This Sales Service Agreement (this “Agreement”) is entered into by and between Flex Technology Co., a Delaware corporation (“Flex”) and the individual or entity who procures access to the Flex Platform (as defined below) in the manner described herein(“Customer”). Flex and Customer may be referred to herein collectively as the “Parties” or individually as a “Party.” This Agreement is effective as of the date that Customer agrees to be bound by this Agreement as described below (“Effective Date”).

By executing an Order (as defined below) or otherwise accessing or using the Flex Platform, you signify that you have read, understood, and agree to be bound by this Agreement. Flex reserves the right to modify this Agreement and will provide notice of these changes as described below.

As used herein, “Order” means: (a) the purchase order, order form, or other ordering document entered into by the Parties that incorporates this Agreement by reference; or (b) if Customer registered for the Flex Platform through Flex’s self-serve online ordering process, the results of such online ordering process.

The Parties agree as follows:

1. Definitions.

1.1 Authorized User
"Authorized User" means Customer’s employees, consultants, contractors, and agents who are authorized by Customer to access and use the Flex Platform under the rights granted to Customer pursuant to this Agreement.

1.2 Customer Data
"Customer Data" means information, data, and other content, in any form or medium, that is submitted, posted, or otherwise transmitted by or on behalf of Customer or an Authorized User through the Flex Platform; provided that, for purposes of clarity, Customer Data does not include Derivative Data.

1.3 Derivative Data
"Derivative Data" means data and information related to or derived from Customer Data or Customer’s use of the Flex Platform that has been aggregated and/or anonymized by Flex.

1.4 Documentation
"Documentation" means any end user documentation made available by Flex in connection with the Flex Platform.

1.5 Flex Platform
"Flex Platform" means Flex’s proprietary hosted software platform and related transactional services, including without limitation Flex’s Inventory Information Approval System (IIAS) solution, telehealth letter of medical necessity (LOMN) evaluation solution, or any related payment processing services, and any Flex Software and Documentation provided in connection with the Flex Platform, in each case as made available to Customer by Flex.

1.6 Flex Software
"Flex Software" means any software, agents, SDKs, APIs, or other code made available by Flex in connection with the Flex Platform.

1.7 Harmful Code
"Harmful Code" means any software, hardware, or other technology, device, or means, including any virus, worm, malware, or other malicious computer code, the purpose or effect of which is to permit unauthorized access to, or to destroy, disrupt, disable, distort, or otherwise harm or impede in any manner any (a) computer, software, firmware, hardware, system, or network; or (b) any application or function of any of the foregoing or the security, integrity, confidentiality, or use of any data processed thereby.

1.8 Third-Party Products
"Third-Party Products" means any third-party products provided with, integrated with, or incorporated into the Flex Platform.

1.9 Usage Limitations
"Usage Limitations" means the usage limitations set forth in this Agreement and the Order.

2. Access and Use.

2.1 Provision of Access.
Subject to and conditioned on Customer’s compliance with the terms and conditions of this Agreement, including without limitation the Usage Limitations, Flex will make available to Customer during the Subscription Period, on a non-exclusive, non-transferable (except in compliance with Section 11.8), and non-sublicensable basis, access to and use of the Flex Platform, solely for use by Authorized Users. Such use is limited to Customer’s own business purposes in connection with Customer’s products and services, and the features and functionalities specified in the Order. To the extent Flex provides Customer with any Flex Software and Documentation, Flex grants to Customer a limited, non-exclusive, non-transferable (except in compliance with Section 11.8), and non-sublicensable right and license to use the Flex Software and Documentation during the applicable Subscription Period solely as reasonably necessary for Customer’s use of the Flex Platform in accordance with this Agreement.

