ENAVVI, INC.

SERVICE SUBSCRIPTION AGREEMENT

Welcome, and thank you for your interest in eNavvi, Inc. (“eNavvi,” “we,” or “us”) and our web-based platform and related applications (the “Service”) further detailed on our website at www.enavvi.com. This Service Subscription Agreement sets forth the terms and conditions pursuant to which you (“you” or “Subscriber”) will be permitted to use certain features of eNavvi’s Service and is a legally binding contract between you and eNavvi regarding your use of the Service.

PLEASE READ THE FOLLOWING TERMS CAREFULLY:

BY CLICKING “I ACCEPT”, YOU AGREE THAT YOU HAVE READ AND UNDERSTOOD, AND, AS A CONDITION TO YOUR USE OF THE SERVICE, YOU AGREE TO BE BOUND BY, THE FOLLOWING TERMS AND CONDITIONS, INCLUDING ENAVVI’S PRIVACY POLICY (“PRIVACY POLICY”) (TOGETHER, THIS “AGREEMENT”). IF YOU ARE NOT ELIGIBLE OR DO NOT AGREE TO THIS AGREEMENT, THEN YOU DO NOT HAVE OUR PERMISSION TO USE THE SERVICE. YOUR USE OF THE SERVICE, AND ENAVVI’S PROVISION OF THE SERVICE TO YOU, CONSTITUTE AN AGREEMENT BY ENAVVI AND BY YOU TO BE BOUND BY THIS AGREEMENT.

Definitions

• “Documentation” When you use our Services, we may receive personal information in connection with providing our Services to you, such as subscriber data, including healthcare patient information, pharmacy and prescription information, insurance information, and any other information uploaded to or made available to us via our Services.
• “Law” means all relevant local, state, federal, and international laws, regulations, and conventions, including those related to data privacy and data transfer, international communications, export of technical or personal data, pharmacies, prescription drugs, e-prescribing, and anti-referral.
• “Patient” means a patient for and by whom Subscriber is authorized to prescribe medication and submit such prescriptions in accordance with any and all applicable Law.
• “Subscriber Data” means any data or information that Subscriber submits to the Service for eNavvi to provide the Service to Subscriber, including Required User Information (defined below).
• “Subscription Tier(s)” means the Service levels that eNavvi offers as specified on the Subscription Tiers page of our website (the “Subscription Tiers Page”).

ELIGIBILITY AND REGISTRATION. To use the Service, you must (1) have a valid medical license and State medical license number, National Provider Identifier, and driver’s license (collectively, your “Required User Information”), (2) have e-prescribing authority to provide and to transmit an electronic prescription for applicable Patient(s) in accordance with applicable Law, and (3) register your “User Profile.” To register your User Profile, you are required to provide your Required User Information for verification and certain other Subscriber Data, including your: full legal name; email address; phone number; title; medical specialty; State of residence; and hand-drawn electronic signature. By agreeing to this Agreement, you hereby represent and warrant to us that: (4) your Subscriber Data, information, and credentials that you provide to register your User Profile are accurate, complete, and not misleading, and that you will keep it accurate and up to date at all times; (5) you have not previously been suspended or removed from the Service; and (6 your registration and your use of the Service is in compliance with any and all applicable Law. When you register, you will be asked to create a password. You are solely responsible for maintaining the confidentiality of your account and password (together with the User Profile registration information, your “Access Credentials”), and you accept responsibility for all activities that occur under your account. If you believe that your account is no longer secure, then you should immediately notify us at support@enavvi.com. Registration or creation of a User Profile does not guarantee any fulfillment, pricing, or delivery of any service or product provided by any third parties through the eNavvi platform, including services provided by independent pharmacies. Provision of services, information, or products by third parties may be subject to additional terms and conditions or fees charged by third parties.

