HealthCheck Terms of Service
SOFTWARE END-USER LICENSE AGREEMENT
PLEASE READ ALL OF THE TERMS AND CONDITIONS IN THIS END-  USER LICENSE AGREEMENT CAREFULLY. YOU ARE NOT AUTHORIZED TO  DOWNLOAD OR USE THIS APPLICATION/WEBSITE UNLESS AND UNTIL YOU HAVE READ,  UNDERSTOOD, AND AGREE TO ACCEPT ALL OF THE TERMS AND CONDITIONS  OF THIS AGREEMENT.

By installing, copying, downloading, accessing or otherwise using  this version of the Software (as defined below), You (either as an  individual or an organization) affirm that you have read, understood,  and agree to be bound by the terms of this end-user license agreement  (the "Agreement") with Stratum Health Solutions, LLC ("Licensor").  If  you do not agree to the terms of this Agreement, you may not access,  use, transfer or copy the Software and should not proceed any further.  The date in which you accept this agreement by clicking "I Agree" is the  effective date of the Agreement ("Effective Date").

  

1.	Definitions.  The following terms when used in This Agreement will have the respective meanings assigned to them below:

 

"Account" refers to the user account You establish to interact with the Software.

 

"Confidential Information" means, with respect to You:  information, content, or data entered into the Software (also referred  to as "Data"), and with respect to Licensor: (a) the Software, the  Documentation, the Services, and any improvements to the Software; (b)  computer software (both object and source codes); (c) techniques,  concepts, methods, processes, designs, and program interfaces embodied  in or relating to the Software and Services; (d) anonymized and  aggregated information derived from all users use of the Software and  Services; and (e) all system security and system architecture design  relating to the Software. Confidential Information of either party (the  party disclosing information being the "Disclosing Party") includes  information: (a) the Disclosing Party protects against unrestricted  disclosure to others designated as confidential at the time of  disclosure; and (b) information that should reasonably be understood to  be confidential given the nature of the information and the  circumstances surrounding its disclosure. 

 

"Data" refers to all data, information and/or content entered by You into Your Account or the Software.

 

"Documentation" means any manuals, specifications, user  information, or other documentation provided or made available by  Licensor to You regarding access and use of the Software.

 

"Employer" means an individual, partnership, corporation,  organization, company, or other legal entity for whom you will perform  work who is asking You to provide answers to questions for analysis  within the Software.

 

"Intellectual Property Rights" shall mean all (i) copyrights  (including, without limitation, the right to reproduce, distribute  copies of, display and perform the copyrighted work and to prepare  derivate works), copyright registrations and applications, trademark  rights (including, without limitation, registrations and applications),  patent rights (including, without limitation, granted patents,  applications, continuations, and continuations-in-part), trade names,  mask-work rights, trade secrets, moral rights, author’s rights, privacy  rights, publicity rights, algorithms, rights in packaging, goodwill and  other proprietary rights, and all renewals and extensions thereof,  regardless of whether any of such rights arise under the laws of any  state, country, or jurisdiction; (ii) intangible legal rights or  interests evidenced by or embodied in any idea, design, concept,  technique, invention, discovery, enhancement, or improvement, regardless  of patentability, but including patents, patent applications, trade  secrets, and know-how; and (iii) all derivatives of any of the  foregoing. 

 

"Software" means the cloud hosted, on demand service,  including any code, underlying technology, upgrades, updates, and  add-ons thereto or new versions thereof, made generally available by  Licensor and your Employer to You to analyze answers, data, and other  information provided by you relating to your fitness to perform work. 

 

"Services" means hosting, maintenance, and any upgrades, additions or replacements to the Software.

 

"Site" refers to the mobile application called HealthCheck by Stratum  and the website located at StratumHealth.io and any successor website.

 

"You" or "Your" means the individual accepting these terms and conditions using the Software.

