This High Enroll Terms of Use (this “Agreement”) sets forth the terms for your use of the Platform and is effective as of the date you accept or otherwise agree to the terms of this Agreement. This Agreement is by and between High Enroll, LLC, an Ohio limited liability company (“High Enroll”), you or the organization on whose behalf you are accepting or otherwise entering into this Agreement (“Customer”). High Enroll and Customer may be referred to herein collectively as the “Parties” or individually as a “Party.”

BY USING THE APPLICATION AND/OR THE PLATFORM, YOU (A) ACKNOWLEDGE THAT YOU HAVE READ AND UNDERSTAND THIS AGREEMENT; (B) REPRESENT THAT YOU ARE 18 YEARS OF AGE OR OLDER; AND (C) ACCEPT THIS AGREEMENT AND AGREE THAT YOU ARE LEGALLY BOUND BY ITS TERMS. IF YOU DO NOT AGREE TO THESE TERMS, DO NOT DOWNLOAD, INSTALL OR USE THE APPLICATION OR THE PLATFORM AND DELETE IT/THEM FROM YOUR DEVICES.

Background

  1. High Enroll provides access to the software-as-a-service offering described in the applicable order form, statement of work or other ordering document or process (“Order Form”) to which you have agreed (the “Services”); and
  2. Customer desires to access the Services, and High Enroll desires to provide Customer access to the Services, subject to the terms and conditions of this Agreement.

Agreement

In consideration of the mutual covenants, terms, and conditions set forth herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties agree as follows:

  1. Definitions.
    1. “Affiliate” means any entity that owns, is owned by or is under common ownership or common control with another entity.
    2. “Aggregated Statistics” means data and information related to or derived from Customer’s use of the Services that is used by High Enroll in an aggregate and anonymized manner, including to compile statistical and performance information related to the provision and operation of the Services and to provide anonymized statistics to other High Enroll customers.
    3. “Application” means the High Enroll branded mobile application that provides access to the Platform.
    4. “Authorized User” means Customer’s employees, consultants, contractors, and agents (i) who are authorized by Customer to access and use the Services under the rights granted to Customer pursuant to this Agreement and (ii) for whom administrator status with respect to Customer’s utilization of the Services has been purchased hereunder.
    5. “Customer Data” means, other than Aggregated Statistics, information, data, and other content, in any form or medium, that is submitted, posted, or otherwise transmitted by or on behalf of Customer or an Authorized User through the Services.
    6. “Documentation” means High Enroll’s end user documentation relating to the Services.
    7. “High Enroll IP” means the Services, the Documentation, and any and all intellectual property provided to Customer or any Authorized User in connection with the foregoing. For the avoidance of doubt, High Enroll IP includes Aggregated Statistics and any information, data, or other content derived from High Enroll’s monitoring of Customer’s access to or use of the Services, but does not include Customer Data.
    8. “High Enroll IP” means the Services, the Documentation, and any and all intellectual property provided to Customer or any Authorized User in connection with the foregoing. For the avoidance of doubt, High Enroll IP includes Aggregated Statistics and any information, data, or other content derived from High Enroll’s monitoring of Customer’s access to or use of the Services, but does not include Customer Data.
    9. “Website” means the High Enroll website located at highenroll.org and associated sub-domains.
  2. Access and Use.
    1. Provision of Access. Subject to the terms and conditions of this Agreement, High Enroll hereby grants Customer a non-exclusive, non-transferable (except in compliance with Section 11(h)) right to access and use the Services during the Term, solely for use by Authorized Users in accordance with the terms and conditions herein. High Enroll shall provide to Customer the necessary passwords and network links or connections to allow Customer to access the Services. The total number of Authorized Users will not exceed the number set forth in the applicable Order Form, except as expressly agreed to in writing by the Parties and subject to any appropriate adjustment of the Fees payable hereunder. All Platform Users (as defined below), including Authorized Users, shall agree to an End User License Agreement (“EULA”) provided by High Enroll in connection with access to the Application, in order to access the Application and/or Platform, and will be subject to the Platform’s Privacy Policy available at highenroll.org (the “Privacy Policy”), each of which are hereby incorporated by reference. Customer expressly agrees to the terms of the EULA and Privacy Policy, as each may be modified from time to time pursuant to the terms thereof; provided, however, that in the event of a conflict between the EULA and this Agreement, the terms of this Agreement shall control.
