Terms of Service: Invicara End User Subscription Agreement

(effective 1st January, 2019)

BY SIGNING UP AS A USER AND/OR CREATING AN ACCOUNT, SIGNING IN VIA A WEB BROWSER, MOBILE APP OR APPLICATION PROGRAMMING INTERFACE, AND/OR USING ANY SOFTWARE/APPLICATIONS (“SOFTWARE”) PROVIDED TO YOU BY/OR ON BEHALF OF INVICARA AND ITS AFFILITES (“INVICARA”) IN CONNECTION WITH YOUR USE OF THE INVICARA SERVICE (THE “SERVICES”), YOU ACKNOWLEDGE AND AGREE THAT (1) YOU HAVE READ AND UNDERSTOOD THIS END USER SUBSCRIPTION AGREEMENT IN IT ENTIRITY (“EUSA”); (2) YOU ARE BOUND BY ITS TERMS; AND (3) YOU MAY RECEIVE, WITHOUT NOTICE, UPDATED VERSIONS OF THE SOFTWARE. IF YOU DO NOT AGREE TO THE FOREGOING, YOU AGREE THAT YOU DO NOT HAVE A SUBSCRIPTION TO, AND WILL NOT USE, THE SERVICES.

IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY AND ITS AFFILIATES TO THESE TERMS AND CONDITIONS, IN WHICH CASE THE TERMS “YOU” OR “YOUR” SHALL REFER TO SUCH ENTITY AND ITS AFFILIATES. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH THESE TERMS AND CONDITIONS, YOU MUST NOT ACCEPT THIS AGREEMENT AND MAY NOT USE THE SERVICES.

This agreement sets forth the terms and conditions of your use of Invicara Software and Services.

THIS AGREEMENT IS BINDING BETWEEN INVICARA AND YOU. DO NOT USE THE SERVICE UNTIL YOU HAVE CAREFULLY READ THIS AGREEMENT. BY USING THE SERVICES, YOU AGREE TO ALL THE TERMS AND CONDITIONS OF THIS AGREEMENT, INCLUDING THE LIMITATION OF LIABILITY SET FORTH HEREIN.

You may not access the Services if You are an Invicara competitor, except with prior written consent from Invicara. In addition, You may not access the Services for purposes of monitoring their availability, performance or functionality, or for any other benchmarking or competitive purposes.

1. DEFINITIONS

“Affiliate” means any entity that 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.

“Agreement” means this End User Subscription Agreement.

“Documentation” means Invicara online user guides, documentation, and help and training materials (including Videos) describing the Services and their use.

“Subscription Form” means an ordering document specifying the Services to be provided here-under that is entered into between You and Invicara.

“Contract” means an agreement between You and Invicara specifying services for consulting and implementing solutions for information management.

“Services” means Services that You or Your Affiliate purchase under a Subscription Form, or Services provided under the “Contract”.

“Your Data” means electronic data and information submitted by or for You into the Services.
“User” means an individual who is authorized by You to use a Service, for whom You have ordered the Service, and to whom You (or We at Your request) have supplied a user identification and password.

“We,” “Us” or “Our” means Invicara described in Section 12.

“You” or “Your” means the company or other legal entity for which you are accepting this Agreement, and Affiliates of that company or entity.

2. OUR RESPONSIBILITIES

2.1. Provision of Services: We will (a) make the Services available to You pursuant to this Agreement and the applicable Subscription Forms and/or Contract, (b) provide Our standard support for the Services to You as specified in the Subscription Agreement and/or i Contract, and/or upgraded support if purchased, and (c) use commercially reasonable efforts to make the online Services available 24 hours a day, 7 days a week, except for: (i) planned downtime (of which We shall give at least 24 hours electronic notice and which We shall schedule to the extent practicable during the weekend hours between 6:00 p.m. Friday and 2:00 p.m. Sunday United States Pacific time), and (ii) any unavailability caused by circumstances beyond Our reasonable control, including, for example, an act of God, act of government, flood, fire, earthquake, civil unrest, act of terror, strike or other labor problem (other than one involving Invicara employees), Internet service provider failure or delay, or denial of service attack.

2.2. Protection of Your Data: Invicara will maintain administrative, physical, and technical safeguards for protection of the security, confidentiality and integrity of Your Data, as described in the Invicara ‘Privacy Policy’.

