Introduction

This document is a legal contract between the customer (“Customer”) and LK MShare LLC, dba MUDSHARE and CaretX, the Software provider. LK MShare provides its Software and Services to Customer solely according to the terms and conditions in this agreement (“Terms and Conditions”). By clicking the box below or otherwise indicating your acceptance to the Terms and Conditions on behalf of Customer, you are (i) indicating Customer's agreement to be legally bound thereby; (ii) representing and warranting that (i) you are 18 years of age, and (b) if Customer has engaged you to access or use the Software or Services on Customer's behalf, or if Customer is a corporation, government organization, or other legal entity, you have the right, power, and authority to enter into the Terms and Conditions on behalf of Customer and bind Customer to its terms. If you or Customer do not agree or cannot comply with any part of the Terms and Conditions, the only remedy for you and Customer is to stop using the Services immediately.

1. DEFINITIONS

Capitalized terms are defined in the Glossary at the end of this document.

2. SUPPLY OF SERVICES AND RESTRICTIONS

2.1 Supply of Services.

Subject to any related Statement of Work, LK MShare will make the Services available to Customer. More specific or conflicting terms in the Statement of Work will control over these Terms and Conditions.

2.2 Grant of Rights.

LK MShare grants to Customer and, if you are Customer's authorized representative, to you solely on behalf of Customer, a non-exclusive, non-transferable, non-assignable, and non-sublicensable right to access and use the Software, Services, and Documentation, including through the MUDSHARE and CaretX website and applications, as permitted under any related Statement of Work and solely for the Customer's internal business operations. If you will access or use the Software or Services on Customer's behalf, all provisions in these Terms and Conditions that apply to Customer also apply to you.

2.3 Acceptable Use Policy.

Customer is fully responsible for Customer's actions and the resulting consequences from Customer's use of the Software and Services. With respect to the Software, Services, and Documentation, Customer will not:

(a) send unsolicited communications to recipients who will incur charges or to recipients whom Customer does not have permission to contact;

(b) except to the extent such rights cannot be validly waived by law, disassemble, decompile, decode, reverse-engineer, copy, translate, or make derivative works;

(c) combine or incorporate them, or any part of them, with any other Software;

(d) market, rent, sell, lease, lend, sublicense, assign, distribute, publish, transfer, or otherwise make any part of them available to any third party, except as expressly permitted in the Terms and Conditions;

(e) use them to conduct a competitive analysis of, or for the purpose of developing a competing software product or services, or for any other purpose that is intended to, or has the effect of, commercially disadvantaging LK MShare;

(e) use or authorize the use of them, or use any Customer Data in connection with them, in any manner or for any purpose that is unlawful under any applicable federal, state, local, or international law, regulation, or rule, including all rules promulgated by the United States Federal Trade Commission and Federal Communications Commission;

(f) remove, delete, alter, or obscure any trademark, copyright, patent, Intellectual Property Rights or notices, or other proprietary rights or notices provided in, with, or related to them, or any copy of the foregoing; or

(g) circumvent or endanger the operation or security of the MUDSHARE and CaretX website or applications.

LK MShare may offer Customer certain compliance tools or resources for use with the Software or Services; however, the tools or resources are provided for reference only and may not be relied upon to ensure Customer's compliance with applicable laws, regulations, or rules. Upon accepting these Terms and Conditions and/or using of the Software and Services, Customer releases LK MShare from all responsibility for Customer's actions arising from or related to Customers use of the Software, Services, and Documentation.

2.4 Monitoring.

LK MShare may, but is under no obligation to, monitor use of the Services:

(a) to comply with applicable law, regulation, or other governmental request or order, including disclosing Customer Data in accordance with such law, regulation, request, or order;

(b) to verify Customer's compliance with the Terms and Conditions and any related Statement of Work;

(c) to protect the integrity of its systems and networks, and those of its suppliers;

(d) as necessary to provide and support the Services; or

(e) as otherwise approved or requested by Customer.

2.5 Compliance.

Customer will promptly provide any information as LK MShare may request relating to Customer Data or Customer's use of the Services:

(a) to determine Customer's compliance with the Terms and Conditions, and

(b) in response to any request made by any regulatory or governmental or statutory body.

2.6 Operating Instructions.

Customer will comply, and use the Services in accordance, with LK MShare's operating guidelines and policies relating to the use of the Services.

