Rootworks Service Agreement

1. Parties.

The parties to this Subscription Agreement (this “Agreement”) are you and Firmworks, LLC, a Delaware limited liability company, doing business as Rootworks (“we”, “us”, “our”, “Rootworks”). If you are not acting on behalf of yourself as an individual, then “you”, “your”, and “yourself” means your company or organization or the person you are representing, and you represent and warrant to Rootworks that you have the authority and consent to act for and bind such company, organization, or person. “Customer Data” means your data that you provide to us in connection with our provision of the Services to you pursuant to this Agreement. “Content” means any information, analytics, data, experience, report, result or product other than Customer Data related to our provision of the Services to you, including any content that we make available to you in connection with your use of the Site or the Services.

2. Services Eligibility.

The Services are not available to individuals under the age of 18 years of age. By accessing the Services, you represent and warrant that you are at least 18 years of age.

3. Services.

Subject to your compliance with the terms and conditions of this Agreement, Rootworks will provide you with access to the Content and services selected by you on the rootworks.com and/or tallystreet.com websites (including any successor sites we may make available at our discretion, collectively, the “Site”) for the term of your subscription (the “Services”). We reserve the right to modify the Services at any time or provide for alternative delivery of the Services in our sole discretion, and you agree that your sole right with respect to any modification of the Services shall be to terminate your subscription. Subject to the limited license to the Content granted under Section 5, you agree that nothing in this Agreement grants you any right or license with respect to the Services or any associated intellectual property rights, that the Service is provided as a software-as-a-service model, and that your subscription consists solely of a right of access to the Services on the Site for the term of your subscription.

4. Use and Restrictions.

Subject to the terms and conditions of this Agreement, you may access and use the Site and Services (including, without limitation and for the avoidance of doubt, the Content) solely for your own internal business purposes (including the provision of services to your clients, but excluding any resale activities). Without limiting the generality of the foregoing, you hereby agree and acknowledge that:

i. You will create your own authorized login protocols for the Site to access the Services, and you will not access nor attempt to access the Services by any means, other than through the interface we provide, including but not limited to any automated means (including use of scripts or web crawlers).

ii. You shall not (i) use, resell, license or sublicense, lease, disclose, transfer, assign, re-subscribe, distribute, or otherwise commercially exploit the Site or the Services, (ii) modify, translate, or otherwise make derivative works based upon the Site or Services, (iii) “frame” or “mirror” the Site or Services on any other computer, server or Internet-enabled device, (iv) copy, reproduce, republish, download, print, or transmit in any form or by any means the Site or Services (except solely as a consequence of your online use thereof, i.e., caching), (v) access or use the Site or Services to build products or support services or software competitive to the Services, (vi) merge the Services with another product, (vii) use, reverse engineer, decompile, or disassemble the Site or Services, except to the extent this restriction is expressly prohibited by applicable law, or (viii) remove or obscure any proprietary rights notices or labels on the Site or Services.

iii. For the purposes of customer service, technical support, interaction with customers, and marketing services or products of Rootwork and its current and future affiliates and partners, you agree to receive messages of an informational, promotional, marketing, or advertising nature via email, messaging, or other means about services or products offered by Rootworks and its current and future affiliates and partners. You may “opt out” of receiving these messages or information sharing by sending an email to support@rootworks.com requesting opt out and specifying which messages you wish to opt out of. You acknowledge that by “opting out” you may not receive messages about upgrades and enhancements from Rootworks; however, we may still send messages of a technical nature. You agree that we may use your company or association name and logo in sales presentations, advertising materials, press releases, and similar marketing or promotional vehicles, and you waive and release all claims based on such use.

iv. You are solely responsible for backing up Customer Data and Content and we do not assume any liability for your loss or corruption of any Customer Data or Content.

v. If you are subscribed to a free or trial Rootworks application, the following terms apply: (A) you agree that you are opting in to receive the messages described in subsection (iii) above in consideration of us providing the Services for which you are subscribed, (B) you may revoke your opt-in consent at any time by sending a request to help@rootworks.com, and (C) if you opt-out, we may terminate your access to the Services. As a free or trial user, we will collect your name, email address, phone number and other contact information, and the contact information of your customers, and may use this information in accordance with subsection (iii) above.