 

2.	Access Rights and Restrictions.

 

2.1	Subject to Your compliance with this Agreement, Licensor grants  you a personal, revocable, non-transferable, non-exclusive limited  license to access and use the Software only for business purposes in  connection with your work for Employer. Your use of the Software is  limited to: (a) providing answers, information, or other data as  requested by your Employer; (b) receiving information about your  availability for work for Employer; and (c) accessing the Site  ("Authorized Use"). 

 

2.2	You agree that you will comply with the terms of this Agreement  and that you will not, nor will You request or allow any third party to,  interact with the Software in any way that: (a) is obscene, fraudulent,  indecent, defamatory, abusive, harassing, or threatening to others, or  that negatively impacts others’ ability to use the Software or the Site;  (b) introduces viruses, malware, worms, time bombs, cancelbots, or  other disabling devices or other harmful components intended to, or that  may, damage, detrimentally interfere with, surreptitiously intercept,  or expropriate any system, data, or personal information; (c) infringes  on the copyright, patent, trademark, trade secret, right of publicity,  or other intellectual property or proprietary right of any third party;  (d) violates the privacy of individuals, including, but not limited to,  other users of the Software or Site; (e) engages in, assists, or  encourages any conduct, activities, or communications that affect the  operation, access, or usability of the Software or the Site for any  other authorized user; or (f) violates any applicable local, state,  national, or international law(s), regulations, or requirements.

 

2.3	You agree that You will not, nor will You request or allow any  third party to: (a) license, sublicense, give, sell, resell, rent,  transfer, assign, distribute, time share or otherwise commercially  exploit or make available to any third party any part of the Software or  Documentation in any way; (b) use the Software to provide services to  third parties; (c) modify, copy, publish, republish, distribute, adapt  or translate any part of the Software or Documentation, or make  derivative works based upon any part of the Software or Documentation;  (d) create internet "links" to the Software or "frame" or "mirror" any  part of the Software on any other server or wireless or internet-based  device; (e) reverse engineer, disassemble, reverse compile or otherwise  reduce to human perceivable form any part of the Software, except to the  extent that applicable law permits it despite these limitations; (f)  apply any other process or procedure to derive the source code of any  Software; (g) circumvent or disable any security or other technological  features or measures of the Software, or attempt to probe, scan or test  the vulnerabilities of a network or system, or to breach security or  authentication measures, and/or (h) access or use the Software in order  to (1) attempt to gain unauthorized access to the Software or the  related systems and networks, (2) build a competitive product or  service, (3) build a service or product using similar ideas, features,  functions or graphics of the Software or Documentation, or (4) copy or  make derivative works of any ideas, features, functions or graphics of  the Software or Documentation Licensor the right to bar any such  activities or uses, in its sole discretion. 

 

2.4	Subject to Your compliance with the terms of this Agreement,  Licensor will use commercially reasonable efforts to make the Software  available to You in accordance with, and for the term of, this  Agreement. Licensor may make improvements, changes or amendments to the  information, and other materials in the Software or the Site, or  terminate the Software or the Site at any time in Licensor’s sole  discretion. Licensor reserves the right to change, suspend, remove, or  disable your access to the Software, whether temporary or permanent.  Licensor may also impose limits on the use of or access to the Software,  or portions thereof, in any case and without notice or liability. 

 

2.5	You acknowledge that Licensor is not responsible for providing  equipment necessary to access and use the Software via the public  Internet, or for the charges associated with such access or use. Other  than providing access to the Software as set forth herein, Licensor  assumes no responsibility whatsoever relating to content or interactions  between You and Employer through the Software or otherwise.

 

2.6	At some point in time, Licensor may make third-party products  available for use in connection with the Software (each a "Third-Party  Product"). Licensor does not warrant or guarantee the timeliness,  sequence, accuracy, completeness or availability of any Third-Party  Product and Licensor may discontinue access to any Third-Party Product  at its sole discretion any time with or without notice.

