PRACTITIONER TERMS OF USE AGREEMENT
PLEASE READ THIS AGREEMENT CAREFULLY BEFORE DOWNLOADING, INSTALLING, OR OTHERWISE USING ANY CONTENT (AS DEFINED BELOW) FROM THIS WEB SITE. BY CLICKING ON THE "ACCEPT" BUTTON, OR OTHERWISE DOWNLOADING OR ACCESSING THE CONTENT, YOU AGREE TO BE BOUND BY THE TERMS AND CONDITIONS CONTAINED HEREIN. YOU SHOULD PRINT OUT A COPY OF THIS AGREEMENT FOR FUTURE REFERENCE. IF YOU DO NOT AGREE TO BE BOUND BY THE TERMS AND CONDITIONS OF THIS AGREEMENT, YOU SHOULD CLICK THE “DO NOT ACCEPT” OR “DISAGREE” BUTTON TO TERMINATE THE DOWNLOAD PROCESS. YOUR BEST FORM (AS DEFINED BELOW) WILL LICENSE THE CONTENT TO YOU ONLY IF YOU AGREE TO BE BOUND BY THE TERMS AND CONDITIONS CONTAINED HEREIN. YOUR BEST FORM MAY MODIFY THIS AGREEMENT AT ANY TIME, AND SUCH MODIFICATIONS SHALL BE EFFECTIVE IMMEDIATELY UPON NOTICE, WHICH MAY BE ACCOMPLISHED BY POSTING THE MODIFIED AGREEMENT ON THE SITE OR VIA EMAIL. YOUR USE OF THE SERVICES (AS DEFINED BELOW) FOLLOWING SUCH NOTICE SHALL BE DEEMED YOUR ACCEPTANCE OF SUCH CHANGES. YOU AGREE TO REVIEW THE AGREEMENT PERIODICALLY TO BE AWARE OF SUCH MODIFICATIONS AND YOUR CONTINUED ACCESS OR USE OF THE SERVICES SHALL BE DEEMED YOUR CONCLUSIVE ACCEPTANCE OF THE MODIFIED AGREEMENT. IF WE REQUEST, YOU IRREVOCABLY AGREE TO SIGN A NON-ELECTRONIC VERSION OF THIS AGREEMENT.
These Terms of Use (the “AGREEMENT”) between Your Best Form, LLC, a Colorado limited liability company ("Your Best Form," "us" or "we") and a practitioner who has completed a Subscription Application that has been accepted by Your Best Form ("Subscriber," or "you"). The terms and conditions of this Agreement apply to the Content and Services provided by Your Best Form.
Your Best Form and Subscriber agree as follows:
I. DEFINITIONS
The following terms used in this Agreement have the meanings set forth below:
"Content" means all materials downloadable from this web site, including, but not limited to all literary works, text, pictorial and graphical works, photographs, video and audio clips, motion pictures and other audio visual works, video games, music, soundtracks, button icons, streaming data, animation, images, compilations or any other software files (in object code format).
"Invited Guest" means the patients, clients or other parties being treated by you and paying you for professional services related to the state license or other certification submitted on your Subscription Application, and to whom you provide a User ID to access Your Best Form’s web site.
"Services" means all services provided to Subscriber by Your Best Form set forth on the Your Best Form website including but not limited to, access to the website and the Content.
"Subscriber" means an individual practitioner, or an entity controlled by a practitioner, which completes a Subscription Application that has been accepted by Your Best Form. Subscribers agree to enter into this Agreement, subscribe to the Services and refer Invited Guests to use the Content. If the Subscriber is an entity with more than one practitioner, each practitioner responsible for providing services or care to Invited Guests must separately become a Subscriber. Where all practitioners within an entity are not Subscribers, Invited Guests are strictly limited to patients, clients or other parties being treated directly by a Subscriber.
"Subscription Application" means the application accessible from www.yourbestform.com
II. LICENSE
1. LIMITED LICENSE. Subject to the terms and conditions of this Agreement, Your Best Form hereby grants you a limited, non-transferable, non-assignable, non-sublicensable, worldwide, nonexclusive right to use the Services. The rights granted hereunder constitute a license, not a sale, of the Content.