2.7 Suspension of Services.

LK MShare may suspend Customer's use of the Services:

(a) as necessary to comply with applicable law or regulation, or other governmental request or order;

(b) to perform planned or emergency maintenance, or repair, to the MUDSHARE and CaretX Network;

(c) if the use poses a threat to the integrity or continued operation of the MUDSHARE and CaretX Network or any part of it;

(d) if the use is in breach of the Terms and Conditions or any related Statement of Work, or otherwise exposes LK MShare to legal liability;

(e) in LK MShare's sole discretion, if not doing so would have a material harm to the MUDSHARE and CaretX Network or the Services, or LK MShare's provision thereof; or

(f) if LK MShare is unable to provide the Services due to a termination or alteration of its relationship with any third party, or the termination or suspension of any license or authorization necessary to provide the Services.

LK Mshare will provide prompt written notice (email permitted) of the suspension to Customer. LK MShare will endeavor to limit the suspension in time and scope as reasonably possible under the circumstances, and will resume the Services once the cause of the suspension has been remedied, provided that, if a suspension is due to Customer's actions or inactions, LK MShare will resume the Services once Customer has remedied the cause of the suspension, and Customer will pay any applicable reconnection charge or, if no charge is specified, Customer will reimburse LK MShare for all reasonable costs and expenses incurred by LK MShare in resuming the Services, and further provided that LK MShare may terminate the Terms and Conditions and any related Statement of Work if Customer does not remedy the cause of the suspension within thirty (30) days.

2.8 Third Party Services and Application.

The Services may include integrations with web services, Software, and/or applications of third parties (other than MUDSHARE and CaretX) that are accessed through the Services and will be subject to terms and conditions with those third parties.

2.9 Anti-Fraud

LK MShare does not represent that it will be able to block or prevent the transmission of fraudulent communications. Customer is responsible for ensuring that its account is not used to transmit fraudulent communications. Fraud, including artificial inflated traffic originating from the Customer, will not excuse Customer's payment obligations under the Terms and Conditions or any related Statement of Work.

3. LK MSHARE RESPONSIBILITIES

3.1 Providing Services.

LK MShare will provide access to the Services as described in the related Statement(s) of Work.

 

3.2 Support.

LK MShare will provide support for the Services as referenced in the related Statement(s) of Work.

3.3 Modifications.

(a) LK MShare may modify the Services. LK MShare will inform Customer of modifications by email, the support portal, release notes, Documentation, or the Services. The information will be delivered by email if the modification is not solely an enhancement. Modifications may include optional new features for the Services, which Customer may use subject to the then-current Terms and Conditions, Supplement, and Documentation.

(b) If Customer establishes that a modification by LK MShare causes a materially adverse impact on Customer's use of the Services that is not reasonably acceptable to Customer for legitimate business reasons, Customer may terminate its access to the affected Services by providing written notice to LK MShare (email permitted) within thirty (30) days of such modification.

3.4 Excluded Events.

Notwithstanding any provision to the contrary in the Terms and Conditions, LK Mshare will not be liable for any failure to perform on its part, or any delay on its part in performing an obligation under, the Terms and Conditions if such failure or delay arises as a result of or in connection with the occurrence of an Excluded Event.

4. CUSTOMER RESPONSIBILITIES AND CUSTOMER DATA

4.1 Customer Obligations.

Customer will:

(a) comply with all laws and regulations applicable to it in connection with the Customer Data and Customer's use of the Software and Services, including but not limited to telecommunications laws and regulations, export control laws and regulations, economic, trade, and financial sanctions laws and regulations, embargoes, restricted state lists, or restrictive measures administered.

(b) continue to obtain all necessary permits, consents, rights, authorizations, or certifications for its use of the Services, including, but not limited to, any Customer Data transmitted as part of that use; and

(c) immediately comply with any directions or orders that may be issued by a governmental or regulatory authority relating to the Customer Data or Customer's use of the Services and will cooperate with LK MShare's request for assistance in conforming the Services to any new requirements or determinations.

4.2 Customer Data.

Customer is solely responsible for all Customer Data. Customer (i) grants to LK MShare, including LK MShare's subcontractors, a nonexclusive, worldwide right to use, modify, adapt, and process Customer Data to analyze, develop, test, operate, provide, and support the Services and (ii) acknowledges that neither LK MShare nor its subcontractors exercise any control over Customer Data and, instead, act as a mere or passive conduit in transmitting and handling Customer Data.

Customer acknowledges and agrees that any communications sent through the MUDSHARE and CaretX Network are deemed to have been sent and/or authorized by Customer.

4.3 Personal Data.

Customer will collect and maintain all Personal Data necessary to use the Services, and all required consents associated with such Personal Data, in compliance with applicable Data Protection Law and the DPA.

