus software programs do not block us. Additionally, your practice management software must always be accessible by Clerk. It is your responsibility to contact Clerk if you are upgrading or changing your computer systems.

9.1 Third-Party Integrations. The Clerk Service contains features that enable us to integrate our software into third party software and/or applications (“Software Provider”) (such as your practice management software) in order for us to provide key aspects of our services. By enabling Clerk to integrate its Service with your Software Provider you are representing to us that you have complied with the terms and conditions of your Software Provider in authorizing our access.

To enable our service features, you give us express permission and consent to access your server(s) in order to integrate the Clerk Service. These integration requirements may change from time-to-time and Clerk will post notifications of these changes. Your continued use of the Clerk Service serves as your express consent to update our integration procedures with the required Software Provider.

9.2 Data Storage, Security, and Backup. Clerk does not access, receive, control, store, process, transmit, maintain, or possess any of your Data in providing you with access to and use of the Clerk Service, rather, your Data is stored via your third-party service providers (“Service Provider”) or as reasonably determined by you. Since your Data is uploaded by you directly, you shall rely on yourself or your Service Provider to adhere to industry standards and practices in the storage, safeguarding and preservation of any Data, including performing regular backups and ensuring the security (i.e., both physical and unauthorized remote access) of all equipment used to store or host such Data. Although Clerk makes reasonable efforts to provide proper care and skill in delivering its services and/or Product(s), Clerk does not guarantee, warrant, or covenant that any Data or Content you access and/or store via the services will not be accidentally lost, corrupted, or damaged. Given this reality, you agree and acknowledge that it is your sole responsibility to back up any important Data or Content on your device(s) and/or computer(s).

10. FEES.

The fees for the Clerk Service and any additional Services (“Fees”) are set forth in the Order Form and are payable in advance, irrevocable, and non-refundable except as set forth in the Order Form and these Terms of Service. You agree to provide Clerk with complete and accurate billing and contact information. Where payment by credit card is indicated in the Order Form, or you otherwise provide Clerk with credit card information, you authorize Clerk to bill such credit card: (a) at the time that you order the Clerk Service or other Services set forth in the Order Form; (b) for any billing frequency otherwise established in the Order Form; and (c) at the time of any renewal, for the amount charged plus any applicable sales taxes for any renewed Subscription Term.

10.1 BAA Modification Fees. In the event, Subscriber desires to submit minor modifications to the BAA below, Subscriber shall submit to Clerk the non-refundable fee of $150 USD. The parties shall cooperate in good faith to finalize the proposed modifications; however, Clerk reserves the right to approve final modifications to which approval shall not be unreasonably withheld.

11. NON-PAYMENT; OTHER SUSPENSION RIGHTS OR REMEDIES.

Clerk may terminate the Clerk Service if the billing or contact information provided by you is false or fraudulent. Clerk also reserves the right, in its discretion, to suspend your access and/or use of the Clerk Service: (a) where any payment is due but unpaid and you have been requested but failed to promptly cure such payment failure; or (b) in the event a dispute arises on your account as to who at your business has authority to act or manage your account and Clerk is not promptly provided with written instructions from the interested parties associated with your account that fully resolves the dispute. You acknowledge and agree that if a dispute arises as to management of your account, then: (i) if the listed owner of the account is a corporation, limited liability company or other registered entity, Clerk may rely on public records (to the extent available) concerning the appropriate authorized executives or managers of your entity; or (ii) if the listed owner is a dba or sole proprietorship, or any other entity for which public records of control are not readily accessible online, Clerk may assume that the person or entity that has been making payments on your account has the authority to manage the account. You agree that Clerk shall not be liable to you nor to any third party for any suspension of the Clerk Service resulting from your non-payment of fees or from a dispute as to the management rights to your account.

11.1 Our Remedies if You Pay Late or Fail to Pay. You may be billed fees, charges, and assessments related to late or non-payments if for any reason we do not receive payment for full amounts billed to you by the due date.

11.1.1 Late or Non-Payments. YOU WILL BE ASSESSED A LATE FEE OF 10% PER MONTH FOR ANY AMOUNT THAT HAS NOT BEEN PAID IN FULL AFTER 45 DAYS FROM THE DATE THE INVOICE WAS SENT.

11.1.2 Fees Not Considered Interest or Penalties: We do not anticipate that you will fail to pay on a timely basis, and we do not extend credit to customers. Any fees, charges, and assessments due to late payment or nonpayment are liquidated damages intended to be a reasonable estimate of our costs resulting from late payments and non-payments. These costs will be difficult to calculate or to predict when we set such fees, charges, and assessments, because we cannot know in advance: (a) whether you will pay on a timely basis, if ever; (b) if you do pay late, when you will actually pay; and (c) what costs we will incur because of your late payment or non-payment.

11.1.3 Collection Costs: If we use a collection agency or attorney to collect money owed by you, you agree to pay the reasonable costs of collection, including, but not limited to, any collection agency fees, reasonable attorneys’ fees, and arbitration or court costs. If you change your telephone number or other contact information without notifying us of such change, you agree that you will be responsible for all costs (including attorneys’ fees) and liabilities incurred by us or our collection agent as a result of any attempt to collect any debt through the telephone number or contact information you provided, including any costs or liabilities associated with misdirected calls.

11.1.4 Suspension/Disconnect: If you fail to pay the full amount due for any or all charges then we, at our sole discretion in accordance with and subject to applicable law, may suspend or disconnect access to the Clerk Service you receive without a reduction in the fee or charges for access to the Clerk Service.