2.3 Beta Services: From time to time, Invicara may invite You to try Beta Services at no charge. The agreement for the supply of these Beta Services is described in a separate document, ‘Beta Agreement’.

3. USE OF SERVICES AND CONTENT

3.1 Subscriptions. Unless otherwise provided in the applicable Subscription Form and/or Contract, (a) Services are purchased as subscriptions, (b) subscriptions may be added during a subscription term at the same pricing as the underlying subscription pricing, prorated for the portion of that subscription term remaining at the time the subscriptions are added, and (c) any added subscriptions will terminate on the same date as the underlying subscriptions.

3.2 Usage Limits. Services are subject to usage limits, including, for example, the quantities specified in the Subscription Forms and/or Cntract. If You exceed a contractual usage limit, Invicara may work with You to seek to reduce Your usage so that it conforms to that limit. If, notwithstanding Our efforts, You are unable or unwilling to abide by a contractual usage limit, You will update your Subscription for the additional quantities of the applicable Services promptly, and/or pay any invoice for excess usage in accordance with Section 4.2 (Invoicing and Payment).

3.3 Your Responsibilities. You will (a) be responsible for Your compliance with this Agreement, (b) be responsible for the accuracy, quality and legality of Your Data and the means by which You acquired Your Data, (c) use commercially reasonable efforts to prevent unauthorized access to or use of Services, and notify Invicara promptly of any such unauthorized access or use, and (d) use Services only in accordance with the Documentation and applicable laws and government regulations.

3.4 Usage Restrictions. You will not (a) make any Service available to, or use any Service for the benefit of, anyone other than You or Your Users, (b) sell, resell, license, sublicense, distribute, rent or lease any Service, or include any Service in a service bureau or outsourcing offering, (c) use a Service 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, (d) use a Service to store or transmit Malicious Code, (e) interfere with or disrupt the integrity or performance of any Service or third-party data contained therein, (f) attempt to gain unauthorized access to any Service or its related systems or networks, (g) permit direct or indirect access to or use of any Service in a way that circumvents a contractual usage limit, (h) copy a Service or any part, feature, function or user interface thereof, (i) copy content within the Service except as permitted herein or in an Subscription Form or the Documentation or the Contract, (j) access any Service in order to build a competitive product or service, or (k) reverse engineer any Service (to the extent such restriction is permitted by law).

3.5. User Restrictions: Unless otherwise specified, (a) a User’s profile and password may not be shared with any other individual, and (b) a User’s identification may be reassigned to a new individual replacing one who no longer requires ongoing use of the Service.
3.6. Removal of content from the Service. If We are required by a licensor to remove content, or receive information that content provided to You may violate applicable law or third-party rights, We may so notify You and in such event You will promptly remove such content from Your systems. If You do not take required action in accordance with the above, We may disable the applicable content from the Service and until the potential violation is resolved.

4. FEES AND PAYMENT FOR PURCHASED SERVICES

4.1. Fees: You will pay all fees specified in Subscription Forms and/or Contract. Except as otherwise specified herein or in an Subscription Form and/or Contract, (i) fees are based on Services purchased and not actual usage, (ii) payment obligations are non-cancelable and fees paid are non-refundable, and (iii) quantities purchased cannot be decreased during the relevant subscription term.

4.2. Invoicing and Payment: You will provide Invicara with valid and updated credit card information, or with a valid purchase order or alternative document reasonably acceptable to Invicara. If You provide credit card information to Invicara, You authorize Invicara to charge such credit card for all Purchased Services listed in the Subscription Form and/or Contract for the initial subscription term and any renewal subscription term(s) as set forth in Section 10.2 (Term of Subscriptions). Such charges shall be made in advance, either monthly, annually or in accordance with any different billing frequency stated in the applicable Subscription Form and/or Contract. If the Subscription Form and/or Contract specifies that payment will be by a method other than a credit card, Invicara will invoice You in advance and otherwise in accordance with the relevant Subscription Form and/or Contract. Unless otherwise stated in the Subscription Form and/or Contract, invoiced charges are due net 30 days from the invoice date. You are responsible for providing complete and accurate billing and contact information to Invicara and notifying Invicara of any changes to such information.

