Subscription Use Agreement

IMPORTANT – READ CAREFULLY: THIS SUBSCRIPTION USE AGREEMENT (THE “AGREEMENT”) IS A LEGAL AGREEMENT BETWEEN YOU AND ANY COMPANY YOU REPRESENT (COLLECTIVELY, “YOU” AND “YOUR”) AND ADA PLATFORM TECHNOLOGY (“ADA PLATFORM TECHNOLOGY”).

THIS AGREEMENT APPLIES TO (1) ALL SUBSCRIPTIONS FOR ADA PLATFORM TECHNOLOGY HOSTED SOFTWARE AS A SERVICE (SAAS) SOLUTIONS (INCLUDING BUT NOT LIMITED TO WEB-BASED SALES AND MARKETING AUTOMATION SOFTWARE SOLUTIONS FOR BUSINESSES, MARKETERS AND ENTREPRENEURS) AND (2) ANY OTHER RELATED SERVICES THAT ADA PLATFORM TECHNOLOGY MAY PROVIDE TO YOU IN CONNECTION WITH SUCH SAAS SOLUTIONS.

PLEASE READ THE AGREEMENT CAREFULLY BEFORE CONTINUING YOUR SUBSCRIPTION REGISTRATION. BY CLICKING THE “I ACCEPT” BUTTON OR OTHERWISE ACCEPTING THIS AGREEMENT AS SET FORTH IN ANY ONLINE OR PRINTED ORDER FORM REFERENCING THIS AGREEMENT, YOU AND ANY COMPANY YOU REPRESENT AGREE TO FOLLOW AND BE BOUND BY THE TERMS AND CONDITIONS OF THIS AGREEMENT. IF YOU ARE AGREEING TO THIS AGREEMENT ON BEHALF OF YOUR COMPANY, YOU ARE REPRESENTING TO US THAT YOU HAVE THE AUTHORITY TO BIND YOUR COMPANY TO THIS AGREEMENT, AND THE TERM “YOU” SHALL REFER TO YOUR COMPANY. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE TO ALL TERMS AND CONDITIONS OF THIS AGREEMENT, YOU MUST CHOOSE THE “CANCEL” BUTTON AND YOU SHALL NOT BE PERMITTED TO USE THE ADA PLATFORM TECHNOLOGY SERVICE.

Article I. Definitions
For purposes of this Agreement, the definitions set forth below apply:

“Authorized User” means any of Your employees, consultants, contractors or agents authorized by Your administrator to access and use the Infusionsoft Service on behalf of Your business, in each case subject to such person’s agreement to be bound by the terms of this Agreement.

“Front End Code” means our user interface display and usability platform. This includes, but is not limited to, the layout, color scheme, HTML pages and source code, etc.

“ADA Platform Technology Materials” means any documentation, user guides or other similar materials provided by ADA Platform Technology to You in connection with Your use of the ADA Platform Technology Service.

“ADA Platform Technology Service” means any of the ADA Platform Technology set of SaaS solutions that are developed, operated, and maintained by ADA Platform Technology (and its third party service providers) and that are subscribed to through an ADA Platform Technology branded or controlled website (or ADA Platform Technology partner website) that includes a link to this Agreement. The definition of ADA Platform Technology Service does not include any separate professional Services (as defined below) that may be purchased by You from ADA Platform Technology.

“Order Form” means any online or written subscription order form for the ADA Platform Technology Service or for Services submitted by You either during an online subscription process or separately signed by You and submitted to ADA Platform Technology, and any future purchase order or order form that makes reference to this Agreement.

“PHI” means (i) “protected health information” as defined in 45 CFR § 160.103, and (ii) any other patient or health information protected by the Health Insurance Portability and Accountability Act of 1996, as it may be amended from time to time (“HIPAA”), including the regulatory revisions implemented pursuant to the Health Information Technology for Economic and Clinical Health Act (the “HITECH ACT”).