11.2 Reconnection Fees and Related Charges. If you resume access to the Clerk Service after any suspension as described, we may require you to pay additional activation fees. These fees are in addition to all past due charges and other fees. Reconnection of the Clerk Service is subject to our credit policies, this Agreement and applicable law.

12. PAYMENT TRANSACTIONS.

If you wish to purchase any product or service made available through the Platforms (each such purchase, a “Transaction”), you may be asked to supply certain information relevant to your Transaction including, without limitation, your credit card number, the expiration date of your credit card, your billing address, and your shipping information. You represent and warrant that you have the legal right to use any credit card(s) or other payment method(s) utilized in connection with any transaction. By submitting such information, you grant to Clerk the right to provide such information to third parties for purposes of facilitating the completion of Transactions initiated by you or on your behalf. Verification of information may be required prior to the acknowledgment or completion of any Transaction.

All descriptions, images, references, features, content, specifications, products, and prices of products and services described or depicted on the Platforms are subject to change at any time without notice. Certain weights, measures, and other descriptions are approximate and are provided for convenience purposes only. The inclusion of any products or services on the Platforms does not imply or warrant that these products or services will be available. It is your responsibility to ascertain and obey all applicable local, state, federal, and international laws (including minimum age requirements) in regard to the receipt, possession, use, and sale of any item purchased from Clerk. By placing an order, you represent that the products ordered will be used only in a lawful manner. Clerk reserves the right, with or without prior notice, to do any one or more of the following: (a) limit the available quantity of or discontinue any product or service; (b) impose conditions on the honoring of any coupon, coupon code, promotional code, or other similar promotion; (c) bar any user from making or completing any or all Transaction(s); and (d) refuse to provide any user with any product or service.

You agree that by placing an order on the Platforms, you are entering into a binding contract with Clerk and agree to pay all charges that may be incurred by you or on your behalf through the Platforms, at the price(s) in effect when such charges are incurred including, without limitation, all shipping and handling charges. In addition, you remain responsible for any taxes that may be applicable to your Transactions.

13. INTELLECTUAL PROPERTY OWNERSHIP.

Unless otherwise noted, all content on the Platforms, including any names, logos, trademarks, service marks, brand identifiers, copyrights, trade dress, or other intellectual property appearing on the Platforms, including the organization, compilation, look and feel, illustrations, graphics, artworks, videos, music, software, and other works of the Platforms (the “Works”) are owned by Clerk, or used with permission of the third party (the “Owners”), and are protected under copyright, trademark, and other intellectual property and proprietary rights laws. All right, title, and interest to the Works remain with Clerk and/or the Owners. Nothing herein shall be interpreted to grant you a license to use any of the Works without Clerk and/or the Owners permission.

14. CONTENT FROM THIRD PARTIES.

Any and all content from third parties is for informational purposes only and Clerk does not verify the accuracy or truthfulness of any material. Specifically, Clerk does not independently verify information. Clerk does not independently verify the accuracy or truthfulness with respect to the operation of any of the locations identified in the Platforms, including the hours of operation, availability of certain products/services, or otherwise.

15. CONTENT POSTED BY USERS.

Any and all content (including replies to reviews or testimonials) posted by you to the Platforms, to Clerk’s social media pages, or any other area to which you may have access to or the ability to post content, must comply with these Terms of Service, any other agreement controlling your relationship with Clerk, and any applicable federal, local, or state laws and regulations.

By using the Platforms, you are agreeing to these Terms of Service, and warrant that: (a) you have obtained the necessary permissions of any and all third parties for any content posted and/or otherwise made available by you; (b) to the best of your knowledge, any and all content posted and/or otherwise made available by you is truthful and accurate, and not misleading in any manner; and (c) you are not violating any law, regulation, code, or otherwise in your posting and/or sharing of the content, including intellectual property, right of privacy, and defamation, or any other applicable law, regulation, or order. For purposes of clarity, you specifically agree to comply with all local, state and federal laws including but not limited to HIPPA as it relates to PHI. If you are unsure whether the content you are considering posting relates to any HIPPA and/or PHI measure, you agree to seek independent counsel before posting said content.

You further agree to indemnify, defend, and hold harmless Clerk from any and all liability, claim, cause of action, loss, or damages resulting from content you post and/or otherwise make available to the Platforms, to Clerk’s social media pages, or any other area to which you may have access to or the ability to post content.

You hereby grant an irrevocable, fully prepaid, perpetual license to Clerk to use anything posted and/or otherwise made available by you to the Platforms.

15.1 TESTIMONIAL DISCLAIMER STATEMENT.

In the event you decide to submit a testimonial review regarding the Clerk Services, you agree and acknowledge to be bound to the terms and conditions located here at https://getclerk.com/testimonial-disclosure-statement/

16. RESTRICTIONS ON USE.

Except as expressly provided herein, nothing on the Platforms shall be construed as granting or conferring any license under Clerk’s and/or the Owners’ intellectual property rights, whether by estoppel, implication, or otherwise. Notwithstanding anything herein to the contrary, Clerk may revoke any of the foregoing rights and/or your access to the Platforms, or any part thereof, including blocking your IP address, at any time without prior notice.

You are expressly prohibited from using any Front-End Code for any purpose outside of the intended design and implementation of your authorized use of the Clerk Service. Any replication or use of any aspect of the Front-End Code or other Clerk application or Services for any purpose designed or intended to compete with Clerk’s solutions is strictly prohibited.