USE OF THE SERVICE

• Use of the Service. Subject to the terms and conditions of this Agreement, eNavvi grants to Subscriber a limited, worldwide, non-exclusive, non-transferable (except as permitted in Section 12.2) right during the term of this Agreement to access and use the Service solely in connection with Subscriber’s internal business operations related to the provision of services to Patients. Subscriber’s use of the Service is subject to the limitations of the Subscription Tiers specified on the Subscription Tiers Page.
• Authorized Pharmacies and ePrescriptions. As part of the Service, Subscriber may, using the software functionality that eNavvi provides through the Service, prescribe medication and transmit electronic prescription orders for Patients (each, an “ePrescription”) to a limited number of third-party pharmacies that have agreed to participate in the eNavvi platform and to receive orders through the Service (“Authorized Pharmacies”) as identified on the Authorized Pharmacies page (the “Authorized Pharmacies Page”). eNavvi makes no guarantee that the Service will integrate with any particular pharmacy, is under no obligation to integrate with any particular pharmacy and reserves the right to determine the Authorized Pharmacies in its sole discretion. eNavvi will use reasonable efforts to keep information published on the Authorized Pharmacies Page up to date but makes no guarantee with respect to the acceptance or fulfillment of any prescription order by any Authorized Pharmacy or any pricing, service, or information provided by any Authorized Pharmacy or other third party. For each ePrescription submission, Subscriber must provide, via functionality provided through the Service, the applicable: Patient’s full legal name, date of birth, phone number, and email address; medication name, dosage form (e.g., pill), strength (e.g., number of milligrams), quantity, number of refills, route (e.g., oral); and Authorized Pharmacy. Subscriber may provide other information such as Patient’s address or instructions for use. By accepting this Agreement, you hereby represent and warrant to us that the information you provide for each ePrescription is accurate, complete, not misleading, and up to date, and that each such ePrescription submission is in compliance with any and all applicable Law.
• Use of the Documentation. Subject to the terms and conditions of this Agreement, eNavvi grants to Subscriber a limited, worldwide, non-exclusive, non-transferable (except as permitted in Section 12.2) license, without right of sublicense, during the term of this Agreement to use the Documentation solely in connection with use of the Service in accordance with this Agreement.
• Support. For so long as Subscriber is current with their payment of the Fees (defined below), eNavvi will use reasonable efforts to provide Subscriber with support relating to the Service for questions and requests submitted by email to support@enavvi.com.
• Use Restrictions. Except as otherwise explicitly provided in this Agreement, or as may be expressly permitted by applicable Law, Subscriber will not, and will not permit or authorize third parties (including Patients) to: provide access to, distribute, sell, or sublicense the Service to a third party; use the Service on behalf of, or to provide any product or service to, third parties (other than Patients, as applicable); use the Service to develop a similar or competing product or service; reverse engineer, decompile, disassemble, or seek to access the source code or non-public application programming interfaces to the Service, except to the extent expressly permitted by Law; modify or create derivative works of the Service or copy any element of the Service; remove or obscure any proprietary notices in the Service; publish benchmarks or performance information about the Service; interfere with the operation of the Service, circumvent any access restrictions, or conduct any security or vulnerability test of the Service; transmit any viruses or other harmful materials to the Service; take any action that risks harm to others or to the security, availability, or integrity of the Service; or access or use the Service in a manner that violates any Law.
• Subscriber Control and Responsibility. Subscriber has and will retain sole responsibility for: (a) all Subscriber Data, including its content and use; (b) all information, instructions, and materials provided by or on behalf of Subscriber in connection with the Service; (c) Subscriber’s information technology infrastructure, including computers, software, databases, electronic systems (including database management systems), and networks, whether operated directly by Subscriber or through the use of third-party services (“Subscriber Systems”); (d) the security and use of Subscriber’s Access Credentials; and (e) all access to and use of the Service directly or indirectly by or through the Subscriber Systems or Access Credentials, with or without Subscriber’s knowledge or consent, including all results obtained from, and all conclusions, decisions, and actions based on, such access or use.
• Suspension of Service. eNavvi may immediately and without prior notice to Subscriber suspend or limit the right to use the Service, including all or part of its functionalities, and (where applicable) eNavvi retains the right to disconnect, shut down, block access to or remove any component of the Service, in whole or in part, including its data, in cases that in eNavvi’s judgment threaten the security, integrity or availability of the Service.
• Compliance with Law. Subscriber will use the Service and Documentation in compliance with all applicable Law.
• Protection against Unauthorized Use. Subscriber will use reasonable efforts to prevent any unauthorized use of the Service and Documentation and immediately notify eNavvi in writing of any unauthorized use that comes to Subscriber’s attention. If there is any unauthorized use by anyone who obtained access to the Service directly or indirectly through Subscriber, Subscriber will take all steps reasonably necessary to terminate the unauthorized use. Subscriber will cooperate and assist with any actions taken by eNavvi to prevent or terminate unauthorized use of the Service or Documentation.
• Reservation of Rights. eNavvi grants to Subscriber a limited right to use the Service and Documentation under this Agreement. Subscriber will not have any rights to the Service or Documentation except as expressly granted in this Agreement. eNavvi reserves to itself all rights to the Service and Documentation not expressly granted to Subscriber in accordance with this Agreement.
• Feedback. If Subscriber provides any feedback to eNavvi concerning the functionality and performance of the Service (including identifying potential errors and improvements), Subscriber hereby assigns to eNavvi all right, title, and interest in and to the feedback, and eNavvi is free to use the feedback without payment or restriction.

