Master Services Agreement

This Master Services Agreement ("Agreement") is entered into between Cooper AI Tech, Inc. ("Cooper AI" or "we") and you or the entity you represent ("Customer" or "you") as of the Effective Date as indicated on any Order Form that incorporates the terms of this Agreement by reference. This Agreement sets forth the terms and conditions under which Customer may access and use the Services (defined below), except where we expressly state that separate terms apply. This Agreement includes any ancillary documents (e.g., attachments, addenda, exhibits) expressly referenced below, and any Order Forms that reference this Agreement.

01. Use of Service

1.1. Order Form

Customer may purchase access to various Cooper AI services by executing at least one order form ("Order Form") that references and incorporates this Agreement and sets forth the Cooper AI services to be provided to Customer ("Services"). If there is any conflict between this Agreement and any Order Form, the terms of the Order Form shall govern with respect to the applicable Services listed thereunder. Customer's Affiliates may also purchase access to Services by mutually executing an Order Form with Cooper AI; provided that Customer shall remain responsible for its Affiliates compliance with all of the terms and conditions of this Agreement. An "Affiliate" of Customer is an entity that is controlled, controlled by, or is under common control with Customer.

1.2. Modify Services

Cooper AI may, at its discretion, change or update the Services from time to time. Cooper AI will notify Customer in advance of any changes to the Services that materially reduce their functionality.

1.3. Modification of Agreement

From time to time, Cooper AI may modify this Agreement. Unless otherwise specified by Cooper AI, changes become effective for Customer upon renewal of the then-current Subscription Term or upon the effective date of a new Order Form after the updated version of this Agreement goes into effect. Cooper AI will use reasonable efforts to notify Customer of any material changes through communications via Customer's account, email or other means. Customer may be required to click to accept or otherwise agree to the modified Agreement before renewing a Subscription Term or upon the effective date of a new Order Form, and in any event continued use of any Services after the updated version of this Agreement goes into effect will constitute Customer's acceptance of such updated version.

02. General Restrictions and Obligations

2.1. General Restrictions

Customer shall not: (i) reproduce, modify, translate, or create derivative works of the Services, any underlying ideas, technology, or related software, or any portion thereof; (ii) copy, rent, sell, lease, distribute, publish, circulate, disseminate, pledge, assign, or otherwise transfer, encumber rights to, or allow access to the Services or any part thereof or use or seek to commercially exploit any of the foregoing for the benefit of any third party; (iii) disassemble, decompile, reverse engineer, or translate any software related to the Services, or otherwise attempt to discover any such software source code, object code, or underlying proprietary information, except to the extent that such restriction is prohibited by applicable law; (iv) remove or otherwise alter any proprietary notices or labels from the Services or any portion thereof; (v) interfere with, modify, disrupt or disable features or functionality of the Services, including without limitation any such mechanism used to restrict or control the functionality, or defeat, avoid, bypass, remove, deactivate or otherwise circumvent any software protection or monitoring mechanisms of the Services; (vi) sell, resell, license, rent, lease, distribute or otherwise share the Output to an unaffiliated third party or otherwise use the Output for the benefit of an unaffiliated third party, or publish or publicly distribute the Output without the prior written consent of Cooper AI or outside of the expected uses of the Service; or (vii) access the Services in order to build a similar or competitive product or service to Cooper AI's products. If requested, Customer will provide information necessary for Cooper AI to verify Customer's compliance with this Section.

2.2. General Obligations

Customer is responsible for all of Customer's and each Authorized User's activity in connection with the Services, including but not limited to uploading Customer Data (as defined below) onto the Services. Customer (a) shall use the Services in compliance with all applicable local, state, national and foreign laws, treaties and regulations in connection with Customer's use of the Services, including without limitation those laws related to data privacy, patient privacy, international communications, export laws and the transmission of technical or personal data laws), and (b) shall not use the Services in a manner that violates any third party intellectual property, contractual or other proprietary rights.