 

2.7	You are responsible for maintaining the confidentiality and  security of your login credentials necessary to authenticate and access  Your Account and the Software. If You suspect or know that Your login  credentials have been stolen or compromised, You must immediately report  that loss or compromise to Licensor. You are responsible for all acts  and omissions associated with Your Account. 

 

3.   	Information You Provide

 

3.1	You agree that all Data or other information You enter into Your  Account or otherwise into the Software will be true, accurate, current,  and complete. You represent and warrant that you have the legal right to  provide it, and that it does not violate any third party’s intellectual  property or privacy rights. 

 

3.2	You agree that Licensor may collect and use technical data and  related information, including but not limited to, technical information  about the device You use to access Your Account or the Software. We  may, in our legitimate interest in maintaining the Software, also  collect information about the system and application software Your use  as well as information about the device peripherals You employ. And we  may collect information about Your activities on Your Account or with  the Software. This information is gathered periodically and facilitates  the development of software updates, the provision of support, and with  the delivery of other services and products for You. More information  about the collection and use of this information, as well as other  information we may collect from You through the Software, can be found  in our Privacy Policy. 

 

4.	Confidentiality.

 

4.1	Each party shall take all reasonable efforts to keep all  Confidential Information strictly confidential and shall not disclose  any Confidential Information of the other to any person other than  individuals whose access is necessary to enable it to exercise its  rights and/or perform its obligations hereunder and who are under  obligations of confidentiality substantially similar to those set forth  herein. The receiving party shall take the same steps as it would to  protect its own similar proprietary and confidential information, which  shall not be less than a reasonable standard of care. Confidential  Information of either party disclosed prior to execution of the  Agreement shall be subject to the protections afforded hereunder. If the  receiving party is compelled by law or legal process to disclose  Confidential Information of the Disclosing Party, it shall provide the  Disclosing Party with prompt prior notice of such compelled disclosure  (to the extent legally permitted) and reasonable assistance, at the  Disclosing Party's expense, if the Disclosing Party wishes to contest  the disclosure.

 

4.2	The above restrictions on use or disclosure of Confidential  Information shall not apply to any Confidential Information that: (a) is  independently developed by the receiving party without reference to the  Disclosing Party’s Confidential Information, or is lawfully received  free of restriction from a third party having the right to furnish such  Confidential Information; (b) has become generally available to the  public without breach of the Agreement by the receiving party; (c) at  the time of disclosure, was previously known to receiving party free of  restriction; or (d) the Disclosing Party agrees in writing is free of  such restrictions.

 

4.3	Notwithstanding any provision in this Agreement to the contrary,  each party may disclose Confidential Information of the other party to  the extent it is required to be disclosed pursuant to a valid order or  requirement of a governmental agency or court of competent jurisdiction.

 

4.4 	You and Employer shall promptly notify Licensor of any known or  suspected unauthorized disclosure or use of, or access to Licensor’s  Confidential Information, and will cooperate in every reasonable way to  help Licensor regain possession of its Confidential Information and/or  to prevent further unauthorized use or disclosure. In the event of the  threatened or actual breach of this Agreement, Licensor may have no  adequate remedy at law and shall be entitled to (a) all equitable  remedies, including immediate injunctive relief (without bond and  without the necessity of showing actual monetary damages), (b)  reasonable attorney’s fees incurred in enforcing its rights hereunder,  and (c) any other legal remedies that may be available.

 

5.	Intellectual Property Ownership.

 

5.1 	Licensor (and any affiliates or subsidiaries) will exclusively  own all right, title, and interest, including all related Intellectual  Property Rights, in and to Licensor’s Confidential Information and any  suggestions, ideas, enhancement requests, feedback, recommendations, or  other information provided by You or any other party relating to the  Software.  This Agreement is not a sale of any part of the Software.  Except for the limited rights expressly granted herein, the Agreement  does not transfer from Licensor any right or interest in the Software to  You. All rights or interests not expressly granted to You in this  Agreement are reserved by Licensor. Licensor’s name, logo, and the names  associated with the Software are the property of Licensor or third  parties and no right or license is granted to You or anyone else in or  to them.  