FEES AND PAYMENT

• Fees and Payment. Subscriber will pay eNavvi the fees and any other amounts owing under this Agreement, as specified on the Subscription Tiers Page (the “Fees”), plus any applicable sales, use, excise, or other taxes. Unless otherwise specified on the Subscription Tiers Page, Subscriber will pay all amounts due within 30 days of the date of the applicable invoice. Any amount not paid when due will be subject to finance charges equal to 1.5% of the unpaid balance per month or the highest rate permitted by applicable usury Law, whichever is less, determined and compounded daily from the date due until the date paid. Subscriber will reimburse any costs or expenses (including, but not limited to, reasonable attorneys’ fees) incurred by eNavvi to collect any amount that is not paid when due. Amounts due from Subscriber under this Agreement may not be withheld or offset by Subscriber against amounts due to Subscriber for any reason. All amounts payable are in United States dollars.
• Subscription Service. The Service includes certain subscription-based plans with automatically recurring payments for periodic charges. Subscriptions automatically renew for successive 1-month periods unless canceled in accordance with Section 5. Subscriber may change Subscription Tiers by changing their choice via functionality in the Service at least 10 days before the end of the then-current subscription term. Any such Subscription Tier change will not take effect until the subsequent subscription term. By signing up for a subscription, Subscriber authorizes eNavvi or its third-party payment processors to periodically charge, on a going-forward basis and until termination, all accrued Fees. eNavvi may change the Subscription Tiers, including applicable Fees, in its sole discretion, and eNavvi will make reasonable efforts to keep pricing information published and up to date. Any such changes to the Subscription Tiers will only apply if Subscriber changes their Subscription Tier or cancels and restarts their subscription to the Service in accordance with this Agreement.
• Insurance Reimbursement. To the extent applicable, Subscriber has full responsibility for verification of any Patient’s insurance benefits and for all related claims submitted to any insurance or payer. eNavvi makes no representations or warranties related to the eligibility of the Service for reimbursement under any Patient’s insurance plans, and Subscriber understands that if, for any reason, any Patient’s insurance plan refuses or is unable to reimburse a claim related to the Service, Subscriber will still be required to pay all Fees in full.
• Taxes. Other than net income taxes imposed on eNavvi, Subscriber will bear all taxes, duties, and other governmental charges (collectively, “taxes”) resulting from this Agreement. Subscriber will pay any additional taxes as are necessary to ensure that the net amounts received by eNavvi after all such taxes are paid are equal to the amounts that eNavvi would have been entitled to in accordance with this Agreement as if the taxes did not exist.