4.4 Cooperation.

Customer will reasonably cooperate with LK MShare in LK MShare's supply and support of the Services, including any diagnostic or other maintenance or upgrade activities.

4.5 Access and Security.

Customer has the sole and exclusive responsibility for the installation, configuration, security (including firewall security), and integrity of all Customer facilities, systems, equipment, proxy servers, software, networks, network configurations, and the like (the “Customer Equipment”) used in conjunction with or related to the Services provided by LK MShare, including, without limitation, Customer's connectivity to any third party. Customer will maintain reasonable security standards to protect the MUDSHARE and CaretX Network from unauthorized access, including, but not limited to, protecting Customer's passwords from being disclosed to or accessed by third parties. Customer will immediately inform LK MShare if the Customer becomes aware of any possible or actual unauthorized use, misuse, or access of the Services.

4.6 Disaster Recovery.

Customer is solely responsible for all disaster recovery, business continuity, and back up arrangements related to its own equipment and all Customer Data.

4.7. Test Account.

LK MShare may make an account available to the Customer for the limited purposes of testing, demonstration, and evaluation of certain Services. The Terms and Conditions will govern the Customer's use and access to such test account and test Services. The Customer will ensure that the test account and test Services are used strictly for the limited purposes of testing, demonstration, and evaluation, and not for any commercial or other purpose. The Customer will comply with any relevant instructions or protocols about which LK MShare notifies the Customer relating to the test account and test Services. The Customer agrees that LK MShare may close such test account and withdraw such test Services at any time, with or without notice to the Customer.

5. FEES AND TAXES

5.1 Fees and Payment.

Customer will pay fees to LK MShare as stated in any related Statement of Work. For nonpayment, LK MShare may, after prior written notice, suspend Customer's use of the Services until payment is made. Customer may not withhold, reduce, or set-off fees owed to LK MShare during the Term. For any invoice Customer fails to pay by its due date, interest will thereafter accrue on such unpaid amount at the maximum allowable rate. The fees payable will be calculated by reference to data recorded or logged by LK MShare and not by reference to any data recorded or logged by the Customer. Invoices issued by LK MShare will be final, conclusive, and binding on Customer, provided that Customer may, in good faith, dispute an invoice in writing (email permitted) no later than thirty (30) days from the date of invoice, but further provided that Customer will timely pay any undisputed part of such invoice. No omission or delay by LK MShare in invoicing any sums will prohibit LK MShare from collecting on an invoice at a later date, nor will it relieve Customer of its liability to pay LK MShare.

5.2 Taxes.

Unless otherwise provided in a Statement of Work, fees and other charges imposed under a Statement of Work will not include taxes, including withholding taxes. Customer is responsible for all of Customer's taxes, including withholding taxes, other than LK MShare's income and payroll taxes. If LK MShare is required to pay taxes related to Customer, other than LK MShare's income and payroll taxes, Customer will reimburse LK MShare for those amounts, and will indemnify LK MShare for any taxes and related costs paid or payable by LK MShare attributable to those taxes, within thirty (30) days of LK MShare providing written notice (email permitted) to Customer.

5.3 Set-off.

LK MShare may, without notice to Customer, set-off any sums owed by Customer under the Terms and Conditions, a Statement of Work, or any other agreement of Customer with LK MShare against any sums owed by LK MShare to Customer, regardless of the place of payment or currency of such obligations.

6. TERM AND TERMINATION

6.1 Term.

The Term is stated in the applicable Statement of Work.

6.2 Termination by Either Party.

A party may terminate the Terms and Conditions:

(a) upon thirty (30) days written notice (email permitted) of the other party's material breach, unless the breach is remedied during that thirty-day period;

(b) as permitted under Sections 3.3(b) or 8.1(c), with termination effective thirty (30) days after receipt of written notice (email permitted) in each of these cases; or

(c) immediately if the other party files for bankruptcy, becomes insolvent, or makes an assignment for the benefit of creditors, or otherwise materially breaches Sections 11 or 13.5.

6.3 Termination by LK MShare.

In addition to the termination rights set out in Section 6.2, LK MShare may also terminate the Terms and Conditions, any related Statement of Work, or any affected specific Services, at any time:

(a) upon any termination of a network operator, third-party subcontractor, supplier, or interconnected carrier relationship with LK MShare, or the discontinuance of support for equipment or a component of service necessary for LK MShare to provide the Services;

(b) upon any legal, regulatory, or governmental prohibition or limitation affecting the Services; or

(c) upon the termination or expiration of any license necessary to provide the Services.