5. Ownership.

Rootworks is the sole and exclusive owner of the Site and the Services (including, without limitation and for the avoidance of doubt, the Content), and all intellectual property rights vesting therein. You are the exclusive owner of the Customer Data, provided that you hereby grant us the right to use and disclose the Customer Data for the purposes contemplated in this Agreement. Subject to your compliance with the terms and conditions of this Agreement, Rootworks hereby grants you a limited, non-exclusive, non-sublicensable license during the term of your subscription to use and access the Content for your internal business purposes. Other than the foregoing license grant, Rootworks expressly reserves all other rights, express and implied. You acknowledge and agree that we own any amendments, improvements, continuations, suggestions, ideas, enhancements, enhancement suggestions or requests, feedback, creative or derivative works, or recommendations that you provide relating to the Site or Services and the intellectual property rights related thereto, in each case free of any restriction of confidentiality, and that you will not be entitled to any compensation or other benefit on account thereof.

6. Term.

The term of your subscription shall be specified during the registration process and available to you on the Site. You may purchase one or more additional subscriptions at any time on the Site in accordance with the terms and conditions contained in this Agreement. If you are using a free or trial version of the Services, the term shall be month-to-month.

7. Termination.

You agree that we may terminate your account and access to the Site (including access to the Services) with or without notice: (i) without cause, in our sole discretion; or (ii) for cause (a) for any material breach of this Agreement, including without limitation, any failure to meet payment obligations, or (b) at the request of law enforcement or other government officials, bodies, or agencies. On any termination of this Agreement or expiration of your subscription, we will (i) remove your access to the Site, (ii) retain your Customer Data and the Content associated with your account for at least 90 days thereafter, and (iii) for all terminations other than pursuant to (ii)(a) or (ii)(b) (to the extent the third-party request is based on facts that, if true, would constitute your breach of this Agreement), allow access to the Services for the remainder of your committed term, but subject to your payment or continued payment in full during the duration of such term. . You agree that Rootworks and its affiliates will not be liable to you or any third-party for any termination of your account, or effect thereof, or your failure to contact us to obtain your Customer Data prior to its deletion.

8. Your Account-Related Responsibilities.

You are responsible for maintaining the confidentiality of your login ID, password, and any additional information regarding accessing your account or the Site. You agree that your login credentials are personal to you for your access to the Site, and that you will not share your login credentials with any other person. You agree to immediately notify us of any unauthorized use of your credentials, or of any other breach of security involving the Site of which you become aware. You agree that we may audit your account to determine unauthorized access or use or use that exceeds your subscription. You agree to cooperate with our audit and to provide reasonable assistance and access to information.

9. Subscription Fees; Periodic Payment; Disclosures; Free Trials.

i. You agree to pay subscription fees as specified in the registration process on the Site. Payment of subscription fees may be by credit card online at this site or by any other method approved by us. Subscription fees are non-refundable, unless expressly provided otherwise in this Agreement. If for any reason we are unable to charge your credit card with the full amount of the fees, or if we are charged back for any fee previously charged to your credit card, you agree that we may pursue all available remedies to pursue payment, including without limitation, suspension or termination of your account and all rights to the Services. Your card charge will begin upon activation of your account, not when usage begins.

ii. You hereby authorize Rootworks to charge the credit card used in the registration process, as follows: charges will be for access to the Rootworks application selected (and for any add-on modules selected), for the dollar amount and billing periods (including recurring billing periods and charges) specified in the registration process on the Site. If the credit card authorization fails, we will request updated credit card information. However, if you do not provide updated credit card information that successfully authorizes within 72 hours after notice, we may terminate your account and rights to all Services. If we offer a free version of the Services and you are subscribed to that version, you acknowledge and agree that we reserve the right in the future to charge for any such version. If we decide to begin charging for a previously-free version of the Services, we will give not less than 30 calendar days’ notice to subscribe to such free version, by posting on our website, email, SMS message and/or any other means we deem reasonable, so that subscribers to a version of our application that had been free who wish to cancel prior to charges beginning may have sufficient time to do so. You acknowledge and agree that we reserve the right to increase any recurring charges at the renewal or expiration of a term upon giving you not less than 30 calendar days’ notice.

iii. If you initially subscribed pursuant to a free-trial offer, your credit card information will be taken, but your card will not be charged until the end of the free trial. If you cancel prior to the end of the free trial, your card will not be charged. If you do not cancel prior to the end of the free trial, your card will be automatically charged upon the expiration of the free trial and on a recurring monthly basis thereafter until you either cancel or change to annual billing. We may terminate any free trial at our discretion prior to the end of the free-trial period. During the free-trial period, the limited warranty set forth in Section 16 of this Agreement will not apply and the Services will be provided on an “as is” basis without any warranties or liability to you of any kind.