2.3. Third-Party Products

At your direction or instruction, Cooper AI may provide access to or be integrated with products and services offered by third parties (collectively, "Third Party Products"). Cooper AI does not endorse or make any representations or warranties about Third Party Products, and Customer hereby acknowledges that Cooper AI is not responsible or liable for the operation, content, functions, accuracy, legality, appropriateness, or any other aspect of such Third Party Products. Any purchase or use of Third Party Products may be subject to additional terms of the applicable third-party provider ("Third Party Terms"). Customer shall comply with all Third Party Terms and shall indemnify and hold Cooper AI harmless from all damages, costs, settlements, attorneys' fees and expenses arising from or related to Customer's breach of any Third Party Terms. Any provision by Cooper AI of Third Party Products, and any exchange of data between Customer and any third-party provider of a Third Party Product, is solely between Customer and the applicable third-party provider.

03. Intellectual Property Rights and Customer Data

3.1. License to Cooper AI IP

Subject to all terms and conditions of this Agreement, Cooper AI hereby grants to Customer a worldwide, non-transferable, non-sublicensable license to access the Services only for Customer's internal business purposes. Except for the rights expressly granted in this Agreement, Cooper AI owns and reserves all right, title and interest in and to, its Services and any underlying intellectual property rights. Subject to the foregoing limitations, Customer may allow access to the Services to its Authorized Users (defined below). Customer will not use or make available the Services in a manner that may allow any person or entity other than its Authorized User to access or use the Services or otherwise permit unauthorized access to the Services. An "Authorized User" is any employee or contractor of Customer, or mutually-agreed-to end user of Customer who has each been expressly authorized by Cooper AI to access the Services. Customer shall be fully responsible for each Authorized User's use of the Services and for their compliance with this Agreement.

3.2. Rights in Customer Content and Customer Data

As between the parties, Customer or its licensors retain all right, title, and interest in and to the Customer Data and any modifications made thereto in the court of operation of the Services, as well as any Output. Subject to the terms of this Agreement, Customer hereby grants to Cooper AI a non-exclusive, worldwide, royalty-free right to process the Customer Data and Output solely to the extent necessary to (i) provide, maintain, and improve the Services to Customer and otherwise perform Cooper AI's obligations under this Agreement or to exercise its rights hereunder, (ii) to prevent or address service or technical problems in the Services, (iii) for Cooper AI's internal business purposes, such as for research and development related to current Services and new products and services, including machine learning models and other artificial intelligence systems, operational analytics and reporting, and audit functions and development, and (iv) on an aggregated and anonymized basis, provided that such use complies with applicable laws and regulations, and cannot be reidentified or attributed to Customer or any particular individual. "Customer Data" shall refer to any data or data files that are uploaded by or on behalf of Customer for storage or processing in the Service, including any inputs into an AI tool or service. "Output" means the data generated by a machine learning model or artificial intelligence system based upon the Customer Data, that are returned to the Customer, including through the Cooper AI API or CSV file. Customer warrants that Customer has and will have sufficient rights in the Customer Data to grant the rights to Cooper AI under this Agreement, and that the processing of Customer Data by Cooper AI in accordance with this Agreement will not violate any laws or the rights of any third party. Cooper AI shall not sell or share any Customer Data or otherwise disclose Customer Data to any third party except as expressly permitted under this Agreement.

3.3. HIPAA Data

Cooper AI does not intend the use of Services to create obligations under the Health Insurance Portability and Accountability Act, as amended ("HIPAA"), and makes no representation that the Services satisfy HIPAA requirements. Customer agrees not to process any Protected Health Information in the Service without prior written consent from Cooper AI.

3.4. Cooper AI Data

Cooper AI may collect and create usage data, statistics, aggregated and anonymized data, and de-identified data derived from Customer's use of the Services, Customer Data and Output ("Cooper AI Data"). As between the parties, Cooper AI shall own and/or control any and all Cooper AI Data. To the extent permitted by applicable laws, Cooper AI may use Cooper AI Data to (a) provide, analyze, support, and improve Cooper AI's products and services, and (b) create and distribute reports and materials about Cooper AI's products and services. Cooper AI will not identify Customer as a source of information for any report or material described in this Section without Customer's prior written approval.

3.5. Feedback

Customer may submit to Cooper AI feedback, comments, ideas, or suggestions regarding Cooper AI's Services or new products and services ("Feedback"). As between the parties, Cooper AI shall own and/or control any and all Feedback. Cooper AI may, but has no obligation to, in its discretion and for any purpose, (a) use, modify, and incorporate Feedback into Cooper AI's products and services, and (b) license, sublicense, or distribute the Feedback without obligation or compensation to Customer.