LK MShare will endeavor to limit the termination in time and scope as reasonably possible under the circumstances. In addition, LK MShare may terminate the entire Terms and Conditions and any related Statement of Work immediately if any illegal practice and/or fraudulent use of the Services by Customer is proven.

6.4 Effect of Expiration or Termination.

Upon the effective date of expiration or termination of the Terms and Conditions and any related Statement of Work:

(a) Customer's right to use the Services and all LK MShare Confidential Information will end;

(b) LK MShare will cease providing the applicable Services;

(c) Confidential Information of the disclosing party will be returned or destroyed by the receiving party as required in writing by the disclosing party;

(d) Customer will promptly pay to LK MShare all outstanding amounts due under the Terms and Conditions and any related Statement of Work; and

(e) other agreements between Customer and LK MShare will not be affected.

6.5 Survival.

Sections 1, 2.4, 2.5, 5, 6.4, 6.5, 8, 9, 10, 11, and 13 will survive the expiration or termination of the Terms and Conditions.

7. WARRANTIES

7.1 Compliance with Law.

 

Each party warrants its current and continuing compliance with all laws and regulations applicable to it in connection with (i) in the case of LK MShare, the operation of LK MShare's business as it relates to the Services, and (ii) in the case of Customer, the Customer Data and Customer's use of the Software, Services, and Documentation.

7.2 Disclaimer.

EXCEPT AS EXPRESSLY PROVIDED IN THE TERMS AND CONDITIONS OR ANY RELATED STATEMENT OF WORK, NEITHER LK MSHARE NOR ITS AFFILIATES OR SUBCONTRACTORS MAKE ANY REPRESENTATION OR WARRANTY, AND LK MSHARE AND ITS SUBCONTRACTORS DISCLAIM ALL REPRESENTATIONS, WARRANTIES, TERMS, CONDITIONS, OR STATEMENTS THAT MAY HAVE EFFECT BETWEEN THE PARTIES OR BE IMPLIED OR INCORPORATED INTO THE TERMS AND CONDITIONS OR ANY RELATED STATEMENT OF WORK OR OTHER AGREEMENT, WHETHER BY STATUTE, COMMON LAW, OR OTHERWISE, ALL OF WHICH ARE EXCLUDED TO THE FULLEST EXTENT PERMITTED BY LAW, INCLUDING THE IMPLIED CONDITIONS, WARRANTIES, OR OTHER TERMS AS TO MERCHANTABILITY, SUITABILITY, ORIGINALITY, OR FITNESS FOR A PARTICULAR USE OR PURPOSE. In addition, except as expressly provided in the Terms and Conditions or any related Statement of Work, neither LK MShare nor its subcontractors make any representations, warranties, terms, conditions, or statements of non-infringement or results to be derived from the use of or integration with any Software, Services, or Documentation provided under the Terms and Conditions, or that the operation of any Software, Services, or Documentation will be secure, uninterrupted, or error free. Customer agrees that, apart from these Terms and Conditions and any related Statement of Work, Customer is not relying on delivery of future functionality, public comments, LK MShare advertising, or descriptions of the Services in entering into the Terms and Conditions or any Related Statement of Work. Customer acknowledges that (i) the Services have not been specifically designed to meet its and/or any of its customer's or end-user's individual requirements, and (ii) the Services will not be error- free, uninterrupted, or free from unauthorized access. Except as expressly stated in the Terms and Conditions, the Services are provided on an “as is” and “as available” basis.

8. THIRD PARTY CLAIMS

8.1 Claims Brought Against Customer.

(a) LK MShare will defend Customer against claims brought against Customer by any third party alleging that Customer's use of the Services infringes or misappropriates a patent claim, copyright, or trade secret right. LK MShare will indemnify Customer against all damages finally awarded against Customer, or the amount of any settlement into which LK MShare enters, with respect to these claims.

(b) LK MShare's obligations under Section 8.1 will not apply if the claim results from (i) Customer's breach of the Terms and Conditions or any related Statement of Work, (ii) use of the Services in conjunction with any product or service not provided by LK MShare, or (iii) use of the Services provided for no fee.

(c) in the event a claim described in Section 8.1(a) is made or likely to be made, LK MShare may (i) procure for Customer the right to continue using the Services under the Terms and Conditions, or (ii) replace or modify the Services to be non-infringing without material decrease in functionality. If these options are not reasonably available, LK MShare or Customer may terminate Customer's access to the affected Services upon written notice to the other.