10. Technical Support; Integration.

Our regular business hours currently are 9 am to 5 pm EST, Monday – Friday, excluding holidays. Our response time will generally be within four hours after a help request is submitted through our system or the next business day if the request is submitted on a non-business day or on a business day with less than five hours remaining in the day at the time submitted. All integration and configuration requirements are your responsibility to implement and are solely at your expense.

11. Data Management, Use, and Security.

i. You acknowledge that we may directly and remotely communicate with devices synced to the Services for purposes of providing the Services, including, without limitation, (i) collecting and consolidating financial data from the synced application(s), (ii) verifying your credentials, (iii) issuing reports and alerts to you such as automated support requests and alert messages, (iv) providing you with upgrades, fixes, maintenance, configuration protocols, or similar actions as we deem appropriate for providing the Services and the Software, and (v) extracting anonymous usage information, service performance information, and infection logs. These communications may include, without limitation, SMS text messages, emails, and other push notifications.

ii. You represent and warrant that you have obtained any and all necessary permissions and consents and provided the necessary notifications to provide and otherwise share all data and information with us that are provided to us or collected by us, including, but not limited to Customer Data, for all of the purposes described in this Agreement, and that providing us with such Customer Data does not violate any applicable law or infringe any third party’s legal rights.

iii. You acknowledge that one of the Services includes benchmarking of Customer Data or Content against like-kind businesses. Accordingly, in addition to the license granted in Section 5, and in consideration of us granting you access to the Services pursuant to the terms of your subscription, you grant us an irrevocable, perpetual, worldwide, transferable, non-exclusive license, on the terms and conditions set forth herein, to anonymize, de-identify and aggregate your Customer Data or Content (“Aggregated Data”) and to combine or otherwise aggregate Aggregated Data with other anonymized, de-identified and aggregated data for the purpose of providing benchmarking data and other analytics and reports (“Rootworks Reports”). This license includes, without limitation, the right to market and provide Aggregated Data and Rootworks Reports (i) for one or more benchmarking module add-ons to any of our products (now existing or offered later), (ii) providing such Rootworks Reports to third parties, for research, marketing or advertising, or (iii) for any other commercial purpose at our sole discretion. Any Customer Data or Content that is aggregated with other data for benchmarking will be anonymized and pooled with a sufficient amount of other customer data or content, so that your Customer Data or Content cannot be identified or connected to you. No specific, identifiable Customer Data or Content will be made available to any third party not authorized by you to receive it (except as permitted in this Agreement). No license fee or royalty will be payable by us to you for our use of the Customer Data or Content as permitted in this Agreement. Our right to preserve and use your Customer Data or Content in anonymized or de-identified form for any of the purposes set forth in this Agreement will survive the termination of this Agreement. Except for the license and rights granted to us in this Agreement, you possess and retain all right, title, and interest in and to your Customer Data and Content.

iv. We will promptly notify you of any disclosure or misappropriation or unauthorized access or use of Customer Data or Content (“Leak”) that comes to our attention when such notification is required by law. We will cooperate with you and with law enforcement authorities in investigating any such Leak. We will likewise cooperate with you and with law enforcement agencies in any effort to notify injured parties. You acknowledge and agree that we shall not have any liability to you for damages caused or alleged to have been caused by any Leak that was beyond our reasonable control.

12. Limited Warranty.

We warrant that, for any paid subscription term, the Services will operate in substantial conformance with the then-current advertised standards, under normal use. We will use reasonable efforts to remedy any material non-conformance in the Site and Services that you promptly report to us in writing and that we can reasonably identify and confirm. This limited warranty does not apply to Services subscribed for on a free or trial basis. This Section 12 sets forth your sole and exclusive remedy and our sole and entire liability and obligation for any breach of this warranty or other nonconformance relating to the functionality of the Services. Any breach of this Agreement by you voids this limited warranty and the indemnities set forth in Section 18.2.

