Terms & conditions

1. SCOPE OF WORK

1.1. SERVICES. "Services" means the services to be performed by snapscale as set forth in each mutually agreed upon Statement of Work. Each Statement of Work entered into by the parties shall reference this Agreement and is hereby made a part of this Agreement; provided, however, the contents of any Statement of Work shall take precedence over any conflicting provision in this Agreement to the extent necessary to resolve any such conflict. snapscale shall perform the specified Services during the term provided for in such Statement of Work.

1.2. RELATIONSHIP OF THE PARTIES. snapscale shall be deemed an independent contractor of CL. As between snapscale and CL, all persons retained by snapscale to perform Services for CL hereunder shall be employees or contractors of snapscale and shall not be employees or contractors of CL.

1.3. PLACE OF WORK. CL understands and agrees that some or all of the Services may be performed from, through or using a location outside the United States, using employees or contractors of snapscale.

2. CL RESPONSIBILITIES

2.1. COOPERATION. CL shall cooperate with snapscale by providing to snapscale such information and documents and access to CL's personnel as reasonably required by snapscale to perform the Services specified in a Statement of Work.

3. FEES AND PAYMENTS

3.1. FEES. The fees for snapscale's Services will be charged in U.S. dollars on the terms and at the rates specified in the applicable Statement of Work. A reserve of one calendar week (unless otherwise noted in the Statement of Work) is required and shall be returned when Services are complete so long as proper written notice of termination is provided and all outstanding fees, expenses and invoices are paid in full. In addition, CL agrees to pay an initial set up fee if set forth in the Statement of Work.

3.2. EXPENSES. CL shall reimburse snapscale for all actual expenses that are authorized by CL in an applicable Statement of Work or otherwise agreed by CL, reasonably incurred by snapscale and snapscale personnel in the course of performing the Services hereunder and evidenced by receipts provided to CL ("expenses").

3.3. INVOICES. Unless otherwise specified in the applicable Statement of Work, snapscale will invoice CL weekly for the Services furnished and expenses incurred if applicable.

3.4. TAXES. In addition, CL shall be responsible for paying any applicable sales, use, excise, value added, or similar taxes, duties, or assessments imposed upon the Services rendered hereunder by any federal, state, local, or foreign government authority, exclusive of any taxes based upon snapscale's income or payroll.

3.5. PAYMENTS. Unless otherwise set forth in a Statement of Work, each invoice shall be due and payable to snapscale, at the address specified in the invoice, in U.S. dollars within seven (7) calendar days after receipt of such invoice and any past due undisputed amounts shall thereafter accrue interest, until paid, at the maximum interest rate permitted under applicable law.

3.6. COMPENSATION OF snapscale'S PERSONNEL AND EMPLOYEE BENEFITS. snapscale shall bear sole responsibility for the payment of compensation to its personnel and contractors. snapscale shall pay and report, for all personnel assigned to CL work, any employment-related taxes or charges applicable to such personnel as employees of snapscale. snapscale shall bear sole responsibility for any health or disability insurance, retirement benefits, or other welfare or pension benefits, if any, to which such personnel may be entitled. snapscale shall include in its employee work schedules two (2) fifteen minute breaks as well as a one hour lunch breach during the course of a standard work day. However, when providing services for CL, CL is ultimately responsible for ensuring that any state-mandated rest and/or meal breaks are provided to each personnel and contractor and shall reimburse snapscale for payments of breaks, vacations and sick leave for those employees and personnel working for the benefit of CL.

4. OWNERSHIP

4.1. CL PROPERTIES. As between snapscale and CL, CL will at all times be and remain the sole and exclusive owner of any documents or other tangible or intellectual property ("CL Properties") provided by CL to snapscale under this Agreement.

4.2. snapscale PROPERTIES. Any software, designs, content, methodologies, techniques, processes, inventions, materials or other deliverables developed in whole or in part by snapscale or its contractors, or otherwise provided to CL in connection with this Agreement (and associated intellectual property rights) ("Deliverables") shall be the property of snapscale ("snapscale Properties"). As between snapscale and CL, snapscale shall at all times be and remain the sole and exclusive owner of the snapscale Properties.

