Subscription Agreement

This Subscription Agreement (“Agreement”) shall commence on the date accepted and acknowledged (the“Effective Date”) between BHS, Inc., a Missouri corporation (“BHS”), and the company, person, or other legal entity subscribing (“Customer”) for access to BHS’s web based and mobile accounts, including all of the online documentation related thereto (the “BHS Application”) hereunder.  BHS and Customer agree as follows:

1.     DEFINITIONS

“Affiliate”means any entity which directly or indirectly controls, is controlled by, or is under common control with the subject entity. “Control,” for purposes of this definition, means direct or indirect ownership or control of more than 50% of the voting interests of the subject entity.

“Authorized Users”means those individual Customer employees that are designated by Customer Administrator and provided access to the BHS Application.

“BHS Application” means the proprietary, subscription-based web portal operated by BHS and the proprietary software application tools available for use by the Authorized User provided through the web portal.

“Confidential Information” shall mean any and all information related to the BHS Application and its concepts, products, service offerings, proprietary online software applications, and user guide(s) which are disclosed by BHS to the Customer.  “Confidential Information” does not include Customer Data.

“Customer Administrator”means (i) in those cases where Customer is a company or other legal entity, the individual designated by Customer as the Customer’s administrator for managing Customer’s use of the BHS Application, or (ii) in those cases where Customer is an individual, the individual person executing this Agreement.

“Customer Data”means all electronic data or information, as well as any changes, corrections, and updates thereto, which are provided, input or uploaded by Customer and/or its Authorized User to the BHS Application.

“Derivative Works”means any updates, suggestions, contributions, enhancements, improvements, additions, modifications or derivative works.

“Malware”means viruses, worms, time bombs, Trojan horses and other harmful or malicious code, files, scripts, agents or applications.

“Third Party Materials”shall mean the third-party software, hardware, articles, images, content received from outside sources, equipment, materials, or information necessary to utilize the BHS Application (such as a computer device and web browser software).

“Term” means, collectively, the Initial Term and Renewal Terms, if any, as defined in Section 9 below.

2.     ACCESS AND USE OF THE BHS APPLICATION

2.1          BHS Application Access.  Subject to the terms and conditions of this Agreement, Customer has the limited right to access and use the BHS Application solely during the Term, and only by the Customer for their internal business purposes. The BHS Application is made available on a software-as-a-service basis solely in a hosted environment.  The right to access and use the BHS Application is provided on a non-exclusive basis.  The foregoing right to access and use the BHS Application shall permit the Authorized Users to access and use the BHS Application.

2.2          Restrictions.  Except as expressly permitted in this Agreement, Customer may not (i) copy, download, store, reproduce, transmit, distribute, display, rent, lease, sell, modify, alter, license, sublicense, or commercially exploit any of the BHS Application or any part thereof; (ii) reverse engineer, decompile, disassemble, translate or create any derivative work of any the BHS Application; (iii) access, link to, copy, or use any source code from any of the BHS Application (or any part thereof); (iv) erase or remove any proprietary, confidentiality or intellectual property notice contained in or on any of BHS Application or any part thereof; or (v) use or permit use of any the BHS Application for or by any person or entity (including Customer’s Affiliates and subsidiaries) other than Customer.

2.3          Authorized User Subscription.  Customer shall not permit any person other than the Authorized Users access the BHS Application.

2.4          End User License Agreement.  Customer shall require that each Authorized User agrees to the End User License Agreement, attached hereto as Schedule 1, prior to his or her use of the Application.

3.     USE OF THE BHS APPLICATION

3.1          Uptime and Support.  BHS shall use commercially reasonable efforts to cause the BHS Application to be available, and provide reasonable support services during BHS’ business hours regarding Customer’s operation and use of the BHS Application.

3.2          BHS Protection of Customer Data.  BHS shall maintain commercially reasonable administrative, physical, and technical safeguards for protection of the security and integrity of Customer Data in the possession of BHS.