4.3. Overdue Charges: If any invoiced amount is not received by Invicara by the due date, then without limiting Our rights or remedies, (a) those charges may accrue late interest at the rate of 1.5% of the outstanding balance per month, or the maximum rate permitted by law, whichever is lower, and/or (b) We may condition future subscription renewals and Subscription Forms on payment terms shorter than those specified in Section 4.2 (Invoicing and Payment).

4.4. Suspension of Service and Acceleration: If any amount owing by You under this or any other agreement for Invicara services is 30 or more days overdue (or 10 or more days overdue in the case of amounts You have authorized Invicara to charge to Your credit card), Invicara may, without limiting our other rights and remedies, accelerate Your unpaid fee obligations under such agreements so that all such obligations become immediately due and payable, and suspend Our services to You until such amounts are paid in full. We will give You at least 10 days’ prior notice that Your account is overdue before suspending services to You.

4.5. Payment Disputes: We will not exercise Our rights under Section 4.3 (Overdue Charges) or 4.4 (Suspension of Service and Acceleration) above if You are disputing the applicable charges reasonably and in good faith and are cooperating diligently to resolve the dispute.

4.6. Taxes: (a) Unless otherwise provede in the Subscription Form and/or Contract our fees do not include any taxes, duties, levies or similar governmental assessments of any nature, including, for example, value-added, sales, use or withholding taxes, assessable by any jurisdiction whatsoever (collectively, “Taxes”). (b) You are responsible for paying all Taxes associated with Your purchases hereunder. (c) If We have the legal obligation to pay or collect Taxes for which You are responsible under this Section 4.6, We will invoice You and You will pay that amount unless You provide Invicara with a valid tax exemption certificate authorized by the appropriate taxing authority. (d) For clarity, We are solely responsible for taxes assessable against Invicara based on Our income, property and employees.

4.7. Future Functionality: You agree that Your purchases are not contingent on the delivery of any future functionality or features, or dependent on any oral or written public comments made by Invicara regarding future functionality or features.

5. PROPRIETARY RIGHTS AND LICENSES

5.1. Reservation of Rights: Subject to the limited rights expressly granted hereunder, We and Our licensors reserve all of Our/their right, title and interest in and to the Services, including all of Our/their related intellectual property rights. No rights are granted to You hereunder other than as expressly set forth herein.

5.2. License by Invicara to Use Services content: We grant to You a worldwide, limited-term license, under Our applicable intellectual property rights and licenses, to use content acquired by You pursuant to Subscription Forms, subject to those Subscription Forms, this Agreement and the Documentation.

5.3. License by You to Host Your Data and Applications: You grant Invicara and Our Affiliates a worldwide, limited-term license to host, copy, transmit and display Your Data, and program code created by or for You using a Service, as necessary for Invicara to provide the Services in accordance with this Agreement. Subject to the limited licenses granted herein, We acquire no right, title or interest from You or Your licensors under this Agreement in or to Your Data or program code.

5.4. License by You to Use Feedback: You grant to Invicara and Our Affiliates a worldwide, perpetual, irrevocable, royalty-free license to use and incorporate into the Services any suggestion, enhancement request, recommendation, correction or other feedback provided by You or Users relating to the operation of the Services.

6. CONFIDENTIALITY

6.1. Definition of Confidential Information: “Confidential Information” means all information disclosed by a party (“Disclosing Party”) to the other party (“Receiving Party”), whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure. Your Confidential Information includes Your Data; Our Confidential Information includes the Services and related content; and Confidential Information of each party includes the terms and conditions of this Agreement and all Subscription Forms (including pricing), as well as business and marketing plans, technology and technical information, product plans and designs, and business processes disclosed by such party. However, Confidential Information does not include any information that (i) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party, (ii) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party, (iii) is received from a third party without breach of any obligation owed to the Disclosing Party, or (iv) was independently developed by the Receiving Party.