5. CONFIDENTIALITY

5.1. GENERAL. In the performance of this Agreement or in contemplation thereof, each party (the "receiving party") and its employees, agents and contractors may have access to confidential information (hereinafter "Confidential Information") owned or controlled by the other party (the "disclosing party"). All Confidential Information supplied by the disclosing party to the receiving party which is clearly marked "Confidential" or which is derived therefrom shall remain the exclusive property of the disclosing party. The receiving party shall use a reasonable degree of care, which in any event shall not be less than the same degree of care which the receiving party uses to protect its own Confidential Information, to keep, and have its employees and agents keep, confidential any and all Confidential Information. In keeping therewith, the receiving party shall not copy, publish or disclose the Confidential Information to others, or authorize its employees, or agents or anyone else to copy, publish or disclose it to others, without the disclosing party's written approval, nor shall the receiving party make use of the Confidential Information except for the purposes of executing its obligations hereunder, and shall return the Confidential Information to the disclosing party at its request. The parties agree that the snapscale Properties and the CL Properties shall be deemed Confidential Information, as are all documentation, descriptions, and embodiments thereof.

5.2. LIMITATIONS ON CONFIDENTIALITY OBLIGATIONS. These nondisclosure obligations will not apply to Confidential Information which: (a) becomes generally known to the public by publication or by any means other than a breach of duty on the party of the receiving party hereunder; (b) is information previously known to the receiving party; (c) is information independently developed by or for the receiving party; or (d) is information released by the disclosing party without restriction or released pursuant to a judicial or governmental decree. If required by order of any government authority, the receiving party may disclose to such authority the disclosing party's Confidential Information to the extent required by such order, provided that the receiving party shall first use its best efforts to obtain a protective order reasonably satisfactory to the disclosing party sufficient to maintain the confidentiality of such data, information, or materials.

6. INDEMNIFICATION

6.1. CL INDEMNIFICATION. CL agrees to defend, indemnify and hold harmless snapscale from and against any and all liability, actions, claims, demands, suits, liens, losses, costs, damages, judgments and expenses incurred (including reasonable attorneys' fees), occasioned by, resulting from, arising out of, related to, or in connection with, any breach by CL of any of its representations, warranties or covenants under this Agreement. Such indemnification shall specifically include, but shall not be limited to, any regulatory fines and/or any expenses of corrective actions taken by snapscale due to CL's failure to abide by this Agreement and indemnification payments shall be due and owing upon notice to CL of such outstanding matters. CL shall be responsible for the defense of all such actions, claims, demands and suits, and shall pay all costs and charges resulting therefrom, including attorney's fees. CL's selection of counsel shall not be subject to the approval of snapscale. snapscale shall have the right, however, to retain separate counsel at snapscale's cost and expense and participate in the defense of any such actions, claims, demands and suits.

6.2 snapscale INDEMNIFICATION. snapscale agrees to defend, indemnify and hold harmless CL from and against any and all liability, actions, claims, demands, suits, liens, losses, costs, damages, judgments and expenses incurred (including reasonable attorneys' fees), occasioned by, resulting from, arising out of, related to, or in connection with, any breach by snapscale of any of its representations, warranties or covenants under this Agreement. Such indemnification shall specifically include, but shall not be limited to, any regulatory fines and/or any expenses of corrective actions taken by CL due to snapscale's failure to abide by this Agreement and indemnification payments shall be due and owing upon notice to snapscale of such outstanding matters. snapscale shall be responsible for the defense of all such actions, claims, demands and suits, and shall pay all costs and charges resulting therefrom, including attorney's fees. snapscale's selection of counsel shall not be subject to the approval of CL. CL shall have the right, however, to retain separate counsel at CL's cost and expense and participate in the defense of any such actions, claims, demands and suits.

6.3 COOPERATION. Each Party shall cooperate with the other as reasonably requested in such defense, and shall not consent to any judgment, order or decree against the other party without the other party's consent. Each party may, with the other party's written consent, settle any such actions, claims, demands, and suits. Consent herein shall not be unreasonably withheld.

7. REPRESENTATIONS AND WARRANTIES

7.1. REPRESENTATIONS AND WARRANTIES OF CL.

7.1.1. RIGHTS AND TITLE. CL hereby represents and warrants that it has and for the duration of this Agreement shall have all rights required for the performance of its obligations hereunder and has and for the duration of this Agreement shall have the authority and the legal right to enter into this Agreement.