    2. Affiliate Use.  Customer’s Affiliates may use the Application and Platform, subject to the terms and conditions of this Agreement, including the payment provisions hereof.
    3. Documentation License. Subject to the terms and conditions contained in this Agreement, High Enroll hereby grants to Customer a non-exclusive, non-sublicensable, non-transferable (except in compliance with Section 11(h)) license to use the Documentation during the Term solely for Customer’s internal business purposes in connection with its use of the Services.
    4. Use Restrictions. Customer shall not use the Services for any purposes beyond the scope of the access granted in this Agreement. Customer shall not at any time, directly or indirectly, and shall not permit any Authorized Users to: (i) copy, modify, or create derivative works of the Services or Documentation, in whole or in part; (ii) rent, lease, lend, sell, license, sublicense, assign, distribute, publish, transfer, or otherwise make available the Services or Documentation; (iii) reverse engineer, disassemble, decompile, decode, adapt, or otherwise attempt to derive or gain access to any software component of the Services, in whole or in part; (iv) remove any proprietary notices from the Services or Documentation; or (v) use the Services or Documentation 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.
    5. Reservation of Rights. High Enroll reserves all rights not expressly granted to Customer in this Agreement. Except for the limited rights and licenses expressly granted under this Agreement, nothing in this Agreement grants, by implication, waiver, estoppel, or otherwise, to Customer or any third party any intellectual property rights or other right, title, or interest in or to the High Enroll IP.
    6. Suspension. Notwithstanding anything to the contrary in this Agreement, High Enroll may temporarily suspend Customer’s and any Authorized User’s access to any portion or all of the Services if: (i) High Enroll reasonably determines that (A) there is a threat or attack on any of the High Enroll IP; (B) Customer’s or any Authorized User’s use of the High Enroll IP disrupts or poses a security risk to the High Enroll IP or to any other customer or vendor of High Enroll; (C) Customer, or any Authorized User, is using the High Enroll IP for fraudulent or illegal activities; (D) subject to applicable law, Customer has ceased to continue its business in the ordinary course, made an assignment for the benefit of creditors or similar disposition of its assets, or become the subject of any bankruptcy, reorganization, liquidation, dissolution, or similar proceeding; or (E) High Enroll’s provision of the Services to Customer or any Authorized User is prohibited by applicable law; (ii) any vendor of High Enroll has suspended or terminated High Enroll’s access to or use of any third-party services or products required to enable Customer to access the Services; or (iii) in accordance with Section 4(a)(iii) (any such suspension described in subclause (i), (ii), or (iii), a “Service Suspension”). High Enroll shall use commercially reasonable efforts to provide written notice of any Service Suspension to Customer and to provide updates regarding resumption of access to the Services following any Service Suspension. High Enroll shall use commercially reasonable efforts to resume providing access to the Services as soon as reasonably possible after the event giving rise to the Service Suspension is cured. High Enroll will have no liability for any damage, liabilities, losses (including any loss of data or profits), or any other consequences that Customer or any Authorized User may incur as a result of a Service Suspension.
    7.  Aggregated Statistics. Notwithstanding anything to the contrary in this Agreement, High Enroll may monitor Customer’s use of the Services and collect and compile Aggregated Statistics. As between High Enroll and Customer, all right, title, and interest in Aggregated Statistics, and all intellectual property rights therein, belong to and are retained solely by High Enroll. Customer acknowledges that High Enroll may compile Aggregated Statistics based on Customer Data input into the Services. Customer agrees that High Enroll may (i) make Aggregated Statistics publicly available in compliance with applicable law, and (ii) use Aggregated Statistics to the extent and in the manner permitted under applicable law; provided that such Aggregated Statistics do not identify Customer or Customer’s Confidential Information.
    8. Purpose of High Enroll.
      1. High Enroll, through the Platform and the Services, provides a network where users can post and access information relating to various clinical trial research studies being conducted at various institutions and companies (“Studies”). Users of the Platform (“Platform Users”) can identify High Enroll customers that post information relating to Studies, thereby facilitating connections between Platform Users and customers of High Enroll for the purpose of supporting patient enrollment in such Studies.
