Preventure Terms of Use Agreement

Last Updated Date: June 5, 2023

1. ACCEPTANCE.

This Terms of Use Agreement sets forth the legally binding terms and conditions between You and Bardavon Health Innovations, Inc., (“Bardavon,” “we,” “us,” or “our”) governing Your access to and use of our current and future mobile applications, web applications (“Bardavon Prevention” and “Bardavon Digital Recovery”) (hereinafter, “Application”), and any other current and future Bardavon products and services (collectively, the “Services”).

By downloading, accessing, or using the Application or the Services, You, each person, entity, or organization (“You,” “Your,” “Yourself,” “User,” “Authorized User” or “Business Customer”) accept this agreement, our Privacy Policies, and any additional terms and conditions that are referenced in this Agreement, Revised Agreement, or that otherwise may apply to specific features of the Application or the Services (all of which are treated as part of this Agreement). If You do not agree to the terms of this Agreement, You may not use the Application or the Services. If You are using the Application or the Services on behalf of an individual, entity, employer, organization, government, or other legal entity other than Yourself, You represent that You are authorized by such individual, entity, employer, organization, government, or other legal entity to accept this Agreement on behalf of Yourself and on behalf of such other individual, entity, employer, organization, government, or other legal entity.

Please note that this Agreement is subject to change by Bardavon in its sole discretion at any time in accordance with Section 17.2 below. Please regularly check this Agreement to view the then-current terms.

2. THE SERVICES.

2.1 Services Overview. You acknowledge and agree that use of the Application and the Services is for informational purposes only, does not provide medical advice or diagnosis, is not intended to replace or be a substitute for any medical advice concerning any patient or medical condition that may be needed or that requires medical-related advice. Additionally, you acknowledge and agree that data and Content you provide via the Application and the Services does not constitute protected health information, as defined under the Health Insurance Portability and Accountability act (“HIPAA”) or under similar legislation in your local jurisdiction. You acknowledge that the Application and the Services are a platform for disseminating user generated content such as medical related protocols and related information that is not subject to review or approval by Us. You acknowledge and agree that Bardavon does not endorse, guarantee, or assume responsibility for the accuracy, efficacy, or veracity of any information or recommendation received or provided or made available through the Application or the Services. Bardavon does not provide services requiring professional licensure (e.g., physician or other medical professional services) and the Services provided by the Application do not contain or constitute, and should not be interpreted as, medical advice or opinion. Always seek the advice of your physician or other qualified health provider with any questions you may have regarding a medical or other health condition. Never disregard professional medical or clinical advice or delay in seeking it because of something you have read on the Services. Neither the Application nor the Services are intended for emergency use. If you think you have a medical emergency, call 911 (United States), call 000 (Australia), or seek immediate or other appropriate emergency attention.

2.2 Eligibility Generally. You represent and warrant to Us that: (a) You have the legal capacity to enter into a legally binding Agreement; (b) You have all hardware, software, Internet, and services, which are necessary to access the Application and the Services (apart from the Hardware We will supply to You); (c) You are solely responsible for any fees, including Internet connection or mobile fees, that You incur when accessing the Services; and (d) You have not previously been suspended or removed from the Services; and (d) Your use of the Application and the Services is in compliance with any and all applicable laws and regulations and You are not a person barred from using the Services under the laws of the United States, Your place of residence, or any other applicable jurisdiction.

2.3 Use of the Application and Services. In order to use the Application and the Services, You may be required to (a) create an Account with Us, (b) enter Your Company Code, a pin number, and/or a username and password, some of which may be provided to You by Your employer, insurer, or health care provider or facility (“Business Customer”). You will receive instructions from Bardavon on how to use the Application and the Services. For a Business Customer to use or authorize the use of the Application or the Services with a patient, employee, or insured, the Business Customer may be required to have a Master Subscription Agreement or other written agreement with Bardavon and will need to create an account in accordance with Bardavon’s instructions. The Business Customer may authorize its patients, employees, or insureds to use the Application and the Services in accordance with Bardavon’s instructions. All personal information given to Us will be handled in accordance with our Privacy Policies.

2.4 No Physician-Patient Relationship with Bardavon. The information, content, data, and reports generated by Bardavon or the Services should not be interpreted as a substitute for physician or other health care professional consultation, evaluation, or treatment, and the information made available on or through the Services should not be relied upon when making medical or other clinical decisions or to diagnose or treat a medical or health condition. Nothing contained in the Services should be construed as such advice or diagnosis .You are urged and advised to seek the advice of a physician or a medical professional with any questions You may have regarding Your health before beginning any rigorous activity that may affect Your wellbeing, or any other plans that may be referenced, discussed, or offered under the Services. If You are being treated for an illness or injury, taking prescription medication, or following a therapeutic treatment plan, we especially urge You to consult with Your physician before using the Services. You represent to Us (which representation shall be deemed to be made each time You use the Services), that You are not using the Services or participating in any of the activities offered by the Services for purposes of seeking medical attention. You further agree that, before using the services, You shall consult Your physician. If any information You receive or obtain from using the Services is inconsistent with the medical advice from Your physician, You should follow the advice of Your physician.

2.5 Company Communications. By entering into this Agreement or using the Services, You agree to receive communications from us, including via e-mail and push notifications. If You wish to opt out of communications from Us, you can unsubscribe from the unsubscribe options in the emails or Application itself.

3. ACCOUNTS.

3.1 Account Responsibilities. You are responsible for all activities that occur under Your Account. You agree that You shall monitor Your Account from unauthorized use, and You will accept full responsibility for any unauthorized use of the Services under Your account. Unless specifically authorized under this Agreement, You may not share Your Account pin, code, or password with anyone. You agree to notify Bardavon immediately of any unauthorized use or suspected unauthorized use of Your Account or any other breach of security by emailing [email protected]. You may not use the Account or username of any other user at any time. If You provide any information that is untrue, inaccurate, not current, or incomplete, or Bardavon has reasonable grounds to suspect that any information You provide is untrue, inaccurate, not current, or incomplete, Bardavon has the right to suspend or terminate in accordance with Sections 8.2 and 13 below and refuse any and all current or future use of the Services (or any portion thereof). You agree not to create an Account using a false identity or information. Bardavon reserves the right to remove or reclaim any username(s) at any time and for any reason, including but not limited to, claims by a third-party that a username violates the third-party’s rights.

3.2 License to the Services. Except as explicitly provided in this Agreement, neither Your use of the Application or the Services nor this Agreement grant You any right, title, or interest in or to the Services. Subject to Your compliance with the Agreement, Bardavon grants You a limited, non-exclusive, non-transferable, non-sublicensable, revocable license to download, install, and use a copy of the Application on a single mobile device that You own or control and to run such copy of the Application solely for Your own personal or internal business purposes. Furthermore, with respect to any Application accessed through or downloaded from the Apple App Store (an “App Store Sourced Application”), You will only use the App Store Sourced Application (a) on an Apple-branded product that runs the iOS (Apple’s proprietary operating system); and (b) as permitted by the “Usage Rules” set forth in the Apple App Store Terms of Service. With respect to any Application accessed through or downloaded from the Google Play store (a “Google Play Sourced Application”), You may have additional license rights with respect to use of the Application on a shared basis within Your designated family group.