7.1.2. PRIVACY LAWS. Subject to Section 10.13, CL hereby represents and warrants that the information to be provided to snapscale in connection with the Services is not subject to any U.S. privacy laws or regulations and can be processed outside the United States without violation of any U.S. privacy laws or regulations.

7.1.3. COMPLIANCE WITH LAW. CL is and for the duration of this Agreement shall be in compliance with all federal, state, local and foreign laws, governmental regulations, rules and requirements and binding administrative and court orders (collectively "Laws") applicable to CL.

7.2. REPRESENTATIONS AND WARRANTIES OF snapscale.

7.2.1. RIGHTS AND TITLE. snapscale hereby represents and warrants that it has and for the duration of this Agreement shall have all rights title or interest in the snapscale Properties and Deliverables required for the performance of its obligations hereunder and has and for the duration of this Agreement shall have the authority and the legal right to enter into this Agreement.

7.2.2. SERVICES. snapscale further represents and warrants that the Services provided under this Agreement will be of commercially reasonable quality in accordance with any specifications or requirements set forth in a Statement of Work and will be performed in a good and workmanlike manner and in accordance with industry standards. Any claim for breach of snapscale's warranties under this Section 7.2.2 must be made, by written notice to snapscale, within sixty (60) days following the date of completion of the Services for which the claim is made. snapscale shall have a thirty (30) day period following receipt of any such notice in which to cure a breach. CL's sole and "exclusive remedy for any breach of this Section 7.2.2 shall be for snapscale to reperform the Services that are the subject of the written notice.

7.2.3. COMPLIANCE WITH LAW. snapscale is and for the duration of this Agreement shall be in compliance with all Laws applicable to snapscale, including all Laws applicable to its provision of the Services. Since CL shall be afforded the opportunity to review and approve all marketing campaigns and scripting before snapscale commences a campaign, snapscale shall not be responsible for compliance with laws relating to the representations made in such campaigns.

7.3. NO OTHER WARRANTY. EXCEPT AS PROVIDED IN THIS AGREEMENT, (A) NEITHER PARTY MAKES ANY REPRESENTATION OR WARRANTY OF ANY KIND, WHETHER EXPRESS OR IMPLIED, FROM A COURSE OF PERFORMANCE OR DEALING, TRADE USAGE, OR OF UNINTERRUPTED OPERATION WITHOUT ERROR, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE AND (B) WITHOUT LIMITING snapscale'S OBLIGATION TO DELIVER THE SERVICES AND/OR DELIVERABLES SET FORTH IN A STATEMENT OF WORK, snapscale MAKES NO GUARANTEES WITH REGARD TO THE SERVICES AND DELIVERABLES, AND THE RESULTS OBTAINED FROM THE OPERATION OR USE BY CL OF THE CL PROPERTIES OR snapscale PROPERTIES. THE LIMITED WARRANTY SET FORTH IN THIS AGREEMENT IS MADE FOR THE BENEFIT OF CL ONLY.

8. LIMITATION OF LIABILITY

8.1. snapscale'S LIABILITY FOR ANY REASON AND UPON ANY CAUSE OF ACTION, WHETHER SOUNDING IN TORT, CONTRACT, OR ANY OTHER LEGAL THEORY, SHALL AT ALL TIMES AND IN THE AGGREGATE BE LIMITED TO THE AMOUNTS ACTUALLY PAID BY CL TO snapscale UNDER THE APPLICABLE STATEMENT OF WORK DURING THE PREVIOUS SIX (6) MONTHS.

8.2. NEITHER PARTY SHALL BE LIABLE FOR ANY INDIRECT, CONSEQUENTIAL, EXEMPLARY, INCIDENTAL, OR PUNITIVE DAMAGES, INCLUDING LOST PROFITS, EVEN IF THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

8.3. THE FOREGOING LIMITATIONS OF LIABILITY (INCLUDING THE DAMAGES CAP AND THE EXCLUSIONS SET FORTH IN THE IMMEDIATELY PRECEDING TWO PARAGRAPHS) SHALL NOT APPLY TO THE INDEMNIFICATION OBLIGATIONS SET FORTH HEREIN, A BREACH OF THE CONFIDENTIALITY AGREEMENT, OR DAMAGES CAUSED BY GROSS NEGLIGENCE, RECKLESS CONDUCT OR WILLFUL MISCONDUCT.