6.2. Protection of Confidential Information: The Receiving Party will use the same degree of care that it uses to protect the confidentiality of its own confidential information of like kind (but not less than reasonable care) (i) not to use any Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement, and (ii) except as otherwise authorized by the Disclosing Party in writing, to limit access to Confidential Information of the Disclosing Party to those of its and its Affiliates’ employees and contractors who need that access for purposes consistent with this Agreement and who have signed confidentiality agreements with the Receiving Party containing protections no less stringent than those herein. Neither party will disclose the terms of this Agreement or any Subscription Form to any third party other than its Affiliates, legal counsel and accountants without the other party’s prior written consent, provided that a party that makes any such disclosure to its Affiliate, legal counsel or accountants will remain responsible for such Affiliate’s, legal counsel’s or accountant’s compliance with this Section 6.2.

6.3. Compelled Disclosure: The Receiving Party may disclose Confidential Information of the Disclosing Party to the extent compelled by law to do so, provided the Receiving Party gives the Disclosing Party prior notice of the compelled disclosure (to the extent legally permitted) and reasonable assistance, at the Disclosing Party’s cost, if the Disclosing Party wishes to contest the disclosure. If the Receiving Party is compelled by law to disclose the Disclosing Party’s Confidential Information as part of a civil proceeding to which the Disclosing Party is a party, and the Disclosing Party is not contesting the disclosure, the Disclosing Party will reimburse the Receiving Party for its reasonable cost of compiling and providing secure access to that Confidential Information.

7. REPRESENTATIONS, WARRANTIES, EXCLUSIVE REMEDIES AND DISCLAIMERS

7.1. Representations: Each party represents that it has validly entered into this Agreement and has the legal power to do so.

7.2. Our Warranties: We warrant that (a) this Agreement, the Subscription Forms and the Documentation accurately describe the applicable administrative, physical, and technical safeguards for protection of the security, confidentiality and integrity of Your Data, (b) We will not materially decrease the overall security of the Purchased Services during a subscription term, (c) the Purchased Services will perform materially in accordance with the applicable Documentation, and (d) the Purchased Services will not introduce Malicious Code into Your systems. For any breach of an above warranty, Your exclusive remedies are those described in Sections 10.3 (Termination) and 10.4 (Refund or Payment upon Termination).

7.3. Disclaimers: EXCEPT AS EXPRESSLY PROVIDED HEREIN, NEITHER PARTY MAKES ANY WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND EACH PARTY SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. CONTENT AND BETA SERVICES ARE PROVIDED “AS IS,” EXCLUSIVE OF ANY WARRANTY WHATSOEVER. EACH PARTY DISCLAIMS ALL LIABILITY AND INDEMNIFICATION OBLIGATIONS FOR ANY HARM OR DAMAGES CAUSED BY ANY THIRD-PARTY HOSTING PROVIDERS.

8. MUTUAL INDEMNIFICATION

8.1. Indemnification by Invicara: We will defend You against any claim, demand, suit or proceeding made or brought against You by a third party alleging that the use of a Purchased Service in accordance with this Agreement infringes or misappropriates such third party’s intellectual property rights (a “Claim Against You”), and will indemnify You from any damages, attorney fees and costs finally awarded against You as a result of, or for amounts paid by You under a court-approved settlement of, a Claim Against You, provided You (a) promptly give Invicara written notice of the Claim Against You, (b) give Invicara sole control of the defense and settlement of the Claim Against You (except that We may not settle any Claim Against You unless it unconditionally releases You of all liability), and (c) give Invicara all reasonable assistance, at Our expense. If We receive information about an infringement or misappropriation claim related to a Service, We may in Our discretion and at no cost to You (i) modify the Service so that it no longer infringes or misappropriates, without breaching Our warranties under Section 7.2 (Our Warranties), (ii) obtain a license for Your continued use of that Service in accordance with this Agreement, or (iii) terminate Your subscriptions for that Service upon 30 days’ written notice and refund You any prepaid fees covering the remainder of the term of the terminated subscriptions. The above defense and indemnification obligations do not apply to the extent a Claim Against You arises from Content, or Your breach of this Agreement.

8.2. Indemnification by You: You will defend Invicara against any claim, demand, suit or proceeding made or brought against Invicara by a third party alleging that Your Data, or Your use of any Service in breach of this Agreement, infringes or misappropriates such third party’s intellectual property rights or violates applicable law (a “Claim Against Invicara”), and will indemnify Invicara from any damages, attorney fees and costs finally awarded against Invicara as a result of, or for any amounts paid by Invicara under a court-approved settlement of, a Claim Against Invicara, provided We (a) promptly give You written notice of the Claim Against Invicara, (b) give You sole control of the defense and settlement of the Claim Against Invicara (except that You may not settle any Claim Against Invicara unless it unconditionally releases Invicara of all liability), and (c) give You all reasonable assistance, at Your expense.

