Elm Savings Plan Terms & Conditions

                                                                              EFFECTIVE DATE: 6-16-2016

         HEALTH CARE PROVIDER SUBSCRIPTION AGREEMENT

IMPORTANT!

READ THIS HEALTH CARE PROVIDER SUBSCRIPTION AGREEMENT  (“AGREEMENT”) CAREFULLY BEFORE INSTALLING, ACCESSING, DOWNLOADING AND/OR USING THE LICENSED PROGRAM SOFTWARE AND RELATED DOCUMENTATION, IF ANY, (COLLECTIVELY, THE “PROGRAM”).  THIS AGREEMENT CONSTITUTES A LEGALLY BINDING AGREEMENT BETWEEN “SUBSCRIBER” (EITHER AN INDIVIDUAL, ON BEHALF OF ITSELF, IF NO ENTITY IS THE BENEFICIAL RECIPIENT OF THE PROGRAM, OR AN EMPLOYEE, AGENT OR REPRESENTATIVE, ON BEHALF OF AN ENTITY THAT IS THE BENEFICIAL RECIPIENT OF THE PROGRAM, THAT PERFORMS THE ACTION OF INSTALLING, ACCESSING, DOWNLOADING AND/OR USING THE PROGRAM) AND CRUISIN’ GLENWOOD LIMITED PARTNERSHIP, AN ARIZONA CORPORATION, HAVING A BUSINESS ADDRESS AT 1631 E. CHEERY LYNN ROAD, PHOENIX, AZ 85016 (“CGLP”).  IF THE PROGRAM IS INSTALLED, ACCESSED, DOWNLOADED AND/OR USED, INCLUDING BY REQUESTING THE AUTHORIZATION CODE OR ACTIVATION KEY TO INSTALL THE PROGRAM, SUBSCRIBER IS DEEMED TO HAVE UNCONDITIONALLY ACCEPTED THIS AGREEMENT AND AGREES TO BE BOUND BY ITS TERMS.  FURTHER, BY CLICKING “AGREE” AT THE END OF THIS DOCUMENT, SUBSCRIBER HAS DEMONSTRATED SUBSCRIBER’S UNCONDITIONAL ACCEPTANCE OF THIS AGREEMENT AND THIS AGREEMENT IS EFFECTIVE AS OF THAT DATE (“EFFECTIVE DATE”).  IF SUBSCRIBER DOES NOT AGREE TO THE TERMS OF THIS AGREEMENT (AS DEMONSTRATED BY CLICKING “DO NOT AGREE”), SUBSCRIBER IS NOT AUTHORIZED TO INSTALL, ACCESS, DOWNLOAD AND/OR USE THIS PROGRAM; AND AS A RESULT, SUBSCRIBER SHALL IMMEDIATELY RETURN, OR IF RECEIVED ELECTRONICALLY, DESTROY THE PROGRAM AND THEREAFTER, CERTIFY DESTRUCTION OF THE PROGRAM.  FOLLOWING RETURN OF THE PROGRAM OR RECEIPT OF CERTIFICATION, SUBSCRIBER WILL RECEIVE A FULL REFUND OF ANY FEE PAID.  THIS AGREEMENT REPRESENTS THE COMPLETE AGREEMENT CONCERNING THE PROGRAM, AND IT SUPERSEDES ANY PRIOR or concurrent AGREEMENT, REPRESENTATION, OR UNDERSTANDING BETWEEN THE PARTIES, INCLUDING BUT NOT LIMITED TO ANY ASSOCIATED PURCHASE ORDER TERMS AND CONDITIONS UNDER WHICH THE PROGRAM WAS OBTAINED. Notwithstanding the foregoing, SUBSCRIBER may have already accepted a version of the terms and conditions in this Agreement by signing a separate agreement with CGLP; and therefore, the individual, employee, agent or representative of the entity must make inquiries of the SUBSCRIBER to determine if such other agreement exists.  If none exists, any action as recited above binds the SUBSCRIBER to this Agreement.  If an agreement has been signed by an authorized representative of SUBSCRIBER, this Agreement shall be considered to supplement the executed agreement but shall not supersede the terms of that executed agreement. CGLP and the SUBSCRIBER may be alternatively referred to as party, individually, and parties, collectively.