2. RESTRICTIONS ON USE. Subscriber shall not permit other practitioners to access the Services. Subscriber may not, without Your Best Form’s prior written consent, increase the number of Invited Guests using the Services beyond that specified in the Subscription Application. If at any time during the Term, Subscriber desires to increase the number of Invited Guests beyond the number specified in the Subscription Application, Your Best Form must first consent in writing to such increased use and Subscriber must pay additional fees to Your Best Form. Subscriber acknowledges that the website, the Services and the Content constitute valuable intellectual property of Your Best Form and its suppliers. Subscriber shall not, nor shall it permit, assist or encourage any third party to: (a) modify, adapt, alter, translate, or create derivative works from the Content; (b) download or print Content onto any media, unless specifically permitted by the web site; (c) sublicense, distribute, sell, use for service bureau use, lease, rent, loan, or make available for use or otherwise transfer the Content to any third party; (d) circumvent any encryption or other security tools used in the Content; (e) reverse engineer, decompile, or disassemble the source code or software elements of the Content; or (f) otherwise exercise any rights in or to the Content except as expressly permitted by this Agreement. Materials posted and/or uploaded to the various forums may be subject to size and usage limitations. You are responsible for adhering to such limitations.
3. ACCESS BY INVITED GUESTS. Subscriber may issue User IDs to Invited Guests and that Subscriber’s use of the Content may include use and/or access by Invited Guests of Subscriber, as well as employees and contractors of Subscriber authorized by Subscriber. All Invited Guests of Subscriber must accept an Invited Guest Terms of Use Agreement. Subscriber acknowledges its responsibility to ensure that the number of Invited Guests shall not exceed the number permitted by the Subscription Application. Subscriber acknowledges that each Invited Guest will have a maximum of one hundred sixty (160) days from the date Subscriber last updated the Invited Guest's record to access Content. Subscriber acknowledges that it is responsible for all acts and omissions of third parties to whom Subscriber grants access to the Content as if they were Subscriber’s own acts or omissions, and Subscriber shall indemnify Your Best Form against any damages that it incurs resulting therefrom.
4. COMMUNICATION WITH INVITED GUESTS. Subscriber may communicate with Invited Guests via the website, provided that Subscriber shall not:
(a) transmit any message, information, data, text, software or image, or other content that is unlawful, harmful, threatening, abusive, harassing, tortuous, defamatory, vulgar, obscene, libelous, or otherwise objectionable which may invade another's right of privacy or publicity;
(b) post or transmit any material that contains a virus or corrupted data;
(c) use Your Best Form's communications features in a manner that adversely affects the availability of its resources to other users, for example by flooding continuous postings of repetitive text;
(d) post or transmit any unsolicited advertising, promotional materials, "junk mail", "spam," "chain letters," "pyramid schemes" or any other form of solicitation or any non-resume information such as opinions or notices, commercial or otherwise; or
(e) upload or transmit any material that infringes any patent, trademark, trade secret, copyright or other proprietary rights of any party.
5. SUITABILITY OF CONTENT. It is Subscriber's sole responsibility to determine the suitability of the Content accessed by each of Subscriber's Invited Guests.
III. PAYMENT.
1. FEES. In consideration for the license granted under Article II, Section 1 of this Agreement, Subscriber shall pay all fees to Your Best Form in accordance with the payment schedule and payment terms set forth in the Subscription Application. If at any time during the Term, Subscriber desires to increase the number of User IDs for Invited Guests allocated to Subscriber beyond the number specified in the Subscription Application, Your Best Form shall first consent in writing to such increased use and Subscriber shall pay additional fees to Your Best Form as mutually agreed by the parties. Fees may be increased by Your Best Form from time to time upon notice to Subscriber. To review the billing terms of your account, you may email billing@yourbestform.com.
2. PAYMENT PROCESSING. To process payments, you will be asked by Your Best Form or an authorized third party to supply certain information, including without limitation, your full name, address, telephone number and credit card information. You agree to provide Your Best Form or such third party with such information as well as any other mandatory information that is accurate, complete and current. You shall be responsible for all charges incurred through your account.