13. Warranty Waivers and Disclaimers.

EXCEPT AS EXPRESSLY PROVIDED IN SECTION 12 OF THIS AGREEMENT, (1) THE SITE AND SERVICES ARE PROVIDED “AS-IS” AND WITH ALL FAULTS, (2) NEITHER WE NOR ANY OF OUR AFFILIATES, PARTNERS, LICENSORS, SUPPLIERS, REFERRAL AGENTS OR RESELLERS MAKE ANY REPRESENTATION OR WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, WITH RESPECT TO THE SITE OR THE SERVICES, AND (3) ROOTWORKS AND OUR AFFILIATES, PARTNERS, LICENSORS, SUPPLIERS, REFERRAL AGENTS AND RESELLERS SPECIFICALLY DISCLAIM, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY AND ALL WARRANTIES, EXPRESS OR IMPLIED, RELATING TO THE SITE AND SERVICES, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF TITLE, MERCHANTABILITY, COMPLETENESS, TIMELINESS, CORRECTNESS, NON-INFRINGEMENT, FITNESS FOR ANY PARTICULAR PURPOSE, SYSTEM INTEGRATION, OR DATA ACCURACY. YOU HEREBY WAIVE ANY SUCH WARRANTIES, EXPRESS OR IMPLIED TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW. NEITHER ROOTWORKS NOR OUR AFFILIATES, PARTNERS, LICENSORS, SUPPLIERS, REFERRAL AGENTS OR RESELLERS REPRESENT OR WARRANT THAT THE SITE OR THE SERVICES: (A) WILL BE SECURE, TIMELY, UNINTERRUPTED OR ERROR-FREE, (B) OPERATE IN COMBINATION WITH ANY OTHER HARDWARE, SOFTWARE, SYSTEM OR DATA, (C) WILL MEET YOUR REQUIREMENTS OR EXPECTATIONS OR ANY PARTICULAR CRITERIA OF PERFORMANCE, QUALITY, ACCURACY, PURPOSE, OR NEED, (D) WILL BE TIMELY REPAIRED OR CORRECTED, OR (E) WILL BE FREE OF DEFECTS, VIRUSES, MALWARE OR OTHER HARMFUL COMPONENTS. THESE WAIVERS AND DISCLAIMERS CONSTITUTE AN ESSENTIAL PART OF THIS AGREEMENT. NO PURCHASE, LICENSE, SUBSCRIPTION OR USE OF THE SITE OR SERVICES OFFERED BY THE SITE IS AUTHORIZED HEREUNDER EXCEPT UNDER THESE WAIVERS AND DISCLAIMERS. IF IMPLIED WARRANTIES MAY NOT BE DISCLAIMED OR WAIVED UNDER APPLICABLE LAW, THEN ANY IMPLIED WARRANTIES ARE LIMITED IN DURATION TO THE PERIOD REQUIRED BY APPLICABLE LAW AND LIMITED IN SCOPE AS REQUIRED BY APPLICABLE LAW.