  1. PURPOSE.  The purpose of this Agreement is to recite the terms and conditions under which CGLP will permit the SUBSCRIBER to access and use CGLP’s product or service functionality related to a health care (dental or medical) financial savings program for patients to schedule and/or pay for treatments or services that facilitate cost savings in the provision of such treatments or services. This product or service is uniquely customized for each SUBSCRIBER, and delivered via an active link accessed over the Internet.
  2. DEFINITIONS.  The following terms when used herein shall have the following meanings:
    1. “Program” is defined as the Elm Savings Plan™ Program, which comprise CGLP’s algorithmic products or services that generally operate and function to ingest and process certain data and information in connection with financial planning strategy utilizing an easy access menu style format that utilizes the data and information that populates the Format to perform algorithmic operations once populated with such data and information to perform treatment planning analytics, and generate reports, spreadsheets, documents or any other embodiments of information, whether in tangible or electronic form, which may be useful as a tool for planning treatment, scheduling treatment and financial planning. The Program also provides an associated Online Editor, which allows entry, field and display adjustments in connection with SUBSCRIBER Data within the Format in connection with the generated Report.
    2. “Access” is defined as the right granted to the SUBSCRIBER by CGLP to access and use the Program via an active unique link, which is activated upon full execution of this Agreement and upon payment in full of the appropriate fees as recited in the “Payment and Pricing Schedule”, as recited on the Program’s associated website: elmsavingsplan.com ..
    3. “Activation Date” is defined as the date that CGLP first provides and permits Access to the Program by the SUBSCRIBER by sending an email notice to the SUBSCRIBER that the SUBSCRIBER’s setup has occurred and as a result, enables an active link for the Term of Access.
    4. “Term of Access” is defined as the length of time that Access is granted to the SUBSCRIBER commencing upon the Activation Date. The Term of Access is commensurate with the amounts paid and as recited in Section 3.
    5. “Format” is defined as the expression of display of data and/or information in an online form that may be or is generated as a result of accessing the Program, and typically has the capability of displaying the type and sequence of data an/or information that is processed by the Program.
    6. “Online-Editor” is defined as the ability of the SUBSCRIBER to manipulate the content populating the Format so as to allow the SUBSCRIBER to manipulate data and information entry, field selection and content display within the selected field.
    7. “Subscription Tier” is defined as the selected level of functionality provided to the SUBSCRIBER during the Term of Access that adds to and/or enhances the contents of the Report that is generated by the Program. The Subscription Tier and prices therefore are recited as recited on the Program’s associated website: elmsavingsplan.com.
    8. “Report” is defined as any spreadsheet, document, print-out or other embodiment of information, whether in tangible or electronic form, that is generated by the Program following ingestion of data and information from the Format as provided and input by the SUBSCRIBER, which may be useful to the SUBSCRIBER in evaluating and analyzing health care treatment, scheduling and financial issues.
    9. “SUBSCRIBER Data” is defined as any data or information that is provided by and input into the Format by the SUBSCRIBER and the contents of any Report generated therefrom, and is subject to the Online-Editor function.

  3. AGREEMENT TERM/TERM OF ACCESS.  The Term of the Agreement shall begin on the Effective Date and shall thereafter continue to be in effect on a month by month basis, unless earlier terminated as provided herein under Section 11. The Term of Access shall be from the effective Activation Date, which commences upon the payment of the Initial Access Fee on the Effective Date and thereafter, monthly fees as recited on the Program’s associated website: elmsavingsplan.com commensurate with the applicable Term of Access based on the selected Subscription Tier. If no termination occurs under the Agreement and monthly payments remain current for the Term of Access as recited on the Program’s associated website: elmsavingsplan.com, Access to the Program for the selected Subscription Tier shall remain in effect so long as all fees have been fully paid as recited on the Program’s associated website: elmsavingsplan.com for the applicable Term of Access. The SUBSCRIBER acknowledges that the non-payment of any fees due and owing will, at CGLP’s discretion, result in the suspension of Access for the SUBSCRIBER. However, if the SUBSCRIBER remedies the non-payment by making a payment in full of all fees due and owing, then CGLP, absent Agreement termination, may reinstate Access for the Term of Access at the selected Subscription Tier commensurate with the fees paid.
