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Platform Agreement

Last updated: 08/10/22

Researcher Platform Agreement

Sharecare Smart Omix Platform Agreement


THIS PLATFORM AGREEMENT (THE "AGREEMENT") IS A LEGAL AGREEMENT BETWEEN YOU ("CUSTOMER") AND SHARECARE OPERATING COMPANY, INC. ("SHARECARE"). BY CLICKING THE "I ACCEPT" BUTTON, EXECUTING AN ORDER FORM THAT INCLUDES THIS AGREEMENT BY REFERENCE OR USING THE PLATFORM, CUSTOMER ACKNOWLEDGES THAT CUSTOMER HAS REVIEWED AND ACCEPTS THIS AGREEMENT. IF YOU ARE AGREEING TO THIS AGREEMENT AS AN INDIVIDUAL, “CUSTOMER” REFERS TO YOU INDIVIDUALLY. IF YOU ARE AGREEING TO THIS AGREEMENT AS A REPRESENTATIVE OF AN ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND THAT ENTITY AND “CUSTOMER” REFERS TO THAT ENTITY AND ALL THE USERS SPECIFIED IN THE ORDER FORM. IF CUSTOMER DOES NOT AGREE WITH ALL OF THE TERMS OF THIS AGREEMENT, DO NOT ACCESS OR OTHERWISE USE THE PLATFORM REFERENCED IN THE ORDER FORM. SHARECARE MAY MAKE CHANGES TO THE PLATFORM AT ANY TIME. IN ADDITION, SHARECARE MAY MAKE CHANGES TO THIS AGREEMENT AT ANY TIME, AND WILL POST NOTICE OF THE CHANGES AND THE UPDATED AGREEMENT OR SEND AN E-MAIL NOTIFICATION TO THE E-MAIL ADDRESS OF RECORD FOR CUSTOMER. CUSTOMER’S CONTINUED USE OF THE PLATFORM AFTER SUCH CHANGES HAVE BEEN POSTED WILL SIGNIFY CUSTOMER’S ASSENT TO AND ACCEPTANCE OF THE REVISED AGREEMENT.

1. DEFINITIONS.


1.1 “Activation Date” means the date, set forth in the applicable Order Form, on which the Platform is scheduled to be made available to Customer.
1.2 “Ancillary Services” means implementation, training or consulting services that Sharecare may perform as described in a SOW executed by the parties.
1.3 “Authorized Purposes” means Customer’s internal business purposes if the Subscription Term is not for an Evaluation License or a Beta License. If the Subscription Term is for an Evaluation License or a Beta License, then “Authorized Purposes” means Customer’s internal testing and evaluation use only and not for any production use.
1.4 “Beta License” means a non-production license granted to Customer with respect to a pre-release version of the Platform for the limited period specified in the Order Form.
1.5 “Customer Data” means all data submitted, stored, posted, displayed, or otherwise transmitted by or on behalf of Customer or any User and received and analyzed by the Platform, including but not limited to the content and results of any Study.
1.6 “Customer System” means Customer’s internal website(s), servers and other equipment and software used in the conduct of Customer’s business.
1.7 “Documentation” means the printed, paper, electronic or online user instructions and help files made available by Sharecare for use with the Platform, as may be updated from time to time by Sharecare.
1.8 “Evaluation License” means a non-production license granted to Customer with respect to the Software for the limited period of time specified in the Order Form.
1.9 “Intellectual Property Rights” means all intellectual property rights or similar proprietary rights, including (a) patent rights and utility models, (b) copyrights and database rights, (c) trademarks, trade names, domain names and trade dress and the goodwill associated therewith, (d) trade secrets, (e) mask works, and (f) industrial design rights; in each case, including any registrations of, applications to register, and renewals and extensions of, any of the foregoing in any jurisdiction in the world.
1.10 “Malicious Code” means viruses, worms, time bombs, Trojan horses and other harmful or malicious code, files, scripts, agents or programs.
1.11 “Open Source Software” means all software that is available under the GNU General Public License (GPL), GNU Lesser General Public License (LGPL), Mozilla Public License (MPL), Apache License, BSD licenses, or any other license that approved by the Open Source Initiative (www.opensource.org).
1.12 “Order Form” means the ordering documents for Services purchased from Sharecare that are executed hereunder by the parties from time to time, including modifications, supplements and addend thereto. Order Forms are incorporated herein.
1.13 “Participant” means any person participating in a Study created and launched by Customer.
1.14 “Participant Data” means all data submitted, stored, posted, displayed, or otherwise transmitted by or on behalf of any Participant in connection with any Study and received and analyzed by the Platform.
1.15 “Platform” means the hosted services provided by Sharecare to Customer pursuant to this Agreement, and for all purposes of this Agreement, such services exclude any Open Source Software that may be used to provide the Platform and all Third Party Offerings.
1.16 “Services” means the Platform, Support Services, and any Ancillary Services.
1.17 “Statement of Work” or “SOW” means a written statement of work entered into and signed by the parties describing Ancillary Services to be provided by Sharecare to Customer.
1.18 “Study” means the research conducted by Customer using the Platform.
1.19 “Subscription Term” means the subscription period for Customer’s use of the Platform set forth in an Order Form. Unless otherwise specified in the applicable Order Form, the Subscription Term for an Evaluation License and a Beta License is limited to 60 days from the Activation Date.
1.20 “Support Services” means the support and maintenance services offered by Sharecare and purchased by Customer separately pursuant to an Order Form.

1.21 “Third Party Offerings” means certain software or services delivered or performed by third parties that are required for the operation of the Platform, or other online, web-based CRM, ERP, or other business application subscription services, and any associated offline products provided by third parties, that interoperate with the Platform.
1.22 “Users” means Customer’s employees, consultants, contractors, agents and third parties with whom Customer may transact business and (a) for whom access to the Platform during the Subscription Term have been purchased pursuant to an Order Form, (b) who are authorized by Customer to access and use the Platform, and (c) where applicable, who have been supplied user identifications and passwords for such purpose by Customer (or by Sharecare at Customer’s request).