17. TECHNICAL SUPPORT.

During the Subscription Term, you will be entitled at no extra charge to access online user guides, knowledge bases and self-help tools, and any additional standard technical support resources (collectively, “Technical Support”) for the Clerk Service offered by Clerk from time to time, and the terms of conditions of which may be described and updated from time to time on the support or customer care sections of the relevant Clerk website (getclerk.com). Clerk reserves the right to modify the posted terms and conditions for Technical Support, at any time in its sole discretion.

18. HIPAA.

The Health Insurance Portability and Accessibility Act (“HIPAA”) relates to the handling of health information, namely to regulate the transmission of PHI. Clerk is not a health provider and does not provide any type of medical care, services, or otherwise to patients, or any other person or entities. While the Platforms may be used to store a patient’s PHI, Clerk does not utilize any PHI or other information for any type of medical care, or other related use. You agree to alert Clerk in writing if you will be using the Services to store or process PHI. To the extent that you do use the Services to store or process PHI, then the terms of the Clerk Business Associate Agreement will apply to any PHI stored or processed by you using the Services and the terms of the Clerk Business Associate Agreement are incorporated herein by reference. To the extent necessary, you are solely responsible for obtaining patient consents or authorizations prior to using the Services to store or process PHI and prior to allowing access to PHI by Clerk. You agree to indemnify and hold Clerk harmless from and against any third party or government claims, including all related damages, costs and expenses (including reasonable attorneys’ fees) that arise due to your failure to obtain any such consents or authorizations.

19. SOCIAL MEDIA AND LINKED SITES.

From time to time, the Platforms may include features and functionality that allow you to interact with other sites that are not under our control (“Linked Site”), including various social media pages (“Social Media Site”). Clerk provides these features, functionality, and links to you as a convenience and does not endorse any Linked Site or Social Media Site. Clerk is not responsible for the contents or transmission of any Linked Site or Social Media Site, or for the terms of use or privacy policy, of any Linked Site or Social Media Site. You should carefully read the policies for the sites you visit. Under no circumstances are you authorized to make any claim regarding Clerk or any of its products on any Social Media Site regardless of any material connection you may have with Clerk or your receipt of any consideration. If you make any claim regarding Clerk or any of Clerk’s products or services on a Social Media Site in violation of the foregoing, you, and not Clerk, shall be solely responsible and liable therefor.

19.1 Third Party Review Sites (e.g. Yelp). In the event you use the services, whether in part or in the entirety, of third party review sites, e.g. Yelp, you agree and consent to be bound by their terms of service and privacy policies located at https://www.yelp.com/static?p=tos and https://www.yelp.com/tos/privacy_en_us_20160131 respectively. In some cases, these third-party review sites may post community guidelines that impose specific restrictions and/or penalties which may affect your relationship with Clerk. For example, Yelp imposes specific penalties on users that “solicit reviews”, see https://www.yelp-support.com/article/What-is-Yelp-s-review-solicitation-penalty . Clerk considers the use of our services to “solicit reviews” on third-party review sites like Yelp to be violative of our Terms of Service and specifically our Community Guidelines, see Section 24 below. Moreover, use of the Clerk services to “solicit reviews” on Yelp may violate their terms of service and may subject you to penalties. These penalties may cause you to incur fees, fines, and/or result in lost income or business opportunities. In using the Clerk services, you agree to abide by these third-party terms and acknowledge that Clerk does not interpret, analyze, and/or enforce these third-party terms nor do we arbitrate any disputes that you may have with how these terms are interpreted and/or applied. Consequently, Clerk is not liable for any losses, fines, and/or penalties incurred by you and/or anyone acting on your behalf who violates these third-party terms.

20. USE OF NAMES IN MARKETING.

You may use Clerk’s name and credentials in an appropriate and acceptable manner for your standard marketing promotions, provided that you agree to cease or alter such use at Clerk’s request where such use is contrary to Clerk’s branding policies, could cause any brand confusion in the market or is otherwise objectionable to Clerk. Similarly, Clerk may use your business name in an appropriate and acceptable manner for standard marketing promotions, provided that Clerk agrees to cease or alter such use at your request where such use is contrary to your branding policies, could cause any brand confusion in the market or is otherwise objectionable to you. Acceptable and standard marketing promotions include, but are not limited to: client listings, press releases, surveys, interviews, reputable business publications, television, and web site presentation and promotion, etc.

21. SUBMITTED IDEAS.

Any ideas, comments, suggestions, notes, drawings, concepts, or other information submitted to Clerk, whether through the Platforms or by other means, shall be deemed to be non-confidential and non-proprietary. Clerk does not owe you any confidentiality or nondisclosure obligations, whether express or implied. Clerk shall be entitled to unrestricted use of the idea, comment, suggestion, note, drawing, concept, or other information for any purpose whatsoever, commercial or otherwise, without compensation to you.

22. OWNERSHIP OF YOUR DATA.

As between you and Clerk, Your Data and any similar data provided to Clerk outside of the uploading process (either in hard copy or electronic format) is and shall remain your property. To enable Clerk to provide you with the Clerk Service, and subject to the Terms of Service, you hereby grant to Clerk a non-exclusive right to use, copy, distribute and display Your Data solely in connection with Clerk’s operation of the Clerk Service on your behalf. You, not Clerk, shall have sole responsibility for the accuracy, integrity, and reliability of Your Data, and Clerk will not be responsible or liable for the deletion, correction, destruction, damage, loss or failure to store any of Your Data. Clerk will protect any of Your Data provided to Clerk as confidential in accordance with the Confidential Information provision below.