TERM AND TERMINATION

• Term and Termination. This Agreement is effective beginning when you accept this Agreement and continues for the initial subscription term specified on the Subscription Tiers Page. This Agreement and the associated subscription will automatically renew for additional successive 1-month periods unless Subscriber cancels their then-current subscription via the Service functionality at least 10 days before the end of the then-current subscription term. If Subscriber fails to timely pay any Fees, eNavvi may, without limitation to any of its other rights or remedies, suspend performance of the Service until it receives all amounts due. With respect to free subscriptions, including the “Basic” Subscription Tier for which there is no Fee, eNavvi reserves the right to terminate this Agreement at any time, for any or no reason, and with or without notice.
• Post-Termination Obligations. If this Agreement is terminated for any reason: Subscriber will pay to eNavvi any Fees or other amounts that have accrued prior to the effective date of the termination; and any and all liabilities accrued prior to the effective date of the termination will survive.

WARRANTIES AND DISCLAIMER

• Mutual Warranties. Each party represents and warrants to the other that: this Agreement has been duly executed and delivered and constitutes a valid and binding agreement enforceable against such party in accordance with its terms; and no authorization or approval from any third party is required in connection with such party’s execution, delivery, or performance of this Agreement.
• By Subscriber. Subscriber represents and warrants to eNavvi that:
  • Subscriber is in compliance with, and will remain in compliance with, all applicable Law;
  • Subscriber has all necessary authorizations as required by applicable Law, including, but not limited to, consents, licenses, rights, permissions, permits, and registrations, including from Patients (collectively, “Regulatory Permits”), to: provide the Subscriber Data to eNavvi; authorize eNavvi to access, use, and otherwise process the Subscriber Data as necessary to provide the Service and as otherwise set forth herein; use, run, manage, and generally integrate with web services available through third parties; and provide ePrescriptions for Patient(s);
  • Subscriber’s execution, delivery, and performance of this Agreement will not violate, conflict with, require consent under, or result in any breach or default under any applicable Law, or any third-party contract or agreement to which Subscriber is a party;
  • Subscriber’s Regulatory Permits are in good standing in all applicable jurisdictions and under all applicable Law;
  • Subscriber has not been excluded, debarred, or otherwise disqualified by any regulatory authority or applicable Law from providing health care services or products, and is not under any investigation, inquiry, or adverse action from any government program or regulatory authority.
• Disclaimers
  • EXCEPT FOR THE EXPRESS REPRESENTATIONS AND WARRANTIES STATED IN THIS SECTION 6, ENAVVI MAKES NO ADDITIONAL REPRESENTATION OR WARRANTY OF ANY KIND WHETHER EXPRESS, IMPLIED (EITHER IN FACT OR BY OPERATION OF LAW), OR STATUTORY, AS TO ANY MATTER WHATSOEVER. ENAVVI EXPRESSLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUALITY, ACCURACY, TITLE, AND NON-INFRINGEMENT. ENAVVI DOES NOT WARRANT AGAINST INTERFERENCE WITH THE ENJOYMENT OF THE SERVICE. ENAVVI DOES NOT WARRANT THAT THE SERVICE IS ERROR-FREE OR THAT OPERATION OF THE SERVICE WILL BE SECURE OR UNINTERRUPTED. ENAVVI DOES NOT WARRANT THAT ANY INFORMATION PROVIDED THROUGH THE SERVICE IS ACCURATE OR COMPLETE OR THAT ANY INFORMATION PROVIDED THROUGH THE SERVICE WILL ALWAYS BE AVAILABLE. ENAVVI EXERCISES NO CONTROL OVER AND EXPRESSLY DISCLAIMS ANY LIABILITY ARISING OUT OF OR BASED UPON THE RESULTS OF SUBSCRIBER’S USE OF THE SERVICE.
  • SUBSCRIBER SHALL BE SOLELY AND EXCLUSIVELY RESPONSIBLE AND LIABLE FOR THE USE OF SERVICE, FOR OBTAINING ALL REGULATORY PERMITS, CONSENTS, AND AUTHORIZATIONS REQUIRED BEFORE SUBMITTING ANY EPRESCRIPTION, FOR THE SELECTION OF THE AUTHORIZED PHARMACY, AND FOR ANY INFORMATION TRANSMITTED BY SUBSCRIBER TO AUTHORIZED PHARMACY, INCLUDING ANY PATIENT AUTHORIZATION, PERMISSION, OR SELECTION OF AN AUTHORIZED PHARMACY AS APPLICABLE, AS WELL AS ALL MEDICAL AND PROFESSIONAL LIABILITIES AND CLAIMS ARISING FROM AN EPRESCRIPTION, SUBSCRIBER’S USE OF AN EPRESCRIPTION, OR SUBSCRIBER’S TREATMENT OF ANY PATIENTS. NOTHING IN THIS AGREEMENT WILL BE CONSTRUED TO ALTER OR OTHERWISE AFFECT THE LEGAL, ETHICAL OR PROFESSIONAL RELATIONSHIPS BETWEEN AND AMONG SUBSCRIBER, AUTHORIZED PHARMACIES, AND THEIR PATIENTS, NOR DOES ANYTHING IN THIS AGREEMENT ABROGATE ANY RIGHT, PRIVILEGE OR OBLIGATION ARISING FROM OR RELATED TO THE PHYSICIAN-PATIENT RELATIONSHIP.
  • THE SERVICE IS PROVIDED AS AN OPTIONAL TOOL FOR USE AT THE SOLE DISCRETION AND INDEPENDENT MEDICAL JUDGMENT OF SUBSCRIBER. ENAVVI AND ITS SERVICE ARE NOT INTENDED TO BE, AND SHOULD NOT BE TAKEN TO BE, NOR DOES IT REPLACE PROFESSIONAL MEDICAL ADVICE, SCREENING, DIAGNOSIS OR TREATMENT, THE PRACTICE OF MEDICINE, OR THE PROVISION OF MEDICAL CARE. THE SERVICE IS NOT DESIGNED TO BE A SUBSTITUTE FOR CLINICAL EXAMINATION EQUIPMENT OR DIAGNOSES AND ENAVVI DOES NOT IN ANY WAY GUARANTEE THE RESULTS OF THE SERVICE. ENAVVI IS NOT RESPONSIBLE OR LIABLE FOR ANY DECISIONS MADE IN RELIANCE ON THE SERVICE OR ANY INFORMATION PROVIDED THROUGH THE SERVICE, OR FOR ANY DEFECTS OR ERRORS THAT MAY RESULT FROM SUBSCRIBER OR PATIENT’S PROVISION OF INCOMPLETE OR INACCURATE INFORMATION TO ENAVVI OR THE SERVICE. SUBSCRIBER SHALL BE SOLELY AND EXCLUSIVELY RESPONSIBLE FOR VERIFYING EACH PRESCRIPTION AND SELECTION OF AN AUTHORIZED PHARMACY BEFORE COMPLETING A TRANSACTION VIA THE SERVICE. ENAVVI IS NOT RESPONSIBLE FOR THE ACCURACY, COMPLETENESS, OR RELIABILITY OF ANY INFORMATION OR SERVICE PROVIDED BY ANY THIRD PARTIES, INCLUDING AUTHORIZED PHARMACIES. PRICES, ABILITY TO FULFILL A PRESCRIPTION, OR OTHER INFORMATION PROVIDED BY THIRD PARTIES ARE NOT UNDER ENAVVI’S CONTROL AND ARE SUBJECT TO CHANGE WITHOUT NOTICE FROM ENAVVI.