3.4 Updates. You understand that Bardavon’s Services are evolving. As a result, Bardavon may require You to accept updates to the Services that You have installed. You acknowledge and agree that Bardavon may update the Services with or without notifying You. You agree that Bardavon is not liable to You or to any third-party for any modification, update, suspension, or discontinuation of any Services that are provided by Bardavon. You may need to update third-party software from time to time in order to use the Services.

4. HARDWARE.

4.1 Leased Hardware. In accordance with the payment of Fees outlined in Business Customer’s Master Subscription Agreement or other written agreement with Bardavon, Bardavon will lease to You the Hardware applicable to Your Bardavon product from the date of delivery until the date Your Account is terminated in accordance with this Agreement. At all times, Bardavon owns the hardware. We may use a third-party manufacturer (“Manufacturer”) to manufacture the Hardware. Despite any provision to the contrary, to the maximum extent permitted by law, You acknowledge and agree: (a) to protect and maintain the Hardware and keep it in good order and condition; (b) To ensure that only authorized users use the Hardware; (c) that You are responsible for any loss, cost, theft, damage, vandalism, or destruction of or to the Hardware; and (d) that no such loss, cost, theft, damage, or destruction of or to the Hardware will impair or frustrate any of Your obligations under this Agreement including, without limitation, as to the payment of fees.

4.2 Installation, Support, and Maintenance of Hardware. You are responsible for any installation or pairing of the Hardware with the software to ensure the Hardware functions as required by the Services. If you require support or maintenance for the Hardware, please contact Us at [email protected]. Where any upgrades are made to the Hardware, Bardavon will supply these upgrades to You at no additional cost. You are not permitted to conduct any support, maintenance, or otherwise tamper with the Hardware or permit any third-party not authorized by Us to do so. Any such actions may void any remedies or rights You may have under this Agreement. On termination of this Agreement or cancellation of Your Account, You are responsible for returning all Hardware to Us at Your cost. Bardavon has the right to deny Your request for purchase of Hardware at Our sole discretion. Bardavon may issue discount codes for the purchase of bulk orders of Hardware at Our absolute discretion.

4.3 Hardware Delivery. Bardavon will deliver the Hardware using a range of delivery methods. All orders for Hardware will be processed within 24 business hours following receipt of payment. All delivery periods or timeframes displayed or communicated to You are estimates only, based on the information provided by third-party delivery companies. All deliveries must be signed for. If neither You nor Your authorized representative is at the delivery address to accept delivery, the delivery company will generally deliver the Hardware to the nearest delivery center for pick-up. If payment is declined for any reason, We reserve the right to reclaim the Hardware from Your possession, custody, or control even if the Hardware has been delivered to You or retrieved from the delivery address. We reserve the right to keep or sell the Hardware. Risk of loss, damage, or deterioration to any Hardware will pass to You upon delivery.

4.4 Hardware Defects. If You believe the Hardware contains any fault, defect, or error (“Defect”), which is caused by a breach of this Agreement by Us, You must immediately notify Us in writing. Upon request from Us, You must arrange for the return of the Hardware to Us for Our inspection or the inspection of our Manufacturer, if applicable. You agree to provide Us with all information We reasonably request concerning the Defect. If requested, You must make available or return all the relevant Hardware, together with all packaging, parts, accessories, and documentation provided with the Hardware. If, on Our inspection of the Hardware, or the inspection of our Manufacturer, if applicable, We or Our Manufacturer, if applicable, consider the Hardware to be defective, and such Defect was not caused by or contributed to anything that You or a third-party did, then (a) We may, either repair or replace the relevant Hardware, refund that portion of the fee to which the relevant Hardware relates, or provide You with compensation in the way of an extension of the use of the Hardware; and (b) We will refund You any costs associated with the return of the Hardware to Us. The Hardware may be covered by a separate Manufacturer’s warranty, which will be provided to You upon request and incorporated into this Agreement. Where any Manufacturer’s warranty applies, We may be required to send any Hardware with Defects to our Manufacturer for inspection, repair, or replacement. Nothing in this Agreement attempts to modify or exclude the conditions, warranties, undertakings, and other legal rights, under any applicable consumer protection laws. Where any Hardware is damaged, or otherwise contains a Defect, caused by or contributed to You or any third-party, You may obtain replacement Hardware, at your cost, by contacting Us.

4.5 For Australian Customers Only. Our goods come with guarantees, which cannot be excluded under the Australian Consumer Law. You are entitled to a replacement or refund for a major failure and compensation for any other reasonably foreseeable loss or damage. You are also entitled to have the goods repaired or replaced if the goods fail to be of acceptable quality and the failure does not amount to a major failure. Any and all other warranties or conditions, which are not guaranteed by the Australian Consumer Law, are expressly excluded where permitted, except to the extent such warranties and conditions are fully expressed in this Agreement.

4.5 Personal Property Securities Act 2009 (Cth) (For Australian Customers Only). “PPSA” means Personal Property Securities Act 2009 (Cth). Terms defined in the PPSA have the same meaning when used in this Section. We will retain full legal and equitable ownership of and title to all Hardware. You acknowledge that our interest in the Hardware leased under this Agreement and in all proceeds from the sale of such Hardware by You to a third-party is a security interest (although any such sale would be a breach of this Agreement). You consent to Us registering our security interest on the PPSA and agree to provide all assistance we reasonably require (i) to facilitate registration, (ii) to ensure that our security interest is enforceable against You and third-parties, perfected and otherwise effective, and has the priority we require and/or (iii) to enable Us to exercise our rights in connection with the security interest. You undertake to give Us not less than 14 days written notice of any proposed change in Your name and/or any other changes in your details (including but not limited to changes in your address, telephone numbers, email address, trading name or business practice). Pursuant to section 275(6) of the PPSA, You agree that You will not disclose to an interested person information pertaining to our security interest without our prior approval. You will pay on demand any losses arising from, and any costs and expenses incurred in connection with registration of a security interest and/or any action taken by Us to protect our security interest described above. You waive the right to receive any notice, copies of documents, or information under the PPSA (including notice of a verification statement) unless the notice, document, or information is required by the PPSA and cannot be excluded (including under sections 95, 117, 118, 121(4), 125, 127, 129(2), 129(3), 130, 132(3)(d), 132(4), 135, 136(5), 137(3), 142 and 143 of the PPSA, which will not apply).