2. ORDERS; LICENSES; RESTRICTIONS; RESERVATION OF RIGHTS.


2.1 Orders. Subject to the terms and conditions contained in this Agreement, Customer may purchase or otherwise acquire subscriptions for Users to access and use the Platform pursuant to Order Forms. Unless otherwise specified in the applicable Order Form, User subscriptions are for designated Users only and cannot be shared or used by more than one User, but may be reassigned to new Users replacing former Users who no longer require ongoing use of the Platform. Customer agrees that its purchases hereunder are neither contingent on the delivery of any future functionality or features nor dependent on any oral or written public comments made by Sharecare regarding any future functionality or features. If there is any inconsistency between an Order Form and this Agreement, this Agreement controls.
2.2 Access and Use License. Subject to Customer’s compliance with the terms and conditions contained in this Agreement, Sharecare hereby grants to Customer, during the relevant Subscription Term, a limited, non-exclusive, non-transferable right for its Users to access and use the Platform in accordance with the Documentation in each case solely for Customer’s Authorized Purposes and not for the benefit of any other person or entity. Customer’s use of the Platform may be subject to certain limitations, such as, for example, limits on storage capacity for Customer Data. Any such limitations will be specified either in the Order Form or in the Documentation.
2.3 Restrictions. Customer shall not, directly or indirectly, and Customer shall not permit any User or third party to: (a) reverse engineer, decompile, disassemble or otherwise attempt to discover the object code, source code or underlying ideas or algorithms of the Platform; (b) modify, translate, or create derivative works based on any element of the Platform or any related Documentation; (c) rent, lease, distribute, sell, resell, assign, or otherwise transfer its rights to use the Platform; (d) use the Platform for timesharing purposes or otherwise for the benefit of any person or entity other than for the benefit of Customer and Users; (e) remove any proprietary notices from the Documentation; (f) publish or disclose to third parties any evaluation of the Platform without Sharecare's prior written consent; (g) use the Platform for any purpose other than its intended purpose; (h) interfere with or disrupt the integrity or performance of the Platform; (i) introduce any Open Source Software into the Platform; or (j) attempt to gain unauthorized access to the Platform or its related systems or networks.
2.4 Reservation of Rights. Except as expressly granted in this Agreement, there are no other licenses granted to Customer, express, implied or by way of estoppel. All rights not granted in this Agreement are reserved by Sharecare. Without limiting the generality of the foregoing, Sharecare reserves the right to reject and prevent the operation of any Study in its sole and absolute discretion. Customer acknowledges that this right is necessary for Sharecare to protect its reputation in the event Customer were to use the Platform to conduct a Study inconsistent with Sharecare’s company values or otherwise contrary to its interests.


3. THIRD PARTY OFFERINGS.


3.1 Use of Third Party Offerings. Sharecare or third parties may from time to time make Third Party Offerings available to Customer. Any acquisition by Customer of any such Third Party Offerings, and any exchange of data between Customer and any provider of a Third Party Offering, is solely between Customer and the applicable provider of the Third Party Offering. Sharecare does not warrant or support any Third Party Offering, whether or not they are designated by Sharecare as “certified” or otherwise, except as specified in an Order Form. If Customer installs or enables any Third Party Offering for use with Platform, Customer acknowledges that Sharecare may allow providers of that Third Party Offering to access Customer Data as required for the interoperation and support of such Third Party Offering with the Platform. oc.ai shall not be responsible for any disclosure, modification or deletion of Customer Data resulting from any such access by the providers of Third Party Offerings.
3.2 Integration with Third Party Offerings. The Platform may contain features designed to interoperate with Third Party Offerings (e.g., Google, Facebook or Twitter applications). To use such features, Customer may be required to obtain access to such Third Party Offering from their providers. If the provider of any Third Party Offering ceases to make the Third Party Offering available for interoperation with the corresponding Platform features on reasonable terms, Sharecare may cease providing such features without entitling Customer to any refund, credit, or other compensation.
3.3 Third Party Hosting. Sharecare may use the services of one or more third parties to deliver any part of the Services. Sharecare will pass-through any warranties to the extent that Sharecare receives any from its then current third-party service provider that it can provide to Customer. Customer agrees to comply with any acceptable use policies and other terms of any third-party service provider that are provided or otherwise made available to Customer from time to time.


4. PASSWORDS; SECURITY.


4.1 Passwords. Sharecare will issue to Customer, user logins and passwords for each of their Users authorized to access and use the Platform. Customer shall be, and shall ensure that each of their respective Users are, responsible for maintaining the confidentiality of all user logins and passwords and for ensuring that each user login and password is used only by the User to which it was issued. Customer is solely responsible for any and all access and use of the Platform that occurs using logins and passwords Sharecare issues to any of Customer. Customer shall restrict its Users from sharing passwords. Customer agrees to immediately notify Sharecare of any unauthorized use of any account or login and password issued to Customer’s Users, or any other breach of security known to Customer. Sharecare shall have no liability for any loss or damage arising from Customer’s failure to comply with the terms set forth in this Section.
4.2 No Circumvention of Security. Neither Customer nor any User may circumvent or otherwise interfere with any user authentication or security of the Platform. Customer will immediately notify Sharecare of any breach, or attempted breach, of security known to Customer.
4.3 Security. Sharecare will use commercially reasonable efforts to maintain appropriate administrative, physical and technical safeguards for protection of the security, confidentiality and integrity of Customer Data in a in a manner consistent with what Sharecare supplies generally to its other customers. Notwithstanding the foregoing, Customer acknowledges that, notwithstanding any security precautions deployed by Sharecare, the use of, or connection to, the Internet provides the opportunity for unauthorized third parties to circumvent such precautions and illegally gain access to the Platform and Customer Data. Sharecare cannot and does not guaranty the privacy, security, integrity or authenticity of any information transmitted over or stored in any system connected to or accessible via the Internet or otherwise or that any such security precautions will be adequate or sufficient. Sharecare shall not (a) modify Customer Data, (b) disclose Customer Data except as compelled by law or as expressly permitted in writing by Customer, or (c) access Customer Data except to provide the Services and prevent or address service or technical problems, or at Customer's request in connection with customer support matters.