 

Except for Your Data, to the maximum extent authorized by applicable  law, upon its creation or compilation, we are automatically deemed the  sole author and owner of all data and information associated with the  operation of the Software (“Software Data”).  You acknowledge and agree  that Licensor has full discretion regarding any and all use of Your Data  and Software Data in connection with providing the analyses performed  by the Software as contemplated by the Agreement to You and Your  Employer.  In the event that applicable law does not authorize Licensor  to be deemed the owner of any Software Data, without additional  compensation, You agree to and hereby do assign and, upon creation  thereof, automatically assign to Licensor all rights, titles and  interests You may have in and to all such Software Data. In the event  that applicable law does not authorize Licensor to be deemed the owner  of such Software Data and does not permit You to assign to Licensor all  rights, titles and interests in and to such Software Data, without  additional compensation, You hereby grant us an exclusive, transferable,  royalty-free, fully paid, perpetual, irrevocable, worldwide license,  with right of sublicense through multiple levels of sublicense, under  all of Your rights in and to any and all such Software Data: (i)  reproduce, create derivative works of, distribute, publicly perform,  publicly display, digitally transmit, and otherwise use such Software  Data or other work product in any medium or format, whether now known or  hereafter discovered, (ii) use, make, have made, sell, offer to sell,  import, and otherwise exploit any product or service based on,  embodying, incorporating, or derived from such Software Data or other  work product, and (iii) exercise any and all other present or future  rights in such Software Data and other work product.

 

6. 	Data Privacy and Security

 

6.1	Both Parties will implement commercially reasonable technical and  organizational measures designed to meet their respective requirements  under applicable data protection laws and to reasonably protect Your  Data against misuse. Further information on the collection, use, and  disclosure of data, including certain data subject rights available  under applicable laws, may be found in our Privacy Policy.

 

6.2	You and Your Employer are solely responsible for determining the  suitability of the Software for Your Authorized Use. You agree that no  legal requirements prevent Licensor from fulfilling its contractual  obligations under this Agreement.

 

6.3	You acknowledge that to the maximum extent authorised under  applicable law all Data entered into Your Account or the Software  belongs to Your Employer and may be used by Your Employer for all lawful  purposes. In particular, Your Employer may use Your Data for any lawful  purpose in connection with determining Your availability for work. You  acknowledge that the Software, Licensor and Your Employer are not acting  as physicians when evaluating your availability for work and are not  offering You a diagnosis or any other health advice based on the  analysis of Your Data. The analysis of Your Data by the Software and  Your Employer is being made on the basis of public health guidelines to  protect the health of Your co-workers, customers, clients, patients, and  the public. 

 

6.4	Licensor may create analyses derived, in part, from Your Data and  information from Your use of the Software. Analyses will anonymize and  aggregate information, and are the proprietary, confidential and  wholly-owned materials of Licensor. A non-exhaustive list of examples of  how analyses may be used include: optimizing resources and support;  research and development; automated processes that enable continuous  improvement, performance optimization and development of new Licensor  products and services; verification of security and data integrity;  internal demand planning; and data products such as industry trends and  developments, indices and anonymous benchmarking.

 

6.5	You agree to comply with all applicable laws, statutes,  ordinances and regulations regarding use of the Software, including  compliance with U.S. export laws and regulations. You represent: (i) You  are not located in a country subject to U.S. sanctions or embargoes  prohibiting transactions with U.S. entities or otherwise prohibited by  U.S. law from receiving U.S. exports or importing into the U.S.  ("Prohibited Country(ies)"); (ii) You are not a citizen of or located in  a Prohibited Country; (iii) You are not prohibited from receiving  United States exports or importing into the United States by listing on  export/import denial lists published by any United Sates Government  agency or department. You further agree that You shall not utilize the  Software in any Prohibited Country or provide access to the Software to  any person listed on any such United States Government list of  prohibited and restricted parties.

