Software Subscription Terms and Conditions

These software subscription terms and conditions (these "Terms") govern the subscription to the DHS Group platform and any related services or goods (collectively, the “Services”) provided by Dynamic Health Strategies, LLC (dba DHS Group), a Texas limited liability company and its affiliates ("DHS Group," "we," "us") to the customer ("Customer," "you, "your") listed on the order attached hereto (the "Order").  The Order and these Terms (collectively, this "Agreement") comprise the entire agreement between the parties, and supersede all prior or contemporaneous understandings, agreements, negotiations, representations and warranties, and communications, both written and oral. In the event of any conflict between these Terms and the Order, these Terms shall govern.  THIS IS A LEGAL AGREEMENT BETWEEN YOU AND DHS Group AND GOVERNS THE SERVICES SUBSCRIPTION, ANY RELATED SALE, AND YOUR USE OF THE SERVICES.  By your affirmative action of signing the Order, electronically or otherwise, or using any of the Services you signify your agreement to these Terms.  For the avoidance of doubt, these Terms prevail over any of Customer's general terms and conditions including without limitation any Customer modifications to the Order and regardless whether or when Customer has submitted such terms. Provision of services to Customer does not constitute acceptance of any of Customer's terms and conditions and does not serve to modify or amend these Terms.

Term and Additional Licenses. So long as Customer is in full compliance with the Agreement, DHS Group shall use commercially reasonable efforts to make the Services available for the period of time listed on the Order; in the event that the applicable period of time is not listed on the Order, such period shall be twelve (12) months (the “Initial Term”).  Following the Initial Term, the Services shall automatically renew for successive twelve (12) month periods (each a “Renewal Term”) at DHS Group’s then current applicable price.  The Initial Term and any Renewal Terms are referred to herein collectively as the Term.  If desired, Customer may purchase additional Services during the Term.  For example, if Customer would like to purchase additional licenses, it may do so at DHS Group’s then current pro-rated prices and such licenses shall be subject to and shall automatically terminate with this Agreement.  For the avoidance of doubt, the purchase of additional Services, including without limitation licenses, by Customer shall not change or extend the Initial Term or any Renewal Term.  Notwithstanding anything to the contrary contained herein, DHS Group may, from time to time change the Services without the consent of Customer.

Payment. DHS Group may offer promotional pricing in its sole discretion and any such promotional pricing shall be subject to any additional terms provided by DHS Group.  Introductory pricing is only available during the Initial Term and only in the event that you have previously purchased Pro access to the Services.  Education pricing is only available to faculty or staff employed by an accredited primary or secondary school, public or private university or college, school district, or board of education (including emeritus status professors), and proof of eligibility satisfactory to DHS Group may be required.

Customer shall pay amounts due to DHS Group at the time of purchase or immediately upon receipt of DHS Group’s invoice, as applicable.  Customer shall make all payments hereunder in US dollars as directed by DHS Group.  In the event payments are not received by DHS Group upon becoming due, DHS Group may: (i) charge interest on any such unpaid amounts at a rate of 5% per month or, if lower, the maximum amount permitted under applicable law, from the date such payment was due until the date paid; and (ii) suspend performance for some or all Services until payment has been made in full.  Customer shall be responsible for all sales, use and excise taxes, and any other similar taxes, duties and charges of any kind imposed by any federal, state or local governmental entity on any amounts payable by Customer hereunder.

Intellectual Property. All intellectual property rights, including copyrights, patents, patent disclosures and inventions (whether patentable or not), trademarks service marks, trade secrets, know-how and other confidential information, trade dress, trade names, logos, corporate names and domain names, together with all of the goodwill associated therewith, derivative works and all other rights (collectively, "Intellectual Property Rights") in and to the Services, including without limitation the DHS Group platform, and all documents, work product and other materials that are delivered or made available to Customer under this Agreement or prepared by or on behalf of DHS Group in the course of performing the Services, including without limitation any items identified as such in the Order (collectively, the "Deliverables") shall be owned by DHS Group. DHS Group hereby grants Customer a non-exclusive, non-sublicensable, non-transferable, limited license to use the Intellectual Property Rights for the sole purpose of and to the extent necessary to enable Customer to make reasonable use of the Deliverables and the Services during the applicable Term.  You acknowledge and agree that the Services are licensed, not sold, to you by DHS Group and you do not and will not have or acquire under or in connection with this Agreement any ownership interest in the Services, or in any related Intellectual Property Rights;

Use Restrictions. You shall not, and shall not permit any other per to: (a) copy the Services, in whole or in part; (b) modify, correct, adapt, translate, enhance or otherwise prepare derivative works or improvements of any Services; (c) rent, lease, lend, sell, sublicense, assign, distribute, publish, transfer or otherwise make available the Services to any person, including on or in connection with the internet or any time-sharing, service bureau, software as a service, cloud or other technology or service; (d) reverse engineer, disassemble, decompile, decode or adapt the Services, or otherwise attempt to derive or gain access to the source code of the Services, in whole or in part; (e) bypass or breach any security device or protection used for or contained in the Services; (f) remove, delete, efface, alter, obscure, translate, combine, supplement or otherwise change any trademarks, warranties, disclaimers, or Intellectual Property Rights, proprietary rights or other symbols, notices, marks or serial numbers on or relating to any copy of the Services; (g) use the Services in any manner or for any purpose that infringes, misappropriates or otherwise violates any Intellectual Property Right or other right of any person, or that violates any applicable law; (h) use the Services for purposes of: (i) benchmarking or competitive analysis of the Services; (ii) developing, using or providing a competing software product or service; or (iii) any other purpose that is to DHS Group's detriment or commercial disadvantage; (i) use the Services other than for the permitted use or in any manner or for any purpose or application not expressly permitted by this Agreement.