5. CUSTOMER OBLIGATIONS.


5.1 Customer System. Customer is responsible for (a) obtaining, deploying and maintaining the Customer System, and all computer hardware, software, modems, routers and other communications equipment necessary for Customer and their respective Users to access and use the Platform via the Internet; (b) contracting with third party ISP, telecommunications and other service providers to access and use the Platform via the Internet; and (c) paying all third party fees and access charges incurred in connection with the foregoing. Except as specifically set forth in this Agreement, an Order Form or a Statement of Work, Sharecare shall not be responsible for supplying any hardware, software or other equipment to Customer under this Agreement.
5.2 Acceptable Use Policy. Customer shall be solely responsible for its actions and the actions of its Users while using the Platform. Customer acknowledges and agrees: (a) to abide by all local, state, national, and international laws and regulations applicable to Customer’s use of the Platform, including without limitation the provision and storage of Customer Data; (b) not to send or store data on or to the Platform which violates the rights of any individual or entity established in any jurisdiction; (c) not to upload in any way any information or content that contain Malicious Code or data that may damage the operation of the Platform or another's computer or mobile device; (d) not to upload any data regarding an individual’s financial or economic identity, sexual orientation, religious beliefs, medical or physical identity, including any information comprised of either “Protected Health Information” subject to and defined by the Health Insurance Portability and Accountability Act, or an individual’s first name and last name, or first initial and last name, in combination with any one or more of the following data elements that relate to such individual: Social Security number, driver's license number or state-issued identification card number, financial account number, or credit or debit card number, with or without any required security code, access code, personal identification number or password, that would permit access to an individual’s financial account; (e) not to use the Platform for illegal, fraudulent, unethical or inappropriate purposes; (f) not to interfere or disrupt networks connected to the Platform or interfere with other ability to access or use the Platform; (g) not to distribute, promote or transmit through the Platform any unlawful, harmful, obscene, pornographic or otherwise objectionable material of any kind or nature; (h) not to transmit or post any material that encourages conduct that could constitute a criminal offense or give rise to civil liability; (i) not to interfere with another customer’s use and enjoyment of the Platform or another person or entity's use and enjoyment of similar services; (j) not to use the Platform in any manner that impairs the Platform, including without limitation the servers and networks on which the Platform is provided; (k) to comply with all regulations, policies and procedures of networks connected to the Platform and Sharecare’s service providers; (l) solicit, collect, or retain Participant Data in violation of applicable law or regulation; and (l) to use the Platform only in accordance with the Documentation. Customer acknowledges and agrees that Sharecare neither endorses the contents of any Customer communications, Customer Data, or Other Information (as defined in Section 12.2 below) nor assumes any responsibility for any offensive material contained therein, any infringement of third party Intellectual Property Rights arising therefrom or any crime facilitated thereby. Sharecare may remove any violating content posted or stored using the Platform or transmitted through the Platform, without notice to Customer. Notwithstanding the foregoing, Sharecare does not guarantee, and does not and is not obligated to verify, authenticate, monitor or edit the Customer Data, Other Information, or any other information or data input into or stored in the Platform for completeness, integrity, quality, accuracy or otherwise. Customer shall be responsible and liable for the completeness, integrity, quality and accuracy of Customer Data and Other Information input into the Platform. Sharecare reserves the right to amend, alter, or modify Customer’s conduct requirements as set forth in this Agreement at any time. Sharecare may deliver notice of such updated requirements to Customer via e-mail or through the Platform. Customer’s continued access to and use of the Platform following issuance of such updated Customer requirements shall constitute Customer’s acceptance thereof. Sharecare may upon written notice to Customer amend this Section 5.2. In addition to the foregoing, Users may be required to accept Sharecare’s Smart Omix Terms of Use and User’s use of the Platform will be subject to the Terms of Use.
5.3 Accuracy of Customer’s Contact Information; Email Notices. Customer agrees to provide accurate, current and complete information as necessary for Sharecare to communicate with Customer from time to time regarding the Services, issue invoices or accept payment, or contact Customer for other account-related purposes. Customer agrees to keep any online account information current and inform Sharecare of any changes in Customer’s legal business name, address, email address and phone number. Customer agrees to accept emails from Sharecare at the e-mail addresses specified by its Users for login purposes. In addition, Customer agrees that Sharecare may rely and act on all information and instructions provided to Sharecare by Users from the above-specified e-mail address.
5.4 IRB Attestation. Before Customer conducts a Study using the Platform, Customer must attest to Institutional Review Board (“IRB”) approval or exemption. Such attestation will be a legally binding statement made on behalf of Customer, governed by the terms of this Agreement.
5.5 Temporary Suspension. Sharecare may temporarily suspend Customer’s or their respective Users’ access to the Platform in the event that either Customer any of their Users is engaged in, or Sharecare in good faith suspects Customer or any of their Users is engaged in, any unauthorized conduct (including, but not limited to any violation of this Agreement). Sharecare will attempt to contact Customer prior to or contemporaneously with such suspension; provided, however, that Sharecare’s exercise of the suspension rights herein shall not be conditioned upon Customer’s receipt of any notification. A suspension may take effect for Customer’s entire account and Customer understands that such suspension would therefore include User sub-accounts. Customer agrees that Sharecare shall not be liable to Customer, any of its Users, or any other third party if Sharecare exercises its suspension rights as permitted by this Section. Upon determining that Customer has ceased the unauthorized conduct leading to the temporary suspension to Sharecare’s reasonable satisfaction, Sharecare shall reinstate Customer’s and their respective Users’ access and use of the Platform. Notwithstanding anything in this Section to the contrary, Sharecare’s suspension of Platform is in addition to any other remedies that Sharecare may have under this Agreement or otherwise, including but not limited to termination of this Agreement for cause. Additionally, if there are repeated incidences of suspension, regardless of the same or different cause and even if the cause or conduct is ultimately cured or corrected, Sharecare may, in its reasonable discretion, determine that such circumstances, taken together, constitute a material breach.
5.6 Participant Data. Customer is responsible for the privacy and security of Participant Data as the controller of such data. The Platform is designed to transmit minimal Participant Data to Sharecare. The parties will comply with their respective obligations under the SmartOmix Data Processing Addendum located at www.smartomix.com/dpa.


6. SUPPORT SERVICES.


6.1 Support. Sharecare makes a variety of Support Services offerings available to its customers and will provide Customer with the level of support to which Customer is entitled based on Customer’s purchase as set forth in an Order Form.
6.2 Evaluation and Beta Licenses. No service level agreement is offered or made in connection with this Agreement if the Subscription Term is for an Evaluation License or a Beta License. Sharecare has no obligation to support or maintain the Platform during the Subscription Term of any Evaluation License or Beta License in any way, correct any errors or deficiencies in the Platform or provide updates, new builds or error corrections.


7. ANCILLARY SERVICES. Sharecare shall use commercially reasonable efforts to perform the Ancillary Services as set forth in applicable mutually executed SOWs. Each SOW will include, at a minimum: (a) a description of the scope of Ancillary Services, (b) any work product or other deliverables to be provided to Customer (each a “Deliverable”), (c) the schedule for the provision of Ancillary Services, and (d) the applicable fees and payment terms for such Ancillary Services. All SOWs shall be deemed part of and subject to this Agreement. If there is any inconsistency between an SOW and this Agreement, the SOW shall control. If either Customer or Sharecare requests a change to the scope of Ancillary Services described in a SOW, the party seeking the change shall propose such change by written notice. Promptly following the other party’s receipt of the written notice, the parties shall discuss and agree upon the proposed changes. Sharecare will prepare a change order document describing the agreed changes to the SOW and any applicable change in fees and expenses (a “Change Order”). Change Orders are not binding unless and until executed by both parties. Executed Change Orders shall be deemed part of, and subject to, this Agreement. Sharecare and Customer shall cooperate to enable Sharecare to perform the Ancillary Services according to the dates of performance and delivery terms set forth in each SOW. In addition, Customer shall perform any Customer obligations specified in each SOW. In the event the Ancillary Services are not performed in accordance with the terms of the applicable SOW, Sharecare shall notify Customer in writing no later than thirty (30) calendar days after performance of the affected Ancillary Services by Sharecare, Customer’s notice shall specify the basis for non-compliance with the SOW and if Sharecare agrees with the basis for non-compliance, then at Sharecare sole option, Sharecare shall re-perform the Ancillary Services at no additional charge to Customer or refund to Customer the applicable fees for the affected Deliverable or Ancillary Service. THE FOREGOING CONSTITUTES CUSTOMER’S SOLE AND EXCLUSIVE REMEDY AND SHARECARE’S SOLE AND EXCLUSIVE LIABILITY WITH RESPECT TO PERFORMANCE OR NON-PERFORMANCE OF THE ANCILLARY SERVICES.


