Terms and Conditions

USER TERMS AND CONDITIONS AND LICENSE AGREEMENT

UNITED STATES

NOTICE:  THE FOLLOWING TERMS AND CONDITIONS APPLY TO YOUR USE OF THE SUBJECTIVE GLOBAL ASSESSMENT DVD, THE SGA SCORESHEET AND RELATED DOCUMENTATION AS FURTHER DEFINED BELOW.  THE TERMS “YOU” AND “YOUR” IN UPPER OR LOWER CASE SHALL MEAN THE ENTITY (I.E., COMPANY, CORPORATION, PARTNERSHIP, SOLE PROPRIETOR, ETC.) OR GOVERNMENT AGENCY ENTERING INTO THIS AGREEMENT.  YOU ARE  INDICATING YOUR AGREEMENT TO THESE TERMS BY PERMITTING AN AUTHORIZED PERSONNEL TO CLICK “ACCEPT” ON THE PRIOR WEBPAGE TO THESE TERMS AND CONDITIONS (THE “SGA WEBSITE”), EFFECTIVE AS OF THE DATE OF SUCH ACCEPTANCE.

 

THIS USER TERMS AND CONDITIONS AND LICENSE AGREEMENT (“Agreement”), is made by and between Jeejeebhoy Holdings, L.L.C. (“Jeejeebhoy”) and You.  In consideration of the promises and agreements set forth below, the sufficiency of which is hereby acknowledged, Jeejeebhoy and You agree as follows:

 

1.            Definitions.  In addition to the terms defined above, the following terms shall have the following meanings whenever used in this Agreement with initial letters capitalized:

 

(a)            “Subjective Global Assessment DVD” or “SGA DVD” shall mean the Jeejeebhoy Subjective Global Assessment nutritional assessment DVD as sold to You together with any Documentation that may be provided therewith or made generally available to its licensees, without any modifications, updates, upgrades (collectively, “Upgrades”),Upgrades specifically excluded and not an obligation of Jeejeebhoy to provide to You.

 

(b)            “Copy Policy” shall mean Jeejeebhoy’s Policy for Copying and Distribution of the SGA Score Sheet as defined in Section 2(c) below, and as may be amended by Jeejeebhoy, in its sole discretion, from time to time.

 

(c)            “Documentation” shall mean all written and electronic information generally made available by Jeejeebhoy to its licensees relating to the access, use, operation or functionality of any Product, including technical or user manuals, installation guides, and any “read me” or “help” files.

 

(d)            “Effective Date” shall mean the date the physical media containing the Products is shipped to You or the date Jeejeebhoy e-mails You access information for the Web Format as applicable.

 

(e)            “SGA Score Sheet” shall mean the SGA Score Sheet developed and owned by Jeejeebhoy to be used together with the SGA DVD.

 

(f)            “Internal Use” shall mean use of the Products and Documentation by Your employees within the United States (the “Authorized User(s)”) as part of the performance of health care delivery services to conduct nutritional assessments for Your patients, members and/or enrollees in the normal course of Your business.  “Internal Use” also includes use of the Products by agents or contractors (collectively, “Administrative Agents”) of You solely for the purpose of performing traditional “back-office” functions, such as information systems management, accounting or administration, for the sole benefit of You provided that such agents or contractors are under an obligation of confidentiality with You.

 

(g)            “You” shall mean the You first identified above and shall not include any subsidiary, affiliate or other entity. 

 

(h)            “Product(s)” shall mean the SGA DVD and the SGA Score Sheet, excluding any modifications, updates, upgrades (collectively, “Upgrades”) to such products released by Jeejeebhoy during the Term.  You shall have no rights under this Agreement with respect to any Upgrades and any other products not specifically identified herein or in an amendment to this Agreement.

 

 

2.            License.

 

(a)            License Grant.  Jeejeebhoy hereby grants to You, during the Term and subject to the terms and conditions of this Agreement, a limited, non-exclusive, perpetual, non-transferable and non-assignable (except as expressly set forth herein), enterprise-wide license (the “License”) to permit your Authorized Users to use the Products for Internal Use.  You understand and acknowledge that Jeejeebhoy and its affiliates, agents and vendors have no duty to provide any support or maintenance of any kind or Upgrades related to the Products and Documentation.