5. RESPONSIBILITY FOR CONTENT.

5.1 Types of Content. The Services may allow users to Make Available certain content, data, information, geolocations, load scores, training compliance, usage of the Application and the Services, messages, texts, emails, or materials (collectively, “Content”) on or through the Services. You acknowledge that all Content, including the Services, is the sole responsibility of the party from whom such Content originated. This means that You, and not Bardavon, are entirely responsible for all Content that You upload, post, e-mail, transmit or otherwise make available (“Make Available”) through the Services (“Your Content”), and that You and other Authorized Users of the Services, and not Bardavon, are similarly responsible for all Content that You and they Make Available through the Services.

5.2 No Obligation to Pre-Screen Content. You acknowledge that, to the fullest extent permitted by applicable law, Bardavon has no obligation to pre-screen Content, although Bardavon reserves the right in its sole discretion to pre-screen, refuse or remove any Content. By entering into the Agreement, You hereby provide Your irrevocable consent to such monitoring. You acknowledge and agree that You have no expectation of privacy concerning the transmission of Your Content, including without limitation chat, text, or voice communications. In the event that Bardavon pre-screens, refuses or removes any Content, You acknowledge that Bardavon will do so for Bardavon’s benefit, not Yours. Without limiting the foregoing, Bardavon shall have the right to remove any Content that violates the Agreement or is otherwise objectionable.

5.3 Storage. Unless expressly agreed to by Bardavon in writing elsewhere, Bardavon has no obligation to store any of Your Content that You Make Available on the Services. Bardavon has no responsibility or liability for the deletion or accuracy of any Content, including Your Content; the failure to store, transmit or receive transmission of Content; or the security, privacy, storage, or transmission of other communications originating with or involving use of the Services. Certain Services may enable You to specify the level at which such Services restrict access to Your Content. You are solely responsible for applying the appropriate level of access to Your Content. If You do not choose, the system may default to its most permissive setting. You agree that Bardavon retains the right to create reasonable limits on Bardavon’s use and storage of the Content, including Your Content, such as limits on file size, storage space, processing capacity, and similar limits described on the Services and as otherwise determined by Bardavon in its sole discretion.

Unless otherwise agreed in writing between us and you, you agree and acknowledge that your Data may be stored overseas by us or our related bodies corporate, affiliated entities, third party suppliers, service providers and/or other trusted third parties. Any such overseas storage of your Data will be carried out in accordance with our Privacy Policy at all times.

5.4 Community Guidelines. As a condition of use, You agree not to Make Available any Content or take any action using the Services that: (i) may constitute, contribute to, depict, or encourage a crime, illegal or terrorist activity, or a violation or infringement of any third party’s rights; (ii) may create a risk of, glorify, encourage, or threaten violence, harm, physical or mental injury, emotional distress, death, disability, disfigurement, self-harm, or any other loss or damage to You or any other person or to any animal or to any property; (iii) You do not have the right to Make Available or to take under any law under contractual or fiduciary relationships (such as insider information, proprietary and confidential information learned or disclosed as part of employment relationships or under nondisclosure agreements); (iv) deceptively impersonates another person or entity or contains information that is fraudulent or that You know is not correct and current; (v) forges headers or otherwise manipulates identifiers in order to disguise the origin of any Content or other materials transmitted to or through the Services; or (vi) we deem in violation of Section 6.6. You will otherwise comply with any community or Content guidelines that we make available through the Services as Supplemental Terms.

5.5 Support and Maintenance. Bardavon shall endeavor to provide You with the support and maintenance accessible through your Account, provided that (i) You notify us in accordance with any applicable systems and this Agreement and (ii) where required, You assist us in investigating and ascertaining the cause of the fault and provide Us with access to all necessary information relevant to the fault (including what You or Your personnel have done in relation to the fault). We have no obligation to provide support and maintenance services for, and provide no warranties in respect to, the Application, the Services, and/or Hardware, or any part thereof, which has been modified by a person other than us. If You require any changes to the scope, functionality, or nature of the Application or the Services or the elements of the Application used to provide the Services or are requesting any customizations to the Services, You must notify Us of Your request. Following notification, we will provide You with written notice setting out the development services required in respect of such request (Development Services) and the fee for such Development Services (Development Fee). If you agree to the Development Services and the Development Fee then, subject to this Agreement, we will provide the Development Services to You in consideration for payment of the Development Fee.

6. INTELLECTUAL PROPERTY RIGHTS.

6.1 Ownership. Except with respect to Your Content, You agree that Bardavon and its suppliers and licensors own all rights, title, and interest in the Services. You will not remove, alter, or obscure any copyright, trademark, service mark or other proprietary rights notices incorporated in or accompanying any Service. Except as expressly stated in this Agreement, You are not granted any intellectual property rights in or to the Services by implication, estoppel, or other legal theory, and all rights in and to the Services not expressly granted in this Agreement are hereby reserved and retained by Bardavon.

6.2 Trademarks. Bardavon Health Innovations, Inc., Bardavon Health Digital, Inc., Bardavon, bardavon.com, the Bardavon logo, Bardavon Prevention, Bardavon Digital Recovery, Bardavon Prevention + Recovery, and the Bardavon Prevention + Recovery logo and all related graphics, logos, service marks and trade names used on or in connection with any of the Services are the trademarks of Bardavon and may not be used without permission in connection with Your, or any third-party, products or services. Other trademarks, service marks and trade names that may appear on or in the Services are the property of their respective owners.

6.3 Your Content. Bardavon does not claim ownership of Your Content. However, when You as an Authorized User post or publish Your Content on or in the Services, You represent that You own and/or have a royalty-free, perpetual, irrevocable, worldwide, non-exclusive right (including any moral rights) and license to use, license, reproduce, modify, adapt, publish, translate, create derivative works from, distribute, derive revenue or other remuneration from, and communicate to the public, perform and display Your Content (in whole or in part) worldwide and/or to incorporate it in other works in any form, media or technology now known or later developed, for the full term of any worldwide intellectual property right that may exist in Your Content.

6.4 License to Your Content and Data. You grant Bardavon a fully paid, royalty-free, perpetual, irrevocable, worldwide, royalty-free, non-exclusive and fully sublicensable right (including any moral rights) and license to use, license, distribute, reproduce, modify, adapt, publicly perform, and publicly display Your Content (in whole or in part) for the purposes of operating and providing the Services. You acknowledge and agree that we have the right to use Your personal information and/or data in accordance with our Privacy Policy. You warrant that the holder of any worldwide intellectual property right, including moral rights, in Your Content, has completely and effectively waived all such rights and validly and irrevocably granted to You the right to grant the license stated above. You agree that You, not Bardavon, are responsible for all of Your Content that You Make Available on or in the Services.