8. FEES AND PAYMENT.


8.1 Fees. Customer agrees to pay all fees specified in all Order Forms and SOWs using one of the payment methods Sharecare supports. Except as otherwise specified in this Agreement or in an Order Form, (a) fees are quoted and payable in United States dollars, (b) fees are based on Services purchased, regardless of actual usage, (c) payment obligations are non-cancelable and fees paid are non-refundable, and (d) the number of Users of Subscription Terms purchased cannot be decreased during the relevant Subscription Term shown on the applicable Order Form(s). User subscription fees are based on monthly periods that begin on the subscription start date and each monthly anniversary thereof; therefore, fees for User subscriptions added in the middle of a monthly period will be charged for that full monthly period and the monthly periods remaining in the subscription term. All amounts payable under this Agreement will be made without setoff or counterclaim, and without any deduction or withholding.
8.2 Invoices and Payment. All fees for Platform will be invoiced in advance and in accordance with the applicable Order Form. Fees for Ancillary Services will be invoiced as set forth in an applicable SOW or Order Form. Except as otherwise set forth in the applicable Order Form or SOW, Customer agrees to pay all invoiced amounts within thirty (30) calendar days of the invoice date. Customer is responsible for providing complete and accurate billing and contact information to Sharecare and notifying Sharecare of any changes to such information.
8.3 Overdue Charges. If Sharecare does not receive fees by the due date, then at Sharecare’s discretion, (a) such charges may accrue late interest at the rate of 1.5% of the outstanding balance per month, or the maximum rate permitted by law, whichever is lower, from the date such payment was due until the date paid; and (b) Sharecare may condition future purchases of Services and Order Forms on payment terms shorter than those specified in Section 9.2 (Invoices and Payment).
8.4 Suspension of Service. If any amounts owed by Customer for the Services are Fifteen (15) or more days overdue, Sharecare may, without limiting Sharecare’s other rights and remedies, suspend Customer’s and its Users’ access to the Services until such amounts are paid in full.
8.5 Payment Disputes. Sharecare agrees that it will not exercise its rights under Section 9.3 (Overdue Charges) or Section 9.4 (Suspension of Service) if the applicable charges are under reasonable and good-faith dispute and Customer is cooperating diligently to resolve the dispute.
8.6 Taxes. “Taxes” means all taxes, levies, imposts, duties, fines or similar governmental assessments imposed by any jurisdiction, country or any subdivision or authority thereof including, but not limited to federal, state or local sales, use, property, excise, service, transaction, privilege, occupation, gross receipts or similar taxes, in any way connected with this Agreement or any instrument, order form or agreement required hereunder, and all interest, penalties or similar liabilities with respect thereto, except such taxes imposed on or measured by a party’s net income. Notwithstanding the foregoing, Taxes shall not include payroll taxes attributable to the compensation paid to workers or employees and each party shall be responsible for its own federal and state payroll tax collection, remittance, reporting and filing obligations. Fees and charges imposed under this Agreement or under any order form or similar document ancillary to or referenced by this Agreement shall not include Taxes except as otherwise provided herein. Customer shall be responsible for all of such Taxes. If, however, Sharecare has the legal obligation to pay Taxes and is required or permitted to collect such Taxes for which Customer is responsible under this section, Customer shall promptly pay the Taxes invoiced by Sharecare unless Customer has furnished Sharecare with valid tax exemption documentation regarding such Taxes at the execution of this Agreement or at the execution of any subsequent instrument, order form or agreement ancillary to or referenced by this Agreement. Customer shall comply with all applicable tax laws and regulations. Customer hereby agrees to indemnify Sharecare for any Taxes and related costs paid or payable by Sharecare attributable to Taxes that would have been Customer’s responsibility under this Section 9.6 if invoiced to Customer. Customer shall promptly pay or reimburse Sharecare for all costs and damages related to any liability incurred by Sharecare as a result of Customer’s non-compliance or delay with its responsibilities herein. Customer’s obligation under this Section 9.6 shall survive the termination or expiration of this Agreement.


9. REPRESENTATIONS AND WARRANTIES; DISCLAIMER.


9.1 Mutual Representations and Warranties. Each party represents, warrants and covenants that: (a) it has the full power and authority to enter into this Agreement and to perform its obligations hereunder, without the need for any consents, approvals or immunities not yet obtained; and (b) its acceptance of and performance under this Agreement shall not breach any oral or written agreement with any third party or any obligation owed by it to any third party to keep any information or materials in confidence or in trust.
9.2 Evaluations of New Services. From time to time Sharecare may invite Customer to try, at no charge, Sharecare products or services that are not generally available to Sharecare customers (“Non-GA Services”). Customer may accept or decline any such trial in its sole discretion. Any Non-GA Services will be clearly designated as beta, pilot, limited release, developer preview, non-production or by a description of similar import. Non-GA Services are provided for evaluation purposes and not for production use, are not supported, may contain bugs or errors (but shall not knowingly contain any undisclosed Malicious Code), and may be subject to additional terms that shall be provided by Sharecare to Customer prior to or concurrent with Sharecare’s invitation to the applicable Non-GA Services. Non-GA Services are not considered “Services” hereunder. Customer has the right to discontinue Non-GA Services at any time in its sole discretion and may never make them generally available.
9.3 Regulatory Compliance. Customer represents and warrants, and covenants on behalf of itself and its Users that it does and shall comply with and conduct all aspects of the study, including the recruitment and treatment of subjects, in compliance with the terms of this Agreement, the IRB-approved protocol, all applicable federal, state, and local laws and regulations, including as applicable to the study, generally accepted standards of good clinical practice as adopted by current U.S. Food and Drug Administration (FDA) regulations and statutes and regulations of the U.S. government relating to exportation of technical data, computer software, laboratory prototypes, and other commodities as applicable to Customer. Customer acknowledges that the purpose of the Platform is strictly to provide support services related to study design and electronic data capture and that Customer, not Sharecare, is responsible for ensuring all regulated activities related to the Study (including as related to adverse event reporting; sponsor responsibilities; principal investigator responsibilities; the creation, maintenance, modification, storage, archival, and distribution of records; the content of research documentation, including the consent form; and handling investigations or audits by regulatory agencies), comply with the IRB-approved protocol and such applicable laws and regulations. Without limiting the generality of the foregoing, as between Customer and Sharecare, Customer shall be responsible for implementing Participant consents that are compliant with Part 11 of Title 21 of the Code of Federal Regulations (“Part 11”), notwithstanding the fact that Platform’s electronic signature functionality is designed to be, and Sharecare may advertise it as being, compliant with the relevant portion of Part 11.
9.4 Disclaimer. EXCEPT FOR THE WARRANTIES SET FORTH IN THIS SECTION 10, THE PLATFORM, SUPPORT SERVICES, ANCILLARY SERVICES, THIRD-PARTY OFFERINGS AND ANY NON-GA SERVICES ARE PROVIDED ON AN AS-IS BASIS. CUSTOMER’S USE OF THE PLATFORM, SUPPORT SERVICES, ANCILLARY SERVICES, THIRD-PARTY OFFERINGS AND NON-GA SERVICES IS AT ITS OWN RISK. SHARECARE DOES NOT MAKE, AND HEREBY DISCLAIMS, ANY AND ALL OTHER EXPRESS, STATUTORY AND IMPLIED REPRESENTATIONS AND WARRANTIES, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NONINFRINGEMENT AND TITLE, QUALITY, SUITABILITY, OPERABILITY, CONDITION, SYSTEM INTEGRATION, NON-INTERFERENCE, WORKMANSHIP, TRUTH, ACCURACY (OF DATA OR ANY OTHER INFORMATION OR CONTENT), ABSENCE OF DEFECTS, WHETHER LATENT OR PATENT, AND ANY WARRANTIES ARISING FROM A COURSE OF DEALING, USAGE, OR TRADE PRACTICE. THE EXPRESS WARRANTIES MADE BY SHARECARE IN SECTION 10 ARE FOR THE BENEFIT OF THE CUSTOMER ONLY AND NOT FOR THE BENEFIT OF ANY THIRD PARTY. ANY SOFTWARE PROVIDED THROUGH THE PLATFORM IS LICENSED AND NOT SOLD. NO WARRANTIES OF ANY KIND WHATSOEVER ARE MADE FOR CUSTOMER’S BENEFIT DURING THE SUBSCRIPTION TERM OF ANY EVALUATION LICENSE OR BETA LICENSE.
NO AGENT OF SHARECARE IS AUTHORIZED TO ALTER OR EXPAND THE WARRANTIES OF SHARECARE AS SET FORTH HEREIN. SHARECARE DOES NOT WARRANT THAT: (A) THE USE OF THE SERVICES OR NON-GA SERVICES WILL BE SECURE, TIMELY, UNINTERRUPTED OR ERROR-FREE OR OPERATE IN COMBINATION WITH ANY OTHER HARDWARE, SOFTWARE, SYSTEM OR DATA; (B) THE SERVICES WILL MEET CUSTOMER’S REQUIREMENTS OR EXPECTATIONS; (C) ANY STORED DATA WILL BE ACCURATE OR RELIABLE; (D) THE QUALITY OF ANY INFORMATION OR OTHER MATERIAL OBTAINED BY CUSTOMER THROUGH THE SERVICES WILL MEET CUSTOMER’S REQUIREMENTS OR EXPECTATIONS; (E) THE SERVICES WILL BE ERROR-FREE OR THAT ERRORS OR DEFECTS IN THE SERVICES AND NON-GA SERVICES WILL BE CORRECTED; OR (F) THE SERVER(S) THAT MAKE THE SERVICES AND NON-GA SERVICES AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. THE SERVICES AND NON-GA SERVICES MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS. SHARECARE IS NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES, OR OTHER DAMAGES RESULTING FROM SUCH PROBLEMS.