3.3          Customer Responsibilities.  Customer shall (i) be responsible for the Authorized Users’ compliance with this Agreement and use of the BHS Application, (ii) be responsible for all aspects of the Customer Data, including, without limitation, for the accuracy, quality and legality of Customer Data, (iii) take all steps necessary to prevent unauthorized access to or use of the BHS Application, and notify BHS promptly of any such unauthorized access or use, and (iv) use the BHS Application only in accordance with applicable laws and government regulations. Customer shall not (a) use the BHS Application to store or transmit infringing, libelous, or otherwise unlawful or tortious material, or to store or transmit material in violation of third-party privacy rights, (b) use the BHS Application to store or transmit Malware, (c) interfere with or disrupt the integrity or performance of the BHS Application or related systems or third-party data contained therein, or (d) attempt to gain unauthorized access to the BHS Application or related systems, networks, data or websites.

3.4          Customer Data.  Customer grants BHS (and those third parties BHS works with, such as hosting and data providers) a worldwide license to use, host, store, reproduce, and modify (to work better with the BHS Application) Customer Data, and to communicate, display and distribute any Customer Data.  The rights Customer grants in this license are for the limited purposes of providing, operating and improving the BHS Application. Customer acknowledges that BHS collects certain personally identifiable information provided by Customer as part of the subscription process. The information collected may include name, address, telephone number, email address and credit card information. BHS will not disclose personally identifiable information to any third party without Customer’s express written consent.  Customer acknowledges that the BHS Application collects certain Customer Data that pertains to BHS’s internet of things goodsequipment, battery and battery recharging operation and maintenance (“Equipment Data”).  To the extent any Customer Datais merely anonymous Equipment Data (not linked or associated with any personally identifiable information), and to the extent any Customer Data is otherwise in a form that does not personally identify any individuals or Customer by name or specific address (“Anonymized Data”), BHS and its Affiliates and their successors, licensees, licensors and assigns may use, store, display, perform, otherwise exploit and share such Anonymized Data in connection with their businesses in perpetuity without obligation of any kind to Customer.  BHS reserves the right to refuse any Customer Data that do not meet BHS’ specifications or guidelines or that are otherwise likely to be considered infringing, objectionable, or in violation of law. CUSTOMER ACKNOWLEDGES AND AGREES THAT BHS HAS NO OBLIGATION TO CUSTOMER TO MAINTAIN, STORE, RETRIEVE, DELIVER OR PROVIDE COPIES OF ANY CUSTOMER DATA TO CUSTOMER AT ANY TIME AFTER THE EXPIRATION OF THE TERM.

3.5          Usage Limitations.  The BHS Application may be subject to limitations, such as, for example, limits on storage space.  BHS will endeavor to notify Customer of any such limitations.

3.6          Hardware and Application Requirements. BHS may post on the BHS Application or furnish to Customer information that pertains to the technical requirements for Customer’s use of the BHS Application under this Agreement. Customer shall be solely responsible for obtaining and paying for all Third Party Materials (and any licenses thereto) as necessary for access to and use of the BHS Application.

4.     FEES AND PAYMENT

4.1          Fees.  Customer shall pay the applicable subscription fees for access to the BHS Application, which are posted on BHS’ website or as may be otherwise set forth by BHS (including BHS’ authorized dealers) and Customer.  Subscription fees are subject to change from time to time by BHS.

4.2          Taxes.  BHS’ fees do not include any taxes, levies, duties or similar governmental assessments of any nature, including but not limited to value-added, sales, use or withholding taxes, assessable by any local, state, provincial, federal or foreign jurisdiction (collectively, “Taxes”).  Customer is responsible for paying all Taxes associated with Customer’s purchases hereunder.

5.     PROPRIETARY RIGHTS

5.1          Reservation of Rights in the BHS Application. With the sole exception of the limited rights expressly granted hereunder, BHS reserves all rights, title and interest in and to the BHS Application, including all related data and intellectual property rights.  This Agreement is not a sale of the BHS Application nor is it a transfer or assignment of any intellectual property rights in the BHS Application.