  4. PROGRAM SUBSCRIPTION SCOPE.  During the Term of Access, the SUBSCRIBER acknowledges that the Program applies only to processing as well as financial planning associated therewith with participating medical (medical or dental) practitioners or health care providers in the United States. The SUBSCRIBER acknowledges that the SUBSCRIBER may engage on the Online-Editor to customize certain portions of the Program to have a look and feel that reflects the SUBSCRIBER’s practice and branding. The SUBSCRIBER acknowledges that, subject to a required valid and enforceable “Patient Subscriber Agreement” as accepted by the SUBSCRIBER’s existing and new patients, the SUBSCRIBER may grant access to certain portions of the Program for patient specific and direct data and information input directly associated with SUBSCRIBER’s existing and new patients. SUBSCRIBER nor SUBSCRIBER’s patients may not alter, modify or change, in any manner whatsoever, any terms or conditions of the Patient Subscriber Agreement. SUBSCRIBER may additionally allow the Program to generate patient specific Reports based on that patient’s direct data and information. In the event SUBSCRIBER terminates, for any reason, a patient from the Program, SUBSCRIBER needs to provide sufficient and reasonable notice to the patient of Program termination. SUBSCRIBER assumes all liability, responsibility and obligations for its patients and CGLP shall have no liability, responsibility or obligations to such patients nor shall SUBSCRIBER obligate or bind patient to CGLP, in any manner.
  5. PROPRIETARY INTERESTS/AUTHORIZATIONS/CONFIDENTIALITY.

    1. The SUBSCRIBER acknowledges that CGLP owns all right, title and interest in and to the Program, Format, On-Line Editor, any CGLP Website, any CGLP links, and any associated tangible or intangible CGLP-provided materials, documents or other embodiments of information or data, and expressions, CGLP confidential information under Section 5 (d), including any related, associated or underlying concepts, ideas, methods, and processes; algorithms, source, object, binary, executable code, html and code listings; interfaces, improvements, enhancements, modifications, changes, alterations, versions, releases, updates, error corrections and bug fixes; system(s) and architecture; expressions and derivative works thereof; having patent, copyright, trade secret, trademark, service mark, trade name and any other proprietary interest, whether statutory or common law, which is in existence as of the Effective Date or which is developed, generated, or created by CGLP during the Term of Access under this Agreement. The SUBSCRIBER further acknowledges that any improvements, enhancements, changes, alterations, modifications or derivative works, which are developed, created or generated by the SUBSCRIBER, either jointly with CGLP or solely, from the preceding during the Term of Access shall be owned and held by CGLP and that the SUBSCRIBER hereby assigns all right, title and interest therein, without further consideration, to CGLP to confirm CGLP’s ownership thereof. (collectively, “CGLP Property”).
    2. CGLP acknowledges that the SUBSCRIBER owns all right, title and interest in and to the SUBSCRIBER Data, and Report, including any derivative works thereof, (collectively, “SUBSCRIBER Property”). CGLP shall treat SUBSCRIBER Property as confidential and proprietary to the SUBSCRIBER, and refrain from disclosing or releasing to any third party SUBSCRIBER Property, until such SUBSCRIBER Property: i) comes into the public domain through no fault of CGLP, or ii) becomes obsolete as is customary in the industry, or iii) is released in writing by the SUBSCRIBER, whichever of the foregoing events occurs first.
    3. During the effective Term of Access, CGLP grants to the SUBSCRIBER the following rights to certain items of CGLP Property: i) only the SUBSCRIBER is authorized, on a non-exclusive basis, to access and use certain authorized contents of the Program only via an active link to the Program; ii) only the SUBSCRIBER is authorized, on a non-exclusive basis, to populate the Format with SUBSCRIBER Data and use the Online-Editor in connection therewith, and the SUBSCRIBER shall not display or permit access to the Format by any third party except that SUBSCRIBER may allow under a validly accepted Patient Subscriber Agreement to permit SUBSCRIBER’s existing and new patients to input Data and information to certain portions of the Program, as recited under the Patient Subscriber Agreement ; iii) the SUBSCRIBER may not copy, alter, modify or create derivative works of the Format that serves as the basis for the Report; iv) the SUBSCRIBER shall be permitted to generate Reports based on SUBSCRIBER Data and the SUBSCRIBER may disclose, disseminate, distribute, copy, modify, change, alter and create derivative works of the Reports; and v) the SUBSCRIBER shall not be permitted to disassemble, decompile, reverse engineer, extract, modify, alter, or change or create derivative works of the CGLP Property, including but not limited to, the Format and the Program or contents of any CGLP Website or disclose, disseminate, distribute, license, assign or transfer the Program, the Format, or any CGLP Website, or CGLP Property, to any third party. The authorizations herein do not diminish, in any manner, CGLP’s rights, title and interests in CGLP Property, including but not limited to the Program or Format, or any CGLP Website; and the SUBSCRIBER’s access and/or use of CGLP Property, including but not limited to the Format and the Program, is limited to the scope of the authorizations described herein. The SUBSCRIBER is not permitted to alter, modify, change or, in any manner, affect the integrity or quality of the CGLP Property, including but not limited to the Format and the Program, or remove any confidential and/or proprietary notice that appears on the CGLP Property, including but not limited to the Format and the Program nor remove, alter or modify any of CGLP’s proprietary notices such as, but not limited to, CGLP’s copyright notice on the Program, Format, or on any CGLP Property. No other licenses, grants or authorizations under any patent, trademark, copyright, trade secret or other intellectual property, either common law or statutory, is either granted or implied by the provision, distribution and/or disclosing to the SUBSCRIBER of CGLP Property, including but not limited to the Program, Format or any CGLP Website to the SUBSCRIBER.