6.5 Feedback. You agree that submission of any ideas, suggestions, documents, and/or proposals to Bardavon through [email protected], by emailing Your assigned Bardavon Customer Success representative, or through the messaging feature in the Application (“Feedback”) is at Your own risk and that Bardavon has no obligations (including without limitation obligations of confidentiality) with respect to such Feedback. You represent and warrant that You have all rights necessary to submit the Feedback. You hereby grant to Bardavon a fully paid, royalty-free, perpetual, irrevocable, worldwide, non-exclusive, and fully sublicensable right and license to use, reproduce, perform, display, distribute, adapt, modify, re-format, create derivative works of, and otherwise commercially or non-commercially exploit in any manner, any and all Feedback, and to sublicense the foregoing rights, in connection with the operation and maintenance of the Services and/or Bardavon’s business.

6.6 Certain Restrictions. You agree not to: (a) license, sell, rent, lease, transfer, assign, reproduce, distribute, host or otherwise commercially exploit the Application or any portion of the Services; (b) frame or utilize framing techniques to enclose any trademark, logo, or other portion of the Services (including images, text, page layout or form) of Bardavon or Bardavon Prevention; (c) use any metatags or other “hidden text” using Bardavon’s or Bardavon Prevention’s name or trademarks; (d) modify, change, translate, adapt, merge, make derivative works of, disassemble, decompile, reverse compile or reverse engineer any part of the Application or the Services except to the extent the foregoing restrictions are expressly prohibited by applicable law; (e) except as expressly stated herein, copy, reproduce, distribute, republish, download, display, post or transmit in any form or by any means; (f) remove or destroy any copyright notices or other proprietary markings contained on or in the Services; (g) send through the Services unsolicited or unauthorized advertising, promotional materials, junk mail, spam, chain letters, pyramid schemes, or any other form of duplicative or unsolicited messages, whether commercial or otherwise; (h) impersonate any person or entity, including any employee or representative of Bardavon; (i) interfere with or attempt to interfere with the proper functioning of the Services or use the Services in any way not expressly permitted by this Agreement; (j) provide false, misleading, or inaccurate information to Bardavon or any other user; (k) attempt to probe, scan, or test the vulnerability of the Application or the Services or any associated system or network; (l) intentionally or unintentionally violate any applicable local, state, federal, or international laws and regulations, including workplace health and safety and workplace surveillance laws, or which infringes any person’s rights, including intellectual property rights and privacy rights; (m) use the Application or the Services to transmit, publish, or communicate material that is defamatory, offensive, abusive, indecent, menacing, or unwanted; (n) stalk or otherwise harass another user or employee of the Services; (o) abuse other users’ personal information that You receive through the Services, such as to harvest, collect, gather or assemble information or data regarding other users, including e-mail addresses, without their consent; (p) attempt to gain unauthorized access to the Services (or to other computer systems or networks connected to or used together with the Services), whether through password mining or any other means; (q) interfere with any other user’s use and enjoyment of the Services; (r) request or offer to perform a request that is illegal or violates any of the terms set forth herein; or (s) attempt to engage in or engage in, any potentially harmful acts that are directed against the Services, including but not limited to violating or attempting to violate any security features of the Services, using manual or automated software or other means to access, “scrape,” “crawl,” or “spider” any pages contained the Services (except that we grant the operators of public search engines revocable permission to use spiders to copy materials from the Services for the sole purpose of and solely to the extent necessary for creating publicly available searchable indices of the materials, but not caches or archives of such materials), introducing viruses, worms, or similar harmful code into the Services, or interfering or attempting to interfere with use of the Application or the Services by any other user, host or network, including by means of overloading, “flooding,” “spamming,” “mail bombing,” or “crashing” the Services. Any future release, update or other addition to the Services shall be subject to the Agreement. Bardavon, its suppliers and service providers reserve all rights not granted in the Agreement. Any unauthorized use of any of the Services terminates the licenses granted by Bardavon pursuant to the Agreement.

6.7 Anti-Corruption. Neither party has received or been offered any illegal or improper bribe, kickback, payment, gift, or thing of value from an employee or agent of the other party in connection with this Agreement. Reasonable gifts and entertainment provided in the ordinary course of business do not violate the above restriction. If You learn of any violation of the above restrictions, You will use reasonable efforts to promptly notify Bardavon’s Legal Department at [email protected] with email subject (in English) “Bardavon Prevention violation of anti-corruption obligations.”

7. INVESTIGATIONS.

Bardavon may, but is not obligated to, monitor or review the Services and Content at any time. Without limiting the foregoing, Bardavon shall have the right, in its sole discretion, to remove any of Your Content for any reason (or no reason), including if such Content violates the Agreement or any applicable law. Although Bardavon does not generally monitor user activity occurring in connection with the Services or Content, if Bardavon becomes aware of any possible violations by You of any provision of the Agreement or any applicable law, Bardavon reserves the right to investigate such violations, and Bardavon may, at its sole discretion, immediately terminate Your license to use the Services, or change, alter or remove Your Content, in whole or in part, without prior notice to You.

8. FEES AND PURCHASE TERMS; AUTOMATICALLY RENEWING SUBSCRIPTIONS.

8.1 Payment. You agree to pay all fees or charges to Your Account in accordance with the fees, charges and billing terms in effect at the time a fee or charge is due and payable. You must provide Bardavon or its Third-Party Payment Service Provider with a valid credit card (Visa, MasterCard, or any other issuer accepted by us), or purchase order information, as a condition to signing up for the Services. Your Payment Provider agreement governs Your use of the designated credit card, and You must refer to that agreement, not this Agreement, to determine Your rights and liabilities. By providing Bardavon or its Third-Party Payment Service Provider with Your credit card number, You agree that Bardavon is authorized to immediately invoice Your Account for all fees and charges due and payable to Bardavon hereunder and that no additional notice or consent is required. You agree to immediately notify Bardavon or its Third-Party Payment Service Provider of any change in Your billing address or the credit card used for payment hereunder. Bardavon reserves the right at any time to change its prices and billing methods, either immediately upon posting on the Services or by e-mail delivery to You.

8.2 Business Subscriptions. In some cases, Business Customers may be permitted to purchase a subscription to certain Services (a “Business Subscription”) for other users, such as such Business Customer’s employees. In order to access the Services that are included as part of a Business Subscription, users may be required to provide Us with a unique activation code. If You are accessing any features of Services through a Business Subscription, You will only be able to access and use such features until the earlier of: (a) termination of the Business Subscription, or (b) Your removal by the Business Customer. Except for instances where a Business Customer has paid for Your subscription, You will be responsible for payment of the applicable fee for any products and Services. “Business Customers” are those third-party entities, such as employers or insurers, who may purchase subscriptions on behalf of other users, such as their employees or customers.