3. SUBSCRIBER'S COSTS. Subscriber is responsible for all charges associated with connecting to the Your Best Form website, including without limitation, all internet and/or telephone access lines and internet and/or telephone and computer equipment necessary to access the licensed material.
4. PAYMENT TERMS. All fees are non-refundable except as otherwise provided by the Agreement. All payments must be made in U.S. Dollars. Any fees not paid when due shall accrue interest at 18% per annum or the maximum rate permitted by applicable law, whichever is less, from 30 days after the due date until paid. Subscriber shall be responsible for the cost of any collection activity, including reasonable attorneys’ fees. Your Best Form shall have the right to discontinue Services if payment is not made timely.
5. TAXES. Fees exclude all applicable sales, use, and other taxes and all applicable export and import fees, customs duties and similar charges. Subscriber shall be responsible for payment of all such taxes (other than taxes based on Your Best Form’s net income), fees, duties, and charges, and any related penalties and interest, arising from the payment of the fees or the delivery of Services or license of Content to Subscriber. Subscriber shall defend, indemnify, and hold harmless Your Best Form from all claims and liability arising from Subscriber’s failure to report or pay any such taxes, fees, duties or charges.
IV. DISCLAIMER OF WARRANTY; INDEMNIFICATION; INSURANCE; LIMITATION OF LIABILITY.
1. Disclaimer of Warranty. YOU EXPRESSLY AGREE THAT YOUR USE OF THE CONTENT IS AT YOUR
DISCRETION AND AT YOUR OWN RISK. THE CONTENT IS PROVIDED “AS IS” WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, OR NON-INFRINGEMENT. YOUR BEST FORM MAKES NO REPRESENTATIONS OR WARRANTIES THAT THE CONTENT WILL BE VIRUS-FREE, UNINTERRUPTED, TIMELY, SECURE, OR ERROR FREE; NOR DOES YOUR BEST FORM MAKE ANYREPRESENTATIONS OR WARRANTIES AS TO THE QUALITY, TRUTH, ACCURACY OR COMPLETENESS OF THE CONTENT. YOUR BEST FORM MAKES NO REPRESENTATIONS ABOUT THE SUITABILITY OF THE CONTENT FOR ANY PARTICULAR USER, OR RESULTS TO BE OBTAINED FROM USING THE SITE OR THE CONTENT. SUBSCRIBER ACKNOWLEDGES THAT IT HAS RELIED ON NO SUCH WARRANTIES AND THAT NO OTHER WARRANTIES ARE MADE HEREIN BY YOUR BEST FORM OR ANY OF YOUR BEST FORM’S SUPPLIERS. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES, SO SOME OF THE ABOVE EXCLUSIONS MAY NOT APPLY TO YOU.
2. INDEMNIFICATION. Subscriber will defend, indemnify and hold harmless Your Best Form, its officers, directors, employees and agents from any and all claims, losses, liabilities, damages, expenses and costs (including reasonable attorneys’ fees and court costs) that result from a breach or alleged breach of any obligation or representation or warranty of Subscriber contained in this Agreement. Subscriber shall, at its own expense, indemnify, defend and hold Your Best Form harmless from and against any and all claims, costs, damages, liabilities, fees and expenses (including reasonable attorneys’ fees) arising from any third-party claim, action, suit or proceeding to the extent such claim, action, suit or proceeding arises out of or relates to use of the Services by Subscriber, its employees or third party contractors and Subscriber's Invited Guests.
3. PROCEDURES. The obligation of the indemnifying party to indemnify the indemnified party hereunder is predicated upon the indemnified party: (i) providing the indemnifying party with prompt written notice of any such claim; (ii) allowing the indemnifying party to control the defense and any settlement of any such claim, provided that the indemnified party may, at its own expense, participate in such defense and settlement negotiations with counsel of its own choosing; and (iii) reasonably cooperating with the indemnifying party, at the indemnifying party’s request and expense, in the defense and settlement of such claim.