DATA AND DATA PROCESSING

• Use of Subscriber Data. Subscriber grants eNavvi the non-exclusive, worldwide, sublicensable right to use, copy, store, disclose, transmit, transfer, publicly display, modify, and create derivative works from Subscriber Data in connection with the provision of any Service and any related technical or support services, to provide information to you regarding our other services that may be of interest to you, or as otherwise required by applicable Law or as agreed to in writing between the parties (including as set forth in the Privacy Policy). Subscriber acknowledges and agrees that eNavvi may process Subscriber Data: in connection with eNavvi’s provision of the Service to Subscriber; for its internal business purposes; and as otherwise required by applicable Law or agreed to in writing by Subscriber.
• Aggregated Data. As between the parties, eNavvi solely owns the aggregated and de-identified statistical data derived from the operation or usage of the Service, including, without limitation, the performance results for the Service (collectively, “Aggregated Data”). Nothing in this Agreement will be construed as prohibiting eNavvi from utilizing the Aggregated Data for purposes of operating eNavvi’s business, including, without limitation, eNavvi’s development of new services or products. eNavvi will not disclose to any third party any Aggregated Data that reveals the identity, whether directly or indirectly, of any individual or Subscriber.
• Security. eNavvi will maintain, for as long as it retains Subscriber Data, appropriate physical and technical safeguards to protect Subscriber Data commensurate with industry standards.