2.2 Use Restrictions.
Customer shall not use the Flex Platform for any purposes beyond the scope of the access granted in this Agreement. Customer shall not at any time, directly or indirectly, and shall not permit any Authorized Users to: (a) copy, modify, or create derivative works of the Flex Platform, whether in whole or in part; (b) rent, lease, lend, sell, license, sublicense, assign, distribute, publish, transfer, or otherwise make the Flex Platform available to, or use the Flex Platform on behalf of, any third party other than Customer’s end users; (c) reverse engineer, disassemble, decompile, decode, adapt, or otherwise attempt to derive or gain access to any software component of the Flex Platform, in whole or in part, other than as authorized by Flex under this Agreement; (d) remove any proprietary notices from the Flex Platform; (e) use the Flex Platform in any manner or for any purpose that infringes, misappropriates, or otherwise violates any intellectual property right or other right of any person, or that violates any applicable law; (f) access or use the Flex Platform for purposes of competitive analysis of Flex or the Flex Platform, the development, provision, or use of a competing software service or product, or any other purpose that is to Flex’s detriment or commercial disadvantage; (g) bypass or breach any security device or protection used by the Flex Platform; or (h) input, upload, transmit, or otherwise provide to or through the Flex Platform any information or materials that are unlawful or injurious, or that contain, transmit, or activate any Harmful Code.

2.3 Reservation of Rights.
Flex reserves all rights not expressly granted to Customer in this Agreement. Except for the limited rights and licenses expressly granted under this Agreement, nothing in this Agreement grants, by implication, waiver, estoppel, or otherwise, to Customer or any third party any intellectual property rights or other right, title, or interest in or to the Flex Platform.

2.4 Suspension.
Notwithstanding anything to the contrary in this Agreement, Flex may temporarily suspend Customer’s access to any portion or all of the Flex Platform if: (a) Flex reasonably determines that (i) there is a threat or attack on the Flex Platform; (ii) Customer’s use of the Flex Platform disrupts or poses a security risk to the Flex Platform or to any other customer or vendor of Flex; (iii) Customer is using the Flex Platform for fraudulent or illegal activities; (iv) subject to applicable law, Customer has ceased to continue its business in the ordinary course, made an assignment for the benefit of creditors or similar disposition of its assets, or become the subject of any bankruptcy, reorganization, liquidation, dissolution, or similar proceeding; or (v) Flex’s provision of the Flex Platform to Customer or any Authorized User is prohibited by applicable law; (b) any vendor of Flex has suspended or terminated Flex’s access to or use of any Third-Party Products required to enable Customer to access the Flex Platform; or (c) in accordance with Section 4.2 (any such suspension described in subclause (a), (b), or (c), a “Service Suspension” ). Flex shall use commercially reasonable efforts to provide written notice of any Service Suspension to Customer and to provide updates regarding resumption of access to the Flex Platform following any Service Suspension. Flex will have no liability for any damage, liabilities, losses (including any loss of data or profits), or any other consequences that Customer or any Authorized User may incur as a result of a Service Suspension.

2.5 Derivative Data.
Notwithstanding anything to the contrary in this Agreement, Flex may monitor Customer’s use of the Flex Platform and collect and compile Derivative Data. As between Flex and Customer, all right, title, and interest in Derivative Data, and all intellectual property rights therein, belong to and are retained solely by Flex. Customer acknowledges that Flex may compile Derivative Data based on Customer Data input into the Flex Platform. Notwithstanding anything to the contrary in this Agreement, Customer acknowledges that Flex may use and disclose Derivative Data for any lawful purpose.

3. Customer Responsibilities.

3.1 General.
Customer is responsible and liable for all uses of the Flex Platform resulting from access provided by Customer. Without limiting the generality of the foregoing, Customer is responsible for all acts and omissions of Authorized Users, and any act or omission by an Authorized User that would constitute a breach of this Agreement if taken by Customer will be deemed a breach of this Agreement by Customer. Customer shall make all Authorized Users aware of the provisions of this Agreement that are applicable to such Authorized User’s use of the Flex Platform and shall cause Authorized Users to comply with such provisions.

3.2 Third Party Products.
Flex may from time to time make Third-Party Products available to Customer or Flex may allow for certain Third-Party Products to be integrated with the Flex Platform to allow for the transmission of Customer Data from such Third-Party Products into the Flex Platform or Flex’s provision of the Flex Platform. For purposes of this Agreement, such Third-Party Products are subject to their own terms and conditions. If Customer does not agree to abide by the applicable terms for any such Third-Party Products, then Customer should not install or use such Third-Party Products. By authorizing Flex to transmit Customer Data from Third-Party Products into the Flex Platform or use Customer Data in connection with Third-Party Products to provide the Flex Platform, Customer represents and warrants to Flex that it has all right, power, and authority to provide such authorization.