 

(b)            Scope of Use.  You, through your Authorized Users, shall use the Products only for your own Internal Use.  You shall not use the Products for any purpose other than as expressly set forth herein.  You shall ensure that any copying or distribution complies in all respects with the Copy Policy.  Your failure to comply in all respects with the Copy Policy shall be deemed a material breach of this Agreement.  You shall ensure that all copies of the Products contain the same notices and legends which appear in and on the Products as supplied by Jeejeebhoy.

 

(c)            Additional Restrictions On Use.  Except that You are permitted to make unlimited copies of the SGA Score Sheet for use within the scope of this Agreement (unless and until notified of a change in such policy by Jeejeebhoy) (the “Copy Policy”), but without the right to modify it, You shall not use, copy, alter, merge, reverse engineer, reverse assemble, decompile, adapt, modify, enhance, revise, maintain, rent, lease or sublicense any Product licensed hereunder, or any copy thereof, in whole or in part; nor integrate or merge any part of the Product(s) with any other information, system, software program or product,  except as expressly provided in this Agreement.  Without limiting the generality of the foregoing, You shall not: (i) except as expressly permitted by the terms of this Agreement, modify, or create derivative works based upon any Product licensed hereunder, in whole or in part; or (ii) except as expressly permitted by the terms of this Agreement, copy all or any part of the Products.  Except as expressly provided herein, without limiting the generality of the foregoing, You also shall not: (i) use the Products on behalf of any third party; (ii) use the Products in any manner as part of the operation of a service bureau; or (iii) allow access to the Products by any third party.

 

(d)            Derivative Works.

 

(1)            Permitted Modifications.  Subject to the terms of this Agreement, Jeejeebhoy grants to You the limited right to modify and or create derivative works from the Products for the sole purpose of conforming the content of the Score Sheet to its local health care provider practice, custom or policy (the “Permitted Modifications.”)  Any Permitted Modifications made to the Score Sheet hereunder shall be set off from the unmodified portions of the Score Sheet, whether in electronic or printed form, in a manner that conspicuously identifies such changes through the use of boldface type, italics, underlined text or some similar method of identification.  All such Permitted Modifications, whether in electronic or printed form, must be labeled with the following statement and any statement to the contrary or association of the modified material with Jeejeebhoy is strictly prohibited:

 

The original SGA Score Sheet® content created by Jeejeebhoy Holdings, L.L.C. has been revised. The portions of the content which have been revised are identified through the use of [insert: italic, boldface, underlined, etc. as appropriate] text, and Jeejeebhoy Holdings, L.L.C. has neither reviewed nor approved the modified material.  All other unmodified content is copyright © Jeejeebhoy Holdings, L.L.C..

 

The above statement must be displayed at least once each time the Score Sheet is accessed electronically and must be included with each printed copy of any portion of the Score Sheet.  You shall not associate any Jeejeebhoy trademark with the modified material without the express written consent of Jeejeebhoy.  Notwithstanding any other provision of this Agreement, You also shall not create derivative works from or modify in any manner the CPT File as defined in Section 10 below; nor shall you be permitted to create any derivative work of the Products other than the Permitted Modifications. 

 

(2)            Ownership and Use of Derivative Works.  Jeejeebhoy shall own all right title and interest in and to any Permitted Modifications created hereunder and You hereby irrevocably assign any and all rights of any kind that You may now or in the future have in or to such Permitted Modifications, including without limitation the copyrights and moral rights therein.  Upon creation, the Permitted Modifications shall be considered a part of the Products as that term is used in this Agreement and all obligations and restrictions with respect to the Products set forth in this Agreement shall apply equally to the Permitted Modifications.

 

(e)            Retention and Reservation Of Rights.  The Products and Documentation and their content are proprietary to or licensed by Jeejeebhoy.  Jeejeebhoy and its licensors reserve all rights in the Products and Documentation and their content not expressly granted under license to You under this Agreement, including any and all modifications and derivative works thereto.  You shall not challenge Jeejeebhoy’s ownership or rights in the Products and Documentation and any and all modifications and derivative works thereto, and shall not assist or cooperate with any third party in bringing such a challenge.  Jeejeebhoy reserves the right to modify or publish a revised version of any or all of the Products and/or Documentation at any time without prior notice or obligation to You.  Without limiting any other provision and obligation of You under this Agreement, You shall not remove, alter or cover any copyright notices or other proprietary rights notices placed or embedded by Jeejeebhoy on or in the Products and Documentation.