23. CONFIDENTIAL INFORMATION.

For purposes of this Agreement, confidential information shall include the business terms in the Order Form, Your Data, the Clerk Service and the Clerk Materials, and any information that is clearly identified in writing at the time of disclosure as confidential or that should be reasonably understood to be confidential by the receiving party given the nature of the information and the circumstances of its disclosure (“Confidential Information”). Each party agrees: (a) to receive and maintain in confidence all Confidential Information disclosed to it by the other party or by a third-party; (b) not to use the Confidential Information of the other party except to the extent necessary to perform its obligations or exercise rights hereunder; (c) to limit the internal dissemination of Confidential Information to those employees and contractors of the recipient who have a need to know and an obligation to protect it; and (d) to protect the confidentiality thereof in the same manner as it protects the confidentiality of similar information and data of its own (at all times exercising at least a reasonable degree of care in the protection of such Confidential Information). Clerk will restrict its employees’ access to Your Confidential Information to only those employees necessary to successfully provide the Clerk Service. Clerk may disclose Confidential Information on a need-to-know basis to its contractors who have executed written agreements requiring them to maintain such information in strict confidence and use it only to facilitate the performance of their services for Clerk in connection with the performance of this Agreement. Confidential Information shall not include information that: (1) is known publicly; (2) is generally known in the industry before disclosure; (3) has become known publicly, without fault of the recipient, subsequent to disclosure by the disclosing party; or (4) the recipient becomes aware of from a third party not bound by non-disclosure obligations to the disclosing party and with the lawful right to disclose such information to the recipient. This Section will not be construed to prohibit the disclosure of Confidential Information to the extent that such disclosure is required by law or order of a court or other governmental authority. The parties agree to give the other party prompt notice of the receipt of any subpoena or other similar request for such disclosure.

24. COMMUNITY GUIDELINES.

The Platforms, Linked Sites, and Social Media Sites may include the ability to post comments or otherwise engage in communications with third parties through bulletin boards, chat rooms, blogs, comment sections, or other community forums (the “Community Forums”). The following governs the use of the Community Forums:

• Clerk will monitor the Community Forums on a regular basis for any violations of these Terms of Service, or any illegal content.

• Clerk will not act as an arbiter for any dispute or disagreement between users and shall have no liability to you for any content posted in the Community Forums and is under no obligation to edit or modify information available in the Community Forums.

• Clerk reserves the right, in its sole and complete discretion, to refuse to post, or remove, any material submitted to the Community Forums.

• You acknowledge and agree that Clerk may store any material posted to the Community Forums. You further acknowledge and agree that Clerk may use material posted by you in the Community Forums for any purpose whatsoever, including but not limited to incorporating the submission into content that may be commercial in nature.

• Prohibited Statements – you are expressly prohibited from submitting any of the following:

• Any submissions that disparages competitive products, is unlawful, libelous, defamatory, obscene, pornographic, indecent, lewd, racially offensive, suggestive, harassing, threatening, invasive of privacy or publicity rights, abusive, inflammatory, fraudulent, or otherwise objectionable.

• Any submission that would constitute, encourage, or provide instructions for a criminal offense, violate the rights of any party, or that would otherwise create liability or violate any local, state, national, or international law, including without limitation, material that depicts child pornography, acts of violence, drug use, or would violate the regulations of the U.S. Securities and Exchange Commission, or any rules of a securities exchange.

• Any submission that may infringe any patent, trademark, trade secret, copyright, or other intellectual or proprietary rights of any party.

• Any submission that impersonates any person or entity, or otherwise misrepresents your affiliation with a person or entity.

• Unsolicited promotions, political campaigns, advertising, or solicitations including the use of our services to “solicit reviews” on third party sites.

• Private information of any third party, including without limitation, addresses, phone numbers, email addresses, social security numbers, credit card numbers, or any other similar piece of information including but not limited to PHI.

• Viruses, spyware, Trojans, corrupted data, or any other harmful, disruptive, or destructive files.

• Any other submission that, in Clerk’s sole and complete discretion, is inappropriate or objectionable, or which restricts or inhibits any other person from using or enjoying the Platforms, or which may expose Clerk or its users to any harm or liability of any type.

25. NO ARCHIVE.

The Platforms are not and shall not function as an archive. Clerk shall have no liability to you or any other person for loss, damage, or destruction to any submission. You shall be solely responsible for maintaining independent archival and backup copies of any submission.

26. DISCLAIMERS.

Without limiting anything herein, the Platforms, its content, and all of its features, are provided to you “AS IS” and “AS AVAILABLE” without warranty of any kind with respect to the Platforms, its content, and of its features, either express or implied, including but not limited to fitness for a particular purpose, title, or non-infringement. No advice or information, whether oral or written, obtained by you from Clerk shall create any warranty, representation, or guarantee not expressly stated herein. Additionally, Clerk does not make any warranties that the Platforms will be secure, error free, or otherwise meet your expectations. Clerk does not warrant that the Platforms, its content, or features are correct, accurate, or reliable. Clerk reserves the right to change any part of the Platforms at any time without notice.

27. LIMITED WARRANTIES.

You warrant that your business shall, at all times, comply with, and shall remain solely responsible for compliance with, all applicable federal, state and local laws and regulations, as well as the Clerk Acceptable Use Policy, in connection with your use of the Clerk Service, and you agree to indemnify and hold Clerk harmless from and against any third party or government claims, including all related damages, costs and expenses (including reasonable attorneys’ fees), that arise due to your violation of law or breach of this warranty in your use of the Clerk Service.