      2. Customer acknowledges and agrees that High Enroll merely makes the Platform and the Services available to enable Customer and Platform Users to find and transact directly with each other. High Enroll does not (A) introduce Platform Users to customers of High Enroll, including Customer, (B) directly find patients for enrollment in Studies, or (C) store, handle, transmit or possess any patient information, including, without limitation, Protected Health Information (“PHI”) as defined under the privacy, security, breach notification, and enforcement rules at 45 C.F.R. Part 160 and Part 164. Through the Platform and the Services, Customer may be notified of Platform Users that may be able to provide support or assistance for Customer’s Studies, including, without limitation, recruitment of eligible patients for enrollment in the Studies. At all times, Customer is solely responsible for evaluating and determining the suitability of any patient or other support relating to the Studies.
      3. If Customer decides to enter into any contract, engagement or other relationship with any Platform User, such contract, engagement or other relationship directly between the Platform User and Customer, and Customer agrees that High Enroll is not a party thereto. Without limitation, Customer is solely responsible for (A) ensuring the accuracy and legality of any proposal, service or Platform User content made available to Customer on the Platform;  (B) determining the legitimacy and suitability of any Platform Users prior to entering into any contract, engagement or other relationship; (C) determining the legitimacy, suitability and legality of any services or other support offered by Platform Users, including, without limitation, the suitability of any patient for Customer Studies. High Enroll does not make any representation, warranty or guarantee relating to the truth or accuracy of any Platform User’s or customer’s, profiles, listings or other Platform User content on the Platform; does not verify any feedback or information provided by Platform Users; and does not vet or otherwise perform background checks on Platform Users.
      4. Customer agrees it bears sole responsibility for all aspects of conducting Customer Studies, and for determining whether use of the Platform and the Services are appropriate for use by Customer generally, or in conjunction with any Studies. CUSTOMER ACKNOWLEDGES THAT HIGH ENROLL HAS MADE NO REPRESENTATION, WARRANTY, OR COVENANT WITH RESPECT TO THE ABILITY TO PROVIDE ELIGIBLE PATIENTS FOR ANY STUDIES OR OTHER CHARACTERISTICS OF THE PLATFORM OR THE SERVICES, OR WITH RESPECT TO THEIR FITNESS OR SUITABILITY FOR THIS OR ANY OTHER PURPOSE. Customer acknowledges and agrees that compliance with any and all Food and Drug Administration (“FDA”), Health Insurance Portability and Accountability Act of 1996, as amended (“HIPAA”) and/or other similar regulations or requirements relating to any Studies or any other trials or operations of Customer is the sole responsibility of Customer, and that High Enroll is not providing any legal advice. Further, Customer releases High Enroll and its Representatives from any and all liability that results or may result from Customer’s Studies or any Platform User’s participation in Customer’s Studies. Customer shall not upload, transmit, transfer or otherwise make available any PHI on or through the Platform.
  3. Customer Responsibilities. Customer is responsible and liable for all uses of the Services and Documentation resulting from access provided by Customer, directly or indirectly, whether such access or use is permitted by or in violation of this Agreement. Without limiting the generality of the foregoing, Customer is responsible for all acts and omissions of Authorized Users, and any act or omission by an Authorized User that would constitute a breach of this Agreement if taken by Customer will be deemed a breach of this Agreement by Customer. Customer shall use reasonable efforts to make all Authorized Users aware of this Agreement’s provisions as applicable to such Authorized User’s use of the Services, and shall cause Authorized Users to comply with such provisions. Customer shall perform all other Customer obligations specified in the Order Form.
  4. Fees and Payment.
    1. Fees. Customer shall pay High Enroll the fees (“Fees”) as set forth in the Order Form without offset or deduction. Customer shall make all payments hereunder in US dollars on or before the due date set forth in the Order Form. If Customer fails to make any payment when due, without limiting High Enroll’s other rights and remedies: (i) High Enroll may charge interest on the past due amount at the rate of 1.5% per month calculated daily and compounded monthly or, if lower, the highest rate permitted under applicable law; (ii) Customer shall reimburse High Enroll for all costs incurred by High Enroll in collecting any late payments or interest, including attorneys’ fees, court costs, and collection agency fees; and (iii) if such failure continues for ten (10) days or more, High Enroll may suspend Customer’s and its Authorized Users’ access to any portion or all of the Services until such amounts are paid in full.
    2. Taxes. All Fees and other amounts payable by Customer under this Agreement are exclusive of taxes and similar assessments. Customer is 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 or regulatory authority on any amounts payable by Customer hereunder, other than any taxes imposed on High Enroll’s income.