“Services” means any implementation, training or other professional services provided by ADA Platform Technology to You pursuant to the terms of an Order Form.

“Subscription Term” means the use term for the ADA Platform Technology Service set forth on Your Order Form and any additional renewals of such term.

“Third Party Content” means the content, including software code, that an ADA Platform Technology partner or other third party may bundle with the ADA Platform Technology Service, for a specific market or niche offering.

“Your Data” means registration information, information concerning Your Authorized Users and customers and contacts, business, marketing and financial information, and any similar data that You upload to the ADA Platform Technology Service.

Article II. Use Rights and Restrictions
2.1 Use Rights; Restrictions. Subject to the terms of this Agreement, ADA Platform Technology grants to You during the Subscription Term the non-transferable (except as permitted below), non-exclusive right to permit Your Authorized Users to access and use the ADA Platform Technology Service (and any ADA Platform Technology Materials provided to You) to allow You to perform contact management, automated marketing, lead tracking and other related business functions that the ADA Platform Technology Service is designed to perform, subject to the following restrictions: (i) Your use of the ADA Platform Technology Service may not be on behalf of third parties unless a separate agreement between You and ADA Platform Technology permits use of the ADA Platform Technology Service on behalf of Your clients (and in such case limited to use on behalf of clients for whom You have purchased access and use rights); (ii) except as expressly permitted herein or in a separate partner agreement between You and ADA Platform Technology , You may not license, sell, rent, lease, transfer, assign, distribute, display, host, outsource otherwise commercially exploit or make the ADA Platform Technology Service or the ADA Platform Technology Materials available to any third party; (iii) You may not modify, make derivative works of, disassemble, reverse compile, or reverse engineer any part of the ADA Platform Technology Service or ADA Platform Technology Materials (provided that reverse engineering is prohibited only to the extent such prohibition is not contrary to applicable law), or access or use the ADA Platform Technology Service or ADA Platform Technology Materials in order to build a similar or competitive product or service; (iv) Your use of the ADA Platform Technology Service (in terms of number of Authorized Users, maximum list sizes, monthly email limitations, etc.) shall conform with the restrictions set forth in the Order Form for the level of subscription purchased by You (ADA Platform Technology may monitor Your compliance with these limits and if it detects overuse require that You upgrade to the appropriate higher subscription level); (v) Your use of the ADA Platform Technology Service must not cause undue strain or stress on the ADA Platform Technology network through excessive API calls or other non-standard use; and (v) Your use of the ADA Platform Technology Service must comply with the separate ADA Platform Technology Acceptable Use Policy posted on the ADA Platform Technology website (veps.online) as updated by ADA Platform Technology from time to time.

2.2 Technical Support. During the Subscription Term, You will be entitled at no extra charge to access online user guides, knowledge bases and self-help tools, and any additional standard technical support resources (collectively, “Technical Support”) for the ADA Platform Technology Service offered by ADA Platform Technology from time to time, the terms of conditions of which may be described and updated from time to time on the support or customer care sections of the relevant ADA Platform Technology website (veps.online). ADA Platform Technology reserves the right to modify the posted terms and conditions for Technical Support, at any time at its sole discretion.

2.3 Intellectual Property Rights. ADA Platform Technology shall retain all right, title and interest (including all copyrights, patents, service marks, trademarks and other intellectual property rights) in and to the ADA Platform Technology Service and ADA Platform Technology Materials (including application development, business and technical methodologies, and implementation and business processes, used by ADA Platform Technology to develop or provide the ADA Platform Technology Service or ADA Platform Technology Materials), and any and all updates, enhancements, customizations, revisions, modifications, future releases and any other changes relating to any of the foregoing. Except for the limited access and use rights granted pursuant to this Agreement, You do not acquire any interest in the ADA Platform Technology Service or ADA Platform Technology Materials. You agree that any suggestions, enhancement requests, feedback, recommendations or other information provided by You or any of Your Authorized Users relating to the ADA Platform Technology Service or the ADA Platform Technology Materials may be used by ADA Platform Technology without restriction or obligation to You.