5.2          Right to Monitor.  BHS reserves the right, at any time and without notice, to monitor compliance with the terms of this Agreement and to otherwise protect BHS’ rights in the BHS Application by utilizing security or other management technology and otherwise monitoring usage of the BHS Application.  BHS reserves the right to suspend or terminate Customer’s and any Authorized Users’ access to the BHS Application if Customer or any Authorized User fails to comply with the terms and conditions of this Agreement.

5.3          Customer Data.  Customer retains copyright and any other rights Customer holds in or to Customer Data, subject to the limited rights Customer grants hereunder, including without limitation, those rights of BHS and its Affiliates and their successors, licensees, licensors and assigns in and to Equipment Data and Anonymized Data.

6.     REPRESENTATIONS, WARRANTIES AND DISCLAIMERS

6.1          General.  BHS and Customer represent and warrant to the other that (i) it has validly entered into this Agreement and has the legal power to do so, and (ii) it has all power, authority and rights necessary to grant the rights granted by it hereunder.

6.2          Warranty Disclaimer.  EXCEPT AS EXPRESSLY WARRANTED IN THIS AGREEMENT, THE BHS APPLICATION IS PROVIDED “AS IS” AND “AS AVAILABLE”, AND BHS DISCLAIMS ANY AND ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY, OR FITNESS FOR A PARTICULAR PURPOSE.  BHS DOES NOT WARRANT, GUARANTEE, OR MAKE ANY REPRESENTATION REGARDING THE USE, OR THE RESULTS OF THE USE, OF THE BHS APPLICATION (AND ANY ASSOCIATED INFORMATION, SOFTWARE, AND MATERIALS) IN TERMS OF SUITABILITY, ACCURACY, TIMELINESS, RELIABILITY, CURRENTNESS, COMPLETENESS, FUNCTIONALITY, INTENDED PURPOSE, OR OTHERWISE. BHS DOES NOT REPRESENT OR WARRANT THAT THE BHS APPLICATION WILL OPERATE ERROR-FREE, UNINTERRUPTED, OR IN A MANNER THAT WILL MEET CUSTOMER’S REQUIREMENTS.  MOREOVER, BHS SHALL NOT BE RESPONSIBLE FOR ANY UNAUTHORIZED USE OF OR ACCESS TO THE BHS APPLICATION.

7.     MUTUAL INDEMNIFICATION

7.1          Indemnification by BHS.  BHS shall defend Customer against any claim, demand, suit, or proceeding made or brought against Customer by a third party alleging that the use of the BHS Application as permitted hereunder infringes or misappropriates the intellectual property rights (excluding patent rights) of a third party (a “Claim Against Customer”), and shall indemnify Customer for any damages, attorney fees and costs finally awarded against Customer as a result of, and for amounts paid by Customer under a court-approved settlement of, a Claim Against Customer; provided that Customer (a) promptly gives BHS written notice of the Claim Against Customer; (b) give BHS sole control of the defense and settlement of the Claim Against Customer (provided that BHS may not settle any Claim Against Customer unless the settlement unconditionally releases Customer of all liability); and (c) provide to BHS all reasonable assistance, at BHS’ expense.  In the event of a Claim Against Customer, or if BHS reasonably believes the BHS Application may infringe or misappropriate, BHS may in BHS’ discretion and at no cost to Customer (i) modify the BHS Application so that it no longer infringe or misappropriate, (ii) obtain a license for Customer’s continued use of the BHS Application in accordance with this Agreement, or (iii) terminate Customer’s Subscriptions to the BHS Application upon 30 days’ written notice and refund to Customer any prepaid fees covering the remainder of the term of such Subscriptions after the effective date of termination, and in such case no other amounts shall be due to or collectible by Customer.