  5. Confidential Information. From time to time during the Term, either Party may disclose or make available to the other Party information about its business affairs, products, confidential intellectual property, trade secrets, third-party confidential information, and other sensitive or proprietary information, whether orally or in written, electronic, or other form or media that is marked, designated, or otherwise identified as “confidential” (collectively, “Confidential Information”). Confidential Information does not include information that, at the time of disclosure is: (a) in the public domain; (b) known to the receiving Party at the time of disclosure; (c) rightfully obtained by the receiving Party on a non-confidential basis from a third party; or (d) independently developed by the receiving Party. The receiving Party shall not disclose the disclosing Party’s Confidential Information to any person or entity, except to the receiving Party’s employees who have a need to know the Confidential Information for the receiving Party to exercise its rights or perform its obligations hereunder. Notwithstanding the foregoing, each Party may disclose Confidential Information to the limited extent required (i) in order to comply with the order of a court or other governmental body, or as otherwise necessary to comply with applicable law, provided that the Party making the disclosure pursuant to the order shall first have given written notice to the other Party and made a reasonable effort to obtain a protective order; or (ii) to establish a Party’s rights under this Agreement, including to make required court filings. On the expiration or termination of the Agreement, the receiving Party shall promptly return to the disclosing Party all copies, whether in written, electronic, or other form or media, of the disclosing Party’s Confidential Information, or destroy all such copies and certify in writing to the disclosing Party that such Confidential Information has been destroyed. Each Party’s obligations of non-disclosure with regard to Confidential Information are effective as of the Effective Date and will expire five years from the date first disclosed to the receiving Party; provided, however, with respect to any Confidential Information that constitutes a trade secret (as determined under applicable law), such obligations of non-disclosure will survive the termination or expiration of this Agreement for as long as such Confidential Information remains subject to trade secret protection under applicable law. Any content Customer posts to the Platform, including content posted on behalf of Customer by Authorized Users, that is made available to other Platform Users (“Content”) will be considered non-confidential and non-proprietary.
  6. Intellectual Property Ownership; Feedback.
    1. High Enroll IP. Customer acknowledges that, as between Customer and High Enroll, High Enroll owns all right, title, and interest, including all intellectual property rights, in and to the High Enroll IP.
    2. Customer Data. High Enroll acknowledges that, as between High Enroll and Customer, Customer owns all right, title, and interest, including all intellectual property rights, in and to the Customer Data. Customer hereby grants to High Enroll a non-exclusive, royalty-free, worldwide license to reproduce, distribute, and otherwise use and display the Customer Data and perform all acts with respect to the Customer Data as may be necessary for High Enroll to provide the Services to Customer, and a non-exclusive, perpetual, irrevocable, royalty-free, worldwide license to reproduce, distribute, modify, and otherwise use and display Customer Data incorporated within the Aggregated Statistics. Additionally, by posting Content on the Platform, Customer grants to High Enroll and its affiliates and service providers, and each of their and our respective licensees, successors and assigns the right to use, reproduce, modify, perform, display, distribute and otherwise disclose to third parties any such Content for any purpose.
    3. Feedback. If Customer or any of its employees or contractors sends or transmits any communications or materials to High Enroll by mail, email, telephone, or otherwise, suggesting or recommending changes to the High Enroll IP, including without limitation, new features or functionality relating thereto, or any comments, questions, suggestions, or the like (“Feedback”), High Enroll is free to use such Feedback irrespective of any other obligation or limitation between the Parties governing such Feedback. Customer hereby assigns to High Enroll on Customer’s behalf, and on behalf of its employees, contractors and/or agents, all right, title, and interest in, and High Enroll is free to use, without any attribution or compensation to any party, any ideas, know-how, concepts, techniques, or other intellectual property rights contained in the Feedback, for any purpose whatsoever, although High Enroll is not required to use any Feedback.
  7. Limited Warranty and Warranty Disclaimer.
    1. High Enroll warrants that the Services will conform in all material respects to the service specifications set forth in the Order Form when accessed and used in accordance with the Documentation.