14. Limitation of Liability and Exclusive Remedies.

NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL ROOTWORK’S AGGREGATE LIABILITY FOR DAMAGES EXCEED THE GREATER OF (A) THE AMOUNTS ACTUALLY PAID BY YOU FOR THE SERVICES OVER THE SIX (6) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO SUCH CLAIM, OR (B) ONE HUNDRED DOLLARS. IN NO EVENT AND UNDER NO LEGAL THEORY, INCLUDING, WITHOUT LIMITATION, TORT, CONTRACT, QUASI-CONTRACT OR STRICT PRODUCTS LIABILITY, SHALL ROOTWORKS AND/OR ITS AFFILIATES, PARTNERS, LICENSORS, SUPPLIERS, REFERRAL AGENTS OR RESELLERS BE LIABLE TO ANY PARTY FOR ANY INDIRECT, PUNITIVE, SPECIAL, EXEMPLARY, INCIDENTAL, CONSEQUENTIAL OR OTHER DAMAGES OF ANY TYPE OR KIND (INCLUDING LOSS OF DATA, REVENUE, PROFITS, USE OR OTHER ECONOMIC ADVANTAGE, GOODWILL, WORK STOPPAGE, OR COMPUTER MALFUNCTION, OR ANY OTHER KIND OF COMMERCIAL DAMAGE) ARISING OUT OF, OR IN ANY WAY CONNECTED WITH THE SITE OR THE SERVICES, INCLUDING, WITHOUT LIMITATION, THE USE OR INABILITY TO USE THE SITE OR SERVICES OR ANY INTERRUPTION, INACCURACY, ERROR OR OMISSION, REGARDLESS OF CAUSE, EVEN IF THE PARTY FROM WHICH DAMAGES ARE BEING SOUGHT OR SUCH PARTY’S LICENSORS, SUPPLIERS, OR RESELLERS HAVE BEEN PREVIOUSLY ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR SUCH DAMAGES WERE OTHERWISE FORESEEABLE. ROOTWORKS DOES NOT GUARANTEE UPTIME OR THAT SERVICES WILL ALWAYS BE AVAILABLE.

15. Indemnities.

i. You agree to indemnify and hold us harmless from and against (i) any claims that your Customer Data infringes the intellectual property, privacy, confidentiality, proprietary, or other rights of a third party, (ii) any costs incurred as a result of a claim or legal proceeding brought by a third party to obtain your Customer Data, (iii) any loss, damage, or costs arising from your breach of this Agreement, and (iii) any sales taxes or other taxes arising from your use of the Services or the Software (excluding any income tax on our revenue from fees for providing the Services). You acknowledge and agree that you are solely responsible for the legality, quality, reliability, and accuracy of your Customer Data.

ii. We agree to defend you or, at our election, indemnify you, from and against any claims that the Site or Services infringe on the intellectual property rights of a third party, provided that (i) you notify us within 10 days of any claim being made or any proceedings instituted against you, (ii) you cease using the Site or the Services that are the subject of any such claim or proceeding, immediately upon receiving the indemnifiable claim from the third party, (iii) you have not breached this Agreement, and (iv) you have not acknowledged the validity of any such claim or proceeding or taken any action that might impair our ability to contest the claim or proceeding.

iii. You agree that we may control the defense of any action brought under this Section 15 and you shall fully cooperate, provided that you may participate in any such claim at your own expense.

16. Confidential Information.

You agree that all non-public information that we provide regarding the Services, including without limitation, our pricing, marketing methodology, and business processes, is our proprietary confidential information. You agree to use this confidential information only for purposes of receiving the benefits of the Services in strict compliance with this Agreement, and you further agree not to use or disclose this confidential information during the term of the Agreement and for five (5) years after the termination or expiration of this Agreement. We agree that all non-public information that you provide, including your Customer Data, is your proprietary confidential information, subject to our use and disclosure rights as set forth in this Agreement. We agree to use this confidential information only for purposes set forth in this Agreement, and we further agree not to use or disclose this confidential information (except as permitted under this Agreement) during the term of the Agreement.

17. Intended For Use Only within the United States and Canada.

The Site and Services is intended for use only from within the United States and Canada. We do not represent that the Site is appropriate for use elsewhere. Access to the Site from any location where its Contents are illegal is not authorized. If you are located outside the U.S., then the following provisions shall apply: (i) the parties confirm that this Agreement and all related documentation is and will be in the English language unless otherwise agreed to be Rootworks; and (ii) you are responsible for complying with any local laws in your jurisdiction that might impact your right to import, export or use the Site or the Services, and you represent and warrant to Rootworks that you have complied with any regulations or registration procedures required by applicable law to make this Agreement enforceable.

18. Transfer of Personal Information Outside Your Country of Residence.

Any personal information which we may collect on this site, and all Customer Data, may be stored and processed in servers located in the United States. If you reside outside the United States, you consent to the transfer of personal information and Customer Data outside your country of residence to the United States.