CONFIDENTIALITY

• Definition. “Confidential Information” means information disclosed to the receiving party (“Recipient”) under this Agreement that is designated by the disclosing party (“Discloser”) as proprietary or confidential or that should be reasonably understood to be proprietary or confidential due to its nature and the circumstances of its disclosure. eNavvi’s Confidential Information includes the terms and conditions of this Agreement and any technical or performance information about the Service. Subscriber’s Confidential Information includes Subscriber Data.
• Obligations. As Recipient, each party will: hold Confidential Information in confidence and not disclose it to third parties except as permitted in this Agreement, including Section 7.1 (Use of Subscriber Data); and only use Confidential Information to fulfill its obligations and exercise its rights in this Agreement. At Discloser’s request, Recipient will delete all Confidential Information, except, in the case where eNavvi is the Recipient, eNavvi may retain the Subscriber’s Confidential Information to the extent required to continue to provide the Service. Recipient may disclose Confidential Information to its employees, agents, contractors, and other representatives having a legitimate need to know, provided it remains responsible for their compliance with this Section 8, and they are bound to confidentiality obligations no less protective than this Section 8.
• Exclusions. These confidentiality obligations do not apply to information that Recipient can document: is or becomes public knowledge through no fault of the receiving party; it rightfully knew or possessed prior to receipt under this Agreement; it rightfully received from a third party without breach of confidentiality obligations; or it independently developed without using Confidential Information.
• Remedies. Unauthorized use or disclosure of Confidential Information may cause substantial harm for which damages alone are an insufficient remedy. Each party may seek appropriate equitable relief, in addition to other available remedies, for breach or threatened breach of this Section 8.
• Required Disclosures. Nothing in this Agreement prohibits either party from making disclosures, including of Subscriber Data and other Confidential Information, if required by Law, subpoena, or court order, provided (if permitted by Law) it notifies the other party in advance and cooperates in any effort to obtain confidential treatment.

INTELLECTUAL PROPERTY INFRINGEMENT

• Defense of Infringement Claims. eNavvi will, at its expense, either defend Subscriber from or settle any claim, proceeding, or suit (“Claim”) brought by a third party against Subscriber alleging that Subscriber’s use of the Service infringes or misappropriates any patent, copyright, trade secret, trademark, or other intellectual property right during the term of this Agreement if: Subscriber gives eNavvi prompt written notice of the Claim; Subscriber grants eNavvi full and complete control over the defense and settlement of the Claim; Subscriber provides assistance in connection with the defense and settlement of the Claim as eNavvi may reasonably request; and Subscriber complies with any settlement or court order made in connection with the Claim (e.g., relating to the future use of any infringing Service). Subscriber will not defend or settle any Claim without eNavvi’s prior written consent. Subscriber will have the right to participate in the defense of the Claim at their own expense and with counsel of their own choosing, but eNavvi will have sole control over the defense and settlement of the Claim.
• Indemnification of Infringement Claims. eNavvi will indemnify Subscriber from and pay all damages, costs, and attorneys’ fees finally awarded against Subscriber in any Claim under Section 9.1; all out-of-pocket costs (including reasonable attorneys’ fees) reasonably incurred by Subscriber in connection with the defense of a Claim under Section 9.1 (other than attorneys’ fees and costs incurred without eNavvi’s consent after eNavvi has accepted defense of the Claim); and all amounts that eNavvi agrees to pay to any third party to settle any Claim under Section 9.1.
• Exclusions from Obligations. eNavvi will have no obligation under this Section 9 for any infringement or misappropriation to the extent that it arises out of or is based upon: use of the Service in combination with other products or services if such infringement or misappropriation would not have arisen but for such combination; provision or use of the Service in compliance with designs, requirements, or specifications required by or provided by Subscriber, if the alleged infringement or misappropriation would not have arisen but for the compliance with such designs, requirements, or specifications; use of the Service by Subscriber for purposes not intended or outside the scope of the license granted to Subscriber; Subscriber’s failure to use the Service in accordance with instructions provided by eNavvi, if the infringement or misappropriation would not have occurred but for such failure; or any modification of the Service not made or authorized in writing by eNavvi where such infringement or misappropriation would not have occurred absent such modification.
• Limited Remedy. This Section 9 states eNavvi’s sole and exclusive liability, and Subscriber’s sole and exclusive remedy, for the actual or alleged infringement or misappropriation of any third-party intellectual property right by the Service.