7.2          Indemnification by Customer.  Customer shall defend BHS, its Affiliates, and their employees, directors, officers and shareholders, against any claim, demand, suit or proceeding made or brought against any of them by a third party related to, resulting from, or arising out of (i) the provision of Customer’s products and services, (ii) Customer’s (and/or any Authorized User’s) breach or alleged breach of any representation, warranty or covenant set forth in this Agreement, (iii) any claim attributable to the willful misconduct or gross negligence of Customer or Customer’s Authorized User, employees, and/or agents, (iv) Customer Data or any other materials or services provided by Customer pursuant to this Agreement, or (v) any breach by Customer (and/or any Authorized User(s)) of any laws (national, international, federal, provincial, state, or common) (a “Claim Against BHS”), and shall indemnify BHS, its Affiliates, and their employees, directors, officers, and shareholders for any damages, attorneys fees and costs finally awarded against them as a result of, or for any amounts paid by any of them under a court-approved settlement of, a Claim Against BHS.

7.3          Exclusive Remedy.  This Section 7(Mutual Indemnification) states the indemnifying party’s sole liability to, and the indemnified party’s exclusive remedy against, the other party for any type of claim described in this Section.

8.     LIMITATION OF LIABILITY AND DAMAGES

8.1          Limitation of Liability.  EXCEPT FOR THE SPECIFIED INDEMNIFICATION OBLIGATIONS HEREIN OR FOR A VIOLATION OF THE PROPRIETARY RIGHTS TO THE BHS APPLICATION, IN NO EVENT SHALL THE PARTIES BE LIABLE TO EACH OTHER FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY, OR SPECIAL DAMAGES ARISING OUT OF OR IN ANY WAY CONNECTED WITH THIS AGREEMENT OR THE BHS APPLICATION, WHETHER IN AN ACTION BASED UPON CONTRACT, TORT OR OTHERWISE.  MOREOVER, IN NO EVENT SHALL BHS OR ANY BHS THIRD PARTY LICENSORS BE LIABLE FOR ANY DIRECT OR INDIRECT DAMAGES OR LOSS DUE TO (I) ANY CUSTOMER DATA; (II) CUSTOMER’S OR ITS AUTHORIZED USERS’ RESULTS FROM THE USE OF THE BHS APPLICATION; (III) ANY DAMAGE TO, OR DEGRADATION OR LOSS OF, ANY OTHER INFORMATION, MATERIALS, OR SOFTWARE OF CUSTOMER OR ITS AUTHORIZED USERS; OR (IV) ANY MATTER BEYOND BHS’ REASONABLE CONTROL.

8.2          Third Party Materials and Services. Use of the BHS Application may involve Third Party Materials or require delivery by means of or through the use of certain third-party service providers or services, such as communication services.  BHS ASSUMES NO RESPONSIBILITY OR LIABILITY FOR THE DELIVERY, SECURITY, OR AVAILABILITY OF ANY THIRD PARTY MATERIALS OR THIRD-PARTY SERVICES.  The BHS Application may enable access to or link to third party databases or other web sites, information, resources, materials, or content.  Customer acknowledges that BHS does not control the content available through such third party databases, web sites, or resources.  BHS SHALL ASSUME NO RESPONSIBILITY FOR AND SHALL HAVE NO LIABILITY TO CUSTOMER OR TO ANY THIRD PARTY OR AUTHORIZED USER FOR THE AVAILABILITY, ACCURACY, TIMELINESS, SUBSTANCE, SEQUENCE, COMPLETENESS, RELIABILITY, CONTENT, OR SECURITY OF ANY OF THE DATABASES, SITES, INFORMATION, RESOURCES, MATERIALS, OR CONTENT PROVIDED BY A THIRD PARTY.  BHS makes no representations or warranties nor will BHS indemnify Customer with respect to any acts or omissions of any hosting services provider or similar vendor or subcontractor.

8.3          Maximum Liability.  IN NO EVENT SHALL THE LIABILITY OF BHS EXCEED THE FEES PAID BY CUSTOMER UNDER THIS AGREEMENT DURING THE PRIOR TWELVE (12) MONTHS FOR ANY AND ALL CLAIMS HEREUNDER BY CUSTOMER, REGARDLESS OF THE FORM OF THE ACTION. THE LIMITATIONS IN THIS SECTION 8 ARE A BARGAINED FOR EXCHANGE AND A MATERIAL CONDITION AND PREMISE OF THIS AGREEMENT.