3.6. Copyright Policy

Cooper AI reserves the right to delete Customer Data that is alleged to be infringing of a third party's intellectual property rights from Customer's account, and terminate any Authorized Users or Customer for willful or repeated infringements of third-party rights.

3.7. Marketing

Cooper AI may use and display Customer's name, logo, trademarks, and service marks on Cooper AI's website and in Cooper AI's marketing materials in connection with identify Customer as a customer of Cooper AI. Upon Customer's written request, Cooper AI will promptly remove any such marks from Cooper AI's website and, to the extent commercially feasible, Cooper AI's marketing materials.

04. Fees and Payment

4.1. Fees

Customer shall pay Cooper AI the Fees set forth on each applicable Order Form in accordance with the terms and conditions set forth on such Order Form (the "Fees"). If Customer use of the Services exceeds the usage set forth on the Order Form (if any), Customer will be invoiced at the end of the payment period for the excess usage, at the rate set forth on the Order Form, and Customer agrees to pay the additional fees without any right of set-off or deduction.

4.2. Invoicing and Payment

All payments will be made in accordance with the payment schedule and the payment method set forth on the Order Form. If not otherwise specified, Fees will be due within thirty (30) days of invoice. If Customer requires the use of a purchase order or purchase order number, Customer must (a) provide the purchase order number at the time of purchase and (b) agrees that any terms and conditions on a Customer purchase order will not apply to this Agreement and are void.

4.3. Disputes and Late Payments

Customer must dispute any Fees within sixty (60) days of payment due date. Any Fees past due hereunder shall bear interest at a rate of 1.5% per month (or, if lower, the maximum rate permitted by applicable law).

4.4. Taxes

Any amounts payable hereunder are exclusive of all sales taxes, value added taxes, duties, use taxes, withholdings and other governmental assessments. Customer shall pay all such taxes and governmental assessments associated with the Services (excluding taxes based on Cooper AI's net income), unless Customer provides to Cooper AI a valid tax-exempt certificate.

05. Term and Termination

5.1. Term

This Agreement shall commence upon the Effective Date and shall continue in full force and effect until all outstanding Order Forms have expired or been terminated in accordance herewith. Unless otherwise stated on an Order Form, each Order Form shall have a Subscription Term of one year and shall auto-renew unless either party gives at least thirty (30) days' written notice prior to the end of the then-current Subscription Term.

5.2. Termination

Either party may terminate this Agreement if (a) the other party is in material breach of the Agreement and fails to cure that breach within ten (10) days after receipt of written notice, or (b) the other party ceases its business operations or becomes subject to insolvency proceedings. Cooper AI may terminate the Agreement if it has the right to suspend the Services, or in order to comply with law or regulation. If Customer does not have an active Order Form and has paid all Fees, Customer may terminate the Agreement at any time.

5.3. Suspension

In addition to any other remedies it may have, Cooper AI reserves the right to suspend the Services: (a) if any Fees are thirty (30) days or more overdue (and are not otherwise under good-faith dispute), (b) if Cooper AI deems such suspension necessary as a result of Customer's breach of Section 2 (General Restrictions and Obligations), (c) if Cooper AI reasonably determines suspension is necessary to avoid material harm to Cooper AI or its other customers, including as a result of repeated infringement of third-party rights, or (d) as required by law or at the request of governmental entities.

5.4. Effect of Termination

Upon termination or expiration of this Agreement, all licenses provided under this Agreement shall cease. Customer must immediately cease using and accessing the Services, and shall promptly erase all copies of Cooper AI Confidential Information in Customer's possession. Cooper AI shall have no further obligation to make Customer Data or the Services available. Any provisions which by their nature should survive the termination or expiration of this Agreement shall do so.

06. Information Security and Data Privacy

6.1. Information Security

Cooper AI has implemented and will maintain an industry-standard information security program that incorporates administrative, technical, and physical safeguards designed to ensure the security, confidentiality, integrity, and reliability of Customer Data. In the event of unauthorized access to Customer Data, Cooper AI shall cooperate with Customer, provide any notices and information reasonably requested, and take any necessary corrective actions to mitigate the damages and prevent future breaches.

6.2. Data Privacy

The parties shall comply with the Data Processing Addendum entered into between the parties.