28. LIMITATION OF LIABILITY.

Your use of the Platforms is at your own risk. Clerk, its affiliates, and the respective officers, directors, agents, and representatives will not be liable to you, or any third party, for any damages, direct or indirect, incidental, consequential, special, or punitive, including, without limitation, loss of data, income, profit, or goodwill, loss of or damage to property and claims of third parties arising out of your access to or use of the Platforms, or arising out of any action taken in response to or as a result of the Works, or other information available on the Platforms, however caused, whether based on breach of contract, tort, proprietary rights infringement, product liability, or otherwise. The foregoing shall apply even if Clerk was advised of the possibility of such damages. If you become dissatisfied in any way with the Platforms, the Terms of Service, or any other applicable agreement, your sole and exclusive remedy is to stop your use of the Platforms and its services. You hereby waive any and all claims against Clerk, its affiliates, officers, directors, agents, representatives, and licensors arising out of your use of the Platforms. If any portion of this limitation on liability is found to be invalid or unenforceable, then the aggregate liability of Clerk, its affiliates, and the respective officers, directors, agents, and representatives shall not exceed one hundred dollars ($100). The Platforms would not be provided without such limitations and you agree that the limitations and exclusions of liability, disclaimers, and exclusive remedies herein will survive even if found to have failed their essential purpose.

29. NO FRAMING OR LINKING.

Framing, in-line linking, or other methods of association with the Platforms are expressly prohibited without prior written approval from Clerk.

30. INTERNATIONAL USERS

The Platforms are hosted in the United States. If you are attempting to access the Platforms from a physical location within the European Union, Asia or any other region with laws or regulations governing data collection, use, and disclosure that differ from the United States, please be advised that your use of the Platforms is governed by United States law, and the Terms of Service. To the extent you provide Personal Information through the Platforms you are transferring your Personal Information to the United States and you consent to: such transfer; the application of the laws of the United States and the State of California with respect to any dispute arising from or related to your use of the Platforms; exclusive jurisdiction of the courts of the State of California.

31. CHOICE OF LAW & VENUE AND DISPUTES.

The laws of the State of California shall govern these Terms of Service without regard to conflict of laws provisions.

Any dispute relating in any way to your visit to, or use of, the Platforms, to the products you purchase through the Platforms (including a subscription), or to your relationship to Clerk shall be submitted to confidential arbitration in Orange County, California; provided, however, that to the extent that you have in any manner violated or threatened to violate our intellectual property rights, we may seek injunctive or other appropriate relief in any state or federal court in the State of California. You hereby consent to, and waive all defenses of lack of personal jurisdiction and forum non conveniens with respect to, venue and jurisdiction in the state and federal courts of California.

Arbitration under these Terms of Service will be conducted be administered by the JAMS, Inc. (“JAMS”), pursuant to its Arbitration Rules & Procedures (the “JAMS Rules”). The arbitrator shall have the power to decide any motions brought by any party to the arbitration, including motions for summary judgment and/or adjudication, motions to dismiss and demurrers, and motions for class certification, prior to any arbitration hearing. The arbitrator shall have the power to award any remedies available under applicable law, and the arbitrator shall award attorneys’ fees and costs to the prevailing party, except as prohibited by law. You agree that the arbitrator shall administer and conduct any arbitration in accordance with California law, including the California Code of Civil Procedure and the California Evidence Code, and that the arbitrator shall apply substantive and procedural California law to any dispute or claim, without reference to the rules of conflict of law. To the extent that the JAMS Rules conflict with California law, California law shall take precedence. The decision of the arbitrator shall be in writing, and the arbitrator’s award will be final and binding and may be entered into as a judgment in any court of competent jurisdiction. To the fullest extent permitted by applicable law, no arbitration under these Terms of Service will be joined to an arbitration involving any other party subject to these Terms of Service, whether through class action proceedings or otherwise. You agree that regardless of any statute or law to the contrary, any claim or cause of action arising out of, related to or connected with the use of the Platforms or these Terms of Service must be filed within one (1) year after such claim of action arose or be forever banned.

YOU AND Clerk AGREE THAT EACH MAY ONLY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. Further, unless both you and Clerk agree otherwise, the arbitrator may not consolidate more than one person’s claims with your claims, and may not otherwise preside over any form of a representative or class proceeding. The arbitrator may award declaratory or injunctive relief only in favor of the individual party seeking relief and only to the extent necessary to provide relief warranted by that party’s individual claim.

32. ATTORNEYS’ FEES.

In the event that either Clerk or you or your Authorized User(s) shall institute an action or proceeding to enforce any rights hereunder, including any action for collection, the prevailing party shall be entitled to seek and recover reasonable attorney’s fees, costs, and expenses.

33. INDEMNIFICATION.

You agree to defend, indemnify and hold harmless Clerk, members, affiliates and/or partners, and its and their officers, directors, partners, shareholders agents, licensees and employees (cumulatively “Clerk Indemnitees”) from and against all claims, actions, liabilities, losses, expenses, damages and costs, including but not limited to attorney’s fees that may, at any time, arise out of or relate to your authorized, unauthorized, lawful or unlawful use of the Platforms, including but not limited to the Clerk Services, your breach of the Terms of Service as stated herein or as modified from time to time in Clerk’s sole discretion, your inability to access the Clerk Materials and/or Clerk Services, the use of any linked sites, your reliance on any errors or omissions, or the propagation and/or contraction of any computer virus in connection with your use of the Clerk Materials and/or Clerk Services.