 

 

3.            Term and Termination.

 

(a)            Term of Agreement.  This Agreement and the License shall be effective as of the Effective Date and continue for a perpetual period (the “Term”) unless terminated earlier pursuant to Section 3(b), 9(a) or 23 below (the date of termination of this Agreement shall be referred to herein as the “Termination Date.”)

 

(b)            Termination.  Except as provided in Section 9(a) and 23 below, this Agreement may not be terminated except as set forth in this subsection.  If either party breaches this Agreement, and does not cure such breach to the non-breaching party’s reasonable satisfaction within 30 days of receipt of notice of breach, the non-breaching party may terminate this Agreement without further notice.  Notwithstanding the foregoing, Jeejeebhoy shall have the right to terminate this Agreement immediately upon notice to You in the event that Your breach materially impairs or infringes any of Jeejeebhoy’s intellectual property or other proprietary rights in the Products or their content.

 

(c)            Actions on Termination.  Upon termination of this Agreement for any reason, any and all of Your rights in and to the Products shall immediately cease.  Within ten (10) business days of the Termination Date, You shall deliver to Jeejeebhoy all tangible copies of the Products, or any portion thereof, in the possession or under the control of You, Your Authorized Users, or any other of Your employees or agents and shall delete all electronic copies of the Products from Your computers and data storage devices.  You shall provide Jeejeebhoy written certification of such return or destruction within fifteen (15) days of the effective date of termination.  You shall provide Jeejeebhoy written certification of its performance under this section. Jeejeebhoy shall maintain an archive copy of each prior version of the Products used by You and shall make such archived copies available to You at Your request solely for purposes of retrospective review, audit, litigation, or regulatory action or as otherwise agreed to by the parties.  Upon expiration or termination of this Agreement, You shall not be entitled to the return of any fees paid to Jeejeebhoy hereunder; provided, however, that in the case where such termination was the result of Jeejeebhoy’s material breach of this Agreement which remained uncured 30 days after notification by You, Jeejeebhoy shall reimburse You for any license fees paid for any period subsequent to termination.  The following sections shall survive termination of this Agreement for any reason: 1, 2(c), 2(d), 2(e), 3(c), 5, 6, 7, 8, 9, 11, 12, 18, 19, 22, and 23.

 

 

4.            License Fees and Payment.

 

(a)            License Fee and Payment.  Upon execution of this Agreement, and except as otherwise described in Section 3, You shall be obligated to pay Jeejeebhoy the license fee as specified on the SGA Website at the time of entering into this Agreement.  Except as otherwise expressly set forth in this Agreement: (i) Jeejeebhoy will invoice You for amounts to be paid hereunder, and You will pay the amounts described in each invoice within thirty (30) days of receipt of an invoice; (ii) You shall not be entitled to the return or reimbursement of any fees paid to Jeejeebhoy pursuant to this Agreement; (iii) all fees shall be paid to Jeejeebhoy in United States dollars; and (iv) all fees and costs associated with delivery of payment, including, without limitation, wire transfer fees, are solely the responsibility of You.

 

(b)            Effect of Failure To Pay.  Any sums not paid when due hereunder shall accrue interest at a rate of 1.5% per month or the maximum rate allowed by law, whichever is lesser, from the date first due.  You also shall be responsible for any and all costs of collection, including actual attorneys’ fees, for any sums not paid when first due.    If, at any time, You are delinquent in the payment of any fees hereunder (or is otherwise in breach of the Agreement), then Jeejeebhoy may, in its sole discretion and without prejudice to its other rights, suspend access to the Score Sheet.  The non-payment when due of any license fee set forth on the SGA Website shall constitute a material breach of this Agreement.

 

(c)            Taxes.  In addition to the license fees required to be paid hereunder, You shall pay (or, at Jeejeebhoy’s election, reimburse Jeejeebhoy) for all governmental taxes, assessments, fees, and duties in connection with the transactions contemplated by this Agreement (excluding taxes based on Jeejeebhoy’s net income or its authority to do business within a given jurisdiction).