10. INDEMNIFICATION.


10.1 Sharecare Indemnity.
(a) General. During the Subscription Term (other than with respect to an Evaluation License or a Beta License), Sharecare, at its expense, shall defend Customer and their respective officers, directors and employees (the “Customer Indemnified Parties”) from and against all actions, proceedings, claims and demands by a third party (a “Third-Party Claim”) alleging that the Platform infringes any copyright or misappropriates any trade secret and shall pay all damages, costs and expenses, including attorneys’ fees and costs (whether by settlement or award of by a final judicial judgment) paid to the Third Party bringing any such Third-Party Claim. Sharecare’s obligations under this Section are conditioned upon (i) Sharecare being promptly notified in writing of any claim under this Section, (ii) Sharecare having the sole and exclusive right to control the defense and settlement of the claim, and (iii) Customer providing all reasonable assistance (at Sharecare’s expense and reasonable request) in the defense of such claim. In no event shall Customer settle any claim without Sharecare’s prior written approval. Customer may, at its own expense, engage separate counsel to advise Customer regarding a Claim and to participate in the defense of the claim, subject to Sharecare’s right to control the defense and settlement.
(b) Mitigation. If any claim which Sharecare is obligated to defend has occurred, or in Sharecare’s determination is likely to occur, Sharecare may, in its sole discretion and at its option and expense (a) obtain for Customer the right to use the Platform, (b) substitute a functionality equivalent, non-infringing replacement for such the Platform, (c) modify the Platform to make it non-infringing and functionally equivalent, or (d) terminate this Agreement and refund to Customer any prepaid amounts attributable the period of time between the date Customer was unable to use the Platform due to such claim and the remaining days in the then-current Subscription Term.
(c) Exclusions. Notwithstanding anything to the contrary in this Agreement, the foregoing obligations shall not apply with respect to a claim of infringement if such claim arises out of (i) Customer’s use of infringing Customer Data; (ii) use of the Platform in combination with any software, hardware, network or system not supplied by Sharecare where the alleged infringement relates to such combination, (iii) any modification or alteration of the Platform other than by Sharecare, (iv) Customer’s continued use of the Platform after Sharecare notifies Customer to discontinue use because of an infringement claim, (v) Customer’s violation of applicable law; (vi) Third Party Offerings; and (vii) Customer System.
(d) Sole Remedy. THE FOREGOING STATES THE ENTIRE LIABILITY OF SHARECARE WITH RESPECT TO THE INFRINGEMENT OF ANY INTELLECTUAL PROPERTY OR PROPRIETARY RIGHTS BY THE PLATFORM OR OTHERWISE, AND CUSTOMER HEREBY EXPRESSLY WAIVES ANY OTHER LIABILITIES OR OBLIGATIONS OF SHARECARE WITH RESPECT THERETO. NO INDEMNITIES OF ANY KIND WHATSOEVER ARE MADE FOR CUSTOMER’S BENEFIT DURING THE SUBSCRIPTION TERM OF ANY EVALUATION LICENSE OR BETA LICENSE.
10.2 Customer Indemnity. Customer shall defend Sharecare and its licensors and their respective officers, directors and employees (“Sharecare Indemnified Parties”) from and against any and all Third-Party Claims which arise out of or relate to: (a) a claim or threat that the Customer Data or Customer System (and the exercise by Sharecare of the rights granted herein with respect thereto) infringes, misappropriates or violates any third party’s Intellectual Property Rights; (b) Customer’s use or alleged use of the Platform other than as permitted under this Agreement; (c) arising from the occurrence of any of the exclusions set forth in Section 11.1(c); or (d) brought by any Participant, Customer client, actual or potential consumer of Customer’s products, and/or regulatory body and in any way related to a Study or Customer Data. Customer shall pay all damages, costs and expenses, including attorneys’ fees and costs (whether by settlement or award of by a final judicial judgment) paid to the Third Party bringing any such Third-Party Claim. Customer’s obligations under this Section are conditioned upon (x) Customer being promptly notified in writing of any claim under this Section, (y) Customer having the sole and exclusive right to control the defense and settlement of the claim, and (z) Sharecare providing all reasonable assistance (at Customer’s expense and reasonable request) in the defense of such claim. In no event shall Sharecare settle any claim without Customer’s prior written approval. Sharecare may, at its own expense, engage separate counsel to advise Sharecare regarding a Third-Party Claim and to participate in the defense of the claim, subject to Customer’s right to control the defense and settlement.


