Savii, Inc. (“Savii”) has developed certain technology, as further described below, to provide a service that provides a web and mobile platform for the management of in home care agency processes. The company identified during registration (“Customer”) desires to subscribe to the Savii Care Service (as defined below) and Savii desires to provide access to the Savii Care Platform (as defined below) and provide the Savii Care Service on the terms and conditions set forth herein.
Savii is willing to provide access to the service and documentation described below to Customer only on the condition that Customer accepts all of the terms in this Subscription Agreement (“Agreement”). You hereby agree that, by clicking “I agree” and purchasing the Savii Care Service, that you enter into this Agreement on behalf of Customer and that you have the requisite authority to bind Customer to the terms and conditions of this Agreement.
THE PARTIES HAVE READ AND AGREE TO BE BOUND BY THE TERMS AND CONDITIONS OF THIS AGREEMENT, INCLUDING THOSE TERMS CONTAINED ON THE FOLLOWING PAGES HEREOF.
TERMS AND CONDITIONS
DEFINITIONS. As used in this Agreement:
“Active Client” mean a client of the Customer that is added to the Savii Care platform and whose status is set as “active” for more than 24 hours in the month for which billing is calculated and/or has a visit scheduled, confirmed, regardless of whether client it is invoiced through the Savii Care Platform, and/or if client is invoiced through the Savii Care Platform.
“Confidential Information” means all information regarding a party’s business, including, without limitation, technical, marketing, financial, employee, planning, and other confidential or proprietary information, disclosed under this Agreement, that is clearly identified as confidential or proprietary at the time of disclosure or that the receiving party knew or should have known, under the circumstances, was considered confidential or proprietary. Confidential Information includes the Customer Data, information derived from or concerning the Savii Care Service, the Savii Care platform, or the Documentation and the terms of this Agreement.
“Customer Data” means any data, information or information contained in any database, template or other similar document submitted by Customer through the Savii Care Service or provided by Customer to Savii as part of the Savii Care Service.
“Documentation” means the designated final user manuals, handbooks, online materials, specifications or forms furnished by Savii that describe the features, functionality or operation of the Savii Care System.
“Effective Date” means the date that Customer initially places an order for the Savii Care Service by registering and providing credit card information on this website and clicking "I agree" to accept the terms of this Agreement.
“Savii Care Service” means the on-line service and/or mobile app delivered by Savii to Customer using the Savii Care System, as made available by Savii from time-to-time for the amount of time agreed by Customer when the order is placed.
“Savii Care Platform” means the technology, including hardware and software, used by Savii to deliver the Savii Care Service to Customer in accordance with this Agreement including but not limited to Savii Care, Savii Connect, Savii Family, Savii EDI.
“Term” means the duration of this Agreement.
“UserID” means the unique identification name and password assigned to each User for access to the Savii Care Service.
“Users” means Customer’s employees, representatives, consultants, contractors or agents who are authorized to use the Savii Care Service on behalf of Customer and have been supplied user identifications and passwords for this purpose.
“Your Health Information” means health information that you or your Workforce or other Users enter into the Savii Programs.
2. SAVII CARE SERVICE
2.1 Subscription to the Savii Care Service. Subject to the terms of this Agreement, including, without limitation, the payment of the Fees set forth in Section 4 hereof, Savii hereby grants to Customer a non-sublicensable, non-transferable, non-exclusive subscription to access and use the Savii Care Service purchased by Customer in accordance with this Agreement solely for Customer’s internal business purposes of managing its agency’s referral, client, billing, and personnel processes and not for resale or to provide services to third parties. Customer agrees that its purchase of the subscription is neither contingent upon the delivery of any future functionality or features nor dependent upon any oral or written public comments made by Savii with respect to future functionality or features. Customer further represents that all information provided on the Order Form and online is true and correct and that Customer agrees to promptly notify Savii in writing of any changes to such information.
2.2 Access and Services. Access to the Savii Care Service cannot be shared with anyone other than a User. Savii provides Customer unlimited users to the Savii Care Service. Each user is required to have a unique login and password combination.