3.3 Customer Control and Responsibility.
Customer has and will retain sole responsibility for: (a) all Customer Data, including its content and use; (b) all information, instructions, and materials provided by or on behalf of Customer or any Authorized User in connection with the Flex Platform; (c) Customer’s information technology infrastructure, including computers, software, databases, electronic systems (including database management systems), and networks, whether operated directly by Customer or through the use of third-party Flex Platform (“Customer Systems”); (d) the security and use of Customer’s and its Authorized Users’ access credentials; and (e) all access to and use of the Flex Platform directly or indirectly by or through the Customer Systems or its or its Authorized Users’ access credentials, with or without Customer’s knowledge or consent, including all results obtained from, and all conclusions, decisions, and actions based on, such access or use.

4. Fees and Taxes.

4.1 Fees.
Customer shall pay Flex (a) the subscription fees identified in the Order (the “Subscription Fees”) without offset or deduction at the cadence identified in the Order (e.g., monthly), and (b) the Service Fees (as defined below) identified in the Order (collectively with the Subscription Fees, the “Fees”). Fees paid by Customer are non-refundable. Customer shall make all payments hereunder in US dollars. By agreeing to the terms of this Agreement, Customer agrees that Flex’s third-party payment processor, Stripe, Inc. (“Stripe”), may process Customer’s payment of the Fees. Please see Stripe’s Services Agreement, available at https://stripe.com/us/legal, and Stripe’s Privacy Policy, available at https://stripe.com/us/privacy, as each may be amended by Stripe in accordance with the terms set forth therein, for information on how Stripe collects and uses personal information. As used herein, “Service Fees” means a specified percentage of the sales price of each transaction made by an end user of Customer through the the Flex Platform.

4.2 Late Payments.
If Customer fails to make any payment when due, and Customer has not notified Flex in writing within ten (10) days of the payment becoming due and payable that the payment is subject to a good faith dispute, without limiting Flex’s other rights and remedies: (a) Flex may charge interest on the undisputed past due amount at the rate of 1.5% per month, calculated daily and compounded monthly or, if lower, the highest rate permitted under applicable law; (b) Customer shall reimburse Flex for all reasonable costs incurred by Flex in collecting any late payments or interest, including attorneys’ fees, court costs, and collection agency fees; and (c) if such failure continues for ten (10) days or more, Flex may suspend Customer’s access to all or any part of the Flex Platform until such amounts are paid in full.

4.3 Taxes.
All Fees and other amounts payable by Customer under this Agreement are exclusive of taxes and similar assessments. Customer is responsible for all sales, use, and excise taxes, and any other similar taxes, duties, and charges of any kind imposed by any federal, state, or local governmental or regulatory authority on any amounts payable by Customer hereunder, other than any taxes imposed on Flex’s income.

5. Confidential Information.

5.1 Definition.
From time to time during the Subscription Period, either Party may disclose or make available to the other Party information about its business affairs, products, confidential intellectual property, trade secrets, third-party confidential information, and other sensitive or proprietary information, whether orally or in written, electronic, or other form or media that: (a) is marked, designated or otherwise identified as “confidential” or something similar at the time of disclosure or within a reasonable period of time thereafter; or (b) would be considered confidential by a reasonable person given the nature of the information or the circumstances of its disclosure (collectively, “Confidential Information”). Confidential Information does not include information that, at the time of disclosure is: (i) in the public domain; (ii) known to the receiving Party at the time of disclosure; (iii) rightfully obtained by the receiving Party on a non-confidential basis from a third party; or (iv) independently developed by the receiving Party without use of, reference to, or reliance upon the disclosing Party’s Confidential Information.