11. CONFIDENTIALITY.


11.1 Confidential Information. “Confidential Information” means any and all non-public technical and non-technical information disclosed by one party (the “Disclosing Party”) to the other party (the “Receiving Party”) in any form or medium, whether oral, written, graphical or electronic, pursuant to this Agreement, that is marked confidential and proprietary, or that the Disclosing Party identifies as confidential and proprietary, or that by the nature of the circumstances surrounding the disclosure or receipt ought to be treated as confidential and proprietary information, including but not limited to: (a) techniques, sketches, drawings, models, inventions (whether or not patented or patentable), know-how, processes, apparatus, formulae, equipment, algorithms, software programs, software source documents, APIs, and other creative works (whether or not copyrighted or copyrightable); (b) information concerning research, experimental work, development, design details and specifications, engineering, financial information, procurement requirements, purchasing, manufacturing, customer lists, business forecasts, sales and merchandising and marketing plans and information; (c) proprietary or confidential information of any third party who may disclose such information to Disclosing Party or Receiving Party in the course of Disclosing Party’s business; and (d) the terms of this Agreement and any Order Form or Statement of Work. Confidential Information of Sharecare shall include the Platform, the documentation, the pricing, and the terms and conditions of this agreement. Confidential Information also includes all summaries and abstracts of Confidential Information.
11.2 Non-Disclosure. Each party acknowledges that in the course of the performance of this Agreement, it may obtain the Confidential Information of the other party. The Receiving Party shall, at all times, both during the Term and thereafter, keep in confidence and trust all of the Disclosing Party’s Confidential Information received by it. The Receiving Party shall not use the Confidential Information of the Disclosing Party other than as necessary to fulfill the Receiving Party’s obligations or to exercise the Receiving Party’s rights under this Agreement. Each party agrees to secure and protect the other party’s Confidential Information with the same degree of care and in a manner consistent with the maintenance of such party’s own Confidential Information (but in no event less than reasonable care), and to take appropriate action by instruction or agreement with its employees or other agents who are permitted access to the other party’s Confidential Information to satisfy its obligations under this Section. The Receiving Party shall not disclose Confidential Information of the Disclosing Party to any person or entity other than its officers, employees and agents who need access to such Confidential Information in order to effect the intent of this Agreement and who are subject to confidentiality obligations at least as stringent as the obligations set forth in this Agreement.
11.3 Exceptions to Confidential Information. The obligations set forth in Section 12.2 (Non-Disclosure) shall not apply to the extent that Confidential Information includes information which: (a) was known by the Receiving Party prior to receipt from the Disclosing Party either itself or through receipt directly or indirectly from a source other than one having an obligation of confidentiality to the Disclosing Party; (b) was developed by the Receiving Party without use of the Disclosing Party’s Confidential Information; or (c) becomes publicly known or otherwise ceases to be secret or confidential, except as a result of a breach of this Agreement or any obligation of confidentiality by the Receiving Party. Nothing in this Agreement shall prevent the Receiving Party from disclosing Confidential Information to the extent the Receiving Party is legally compelled to do so by any governmental investigative or judicial agency pursuant to proceedings over which such agency has jurisdiction; provided, however, that prior to any such disclosure, the Receiving Party shall (x) assert the confidential nature of the Confidential Information to the agency; (y) immediately notify the Disclosing Party in writing of the agency’s order or request to disclose; and (z) cooperate fully with the Disclosing Party in protecting against any such disclosure and in obtaining a protective order narrowing the scope of the compelled disclosure and protecting its confidentiality.
11.4 Injunctive Relief. The Parties agree that any unauthorized disclosure of Confidential Information may cause immediate and irreparable injury to the Disclosing Party and that, in the event of such breach, the Receiving Party will be entitled, in addition to any other available remedies, to seek immediate injunctive and other equitable relief, without bond and without the necessity of showing actual monetary damages.


12. PROPRIETARY RIGHTS.


12.1 Platform. As between Sharecare and Customer, all right, title and interest in the Platform and any other Sharecare materials furnished or made available hereunder, and all modifications and enhancements thereof, and all suggestions, ideas and feedback proposed by Customer regarding the Platform, including all copyright rights, patent rights and other Intellectual Property Rights in each of the foregoing, belong to and are retained solely by Sharecare or Sharecare’s licensors and providers, as applicable. If the Subscription Term is for an Evaluation License or a Beta License, Customer shall periodically (and, in any case, not less than once every thirty (30) days or more frequently as provided in the Order Form) provide Sharecare with written feedback regarding Customer’s use of the Platform, the functionality of the Platform, any bugs, errors or deficiencies that Customer encounters regarding the operation and functionality of the Platform and any suggestions that Customer may have regarding improvement of such operation and functionality (“Feedback”). Additionally, Customer shall promptly respond to any questions that Sharecare may have regarding such Feedback or to any other questions Sharecare may have regarding Customer’s use of the Platform. Customer hereby does and will irrevocably assign to Sharecare all Feedback and all Intellectual Property Rights in the Feedback.
12.2 Customer Data. As between Sharecare and Customer, all right, title and interest in (a) the Customer Data, (b) other information input into the Platform by Customer (collectively, “Other Information”) and (c) all Intellectual Property Rights in each of the foregoing, belong to and are retained solely by Customer. Customer hereby grants to Sharecare a limited, non-exclusive, royalty-free, worldwide license to use the Customer Data and perform all acts with respect to the Customer Data as may be necessary for Sharecare to provide the Services to Customer, and a non-exclusive, perpetual, irrevocable, worldwide, royalty-free, fully paid license to use, reproduce, modify and distribute the Other Information as a part of the Aggregated Statistics (as defined in Section 11.3 below). To the extent that receipt of the Customer Data requires Sharecare to utilize any account information from a third party service provider, Customer shall be responsible for obtaining and providing relevant account information and passwords, and Sharecare hereby agrees to access and use the Customer Data solely for Customer’s benefit and as set forth in this Agreement. As between Sharecare and Customer, Customer is solely responsible for the accuracy, quality, integrity, legality, reliability, and appropriateness of all Customer Data. Notwithstanding the foregoing, Sharecare will use Customer Data and Other Information in accordance with the terms of its Smart Omix Privacy Policy.
12.3 Aggregated Statistics. Notwithstanding anything else in this Agreement or otherwise, Sharecare may monitor Customer’s use of the Services and use data and information related to such use, Customer Data, and Other Information in an aggregate and anonymous manner, including to compile statistical and performance information related to the provision and operation of the Platform (“Aggregated Statistics”). As between Sharecare and Customer, all right, title and interest in the Aggregated Statistics and all Intellectual Property Rights therein, belong to and are retained solely by Sharecare. Customer acknowledges that Sharecare will be compiling Aggregated Statistics based on Customer Data, Other Information, and information input by other customers into the Platform and Customer agrees that Sharecare may use such information to the extent and in the manner required by applicable law or regulation and for purposes of data gathering, analysis, and service enhancement, provided that such data and information does not identify Customer or its Confidential Information and that such use complies with Sharecare’s SmartOmix Privacy Policy.
12.4 Sharecare Developments. All inventions, works of authorship and developments conceived, created, written, or generated by or on behalf of Sharecare, whether solely or jointly, including without limitation, in connection with Sharecare’s performance of the Ancillary Services hereunder, including (unless otherwise expressly set forth in an applicable SOW) all Deliverables (“Sharecare Developments”) and all Intellectual Property Rights therein, shall be the sole and exclusive property of Sharecare. Customer agrees that, except for Customer Confidential Information, to the extent that the ownership of any contribution by Customer or its employees to the creation of the Sharecare Developments is not, by operation of law or otherwise, vested in Sharecare, Customer hereby assigns and agrees to assign to Sharecare all right, title and interest in and to such Sharecare Developments, including without limitation all the Intellectual Property Rights therein, without the necessity of any further consideration.
12.5 Further Assurances. To the extent any of the rights, title and interest in and to Feedback or Sharecare Developments or Intellectual Property Rights therein cannot be assigned by Customer to Sharecare, Customer hereby grants to Sharecare an exclusive, royalty-free, transferable, irrevocable, worldwide, fully paid-up license (with rights to sublicense through multiple tiers of sublicensees) to fully use, practice and exploit those non-assignable rights, title and interest. If the foregoing assignment and license are not enforceable, Customer agrees to waive and never assert against Sharecare those non-assignable and non-licensable rights, title and interest. Customer agrees to execute any documents or take any actions as may reasonably be necessary, or as Sharecare may reasonably request, to perfect ownership of the Feedback and Sharecare Developments. If Customer is unable or unwilling to execute any such document or take any such action, Sharecare may execute such document and take such action on Customer’s behalf as Customer’s agent and attorney-in-fact. The foregoing appointment is deemed a power coupled with an interest and is irrevocable.
12.6 License to Deliverables. Subject to Customer’s compliance with this Agreement, Sharecare hereby grants Customer a limited, non-exclusive, non-transferable license during the Subscription Term to use the Deliverables solely in connection with Customer’s authorized use of the Platform. Notwithstanding any other provision of this Agreement: (i) nothing herein shall be construed to assign or transfer any Intellectual Property Rights in the proprietary tools, source code samples, templates, libraries, know-how, techniques and expertise (“Tools”) used by Sharecare to develop the Deliverables, and to the extent such Tools are delivered with or as part of the Deliverables, they are licensed, not assigned, to Customer, on the same terms as the Deliverables; and (ii) the term “Deliverables” shall not include the Tools.