19. Registration Data.

Registration is required for you to establish an account at this site. You agree (i) to provide certain current, complete, and accurate information about you as prompted to do so by our online registration form (“Registration Data”), and (ii) to maintain and update such Registration Data as required to keep such information current, complete and accurate. You warrant that your Registration Data is and will continue to be accurate and current, and that you are authorized to provide such Registration Data. You authorize us to verify your Registration Data at any time. If any Registration Data that you provide is untrue, inaccurate, not current or incomplete, we retain the right, in our sole discretion, to suspend or terminate rights to use your account. To enable us to use Registration Data internally, so that we are not violating any rights you might have in that Registration Data, you grant to us a nonexclusive license to (i) convert such Registration Data into digital format such that it can be read, utilized and displayed by our computers or any other technology currently in existence or hereafter developed capable of using digital information, and (ii) combine the Registration Data with other Content by any method or means or in any medium whether now known or hereafter devised.

20. Monitoring.

We reserve the right, but not the obligation, to monitor your access and use of this website without notification to you. We may record or log your use in a manner as set out in our Privacy Policy that is accessible through the Privacy Policy link on this site’s home page.

21. Security.

You shall be solely responsible for acquiring and maintaining technology and procedures for maintaining the security of your link to the Internet. We shall implement reasonable security procedures consistent with prevailing industry standards to protect data, including but not limited to personal information and Customer Data or Content, from unauthorized access by physical and electronic intrusion, provided, however, you agree that we shall not, under any circumstances, be held responsible or liable for situations (i) where data, including but not limited to personal information or Customer Data, Content or transmissions are accessed by third parties through illegal or illicit means, or (ii) where the data, including but not limited to personal information or Customer Data, Content or transmissions are accessed through the exploitation of security gaps, weaknesses, or flaws unknown to us at the time. We will promptly report to you any unauthorized access to your Customer Data after discovery by us, and we will use reasonable efforts to promptly remedy any breach of security that permitted such unauthorized access. We reserve the right to suspend or terminate rights to use your account if your use of the Services presents a security risk to any other users or the Services in general. In the event notification to persons included in your Customer Data is required, you shall be solely responsible for any and all such notifications at your expense.

22. Notices.

We may give notice to you by means of (i) a general notice in your account information or, if the notice is general in nature (not specific to you), by posting on our website, (ii) electronic mail to your e-mail address on record in your Registration Data, (iii) SMS message to your telephone number on record in your Registration Data, or (iv) written communication sent by first class mail to your address on record in your Registration Data. Such notice shall be deemed to have been received upon the expiration of 48 hours after mailing by first class mail or 12 hours after posting or sending by other means. You may give notice to us (such notice shall be deemed given when received by us) by any of the following: (a) electronic mail to support@rootworks.com, with “Customer Notice, Attention: Director of Customer Support” in the subject line; (b) written communication sent by first class mail to our address provided in this Agreement (as it may be changed as provided in any modification of this Agreement); or (c) written communication to our address delivered by a nationally-recognized overnight delivery service. Our current address for notice is Rootworks, 14 Hampshire Dr, Hudson, NH 03051, in either case, addressed to the attention of “President of the Company”. Notices will not be effective unless sent in accordance with the above requirements.

23. Arbitration.

YOU AND ROOTWORKS WAIVE ANY CONSTITUTIONAL AND STATUTORY RIGHT TO GO TO COURT AND HAVE A TRIAL IN FRONT OF A JUDGE OR JURY. Except for any action to protect our intellectual-property or confidentiality rights or to enforce an arbitrator’s decision hereunder, all disputes, controversies, or claims arising out of or relating to this Agreement shall be submitted exclusively to and finally resolved by arbitration under the rules of the American Arbitration Association (“AAA”) then in effect. There shall be one arbitrator, and such arbitrator shall be chosen by mutual agreement of the parties in accordance with AAA rules. The arbitration shall take place in the State of New Hampshire, USA, and the parties agree to submit to that jurisdiction and venue. The arbitration may be conducted by telephone, teleconference or online. Both parties waive any objections or defense based on lack of personal jurisdiction or venue. The arbitrator shall apply the laws of the State of New Hampshire, USA to all issues in dispute, excluding its rules regarding conflicts of laws. The controversy or claim shall be arbitrated on an individual basis, and shall not be joined or consolidated in any arbitration or other proceeding with any claim or controversy of any other party. The findings of the arbitrator shall be final and conclusively binding on the parties, and may be entered in any court of competent jurisdiction for enforcement. Each party shall bear its own costs of arbitration, including without limitation its own attorneys’ fees. Arbitration fees shall be split equally between the parties. Enforcements of any award or judgment shall be governed by federal law or by the United Nations Convention on the Recognition and Enforcement of Foreign Arbitral Awards. Should either party file an action contrary to this provision, the other party may recover reasonable attorney’s fees and costs incurred as a result of such filing.