5.2 Duty.
The receiving Party shall not disclose the disclosing Party’s Confidential Information to any person or entity, except to the receiving Party’s employees, contractors, and agents who have a need to know the Confidential Information for the receiving Party to exercise its rights or perform its obligations hereunder ( “Representatives”). The receiving Party will be responsible for all the acts and omissions of its Representatives as they relate to Confidential Information hereunder. Notwithstanding the foregoing, each Party may disclose Confidential Information to the limited extent required (a) in order to comply with the order of a court or other governmental body, or as otherwise necessary to comply with applicable law, provided that the Party making the disclosure pursuant to the order shall first have given written notice to the other Party and made a reasonable effort to obtain a protective order; or (b) to establish a Party’s rights under this Agreement, including to make required court filings. Further, notwithstanding the foregoing, each Party may disclose the terms and existence of this Agreement to its actual or potential investors, debtholders, acquirers, or merger partners under customary confidentiality terms.

5.3 Return of Materials; Effects of Termination/Expiration.
On the expiration or termination of the Agreement, the receiving Party shall promptly return to the disclosing Party all copies, whether in written, electronic, or other form or media, of the disclosing Party’s Confidential Information, or destroy all such copies and certify in writing to the disclosing Party that such Confidential Information has been destroyed. Each Party’s obligations of non-use and non-disclosure with regard to Confidential Information are effective as of the Effective Date and will expire three (3) years from the date of termination or expiration of this Agreement; provided, however, with respect to any Confidential Information that constitutes a trade secret (as determined under applicable law), such obligations of non-disclosure will survive the termination or expiration of this Agreement for as long as such Confidential Information remains subject to trade secret protection under applicable law.

6. Intellectual Property Ownership; Feedback.

6.1 Flex Platform.
Customer acknowledges that, as between Customer and Flex, Flex owns all right, title, and interest, including all intellectual property rights, in and to the Flex Platform and, with respect to Third-Party Products, the applicable third-party providers own all right, title, and interest, including all intellectual property rights, in and to the Third-Party Products.

6.2 Customer Data.
Flex acknowledges that, as between Flex and Customer, Customer owns all right, title, and interest, including all intellectual property rights, in and to the Customer Data. Customer hereby grants to Flex a non-exclusive, royalty-free, worldwide license to reproduce, distribute, and otherwise use and display the Customer Data and perform all acts with respect to the Customer Data as may be necessary for Flex to provide the Flex Platform and to create Derivative Data.

6.3 Feedback.
If Customer or any of its employees or contractors sends or transmits any communications or materials to Flex by mail, email, telephone, or otherwise, suggesting or recommending changes to the Flex Platform, including without limitation, new features or functionality relating thereto, or any comments, questions, suggestions, or the like (“Feedback”), Flex is free to use such Feedback irrespective of any other obligation or limitation between the Parties governing such Feedback.

7. Warranty Disclaimer.

THE FLEX PLATFORM IS PROVIDED “AS IS” AND FLEX HEREBY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE. FLEX SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT, AND ALL WARRANTIES ARISING FROM COURSE OF DEALING, USAGE, OR TRADE PRACTICE. FLEX MAKES NO WARRANTY OF ANY KIND THAT THE FLEX PLATFORM, ANY THIRD-PARTY PRODUCTS OR ANY OTHER PRODUCTS OR SERVICES MADE AVAILABLE TO CUSTOMER IN CONNECTION WITH THIS AGREEMENT, OR RESULTS OF THE USE OF ANY OF THE FOREGOING, WILL MEET CUSTOMER’S OR ANY OTHER PERSON’S REQUIREMENTS, OPERATE WITHOUT INTERRUPTION, ACHIEVE ANY INTENDED RESULT, BE COMPATIBLE OR WORK WITH ANY SOFTWARE, SYSTEM OR OTHER PLATFORM, OR BE SECURE, ACCURATE, COMPLETE, FREE OF HARMFUL CODE, OR ERROR FREE.