07. Confidentiality

Each party ("disclosing party") may disclose to the other party ("receiving party") certain nonpublic and proprietary materials and information of the disclosing party ("Confidential Information"). The receiving party shall protect the Confidential Information with the same degree of care it uses to protect its own confidential information of similar nature and importance, but with no less than reasonable care. The receiving party shall not disclose the Confidential Information to any third party without the disclosing party's prior written consent, except to its own directors, employees, legal and financial advisors, and other agents with a need to know the Confidential Information, and who are subject to confidentiality obligations at least as restrictive as those provided herein. The term "Confidential Information" shall not include any information that (i) is or becomes part of the public domain without breach of this Agreement; (ii) is independently developed by the receiving party without use of or reference to the Confidential Information; (iii) is disclosed to the receiving party by a third party without restriction; or (iv) was in the receiving party's lawful possession prior to its disclosure by the disclosing party. Notwithstanding the foregoing, the receiving party may disclose the Confidential Information as required by law or court order, provided that the receiving party provides prompt prior written notice to the disclosing party, and discloses only the portion of the Confidential Information that it is advised by counsel is legally required to be disclosed, and uses its reasonable efforts to ensure confidential treatment is afforded the disclosed portion of the Confidential Information. The receiving party agrees that breach of this section would cause disclosing party irreparable injury, for which monetary damages would not provide adequate compensation, and that in addition to any other remedy, the disclosing party will be entitled to seek injunctive relief against such breach or threatened breach.

08. Warranties

8.1. Mutual Warranty

Each party warrants that it has validly entered into this Agreement and has the legal power to do so.

8.2. Disclaimer of Warranty

EXCEPT AS EXPRESSLY SET FORTH HEREIN, THE SERVICES AND THE OUTPUT ARE PROVIDED "AS IS" AND "AS AVAILABLE" AND ARE WITHOUT WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, AND ANY WARRANTIES IMPLIED BY ANY COURSE OF PERFORMANCE, USAGE OF TRADE, OR COURSE OF DEALING, ALL OF WHICH ARE EXPRESSLY DISCLAIMED. COOPER AI DOES NOT WARRANT THAT THE SERVICES OR OUTPUT ARE ACCURATE, COMPLETE OR UNINTERRUPTED. COOPER AI SHALL NOT BE LIABLE FOR (I) ANY THIRD-PARTY PRODUCTS, (II) ANY RESTRICTED INFORMATION RECEIVED IN BREACH OF THIS AGREEMENT, OR (III) ANY ACTS OR OMISSIONS OF CUSTOMER'S AUTHORIZED USERS.

8.3. Beta Services

Notwithstanding anything to the contrary, if Customer chooses to use any test, trial or other beta services ("Beta Services"), Customer acknowledges that (a) Customer has the sole discretion whether to use any Beta Services, (b) Beta Services may not be supported and may be changed at any time, including in a manner that reduces functionality, (c) Beta Services may not be available or reliable, and (d) Cooper AI provides Beta Services "as-is" and will have no liability arising out of or in connection with Beta Services. You agree to comply with any additional terms, restrictions, or limitations connected to any Beta Services.

09. Indemnification

9.1. By Cooper AI

Cooper AI shall indemnify, defend and hold Customer harmless from and against all damages, liabilities, costs, and expenses (including reasonable attorney's fees), whether award against Customer or agreed to in settlement, arising from a third-party claim alleging that the Services or any Output, when used in accordance with this Agreement, infringes any intellectual property right of such third party. If Customer's use of the Services or Output results (or in Cooper AI's opinion is likely to result) in an infringement claim, Cooper AI may either: (a) substitute functionally similar products or services; (b) procure for Customer the right to continue using the Services or Output; or if (a) and (b) are not commercially reasonable, (c) terminate this Agreement, or the applicable Order Form, and refund to Customer any prepaid unused Fees for the applicable Services. The foregoing indemnification obligation of Cooper AI will not apply to the extent the applicable claim is attributable to: (1) the modification of the Services or Output based on Customer's specifications or requirements or by any party other than Cooper AI; (2) the combination of the Services or Output with products or processes not provided by Cooper AI; (3) any use of the Services or Output in non-conformity with this Agreement; or (4) any action arising as a result of Customer Data, or any deliverables or components not provided by Cooper AI. This section sets forth Customer's sole remedy with respect to any claim of intellectual property infringement.