34. FORCE MAJEURE.

Except for Your obligation to pay Fees for the Clerk Service or other Services rendered, neither party will be responsible for failure of performance due to causes beyond its control. Such causes include (without limitation) accidents, acts of God, labor disputes, actions of any government agency, civil disturbance or Act of Parliament or other Government action, strike, postal delay, shortage of materials, extreme weather conditions, disaster conditions, acts of terrorism, or the stability or availability of the Internet or a portion thereof, or any other reason beyond the control of Clerk.

35. ABILITY TO ACCEPT TERMS OF SERVICE.

You affirm that you are more than the legal age in the territory in which you reside, and are fully able and competent to enter into the terms, conditions, obligations, affirmations, representations, and warranties set forth in the Terms of Service, and to abide by and comply with the Terms of Service.

36. CHANGES AND UPDATES.

We may revise these Terms of Service from time to time. Your use of the Platforms following any revised Terms of Service shall be deemed an acceptance of the revised policy. Your use of the Platforms following any revised Terms of Service shall be deemed an acceptance of the revised policy governing any and all use, including prior use, of the Platforms by you. We recommend you review these Terms of Service from time to time to stay updated. We will make a commercially reasonable effort to obtain your consent before implementing revisions which materially affect the disclosure or use of your Personal Information. If you disagree with the terms of these Terms of Service at any time, your sole remedy is to terminate your use of the Platforms and inform us of such termination.

37. MISCELLANEOUS TERMS OF SERVICE.

37.1 Notice. Notices regarding this Terms of Service to Clerk shall be in writing and sent by first class mail or overnight courier (if from within the United States), or international courier, addressed to Clerk, Attn. Administrator, 16531 Scientific, Irvine, CA 92618. Clerk may give notice applicable to Clerk’s general customer base by means of a general notice on the Clerk Service portal, and notices specific to you by electronic mail to your designated contact’s email address on record with Clerk, or by written communication sent by first class mail or overnight courier (if to an address within the United States), or international courier, to your address on record in Clerk’s account information. All notices shall be deemed to have been given three (3) days after mailing or posting (if sent by first class mail), upon delivery in the case of courier, or twelve (12) hours after sending by confirmed facsimile, email or posting to the Clerk Service portal.

37.2 Waiver. The failure of either party to enforce any right or provision in this Terms of Service shall not constitute a waiver of such right or provision unless acknowledged and agreed to by such party in writing.

37.3 No Joint Venture. None of the Terms of Service or use of the Clerk Service shall be construed as constituting an employer-employee, joint venture, pooling arrangement, partnership, teaming effort, or agency arrangement between the parties. Neither party shall have any right to obligate or bind the other in any manner whatsoever, and nothing contained herein shall give, or is intended to give, any rights of any kind to any third party.

37.4 No Assignment. You may not assign or transfer this Terms of Service or any interest herein, in whole or in part, without Clerk’s prior written approval, which approval shall not be unreasonably withheld. Any attempted assignment or grant in derogation of the foregoing shall be void.

37.5 Headings and Terms Contractual. Paragraph headings contained herein are solely for the purpose of aiding in speedy location of subject matter and are not in any sense to be given weight in the construction of this Terms of Service. These Terms of Service are contractual in nature and not mere recitals.

37.6 Severability and Construction. If any part of these Terms of Service is determined to be invalid or unenforceable pursuant to applicable law, then it shall be construed in a manner which is valid and enforceable that is closest to the intentions set forth herein. The remainder of the Terms of Service shall remain in full force and effect.

37.7 Entire Terms of Service. These Terms of Service supersede all previous arrangements or understandings, whether written or oral, and contain the entire agreement of the parties with respect to the subject matter thereof and hereof.

37.8 Export. You agree that U.S. export control laws and other applicable export and import laws govern Your use of the Clerk Service, including Clerk technology. You represent that You are neither a citizen of an embargoed country nor prohibited end user under applicable U.S. export or anti-terrorism laws, regulations and lists. You agree not to use or export, nor allow a third party to use or export, the Clerk Service or technology in any manner that would violate applicable law, including but not limited to applicable export and import control laws and regulations.

37.9 Government End Use. If you are an agency or unit of the U.S. Government (“Government”), the Clerk Service is provided for ultimate Government use solely in accordance with the provisions of the Federal Acquisition Regulation (“FAR”) and supplements thereto, including the Department of Defense (“DoD”) FAR Supplement (“DFARS”, set forth in this Section. Government technical data and software rights related to the Services include only those rights customarily provided to the public as defined in this Agreement. This customary commercial license is provided in accordance with FAR §12.211 (Technical Data) and FAR §12.212 (Computer Software) and, for DoD transactions, DFARS § 252.227-7015 (Technical Data – Commercial Items) and DFARS § 252.227.7202-3 (Rights in Commercial Computer Software or Computer Software Documentation). If the Government has a need for rights not conveyed under these terms, it must negotiate with Clerk to determine if there are acceptable terms for transferring such rights, and a mutually acceptable written addendum specifically conveying such rights must be included in any applicable contract or agreement.

BUSINESS ASSOCIATE AGREEMENT

This Business Associate Agreement (this “Agreement”) is by and between Clerk Subscriber (“Covered Entity”) and Clerk, Inc. (“Business Associate”) and is effective as of the date of subscription to the Clerk service(s).