9.     TERM AND TERMINATION

9.1          Term of Agreement.  The initial term (“Initial Term”) of this Agreement commences on the Effective Date and continues for a period of twelve (12) months.  Thereafter, this Agreement shall automatically renew this Agreement for successive twelve (12) month renewal terms (each, a “Renewal Term”), unless terminated prior to the Renewal Term.

9.2          Termination.  BHS may terminate this Agreement:  (i) upon ten (10) days prior written notice to Customer of a material breach by Customer if such breach remains uncured at the expiration of such notice period. Upon any termination of this Agreement, Customer shall, as of the date of such termination, immediately cease accessing and otherwise utilizing the BHS Application. Termination for any reason shall not relieve Customer of the obligation to pay any fees accrued or due and payable to BHS prior to the effective date of termination.

9.3          Surviving Provisions.  The Sections of this Agreement that are intended to survive shall survive any termination or expiration of this Agreement.

10.   CONFIDENTIALITY

10.1       During the term of this Agreement and thereafter, Customer (a) will not use any Confidential Information for any purpose other than uses of the BHS Application expressly permitted by this Agreement, (b) will safeguard and protect such Confidential Information from disclosure to third parties by the exercise of the same degree of care as the Customer employs with respect to preserving and safeguarding information of its own which it desires to maintain proprietary to it, but in no event less than a reasonable degree of care.

10.2       The obligations of confidentiality and non-use under this Section 10shall be inapplicable with respect to any information which (a) is publicly available at the time of its receipt by the Customer or subsequently becomes publicly available other than through a breach of this Agreement, or (b) is received by the Customer from a third party who is not under a restriction or duty of confidentiality with respect to such information.

10.3       Customer acknowledges that any disclosure or misuse of Confidential Information as prohibited hereunder shall give rise to remedies at law and in equity, including actions for damages or injunctive relief.  Customer further acknowledges that the amount and kind of such damages may be difficult to ascertain, immediate, irreparable, continuous, and recovery at law alone may be inadequate; and, therefore, the terms of this Section 10may be specifically enforced through injunctive relief.

11.   NOTICES, GOVERNING LAW AND JURISDICTION

11.1       Notice.  All notices, permissions and approvals hereunder shall be in writing and shall be deemed to have been given upon: (i) personal delivery, (ii) the third business day after mailing, (iii) the third business day after sending by confirmed facsimile, or (iv) the first business day after sending by email; provided that email notices to BHS shall not be sufficient for notices of termination or an indemnifiable claim.

11.2       Governing Law and Jurisdiction.  This Agreement shall be governed by the laws of the State of Missouri, USA, without regard to Missouri conflict of laws rules. The exclusive venue and jurisdiction for any and all disputes, claims and controversies arising from or relating to this Agreement shall be the state or federal courts located in Missouri. Each party waives any objection (on the grounds of lack of jurisdiction, forum non conveniens, or otherwise) to the exercise of such jurisdiction over it by any such courts.

11.3       Waiver of Jury Trial.  Each party hereby waives any right to jury trial in connection with any action or litigation in any way arising out of or related to this Agreement.

12.    GENERAL PROVISIONS

12.1       Relationship of the Parties.  The relationship between the parties to this Agreement is and shall be that of independent contractors only and nothing in this Agreement shall be construed or used to create or imply any relationship of partners, joint venturers, fiduciary, or employer and employee between the parties. There are no third-party beneficiaries to this Agreement.

12.2       Severability.  If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, the provision shall be modified by the court and interpreted so as best to accomplish the objectives of the original provision to the fullest extent permitted by law, and the remaining provisions of this Agreement shall remain in effect.

12.3       Assignment.  Customer may not assign any of its rights or obligations hereunder, whether by operation of law or otherwise, without the prior written consent of BHS.  Any assignment by Customer except as expressly provided herein will be null and void.