13. LIMITATION OF LIABILITY.


13.1 No Consequential Damages. NEITHER SHARECARE NOR ITS LICENSORS OR SUPPLIERS SHALL BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES, OR ANY DAMAGES FOR LOST DATA, BUSINESS INTERRUPTION, LOST PROFITS, LOST REVENUE OR LOST BUSINESS, ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, EVEN IF SHARECARE OR ITS LICENSORS OR SUPPLIERS HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, INCLUDING WITHOUT LIMITATION, ANY SUCH DAMAGES ARISING OUT OF THE LICENSING, PROVISION OR USE OF THE PLATFORM, ANCILLARY SERVICES, SUPPORT SERVICES OR THE RESULTS THEREOF. SHARECARE WILL NOT BE LIABLE FOR THE COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES.
13.2 Limits on Liability. NEITHER SHARECARE NOR ITS LICENSORS OR SUPPLIERS SHALL BE LIABLE FOR CUMULATIVE, AGGREGATE DAMAGES GREATER THAN AN AMOUNT EQUAL TO THE LESSER OF (a) THE AMOUNTS PAID BY CUSTOMER TO SHARECARE UNDER THIS AGREEMENT DURING THE PERIOD OF SIX (6) MONTHS PRECEDING THE DATE ON WHICH THE CLAIM FIRST ACCRUED, AND (b) THE AMOUNT OF FEES PAID BY CUSTOMER IN A SINGLE SUBSCRIPTION TERM.
13.3 Essential Purpose. CUSTOMER ACKNOWLEDGES THAT THE TERMS IN THIS SECTION 14 (LIMITATION OF LIABILITY) SHALL APPLY TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW AND SHALL APPLY EVEN IF AN EXCLUSIVE OR LIMITED REMEDY STATED HEREIN FAILS OF ITS ESSENTIAL PURPOSE WITHOUT REGARD TO WHETHER SUCH CLAIM IS BASED IN CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR OTHERWISE.


14. TERM AND TERMINATION.


14.1 Term. The term of this Agreement commence on the Effective Date and continues until the expiration or termination of all Subscription Term(s), unless earlier terminated as provided in this Agreement. Except as otherwise specified in the applicable Order Form, Subscription Terms (other than for Evaluation Licenses and Beta Licenses) for all Users shall automatically renew for additional periods equal to the expiring Subscription Term unless one party gives the other written notice of non-renewal at least Thirty (30) days prior to the expiration of the then current Subscription Term. The per-unit pricing during any automatic renewal term shall be the same as that during the immediately prior term unless Sharecare has given Customer written notice of a pricing increase at least sixty (60) days before the end of such prior term, in which case the pricing increase shall be effective upon renewal and thereafter; provided however that no such pricing increase shall occur until after expiration of the then current Subscription Term. Evaluation Licenses and Beta Licenses will terminate at the end of their respective Subscription Term unless the parties enter into an Order Form for a new Subscription Term.
14.2 Termination for Cause. A party may terminate this Agreement and any Statement of Work (and all Subscription Term(s)) upon written notice to the other party in the event the other party (a) files a petition for bankruptcy or has a petition for bankruptcy filed against it that is not dismissed within sixty (60) days after filing or admits its inability to pay its debts as they mature, makes an assignment for the benefit of its creditors or ceases to function as a going concern or to conduct its operations in the normal course of business and such termination shall occur immediately upon notice; or (b) commits a material breach of any provision of this Agreement and does not remedy such breach within thirty (30) days after receipt of notice from the other party or such other period as the parties may agree. Upon any termination for cause by Customer, Sharecare shall refund Customer any prepaid fees for the remainder of the terminated Subscription Terms after the effective termination date. Upon any termination for cause by Sharecare, Customer shall pay any unpaid fees covering the remainder of the term of all Order Forms after the effective date of termination. In no event shall any termination relieve Customer of the obligation to pay any fees payable to Sharecare for the period prior to the effective date of termination.
14.3 Termination for Convenience. Sharecare shall have the right to terminate any Subscription Term for convenience on at least Sixty (60) days prior written notice to Customer. If Sharecare exercises such termination right, Sharecare shall refund to customer the amount of any pre-paid fees for the terminated Subscription Term.
14.4 Effects of Termination. Upon expiration or termination of this Agreement, (a) Customer’s use of and access to the Platform and Sharecare's performance of all Support Services and Ancillary Services shall cease; (b) all Order Forms and Statements of Work shall terminate; and (c) all fees and other amounts owed to Sharecare shall be immediately due and payable by Customer, including without limitation, all fees incurred under any outstanding Statement of Work up through the date of termination for any Ancillary Services completed and a pro-rated portion of the fees incurred for any partially completed Ancillary Services. Sharecare shall have no obligation to maintain or provide any Customer Data and may thereafter, unless legally prohibited, delete all Customer Data in its systems or otherwise in its possession or under its control. In addition, within ten (10) days of the effective date of termination each Receiving Party shall: (a) return to the Disclosing Party, or at the Disclosing Party’s option, the Receiving Party shall destroy, all items of Confidential Information (other than the Customer Data) then in the Receiving Party’s possession or control, including any copies, extracts or portions thereof, and (b) upon request shall certify in writing to Disclosing Party that it has complied with the foregoing.
14.5 Survival. This Section and Sections 1, 2.2, 2.4, 9, 10, 11, 13, 14, 15.4, 16 shall survive any termination or expiration of this Agreement.