8.2 Third Party Claim Procedure.

(a) Customer will timely notify LK MShare in writing of any claim.

(b) LK MShare will have the right to fully control the defense, and LK MShare may, in its sole discretion, delegate such claim to its third party insurer or indemnifier.

(c) Customer will fully cooperate in the defense of such claim and will not undertake any action that is prejudicial to LK MShare's rights.

(d) Customer will not undertake any action in response to any infringement or misappropriation, or alleged infringement or misappropriation, that is prejudicial to LK MShare's rights.

8.3 Exclusive Remedy.

The provisions in Section 8 state the sole, exclusive, and entire liability of LK MShare and subcontractors to Customer, and provide Customer's sole remedy with respect to third party claims and the infringement or misappropriation of third party Intellectual Property Rights.

8.4 Claims Brought Against LK MShare.

Customer agrees to defend, indemnify, and hold harmless LK MShare and its authorized licensees, and their respective officers, directors, employees, agents, and contractors for, from, and against any and all claims, demands, damages, losses, liabilities, judgments, costs, or expenses, including reasonable investigation expenses and attorneys' fees, arising out of or related to (a) Customer's breach of any of the Terms and Conditions or any related Statement of Work, (b) Customer's use of the Software, Services, or Documentation in violation of the Terms and Conditions or any related Statement of Work, and/or (c) Customer's gross negligence, fraud, or willful misconduct.

9. LIMITATION OF LIABILITY

9.1 Unlimited Liability.

Neither party will exclude or limit its liability for damages resulting from:

(a) LK MShare's obligations under Section 8.1(a);

(b) Customer's obligations under any Indemnity;

(c) unauthorized use or disclosure of Confidential Information;

(d) fraud or fraudulent misrepresentation;

(e) any failure by Customer to pay any fees due under the Terms and Conditions or any related Statement of Work; or

(f) any liability that cannot be excluded or limited by applicable law.

9.2 Liability Cap.

Subject to Sections 9.1 and 9.3, under no circumstances, and regardless of the nature of the claim, will the maximum aggregate liability of LK MShare (however arising), or LK MShare's respective affiliates or subcontractors, to Customers or its affiliates or any other person or entity, under or in connection with the Terms and Conditions or any related Statement of Work, including, but not limited to, liability for breach of contract, tort (including but not limited to negligence), misrepresentation, (whether tortious or statutory), breach of statutory duty, breach of warranty, claims by third parties from any repudiatory, material, or other breach of the Terms and Conditions or any related Statement of Work, whether or not intentional, from willful misconduct or otherwise, exceed $10,000 for all events or series of connected events arising in any twelve (12) month period. Any “twelve (12) month period” commences on the Term start date or any of its yearly anniversaries.

9.3 Exclusion of Damages.

Subject to Section 9.1:

(a) Under no circumstances will either party, nor its respective affiliates or LK MShare's subcontractors, be liable to the other party or its affiliates or subcontractors, or any other person or entity (whether or not the other party had been advised of the possibility of such loss or damage) for any of the following types of loss or damage arising under or relating to the Terms and Conditions and any related Statement of Work, whether arising out of liability under breach of contract, tort (including but not limited to negligence), misrepresentation (whether tortious or statutory), breach of statutory duty, breach of warranty, claims by third parties from any repudiatory, material, or other breach (however minor) of the Terms and Conditions, whether or not intentional:

(i) any loss or inaccuracy of data, (ii) loss of profits, (iii) loss of business, (iv) loss resulting from business disruption, (v) loss of contracts, (vi) loss of revenue, (vii) loss of anticipated savings, (viii) loss of goodwill, (ix) loss of reputation, regardless of whether these types of loss or damage listed in this sub-clause (i) are direct, indirect, special, or consequential (such damages to be limited to the extent permitted by law in jurisdictions that do not permit their exclusion); or

(ii) any special, incidental, consequential, or indirect losses or damages, or for exemplary or punitive damages; and

(b) LK MShare will not be liable for any damages caused by any Services it provides for no fee.

9.4 Risk Allocation.

The Terms and Conditions and any related Statement of Work allocate the risks between LK MShare and Customer. LK MShare and Customer acknowledge that the fees for the Services reflect this allocation of risk and limitations of liability.

10. INTELLECTUAL PROPERTY RIGHTS

10.1 LK MShare Ownership.

LK MShare owns all Intellectual Property Rights in and related to the Software, Services, and Documentation, design contributions, related knowledge or processes, and any derivative works of them, including any feedback Customer may provide to LK MShare about the Software, Services, or Documentation in connection with Customer's use of the Services. All rights not expressly granted to Customer are reserved to LK MShare and its licensors.