 

 

5.            Protection Of The Products: Nondisclosure.  You acknowledge and agree that the Products and Documentation, their content, and other related confidential materials and information provided to You by Jeejeebhoy are proprietary to Jeejeebhoy or affiliates, agents or its licensors.  You agree to maintain the Products and Documentation, their content, and other related confidential materials and information provided to You by Jeejeebhoy in strictest confidence, as provided in this Section 5, for the benefit of Jeejeebhoy and its licensors except as permitted under the Internal Use.  You agree that it shall not disclose, proliferate or copy or use the Products or their content except as expressly allowed in this Agreement.  You shall ensure that any employee or Administrative Agent with access to the Products is (a) fully apprised of the terms under which such employee or Administrative Agent may use the Products; and (b) contractually bound to comply with such terms.  You agree that You will not use, or knowingly allow others to use, the Products and Documentation for any purpose other than those contemplated by this Agreement.

 

 

6.            Warranties and Remedies.

 

(a)            Limited Warranty.  Jeejeebhoy warrants that the magnetic or other medium in or on which the Products are delivered, if applicable, shall be free from defects in material and workmanship under normal use for a period of 90 days from the effective date of this Agreement.  In the event of any defect in the medium containing one of the Products, Jeejeebhoy will replace the defective item upon request.  Jeejeebhoy disclaims responsibility for any consequences attributable to or related to any uses, non-use or interpretations or information contained in the Products.  Jeejeebhoy shall not be deemed to be engaged in the practice of medicine or the dispensing of medical services or medical advice.

 

(b)            Disclaimer of Additional Warranties.  JEEJEEBHOY, ON ITS BEHALF AND FOR ITS AFFILIATES, AGENTS AND VENDORS, DISCLAIMS ALL OTHER EXPRESS AND ALL IMPLIED WARRANTIES FOR THE PRODUCTS AND THE DOCUMENTATION, INCLUDING WITHOUT LIMITATION THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE OF LICENSEE.  THE PRODUCTS AND THE DOCUMENTATION DO NOT CONSTITUTE PROCEDURES FOR THE PRACTICE OF MEDICINE AND, WITHOUT LIMITATION, JEEJEEBHOY, ON ITS BEHALF AND FOR ITS AFFILIATES, AGENTS AND VENDORS, DISCLAIMS ANY WARRANTY THAT FOLLOWING THE PRODUCTS CONSTITUTES REASONABLE OR ORDINARY CARE IN THE PROVISION OF HEALTH CARE SERVICES TO ANY INDIVIDUAL PATIENT.  EXCEPT AS EXPRESSLY SET FORTH HEREIN, THE PRODUCTS AND DOCUMENTATION ARE PROVIDED “AS IS” WITHOUT WARRANTY OF ANY KIND.  JEEJEEBHOY AND ITS AFFILIATES, AGENTS AND VENDORS DO NOT MAKE ANY REPRESENTATIONS or warranties REGARDING INFRINGEMENT AND MISAPPROPRIATION, AND/OR THE USE, installation, OR THE RESULTS OF THE USE, OF THE PRODUCTS.  LICENSEE IS SOLELY RESPONSIBLE FOR ITS installation and USE OF THE PRODUCTS AND DOES SO AT LICENSEE’S SOLE RISK.  The EXPRESS warranties HEREIN are not applicable in cases of accident, misuse, misappropriation, damage in transit, abuse, improper storage or installation, power surge, or unauthorized ATTEMPTED repair or modification, OR EVENTS OF FORCE MAJEURE, OR LICENSEE’S BREACH HEREUNDER.

 

(c)            Exclusive Remedies.  The remedies described in this Section 6 are the sole obligations of Jeejeebhoy and exclusive remedies of You for any breach of the limited warranties set forth herein.