9.2. By Customer

Customer will indemnify, defend, and hold harmless Cooper AI from and against all damages, liabilities, costs, and expenses (including reasonable attorney's fees), whether award against Customer or agreed to in settlement, arising from a third-party claim arising out of or related to (a) Customer Data, and (b) Customer's use of the Services and Output.

9.3. Indemnification Procedures

Each party ("indemnified party") shall promptly notify the other party ("indemnifying party") in writing of any claim for which such party believes it is entitled to be indemnified pursuant to this Section, and provide assistance and information reasonably necessary to carry out the indemnifying party's obligations under this Section. The indemnifying party shall reimburse the indemnified party's reasonable out-of-pocket expenses as they are incurred in providing such assistance. The indemnified party will have the right, at its option, to participate in the settlement or defense of any claim(s), with its own counsel and at its own expense. The indemnifying party shall not settle any claim that results in the indemnified party's liability or obligation without the indemnified party's prior written consent.

10. Limitation of Liability

TO THE FULLEST EXTENT PERMITTED BY LAW, EXCEPT FOR (A) CUSTOMER'S BREACH OF USE RESTRICTIONS IN SECTION 2, (B) EITHER PARTY'S INDEMNIFICATION OBLIGATIONS, AND (C) EITHER PARTY'S CONFIDENTIALITY OBLIGATIONS, NEITHER PARTY NOR ITS AFFILIATES, LICENSORS OR SUPPLIERS WILL BE LIABLE TO THE OTHER PARTY UNDER THIS AGREEMENT UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY, OR OTHER LEGAL OR EQUITABLE THEORY FOR (I) ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, EXEMPLARY, OR CONSEQUENTIAL DAMAGES OR (II) ANY LOSS OF USE, DATA, BUSINESS, OR PROFITS, OR SERVICE INTERRUPTION, ANY DATA INACCURACY, OR THE COST OF SUBSTITUTE SERVICES (IN EACH CASE WHETHER DIRECT OR INDIRECT), REGARDLESS OF THE LEGAL THEORY AND REGARDLESS OF WHETHER A PARTY HAS BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGES, EVEN IF A LIMITED REMEDY SET FORTH IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE. TO THE FULLEST EXTENT PERMITTED BY LAW, COOPER AI'S AND ITS AFFILIATES', LICENSORS', AND SUPPLIERS' AGGREGATE LIABILITY UNDER THIS AGREEMENT UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY, INDEMNITY, OR OTHER LEGAL OR EQUITABLE THEORY WILL NOT EXCEED THE AMOUNT CUSTOMER HAS PAID OR THAT IS PAYABLE FOR THE SERVICES IN THE TWELVE (12) MONTH PERIOD PRIOR TO THE EVENT GIVING RISE TO THE LIABILITY.

10.1. Output

Results and outcomes generated by machine learning algorithms and artificial intelligence are probabilistic and Customer should evaluate such results and outcomes for accuracy as appropriate for Customer's use case, including by employing human review. Customer is solely responsible, and Cooper AI will have no liability, for all decisions made, advice given, actions taken, and failures to take action based on Customer's use of the Services or Output, including whether the Output is suitable for Customer's use case or for its internal business purposes.

11. Disputes

11.1. Informal Resolution

Cooper AI wants to address Customer's concerns and requests that Customer bring issues that may lead to a dispute to our attention immediately. Before filing a claim, Cooper AI and Customer agree to try to resolve the dispute by providing notice to the other party and having the appropriate executives attempt to resolve the dispute through communication and discussion. After thirty (30) business days from providing notice, either party may bring a formal proceeding.