2.4 Additional Restrictions. You are expressly prohibited from using any Front End Code for any purpose outside of the intended design and implementation of Your authorized use of the ADA Platform Technology Service. Any replication or use of any aspect of the Front End Code or other ADA Platform Technology application or Services for any purpose designed or intended to compete with ADA Platform Technology’s solutions is strictly prohibited.

2.5 Ownership of Your Data. As between You and ADA Platform Technology, Your Data and any similar data provided to ADA Platform Technology outside of the uploading process (either in hard copy or electronic format) is and shall remain Your property. To enable ADA Platform Technology to provide You with the ADA Platform Technology Service, and subject to the terms and conditions of this Agreement, You hereby grant to ADA Platform Technology a non-exclusive right to use, copy, distribute and display Your Data solely in connection with ADA Platform Technology’s operation of the ADA Platform Technology Service on Your behalf. You, not ADA Platform Technology, shall have sole responsibility for the accuracy, integrity, and reliability of Your Data, and ADA Platform Technology will not be responsible or liable for the deletion, correction, destruction, damage, loss or failure to store any of Your Data. ADA Platform Technology will protect any of Your Data provided to ADA Platform Technology as confidential in accordance with Article IV below.

2.6 Protection of PHI. You agree to alert ADA Platform Technology in writing if you will be using the Services to store or process PHI. To the extent that You do use the Services to store or process PHI, then the terms of the ADA Platform Technology Business Associate Agreement will apply to any PHI stored or processed by You using the Services and the terms of the ADA Platform Technology Business Associate Agreement are incorporated herein by reference. Upon either Your or ADA Platform Technology’s request, both parties will execute a signable version of the ADA Platform Technology Business Associate Agreement.

Article III. Fees
3.1 Fees. The fees for the ADA Platform Technology Service and any additional Services (“Fees”) are set forth in the Order Form and are payable in advance, irrevocable and non-refundable except as set forth in the Order Form and this Agreement. You agree to provide ADA Platform Technology with complete and accurate billing and contact information. Where payment by credit card is indicated in the Order Form, or You otherwise provide ADA Platform Technology with credit card information, You authorize ADA Platform Technology to bill such credit card (a) at the time that You order the ADA Platform Technology Service or other Services set forth in the Order Form, (b) for any billing frequency otherwise established in the Order Form, and (c) at the time of any renewal, for the amount charged plus any applicable sales taxes for any renewed Subscription Term. If ADA Platform Technology, in its discretion, permits You to make payment using a method other than a credit card, ADA Platform Technology will invoice You at the time of the initial Order Form and thereafter on a monthly basis in advance of the relevant billing period, and all such amounts invoiced will be due within ten (10) days of Your receipt of ADA Platform Technology’s invoice. Late payments shall be subject to a service charge of one and one-half percent (1.5%) per month, or the maximum charge permitted by law, whichever is less.

3.2 Taxes. You shall pay all personal property, sales, use, value-added, withholding and similar taxes (other than taxes on ADA Platform Technology’s net income) arising from the transactions described in this Agreement, even if such amounts are not listed on an Order Form. To the extent You are exempt from sales or other taxes, You agree to provide ADA Platform Technology , upon request, with the appropriate exemption certificate.