 

 

7.            Limitation of Liability.

 

(a)   UNDER NO CIRCUMSTANCES SHALL JEEJEEBHOY OR ITS AFFILIATES,

AGENTS AND VENDORS BE LIABLE TO LICENSEE OR ANY THIRD PARTY FOR ANY INDIRECT, INCIDENTAL, COLLATERAL, SPECIAL OR CONSEQUENTIAL DAMAGES ARISING OUT OF THE INSTALLATION, USE, OR INABILITY TO USE, THE PRODUCTS (INCLUDING, WITHOUT LIMITATION, ANY LOSS OF DATA, COST OF PROCUREMENT OF SUBSTITUTE GOODS, DISRUPTION OF BUSINESS, LOSS OF PROFITS, OR ANY OTHER MATTER RELATING TO LICENSEE’S USE OR INABILITY TO USE THE PRODUCTS), OR OTHERWISE RELATED IN ANY WAY TO THIS AGREEMENT OR THE SUBJECT THEREOF, WHETHER ARISING UNDER THEORIES OF CONTRACT, NEGLIGENCE, STRICT LIABILITY, TORT, OR OTHER THEORY, REGARDLESS WHETHER JEEJEEBHOY OR ITS AFFILIATES, AGENTS AND VENDORS HAS/HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.  IN NO EVENT SHALL JEEJEEBHOY’S OR ITS AFFILIATES’, AGENTS’ AND/OR VENDORS’ LIABILITY UNDER ANY PROVISION OF THIS AGREEMENT OR OTHERWISE EXCEED THE TOTAL AMOUNT ACTUALLY RECEIVED BY JEEJEEBHOY FROM LICENSEE UNDER THIS AGREEMENT DURING THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING ANY CLAIM.  THE LIMITATIONS, EXCLUSIONS AND DISCLAIMERS SET FORTH IN THIS SECTION 7 SHALL APPLY TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, EVEN IF ANY REMEDY FAILS OF ITS ESSENTIAL PURPOSE.  NO OBLIGATION OR LIABILITY SHALL ARISE FROM JEEJEEBHOY OR ITS AFFILIATES, AGENTS AND VENDORS RENDERING OF TECHNICAL OR OTHER ADVICE OR SERVICE IN CONNECTION WITH THIS AGREEMENT.

 

(b)   Without acting as a limitation to anything to the contrary, You agree that You are

solely responsible and liable to Jeejeebhoy for compliance with all applicable laws, rules, regulations, and guidelines related to the use of the Products and the Documentation, including without limitation HIPAA and other federal, state and local laws, rules, regulations and guidelines related to healthcare.

 

 

8.            Proper Use of Products and Documentation.  The Products and Documentation are not intended to be used without the judgment of a qualified health care provider with the ability to take into account the individual circumstances of each patient’s case.  You shall include a statement to this effect as part of any correspondence, report, or other tangible or electronic documents, including, without limitation, internet or intranet web pages that incorporate any portion of the Products.  Without limitation, Jeejeebhoy and its affiliates, agents and vendors shall not be liable to You or any third party for any claims or damages arising out of any party’s use of the Products in any manner for which they were not intended or inconsistent with the restrictions set forth herein.  You shall be solely responsible for ensuring that the Products and Documentation are used only in accordance with this Agreement and consistent with their intended purpose.

 

 

9.            Indemnification.

 

(a)            Jeejeebhoy Intellectual Property Indemnification.  Jeejeebhoy shall indemnify and hold You, Your employees and directors harmless from any claim, expense, loss or damage, including reasonable attorneys’ fees, incurred by You which result from any claim by a third party that the Products (exclusive of the Permitted Modifications) infringe the third party’s United States patent, trademark or copyright provided such alleged infringement does not result from either (i) Your modification of the Products or (ii) Your use of the Products in combination with any software, hardware, other product or data not provided by or approved by Jeejeebhoy.

 

If You are enjoined from using the Products and/or the Documentation as a result of infringement or a claim thereof, Jeejeebhoy shall promptly, at its option, either (i) modify the Products and/or Documentation in a manner required to eliminate the infringement, (ii) procure, at Jeejeebhoy’s expense, from the holder of the appropriate right, a license for You to continue to use the Products and/or Documentation, or (iii) terminate this Agreement and refund to You a reasonable portion of any license fee paid by You (as determined in Jeejeebhoy’s sole discretion) pro-rated for the remainder of the Term and reasonable life of the Products.