12.4       Entire Agreement; Miscellaneous.  This Agreement, including all exhibits and addenda hereto constitutes the entire agreement between the parties and supersedes all prior and contemporaneous agreements, proposals or representations, written or oral, concerning its subject matter.  Each party will be excused from any delay or failure in performance hereunder, other than payment of money, caused by reason of any occurrence or contingency beyond its reasonable control, including but not limited to acts of God, earthquake, labor disputes and strikes, riots, war and governmental requirements.  The obligations and rights of the party so excused will be extended on a day-to-day basis for the period of time equal to that of the underlying cause of the delay. No failure or delay by either party in exercising any right under this Agreement shall constitute a waiver of that right.  This Agreement may be executed in counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same agreement.   No modification, amendment, or waiver of any provision of this Agreement shall be effective unless in writing and either signed or accepted electronically by the party against whom the modification, amendment or waiver is to be asserted. Notwithstanding any language to the contrary therein, no terms or conditions stated in Customer’s purchase order or other order documentation shall be incorporated into or form any part of this Agreement, and all such terms or conditions shall be null and void.

IN WITNESS WHEREOF, the parties hereto have caused their duly authorized representatives to execute this Agreement as of the Effective Date.

SCHEDULE 1 – END USER LICENSE AGREEMENT

This End User License Agreement (“EULA”) is by and between BHS, Inc. (“BHS”) and you (“You” or “Your”). For purposes of this EULA, BHS has agreed to provide You with access to and use of BHS’s web based and mobile accounts, including all of the online documentation related thereto (the “Application”).  The Application is protected by intellectual property laws and treaties.   

1.     GRANT OF LICENSE. 

1.1 Subject to BHS’s right to terminate set forth in Section 4below, BHS hereby grants You a limited non-exclusive, non-transferable, non-sublicensable right to use and access the Application; provided, this EULA only authorizes You to use the Application in connection with Your and Your employer’s personal business purposes.You acknowledge and agree that as a condition to entering into this EULA, You agree to abide by all of the terms and conditions of use set forth in this EULA, as may be amended from time to time by BHS and made known to You, including without limitation, any terms and conditions that may accompany any update to, or new version of, the Application.

1.2 You acknowledge and agree that BHS may collect, use, reproduce, distribute, store, and share any and all data input into or generated by the Application (a) in connection with BHS’ delivery and maintenance of the Application to You; (b) to ensure You comply with the terms of this EULA; and (c) as is required to satisfy any legal demand of a government, judicial or administrative body. You further acknowledge and agree that BHS may, in perpetuity, use any and all data input into or generated by the Application in an aggregated and/or anonymized format for any purpose whatsoever without any obligation to You.

2.    LIMITATIONS.

2.1 You agree to use the Application solely for the purposes described herein. You shall not provide access to the Application to any other persons and/or businesses.  You shall not (i) permit any third parties to use the Application, including without limitation, through sharing with others Your username, password or other login credentials, (ii) process or permit to be processed the data of any other party other than in connection with Your permitted uses, (iii) rent, lease, or sublicense the Application to any third party, (iv) circumvent or disable any technological features or measures in the Application, (v) use the Application for the benefit of a third party; or (vi) to develop a product that is similar to the Application or to operate an organ donation service (or similar business).  This EULA does not provide You with title or ownership of the Application, but only this limited non-exclusive and non-transferable use.  You must keep its access to the Application free and clear of all claims, liens and encumbrances.

2.2 You shall not modify, translate, enhance or create derivate works of the Application and shall not create or attempt to create, by decompilation, translation, disassembly, reverse engineering or otherwise, the Application or any portion thereof.

3. COPYRIGHTS AND TRADEMARK.

This EULA does not grant You or any person any rights in connection with any trademarks or service marks of BHS, its licensors or the Application.  Rather, You have a license to use the Application as long as this EULA remains in full force and effect. Ownership of the Application and all intellectual property rights therein shall remain at all times with BHS.  Any other use of the Application by any person, business, corporation, government organization or any other entity is strictly forbidden and is a violation of this EULA. The Application represents valuable and strategic intellectual property of BHS. You will use all reasonable efforts to ensure that the Application is not copied, misused or misappropriated by any third parties.