8.3 Taxes. If any Services, or payments for any Services, under the Agreement are subject to any Sales Tax in any jurisdiction and You have not remitted the applicable Sales Tax to Bardavon, You will be responsible for the payment of such Sales Tax and any related penalties or interest to the relevant tax authority, and You will indemnify Bardavon for any liability or expense Bardavon may incur in connection with such Sales Taxes. Upon Bardavon’s request, You will provide it with official receipts issued by the appropriate taxing authority, or other such evidence that You have paid all applicable taxes. For purposes of this Section, “Sales Tax” shall mean any sales or use tax and any other tax measured by sales proceeds that is the functional equivalent of a sales tax where the applicable taxing jurisdiction does not otherwise impose a sales or use tax.

8.4 Withholding Taxes. You agree to make all payments of fees to Bardavon free and clear of, and without reduction for, any withholding taxes. Any such taxes imposed on payments of fees to Bardavon will be Your sole responsibility, and You will provide Bardavon with official receipts issued by the appropriate taxing authority, or such other evidence as we may reasonably request, to establish that such taxes have been paid.

8.5 Free Trials and Other Promotions for Business Customers Only. Any free trial or other promotion that provides Authorized User level access to the Services must be used within the specified time of the trial. At the end of the trial period, Your use of that Service will expire, and any further use of the Service is prohibited unless You pay the applicable subscription fee. If You are inadvertently charged for a subscription, please contact Bardavon to have the charges reversed.

9. INDEMNIFICATION.

You agree to indemnify and hold Bardavon, its parents, subsidiaries, affiliates, officers, employees, agents, partners, suppliers, and licensors (collectively, “Bardavon”) harmless from any losses, costs, liabilities and expenses (including reasonable attorneys’ fees) relating to or arising out of any and all of the following: (a) Your Content; (b) Your use of, or inability to use, any of the Services; (c) Your violation of the Agreement; (d) Your violation of any rights of another party, including any Authorized Users; (e) Your provision to Bardavon of information or other data; or (f) Your violation of any applicable laws, rules or regulations. Bardavon reserves the right, at its own cost, to assume the exclusive defense and control of any matter otherwise subject to indemnification by You, in which event You will fully cooperate with Bardavon in asserting any available defenses. This provision does not require You to indemnify Bardavon for any unconscionable commercial practice by Bardavon or for Bardavon’s fraud, deception, false promise, misrepresentation or concealment, or suppression or omission of any material fact in connection with any Services provided hereunder. You agree that the provisions in this Section will survive any termination of Your Account, the Agreement and/or Your access to the Services.

10. DISCLAIMERS OF WARRANTIES AND CONDITIONS.

10.1 As Is. YOU EXPRESSLY UNDERSTAND AND AGREE THAT TO THE EXTENT PERMITTED BY APPLICABLE LAW, YOUR USE OF THE SERVICES IS AT YOUR SOLE RISK, AND THE SERVICES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITH ALL FAULTS. BARDAVON EXPRESSLY DISCLAIMS ALL WARRANTIES, REPRESENTATIONS, AND CONDITIONS OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT ARISING FROM USE OF THE SERVICES.

(a) BARDAVON MAKES NO WARRANTY, REPRESENTATION OR CONDITION THAT: (1) THE SERVICES WILL MEET YOUR REQUIREMENTS; (2) YOUR USE OF THE SERVICES WILL BE UNINTERRUPTED, TIMELY, SECURE OR ERROR-FREE; (3) THAT DEFECTS WILL BE CORRECTED; (4) THAT THE APPLICATIONS OR THE SERVERS THAT MAKE THE APPLICATIONS AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS; OR (5) THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE SERVICES WILL BE ACCURATE OR RELIABLE.

(b) ANY CONTENT DOWNLOADED FROM OR OTHERWISE ACCESSED THROUGH THE SERVICES IS ACCESSED AT YOUR OWN RISK, AND YOU SHALL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR PROPERTY, INCLUDING, BUT NOT LIMITED TO, YOUR COMPUTER SYSTEM AND ANY DEVICE YOU USE TO ACCESS THE SERVICES, OR ANY OTHER LOSS THAT RESULTS FROM ACCESSING SUCH CONTENT.

(c) THE SERVICES MAY BE SUBJECT TO DELAYS, CANCELLATIONS AND OTHER DISRUPTIONS. BARDAVON MAKES NO WARRANTY, REPRESENTATION OR CONDITION WITH RESPECT TO SERVICES, INCLUDING BUT NOT LIMITED TO, THE QUALITY, EFFECTIVENESS, REPUTATION AND OTHER CHARACTERISTICS OF SERVICES.

(d) BARDAVON DOES NOT (1) GUARANTEE THE ACCURACY, COMPLETENESS, OR USEFULNESS OF ANY INFORMATION PROVIDED WITHIN, OR IN CONNECTION WITH, THE SERVICES, INCLUDING BUT NOT LIMITED TO INFORMATION CONTAINED IN THE APPLICATION, PERSONALIZED RECOMMENDATIONS, OR LINKED ARTICLES, PODCASTS, VIDEOS, OR PRODUCTS IN THE SERVICES; OR (2) ADOPT, ENDORSE, OR ACCEPT RESPONSIBILITY FOR THE ACCURACY OR RELIABILITY OF ANY SUCH INFORMATION. UNDER NO CIRCUMSTANCES WILL BARDAVON BE RESPONSIBLE FOR ANY LOSS OR DAMAGE RESULTING FROM YOUR RELIANCE ON SUCH INFORMATION.

(e) NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED FROM BARDAVON OR THROUGH THE SERVICES WILL CREATE ANY WARRANTY NOT EXPRESSLY MADE HEREIN.

(f) FROM TIME TO TIME, BARDAVON MAY OFFER NEW “BETA” FEATURES OR TOOLS WITH WHICH ITS USERS MAY EXPERIMENT. SUCH FEATURES OR TOOLS ARE OFFERED SOLELY FOR EXPERIMENTAL PURPOSES AND WITHOUT ANY WARRANTY OF ANY KIND, AND MAY BE MODIFIED OR DISCONTINUED AT BARDAVON’S SOLE DISCRETION. THE PROVISIONS OF THIS SECTION APPLY WITH FULL FORCE TO SUCH FEATURES OR TOOLS.

(g) YOU ACKNOWLEDGE AND AGREE THAT YOUR RELATIONSHIP WITH ANY HEALTHCARE PROVIDER, INCLUDING ANY HEALTHCARE PROVIDER WHOSE CONTACT INFORMATION IS MADE AVAILABLE THROUGH THE SERVICES, IS SOLELY WITH SUCH HEALTHCARE PROVIDER. THE BARDAVON PARTIES DO NOT THEMSELVES PROVIDE SERVICES REQUIRING PROFESSIONAL LICENSURE (E.G., PHYSICIAN OR OTHER MEDICAL PROFESSIONAL SERVICES) AND THE SERVICES PROVIDED BY THE APPLICATION DO NOT CONTAIN OR CONSTITUTE, AND SHOULD NOT BE INTERPRETED AS, MEDICAL ADVICE OR OPINION. IF YOU THINK YOU HAVE A MEDICAL EMERGENCY, CALL 911 OR SEEK IMMEDIATE OR OTHER APPROPRIATE EMERGENT ATTENTION.