 

(b)            Your Indemnification.  You shall indemnify and hold Jeejeebhoy, and its affiliates, agents and vendors, and their employees and directors harmless from any claim, expense, loss or damage, including reasonable attorney’s fees, incurred by Jeejeebhoy and its affiliates, agents and vendors resulting from or related to any use by You, Your Authorized Users, Your patients, members or enrollees of the Products whether or not for their intended purpose or whether or not in a manner inconsistent with their accompanying Documentation or this Agreement, except that You shall not have a duty of indemnification if such claim is due to the proven willful negligence or gross misconduct of Jeejeebhoy.  Without acting as a limitation to the foregoing or anything else in this Agreement, You shall also indemnify and hold Jeejeebhoy, and its affiliates, agents and vendors, and their employees and directors harmless from any claim, expense, loss or damage, including reasonable attorney’s fees, incurred by such indemnified parties resulting from or related to any use and license by You, Your Authorized Users, Your  patients, members or enrollees of the CPT File, and for any claim related to the Permitted Modifications, and for any claim under Section 5(a) and/or 7(a).

 

(c)            Notification, Control and Assistance.  Notwithstanding the foregoing, neither party (the “Indemnifying Party”) shall have any obligations under this section to the other party (the “Indemnified Party”) unless and until:  (i) the Indemnified Party promptly notifies the Indemnifying Party in writing of any suits, claims or demands against the Indemnified Party for which the Indemnifying Party is responsible, provided that, an Indemnified Party’s failure to provide prompt notice to the Indemnifying Party shall not relieve the Indemnifying Party from any liability under this Section 9 with respect to such claim unless the Indemnifying Party is materially prejudiced by such failure; (ii) the Indemnified Party gives the Indemnifying Party full opportunity and authority to assume the sole defense of and settle such suits; and (iii) the Indemnified Party furnishes to the Indemnifying Party upon request all information and assistance available to the Indemnified Party for defense against such suit, claim or demand.

 

10.            Limited Warranty and Remedies re American Medical Association CPT Codes.  The inclusion of CPT codes (the “CPT File”) in the Products is dependent on the existence of a contractual relationship between the AMA and You.  Jeejeebhoy has no obligation and no liability with regard to the CPT File as it relates to Your use of the Products.

 

 

11.            Export Controls.  The export of the Products or their content may be subject to restrictions under United States and foreign laws.  You shall not export the Products, in whole or in part, to any country outside the United States, whether in tangible or electronic form, via access through some telecommunications method (such as through the Internet or via a dedicated dial-up line accessible from a country outside of the United States), or by disclosing the Products to a foreign national, without the written consent of Jeejeebhoy and then only in compliance with all applicable United States and foreign laws and regulations.

 

 

12.            Injunctive Relief and Remedies.  You acknowledge and agree that monetary damages alone would be an inadequate remedy in the event of a breach by You of Your obligations under this Agreement and that, in such event, Jeejeebhoy shall be entitled to obtain injunctive relief to require You to comply with its obligations hereunder.  Any remedy of Jeejeebhoy under this Agreement shall be cumulative and not exclusive of any other remedy available to Jeejeebhoy under this Agreement, at law or in equity.

 

 

13.            Independent Contractor.  The parties acknowledge and agree that Jeejeebhoy shall perform its obligations under this Agreement as an independent contractor.  Nothing in this Agreement shall be construed to create an employer/employee, agency or joint venture relationship between the parties or between individuals providing services on behalf of Jeejeebhoy.

 

 

14.            Assignment.  You may not assign this Agreement or any rights or obligations hereunder without the prior written consent of Jeejeebhoy.  Subject to the foregoing, this Agreement shall bind and inure to the benefit of Jeejeebhoy, You, and their respective representatives, heirs, successors and assigns.

 

 

15.            Severability.  If any provision of this Agreement or part thereof is held to be invalid or unenforceable for any reason, the parties agree that such invalidity or unenforceability shall not affect any other provision of this Agreement and such invalid or unenforceable provision(s) shall be rewritten to conform with applicable law to be valid and/or enforceable.  The remaining provisions hereof shall remain in full force and effect and any court of competent jurisdiction may so modify the objectionable provisions as to make them valid and enforceable.