SUBSCRIBER INDEMNIFICATION

• Defense. Subscriber will defend eNavvi from any actual or threatened third party Claim arising out of or based upon Subscriber’s use of the Service or Subscriber’s breach of any of the provisions of this Agreement if: eNavvi gives Subscriber prompt written notice of the Claim; eNavvi grants Subscriber full and complete control over the defense and settlement of the Claim; eNavvi provides assistance in connection with the defense and settlement of the Claim as Subscriber may reasonably request; and eNavvi complies with any settlement or court order made in connection with the Claim. Subscriber will not defend or settle any Claim without eNavvi’s prior written consent. eNavvi will have the right to participate in the defense of the Claim at its own expense and with counsel of its own choosing, but Subscriber will have sole control over the defense and settlement of the Claim.
• Indemnification. Subscriber will indemnify eNavvi from and pay all damages, costs, and attorneys’ fees finally awarded against eNavvi in any Claim under Section 10.1; all out-of-pocket costs (including reasonable attorneys’ fees) reasonably incurred by eNavvi in connection with the defense of a Claim under Section 10.1 (other than attorneys’ fees and costs incurred without Subscriber’s consent after Subscriber has accepted defense of the Claim); and, all amounts that Subscriber agrees to pay to any third party to settle any Claim under Section 10.1.

LIMITATIONS OF LIABILITY

• Disclaimer of Indirect Damages. NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED IN THIS AGREEMENT, ENAVVI WILL NOT, UNDER ANY CIRCUMSTANCES, BE LIABLE TO SUBSCRIBER FOR CONSEQUENTIAL, INCIDENTAL, SPECIAL, OR EXEMPLARY DAMAGES ARISING OUT OF OR RELATED TO THIS AGREEMENT, INCLUDING BUT NOT LIMITED TO LOST PROFITS OR LOSS OF BUSINESS, EVEN IF ENAVVI IS APPRISED OF THE LIKELIHOOD OF SUCH DAMAGES OCCURRING.
• Cap on Liability. UNDER NO CIRCUMSTANCES WILL ENAVVI’S TOTAL LIABILITY OF ALL KINDS ARISING OUT OF OR RELATED TO THIS AGREEMENT (INCLUDING BUT NOT LIMITED TO WARRANTY CLAIMS), REGARDLESS OF THE FORUM AND REGARDLESS OF WHETHER ANY ACTION OR CLAIM IS BASED ON CONTRACT, TORT, OR OTHERWISE, EXCEED THE TOTAL AMOUNT PAID BY SUBSCRIBER TO ENAVVI DURING THE 12 MONTHS IMMEDIATELY PRECEDING THE CLAIM (DETERMINED AS OF THE DATE OF ANY FINAL JUDGMENT IN AN ACTION).
• Independent Allocations of Risk. EACH PROVISION OF THIS AGREEMENT THAT PROVIDES FOR A LIMITATION OF LIABILITY, DISCLAIMER OF WARRANTIES, OR EXCLUSION OF DAMAGES IS TO ALLOCATE THE RISKS OF THIS AGREEMENT BETWEEN THE PARTIES. THIS ALLOCATION IS REFLECTED IN THE PRICING OFFERED BY ENAVVI TO SUBSCRIBER AND IS AN ESSENTIAL ELEMENT OF THE BASIS OF THE BARGAIN BETWEEN THE PARTIES. EACH OF THESE PROVISIONS IS SEVERABLE AND INDEPENDENT OF ALL OTHER PROVISIONS OF THIS AGREEMENT. THE LIMITATIONS IN THIS SECTION 11 WILL APPLY NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY IN THIS AGREEMENT.