 

7.	Disclaimer of Warranties. 

 

7.1	EXCEPT AS OTHERWISE PROVIDED IN THIS AGREEMENT, LICENSOR MAKES NO  REPRESENTATION, WARRANTY, OR GUARANTY AS TO THE RELIABILITY,  TIMELINESS, QUALITY, SUITABILITY, MERCHANTABILITY, AVAILABILITY,  ACCURACY, OR COMPLETENESS OF ANY PART OF THE SOFTWARE.  LICENSOR AND ANY  AFFILIATES OR SUBSIDIARIES DO NOT REPRESENT OR WARRANT THAT (I) THE USE  OF THE SOFTWARE OR SERVICES WILL BE SECURE, TIMELY, UNINTERRUPTED, OR  ERROR-FREE OR OPERATE IN COMBINATION WITH ANY OTHER HARDWARE, SOFTWARE,  SYSTEM, OR INFORMATION; (II) THE SOFTWARE WILL MEET YOUR REQUIREMENTS OR  EXPECTATIONS; (III) ANY DATA WILL BE ACCURATE OR RELIABLE; (IV) ERRORS  OR DEFECTS WILL BE CORRECTED; (V) THE SOFTWARE IS COMPLIANT WITH  APPLICABLE LAWS; OR (VI) THE SERVICES, SOFTWARE, OR THE SERVER(S) THAT  MAKE THE SOFTWARE AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL  COMPONENTS. THE SOFTWARE, INCLUDING THE SERVICES, IS PROVIDED TO YOU  STRICTLY ON AN “AS IS” BASIS.  ALL CONDITIONS, REPRESENTATIONS AND  WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING,  WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS  FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT OF THIRD-PARTY RIGHTS, ARE  HEREBY DISCLAIMED TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW BY  US AND OUR LICENSORS.

 

7.2	THE PRODUCT MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER  PROBLEMS INHERENT IN THE USE OF THE INTERNET AND ELECTRONIC  COMMUNICATIONS. WE ARE NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY  FAILURES, OR OTHER DAMAGE RESULTING FROM SUCH PROBLEMS.

 

8.	Limitation of Liability.

 

8.1	THE TOTAL LIABILITY OF LICENSOR WITH RESPECT TO ALL CLAIMS UNDER  OR IN CONNECTION WITH THIS AGREEMENT, WHETHER IN CONTRACT, TORT  (INCLUDING NEGLIGENCE) OR OTHERWISE SHALL NOT EXCEED TWO-HUNDRED US  DOLLARS (US $200). IN NO EVENT WILL LICENSOR BE LIABLE TO ANYONE FOR ANY  INDIRECT, PUNITIVE, SPECIAL, EXEMPLARY, INCIDENTAL, CONSEQUENTIAL, OR  OTHER DAMAGES OF ANY TYPE OR KIND (INCLUDING LOSS OF DATA, REVENUE,  PROFITS, USE, OR OTHER ECONOMIC ADVANTAGE) ARISING OUT OF, OR IN ANY WAY  CONNECTED WITH THIS AGREEMENT, INCLUDING WITHOUT LIMITATION, ANY PART  OF THE PRODUCT, THE USE OR INABILITY TO USE THE SERVICES, OR INACCURACY  OF ANY CONTENT OBTAINED OR DERIVED FROM OR THROUGH THE PRODUCT, ANY  INTERRUPTION, INACCURACY, ERROR, OR OMISSION, REGARDLESS OF CAUSE, EVEN  IF SUCH PARTY HAD PREVIOUSLY ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.  THE LIMITATIONS ABOVE WILL NOT APPLY TO LICENSOR’S INDEMNIFICATION  OBLIGATIONS.