9. TERM AND TERMINATION

9.1. TERM. The term of this Agreement shall commence on the Effective Date and, unless earlier terminated in accordance with this Section 9, shall continue through the end of the last extant Statement of Work.

9.2. TERMINATION. This Agreement may be terminated (a) by either party if the other party defaults in the performance of any of its material obligations (or repeatedly defaults in the performance of any of its other obligations) under this Agreement (i) upon at least thirty (30) days' written notice to the breaching party if such default is capable of being cured and the breaching party does not cure such default within thirty (30) days from the non-breaching party's written default notice or (ii) immediately upon written notice to the breaching party if such default is not capable of being cured, and (b) by either party upon written notice to the other party; provided that this Agreement shall not be terminated under this clause (b) with respect to an outstanding Statements of Work until such Statement of Work expires or is completed or terminated in accordance with its terms, including any notice requirements provided therein. CL's obligation to make payment for Services shall survive any termination of this Agreement.

9.3 RETURN OF CL PROPERTIES. Upon the expiration or termination of a Statement of Work (a) any and all licenses granted to snapscale to perform Services under such Statement of Work shall automatically terminate, and (b) snapscale shall deliver to CL, in the manner requested by CL all of the CL Properties relating to such Statement of Work in the form then in use.

10. GENERAL

10.1. COMPLETE AGREEMENT. This Agreement, including any Statements of Work hereunder, is the complete and exclusive statement of the agreement of the parties with respect to the subject matter hereof and supersedes and merges all prior proposals, understandings, and agreements, whether oral or written, between the parties with respect to the subject matter hereof. This Agreement may not be modified except by a written instrument executed by authorized representatives of the parties.

10.2. NO WAIVER. No failure to exercise, and no delay exercising, on the part of either party, any right, power or privilege hereunder will operate as a waiver thereof, nor will any party's exercise of any right, power or privilege hereunder preclude further exercise of the same right or the exercise of any other right hereunder.

10.3. ENFORCEABILITY. If any part of this Agreement shall be adjudged by any arbitrator of competent jurisdiction to be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions shall not be affected or impaired thereby and shall be enforced to the maximum extent permitted by applicable law.

10.4. FORCE MAJEURE. Either party shall be excused from performance and shall not be liable for any delay in whole or in part, to the extent caused by the occurrence of any events beyond the reasonable control either of the excused party or its subcontractors or suppliers, for as long as such event continues and the excused party continues to use its best efforts to recommence performance whenever and to whatever extent possible without delay, including through the use of alternate sources, workaround plans or other means.

10.5. NOTICES. Any notice required or permitted hereunder to the parties hereto will be deemed to have been duly given only if in writing to the address of the receiving party as set forth in the Statement of Work or such other address as may be specified by such party in a notice delivered to the other party in accordance with this Section and delivered by: (a) certified U.S. mail, return receipt requested, postage prepaid; (b) nationally recognized overnight courier, delivery charges prepaid; (c) email or (d) by hand delivery with signed receipt. Any notice shall be deemed delivered: (x) on the fifth (5th) business day following deposit of such notice with the U.S. Postal Service if notice is given in accordance with (a), above; (y) on the second (2nd) business day following deposit of such notice with the courier if notice is given in accordance with (b), above; or (z) on the date of actual email or delivery if notice is given in accordance with (c) or (d), above.

10.6. BINDING ARBITRATION. The parties hereby agree that as their sole and exclusive remedy, they will settle any and all claims, disputes or controversies arising out of or relating to this Agreement by final and binding arbitration before a neutral Arbitrator, pursuant to the rules of the American Arbitration Association. Any determination by the Arbitrator shall be final and binding but subject to review in accordance with applicable statutes, rules and regulations governing arbitration awards. To the extent it may be necessary; the final and binding decision by the Arbitrator may be filed with a court of appropriate jurisdiction. Such arbitration shall be heard in the State of New Jersey and each party also agrees not to bring any action or proceeding arising out of or relating to this Agreement in any other State or forum.