GENERAL

• Relationship. eNavvi will be and act as an independent contractor (and not as the agent or representative of Subscriber) in the performance of this Agreement.
• Assignability. Neither party may assign its rights, duties, and obligations under this Agreement without the other party’s prior written consent, which consent will not be unreasonably withheld or delayed, except that a party may assign this Agreement without the other party’s consent to a successor (including a successor by way of merger, acquisition, sale of assets, or operation of law) if the successor agrees to assume and fulfill all of the assigning party’s obligations under this Agreement.
• Subcontractors. eNavvi may use a subcontractor or other third party to perform its duties under this Agreement so long as eNavvi remains responsible for all its obligations under this Agreement.
• Notices. Any notice required or permitted to be given in accordance with this Agreement will be effective if it is in writing and sent by certified or registered mail, or insured courier, return receipt requested, to the appropriate party at the address set forth on the signature page of this Agreement and with the appropriate postage affixed. Either party may change its address for receipt of notice by notice to the other party in accordance with this Section 12.4. Notices are deemed given two business days following the date of mailing or one business day following delivery to a courier.
• Force Majeure. Neither party will be liable for, or be considered to be in breach of or default under this Agreement on account of, any delay or failure to perform as required by this Agreement as a result of any cause or condition beyond its reasonable control, so long as that party uses all commercially reasonable efforts to avoid or remove the causes of non-performance.
• Governing Law. This Agreement will be interpreted, construed, and enforced in all respects in accordance with the laws of the State of Delaware, U.S.A., without reference to its choice of law rules and not including the provisions of the 1980 U.N. Convention on Contracts for the International Sale of Goods. Each party hereby irrevocably consents to the exclusive jurisdiction and venue of the federal, state, and local courts in the State of Delaware, U.S.A. in connection with any action arising out of or in connection with this Agreement.
• Waiver. The waiver by either party of any breach of any provision of this Agreement does not waive any other breach. The failure of any party to insist on strict performance of any covenant or obligation in accordance with this Agreement will not be a waiver of such party’s right to demand strict compliance in the future, nor will the same be construed as a novation of this Agreement.
• Severability. If any part of this Agreement is found to be illegal, unenforceable, or invalid, the remaining portions of this Agreement will remain in full force and effect. If any material limitation or restriction on the use of the Service under this Agreement is found to be illegal, unenforceable, or invalid, Subscriber’s right to use the Service will immediately terminate.
• Counterparts. This Agreement may be executed in any number of identical counterparts, notwithstanding that the parties have not signed the same counterpart, with the same effect as if the parties had signed the same document. All counterparts will be construed as and constitute the same agreement. This Agreement may also be executed and delivered by facsimile and such execution and delivery will have the same force and effect as an original document with original signatures.
• Entire Agreement. This Agreement, including all exhibits, is the final and complete expression of the agreement between these parties regarding Subscriber’s use of the Service. This Agreement supersedes, and the terms of this Agreement govern, all previous oral and written communications regarding these matters, all of which are merged into this Agreement, except that this Agreement does not supersede any prior nondisclosure or comparable agreement between the parties executed prior to this Agreement being executed, nor does it affect the validity of any agreements between the parties relating to professional services relating to the Service that eNavvi may provide. No employee, agent, or other representative of eNavvi has any authority to bind eNavvi with respect to any statement, representation, warranty, or other expression unless the same is specifically set forth in this Agreement. No usage of trade or other regular practice or method of dealing between the parties will be used to modify, interpret, supplement, or alter the terms of this Agreement. This Agreement may be changed only by a written agreement signed by an authorized agent of the party against whom enforcement is sought. eNavvi will not be bound by, and specifically objects to, any term, condition, or other provision that is different from or in addition to this Agreement (whether or not it would materially alter this Agreement) that is proffered by Subscriber in any receipt, acceptance, confirmation, correspondence, or otherwise, unless eNavvi specifically agrees to such provision in writing and signed by an authorized agent of eNavvi.