    4. The SUBSCRIBER shall consider the Program (including the source code and associated code listings) and CGLP Property, including all related technical and business information, whether disclosed in oral, visual or written form, to be confidential and proprietary to CGLP. The SUBSCRIBER shall exercise at least a reasonable standard of care to protect the confidentiality of the information, and to prevent the unauthorized use, dissemination, disclosure or publication of confidential information during the Term of Access. The SUBSCRIBER may disclose such confidential and proprietary information to those of its employees, sub-contractors or consultants, who have a definable need to know and who are under similar obligations of confidentiality and use as provided herein. The term of confidentiality shall extend for two (2) years beyond the expiration and/or termination date of this Agreement; however, it is understood that this Agreement shall impose no obligations of confidentiality on the SUBSCRIBER where the Program or CGLP Property: (a) was rightfully in the SUBSCRIBER’s possession before receipt from CGLP; (b) is or becomes a matter of public knowledge through no fault of the SUBSCRIBER; (c) is rightfully received by the SUBSCRIBER from a third party without a duty of confidentiality; (d) is disclosed by CGLP to a third party without a duty of confidentiality on the third party; (e) is disclosed under operation of law; provided that SUBSCRIBER timely notifies CGLP and CGLP is given the opportunity to protest such disclosure; or (f) is disclosed with CGLP’s prior written approval. The SUBSCRIBER acknowledges that CGLP deems the terms and conditions recited in this Agreement, but not the parties to or the existence of this Agreement, to be confidential.
  6. PAYMENT AND PRICING SCHEDULE.  CGLP will provide Access to the SUBSCRIBER for the Term of Access consistent with the selected Subscription Tier based on the currently published pricing terms and conditions as recited on the Program’s associated website: elmsavingsplan.com that is in effect as of the Effective Date of this Agreement. The SUBSCRIBER shall promptly pay CGLP the amounts specified as recited on the Program’s associated website: elmsavingsplan.com as follows: i) the Initial Access Fee amount is due and payable on the Effective Date; and ii) thereafter, to maintain Access, SUBSCRIBER must pay monthly fees when due and owing. Once payments of the Fees have been made, the amounts paid are not refundable for any reason. Failure to pay in full any amount due and owing shall result in denial, cessation and suspension of Access until such amount is paid in full. Any outstanding amount that is past due shall be subject to a 1.5% monthly interest rate (or the allowable rate permitted by law) applicable to the total amount that is past due and owing. Further, CGLP may elect to terminate this Agreement under Section 11 if the SUBSCRIBER does not remedy the payment deficiency as provided under Section 11. However, if there is no Agreement termination, then once the applicable Fee, and the applicable interest, is paid in full, then CGLP shall re-instate Access. The pricing terms and conditions as recited on the Program’s associated website: elmsavingsplan.com re subject to change, at any time and at CGLP’s discretion, and CGLP will make the SUBSCRIBER aware of any such changes with at least five (5) days’ notice prior to the next monthly due date for the monthly fee as communicated by posting on a related website, email, fax or PDF to the SUBSCRIBER by CGLP; and the changes therein shall become effective on the next monthly due date for the monthly fee for the continued Access. . The SUBSCRIBER may elect to terminate the Agreement if the SUBSCRIBER does not desire to accept changes in the pricing terms and conditions for the next monthly period; and as a result, the SUBSCRIBER may elect to terminate this Agreement as provided under Section 11.