2.3 Service Levels. Subject to the terms of this Agreement, including, without limitation, the payment of the Fees set forth in Section 4 hereof, Savii shall use commercially reasonable efforts to (a) maintain the security of the Savii Care Service; (b) perform regular (once daily) backups for the Customer Data and (c) make the Savii Care Service available in accordance with the terms and conditions of Savii’s Service Level Agreement located at https://saviicare.freshdesk.com/solution/articles/5000539364-savii-care-service-level-agreement and incorporated herein by reference. Savii’s Service Level Agreement may be modified by Savii in its reasonable discretion from time to time, which modifications shall become effective upon posting to the above URL.
3. CUSTOMER’S USE OF THE SAVII CARE SERVICE
3.1 Access and Security Guidelines. Each User will be assigned a UserID for access to and use of the Savii Care Service. Customer shall be responsible for ensuring the security and confidentiality of its UserIDs. UserIDs may be shared within the Customer’s organization provided that UserIDs may not be provided to any individual who is not a User. Customer will use its best efforts to prevent unauthorized access to, or use of, the Savii Care Service by any third parties, and notify Savii promptly of any such unauthorized use. Customer will not use its access to the Savii Care Service to: (a) knowingly interfere with or disrupt the integrity or performance of the Savii Care Service or the data contained therein; or (b) harass or interfere with another Savii Care customer’s use and enjoyment of the Savii Care Service. Customer will, at all times, comply with all applicable local, state, federal, and foreign laws in using the Savii Care Service.
3.2 Customer Data. Customer is solely responsible for the Customer Data and will not provide, post or transmit any Customer Data or any other information, data or material that: (a) infringes or violates any intellectual property rights, publicity/privacy rights, law or regulation; or (b) contains any viruses or programming routines intended to damage, surreptitiously intercept or expropriate any system, data or personal information. Savii may take remedial action if Customer Data violates this Section 3.2, however, Savii is under no obligation to review Customer Data for accuracy or potential liability.
3.3 Use Restrictions. Customer is responsible for all activities that occur under Customer's User accounts. Customer will not, and will not attempt to: (a) reverse engineer, disassemble or decompile any component of the Savii Care System; (b) interfere in any manner with the operation of the Savii Care Service, or the Savii Care System or the hardware and network used to operate the Savii Care Service; (c) sublicense or transfer any of Customer’s rights under this Agreement, except as otherwise provided in this Agreement, or otherwise use the Savii Care Service for the benefit of a third party or to operate a service bureau; (d) modify, copy or make derivative works based on any part of the Savii Care System; (e) share, transfer, or otherwise make available the Savii Care Service or the Savii Care System to any Competitor of Savii; or (f) otherwise use the Savii Care Service in any manner that exceeds the scope of use permitted under Section 2.1 hereof or is in contravention of any laws. Customer will promptly notify Savii of any suspected violations of the restrictions set forth in this Section 3.3. “Competitor” shall mean any business that provides or could be reasonably expected to provide online or mobile app technology to companies that can reasonably defined as post-acute care providers.
4. FEES, PAYMENT AND SUSPENSION OF SERVICES
As consideration for the subscription to the Savii Care Service and the support services provided by Savii under this Agreement, Customer will pay Savii the fees (“Fees”) based on the number of active clients and the Savii Care Service as agreed by the parties initially and based on monthly agency census reports thereafter. If an annual or multi-year commitment is selected for the Savii Care Service, Customer understands and agrees that it is ordering the Savii Care Service on an annual or multi-year basis; provided, however, that Fees will be charged on a monthly basis for each month of the annual subscription to the credit card previously provided by Customer. Customer will be charged each month based on the total number of Active Clients / patients in their agency for previous month times the selected subscription rate. The initial charge is calculated as the agency average census times selected subscription rate times 50%. Not including those accepted into the Savii Start Smart program, the minimum charge regardless of agency census is $150/month. After go-live Savii will automatically charge Customer’s credit card up to 3 business days prior to the day of the initial signup date for the next month of the Savii Care Service. Each time Customer logs into the Savii Care Service, Customer reaffirms the agreement that Savii may charge Customer’s credit card each month per Customer’s agreement to the Savii Care Service.