4. INSURANCE. Subscriber, at its sole cost and expense, shall maintain appropriate insurance with the following limits: (1) malpractice insurance if required of Subscriber by law, in at least the amount required by the laws of Subscriber's state; commercial general liability bodily injury/property damage limits of $1,000,000 per occurrence and $2,000,000 general aggregate operations, including broad form coverage and contractual liability, (2) worker's compensation insurance including employer's liability insurance, where permitted, the greater of that required by the laws of Subscriber's state or the following: (i) bodily injury by accident with a $1,000,000 limit per accident, (ii) bodily injury by disease with a $1,000,000 policy limit, and (iii) bodily injury by disease with a $1,000,000 limit per employee. A Certificate of Insurance indicating such coverage shall be delivered to Your Best Form upon request.
5. LIMITATION OF LIABILITY. IN NO EVENT SHALL YOUR BEST FORM (OR ITS LICENSORS) BE LIABLE TO YOU, OR ANY OTHER THIRD PARTY FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY, OR PUNITIVE DAMAGES, INCLUDING LOSS OF PROFITS OR GOODWILL, FOR ANY MATTER ARISING OUT OF OR RELATING TO THIS AGREEMENT, WHETHER SUCH LIABILITY IS ASSERTED ON THE BASIS OF CONTRACT, TORT OR OTHERWISE, EVEN IF YOUR BEST FORM HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. YOUR SOLE REMEDY FOR DISSATISFACTION WITH THE SERVICES IS TO STOP USING THE SERVICES.
YOUR BEST FORM’S AND ITS SUPPLIERS' TOTAL CUMULATIVE LIABILITY IN CONNECTION WITH THIS AGREEMENT AND THE SERVICES PROVIDED BY YOUR BEST FORM TO SUBSCRIBER HEREUNDER, WHETHER IN CONTRACT OR TORT OR OTHERWISE, SHALL NOT EXCEED THE SUBSCRIPTION AMOUNT FOR THE CURRENT TERM SET FORTH IN THE SUBSCRIPTION APPLICATION. SUBSCRIBER ACKNOWLEDGES THAT THIS ARRANGEMENT REFLECTS THE ALLOCATION OF RISK SET FORTH IN THIS AGREEMENT AND THAT YOUR BEST FORM WOULD NOT ENTER INTO THIS AGREEMENT WITHOUT THESE LIMITATIONS ON ITS LIABILITY. SUBSCRIBER ACKNOWLEDGES THAT THESE LIMITATIONS SHALL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY.
YOUR BEST FORM SHALL NOT BE LIABLE TO YOU OR ANY THIRD PARTY UNDER ANY THEORY FOR ANY LOSS OR DAMAGE TO YOUR COMPUTER SYSTEM, HANDHELD DEVICE OR ANY OTHER STORAGE/PLAYBACK DEVICE USED BY YOU TO STORE OR DISPLAY THE CONTENT. YOU SHALL BE SOLELY RESPONSIBLE FOR ANY SUCH LOSS OR DAMAGE. YOUR BEST FORM SHALL NOT BE LIABLE UNDER ANY THEORY FOR ANY LOSS OR DAMAGE TO ANY DATA ON YOUR PERSONAL COMPUTER, HANDHELD DEVICE OR ANY OTHER STORAGE/PLAYBACK DEVICE USED BY YOU TO STORE OR DISPLAY THE CONTENT WHICH DAMAGE OR LOSS RESULTS FROM THE DOWNLOAD OF THE CONTENT. YOU ARE SOLELY RESPONSIBLE FOR ANY SUCH LOSS OR DAMAGE.
YOUR BEST FORM EXPRESSLY DISCLAIMS ANY AND ALL LIABILITY FOR ANY INJURY YOUR INVITED GUESTS SUFFER AS A RESULT OF USING THE CONTENT. BY ACCEPTING THE TERMS OF THIS AGREEMENT, YOU EXPRESSLY AGREE TO ASSUME ALL RISKS ASSOCIATED WITH AND WHICH MAY ARISE FROM YOUR INVITED GUESTS' USE OF THE CONTENT. NO ASSURANCE CAN BE GIVEN THAT THE CONTENT WILL INCLUDE THE MOST RECENT FINDINGS OR DEVELOPMENTS WITH RESPECT TO THE PARTICULAR MATERIAL.