  7. PROGRAM AVAILABILITY/DATA PROCESSING.  Access for the SUBSCRIBER for the Term of Access will be made available under the terms and conditions recited herein. However, the SUBSCRIBER acknowledges that CGLP, five (5) days prior to any monthly renewal date, may discontinue without any liability, at its discretion and without cause, SUBSCRIBER Access. Further, at any time during the Term of Access but with five (5) days’ notice to the SUBSCRIBER, CGLP can make any changes to the Program, Format, Online- Editor or Access, which CGLP deems necessary to continue to provide Access for the Term of Access. Any new versions, releases, updates, enhancements, bug fixes, error corrections, patches, changes, alterations, or improvements to the Program will be made available, upon five (5) days’ notice, to the SUBSCRIBER, at the sole discretion of CGLP, which the SUBSCRIBER must accept in order to maintain Access and to receive technical support as recited in Section 9. The foregoing shall be implemented as described herein above, except in the case of mandatory maintenance changes, which may be implemented at any time during the Term of Access. CGLP will maintain Access for the current Term of Access but may terminate the Agreement if the SUBSCRIBER refuses to allow implementation of the foregoing. Further, CGLP may offer additional functionality, capability or applications, which prices for accessibility and use thereof, will be as recited on the Program’s associated website: elmsavingsplan.com , and which shall be effective on the date specified therein. Any of the foregoing once made available shall be subject to the terms of this Agreement. The SUBSCRIBER acknowledges that events over which CGLP has no control, such as but not limited to hosting availability, server availability, power outages, or system maintenance shut downs, whether scheduled or unscheduled, or system failures, may result in CGLP immediately ceasing Access. In such event, where Access is terminated by events reasonably out of control by CGLP as provided in connection with the foregoing or under Section 12(g), CGLP shall have no further liability or obligations, and this Agreement will terminate as provided under Section 11 subject to the obligations recited therein. However, if CGLP intentionally, actively and directly ceases Access for a SUBSCRIBER through no SUBSCRIBER fault, CGLP shall refund a pro-rata portion of the Fees paid by SUBSCRIBER based on the remaining period in the Term of Access. Termination may occur as provided under Section 11.
  8. MARKETING PRACTICES/AUDIT VERIFICATION.  The SUBSCRIBER shall: a) avoid deceptive, misleading, or unethical practices that may be detrimental to CGLP or the Program or CGLP Property; b) not make any representations, warranties or guarantees to any third party or entity on behalf of CGLP, concerning the Program, and its operation, usefulness or performance; c) assume all costs, expenses, liabilities and responsibilities for the information and data, including SUBSCRIBER Data, input to the Format; d) assume all costs, expenses, liabilities and responsibilities in connection with any use, analysis, reliance, accuracy or guarantee of the Report; and e) comply with all applicable federal, state and local country laws, Internet laws and regulations and international treaties and pacts with respect to the subject matter of this Agreement.  Further, CGLP shall be permitted with ten (10) business days’ written notice to audit, at CGLP’s expense, to conduct during regular business hours a self-audit review and verification of the veracity and functionality of the Program and Format in the SUBSCRIBER’s environment, and to engage in testing procedures and processes to verify the Program functionality and operation.  Such audit will be subject to Section 5 confidentiality obligations.
  9. TECHNICAL SUPPORT.  CGLP will supply the SUBSCRIBER with training, maintenance and support upon payment of a monthly maintenance fee as recited on the Program’s associated website: elmsavingsplan.com . The SUBSCRIBER will promptly provide CGLP with a copy of all questions or problems reported; and CGLP will answer or fix, at its discretion and on as an available basis, such reported problems, except as provided under Section 10. The SUBSCRIBER acknowledges that CGLP shall only support the most current version of the Program and Format during the Term of Access, except where otherwise agreed in writing by the SUBSCRIBER and CGLP.
  10. INDEMNITY/WARRANTIES/DISCLAIMERS/LIMITATION OF LIABILITY.

    1. The SUBSCRIBER shall indemnify and hold CGLP harmless from and against all claims, costs, liabilities, damages, and judgments (including reasonable attorney’s fees and court costs) that CGLP may suffer or incur arising out of third party (including SUBSCRIBER patients) claims due to the: (i) SUBSCRIBER’s use and/or reliance, in any manner, on the Report in connection with any business activity; (ii) SUBSCRIBER’s non-compliance with the conditions under Section 8; (iii) SUBSCRIBER’s unauthorized use, copying, modification, alteration of or unauthorized combination of materials, items, software or components with the Program or Format or CGLP Property; (iv) SUBSCRIBER’s infringement, misuse or unauthorized use of CGLP Property; (v) SUBSCRIBER’s business arrangements with any third party in connection with this Agreement or the Program, Format or Report; (vi) SUBSCRIBER Data, which SUBSCRIBER edits, inputs and modifies; or (vii) SUBSCRIBER Data manipulation or processing that generates inaccurate, erroneous, corrupted or missing SUBSCRIBER Data, whether or not included in a Report.