3.3 Non-Payment; Other Suspension Rights. ADA Platform Technology may terminate the ADA Platform Technology Service if the billing or contact information provided by You is false or fraudulent. ADA Platform Technology also reserves the right, in its discretion, to suspend Your access and/or use of the ADA Platform Technology Service: (i) where any payment is due but unpaid and You have been requested but failed to promptly cure such payment failure; or (ii) in the event a dispute arises on Your account as to who at Your business has authority to act or manage Your account and ADA Platform Technology is not promptly provided with written instructions from the interested parties associated with Your account that fully resolves the dispute. You acknowledge and agree that it a dispute arises as to management of Your account, then (i) if the listed owner of the account is a corporation, limited liability company or other registered entity, ADA Platform Technology may rely on public records (to the extent available) concerning the appropriate authorized executives or managers of Your entity; or (ii) if the listed owner is a dba or sole proprietorship, or any other entity for which public records of control are not readily accessible online, ADA Platform Technology may assume that the person or entity that has been making payments on Your account has the authority to manage the account. You agree that ADA Platform Technology shall not be liable to You nor to any third party for any suspension of the ADA Platform Technology Service resulting from Your non-payment of Fees or from a dispute as to the management rights to Your account.

Article IV. Confidentiality; Use of Names
4.1 Confidential Information. For purposes of this Agreement, confidential information shall include the business terms in the Order Form, Your Data, the ADA Platform Technology Service and the ADA Platform Technology Materials, and any information that is clearly identified in writing at the time of disclosure as confidential or that should be reasonably understood to be confidential by the receiving party given the nature of the information and the circumstances of its disclosure (“Confidential Information”). Each party agrees: (a) to receive and maintain in confidence all Confidential Information disclosed to it by the other party or by a third-party; (b) not to use the Confidential Information of the other party except to the extent necessary to perform its obligations or exercise rights hereunder; (c) to limit the internal dissemination of Confidential Information to those employees and contractors of the recipient who have a need to know and an obligation to protect it; and (d) to protect the confidentiality thereof in the same manner as it protects the confidentiality of similar information and data of its own (at all times exercising at least a reasonable degree of care in the protection of such Confidential Information). ADA Platform Technology will restrict its employees’ access to Your Confidential Information to only those employees necessary to successfully provide the ADA Platform Technology Service. ADA Platform Technology may disclose Confidential Information on a need-to-know basis to its contractors who have executed written agreements requiring them to maintain such information in strict confidence and use it only to facilitate the performance of their services for ADA Platform Technology in connection with the performance of this Agreement. Confidential Information shall not include information that: (1) is known publicly; (2) is generally known in the industry before disclosure; (3) has become known publicly, without fault of the recipient, subsequent to disclosure by the disclosing party; or (4) the recipient becomes aware of from a third party not bound by non-disclosure obligations to the disclosing party and with the lawful right to disclose such information to the recipient. This Section will not be construed to prohibit the disclosure of Confidential Information to the extent that such disclosure is required by law or order of a court or other governmental authority. The parties agree to give the other party prompt notice of the receipt of any subpoena or other similar request for such disclosure.

4.2 Credit Card Information. ADA Platform Technology agrees that it will retain and store any provided credit card information only for the minimum amount of time required for business, legal and/or regulatory purposes, and will use standard industry practices to protect such information from unauthorized access, disclosure or use.

4.3 Use of Names in Marketing. You may use ADA Platform Technology’s name and credentials in an appropriate and acceptable manner for Your standard marketing promotions, provided that You agree to cease or alter such use at ADA Platform Technology’s request where such use is contrary to ADA Platform Technology’s branding policies, could cause any brand confusion in the market or is otherwise objectionable to ADA Platform Technology. Similarly, ADA Platform Technology may use Your business name in an appropriate and acceptable manner for standard marketing promotions, provided that ADA Platform Technology agrees to cease or alter such use at Your request where such use is contrary to Your branding policies, could cause any brand confusion in the market or is otherwise objectionable to You. Acceptable and standard marketing promotions include, but are not limited to: client listings, press releases, surveys, interviews, reputable business publications, television, and web site presentation and promotion, etc.

Article V. Term & Termination
5.1 Standard Term. Unless a different Term is specified in a signed Order Form between You and ADA Platform Technology, the Initial Term of Your subscription to an ADA Platform Technology Service will begin on the submission or execution of Your Order Form and shall continue on a month-to-month basis until the subscription is terminated as provided for in this Article 5. The term of this Agreement will automatically terminate when all active Subscription Terms have been terminated.