V. TERM AND TERMINATION.
1. Term. This Agreement shall become effective as of the Effective Date for the term set forth in the Subscription Application. The term shall renew automatically and your credit card will be automatically charged on an annual, quarterly or monthly basis, depending upon the billing terms for your account, for as long as you remain a Subscriber. Your Best Form will not be obligated to send you any renewal or advance billing notices or confirmations that your credit card has been charged.
2. Termination. Your right to use the Services is conditional upon our receipt of payment. If payment cannot be charged to your credit card or if a charge is refunded for any reason, including chargeback, we reserve the right to immediately and without notice, either suspend or terminate your access and account, thereby terminating this Agreement and all Your Best Form obligations hereunder. You are required to pay any amounts still owed to us at the time your account is suspended or terminated.
3. Effects of Termination. Upon termination of this Agreement for any reason: (i) any amounts owed to Your Best Form under this Agreement prior to such termination shall be immediately due and payable; (ii) all licensed rights granted in this Agreement shall immediately terminate; and (iii) Subscriber, Subscriber's Invited Guests and any other third parties affiliated with Subscriber must promptly discontinue use of the Services. In the event you elect to terminate your subscription and Your Best Form is notified accordingly by calling the number on the web site Monday through Friday, 9 a.m. to 5 p.m. Mountain Time, you may be entitled to receive, on request, any refunds available to you. Terminations are not retroactive. If you terminate your subscription after your subscription period has begun, you may be entitled to a refund for the unexpired portion of that subscription period, less any applicable minimum charges. You may still be obligated to pay for other charges incurred. Article II, Section 2, Article III, Article IV, Article V, Section 3, Article VI, Section 1 (Confidentiality), Article VII, and Article VIII Sections: 4, 5, 6, 8, 13 and 14, together with any accrued payment obligations, shall survive termination of this Agreement for any reason.
VI. CONFIDENTIALITY AND INTELLECTUAL PROPERTY.
1. CONFIDENTIALITY.
(A) Your Best Form Information; Right to Disclose. Subscriber shall protect and keep confidential all Content. Subscriber shall use the Content only for the purposes contemplated by this Agreement. Subscriber may disclose the Content only (i) as necessary for its use of the Services in accordance with this Agreement to Subscriber’s Invited Guests, employees or third party contractors who have agreed in writing to maintain such information in confidence; or (ii) if required to do so by subpoena, court order or legal process, provided that Your Best Form is provided sufficient written notice to request a protective order.
(B) Subscriber Information; Right to Disclose. Except as otherwise expressly provided in this Section, Your Best Form shall protect and keep confidential all Subscriber information, and shall use Subscriber information only for the purposes contemplated by this Agreement and for purposes of improving and enhancing the Services. Your Best Form may disclose Subscriber information only (i) as necessary to support Subscriber's use of the Services in accordance with this Agreement to Your Best Form's employees or third party contractors who have agreed in writing to maintain such information in confidence; or (ii) if required to do so by subpoena, court order or legal process, provided that Subscriber is provided sufficient written notice to request a protective order.
(C) Exceptions. The restrictions on disclosure contained herein shall not apply to information of the disclosing party that (i) is or becomes generally available to the public other than through a wrongful act of the receiving party; (ii) is or becomes available to the receiving party on a non-confidential basis from a source that is entitled to disclose it to the receiving party; or (iii) is independently developed by the receiving party, its employees or third party contractors without access to or use of the disclosing party’s confidential information.
2. PROPRIETARY RIGHTS. The Services and all intellectual property rights herein, are the exclusive property of Your Best Form and its suppliers. All rights in and to the Services not expressly granted to Subscriber in this Agreement are reserved by Your Best Form. Nothing in this Agreement shall be deemed to grant, by implication, estoppel or otherwise, a license under any of Your Best Form’s existing or future intellectual property rights. Subscriber shall not remove, alter, or obscure any proprietary notices (including without limitation copyright notices) of Your Best Form on the Content or any copy thereof.