8.3. Exclusive Remedy: This Section 8 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.

9. LIMITATION OF LIABILITY

9.1. Limitation of Liability: YOU RECOGNIZE THAT THE PRICE PAID FOR THE RIGHTS GRANTED TO YOU HEREIN MAY BE SUBSTANTIALLY DISPROPORTIONATE TO THE VALUE OF THE PRODUCTS TO BE DESIGNED, STORED, MANAGED OR DISTRIBUTED IN CONJUNCTION WITH THE SOFTWARE AND SERVICE. FOR THE EXPRESS PURPOSE OF LIMITING THE LIABILITY OF INVICARA AND ITS LICENSORS TO AN EXTENT WHICH IS REASONABLY PROPORTIONATE TO THE COMMERCIAL VALUE OF THIS TRANSACTION, YOU AGREE TO THE FOLLOWING LIMITATIONS ON INVICARA’S AND ITS LICENSORS’ LIABILITY. TO THE EXTENT ALLOWED BY LAW, INVICARA’S LIABILITY, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, ARISING OUT OF OR IN CONNECTION WITH THE SERVICE, SOFTWARE OR DOCUMENTATION FURNISHED HEREUNDER SHALL NOT EXCEED THE GREATER OF ONE HUNDRED DOLLARS ($US100) OR THE AMOUNT YOU HAVE PAID INVICARA IN THE PAST 12 MONTHS. HOWEVER, THE ABOVE LIMITATIONS WILL NOT LIMIT CUSTOMER’S PAYMENT OBLIGATIONS UNDER SECTION 4 (FEES AND PAYMENT FOR PURCHASED SERVICES).

9.2. Exclusion of Consequential and Related Damages: IN NO EVENT WILL EITHER PARTY HAVE ANY LIABILITY TO THE OTHER PARTY FOR ANY LOST PROFITS, REVENUES OR INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, COVER OR PUNITIVE DAMAGES, WHETHER AN ACTION IS IN CONTRACT OR TORT AND REGARDLESS OF THE THEORY OF LIABILITY, EVEN IF A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE FOREGOING DISCLAIMER WILL NOT APPLY TO THE EXTENT PROHIBITED BY LAW.

10. TERM AND TERMINATION

10.1. Term of Agreement: This Agreement commences on the date You first accept it and continues until all subscriptions hereunder have expired or have been terminated.

10.2. Term of Purchased Subscriptions: The term of each subscription shall be as specified in the applicable Subscription Form. Except as otherwise specified in an Subscription Form, subscriptions will automatically renew for additional periods equal to the expiring subscription term or one year (whichever is shorter), unless either party gives the other notice of non-renewal at least 30 days before the end of the relevant subscription term. The per-unit pricing during any automatic renewal term will be the same as that during the immediately prior term unless Invicara have given You written notice of a pricing increase at least 60 days before the end of that prior term, in which case the pricing increase will be effective upon renewal and thereafter.

10.3. Termination: A party may terminate this Agreement for cause (i) upon 30 days written notice to the other party of a material breach if such breach remains uncured at the expiration of such period, or (ii) if the other party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors.

10.4. Refund or Payment upon Termination: If this Agreement is terminated by You in accordance with Section 10.3 (Termination), We will refund You any prepaid fees covering the remainder of the term of all Subscription Forms after the effective date of termination. If this Agreement is terminated by Invicara in accordance with Section 10.3, You will pay any unpaid fees covering the remainder of the term of all Subscription Forms. In no event will termination relieve You of Your obligation to pay any fees payable to Invicara for the period prior to the effective date of termination.

10.5. Your Data Deletion: Invicara will store Your data up to a 180 calendar day period after the cessation of paid Subscriptions Services on an Account for the purposes of allowing You to reactivate that Account without loss of Data. After the 180-day period, We will have no obligation to maintain or provide Your Data, and will thereafter delete or destroy all copies of Your Data in Our systems or otherwise in Our possession or control as provided in the Documentation, unless legally prohibited.