11.2. Arbitration

Cooper AI and Customer agree to resolve any claims relating to this Agreement or the Services through final and binding arbitration, except as further set forth below. Any dispute will be administered by the American Arbitration Association under its Commercial Arbitration Rules by a single arbitrator. The arbitration will take place in San Francisco, California in the English language. Either party may bring a lawsuit in court for claims for injunctive relief to stop unauthorized use or abuse of the Services or claims of Intellectual Property Rights infringement without first engaging in the informal resolution process described above. Cooper AI and Customer consent to the exclusive jurisdiction and venue of the federal or state courts of San Francisco, California. EACH PARTY (I) AGREES THAT, EXCEPT AS PROVIDED HEREIN, ANY DISPUTES OR CLAIMS ARISING HEREUNDER OR RELATING TO THE SERVICES INCLUDING WITHOUT LIMITATION PAYMENT DISPUTES OR DISPUTES UNDER SECTION 9 (INDEMNIFICATION) ABOVE (COLLECTIVELY, "DISPUTES") WILL BE DETERMINED SOLELY IN BINDING, INDIVIDUAL ARBITRATION PURSUANT TO THE U.S. FEDERAL ARBITRATION ACT AND FEDERAL ARBITRATION LAW AND NOT IN A CLASS, REPRESENTATIVE, OR CONSOLIDATED ACTION OR PROCEEDING (EXCEPT THAT EITHER PARTY MAY ELECT TO PROCEED IN SMALL CLAIMS COURT IF THE DISPUTE QUALIFIES), AND (II) WAIVES THE RIGHT TO A TRIAL BY JURY.

12. General Provisions

12.1. Governing Law

This Agreement will be governed by California law, without regard to its conflict of law provisions.

12.2. Notices

Notices to Cooper AI must be sent via email to legal@askcooper.ai and are deemed given when sent. Notices to Customer will be to the notice email as provided on any Order Form or in Customer's account, or as some other notice email provided by Customer, and are deemed given when sent.

12.3. Force Majeure

Neither party will be liable to the other for any delay or failure to perform any obligation under this Agreement (except for a failure to pay Fees) if the delay or failure results from any cause beyond such party's reasonable control, including but not limited to acts of God, labor disputes or other industrial disturbances, systemic electrical, telecommunications, or other utility failures, earthquake, storms or other elements of nature, blockages, embargoes, riots, public health emergencies (including pandemics and epidemics), acts or orders of government, acts of terrorism, or war.

12.4. Independent Contractors

The parties are independent contractors. This Agreement does not create a partnership, joint venture, or agency relationship between the parties. Neither party will have the power to bind the other or incur obligations on the other party's behalf without the other party's prior written consent. There are no third-party beneficiaries under this Agreement.

12.5. Export Control

Each party agrees to comply with all export and import laws and regulations, including without limitation, those of the United States, applicable to such party in connection with its respective provision or use of the Service under this Agreement. Without limiting the foregoing, Customer represents and warrants that it: (a) is not listed on, or majority-owned by any entity listed on, any U.S. government list of prohibited or restricted parties; (b) is not located in (or a national of) a country that either is subject to a U.S. government embargo or has been designated by the U.S. government as a "state sponsor of terrorism"; (c) will not (and will not permit any third parties to) access or use the Services in violation of any U.S. export embargo, prohibition or restriction; and (d) will not submit to the Services any information that is controlled under the U.S. International Traffic in Arms Regulations.

12.6. Entire Agreement

All attachments and exhibits to the Agreement and Order Forms executed by the parties are hereby incorporated into the Agreement by reference. Unless explicitly stated in a separate agreement between the parties, this Agreement constitutes the entire agreement between Customer and Cooper AI with respect to the subject matter of this Agreement and supersedes any prior or contemporaneous agreements whether written or oral, including any non-disclosure agreements.

12.7. Assignment

Neither party may assign any rights or obligations under this Agreement without the prior written consent of the other party. However, either party may assign this Agreement upon notice if the assigning party undergoes a merger, change of control, reorganization, or sale of all or substantially all its equity, business, or assets to which this Agreement relates. Any attempted but non-permitted assignment is void. This Agreement will be binding upon and inure to the benefit of the parties and their permitted successors and assigns.

12.8. Severability

If a court of competent jurisdiction finds any term of this Agreement to be unenforceable, the unenforceable term will be modified to reflect the parties' intention and only to the extent necessary to make the term enforceable. The remaining provisions of the Agreement will remain in effect.

12.9. Amendments; Waivers

Except as otherwise set forth in this Agreement, no modification, amendment, or waiver of any provision of this Agreement will be effective unless set forth in writing and signed by the parties. No failure or delay by either party in exercising a right under this Agreement will constitute a waiver of that right. A waiver of a default is not a waiver of any subsequent default.

12.10. Counterparts

This Agreement and any Order Form may be executed in counterparts, which taken together will constitute one instrument, and may be executed and delivered electronically.