3. SUBSCRIBER LISTS & PRESS RELEASES. In consideration of the license granted hereunder, Your Best Form may publicly identify Subscriber as a Your Best Form subscriber. Any additional publicity by a party shall require prior written approval from the other party.
VII. DISPUTE RESOLUTION.
1. GOVERNING LAW AND VENUE. This Agreement shall be governed by and interpreted in accordance with the laws of the State of Colorado without regard to its conflicts of law principles that would require application of the laws of a different state. The United Nations Convention on Contracts for the International Sale of Goods does not apply to this Agreement. Any action or proceeding arising from or relating to this Agreement, other than in the context of injunctive relief sought pursuant to Article VII Section 2 of this Agreement, shall be submitted to binding arbitration in Denver, Colorado. The arbitration shall be conducted according to the Commercial Rules of the American Arbitration Association then in effect. The arbitration shall be decided by a single arbitrator familiar with technology licensing, software, the internet and e-commerce. The decision of the arbitrator may be enforced in any court of competent jurisdiction. Each party irrevocably submits to the jurisdiction and venue of any such court in any such action or proceeding.
2. REMEDIES. Subscriber acknowledges that any actual or threatened breach of Article II, Section 2 or Article VI, Section 1(A) constitutes immediate, irreparable harm to Your Best Form for which monetary damages would be an inadequate remedy. Subscriber acknowledges that termination of this Agreement and injunctive relief are among the appropriate remedies for such breach. If any legal action is brought to enforce this Agreement, the prevailing party shall be entitled to receive its reasonable attorneys’ fees, court costs, and other collection expenses, in addition to any other relief it may receive.
VIII. MISCELLANEOUS.
1. ACCOUNTS, PASSWORDS AND SECURITY. You must provide Your Best Form with current, complete and accurate information, as prompted by the Subscription Application. You acknowledge that Your Best Form may terminate this Agreement and your use of the Services if you provide information that is untrue, inaccurate, not current or incomplete. You are entirely responsible for maintaining the security and confidentiality of your account and password. You agree to notify Your Best Form immediately of any unauthorized use of your account or any other breach of security. Your Best Form will not be liable for any loss that you may incur as a result of someone else using your password or account, either with or without your knowledge. However, you may be held liable for any losses incurred by Your Best Form or another party due to someone else using your account or password.
2. AMENDMENTS. Amendments to this Agreement must be in writing and signed by both parties.
3. ASSIGNMENTS. Subscriber may not assign or transfer, by operation of law or otherwise, any of its rights or obligations under the Agreement to any third party without Your Best Form’s written consent. Any attempted assignment or transfer in violation of the foregoing shall be null and void. Your Best Form shall have the right to assign the Agreement in the event of a change of control of Your Best Form.
4. AUDIT RIGHTS. Upon Your Best Form’s written request and not more frequently than annually, Subscriber shall permit Your Best Form or its representatives to review Subscriber’s relevant records and inspect Subscriber’s facilities to verify Subscriber’s compliance with this Agreement. Your Best Form shall give Subscriber at least ten days advance written notice of any such inspection and shall conduct the same during normal business hours in a manner that does not unreasonably interfere with Subscriber’s normal operations. Any such audit shall be conducted at Your Best Form’s expense, unless the audit reveals that Subscriber has materially breached any provision of this Agreement, in which case Subscriber shall (a) reimburse Your Best Form for all reasonable costs and expenses incurred by Your Best Form in connection with such audit and (b) pay additional fees to Your Best Form for the number of Invited Guests or additional providers accessing the Services which is greater than the number of Invited Guests set forth in the Subscription Application.
5. ENTIRE AGREEMENT. This Agreement constitutes the entire agreement between the parties regarding the subject matter hereof and supersedes all prior or contemporaneous agreements, understandings, and communication, whether written or oral. In no event shall pre-printed terms and conditions of sale printed on a purchase order be considered part of this Agreement or be binding on either party. In the event of a conflict between this Agreement and a purchase order, the terms of this Agreement shall control. The parties may sign and deliver this Agreement by electronic signature. The delivery of this Agreement by electronic signature will have the same force and effect as delivery of original signature.