8. Idemnification.

8.1 Flex Idemnification.
(a) Flex shall indemnify, defend, and hold harmless Customer from and against any and all losses, damages, liabilities, costs (including reasonable attorneys’ fees) (“Losses”) incurred by Customer resulting from any third-party claim, suit, action, or proceeding (“Third-Party Claim”) that the Flex Platform, or any use of the Flex Platform in accordance with this Agreement, infringes or misappropriates such third party’s US copyrights or trade secrets; provided that Customer promptly notifies Flex in writing of the claim, cooperates with Flex, and allows Flex sole authority to control the defense and settlement of such claim.
(b) If such a claim is made or appears possible, Customer agrees to permit Flex, at Flex’s sole discretion: to (i) modify or replace the Flex Platform, or component or part thereof, to make it non-infringing; or (ii) obtain the right for Customer to continue use. If Flex determines that neither alternative is reasonably commercially available, Flex may terminate this Agreement, in its entirety or with respect to the affected component or part, effective immediately on written notice to Customer.
(c) This Section 8.1 will not apply to the extent that the alleged infringement arises from: (i) use of the Flex Platform in combination with data, software, hardware, equipment, or technology not provided by Flex or authorized by Flex in writing; (ii) modifications to the Flex Platform not made by Flex; (iii) Customer Data; or (iv) Third-Party Products.

8.2 Customer Indemnification.
Customer shall indemnify, hold harmless, and, at Flex’s option, defend Flex from and against any Losses resulting from any Third-Party Claim arising from (a) the Customer Data, including Customer’s provision of Customer Data or Flex’s use of the Customer Data in accordance with this Agreement; (b) Customer’s or any Authorized User’s negligence or willful misconduct; (c) Customer’s or any Authorized User’s use of the Flex Platform in a manner not authorized by this Agreement; or (d) Customer’s or any Authorized User’s use of the Flex Platform in combination with data, software, hardware, equipment or technology not provided by Flex or authorized by Flex in writing; in each case provided that Customer may not settle any Third-Party Claim against Flex unless Flex consents to such settlement, and further provided that Flex will have the right, at its option, to defend itself against any such Third-Party Claim or to participate in the defense thereof by counsel of its own choice.

9. Limitations of Liability.

TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL FLEX BE LIABLE TO YOU OR ANY PERSON OR ENTITY AFFILIATED WITH YOU UNDER OR IN CONNECTION WITH THIS AGREEMENT OR THE FLEX PLATFORM, UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE, FOR ANY: (a) CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, ENHANCED, OR PUNITIVE DAMAGES; (b) INCREASED COSTS, DIMINUTION IN VALUE, BUSINESS INTERRUPTION OR LOST BUSINESS, PRODUCTION, REVENUES, OR PROFITS; (c) LOSS OF GOODWILL OR REPUTATION; (d) USE, INABILITY TO USE, LOSS, INTERRUPTION, DELAY OR RECOVERY OF ANY DATA, OR BREACH OF DATA OR SYSTEM SECURITY; (e) PERSONAL INJURY OR PROPERTY DAMAGE; OR (f) COST OF REPLACEMENT GOODS OR SERVICES, IN EACH CASE REGARDLESS OF WHETHER FLEX WAS ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES OR SUCH LOSSES OR DAMAGES WERE OTHERWISE FORESEEABLE. IN NO EVENT WILL FLEX’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE EXCEED THE GREATER OF (i) THE TOTAL AMOUNT OF FEES PAID BY CUSTOMER TO FLEX UNDER THIS AGREEMENT (EXCLUDING ANY PASS-THROUGH AND PROCESSING FEES IMPOSED BY THIRD-PARTY PRODUCTS) DURING THE ONE (1) MONTH TERM IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO THE LIABILITY, AND (ii) $500.

10. Subscription Period and Termination.

10.1 Subscription Period.
This Agreement is effective as of the Effective Date and continues in effect until terminated pursuant to this Agreement’s express provisions (the “Subscription Period”).