15. MISCELLANEOUS.


15.1 Notices. All notices which any party to this Agreement may be required or may wish to give may be given by addressing them to the other party at the addresses set forth below (or at such other addresses as may be designated by written notices given in the manner designated herein) by (a) personal delivery, (b) sending such notices by commercial overnight courier with written verification of actual receipt, (c) by email, effective (A) when the sender receives an automated message from the recipient confirming delivery or (B) one hour after the time sent (as recorded on the device from which the sender sent the email) unless the sender receives an automated message that the email has not been delivered, whichever happens first, but if the delivery or receipt is on a day which is not a business day or is after 5:00 pm (addressee’s time) it is deemed to be received at 9:00 am on the following business day, or (d) sending them by registered or certified mail. If so mailed or otherwise delivered, such notices shall be deemed and presumed to have been given on the earlier of the date of actual receipt or three (3) days after mailing or authorized form of delivery. All communications and notices to be made or given pursuant to this Agreement shall be in the English language.
15.2 Governing Law. This Agreement and the rights and obligations of the parties to and under this agreement shall be governed by and construed under the laws of the United States and the State of Georgia as applied to agreements entered into and to be performed in such State without giving effect to conflicts of laws rules or principles. The parties agree that the United Nations Convention on Contracts for the International Sale of Goods is specifically excluded from application to this Agreement. The parties further agree to waive and opt-out of any application of the Uniform Computer Information Transactions Act (UCITA), or any version thereof, adopted by any state of the United States in any form. Any dispute arising out of or in connection with this Agreement, including but not limited to any question regarding its existence, interpretation, validity, performance, or termination, or any dispute between the parties arising from the parties' relationship created by this Agreement, shall be referred to and finally resolved by arbitration administered by the American Arbitration Association under its rules. The number of arbitrators shall be one (1). The parties shall endeavor to agree upon the sole arbitrator and jointly nominate the arbitrator. If the parties cannot agree upon the sole arbitrator within a time prescribed by AAA, the parties shall request the AAA to propose five (5) arbitrators and each party shall rank the proposed arbitrators. The AAA shall appoint an arbitrator from the list of five (5), based upon the parties' rankings. The seat, or legal place of arbitration shall be Atlanta, Georgia, United States. Notwithstanding the foregoing, Sharecare has the right to pursue equitable relief in the state and federal courts located in Georgia, and Customer agrees to the exclusive jurisdiction and venue of such courts.
15.3 Publicity. Sharecare has the right to reference and use Customer’s name and trademarks and disclose the nature of the Services provided hereunder in each case in Sharecare business development and marketing efforts, including without limitation Sharecare’s website. Customer shall without the prior written consent of Sharecare (email sufficing), use in advertising, publicity or otherwise the names, trade names, service marks, trade dress or logo of Sharecare. Notwithstanding the foregoing, in any publication of the results of a Study, Customer shall include the language, “Study conducted on the Sharecare® Smart Omix™ platform,” unless otherwise instructed by Sharecare.
15.4 No Solicitation of Employees. Customer agrees that, so long as the Subscription Term remains in effect, and for a period of one (1) year following the last Subscription Term hereunder to terminate or expire, it will not directly solicit for employment the employees of Sharecare without Sharecare’s prior written consent; provided, however, that the foregoing prohibition shall not preclude the hiring by Customer of any individual who responds to a general solicitation or advertisement, whether in print or electronic form, only job postings and social networking sites.
15.5 U.S. Government Customers. If Customer is a Federal Government entity, Sharecare provides the Platform, including related software and technology, for ultimate Federal Government end use solely in accordance with the following: Government technical data rights include only those rights customarily provided to the public with a commercial item or process and Government software rights related to the Platform include only those rights customarily provided to the public, as defined in this Agreement. The technical data rights and customary commercial software license is provided in accordance with FAR 12.211 (Technical Data) and FAR 12.212 (Software) and, for Department of Defense transactions, DFAR 252.227-7015 (Technical Data – Commercial Items) and DFAR 227.7202-3 (Rights in Commercial Computer Software or Computer Software Documentation). If greater rights are needed, a mutually acceptable written addendum specifically conveying such rights must be included in this Agreement.
15.6 Export. The Platform utilizes software and technology that may be subject to United States and foreign export controls. Customer acknowledges and agrees that the Services shall not be used, and none of the underlying information, software, or technology may be transferred or otherwise exported or re-exported to countries as to which the United States maintains an embargo (collectively, “Embargoed Countries”), or to or by a national or resident thereof, or any person or entity on the U.S. Department of Treasury’s List of Specially Designated Nationals or the U.S. Department of Commerce’s Table of Denial Orders (collectively, “Designated Nationals”). The lists of Embargoed Countries and Designated Nationals are subject to change without notice. By using the Platform, Customer represents and warrants that it is not located in, under the control of, or a national or resident of an Embargoed Country or Designated National. The Platform may use encryption technology that is subject to licensing requirements under the U.S. Export Administration Regulations, 15 C.F.R. Parts 730-774 and Council Regulation (EC) No. 1334/2000. Customer agrees to comply strictly with all applicable export laws and assume sole responsibility for obtaining licenses to export or re-export as may be required. Sharecare and its licensors make no representation that the Platform is appropriate or available for use in other locations. Any diversion of the Customer Data contrary to law is prohibited. None of the Customer Data, nor any information acquired through the use of the Platform, is or will be used for nuclear activities, chemical or biological weapons, or missile projects.
15.7 General. Customer shall not assign its rights hereunder, or delegate the performance of any of its duties or obligations hereunder, whether by merger, acquisition, sale of assets, operation of law, or otherwise, without the prior written consent of Sharecare. Any purported assignment in violation of the preceding sentence is null and void. Subject to the foregoing, this Agreement shall be binding upon, and inure to the benefit of, the successors and assigns of the parties thereto. Except as otherwise specified in this Agreement, this Agreement may be amended or supplemented only by a writing that refers explicitly to this Agreement and that is signed on behalf of both parties. No waiver will be implied from conduct or failure to enforce rights. No waiver will be effective unless in a writing signed on behalf of the party against whom the waiver is asserted. If any of this Agreement is found invalid or unenforceable that term will be enforced to the maximum extent permitted by law and the remainder of this Agreement will remain in full force. The parties are independent contractors and nothing contained herein shall be construed as creating an agency, partnership, or other form of joint enterprise between the parties. This Agreement, including all applicable Order Forms, and Statements of Work, constitute the entire agreement between the parties relating to this subject matter and supersedes all prior or simultaneous understandings, representations, discussions, negotiations, and agreements, whether written or oral. Except for your payment obligations hereunder, neither party shall be liable to the other party or any third party for failure or delay in performing its obligations under this Agreement when such failure or delay is due to any cause beyond the control of the party concerned, including, without limitation, acts of God, governmental orders or restrictions, fire, or flood, provided that upon cessation of such events such party shall thereupon promptly perform or complete the performance of its obligations hereunder.