    2. CGLP warrants that the Program will be free from operational errors and problems, except where any errors or problems are introduced directly or indirectly by the SUBSCRIBER. CGLP shall use reasonable efforts to remedy or fix problems or errors, at its expense, if errors or problems, which are caused directly by CGLP, are discovered during the Term of Access and CGLP is timely advised of any problems or errors in connection with the Program, Format or Online-Editor. CGLP shall not be obligated to cure any problem or error in connection with the Program, Format or Online – Editor, unless the SUBSCRIBER notifies CGLP of the existence and nature of such problem or error promptly upon discovery. The foregoing shall be the sole and exclusive remedy available to the SUBSCRIBER with respect to the Program, Format and Online-Editor.
    3. The SUBSCRIBER assumes full responsibility and liability for the accuracy and reliability of any SUBSCRIBER Data, which the SUBSCRIBER inputs, in connection with the Program or Format and/or is manipulated with the Online-Editor.
    4. CGLP shall not be responsible for or liable for any data loss, corruption or erasure of SUBSCRIBER Data or any third-party data accessed or used by the Program or populating the Format and CGLP shall not be responsible for any data or information that is obtained directly from any other sources. The SUBSCRIBER acknowledges that CGLP is not responsible for any errors or omissions in such data or information.
    5. EXCEPT FOR THE WARRANTIES EXPRESSLY STATED HEREIN, THE UPLOAD, ACCESS, AND/OR USE OF THE PROGRAM, AND FORMAT, AND ASSOCIATED CGLP PROPERTY, ARE PROVIDED “AS IS”, AND THERE ARE NO OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, ACCURACY, USABILITY OR RELIABILITY OF ANY REPORT GENERATED FOR ANY PURPOSES, OR NON-INFRINGEMENT. THE SUBSCRIBER ASSUMES ALL LIABILITIES, RESPONSIBILITIES AND OBLIGATIONS WITH RESPECT TO ANY RELIANCE ON THE PROGRAM, FORMATS, OR REPORTS OR SUBSCRIBER DATA; AND ACKNOWLEDGES THAT THE PROGRAM, FORMATS, AND REPORTS, AND CONTENTS THEREOF, ARE ONLY FOR REFERENCE PURPOSES AND ARE SIMPLY A SINGLE TOOL TO BE USED IN AN ANALYSIS OF ANY PREDICTABILITY IN CONNECTION WITH MEDICAL TREATMENT AND FINANCIAL STRATEGY AND ANALYSIS; AND ARE NOT TO BE RELIED UPON, SOLELY, WITH RESPECT TO ANY BUSINESS DECISIONS OR TREATMENT ACTIONS OR ACTIVITY. ANY SUBSCRIBER DATA INPUT IS THE SOLE RESPONSIBILITY OF THE SUBSCRIBER, AND THE SUBSCRIBER ASSUMES THE ENTIRE LIABILITY FOR THE ACCURACY AND RELIABILITY OF ANY SUBSCRIBER DATA OR REPORT GENERATED THEREFROM, AND CGLP MAKES NO WARRANTIES OR REPRESENTATIONS WITH RESPECT TO THE FOREGOING. CGLP SHALL NOT WARRANT THAT THE ACCESS AND/OR USE OF THE PROGRAM WILL BE UNINTERRUPTED OR REMAIN AVAILABLE THROUGHOUT THE TERM OF ACCESS. CGLP MAKES NO WARRANTIES AS TO ANY GOVERNMENT PROVIDED DATA OR INFORMATION. FURTHER, CGLP SHALL HAVE NO OBLIGATION OR LIABILITY IN CONNECTION WITH THE STORAGE OR RETRIEVAL OF ANY SUBSCRIBER DATA OR THE INTEGRITY OF THE DATA SO STORED OR RETRIEVED. ADDITIONALLY, CGLP EMPLOYEES, CONSULTANTS, REPRESENTATIVES OR CONTRIBUTORS SHALL NOT BE AUTHORIZED TO GIVE ADVICE, INTERPRETATION, EXPLANATION OR ANALYSIS OF ANY REPORT GENERATED NOR MAY THE SUBSCRIBER RELY OR USE SUCH ADVICE IF SO GIVEN FOR ANY PURPOSE.