10.6. Surviving Provisions: The Sections titled “Fees and Payment for Purchased Services,” “Proprietary Rights and Licenses,” “Confidentiality,” “Disclaimers,” “Mutual Indemnification,” “Limitation of Liability,” “Refund or Payment upon Termination,” “Your data Deletion,” “Governing Law and Contracting Party,” and “General Provisions” will survive any termination or expiration if this Agreement.

11. GENERAL PROVISIONS

11.1. Assignment: Neither party may assign any of its rights or obligations hereunder, whether by operation of law or otherwise, without the other party’s prior written consent (not to be unreasonably withheld); provided, however, either party may assign this Agreement in its entirety (including all Subscription Forms), without the other party’s consent to its Affiliate or in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets. Notwithstanding the foregoing, if a party is acquired by, sells substantially all of its assets to, or undergoes a change of control in favor of, a direct competitor of the other party, then such other party may terminate this Agreement upon written notice. In the event of such a termination, We will refund to You any prepaid fees covering the remainder of the term of all subscriptions. Subject to the foregoing, this Agreement will bind and inure to the benefit of the parties, their respective successors and permitted assigns.

11.2. Relationship of the Parties: The parties are independent contractors. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between the parties.

11.3. Force Majeure: Neither party shall be liable to the other for any delay or failure in performing its obligations under the Services to the extent that such delay or failure is caused by an event or circumstance that is beyond the reasonable control of that party, without such party’s fault or negligence, and which by its nature could not have been foreseen by such party (“Force Majeure Event”). Force Majeure Events include, but are not limited to, acts of God or the public enemy, government restrictions, floods, fire, earthquakes, explosion, epidemic, war, invasion, terrorist acts, riots, cyber-attacks, strike, or embargoes. Invicara’s economic hardship or changes in market conditions are not considered Force Majeure Events. Invicara shall use all diligent efforts to end the failure or delay of its performance, ensure that the effects of any Force Majeure Event are minimized and resume performance under the Services. If a Force Majeure Event prevents Invicara from performance for a continuous period of more than fifteen (15) business days, You may terminate these Services immediately by giving written notice to Invicara.

12.Governing Law and Contracting Party

12.1. The Governing Law and Contracting Party is dependent on the Country that You are residing in. In all cases, the parties expressly exclude the provisions of the United Nations Convention on Contracts for the International Sale of Goods.

12.2 If You are a resident of United States of America(USA), Canada or Brazil, the following sections apply.

12.2.1 Governing Law: Surviving Provisions This Agreement shall be governed by, and construed in accordance with, the substantive laws of the state of Michigan (U.S.A.) without regard to its conflict of laws principles. You hereby (i) submit to the exclusive jurisdiction of any state or federal court sitting in Michigan for the purpose of any action arising out of, or relating to, this Agreement or Invicara; and (ii) irrevocably waive, and agree not to assert by way of motion, defense or otherwise, in any such action, any claim that you are not subject personally to the jurisdiction of such courts. To the extent that any provision of this Agreement is found by a court of competent jurisdiction to be void or unenforceable, such provision shall be without effect and the remainder of the Agreement shall be enforced to the full extent of the law.

12.2.2 Contracting Party: You are contracting with

Invicara Inc
c/o 2000 Town Center
Suite 1800
Southfield
MI 48075
USA

Notices should be attention to: CEO

12.3 You are resident of any other Country not listed in Section 12. Above.

12.3.1 Governing Law: Surviving Provisions This Agreement shall be governed by, and construed in accordance with, the substantive laws of Ireland without regard to its conflict of laws principles. You hereby (i) submit to the exclusive jurisdiction of the courts sitting in Dublin for the purpose of any action arising out of, or relating to, this Agreement or Invicara; and (ii) irrevocably waive, and agree not to assert by way of motion, defense or otherwise, in any such action, any claim that you are not subject personally to the jurisdiction of such courts. To the extent that any provision of this Agreement is found by a court of competent jurisdiction to be void or unenforceable, such provision shall be without effect and the remainder of the Agreement shall be enforced to the full extent of the law.

12.3.2 Contracting Party: You are contracting with

Invicara Limited
22 Northumberland Road
Ballsbridge
Dublin 4
Ireland

Notices should be attention to: CEO