4. TERMINATION.

This EULA is effective until terminated. Your rights under this EULA will terminate immediately and automatically if You fail to comply with any terms and conditions of this EULA.  Termination will not limit any of BHS’ other rights or remedies at law or in equity.  Sections 2,3and 5 through 7of this EULA shall survive termination or expiration of this EULA for any reason.

5. ACCESS.

No guarantee is made to You that the Application is available in all geographic locations or at all times.  You acknowledge that when You use this Application on a mobile device, Your wireless carrier may charge You fees for data, messaging, and/or other wireless access. Check with Your carrier to see if there are any such fees that apply to You.  YOU ARE SOLELY RESPONSIBLE FOR ANY COSTS YOU INCUR TO ACCESS THIS SOFTWARE FROM YOUR MOBILE DEVICE.

6. WARRANTIES AND DISCLAIMERS.

6.1 All representations or warranties, including but not limited to the implied warranties of merchantability, non-infringement and fitness for a particular purpose pertaining to the Application are hereby disclaimed. No oral or written information or advice given by BHS or its licensors, agents or employees pursuant to this EULA or otherwise shall create a representation or warranty or in any way increase the scope of the representations and warranties set forth in this EULA. No representation or warranty is made that operation of the Application will be uninterrupted or error-free, or that all errors will be corrected.   No representation or warranty is made that the Application will meet Your requirements or that the Application will operate in the combinations which You may select for use. 

6.2 You acknowledges that data input into the Application will not be stored or maintained on BHS’ servers, but that the data will be stored on the servers of a third party service provider (the “Third Party Server Provider”).

6.3 In no event shall BHS be liable to You with respect to the subject matter of this EULA under any contract, negligence, strict liability or other theory for interruption of use or for loss or inaccuracy or corruption of Your data or for cost of procurement of substitute goods, services or technology or for any matter beyond BHS’ reasonable control.

6.4 Neither BHS, nor anyone else who has been involved in the creation, production or delivery of the Application shall be liable to You for any direct, indirect, consequential, punitive or incidental damages (including damages for loss of business profits, loss of goodwill, business interruption, loss of business information, and the like, however arising) arising out of this EULA, the termination or expiration of this EULA in accordance with its terms, or the use of or inability to use the Application even if has been advised of the possibility of such damages. You acknowledge and agree that this limitation of liability is a fundamental aspect of this EULA and that in its absence, the economic terms set forth in this EULA would be substantially different.

7. GENERAL.

7.1 Except as otherwise provided herein, the respective rights and obligations of the parties under this EULA shall survive any termination of this EULA.

7.2 This EULA shall be governed the laws of the United States of America and the State of Missouri without regard to principles of conflicts of laws.

7.3 Any provision or provisions of this EULA which is held to be invalid, illegal, unenforceable or otherwise in any way to contravene any law shall, to the extent thereof, be deemed severable and shall not affect the other provisions hereof, which other provisions shall remain in full force and effect. To the extent that any provision of this EULA is adjudicated to be invalid or unenforceable because it is deemed to be overbroad, that provision shall not be void but rather shall be limited only to the extent required by applicable law and enforced as so limited.

7.4 No Failure or delay in exercising or enforcing any right or remedy hereunder by BHS shall constitute a waiver of any other right or remedy, or future exercise thereof.

7.5 To the extent any party asserts any disagreement, dispute, controversy or claim arising out of, relating to or connected with this EULA or the Application, all parties irrevocably submit to the exclusive jurisdiction of the state and federal courts sitting in the State of Missouri.

7.6 You may not assign or otherwise transfer Your rights or obligations under this EULA without the prior written consent of BHS. Subject to the foregoing, this EULA shall be binding upon the parties’ successors and assigns.

_______ I ACCEPT                     _______ I DO NOT ACCEPT

SM-1366  04/20