    2. EXCEPT FOR THE LIMITED WARRANTY SET FORTH IN SECTION 7(a), THE HIGH ENROLL IP, THE PLATFORM AND THE SERVICES ARE PROVIDED “AS IS” AND HIGH ENROLL HEREBY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE. HIGH ENROLL SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT, AND ALL WARRANTIES ARISING FROM COURSE OF DEALING, USAGE, OR TRADE PRACTICE. EXCEPT FOR THE LIMITED WARRANTY SET FORTH IN SECTION 7(a), HIGH ENROLL MAKES NO WARRANTY OF ANY KIND THAT THE HIGH ENROLL IP, OR ANY PRODUCTS OR RESULTS OF THE USE THEREOF, WILL MEET CUSTOMER’S OR ANY OTHER PERSON’S REQUIREMENTS, OPERATE WITHOUT INTERRUPTION, ACHIEVE ANY INTENDED RESULT, BE COMPATIBLE OR WORK WITH ANY SOFTWARE, SYSTEM, OR OTHER SERVICES, OR BE SECURE, ACCURATE, COMPLETE, FREE OF HARMFUL CODE, OR ERROR FREE.
  8. Indemnification.
    1. High Enroll Indemnification.
      1. High Enroll shall indemnify, defend, and hold harmless Customer from and against any and all losses, damages, liabilities, costs (including reasonable attorneys’ fees) (“Losses”) incurred by Customer resulting from any third-party claim, suit, action, or proceeding (“Third-Party Claim”) that the Services, or any use of the Services in accordance with this Agreement, infringes or misappropriates such third party’s US intellectual property rights, provided that Customer promptly notifies High Enroll in writing of the claim, cooperates with High Enroll, and allows High Enroll sole authority to control the defense and settlement of such claim.
      2. If such a claim is made or appears possible, Customer agrees to permit High Enroll, at High Enroll’s sole discretion, to (A) modify or replace the Services, or component or part thereof, to make it non-infringing, or (B) obtain the right for Customer to continue use. If High Enroll determines that neither alternative is reasonably available, High Enroll may terminate this Agreement, in its entirety or with respect to the affected component or part, effective immediately on written notice to Customer.
      3. This Section 8(a) will not apply to the extent that the alleged infringement arises from: (A) use of the Services in combination with data, software, hardware, equipment, or technology not provided by High Enroll or authorized by High Enroll in writing; (B) modifications to the Services not made by High Enroll; (C) Customer Data; or Content.
    2. Customer Indemnification. Customer shall indemnify, hold harmless, and, at High Enroll’s option, defend High Enroll and its officers, directors, employees, agents, successors and permitted assigns (collectively, “Representatives”) from and against any Losses resulting from (i) any Third-Party Claim that the Customer Data or Content, or any use of the Customer Data or Content in accordance with this Agreement, infringes or misappropriates such third party’s US intellectual property rights; (ii) any Customer’s Studies or any Platform Users’ participation in Customer’s Studies; (iii) and/or any Third-Party Claims based on Customer’s or any Authorized User’s (A) negligence or willful misconduct; (B) use of the Services or the Platform in a manner not authorized by this Agreement; (C) posting of any inaccurate or misleading Content on the Platform, provided that Customer may not settle any Third-Party Claim against High Enroll unless High Enroll consents to such settlement, and further provided that High Enroll will have the right, at its option, to defend itself against any such Third-Party Claim or to participate in the defense thereof by counsel of its own choice.
    3. Sole Remedy. THIS SECTION 8 SETS FORTH CUSTOMER’S SOLE REMEDIES AND HIGH ENROLL’S SOLE LIABILITY AND OBLIGATION FOR ANY ACTUAL, THREATENED, OR ALLEGED CLAIMS THAT THE SERVICES INFRINGE, MISAPPROPRIATE, OR OTHERWISE VIOLATE ANY INTELLECTUAL PROPERTY RIGHTS OF ANY THIRD PARTY.
  9. Limitations of Liability. IN NO EVENT WILL HIGH ENROLL BE LIABLE UNDER OR IN CONNECTION WITH THIS AGREEMENT UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE, FOR ANY: (a) CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, ENHANCED, OR PUNITIVE DAMAGES; (b) INCREASED COSTS, DIMINUTION IN VALUE OR LOST BUSINESS, PRODUCTION, REVENUES, OR PROFITS; (c) LOSS OF GOODWILL OR REPUTATION; (d) USE, INABILITY TO USE, LOSS, INTERRUPTION, DELAY, OR RECOVERY OF ANY DATA, OR BREACH OF DATA OR SYSTEM SECURITY; OR (e) COST OF REPLACEMENT GOODS OR SERVICES, IN EACH CASE REGARDLESS OF WHETHER HIGH ENROLL WAS ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES OR SUCH LOSSES OR DAMAGES WERE OTHERWISE FORESEEABLE. IN NO EVENT WILL HIGH ENROLL’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE EXCEED THE TOTAL AMOUNTS PAID TO HIGH ENROLL UNDER THIS AGREEMENT IN THE ONE-YEAR PERIOD PRECEDING THE EVENT GIVING RISE TO THE CLAIM.