“Active Client” mean a client of the Customer that is added to the Savii Care platform and whose status is set as “active” for more than 24 hours in the month for which billing is calculated and/or has a visit scheduled, confirmed, regardless of whether client it is invoiced through the Savii Care Platform, and/or if client is invoiced or claims filed on behalf of through the Savii Care Platform.
4.1 Election to EVV Service
Election to EVV Service. Customer has the option to use to Electronic Visit Verification services provided by third-party vendor, Bandwidth. If used, customer agrees to the monthly fee, per call fees, and will reimburse any additional phone numbers requested.
4.2 Overdue Charges
Except as otherwise agreed to by the parties in writing, if any payment is not received from Customer when due, then, at Savii’s discretion, (a) such charges may accrue late interest at the rate of 2.5% of the outstanding balance per month, or the maximum rate permitted by law, whichever is lower, from the date the payment was due until the date paid, and (b) Savii may require future payments to be made in advance.
4.3 Suspension of Product Offering and Acceleration
If any amount owing under this Agreement or any other agreement for Savii Care’s services is five or more days past due, Savii Care may, without limiting Savii Care’s other rights and remedies, accelerate Customer’s unpaid fee obligations under this Agreement and the other agreements so that all such obligations become immediately due and payable, and suspend Savii Care’s Product Offering to Customer until such amounts are paid in full. Customer shall maintain complete, accurate and up-to-date Customer credit card, billing and contact information at all times.
4.4 Taxes
Unless otherwise expressly stated, Savii Care’s fees do not include any taxes, levies, duties or similar governmental assessments of any nature, including but not limited to value-added, sales, use or withholding taxes, assessable by any local, state, provincial, federal or foreign jurisdiction (collectively, “Taxes”). Customer is responsible for paying all Taxes associated with Customer’s purchases in connection with this Agreement. If Savii Care has the legal obligation to pay or collect Taxes for which Customer are responsible under this paragraph, the appropriate amount will be invoiced to and paid by Customer, unless Customer provide Savii Care with a valid tax exemption certificate authorized by the appropriate taxing authority. For clarity, Savii, Inc. is solely responsible for taxes assessable against it based on Savii, Inc.’s income, property and employees
5. CONFIDENTIAL INFORMATION
5.1 Obligation. Each party agrees (a) to hold the other party’s Confidential Information in strict confidence, (b) to limit access to the other party’s Confidential Information to those of its employees or agents having a need to know and who are bound by confidentiality obligations at least as restrictive as those contained herein, and (c) not to use such Confidential Information for any purpose except as expressly permitted hereunder. Notwithstanding the foregoing, the receiving party will not be in violation of this Section 5.1 with regard to a disclosure that was in response to a valid order or requirement by a court or other governmental body, provided that the receiving party gives the other party with prior written notice of such disclosure in order to permit the other party to seek confidential treatment of such information.
5.2 Exceptions. The restrictions on use and disclosure of Confidential Information set forth above will not apply to any Confidential Information, or portion thereof, which (a) is or becomes a part of the public domain through no act or omission of the receiving party, (b) was in the receiving party’s lawful possession prior to the disclosure, as shown by the receiving party’s competent written records, (c) is independently developed by the receiving party without reference to the disclosing party’s Confidential Information, as shown by the receiving party’s competent written records, or (d) is lawfully disclosed to the receiving party by a third party without restriction on disclosure.
6. OWNERSHIP
6.1 Savii Care System and Technology. Customer acknowledges that Savii retains all right, title and interest in and to the Savii Care System and all software, materials, formats, interfaces, information, data, content and Savii Care proprietary information and technology used by Savii or provided to Customer in connection with the Savii Care Service (the “Savii Care Technology”), and that the Savii Care Technology is protected by intellectual property rights owned by or licensed to Savii. Other than as expressly set forth in this Agreement, no license or other rights in the Savii Care Technology are granted to the Customer, and all such rights are hereby expressly reserved by Savii. Savii shall have a royalty-free, worldwide, transferable, sub-licenseable, irrevocable, perpetual license to use or incorporate into the Savii Care Service any suggestions, enhancement requests, recommendations or other feedback provided by Customer, including Users, relating to the Savii Care Service.