5.2 Termination without Cause. Either party may terminate the Subscription Term to an ADA Platform Technology Service by providing thirty (30) days’ prior written notice to the other party. ADA Platform Technology’s termination rights are in addition to any suspension rights it may have under this Agreement or the incorporated Acceptable Use Policy.

5.3 Effect of Termination. Upon termination of the Subscription Term, all Fees then due and payable to ADA Platform Technology must be paid in full. Contingent upon its receipt of all such Fees, ADA Platform Technology will continue to make Your Data available for downloading through the termination date. In addition, for a period of thirty (30) days following termination, You may arrange for the downloading of Your Data by contacting ADA Platform Technology. Following this (30) day grace period, ADA Platform Technology may remove Your Data from the production environment for the ADA Platform Technology Service. The provisions of this Agreement which by their nature are intended to survive expiration or termination shall survive, including but not limited to obligations concerning confidentiality, protection of intellectual property, indemnification and payment of unpaid Fees and expenses.

Article VI. Warranties/limitation of Liability/indemnity
6.1 Limited Warranties. ADA Platform Technology warrants for a period of thirty (30) days following their delivery that all professional Services provided hereunder will be performed in a workmanlike manner, in conformity with the professional standards for comparable services in the industry. For any breach of this warranty timely reported by You, Your exclusive remedy shall be the re-performance of the deficient Services, and if ADA Platform Technology is unable to re-perform the deficient Services as warranted, You shall be entitled to recover the portion of the Fees paid to ADA Platform Technology for such deficient Services, and such refund shall be ADA Platform Technology’s entire liability. You warrant that Your business shall, at all times, comply with, and shall remain solely responsible for compliance with, all applicable federal, state and local laws and regulations, as well as the ADA Platform Technology Acceptable Use Policy, in connection with Your use of the ADA Platform Technology Service, and You agree to indemnify and hold ADA Platform Technology harmless from and against any third party or government claims, including all related damages, costs and expenses (including reasonable attorneys’ fees), that arise due to Your violation of law or breach of this warranty in Your use of the ADA Platform Technology  Service.

All third party hardware, including but not limited to card readers, and other products included or sold with the Services are provided solely according to the warranty and other terms specified by the manufacturer, who is solely responsible for service and support for its product. For service, support, or warranty assistance, you should contact the manufacturer directly (see ADA Platform Technology Mobile Payments). ADA PLATFORM TECHNOLOGY MAKES NO WARRANTIES, EXPRESS OR IMPLIED, WITH RESPECT TO SUCH THIRD PARTY PRODUCTS, AND EXPRESSLY DISCLAIMS ANY WARRANTY OR CONDITION OF MERCHANTABILITY, NON-INFRINGEMENT, OR FITNESS FOR A PARTICULAR PURPOSE. IN NO EVENT WILL ADA PLATFORM TECHNOLOGY BE LIABLE FOR ANY INCIDENTAL, CONSEQUENTIAL, OR COVER DAMAGES ARISING OUT OF YOUR USE OF OR INABILITY TO USE THIRD PARTY PRODUCTS OR ANY AMOUNT IN EXCESS OF THE AMOUNT PAID BY YOU FOR THE PRODUCT THAT GIVES RISE TO ANY CLAIM.

6.2 ADA Platform Technology Not Responsible for Third Party Content. The ADA Platform Technology Service may be bundled by third parties (including but not limited to ADA Platform Technology marketing or content partners) with Third Party Content designed to facilitate use of the ADA Platform Technology Service in certain market niches or to customize the ADA Platform Technology Service for use by certain categories of target customers. To the extent that You either purchase the ADA Platform Technology Service from such third parties or acquire the Third Party Content or configuration services from such third parties (even though you may purchase the core ADA Platform Technology Service directly from ADA Platform Technology), ADA Platform Technology does not warrant in any manner and will not be responsible for such Third Party Content and You agree to look solely to the relevant third party provider (and not ADA Platform Technology) if and to the extent that you have any complaints or issues relating to the Third Party Content or its interaction with an ADA Platform Technology Service.