(h) YOUR USE OF THE SERVICES DOES NOT CREATE A PATIENT OR LICENSED MEDICAL PROFESSIONAL RELATIONSHIP, PHYSICIAN-PATIENT PRIVILEGE, OR DOCTOR-PATIENT CONFIDENTIALITY BETWEEN YOU AND ANY OF THE BARDAVON PARTIES OR ANY OTHER USERS OF THE SERVICES.

10.2 No Liability for Conduct of Third-Parties or Bardavon Agents. You acknowledge and agree that Bardavon is not liable, and You agree not to seek to hold Bardavon liable for the conduct of third-parties, and that the risk of injury from such third-parties rests entirely with You. Bardavon makes no warranty that the goods or services provided by third-parties will meet Your requirements or be available on an uninterrupted, secure, or error-free basis. Bardavon makes no warranty regarding the quality of any such goods or services. Additionally, You agree that Bardavon is not liable, and You agree not to seek to hold Bardavon liable, for any messages or communications exchanged through the Application or the Services between You and any Business Customer representatives, health care representatives, or Bardavon representatives.

10.3 Third-Party Materials. As a part of the Services, You may have access to materials that are hosted by another party. You agree that it is impossible for Bardavon to monitor such materials and that You access these materials at Your own risk.

11. LIMITATION OF LIABILITY.

11.1 Disclaimer of Certain Damages. YOU UNDERSTAND AND AGREE THAT, TO THE FULLEST EXTENT PROVIDED BY LAW, IN NO EVENT SHALL BARDAVON BE LIABLE FOR ANY LOSS OF PROFITS, REVENUE OR DATA, INDIRECT, INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES, OR DAMAGES OR COSTS DUE TO LOSS OF PRODUCTION OR USE, BUSINESS INTERRUPTION, OR PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, IN EACH CASE WHETHER OR NOT BARDAVON HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, ARISING OUT OF OR IN CONNECTION WITH THE AGREEMENT, ON ANY THEORY OF LIABILITY, RESULTING FROM: (a) THE USE OR INABILITY TO USE THE SERVICES; (b) THE COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES RESULTING FROM ANY GOODS, DATA, INFORMATION OR SERVICES PURCHASED OR OBTAINED; OR MESSAGES RECEIVED FOR TRANSACTIONS ENTERED INTO THROUGH THE SERVICES; (c) UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR TRANSMISSIONS OR DATA; (d) STATEMENTS OR CONDUCT OF ANY THIRD PARTY ON THE SERVICES; (e) THE USE OF ANY CONTENT OR OTHER MATERIAL ON THE SERVICES OR APPLICATIONS LINKED TO OUR APPLICATIONS; OR (f) ANY OTHER MATTER RELATED TO THE SERVICES, WHETHER BASED ON WARRANTY, COPYRIGHT, CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR ANY OTHER LEGAL THEORY. THE FOREGOING LIMITATION OF LIABILITY SHALL NOT APPLY TO LIABILITY OF BARDAVON FOR (i) DEATH OR PERSONAL INJURY CAUSED BY BARDAVON’S NEGLIGENCE; OR FOR (ii) ANY INJURY CAUSED BY BARDAVON’S FRAUD OR FRAUDULENT MISREPRESENTATION.

11.2 Cap on Liability. TO THE FULLEST EXTENT PROVIDED BY LAW, BARDAVON WILL NOT BE LIABLE TO YOU FOR MORE THAN THE GREATER OF (a) THE TOTAL AMOUNT PAID TO BARDAVON BY YOU DURING THE ONE-MONTH PERIOD PRIOR TO THE ACT, OMISSION OR OCCURRENCE GIVING RISE TO SUCH LIABILITY; OR (b) THE REMEDY OR PENALTY IMPOSED BY THE STATUTE UNDER WHICH SUCH CLAIM ARISES. THE FOREGOING CAP ON LIABILITY SHALL NOT APPLY TO LIABILITY OF BARDAVON FOR (i) DEATH OR PERSONAL INJURY CAUSED BY BARDAVON’S NEGLIGENCE; OR FOR (ii) ANY INJURY CAUSED BY BARDAVON’S FRAUD OR FRAUDULENT MISREPRESENTATION.

11.3 User Content. EXCEPT FOR BARDAVON’S OBLIGATIONS TO PROTECT YOUR PERSONAL DATA AS SET FORTH IN BARDAVON’S PRIVACY POLICY, BARDAVON ASSUMES NO RESPONSIBILITY FOR THE TIMELINESS, DELETION, MIS-DELIVERY OR FAILURE TO STORE ANY CONTENT (INCLUDING, BUT NOT LIMITED TO, YOUR CONTENT), OR PERSONALIZATION SETTINGS.

11.4 Exclusion of Damages. CERTAIN JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES. IF THESE LAWS APPLY TO YOU, SOME OR ALL OF THE ABOVE EXCLUSIONS OR LIMITATIONS MAY NOT APPLY TO YOU, AND YOU MIGHT HAVE ADDITIONAL RIGHTS. IF ANY PORTION OF THIS LIMITATION OF LIABILITY IS FOUND TO BE INVALID, LIABILITY IS LIMITED TO THE FULLEST EXTENT PERMITTED BY LAW.

11.5 Basis of the Bargain. THE LIMITATIONS OF DAMAGES SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN BARDAVON AND YOU.

12. MONITORING AND ENFORCEMENT.

Bardavon reserves the right to:(a) remove or refuse to post any of Your Content for any or no reason in our sole discretion; (b) take any action with respect to any of Your Content that we deem necessary or appropriate in our sole discretion, including if we believe that such Content violates this Agreement, infringes any intellectual property right or other right of any person or entity, threatens the personal safety of users of the Services or the public, or could create liability for Bardavon; (c) disclose Your identity or other information about You to any third party who claims that material posted by You violates their rights, including their intellectual property rights or their right to privacy; (d) take appropriate legal action, including without limitation, referral to law enforcement, for any illegal or unauthorized use of the Services; and/or (e) terminate or suspend Your access to all or part of the Services for any or no reason, including without limitation, any violation of this Agreement.

If Bardavon becomes aware of any possible violations by You of the Agreement, Bardavon reserves the right to investigate such violations. If, as a result of the investigation, Bardavon believes that criminal activity has occurred, Bardavon reserves the right to refer the matter to, and to cooperate with, any and all applicable legal authorities. Bardavon is entitled, except to the extent prohibited by applicable law, to disclose any information or materials on or in the Services, including Your Content, in Bardavon’s possession in connection with Your use of the Services, to (i) comply with applicable laws, legal process or governmental request; (ii) enforce the Agreement, (iii) respond to any claims that Your Content violates the rights of third-parties, (iv) respond to Your requests for customer service, or (v) protect the rights, property or personal safety of Bardavon, its Authorized Users or the public, and all enforcement or other government officials, as Bardavon in its sole discretion believes to be necessary or appropriate.