7. USE OF INFORMATION
a. The purpose of the and Services is to store Your Health Information and (i) to make it available to you and your Authorized Workforce; and (ii) to facilitate the sharing of individuals’ health information among Users and Patients / Clients.
You may make Your Health Information accessible to other Users through the Programs and Services for these purposes. You authorize us, as your business associate, to use and disclose Your Health Information as follows, subject to the recipient’s agreement to comply with our and our Licensors Policies and Procedures and with applicable laws and regulations relating to the use and disclosure of health information.
b. We may:(i) permit access to Your Health Information to you, YourAuthorized patients and yourAuthorized Workforce; (ii) permit access to Your Health Information by health care providers and their business associates for treatment; (iii) disclose or permit access to your Health Information to health plans, health care clearinghouses, medical groups, independent practice associations and other parties responsible for payment and their business associates for the purpose of obtaining payment for services you provide;(iv) De-Identify Your Health Information, and use and disclose De-Identified Information as provided by Section 18 (b) (x); (v) create limited data sets from Your Health Information, and disclose them for any purpose for which you may disclose a limited data set; and you hereby authorize us to enter into data use agreements on your behalf for the use of limited data sets, in accordance with applicable law and regulation; (vi) aggregate your health information with that of other users, and share aggregated information among Users; (vii) use Your Health Information for the proper management and administration of the Savii Care Platform and Services and our business, and to carry out our legal responsibilities; we may also disclose Your Health Information for such purposes if the disclosure is required by law, or we obtain reasonable assurances from the recipient that it will be held confidentially and used or further disclosed only as required by law or for the purpose for which it was disclosed to the recipient, and the recipient notifies us of any instances of which it is aware in which the confidentiality of the information has been breached.
Without limiting the foregoing, we may permit access to the Programs and Services by our contracted system developers under appropriate confidentiality agreements. (viii) use or disclose Your Health Information for other purposes, as from time to time described in our Policies and Procedures; provided that we will not make or permit any such use or disclosure that would violate applicable law or regulation if made by you or your business associate. Except as provided in subsection 7(b)(iv) and 7(b)(v), and notwithstanding any other provision of this section, we will not use or disclose Your Health Information in any manner that would violate the requirements of the Privacy Rule.
c. Responsibility for Misuse by Other Users: You acknowledge that in granting access to the Savii Care Platform and Services for the purposes set forth in section 17(a) & (b), we will rely on the assurances of the recipients of the information as to (i) their identity and credentials, (ii) the purposes for which they are accessing the Savii Care Platform and Services, and (iii) the nature and extent of the information to which they will have access. You acknowledge that, while the Savii Care Platform and Services will contain certain technical safeguards against misuse of the Savii Care Platform and Services, it will rely to a substantial extent on the representations and undertakings of Users. You agree that we will not be responsible for any unlawful access to or use of Your Health Information by any User resulting from the User’s misrepresentation to us, or breach of the User’s user agreement or our Policies and Procedures o guidelines including third party guidelines, policies and procedures as applicable on you and your Workforce or Authorized Users.
d. Specially Protected Information:We apply the standards of the Privacy Rule in permitting access to the Savii Care Platform and Services. You acknowledge that other federal and state laws, rules and regulations impose additional restrictions on the use and disclosure of certain types of health information, or health information pertaining to certain classes of individuals. You agree that you are solely responsible for ensuring that Your Health Information may properly be disclosed for the purposes set forth in section 17(a)& (b), subject only to the restrictions of the Privacy Rule. In particular, you will: not make available through the Programs and Services any information subject to any restriction on use or disclosure (whether arising from your agreement with the individual or under law), other than the general restrictions contained in the Privacy Rule; obtain any necessary consents, authorizations or releases from individuals required for making their health information available through the Programs and Services for the purpose set forth in section 17(a) & (b); include such statements (if any) in your notice of privacy practices as may be required in connection with your use of the Programs and Services; not place in the Programs any information that the you know or have reason to believe is false or materially inaccurate.