Representation and Warranty. You represent and warrant that you are over the age of thirteen (13); you have the full right, power and authority to enter into and perform your obligations under this Agreement; you are in compliance with and shall remain in compliance with all applicable U.S. and foreign laws and regulations, including without limitation laws administered by OFAC, (b) U.S. export control Laws, including the Export Administration Regulations and the International Traffic in Arms Regulations, and (c) the Foreign Corrupt Practices Act. DHS Group MAKES NO WARRANTY WHATSOEVER WITH RESPECT TO THE SERVICES, INCLUDING ANY (A) WARRANTY OF MERCHANTABILITY; OR (B) WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE; OR (C) WARRANTY OF TITLE; OR (D) WARRANTY AGAINST INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS OF A THIRD PARTY; WHETHER EXPRESS OR IMPLIED BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE OR OTHERWISE.  IN NO EVENT SHALL DHS Group BE LIABLE TO CUSTOMER OR TO ANY THIRD PARTY FOR ANY LOSS OF USE, REVENUE OR PROFIT OR LOSS OF DATA OR DIMINUTION IN VALUE, OR FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL OR PUNITIVE DAMAGES WHETHER ARISING OUT OF BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, REGARDLESS OF WHETHER SUCH DAMAGE WAS FORESEEABLE AND WHETHER OR NOT SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.  IN NO EVENT SHALL DHS Group'S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER ARISING OUT OF OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, EXCEED THE AGGREGATE AMOUNTS PAID OR PAYABLE TO DHS Group PURSUANT TO THIS AGREEMENT IN THE THREE MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO THE CLAIM.

Termination. Either party may terminate this Agreement during the first thirty (30) days of the Term, for convenience, upon written notice or by Customer through DHS Group’s then current telephone termination process.  Following the first thirty (30) days of the Term, either party may terminate this Agreement for convenience upon thirty (30) days prior written notice or by Customer through DHS Group’s then current telephone termination process.  Following termination during the initial thirty (30) days of the Term, DHS Group shall issue a full refund of any amounts paid by you to DHS Group for the terminated Services within a reasonable period of time, less any discounts received, and amounts related to days of Service made available by DHS Group prior to termination.  Following termination after the initial thirty (30) days of the Term, but during the Term, DHS Group shall within a reasonable period of time, issue a pro-rata refund of in the amount of fifty percent (50%) of the amount paid to DHS Group for Services not yet made available to Customer, less any discounts received, and other amounts owed to DHS Group.  In addition to any remedies that may be provided under this Agreement, DHS Group may terminate this Agreement with immediate effect and without further obligation, upon written notice to Customer, if Customer fails to pay any amount when due under this Agreement, or has not otherwise performed or complied with any of the terms of this Agreement, in whole or in part.

Force Majeure. DHS Group shall not be liable or responsible to Customer or any third party, nor be deemed to have defaulted or breached this Agreement, for any failure or delay in fulfilling or performing any term of this Agreement when and to the extent such failure or delay is caused by or results from acts or circumstances beyond the reasonable control of DHS Group including, without limitation, acts of God, flood, fire, earthquake, explosion, governmental actions, widespread Internet outage, industrial disturbance, disruption, termination, reduction of services or products provide by industry service or data providers, denial of service attack, changes in third party platforms or APIs with which the Services interface or otherwise operate, war, invasion or hostilities (whether war is declared or not), terrorist threats or acts, riot, or other civil unrest, national emergency, revolution, insurrection, epidemic, lock-outs, strikes or other labor disputes (whether or not relating to either party's workforce), or delay in obtaining supplies of adequate or suitable materials, power outage, materials or telecommunication breakdown.  Without limiting the forgoing, if DHS Group's performance of its obligations under this Agreement is prevented or delayed by any act or omission of Customer or its agents, subcontractors, consultants or employees, DHS Group shall not be deemed in breach of its obligations under this Agreement or otherwise liable for any costs, charges or losses sustained or incurred by Customer, in each case, to the extent arising directly or indirectly from such prevention or delay.

Assignment. Customer shall not assign any of its rights or delegate any of its obligations under this Agreement without the prior written consent of DHS Group. Any purported assignment or delegation in violation of this Section is null and void. No assignment or delegation relieves Customer of any of its obligations under this Agreement.  DHS Group may assign this Agreement, and its rights, duties, and obligations hereunder, in whole or in part, in its sole discretion and without consent.

Governing Law. This Agreement shall be construed and interpreted in accordance with and shall be governed by the laws of the State of Texas, without regard to principals of conflict of law and irrespective of the fact that one or more parties hereto is now or may hereafter be a resident of a different state, jurisdiction, or country.  The state and federal courts situated in Franklin County, Texas shall have exclusive jurisdiction for resolving any dispute arising under or relating to this Agreement.  The parties agree that the United Nations Convention on Contracts for the International Sale of Goods, and/or its implementing and/or successor legislation and/or regulations, and the Uniform Computer Information Transactions Act and/or its implementing and/or successor legislation and/or regulations, as applicable respectively shall not apply.

Miscellaneous. If any term or provision of this Agreement is invalid, illegal or unenforceable in any jurisdiction, such invalidity, illegality or unenforceability shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction.  No waiver by DHS Group of any of the provisions of this Agreement is effective unless explicitly set forth in writing and signed by DHS Group. No failure to exercise, or delay in exercising, any rights, remedy, power or privilege arising from this Agreement operates or may be construed as a waiver thereof. No single or partial exercise of any right, remedy, power or privilege hereunder precludes any other or further exercise thereof or the exercise of any other right, remedy, power or privilege.