In particular, ADA Platform Technology uses Intuit, Inc. (“Intuit”) for payment processing in our ADA Platform Technology Payments offering. In order for you to use Intuit’s payment processing services through ADA Platform Technology’s offering, you must register with Intuit as a merchant. Intuit’s terms of service (the “Intuit Terms”) explain that process, and are available here: https://quickbooks.intuit.com/software-licenses/website_terms_of_service. By accepting these ADA Platform Technology Terms of Use, you agree that you have reviewed the Intuit Terms and agree to them. Please note that ADA Platform Technology is not a party to the Intuit Terms and that we have no obligations or liability to you under the Intuit Terms or for any services that Intuit provides to you. If you have questions regarding Intuit or the Intuit Terms, please contact Intuit at https://www.Intuit.com.

6.2 Warranty Disclaimers. EACH PARTY DISCLAIMS ALL OTHER WARRANTIES, INCLUDING BUT NOT LIMITED TO WARRANTIES OF MERCHANTABILITY, TITLE, UNINTERRUPTED SERVICE OR FITNESS FOR A PARTICULAR PURPOSE. YOU ACKNOWLEDGE THAT ADA PLATFORM TECHNOLOGY SPECIFICALLY DISCLAIMS ALL WARRANTIES RELATING TO THE ADA PLATFORM TECHNOLOGY SERVICE.

6.3 Limitation of Liability. IN NO EVENT WILL ADA PLATFORM TECHNOLOGY BE LIABLE TO YOU FOR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL DAMAGES, INCLUDING, BUT NOT LIMITED TO, LOSS OF DATA, LOSS OF BUSINESS OR OTHER LOSS ARISING OUT OF OR RESULTING FROM THIS AGREEMENT EVEN IF IT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE FOREGOING SHALL APPLY REGARDLESS OF WHETHER SUCH LIABILITY SOUNDS IN CONTRACT, NEGLIGENCE, TORT, STRICT LIABILITY OR ANY OTHER THEORY OF LEGAL LIABILITY. IN ADDITION, IN NO EVENT WILL ADA PLATFORM TECHNOLOGY’S CUMULATIVE LIABILITY UNDER THIS AGREEMENT EXCEED THE AMOUNT PAID BY YOU TO ADA PLATFORM TECHNOLOGY DURING THE SIX MONTH PERIOD PRECEDING THE ALLEGED LIABILITY EVENT.

Article VII. General Provisions
7.1 Notice. Notices regarding this Agreement to ADA Platform Technology shall be in writing and sent by first class mail or overnight courier (if from within the United States), or international courier, addressed to ADA Platform Technology, Attn. Contracts Administrator, P. O. Box 130035 The Woodlands, The Woodlands, Texas 77393. ADA Platform Technology may give notice applicable to ADA Platform Technology’s general customer base by means of a general notice on the ADA Platform Technology Service portal, and notices specific to You by electronic mail to Your designated contact’s email address on record with ADA Platform Technology, or by written communication sent by first class mail or overnight courier (if to an address within the United States), or international courier, to Your address on record in ADA Platform Technology’s account information. All notices shall be deemed to have been given three (3) days after mailing or posting (if sent by first class mail), upon delivery in the case of courier, or twelve (12) hours after sending by confirmed facsimile, email or posting to the ADA Platform Technology Service portal.

7.2 Assignment. You may not assign this Agreement without providing prior notice to and obtaining the consent of ADA Platform Technology, which shall not be unreasonably denied provided Your account is in good standing. Any purported assignment in violation of this Section shall be void.