WHEREAS, Covered Entity and Business Associate are parties to one or more Services Agreements (as defined below) pursuant to which Business Associate provides certain services to Covered Entity. In connection with Business Associate’s services, Business Associate may create, receive, maintain or transmit Protected Health Information from or on behalf of Covered Entity, which information is subject to protection under the Federal Health Insurance Portability and Accountability Act of 1996, Pub. L. No. 104-191 (“HIPAA”), the Health Information Technology for Economic and Clinical Health Act, Title XIII of the American Recovery and Reinvestment Act of 2009 (the “HITECH Act”) , and related regulations promulgated by the Secretary (“HIPAA Regulations”).

WHEREAS, in light of the foregoing and the requirements of the HIPAA, the HITECH Act and HIPAA Regulations, Business Associate and Covered Entity agree to be bound by the following terms and conditions:

1. Definitions

Catch-all definition:

The following terms used in this Agreement shall have the same meaning as those terms in the HIPAA Rules: Breach, Data Aggregation, Designated Record Set, Disclosure, Health Care Operations, Individual, Minimum Necessary, Notice of Privacy Practices, Protected Health Information, Required by Law, Secretary, Security Incident, Subcontractor, Unsecured Protected Health Information, and Use.

Specific definitions:

(a) Business Associate. “Business Associate” shall generally have the same meaning as the term “business associate” at 45 CFR 160.103, and in reference to the party to this agreement, shall mean Clerk.

(b) Covered Entity. “Covered Entity” shall generally have the same meaning as the term “covered entity” at 45 CFR 160.103, and in reference to the party to this agreement, shall mean Subscriber to the Clerk Service(s).

(c) HIPAA Rules. “HIPAA Rules” shall mean the Privacy, Security, Breach Notification, and Enforcement Rules at 45 CFR Part 160 and Part 164.

(d). Services Agreement. “Services Agreement” shall mean any present or future agreements, either written or oral, between Covered Entity and Business Associate under which Business Associate provides services to Covered Entity which involve the use or disclosure of Protected Health Information. The Services Agreement is amended by and incorporates the terms of this Agreement. For purposes of clarity, the Clerk Inc. Terms of Service Agreement incorporates the terms of this Agreement.

2. Obligations and Activities of Business Associate

Business Associate agrees to:

(a) Not use or disclose protected health information other than as permitted or required by the Agreement or as required by law;

(b) Use appropriate safeguards, and comply with Subpart C of 45 CFR Part 164 with respect to electronic protected health information, to prevent use or disclosure of protected health information other than as provided for by the Agreement;

(c) Report to Covered Entity any use or disclosure of protected health information not provided for by the Agreement of which it becomes aware, including breaches of unsecured protected health information as required at 45 CFR 164.410, and any security incident of which it becomes aware;

(d) In accordance with 45 CFR 164.502(e)(1)(ii) and 164.308(b)(2), if applicable, ensure that any subcontractors that create, receive, maintain, or transmit protected health information on behalf of the Business Associate agree to the same restrictions, conditions, and requirements that apply to the Business Associate with respect to such information;

(e) To the extent that Business Associate possesses or maintains Protected Health Information in a Designated Record Set, Business Associate agrees to make available protected health information in a designated record set to the Covered Entity as necessary to satisfy Covered Entity’s obligations under 45 CFR 164.524;

(f) To the extent that Business Associate possesses or maintains Protected Health Information in a Designated Record Set, Business Associate agrees to make any amendment(s) to protected health information in a designated record set as directed or agreed to by the Covered Entity pursuant to 45 CFR 164.526, or take other measures as necessary to satisfy Covered Entity’s obligations under 45 CFR 164.526;

(g) Maintain and make available the information required to provide an accounting of disclosures to the Covered Entity as necessary to satisfy Covered Entity’s obligations under 45 CFR 164.528;

(h) To the extent, if any, the Business Associate is to carry out one or more of Covered Entity’s obligation(s) under Subpart E of 45 CFR Part 164, comply with the requirements of Subpart E that apply to the Covered Entity in the performance of such obligation(s); and

(i) Make its internal practices, books, and records available to the Secretary for purposes of determining compliance with the HIPAA Rules.

3. Permitted Uses and Disclosures by Business Associate

(a) Business Associate may use or disclose protected health information to perform functions, activities, or services for, or on behalf of, Covered Entity as specified in the Services Agreement .

(b) Business Associate may use or disclose protected health information as required by law. Specifically, Business Associate may use Protected Health Information to report violations of law to appropriate Federal and State authorities, consistent with 45 CFR §164.502(j)(1); provided, however, that Business Associate gives Covered Entity prior written notice of its intention to report any such violation of law and the facts or circumstances related thereto, to the extent legally permissible.

(c) Business Associate agrees to make uses and disclosures and requests for protected health information consistent with Covered Entity’s minimum necessary policies and procedures.

(d)To the extent, if any, that Business Associate will carry out one or more of Covered Entity’s obligation(s) under 45 CFR Part 164, Subpart E, then Business Associate shall comply with the requirements of Subpart E that apply to the Covered Entity in the performance of such obligation(s).

(e) Business Associate may disclose protected health information for the proper management and administration of Business Associate or to carry out the legal responsibilities of the Business Associate, provided the disclosures are required by law, or Business Associate obtains reasonable assurances from the person to whom the information is disclosed that the information will remain confidential and used or further disclosed only as required by law or for the purposes for which it was disclosed to the person, and the person notifies Business Associate of any instances of which it is aware in which the confidentiality of the information has been breached.