 

9.  	Indemnification

 

9.1	You will indemnify, defend and hold Licensor and Licensor’s  parent organizations, subsidiaries, affiliates, officers, directors,  employees, attorneys and agents harmless from and against any and all  claims, costs, damages, losses, liabilities and expenses (including  reasonable attorneys’ fees and costs) arising out of or in connection  with a claim brought by a third party arising from your negligence or  misconduct, including a breach by you of this Agreement.  Licensor will  indemnify, defend and hold You harmless from and against any and all  claims, costs, damages, losses, liabilities and expenses (including  reasonable attorneys’ fees and costs) arising out or in connection with a  claim brought by a third party alleging infringement of any patent,  copyright or trade secret, or other non-patent intellectual property  right of such third party.

 

9.2	Licensor’s obligations to defend, indemnify, and hold harmless  the other party shall be subject to the following: (a) You shall provide  Licensor with prompt notice of the claim giving rise to such  obligation; (b) Licensor shall have control of the defense and of all  negotiations for settlement of such claim or suit; and (c) You shall  cooperate with Licensor in the defense or settlement of any such claim  or suit. Subject to clause (b) above, You may participate in the defense  of any such claim or suite at Your own expense and with Your own  counsel subject to approval by Licensor. 

 

10.	Term and Termination.

 

10.1	This Agreement shall be effective as of the Effective Date and  shall remain in effect (unless terminated earlier) for an initial term  of one (1) year, and shall automatically renew for successive one (1)  month terms unless either party provides written notice of its intent  not to renew the Agreement prior to the end of the then-current term.  Additionally, the Agreement shall terminate upon the earlier of: (a) the  existence of a claim which precludes continued access to the Software,  (b) upon thirty (30) days written notice to the other party of such  other party’s material breach of any provision of the Agreement, unless  the breaching party has cured such breach during such thirty (30) day  period, or (c) upon thirty (30) days’ notice to the other party of  termination for convenience. Where an agreement between You and Your  Employer is terminated for any reason then Your rights to access the  Software in respect of that particular Employer shall cease immediately.  You expressly acknowledge and agree that Licensor is entitled to rely  on your Employer for information regarding Your termination and Licensor  shall have no liability to You for any suspension or termination  actions based on Licensor’s reasonable belief in the accuracy or  reliability of such termination information. Upon the effective date of  termination, Your access to the Software will be terminated. You may  request a copy of Your Data any time prior to termination. You agree and  acknowledge that we have no obligation to retain the Data but may do so  in our sole discretion in accordance with applicable laws.

 

10.2	In addition to Licensor’s termination rights set forth in  Section 10.1, Licensor may deactivate Your access credentials and/or  suspend access to the Software or a portion thereof if Licensor  reasonably determines that Your continued use of the Software may result  in harm to the Software (including the security of the systems used to  provide the Software), Licensor’s Intellectual Property Rights, or other  Software users or the rights of third parties. Licensor may communicate  such suspension or termination, and the reason therefore, to You and  Your Employer in order for such companies to be informed that further  attempts to engage with You are not possible through the Software until  the suspension is lifted.

 

10.3	Any provisions which by their nature should survive, shall  survive the expiration, termination or rescission thereof and continue  in full force and effect after this Agreement is terminated.

 

11.	Miscellaneous.

 

11.1	This Agreement constitutes the complete and exclusive agreement  between Licensor and You related to the Software and Services and  subject matter hereof, and all previous representations, discussions,  and writings (including any confidentiality agreements) are merged in,  and superseded by, the Agreement and the parties disclaim any reliance  on any such representations, discussions and writings. Signatures sent  by electronic means (facsimile or scanned and sent via e-mail, or signed  by electronic signature service where legally permitted) shall be  deemed original signatures. This Agreement may not be modified by You  unless done in writing and if signed by authorized representatives of  Licensor. It is the intent of the parties that in case any one or more  of the provisions contained in the Agreement shall be held to be invalid  or unenforceable in any respect, such invalidity or unenforceability  shall not affect the other provisions of the Agreement, which shall be  construed as if such invalid or unenforceable provision had never been  contained herein.