10.2 Termination.
In addition to any other express termination right set forth in this Agreement:
(a) Either Party may terminate this Agreement at any time upon sixty (60) days’ written notice to the other Party;
(b) Flex may terminate this Agreement, effective upon written notice to Customer, if Customer: (i) fails to pay any amount when due hereunder, and such failure continues more than ten (10) calendar days after Flex’s delivery of written notice thereof; or (ii) breaches any of its obligations under Section 2.2 or Section 5;
(c) either Party may terminate this Agreement, effective upon written notice to the other Party, if the other Party materially breaches this Agreement, and such breach: (i) is incapable of cure; or (ii) being capable of cure, remains uncured thirty (30) calendar days after the non-breaching Party provides the breaching Party with written notice of such breach; or
(d) either Party may terminate this Agreement, effective upon written notice to the other Party, if the other Party: (i) becomes insolvent or is generally unable to pay, or fails to pay, its debts as they become due; (ii) files or has filed against it, a petition for voluntary or involuntary bankruptcy or otherwise becomes subject, voluntarily or involuntarily, to any proceeding under any domestic or foreign bankruptcy or insolvency law; (iii) makes or seeks to make a general assignment for the benefit of its creditors; or (iv) applies for or has appointed a receiver, trustee, custodian, or similar agent appointed by order of any court of competent jurisdiction to take charge of or sell any material portion of its property or business.

10.3 Effect Expiration or Termination.
Upon expiration or earlier termination of this Agreement, Customer shall immediately discontinue use of the Flex Platform and, without limiting Customer’s obligations under Section 5, Customer shall delete, destroy, or return all copies of the Flex Software and Documentation and certify in writing to the Flex that the Flex Software and Documentation has been deleted or destroyed. No expiration or termination will affect Customer’s obligation to pay all Fees that may have become due before such expiration or termination or entitle Customer to any refund.

10.4 Survival.
This Section 10.4 and Sections 1, 4, 5, 6, 7, 8, 9, 10.3, and 11 survive any termination or expiration of this Agreement. No other provisions of this Agreement survive the expiration or earlier termination of this Agreement.

11. Miscellaneous.

11.1 Entire Agreement.
This Agreement, together with any other documents incorporated herein by reference, constitutes the sole and entire agreement of the Parties with respect to the subject matter of this Agreement and supersedes all prior and contemporaneous understandings, agreements, and representations and warranties, both written and oral, with respect to such subject matter. In the event of any inconsistency between the statements made in the body of this Agreement, the related Exhibits, and any other documents incorporated herein by reference, the following order of precedence governs: (a) first, this Agreement; and (b) second, any other documents incorporated herein by reference.

11.2 Notices.
All notices, requests, consents, claims, demands, waivers, and other communications hereunder (each, a “Notice”) must be in writing and addressed to the Parties at the addresses set forth on the first page of this Agreement (or to such other address that may be designated by the Party giving Notice from time to time in accordance with this Section). All Notices must be delivered by personal delivery, nationally recognized overnight courier (with all fees pre-paid), facsimile or email (with confirmation of transmission) or certified or registered mail (in each case, return receipt requested, postage pre-paid). Except as otherwise provided in this Agreement, a Notice is effective only: (a) upon receipt by the receiving Party; and (b) if the Party giving the Notice has complied with the requirements of this Section.

11.3 Force Majeure.
In no event shall either Party be liable to the other Party, or be deemed to have breached this Agreement, for any failure or delay in performing its obligations under this Agreement (except for any obligations to make payments), if and to the extent such failure or delay is caused by any circumstances beyond such Party’s reasonable control, including but not limited to acts of God, flood, fire, earthquake, explosion, war, terrorism, invasion, riot or other civil unrest, strikes, labor stoppages or slowdowns or other industrial disturbances, or passage of law or any action taken by a governmental or public authority, including imposing an embargo.

11.4 Amendment and Modification.
Flex may change this Agreement (except for any Orders) from time to time at its discretion. The date on which the Agreement was last modified will be updated at the top of this Agreement. Flex will provide Customer with reasonable notice prior to any amendments or modifications taking effect, either by emailing the email address associated with Customer’s account on the Flex Platform or by another method reasonably designed to provide notice to Customer. If Customer accesses or uses the Flex Platform after the effective date of the revised Agreement, such access and use will constitute Customer’s acceptance of the revised Agreement beginning at the next Renewal Subscription Period or, if Customer enters into a new Order with Flex, as of the date of execution of such Order.

11.5 Waiver.
No failure or delay by either Party in exercising any right or remedy available to it in connection with this Agreement will constitute a waiver of such right or remedy. No waiver under this Agreement will be effective unless made in writing and signed by an authorized representative of the Party granting the waiver.