10.2 Customer Ownership.

Customer retains all rights in and related to Customer Data as between Customer and LK MShare.

10.3 Non-Assertion of Rights.

Customer covenants, on behalf of itself and its successors and assigns, not to assert against LK MShare or LK MShare's licensors any rights, or any claims of any rights, in any Software, Services, or Documentation.

11. CONFIDENTIALITY

11.1 Use of Confidential Information.

(a) The receiving party will protect all Confidential Information of the disclosing party as strictly confidential to the same extent it protects its own Confidential Information, exercising not less than a reasonable standard of care. The receiving party will not disclose any Confidential Information of the disclosing party to any person other than its employees or representatives, or those of its subcontractors, whose access is necessary to enable it to exercise its rights or perform its obligations under the Terms and Conditions or any related Statement of Work, and who are under obligations of non-disclosure and non-use at least as strict as those in Section 11. Customer will not disclose the Terms and Conditions or the pricing for the Services to any third party.

(b) Confidential Information of either party disclosed prior to execution of the Terms and Conditions will be subject to Section 11.

(c) The receiving party will return or destroy all Confidential Information promptly after being requested to do so by the disclosing party, according to the disclosing party's instructions.

11.2 Exceptions.

The restrictions on use or disclosure of Confidential Information will not apply to any Confidential Information that:

(a) is independently developed by the receiving party without reference to the disclosing party's Confidential Information;

(b) is available to the public without breach of the Terms and Conditions by the receiving party;

(c) at the time of disclosure, was known to the receiving party apart from any confidentiality restrictions; or

(d) the disclosing party agrees in writing is free of confidentiality restrictions.

11.3 Compelled Disclosure>

The receiving party may disclose Confidential Information pursuant to a lawful requirement or request from a court or governmental agency; provided that, prior to making any disclosure, the receiving party will (a) give the disclosing party written notice, to the extent commercially practicable and not otherwise prohibited by law, sufficient to allow the disclosing party to seek a protective order or other appropriate remedy, and (b) disclose only that portion of the Confidential Information it is required to disclose, based on advice of its counsel, to comply with such legal requirement, and will use commercially reasonable efforts to obtain confidential treatment for any of the Confidential Information so disclosed.

11.4 Publicity.

Neither party will use the other party's name in publicity activities without the prior written consent of the other, except that Customer agrees that LK MShare may use Customer's name and logo in customer listings (e.g., on the MUDSHARE and CaretX website), at times mutually agreeable to the parties, as part of LK MShare's marketing efforts. Customer agrees that LK MShare may share information regarding Customer with its contractors for marketing and other business purposes, and that it has secured appropriate authorizations to share Customer's employee contact information with LK MShare.

12. DATA PROTECTION

12.1 Data Controller.

The Customer acknowledges that, in some instances, LK MShare will act as an independent Data Controller with respect to the processing of Personal Data that is necessary to provide the Services and carry out its necessary functions and business as a communication services provider, including necessary measures to prevent spam and fraud and measures for control, security, and maintenance of its network, and management of its business and compliance functions, consistent with its obligations under applicable laws, including Data Protection Law, and the DPA.

12.2 Data Processor.

When LK MShare processes Personal Data on behalf of Customer in accordance with Data Protection Law, LK MShare will be a Data Processor, and the Customer will be a Data Controller, as defined in the Terms and Conditions and the DPA applicable to the Services.

(a) The parties agree that Section 4.3 applies when LK MShare acts as a Data Processor, and Customer acts as a Data Controller, within the meaning of applicable Data Protection Law.

(b) As provided in the DPA, each party will comply with applicable Data Protection Law. Customer has the obligation to inform LK MShare, in writing, about the Data Protection Law applicable to such processing of Personal Data for which the Customer is the Data Controller and LK MShare is the Data Processor.

(c) Customer represents, warrants, and covenants that Customer has and will maintain all necessary rights, licenses, and consents to provide LK MShare with Customer Data. LK MShare may require that Customer provides evidence thereof whenever necessary and in accordance with the Terms and Conditions and any related Statement of Work.

(d) The Customer acknowledges and agrees that LK MShare may retain, store, use, and disclose Customer Data to the extent necessary to provide and improve the Services and to satisfy applicable legal, accounting, or regulatory requirements. LK MShare will establish processes to ensure compliance with applicable laws.