 

11.2	The United Nations Convention on Contracts for the International  Sale of Goods shall not apply to the Agreement. The Uniform Computer  Information Transactions Act as enacted shall not apply.

 

11.3	All notices pursuant to the Agreement shall be in writing and  shall be deemed duly given when delivered (certified or registered mail  or by an overnight courier service with delivery receipt) to the  executive offices of Licensor 8410 Highway 90A, Suite 130, Sugar Land,  TX 77478. Notices to You will be delivered via the Site or email  addresses provided when setting up Your Account.

 

11.4	Any delay or nonperformance of any provision of the Agreement  caused by conditions beyond the reasonable control of the performing  party shall not constitute a breach of the Agreement, and the time for  performance of such provision, if any, shall be deemed to be extended  for a period equal to the duration of the conditions preventing  performance. No failure or delay by either Party in exercising any  right, power or privilege hereunder shall operate as a waiver hereof;  all waivers being required to be in writing signed by the waiving Party.  If either party should waive any breach of any provision of the  Agreement, it shall not thereby be deemed to have waived any preceding  or succeeding breach of the same or any other provision hereof.

 

11.5	You may not, without Licensor’s prior written consent, assign,  delegate, pledge, subcontract, or otherwise transfer the Agreement, or  any of Your rights or obligations under the Agreement, or divulge  Licensor’s Confidential Information, to any third party, whether  voluntarily or by operation of law, including by way of sale of assets,  merger or consolidation. Licensor may assign the Agreement to any of its  Affiliates or in combination with a sale of assets, merger or  consolidation. Licensor may in its sole discretion sub-contract parts of  the Software to third-parties

 

11.6	The parties are independent contractors, and no partnership,  franchise, joint venture, agency, fiduciary or employment relationship  between the parties or with the Employer is created hereby. There are no  third-party beneficiaries to the Agreement.

 11.7	This Agreement will be governed by laws of the State of Texas,  without regard to the choice or conflicts of law provisions of any  jurisdiction, and any disputes, actions, claims, or causes of action  arising out of or in connection with this Agreement or the Service will  be subject to the exclusive jurisdiction of the state and federal courts  located in Fort Bend County, Texas. If any provision of this Agreement  is held by a court of competent jurisdiction to be invalid or  unenforceable, then such provision(s) will be construed, as nearly as  possible, to reflect the intentions of the invalid or unenforceable  provision(s), with all other provisions remaining in full force and  effect.

 11.8	THE PARTIES WAIVE ANY RIGHT TO ASSERT ANY CLAIMS AGAINST THE  OTHER PARTY AS A REPRESENTATIVE OR MEMBER IN ANY CLASS OR REPRESENTATIVE  ACTION, EXCEPT WHERE SUCH WAIVER IS PROHIBITED BY LAW OR DEEMED BY A  COURT OF LAW TO BE AGAINST PUBLIC POLICY. TO THE EXTENT EITHER PARTY IS  PERMITTED BY LAW OR COURT OF LAW TO PROCEED WITH A CLASS OR  REPRESENTATIVE ACTION AGAINST THE OTHER, THE PARTIES AGREE THAT: (I) THE  PREVAILING PARTY SHALL NOT BE ENTITLED TO RECOVER ATTORNEYS’ FEES OR  COSTS ASSOCIATED WITH PURSUING THE CLASS OR REPRESENTATIVE ACTION (NOT  WITHSTANDING ANY OTHER PROVISIOSN IN THIS AGREEMENT); AND (II) THE PARTY  WHO INITIATES OR PARTICIPATES AS A MEMBER OF THE CLASS WILL NOT SUBMIT A  CLAIM OR OTHERWISE PARTICPATE IN ANY REOCVERED SECURED THROUGH THE  CLASS OR RERPRESENTATIVE ACTION.

 11.9	Any claim brought under this Agreement must be brought within  one (1) year after the cause of action arises or such claim or cause of  action is barred, and any claim by you is subject to the Limitation of  Liability set forth herein.