    6. CGLP’S ENTIRE LIABILITY FOR ANY CLAIM FOR ANY KIND OF LOSS OR DAMAGE ARISING OUT OF, IN CONNECTION WITH OR RESULTING FROM THIS AGREEMENT, OR ANY BREACH HEREOF, OR FROM THE ACCESS, PROGRAM, FORMAT OR CGLP PROPERTY OR REPORT SHALL BE LIMITED TO ACTUAL AND PROVABLE DAMAGES UP TO THE AMOUNTS OF MONEY PAID HEREUNDER WHERIN THE ACTUAL DAMAGES AWARDED SHALL BE PRO-RATED COMMENSURATE WITH THE UNUSED PORTION OF THE REMAINING TERM OF ACCESS, AND IN NO EVENT, SHALL CGLP’S ENTIRE LIABILITY EXCEED ANY AMOUNTS PAID HEREUNDER BY THE SUBSCRIBER TO CGLP PRO-RATED AS PROVIDED HEREIN, AND NO OTHER DAMAGES ARE AVAILABLE. EXCEPT WHERE OTHERWISE RECITED AND WITH RESPECT TO CGLP PROPERTY, IN NO EVENT, WHETHER AS A RESULT OF BREACH OF THIS AGREEMENT, BREACH OF WARRANTY OR ANY ACT OF NEGLIGENCE OR THE POSSESSION, USE, ACCESS OR OPERATION OF THE PROGRAM, FORMAT, REPORT OR THE SUBJECT MATTER HEREIN OR ANY OTHER CLAIMS MADE IN CONNECTION WITH THIS AGREEMENT, SHALL EITHER PARTY BE LIABLE TO THE OTHER FOR ANY CONSEQUENTIAL, SPECIAL, PUNITIVE OR INCIDENTAL DAMAGES, INCLUDING BUT NOT LIMITED TO, DAMAGES ASSOCIATED WITH OR ARISING FROM LOSS OF PROFIT OR REVENUES. SOME STATES DO NOT ALLOW SUCH LIMITATION, AND IN THAT EVENT THIS SECTION SHALL BE MODIFIED TO COMPORT WITH THAT PARTICULAR STATE’S REGULATORY STATUTE. THE ABOVE REMEDIES ARE THE ENTIRE REMEDIES AVAILABLE FOR THE BREACH OF ANY WARRANTY PROVIDED HEREIN OR THIS AGREEMENT.

  11. TERMINATION

    1. The SUBSCRIBER may, at any time and without cause, terminate this Agreement with thirty (30) days written notice.
    2. If the SUBSCRIBER breaches the Agreement by failing to pay in-full to CGLP any moneys due and owing hereunder; or if either party materially defaults in the performance of its obligations hereunder, or otherwise breaches this Agreement, the breaching party shall correct such breach within thirty (30) days after written notice from the non-breaching party. If any such breach is not remedied within such thirty (30)-day period, then the non-breaching party, at its option, may terminate this Agreement by giving final written notice to the other party.
    3. Upon any termination of this Agreement, the following shall occur: i) all rights granted to the SUBSCRIBER hereunder, shall immediately terminate; ii) the SUBSCRIBER shall immediately, at the option of CGLP, delete, with written confirmation, or return, any CGLP Property in the SUBSCRIBER’s possession or control to CGLP; and (iii) the SUBSCRIBER’s Access will immediately cease. The SUBSCRIBER acknowledges that any monies paid hereunder are not refundable for any type of termination hereunder, except as recited in Section 7.
  12. OTHER

    1. The parties hereto are independent contractors with respect to each other. Each party is not and shall not be deemed to be an employee, agent, partner or legal representative of the other for any purpose and shall not have any right, power or authority to create any obligation or responsibility on behalf of the other.
    2. This Agreement, and with respect to payment amounts and Subscription Tiers as recited on the Program’s associated website: elmsavingsplan.com and any other attachments added from time to time throughout the Term, constitute the entire and complete agreement between the parties with respect to the subject matter hereof, and supersedes any and all prior or contemporaneous oral or written understandings or agreements, including but not limited to the SUBSCRIBER purchase order terms and conditions, concerning the subject matter hereof.