13. MISCELLANEOUS

13.1 Severability.

If any provision in the Terms and Conditions is held to be invalid or unenforceable, the invalidity or unenforceability will not affect other provisions in the Terms and Conditions.

13.2 No Waiver.

LK MShare or Customer's waiver of any breach of the Terms and Conditions will not be deemed a waiver of any other breach.

13.3 Electronic Signature.

Electronic signatures that comply with applicable law are deemed original signatures.

13.4 Notices.

All notices under these Terms and Conditions must be in writing and are deemed given to LK MShare or Customer when delivered to that party's address set forth in a related Statement of Work. Notices by LK MShare relating to the operation or support of the Services, and as otherwise permitted in the Terms and Conditions (including, but not limited to, those under Sections 2.7 and 5.1) or any related Statement of Work, may be emailed to LK MShare's or Customer's authorized representative or administrator, with such notice deemed to have been given upon dispatch from either party's email server.

13.5 Assignment.

Without LK MShare's prior written consent, Customer may not assign or transfer the Terms and Conditions, or any of its rights or obligations, to any third party. Any attempted assignment in violation of the provisions of this Section 13.5 will be void.

13.6 Subcontracting.

LK MShare may subcontract parts of the Services to third parties. LK MShare will be responsible for breaches of the Terms and Conditions and any related Statement of Work caused by its subcontractors.

13.7 Relationship of the Parties.

The parties are independent contractors, and no partnership, franchise, joint venture, agency, fiduciary, or employment relationship between the parties is created by the Terms and Conditions or any related Statement of Work.

13.8 Rights of Third Parties.

Except as specifically provided for in the Terms and Conditions, the Terms and Conditions do not give rise to any third party being a third party beneficiary of the Terms and Conditions or being entitled to any rights whatsoever, including, but not limited to, the right to enforce any provision in the Terms and Conditions or any related Statement of Work.

13.9 Force Majeure.

Any delay in performance, other than for the payment of amounts due, caused by a condition beyond the reasonable control of the performing party is not a breach of the Terms and Conditions or any related Statement of Work. The time for performance will be extended for a period equal to the duration of the condition preventing performance.

13.10 Anti-Corruption

LK MShare and Customer, in addition to acting according to the Terms and Conditions and any related Statement of Work, will comply with all applicable anticorruption and bribery legislation. Neither party nor its officers, directors, employees, contractors, agents, affiliates, delegates, or representatives will pay, offer or promise to pay, or authorize the payment, directly or indirectly, of any money, gift, or any other type of favor to an official or employee of a private organization or company, a government or state agency, an agency or company of which the majority principal is a state body, public organization, candidate for public office, political party, member of a political party, or any person acting in an official governmental capacity, or any person or entity acting for or for the benefit of any of the parties mentioned in this Section 13.10, for the purpose of influencing any action or decision, whether to obtain a commercial advantage or to obtain or retain business, or to direct transactions for any person. LK MShare and Customer further agree to maintain books, records, and accounts that, in reasonable detail, accurately and fairly reflect the transactions undertaken, and will maintain and provide to the other party, upon written request (email permitted), information that is reasonably required to verify compliance with this Section 13.10.

13.11 Governing Law and Dispute Resolution.

(a) The Terms and Conditions and any related Statement of Work will be governed by, and construed in accordance with, federal law of the United States and the laws of the state of Florida, without reference to conflicts of law principles. All disputes will be subject to the exclusive jurisdiction of the federal and state courts located in Florida.

(b) Any dispute arising out of or relating to the Terms and Conditions or any related Statement of Work will be resolved by arbitration in Florida, administered by Judicate West, JAMS, or the American Arbitration Association under its commercial arbitration rules. Judgment on the arbitrator's award may be entered in any court in Florida having jurisdiction of the dispute. Nothing in this Section 13.11(b) will prevent either party from applying to a court of competent jurisdiction for equitable or injunctive relief. Both parties irrevocably waive their right to a jury trial.

13.12 Entire Terms and Conditions.

The Terms and Conditions, any related Statement of Work, DPA, and Privacy Policy constitute the complete and exclusive statement of the agreement between LK MShare and Customer relating to the subject matter of such agreements, and supersede all prior agreements, arrangements, and understandings between the parties relating to the subject matter therein. Each party acknowledges that, in entering into the Terms and Conditions and any related Statement of Work, it has not relied on any representation, discussion, collateral agreement, or other assurance, except those expressly set out in the foregoing agreements. Each party waives all rights and remedies that, but for this Section 13.12, may otherwise be available to it arising from or related to any such representation, discussion, collateral agreement, or other assurance. Except as permitted in Section 3.3, the Terms and Conditions and any related Statement of Work may be modified only in a writing signed by both parties.