24. Exclusive Jurisdiction and Venue; Applicable Law.

The courts of Hillsborough County in the State of New Hampshire, USA and the U.S. District Court for the State of New Hampshire shall be the exclusive jurisdiction and venue for all legal proceedings that are not arbitrated under this Agreement. Both parties waive any objections or defense based upon lack of personal jurisdiction or venue and agree to submit to the jurisdiction of said courts. The laws of the State of New Hampshire, USA shall apply to all issues in dispute, excluding its rules regarding conflicts of law. Application of the United Nations Convention of Contracts for the International Sale of Goods is expressly excluded. The Uniform Computer Transactions Act or any version thereof, adopted by any state, in any form (“UCITA”), shall not apply to this Agreement, and to the extent that UCITA may be applicable, the parties agree to opt out of the applicability of UCITA pursuant to the opt-out provision(s) contained therein.

25. Severability.

If any provision of this Agreement is declared invalid or unenforceable, such provision shall be deemed modified to the extent necessary and possible to render it valid and enforceable consistent with the spirit of this Agreement. In any event, the unenforceability or invalidity of any provision shall not affect any other provision of this Agreement, and this Agreement shall continue in full force and effect, and be construed and enforced, as if such provision had not been included, or had been modified as above provided, as the case may be.

26. Force Majeure.

We shall not be liable for damages or otherwise for any delay or failure of delivery arising out of causes beyond our reasonable control, including, but not limited to, Acts of God, acts of civil or military authority, fires, riots, terrorism, floods, wars, epidemics, pandemics, government-imposed lockdowns, embargoes, power failures, internet or network disruptions, hacker attacks, or communications failures.

27. Survival.

Any provisions of this Agreement the survival of which is necessary for the interpretation or enforcement of this Agreement shall continue in full force and effect in accordance with their terms, notwithstanding the expiration or termination of this Agreement.

28. Assignment.

You may not transfer any of your rights to use the Software or the Services or assign this Agreement to another person or entity without first obtaining prior written approval from us. We agree not to withhold approval unreasonably. We may assign any of our rights and/or obligations under this Agreement at our sole discretion.

29. Statistical Information.

Rootworks may compile anonymized and de-identified statistical information using any and all data including Customer Data, related to the performance of the Services, and may make such information publicly available, provided that such information does not disclose your confidential information or reasonably identify you. Rootworks retains all intellectual property and other rights in such information.

30. Entire Agreement.

Except for any written agreement between you and Rootworks that is signed by an officer of Rootworks, this Agreement constitute the entire understanding of the parties with respect to this Site and the Services and supersedes all prior and contemporaneous communications, representations, and agreements. A person or entity that is not a party to this Agreement has no right to enforce any term of this Agreement, and the parties to this Agreement do not intend to create any third-party rights hereunder.

31. Modification of Agreement.

We reserve the right to modify this Agreement at any time by posting an amended Agreement that is always accessible through a link on this site’s home page. You should check this Agreement periodically for modifications by scrolling to the bottom of this Agreement for a listing of material modifications and their effective dates. IF ANY MODIFICATION IS UNACCEPTABLE TO YOU, YOUR ONLY RECOURSE IS TO TERMINATE THIS AGREEMENT, SUBJECT TO THE TERM AND CONDITIONS SET FORTH IN THIS AGREEMENT. YOUR CONTINUED USE OF THIS SITE FOLLOWING OUR POSTING OF AN AMENDED AGREEMENT OR MODIFICATION WILL CONSTITUTE BINDING ACCEPTANCE. You agree that non-material modifications will not be a basis for termination, and you agree that non-material modifications will be deemed automatically accepted. “Non-material modification” means a modification that does not substantially and adversely affect you, when compared to the existing agreement to which you are bound.