11.6 Severability.
If any provision of this Agreement is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability will not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction. Upon such determination that any term or other provision is invalid, illegal, or unenforceable, the Parties shall negotiate in good faith to modify this Agreement so as to effect their original intent as closely as possible in a mutually acceptable manner in order that the transactions contemplated hereby be consummated as originally contemplated to the greatest extent possible.

11.7 Governing Law; Dispute Resolution.
This Agreement shall in all respects be governed by the laws of the State of Delaware without reference to its principles of conflicts of laws, and without regard to the United Nations Convention on the Sale of Goods. Subject to the following arbitration requirements, the Parties hereby agree that all litigation arising out of this Agreement shall be subject to the exclusive jurisdiction of and venue in the federal and state courts within the State of Delaware, and the Parties hereby consent to the personal and exclusive jurisdiction and venue of these courts. For any dispute in connection with this Agreement, the Parties agree to first attempt to mutually resolve the dispute informally via negotiation. If the dispute has not been resolved after thirty (30) days, the Parties agree to resolve any claim, dispute, or controversy (excluding any claims for injunctive or other equitable relief as provided below) arising out of or in connection with or relating to this Agreement, or the breach or alleged breach, by binding arbitration by the American Arbitration Association (

11.8 Assignment.
Customer may not assign any of its rights or delegate any of its obligations hereunder, in each case whether voluntarily, involuntarily, by operation of law or otherwise, without the prior written consent of Flex. Any purported assignment or delegation in violation of this Section will be null and void. No assignment or delegation will relieve the assigning or delegating Party of any of its obligations hereunder. This Agreement is binding upon and inures to the benefit of the Parties and their respective permitted successors and assigns.

11.9 Export Regulation.
The Flex Platform utilizes software and technology that may be subject to US export control laws, including the US Export Administration Act and its associated regulations. Customer shall not, directly or indirectly, export, re-export, or release the Flex Platform or the underlying software or technology to, or make the Flex Platform or the underlying software or technology accessible from, any jurisdiction or country to which export, re-export, or release is prohibited by law, rule, or regulation. Customer shall comply with all applicable federal laws, regulations, and rules, and complete all required undertakings (including obtaining any necessary export license or other governmental approval), prior to exporting, re-exporting, releasing, or otherwise making the Flex Platform or the underlying software or technology available outside the US.

11.10 US Government Rights.
Each of the Documentation and the software components that constitute the Flex Platform is a “commercial item” as that term is defined at 48 C.F.R. § 2.101, consisting of “commercial computer software” and “commercial computer software documentation” as such terms are used in 48 C.F.R. § 12.212. Accordingly, if Customer is an agency of the US Government or any contractor therefor, Customer only receives those rights with respect to the Flex Platform and Documentation as are granted to all other end users, in accordance with (a) 48 C.F.R. § 227.7201 through 48 C.F.R. § 227.7204, with respect to the Department of Defense and their contractors, or (b) 48 C.F.R. § 12.212, with respect to all other US Government users and their contractors.

11.11 Equitable Relief.
Each Party acknowledges and agrees that a breach or threatened breach by such Party of any of its obligations under Section 5 or, in the case of Customer, Section 2.2, would cause the other Party irreparable harm for which monetary damages would not be an adequate remedy and agrees that, in the event of such breach or threatened breach, the other Party will be entitled to equitable relief, including a restraining order, an injunction, specific performance and any other relief that may be available from any court, without any requirement to post a bond or other security, or to prove actual damages or that monetary damages are not an adequate remedy. Such remedies are not exclusive and are in addition to all other remedies that may be available at law, in equity or otherwise.

11.12 Publicity.
Flex may identify Customer as a user of the Flex Platform and may use Customer’s name, logo, and other trademarks in Flex’s customer list, press releases, blog posts, advertisements, and website (and all use thereof and goodwill arising therefrom shall inure to the sole and exclusive benefit of Customer). Otherwise, neither Party may use the name, logo, or other trademarks of the other Party for any purpose without the other Party’s prior written approval.