10.7. GOVERNING LAW. This Agreement shall be deemed to have been made in, and shall be construed pursuant to the Laws of the State of New Jersey, excluding its choice of law principles.

10.8. ASSIGNMENT. Neither party may assign or delegate any or all of its rights (other than the right to receive payments) or its duties or obligations hereunder without the consent of the other party, which consent shall not be unreasonably withheld; provided, however, that either party may assign this Agreement, without the need to obtain consent of the other party, to a successor in interest to substantially all of the business of that party to which this Agreement relates. An assignee of either party authorized hereunder shall be bound by the terms of this Agreement and shall have all of the rights and obligations of the assigning party set forth in this Agreement.

10.9. SUBCONTRACTING. snapscale shall have the right to subcontract some or all of the Services specified in a Statement of Work to an individual or entity located outside the United States. No subcontracting shall release snapscale from its responsibility for its obligations under this Agreement. snapscale shall be responsible for the work and activities of each of its contractors, including compliance with the terms of this Agreement. snapscale shall be responsible for all payments to its contractors. snapscale shall enter into confidentiality agreements with any contractors with provisions at least as restrictive as the provisions of Section 5 of this Agreement.

10.10.NON-SOLICITATION OF EMPLOYEES AND INDEPENDENT CONTRACTORS. During the term of this Agreement and for one (1) year following the later of the effective date of termination of the Agreement for any reason or the expiration or termination of the then last Statement of Work (hereinafter the "Non-Solicitation Period"), CL shall not, whether directly or indirectly and whether through or on behalf of another person or entity: (a) induce or attempt to induce any employee of snapscale to leave the employ of snapscale, or any independent contractor of snapscale to terminate its contract with snapscale; (b) take or attempt to take any action which interferes with the relationship between snapscale or any of its respective employees or independent contractors; or (c) hire or attempt to hire any individual who was an employee or independent contractor of snapscale at any time during CL's Agreement with snapscale.

CL acknowledges and agrees that any breach of the provisions of this Section shall cause Company irreparable injury and damage for which snapscale cannot be adequately compensated in damages. CL therefore expressly agrees that (notwithstanding Section 10.6 of this Agreement) snapscale shall be entitled to seek injunction and/or equitable relief, on a temporary or permanent basis, to prevent any anticipatory or continuing breach of this Agreement or any part thereof. Nothing herein shall be construed as a waiver of any right snapscale may have or hereafter acquire to pursue any other remedies available to it for such breach or threatened breach, including recovery of damages from CL.

10.11.LEGAL FEES. The prevailing party in any proceedings arising out of or relating to this Agreement shall be entitled to recover its reasonable attorney's fees, costs, and expenses from the other party and such costs, expenses and fees incurred on any appeal.

10.12.SURVIVAL. Each of the provisions of this Agreement shall remain in full force and effect through the End Date of this Agreement, and the terms which by their nature should survive, shall survive such End Date. The "End Date" shall be the effective date of the expiration or termination of this Agreement.

10.13.HIPAA. Each party shall maintain all patient information as confidential and shall use or disclose such patient information only in accordance with the policies and procedures of snapscale, and in a manner consistent with those requirements imposed by state and federal law. To the extent applicable to this Agreement, each party agrees to comply with the Health Insurance Portability and Accountability Act of 1996, as codified at 42 USC §1320d through d-8 ("HIPAA") as amended by the Health Information Technology for Economic and Clinical Health Act, as incorporated in the American Recovery and Reinvestment Act of 2009 (the "HITECH Act") and any current and future regulations promulgated thereunder, including the federal privacy regulations contained in 45 C.F.R. Parts 160 and 164 (the "Federal Privacy Regulations"), the federal security standards contained in 45 C.F.R. Parts 160, 162 and 164 (the "Federal Security Regulations"), and the federal standards for electronic transactions contained in 45 C.F.R. Parts 160 and 162, all collectively referred to herein as "HIPAA Requirements." Each party agrees to enter into any further agreements as necessary to facilitate compliance with the HIPAA Requirements, including a Business Associate Agreement attached hereto. The Business Associate Agreement is intended to be a part of this Agreement, and accordingly it is agreed that the terms of the Business Associate Agreement is incorporated herein by reference.