  10. Term and Termination.
    1. Term. The term of this Agreement begins on the Effective Date and, unless terminated earlier pursuant to this Agreement’s express provisions, will continue in effect until the expiration of the Services term specified in the Order Form (the “Term”).
    2. Termination. In addition to any other express termination right set forth in this Agreement:
      1. (i) High Enroll may terminate this Agreement, effective on written notice to Customer, if Customer: (A) fails to pay any amount when due hereunder, and such failure continues more than ten (10) days after High Enroll’s delivery of written notice thereof; or (B) breaches any of its obligations under Section 2(c) or Section 5;
      2. either Party may terminate this Agreement, effective on written notice to the other Party, if the other Party materially breaches this Agreement, and such breach: (A) is incapable of cure; or (B) being capable of cure, remains uncured 30 days after the non-breaching Party provides the breaching Party with written notice of such breach; or
      3. either Party may terminate this Agreement, effective immediately upon written notice to the other Party, if the other Party: (A) becomes insolvent or is generally unable to pay, or fails to pay, its debts as they become due; (B) files or has filed against it, a petition for voluntary or involuntary bankruptcy or otherwise becomes subject, voluntarily or involuntarily, to any proceeding under any domestic or foreign bankruptcy or insolvency law; (C) makes or seeks to make a general assignment for the benefit of its creditors; or (D) applies for or has appointed a receiver, trustee, custodian, or similar agent appointed by order of any court of competent jurisdiction to take charge of or sell any material portion of its property or business.
    3. Effect of Expiration or Termination. Upon expiration or earlier termination of this Agreement, Customer shall immediately discontinue use of the High Enroll IP that is not made available generally to non-paying Platform Users and, without limiting Customer’s obligations under Section 5, Customer shall delete, destroy, or return all copies of the High Enroll IP that is not made available generally to non-paying Platform Users and certify in writing to the High Enroll that such High Enroll IP has been deleted or destroyed. No expiration or termination will affect Customer’s obligation to pay all Fees that may have become due before such expiration or termination or entitle Customer to any refund.
    4. Survival. This Section 10(d) and Section 1, 2(g), 4, 5, 6, 7(b), 8, 9 and 11 survive any termination or expiration of this Agreement. No other provisions of this Agreement survive the expiration or earlier termination of this Agreement.
  11. Miscellaneous.
    1. Use of Customer Name in Marketing Materials.  Customer consents to the use by High Enroll of Customer’s name and logo on its website, and in press releases, company brochures, offering documents, presentations, reports or other marketing materials in printed or electronic form; provided, that such materials or presentations accurately describe the nature of Customer’s relationship with High Enroll.
    2. Entire Agreement. This Agreement, together with any other documents incorporated herein by reference (including, without limitation, the EULA and Privacy Policy) and all related Exhibits, constitutes the sole and entire agreement of the Parties with respect to the subject matter of this Agreement and supersedes all prior and contemporaneous understandings, agreements, and representations and warranties, both written and oral, with respect to such subject matter. In the event of any inconsistency between the statements made in the body of this Agreement, the related Exhibits, and any other documents incorporated herein by reference, the following order of precedence governs: (i) first, this Agreement, excluding its Exhibits; (ii) second, the Exhibits to this Agreement as of the Effective Date; and (iii) third, any other documents incorporated herein by reference.
    3. Notices. All notices, requests, consents, claims, demands, waivers, and other communications hereunder (each, a “Notice”) must be in writing and addressed to the Parties at the addresses set forth on the first page of this Agreement (or to such other address that may be designated by the Party giving Notice from time to time in accordance with this Section). All Notices must be delivered by personal delivery, nationally recognized overnight courier (with all fees pre-paid), facsimile or email (with confirmation of transmission), or certified or registered mail (in each case, return receipt requested, postage pre-paid). Except as otherwise provided in this Agreement, a Notice is effective only: (i) upon receipt by the receiving Party; and (ii) if the Party giving the Notice has complied with the requirements of this Section.