 

 

16.            Waiver; Force Majeure.  The failure of either party at any time to require performance by the other party of any provision of this Agreement shall in no way affect the right of the party failing to require performance to require such performance at any time thereafter.  The waiver by either party of a breach of any provision hereof shall not constitute a waiver of any succeeding breach of the same or any other provision, or constitute a waiver of the provision itself.  Any event beyond the reasonable control of Jeejeebhoy, including without limitation acts of God and natural causes, labor strikes, and supply of vendors (an event of “Force Majeure”) shall excuse Jeejeebhoy from performing as otherwise required hereunder for such period of Force Majeure.

 

 

17.            Entire Agreement.  This Agreement constitutes the entire understanding between the parties with reference to the subject matter hereof and no statements or agreements, oral or written made prior to the signing of this Agreement shall vary or modify the written terms hereof.  No amendment or modification of this Agreement or waiver of any of the provisions hereof shall be valid unless made in writing and signed by the parties.

 

 

18.            Governing Law.  The interpretation, construction and enforcement of this Agreement shall be governed by the internal laws of the State of Illinois; subject to Section 22, any dispute shall be heard exclusively in the federal courts located in Lake County, Illinois.

 

 

19.            Confidentiality of Agreement.  Neither party shall disclose the terms of this Agreement to any third party except as required by law or with the written consent of the other party.  Notwithstanding the foregoing, Jeejeebhoy may issue a press release disclosing the nature of the relationship created hereunder upon prior written approval by You.

 

 

20.            Notice.  Any notice provided for in this Agreement must be in writing and displayed electronically and sent  to Your electronic address used to accept these terms or to Jeejeebhoy at info@subjectiveglobalassessment.com, or to such other recipient or address as You or Jeejeebhoy (as the case may be) shall have specified by prior written notice to the other party.  Except as otherwise provided, any notice under this Agreement shall be deemed to have been given and delivered upon receipt or attempted delivery (if receipt is refused), as the case may be.

 

 

21.            Section Headings/Counterparts.  The section headings used in this Agreement are for convenience and reference purposes only and shall not affect the meaning or interpretation of this Agreement.  This Agreement may be executed in one or more counterparts, each of which will be deemed an original but all of which together will constitute one and the same instrument.

 

 

22.             Dispute Resolution.  All controversies or claims arising out of or relating to this Agreement shall be resolved solely in accordance with the provisions of this Section.  First, the disputing party shall give the other party written notice of the controversy or claim in accordance with the notice provisions of this Agreement.  The parties will attempt in good faith to resolve each controversy or claim within thirty (30) days from the delivery of such notice by negotiations between executives of the parties who have settlement authority.  If the controversy or claim has not been resolved within the thirty (30) day period, then the parties agree that the dispute will be resolved by final and binding arbitration under the Commercial Arbitration Rules of the American Arbitration Association.  The arbitration shall take place in Chicago, Illinois, before a panel of three arbitrators.  Within 30 days of the commencement of the arbitration, each party shall designate in writing a single neutral and independent arbitrator.  The two arbitrators designated by the parties shall then select a third arbitrator.  The arbitrators shall have the authority to permit limited discovery, including depositions, prior to the arbitration hearing, and such discovery shall be conducted consistent with the Federal Rules of Civil Procedure.  Without limiting anything else in this Agreement, the arbitrators shall have no power or authority to award punitive or exemplary damages.  The arbitrators may, in their discretion, award the cost of the arbitration, including reasonable attorney fees, to the prevailing party.  Any award made may be confirmed in any court having jurisdiction located in Lake County, Illinois.  Any arbitration shall be confidential, and except as required by law, neither party may disclose the content or results of any arbitration hereunder without the prior written consent of the other parties, except that disclosure is permitted to a party’s auditors and legal advisors.  Notwithstanding the foregoing, in the event of any dispute related to any infringement or material impairment of Jeejeebhoy’s and/or its affiliates’, agents’ and vendors’ intellectual property rights or other proprietary rights in the Products and/or Documentation, Jeejeebhoy may choose, in its sole discretion, to pursue relief in any court of competent jurisdiction in lieu of pursuing arbitration under this section.

 

 

23.            Product End of Life.  In the event that Jeejeebhoy, in its sole discretion, determines to discontinue any particular Product or Product version licensed hereunder or modifies any Product(s) and/or Documentation, Jeejeebhoy will have no obligations to You of any kind whatsoever thereafter. You may continue to use the discontinued Product(s) and/or Documentation unless terminated under this Agreement.