6. EXPORT RESTRICTIONS. You understand and acknowledge that the software elements of the Content may be subject to regulation by agencies of the U.S. Government, including the U.S. Department of Commerce, which prohibits export or diversion of software to certain countries and third parties. You will not assist or participate in any such diversion or other violation of applicable U.S. laws and regulations. You warrant that you will not license or otherwise permit anyone not approved to receive controlled commodities under applicable U.S. laws and regulations and that you will abide by such laws and regulations. You shall hold Your Best Form harmless and indemnify Your Best Form from any breach or threatened breach of this Section.
7. FORCE MAJEURE. Your Best Form shall not be responsible for any failure to perform due to unforeseen circumstances or to causes beyond its reasonable control, including but not limited to: acts of God; war, riot, embargoes, acts of civil or military authority, or terrorism; fire, flood, earthquakes, hurricanes, tropical storms or other natural disasters; fiber cuts; strikes, or shortages in transportation, facilities, fuel, energy, labor or materials; failure of the telecommunications or information services infrastructure; hacking, SPAM, or any failure of a computer, server or software, for so long as such event continues to delay Your Best Form’s performance.
8. GOVERNMENT USERS. The software elements of the Content have been developed at private expense and constitute “commercial computer software” or “restricted computer software” within the meaning of the FARs, the DFARs, and any other similar regulations relating to government acquisition of computer software. Nothing contained herein will be deemed to: (a) grant any government agency any license or other rights greater than are mandated by statute or regulation for commercial computer software developed entirely at private expense, or (b) restrict any government rights in any extensions or custom solutions provided hereunder and developed at government expense.
9. NOTICES. All notices, consents, and approvals under this Agreement must be delivered electronically, in writing by reputable overnight courier, or certified or registered United States mail, (postage prepaid and return receipt requested) to the Subscriber at the address set forth in the Subscription Application or to Your Best Form at the address set forth on the Your Best Form website, and shall be effective upon receipt (which may be evidenced by electronic means) or three business days after being deposited in the mail as set forth above, whichever occurs sooner. Either party may change its address by giving written notice of the new address to the other party.
10. MONITORING. Your Best Form has no obligation whatsoever to monitor any of Subscriber's postings. However, you acknowledge that we have the absolute right to monitor the same at our sole discretion. In addition, we reserve the right to alter, edit, refuse to post or remove any postings, in whole or in part, for any reason and to disclose such materials and the circumstances surrounding their transmission to any third party in order to satisfy any applicable law, regulation, legal process or governmental request and to protect ourselves, our clients, sponsors, users and visitors.
11. RELATIONSHIP BETWEEN THE PARTIES. Your Best Form and Subscriber are independent contracting parties; nothing in this Agreement shall be construed to create a partnership, joint venture or agency relationship between the parties.
12. TRANSMISSION OF DATA. You acknowledge that in connection with the Services, information will be transmitted over local exchange, inter-exchange and internet backbone carrier lines and through routers, switches and other devices owned, maintained and serviced by third party local exchange and long distance carriers, utilities, internet service providers and others, all of which are beyond the control and jurisdiction of Your Best Form and its suppliers. Accordingly, Your Best Form assumes no liability for or relating to the delay, failure, interruption or corruption of any data or other information transmitted in connection with use of the Services or the web site.
13. SEVERABILITY. If any provision of this Agreement is held by a court of competent jurisdiction to be unenforceable, such provision shall be changed and interpreted to accomplish the objectives of such provision to the greatest extent possible under applicable law and the remaining provisions of this Agreement shall continue in full force and effect. Without limiting the generality of the foregoing, Subscriber acknowledges that Article IV, Section 5 (Limitation of Liability) shall remain in effect notwithstanding the unenforceability of any provision in Article IV, Section 1 (Disclaimer of Warranty).
14. WAIVERS. Any waiver or failure to enforce any provision of this Agreement on one occasion shall not be deemed a waiver of any other provision or of such provision on any other occasion.
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