Glossary

1.1 "Confidential Information" means

(a) with respect to Customer, (i) Customer's marketing and business requirements, (ii) Customer's implementation plans, (iii) Customer Data, and (iv) Customer's financial information; and

(b) with respect to LK MShare, (i) the Software, Services, and Documentation, (ii) LK MShare's intellectual property and proprietary information, and (ii) information regarding LK MShare's research and development, product offerings, pricing, and availability.

(c) Confidential Information of either LK MShare or Customer also includes information which the disclosing party protects against unrestricted disclosure to others that (i) the disclosing party or its representatives designates as confidential in writing (email permitted) at the time of disclosure, or (ii) should reasonably be understood to be confidential given the nature of the information and the circumstances surrounding its disclosure.

1.2 “Customer Data” means any content, communications, data (including Personal Data), and/or information that Customer delivers or uploads to the MUDSHARE and CaretX Network or provides via the Services. Customer Data and its derivatives do not include LK MShare's Confidential Information nor any usage data that arises or LK MShare generates in supplying the Services.

1.3 “Data Controller” has the meaning given in the GDPR.

1.4 “Data Processor” has the meaning given in the GDPR.

1.5 “Data Processing Agreement” is the Data Processing Agreement (“DPA”) applicable to the Services, the most recent version of which can be found at www.mudshare.com/dpa.

1.6 “Data Protection Law” means the relevant laws and other regulations applicable to the collection, use, storage, disclosure, and processing of Personal Data, including, but not limited to, and as far as applicable, the General Data Protection Regulation (“GDPR”), the California Consumer Privacy Act, as amended by the California Privacy Rights Act (“CCPA”), and as further defined in the DPA.

1.7 “Documentation” means LK MShare's then-current technical and functional documentation and any service descriptions and roles and responsibilities descriptions, if applicable, for the Software and Services, which are made available to Customer with the Services.

1.8 “Excluded Event(s)” means any of the following: (i) a fault in, or any other problem associated with, systems not operated or managed by LK MShare; (iii) any breach of the Terms and Conditions or any related Statement of Work by the Customer or by an authorized representative or third-party within the Customer's direct control, or by any third party supplier to the Customer; (iv) any act by the Customer or its authorized representative that interferes with or impedes LK MShare's supply and support of the Services; (v) any suspension of the Services in accordance with the Terms and Conditions or any related Statement of Work; or (vi) any other circumstances caused by events for which LK MShare is not liable in accordance with the Terms and Conditions or any related Statement of Work.

1.9 “General Data Protection Regulation” or “GDPR” means the General Data Protection Regulation (EU) 2016/679 of the European Parliament and the Council, as amended, supplemented, or modified from time to time.

1.10 “Indemnity” means any section within the Terms and Conditions, any related Statement of Work, or Supplement that is identified as an indemnity either by its wording or its heading.

1.11 “Intellectual Property Rights” means copyrights, database rights, patents, patent applications, patent rights, trademarks, trademark applications, trademark registrations, trademark rights, trade secrets, rights in know-how, and all other intellectual property and proprietary information rights as may exist now or hereafter come into existence under the laws of any country, and all pending applications for and rights to apply for or register the same, whether present, future, or contingent, and including all renewals, extensions, revivals, and all accrued rights of action.

1.12 “MUDSHARE and CaretX Network” means the digital networks (wireless or otherwise), server(s), hardware, Software and/or any other equipment that LK MShare (dba MUDSHARE and CaretX) owns, operates, or leases, in its sole discretion, in connection with the supply of the Services, including any extranet access provided by LK MShare in connection with the supply of the Services.

1.13 “Statement of Work” means any ordering document for Services entered into by and between LK MShare and Customer, or Customer's authorized representative on behalf of Customer, in connection with the Terms and Conditions.

1.14 “Personal Data” means information about an individual that is defined as “personal data” or “personal information,” as defined in the DPA and, if applicable, further defined in the applicable Data Protection Law.

1.15 “Services” means any distinct service or services that LK MShare provides pursuant to any Statement of Work related to these Terms and Conditions, including any support associated with such service(s).

1.16 “Software” means LK MShare's proprietary Software that Customer will use to access and use the Services.

1.17 “Supplement” means the Supplemental Terms and Conditions that apply to the Services and that are incorporated into any related Statement of Work.

1.18 “Term” means the term identified in the applicable Statement of Work, including all renewals.