    4. Force Majeure. In no event shall High Enroll be liable to Customer, or be deemed to have breached this Agreement, for any failure or delay in performing its obligations under this Agreement, if and to the extent such failure or delay is caused by any circumstances beyond High Enroll’s reasonable control, including but not limited to acts of God, flood, fire, earthquake, explosion, war, terrorism, invasion, pandemic, epidemic riot or other civil unrest, strikes, labor stoppages or slowdowns or other industrial disturbances, or passage of law or any action taken by a governmental or public authority, including imposing an embargo.
    5. Changes to this Agreement. High Enroll reserves the right, at its sole discretion, to change, modify, add or remove any portion of the Agreement, in whole or in part, at any time, and we will post the revised version on the Website. Changes to the Agreement will be effective when posted. Your continued use of the Application and/or the Platform after any changes to the Agreement are posted will be considered acceptance of those changes.
    6. Waiver. No waiver by any Party of any of the provisions hereof will be effective unless explicitly set forth in writing and signed by the Party so waiving. Except as otherwise set forth in this Agreement, (i) no failure to exercise, or delay in exercising, any rights, remedy, power, or privilege arising from this Agreement will operate or be construed as a waiver thereof, and (ii) no single or partial exercise of any right, remedy, power, or privilege hereunder will preclude any other or further exercise thereof or the exercise of any other right, remedy, power, or privilege.
    7. Severability. If any provision of this Agreement is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability will not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction. Upon such determination that any term or other provision is invalid, illegal, or unenforceable, the Parties shall negotiate in good faith to modify this Agreement so as to affect their original intent as closely as possible in a mutually acceptable manner in order that the transactions contemplated hereby be consummated as originally contemplated to the greatest extent possible.
    8. Governing Law; Mandatory Arbitration. This Agreement is governed by and construed in accordance with the internal laws of the State of Ohio without giving effect to any choice or conflict of law provision or rule that would require or permit the application of the laws of any jurisdiction other than those of the State of Ohio. Any dispute or matter arising in connection with or relating to this Agreement other than an action for collection of fees due to High Enroll shall be resolved by binding and final arbitration. The arbitration shall be conducted pursuant to applicable Ohio arbitration law. The exclusive jurisdiction and forum for resolution of any such dispute shall lie in Hamilton County, Ohio. BY AGREEING TO MANDATORY ARBITRATION HEREUNDER, EACH PARTY IRREVOCABLY AND UNCONDITIONALLY WAIVES ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LEGAL ACTION ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY.
    9. Assignment. Customer may not assign any of its rights or delegate any of its obligations hereunder, in each case whether voluntarily, involuntarily, by operation of law or otherwise, without the prior written consent of High Enroll, which consent shall not be unreasonably withheld, conditioned, or delayed. Any purported assignment or delegation in violation of this Section will be null and void. No assignment or delegation will relieve the assigning or delegating Party of any of its obligations hereunder. This Agreement is binding upon and inures to the benefit of the Parties and their respective permitted successors and assigns.
    10. Export Regulation. Customer shall comply with all applicable federal laws, regulations, and rules, and complete all required undertakings (including obtaining any necessary export license or other governmental approval), that prohibit or restrict the export or re-export of the Services or any Customer Data outside the US.
    11. US Government Rights. Each of the Documentation and the software components that constitute the Services is a “commercial item” as that term is defined at 48 C.F.R. § 2.101, consisting of “commercial computer software” and “commercial computer software documentation” as such terms are used in 48 C.F.R. § 12.212. Accordingly, if Customer is an agency of the US Government or any contractor therefor, Customer only receives those rights with respect to the Services and Documentation as are granted to all other end users, in accordance with (a) 48 C.F.R. § 227.7201 through 48 C.F.R. § 227.7204, with respect to the Department of Defense and their contractors, or (b) 48 C.F.R. § 12.212, with respect to all other US Government users and their contractors.
    12. Counterparts. This Agreement may be executed in counterparts, each of which is deemed an original, but all of which together are deemed to be one and the same agreement.
    13. Equitable Relief. Each Party acknowledges and agrees that a breach or threatened breach by such Party of any of its obligations under Section 5 or, in the case of Customer, Section 2(c), would cause the other Party irreparable harm for which monetary damages would not be an adequate remedy and agrees that, in the event of such breach or threatened breach, the other Party will be entitled to equitable relief, including a restraining order, an injunction, specific performance, and any other relief that may be available from any court, without any requirement to post a bond or other security, or to prove actual damages or that monetary damages are not an adequate remedy. Such remedies are not exclusive and are in addition to all other remedies that may be available at law, in equity, or otherwise.