    3. All amendments or modifications of this Agreement shall be binding upon the parties so long as the same shall be in writing and executed by each of the parties hereto.
    4. No waiver of any provision of this Agreement or any rights or obligations of either party hereunder shall be effective, except pursuant to a written instrument signed by the party waiving compliance, and any such waiver shall be effective only in the specific instance and for the specific purpose stated in such writing. The provisions of this Agreement are severable; and if any provision shall be deemed invalid or unenforceable, the applicability or validity of any other provision of this Agreement shall not be affected, and this Agreement shall be construed as if such invalid or unenforceable provisions are not contained in this Agreement.
    5. The SUBSCRIBER shall comply with U.S. Export Control laws and regulations, and Internet laws and regulations.
    6. The SUBSCRIBER shall not, without the prior written consent of CGLP, assign or delegate this Agreement, or any rights or duties hereunder, directly, indirectly, by operation of law, or otherwise to any third party. In the event of any permitted assignment hereunder, the assignee shall accept, without modification, in its entirety all the terms and obligations recited herein.
    7. Neither party shall be deemed to have breached this Agreement by reason of delay or failure in performance or force majeure resulting from causes beyond the control, and without the fault or negligence, of the party. Such causes include, but may not be limited to, an act of God, an act of war, riot, epidemic, fire, flood or other disaster; or as a result of suppliers unavailability, where no equivalent, alternate suppliers are available; or hosting or server unavailability, where no equivalent alternate host or server are available; or any other failure of data communication, transmission or reception functions, which is beyond the reasonable control of a party. This Agreement shall remain in effect unless such delay or failure persists for one hundred twenty (120) consecutive days and there is no foreseeable remedy or cure available in which case this Agreement shall terminate as provided under Section 11.
    8. The following sections, as appropriate, shall survive termination of this Agreement: Sections 5, 8, 10, 11 and 12.
    9. In the event of a dispute, prior to any formal action being taken, the parties shall try and resolve this dispute at the executive level within thirty (30) days following receipt of written notice that a dispute exists. If such dispute is not resolved within such thirty (30) days, then the parties may resort to formal action in the form of Arbitration as provided below in Section 12(j).
    10. This Agreement shall be governed by the laws of the State of Colorado applicable to contracts entered into and to be performed entirely within the State of Colorado, without regard to the principles of conflicts of law, and if a claim or controversy arises, such claim or controversy shall be submitted to binding arbitration in Boulder, Colorado in accordance with the subsequent understanding. CGLP shall be entitled to seek all available legal and equitable remedies available. With regard to any claims hereunder for damages, the prevailing party shall also be entitled to reasonable attorney’s fees and arbitration costs. All limitations of liability as recited herein shall apply to any award. Notwithstanding the provisions of this section 12(j) regarding arbitration, CGLP or the SUBSCRIBER may proceed to any court of competent jurisdiction to obtain immediate injunctive relief with regard to protecting any intellectual property or confidential and proprietary information.
    11. For all claims submitted to binding arbitration, the parties agree to have the claim(s) submitted before three arbitrators and conducted pursuant to the Rules of Commercial Arbitration of the American Arbitration Association (“AAA”). Each party shall pick one arbitrator from the panel list supplied by the AAA, and the third arbitrator shall be chosen by the two appointed by the parties. The parties agree that the award of the Arbitrators shall be the sole and exclusive remedy between them regarding any claims, counterclaims, issues or accountings presented or pled to the Arbitrators. The decision of the Arbitrators shall be final, binding and incontestable and may be used as a basis for judgment, thereon in Colorado, or elsewhere as the situation dictates. Pending the submission to arbitration and thereafter, until the Arbitrators publish their decision, the parties shall, except in the event of termination, continue to perform all their obligations under this Agreement without prejudice to a final adjustment in accordance with the arbitrator’s award.
    12. All requirements for notices hereunder must be in writing; and forwarded to the above address either via a reputable national overnight courier or registered certified mail, return receipt requested. The parties further acknowledge that electronic acceptance or facsimile signatures or signatures in PDF format are fully binding and constitute a legal method of executing this Agreement or any modifications hereto. The parties further acknowledge that SUBSCRIBER is authorized to execute this Agreement.
    13. This Agreement may be executed in one or more counterparts, each of which shall be deemed to be a duplicate original, but all of which, taken together, shall be deemed to constitute a single instrument.