4. Provisions for Covered Entity to Inform Business Associate of Privacy Practices and Restrictions

(a) Covered Entity shall notify Business Associate of any restriction on the use or disclosure of protected health information that Covered Entity has agreed to or is required to abide by under 45 CFR 164.522, to the extent that such restriction may affect Business Associate’s use or disclosure of protected health information.

5. Permissible Requests by Covered Entity

Covered Entity shall not request Business Associate to use or disclose protected health information in any manner that would not be permissible under Subpart E of 45 CFR Part 164 if done by Covered Entity.

6. Term and Termination

(a) Term. The Term of this Agreement shall be effective as of the signature date on this document and shall only terminate if the Covered Entity terminates for cause as authorized in paragraph (b) of this Section.
(b) Termination for Cause. Business Associate authorizes termination of this Agreement by Covered Entity, if Covered Entity determines Business Associate has violated a material term of the Agreement.
(c) Effect of Termination.

• Except as provided in paragraph ii. of this Section 6.c., upon termination of this Agreement, for any reason, Business Associate shall return or destroy all Protected Health Information received from Covered Entity or created or received by Business Associate on behalf of Covered Entity. This provision shall apply to Protected Health Information that is in the possession of Subcontractors or agents of Business Associate. Business Associate shall retain no copies of the Protected Health Information.

• In the event that Business Associate determines that returning or destroying the Protected Health Information is infeasible, Business Associate shall provide to Covered Entity notification of the conditions that make return or destruction infeasible. Upon mutual agreement of the parties that return or destruction of Protected Health Information is infeasible, Business Associate shall extend the protections of this Agreement to such Protected Health Information and limit further uses and disclosures of such Protected Health Information to those purposes that make the return or destruction infeasible, for so long as Business Associate maintains such Protected Health Information.

7. Indemnification. To the extent necessary, Covered Entity is solely responsible for obtaining patient consents or authorizations prior to using the Services to store or process PHI and prior to allowing access to PHI by Business Associate. Covered Entity agrees to indemnify and hold Business Associate and its Indemnitees harmless from and against any third party or government claims, including all related damages, costs and expenses (including reasonable attorneys’ fees) that arise due to Covered Entity’s failure to obtain any such consents or authorizations.

8. General.

(a) No Agency Relationship. It is not intended that an agency relationship (as defined under the federal common law of agency) be established hereby, expressly or by implication, between Covered Entity and Business Associate for purposes of liability under HIPAA, HIPAA Regulations, or the HITECH Act. No terms or conditions contained in this Agreement shall be construed to make or render Business Associate an agent of Covered Entity.

(b) Regulatory References. A reference in this Agreement to a section in HIPAA, HIPAA Regulations, or the HITECH Act, means the section as in effect or as amended or modified from time to time, including any corresponding provisions of subsequent superseding laws or regulations.

(c) Amendment. The parties agree to take such action as is necessary to amend the Services Agreement from time to time as is necessary for Covered Entity to comply with the requirements of HIPAA, HIPAA Regulations and the HITECH Act.

(d) Survival. The respective rights and obligations of Business Associate under Section 6 of this Agreement shall survive the termination of this Agreement and the Services Agreement.

(e) Interpretation. Any ambiguity in this Agreement shall be resolved to permit Covered Entity and Business Associate to comply with HIPAA, HIPAA Regulations and the HITECH Act.

(f) Relationship of Parties. To the extent that there is more than one Covered Entity covered by this Agreement, (i) that an entity is controlled by, or is under common control with, Whole Family Chiropractic, Inc., directly or indirectly, does not imply that Business Associate has a contract or other commitment from such entity in the absence of a Services Agreement between such entity and the Business Associate; and (ii) shall not imply any joint venture, agency, affiliation or other relationship such that one Covered Entity would be liable for the actions or responsibilities of another Covered Entity under any Services Agreement, other agreement or arrangement, or any other law or regulation.

(g) Notice. Any notices required or permitted hereunder shall be directed to the Covered Entity pursuant to the notice provisions of the Services Agreement.

(h) Miscellaneous. The terms of this Agreement are hereby incorporated into the Services Agreement. Except as otherwise set forth in Section 8 (e) of this Agreement, in the event of a conflict between the terms of this Agreement and the terms of the Services Agreement, the terms of this Agreement shall prevail. The terms of the Services Agreement which are not modified by this Agreement shall remain in full force and effect in accordance with the terms thereof. Each party to this Agreement hereby agrees and consents that any legal action or proceeding with respect to this Agreement or any interpretation of this Agreement without limitation shall only be brought in accordance with Section 31 “Choice of Law & Venue and Disputes” of the Service Agreement, i.e. the Clerk Terms of Service Agreement. This Agreement replaces and supersedes any and all prior Business Associate agreements between the parties effective as of the date set forth above. The Services Agreement together with this Agreement constitutes the entire agreement between the parties with respect to the subject matter contained herein. This Agreement may be executed in several counterparts, each of which shall be deemed a duplicate original so long as each party has executed one counterpart; all of which counterparts collectively shall constitute one instrument representing this Agreement. A counterpart signed and sent by facsimile transmission or by electronic mail in portable document format (.pdf) form or transmitted by any other electronic means intended to preserve the original graphic and pictorial appearance of a document, will have the same effect as physical delivery of the paper document bearing the original signature. For purposes of clarity, the parties intend that the Service Order Form signatures and the consent and acknowledgment to the Terms of Service automatically incorporate the terms of this BAA without the need for separate signatures or legal consideration unless modified per Section 10.1 above. No amendments or modifications to this Agreement shall be effected unless executed by both parties in writing.