13. TERM AND TERMINATION.

13.1 Term. The Agreement commences on the date when You accept them (as described in the preamble above) and remain in full force and effect while You use the Services, unless terminated earlier in accordance with the Agreement.

13.2 Prior Use. Notwithstanding the foregoing, You hereby acknowledge and agree that the Agreement commenced on the earlier to occur of (a) the date You first used the Services, or (b) the date You accepted the Agreement and will remain in full force and effect while You use any Service, unless earlier terminated in accordance with the Agreement.

13.3 Termination of Services by Bardavon. If timely payment cannot be charged to Your Payment Provider for any reason, if You have materially breached any provision of the Agreement, or if Bardavon is required to do so by law (e.g., where the provision of the Services is, or becomes, unlawful), Bardavon has the right to, immediately and without notice, suspend or terminate any Services provided to You. You agree that all terminations for cause shall be made at Bardavon’s sole discretion and that Bardavon shall not be liable to You or any third party for any termination of Your Account.

13.4 Termination of Services by You. If You want to terminate the Services provided by Bardavon, You may do so by choosing “delete account” from the settings page of the Application. You may also terminate the Services by notifying your Business Customer, in which case Bardavon is not liable in the event Business Customers fails to notify Bardavon of Your request.

13.5 Termination of Business Subscriptions. If a Business Customer is paying for Your subscription, then the Business Customer may terminate Your access to Your Account or the Services. You agree that we will not be liable to You or any third-party for any termination or cancellation of Your access to, or use of, our Services that was paid for by a Business Customer.

13.6 Effect of Termination. Termination of any Service includes removal of access to such Service and barring of further use of the Service. Termination of all Services also includes termination of all rights and licenses granted to You under this Agreement. Upon termination of any Service, Your right to use such Service will automatically terminate immediately. Bardavon will not have any liability whatsoever to You for any suspension or termination, including for deletion of Your Content. All provisions of the Agreement which by their nature should survive, shall survive termination of Services, including without limitation, ownership provisions, warranty disclaimers, and limitation of liability.

13.7 No Subsequent Registration. If Your registration(s) with, or ability to access, the Services or any other Bardavon Service, is discontinued by Bardavon due to Your violation of any portion of the Agreement or for conduct otherwise inappropriate, then You agree that You shall not attempt to re-register with or access the Services or any Bardavon Service through use of a different name or otherwise, and You acknowledge that You will not be entitled to receive a refund for fees related to those Services to which Your access has been terminated. In the event that You violate the immediately preceding sentence, Bardavon reserves the right, in its sole discretion, to immediately take any or all of the actions set forth herein without any notice or warning to You.

14. INTERNATIONAL USERS.

The Services can be accessed from countries around the world and may contain references to Services and Content that are not available in Your country. These references do not imply that Bardavon intends to announce such Services or Content in Your country. The Services are controlled and offered by Bardavon from either its facilities in the United States or its facilities in Australia. Bardavon makes no representations that the Services are appropriate or available for use in other locations. Those who access or use the Services from other countries do so at their own volition and are responsible for compliance with local law.

15. DISPUTE RESOLUTION.

15.1 Waiver of Jury Trial. YOU AND BARDAVON HEREBY WAIVE ANY CONSTITUTIONAL AND STATUTORY RIGHTS TO A TRIAL IN FRONT OF A JURY IN CONNECTION WITH ANY ACTION OR LITIGATION IN ANY WAY ARISING OUT OF OR RELATED TO THIS AGREEMENT.

15.2 Waiver of Class or Other Non-Individualized Relief. ALL DISPUTES, CLAIMS, AND REQUESTS FOR RELIEF WITHIN THE SCOPE OF THIS AGREEMENT MUST BE LITIGATED ON AN INDIVIDUAL BASIS AND NOT ON A CLASS OR COLLECTIVE BASIS, ONLY INDIVIDUAL RELIEF IS AVAILABLE, AND CLAIMS OF MORE THAN ONE CUSTOMER OR USER CANNOT BE LITIGATED OR CONSOLIDATED WITH THOSE OF ANY OTHER CUSTOMER OR USER. If a decision is issued stating that applicable law precludes enforcement of any of this Section’s limitations as to a given dispute, claim, or request for relief, then such specific part or parts shall be of no force and effect and shall be severed and the remainder of the Agreement shall continue in full force and effect.

16. THIRD-PARTY SERVICES.

16.1 Third Party Payment Service Provider. Bardavon uses one or more third-party service providers for payment services (e.g., card acceptance, merchant settlement, and related services) (a “Third Party Payment Service Provider”). You hereby consent and authorize the Bardavon to share any information and payment instructions You provide with our Third-Party Payment Service Provider(s) to the minimum extent required to complete Your transactions.

16.2 Third Party Service Providers. Certain features, aspects, software products, and services offered through the Services are provided, in whole or in part, by third-parties (“Third-Party Services” as provided by “Third-Party Service Providers”). In order to use Third-Party Services, You may be required to enter into additional terms and conditions with Third-Party Service Providers or us. This Agreement applies only to the Services, and not to the services of any other person or entity, and Your right to use such Third-Party Services as part of the Services is subject to and governed by the terms and conditions applicable to such Third-Party Services, as supplied by the Third-Party Service Provider. In the event of a conflict between the terms of this Agreement and the terms of such third-party terms, the terms of the third party shall control with regard to Your use of the relevant Third-Party Service. You further acknowledge and agree that a Third-Party Service Provider may collect and use certain information about You, which may include Your personal information and/or protected health information. Any exchange of data, including protected health information or other interactions between You and a Third-Party Services Provider, is solely between You and that provider. Prior to providing information to any Third-Party Service Provider, You should review their privacy policy. If You do not understand or do not agree to the terms of a Third-Party Service Provider’s privacy policy, You should not use the related Third-Party Services.

16.3 App Stores. You acknowledge and agree that the availability of the Application and the Services is dependent on the third party from whom You received the Application license, e.g., the Apple App Store or Google Play (each, an “App Store”). You acknowledge that the Agreement is between You and Bardavon and not with the App Store. Bardavon, not the App Store, is solely responsible for the Services, including the Application, the content thereof, maintenance, support services, and warranty therefor, and addressing any claims relating thereto (e.g., product liability, legal compliance or intellectual property infringement). In order to use the Application, You must have access to a wireless network, and You agree to pay all fees associated with such access. You also agree to pay all fees (if any) charged by the App Store in connection with the Services, including the Application. You agree to comply with, and Your license to use the Application is conditioned upon Your compliance with all terms of agreement imposed by the applicable App Store when using any of the Services, including the Application. You acknowledge that the App Store (and its subsidiaries) are third-party beneficiaries of the Agreement and will have the right to enforce it.