7.3 Integration; Modification. This Agreement and the information incorporated into this Agreement by written reference (including reference to information contained in a URL or referenced policy), together with any applicable Order Form, represent the parties’ entire understanding relating to the ADA Platform Technology Service, the ADA Platform Technology Materials and the Services, and supersede any prior or contemporaneous, conflicting or additional communications. The terms and conditions of this Agreement may only be amended by written agreement of the parties.

7.4 Governing Law; Arbitration. This Agreement shall be governed by the laws of the State of Arizona without giving effect to conflict of laws principles. Any and all disputes, controversies and claims arising out of or relating to this Agreement or concerning the respective rights or obligations of the parties hereto shall be settled and determined by arbitration before a panel of one (1) arbitrator in Montgomery County, Texas, pursuant to the Commercial Rules of the American Arbitration Association then in effect. Judgment upon the award rendered may be entered in any court having jurisdiction or application may be made to such court for a judicial acceptance of the award and an order of enforcement. The parties agree that the arbitrator shall have the power to award damages, injunctive relief and reasonable attorneys’ fees and expenses to the prevailing party.

7.5 Force Majeure. Except for Your obligation to pay Fees for the ADA Platform Technology Service or other Services rendered, neither party will be responsible for failure of performance due to causes beyond its control. Such causes include (without limitation) accidents, acts of God, labor disputes, actions of any government agency, shortage of materials, acts of terrorism, or the stability or availability of the Internet or a portion thereof.

7.6 Export. You agree that U.S. export control laws and other applicable export and import laws govern Your use of the ADA Platform Technology Service, including ADA Platform Technology technology. You represent that You are neither a citizen of an embargoed country nor prohibited end user under applicable U.S. export or anti-terrorism laws, regulations and lists. You agree not to use or export, nor allow a third party to use or export, the ADA Platform Technology Service or technology in any manner that would violate applicable law, including but not limited to applicable export and import control laws and regulations.

7.7 Severability. If any provision of this Agreement is determined to be illegal or unenforceable, that provision will be limited to the minimum extent necessary so that this Agreement shall otherwise remain in full force and effect.

7.8 Relationship of Parties. No joint venture, partnership, employment, or agency relationship exists between ADA Platform Technology and You as a result of this Agreement or use of the ADA Platform Technology Service.

7.9 Waiver. The failure of either party to enforce any right or provision in this Agreement shall not constitute a waiver of such right or provision unless acknowledged and agreed to by such party in writing.

7.10 Invalidity; Waivers. If any provision or portion of this Agreement is held invalid, illegal, void or unenforceable as it appears in this Agreement by reason of any rule of law, administrative or judicial provision or public policy, then such provision shall be construed as being enforceable to the extent such rule of law, administrative or judicial provision or public policy allows. All other provisions of this Agreement shall nevertheless remain in full force and effect. Neither of the parties shall be deemed to have waived any of its rights, powers or remedies hereunder unless the waiving party expresses such a waiver in writing.

7.11 Government End Use. If You are an agency or unit of the U.S. Government (“Government”), the ADA Platform Technology Service is provided for ultimate Government use solely in accordance with the provisions of the Federal Acquisition Regulation (“FAR”) and supplements thereto, including the Department of Defense (“DoD”) FAR Supplement (“DFARS”, set forth in this Section. Government technical data and software rights related to the Services include only those rights customarily provided to the public as defined in this Agreement. This customary commercial license is provided in accordance with FAR §12.211 (Technical Data) and FAR §12.212 (Computer Software) and, for DoD transactions, DFARS § 252.227-7015 (Technical Data – Commercial Items) and DFARS § 252.227.7202-3 (Rights in Commercial Computer Software or Computer Software Documentation). If the Government has a need for rights not conveyed under these terms, it must negotiate with Infusionsoft to determine if there are acceptable terms for transferring such rights, and a mutually acceptable written addendum specifically conveying such rights must be included in any applicable contract or agreement.