16.4 Accessing and Downloading the Application from iTunes. The following applies to any App Store Sourced Application accessed through or downloaded from the Apple App Store: You acknowledge and agree that these Terms are solely between You and Bardavon, not Apple, and that Apple has no responsibility for the App Store Sourced Application or content thereof. Your use of the App Store Sourced Application must comply with the App Store Terms of Service. You acknowledge that Apple has no obligation whatsoever to furnish any maintenance and support services with respect to the App Store Sourced Application. In the event of any failure of the App Store Sourced Application to conform to any applicable warranty, You may notify Apple, and Apple will refund the purchase price for the App Store Sourced Application to You; to the maximum extent permitted by applicable law, Apple will have no other warranty obligation whatsoever with respect to the App Store Sourced Application, and any other claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to any warranty will be solely governed by the Agreement and any law applicable to Bardavon as provider of the Application. You acknowledge that Apple is not responsible for addressing any claims of You or any third party relating to the App Store Sourced Application or Your possession and/or use of the App Store Sourced Application, including, but not limited to: (i) product liability claims; (ii) any claim that the App Store Sourced Application fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection or similar legislation; and all such claims are governed solely by the Agreement and any law applicable to Bardavon as provider of the Application. You acknowledge that, in the event of any third-party claim that the App Store Sourced Application or Your possession and use of that App Store Sourced Application infringes that third party’s intellectual property rights, Bardavon, not Apple, will be solely responsible for the investigation, defense, settlement and discharge of any such intellectual property infringement claim to the extent required by the Agreement. You and Bardavon acknowledge and agree that Apple, and Apple’s subsidiaries, are third-party beneficiaries of the Agreement as they relate to Your license of the App Store Sourced Application, and that, upon Your acceptance of the terms and conditions of the Agreement, Apple will have the right (and will be deemed to have accepted the right) to enforce the Agreement as it relates to Your license of the App Store Sourced Application against You as a third party beneficiary thereof.

17. GENERAL PROVISIONS.

17.1 Electronic Communications. The communications between You and Bardavon may take place via electronic means, whether You visit the Services or send Bardavon e-mails, or whether Bardavon posts notices on the Services or communicates with You via e-mail. For contractual purposes, You (a) consent to receive communications from Bardavon and Bardavon Prevention in an electronic form; and (b) agree that all terms and conditions, agreements, notices, disclosures, and other communications that Bardavon provides to You electronically satisfy any legal requirement that such communications would satisfy if it were to be in writing. The foregoing does not affect Your statutory rights, including but not limited to the Electronic Signatures in Global and National Commerce Act at 15 U.S.C. §7001 et seq. (“E-Sign”).

17.2 Modifications to the Agreement. Bardavon may modify the terms of this Agreement at any time in its sole discretion. If we make any changes to this Agreement, we will update the “Last Revised” date at the top of the Agreement and post notice on the Services regarding the modified Agreement. Your use of the Application and the Services following any modification means that You accept and agree to the be bound by the revised Agreement. If You do not agree with the revised Agreement, Your sole and exclusive remedy is to discontinue Your use of the Application and the Services, and You will be deemed to have terminated this Agreement.

17.3 Assignment. The Agreement, and Your rights and obligations hereunder, may not be assigned, subcontracted, delegated or otherwise transferred by You without Bardavon’s prior written consent, and any attempted assignment, subcontract, delegation, or transfer in violation of the foregoing will be null and void. Bardavon may assign our rights and obligations under this Agreement. This Agreement will inure to the benefit of our successors, assigns, and licensees.

17.4 Force Majeure. In no event shall Bardavon be liable to You or be deemed to have breached this Agreement, for any failure or delay in performing its obligations under this Agreement, if and to the extent such failure or delay is caused by any circumstances beyond Bardavon’s reasonable control, including but not limited to acts of God, flood, pandemic, epidemic, fire, earthquake, explosion, war, terrorism, invasion, riot or other civil unrest, strikes, labor stoppages or slowdowns or other industrial disturbances, or passage of law or any action taken by a governmental or public authority, including imposing an embargo.

17.5 Questions, Complaints, Claims. If You have any questions, complaints or claims with respect to the Services, please contact Us at: [email protected] . We will do our best to address Your concerns. If You feel that Your concerns have been addressed incompletely, we invite You to let Us know for further investigation.

17.6 Governing Law; Venue. This Agreement has been executed in the State of Delaware and shall be governed by Delaware law. The venue for any action arising therefrom shall be in any state or federal court in Delaware. You irrevocably submit to the jurisdiction of such courts and waive any objection to the jurisdiction or venue of such courts.

17.7 Notice. Where Bardavon requires that You provide an e-mail address, You are responsible for providing Bardavon with Your most current e-mail address. In the event that the last e-mail address You provided to Bardavon is not valid, or for any reason is not capable of delivering to You any notices required/ permitted by the Agreement, Bardavon’s dispatch of the e-mail containing such notice will nonetheless constitute effective notice. You may give notice to Bardavon at the following address: 6901 Shawnee Mission Pkwy, Bldg 2, Suite 300, Overland Park, KS 66202, [email protected] . Such notice shall be deemed given when received by Bardavon by mail or email.

17.8 Waiver. No failure to exercise, and no delay in exercising, on the part of either party, any right or any power hereunder shall operate as a waiver thereof, nor shall any single or partial exercise of any right or power hereunder preclude further exercise of that or any other right hereunder.

17.9 Severability. Any provision of this Agreement, which is prohibited and unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of such prohibition or unenforceability without invalidating the remaining provisions hereof or affecting the validity or enforceability of such provisions in any other jurisdiction.

17.10 Export Control. You agree to comply with all United States and foreign laws related to use of the Application and the Service. Standard carrier data charges may apply to Your use of the Application and the Service. If any Bardavon Application or software is being acquired on behalf of the United States Government, then the following provision applies: Use, duplication, or disclosure of the Bardavon Software by the U.S. Government is subject to restrictions set forth in this Agreement and as provided in DFARS 227.7202-1(a) and 227.7202-3(a) (1995), DFARS 252.227-7013(c)(1)(ii) (OCT 1988), FAR 12.212(a) (1995), FAR 52.227-19, or FAR 52.227-14 (ALT III), as applicable. The Bardavon Application is subject to United States export laws and regulations. The Bardavon Application may not be exported or re-exported to certain countries, or those persons or entities prohibited from receiving exports from the United States. In addition, the Bardavon Application may be subject to the import and export laws of other countries. You agree to comply with all United States and foreign laws related to use of the Bardavon Application and the Service.

17.11 Entire Agreement. The Agreement is the final, complete and exclusive agreement of the parties with respect to the subject matter hereof and supersedes and merges all prior discussions between the parties with respect to such subject matter.