7.1 De-Identified Information. You hereby transfer and assign to us all right, title and interest in and to all De-Identified Information that we make from Your Client and/or Patient Health Information pursuant to Section 2(e) free of any fee or charge whatsoever. You agree that we may use, disclose, market, license and sell such DeIdentified Information for any purpose without restriction, and that you have no interest in such information, or in the proceeds of any sale, license, or other commercialization thereof. You acknowledge that the rights conferred by this section are the principal consideration for the provision of the Services, without which we would not enter into this Agreement.
8. TERM AND TERMINATION
8.1 Term. This Agreement is effective on the Effective Date. The initial term of this Agreement will commence on Effective Date and continue for either three (3) years, one (1) year or one (3) months based on chosen subscription level. Thereafter, this Agreement will renew for additional one (3) months (in the case of a monthly subscription) or one (1) year (in the case of an annual subscription or multi-year subscription).
Following the end of the Initial Term, this Agreement will renew for renewal terms as specified on the Order Form (each, a “Renewal Term”) unless either party notifies the other in writing of its intent not to renew this Agreement prior to the end of the then current term at least ten (10) days prior to the end of a month-to-month subscription OR ninety (90) days prior for annual or multi-year subscription.
Quarterly Subscription - No refunds will be provided for any partially unused month.
Annual and Multi-year Subscriptions - You may cancel at anytime up to 90 days before renewal date: however, you must pay all amounts due and owing before termination is effective.
Fees for Renewal Terms will be the same unless otherwise selected at initial signup or unless Savii notifies Customer at least 100 days prior to the end of the then-current term that the fees will be increasing. In the event of such notice, the fees will be at Savii Care’s prices set forth in its notice.
8.2 Early Termination. Either party may terminate this Agreement upon written notice if the other party materially breaches the Agreement and does not cure such breach within thirty (30) days after written notice of such breach. Upon the termination of this Agreement for any reason, (a) any amounts owed to Savii under this Agreement before such termination will become immediately due and payable; and (b) each party will return to the other all property (including any Confidential Information and Customer Data) of the other party in its possession or control. Furthermore, if Savii terminates this Agreement other than for a material breach by Customer, Savii shall refund to Customer all amounts prepaid by Customer for use of the Savii Care System and Savii Care Service after the termination date. Savii agrees that upon any early termination of this Agreement, Savii will allow the Customer to access, without the right to modify, enhance or add to, the Customer Data (either through on-line access or an off-line mechanism provided by Savii) for a reasonable time period after termination. Thereafter, Savii will remove all Customer Data from the Savii Care System and all Customer access to or use of the Savii Care System and Savii Care Service will be immediately suspended. Notwithstanding the foregoing, Savii may terminate this Agreement immediately in the event that Customer breaches either Sections 3.2 or 3.3. Termination under this Section 7.2 will be in addition to, and will not prejudice, any other remedies at law or in equity available to Savii. The rights and duties of the parties under Sections 4, 5, 6, 8, 9, 10, 11.3, 11.4 and 11.6 will survive the termination or expiration of this Agreement.
9. WARRANTY; DISCLAIMER. For a period of sixty (60) days after the Effective Date (the “Software Warranty Period”), Savii warrants that the Savii Care Service, when used as permitted by Savii and in accordance with the instructions in the Documentation, will operate as described in the Documentation in all material respects. Other than the express warranty in the foregoing sentence, Savii makes no warranty concerning the Savii Care System or Savii Care Service and Customer acknowledges that Savii’s sole obligation with regard to the Savii Care Service is to provide the support services described in Section 2.3 hereof.
ACCORDINGLY, THE SAVII CARE SERVICE, THE SAVII CARE SYSTEM AND ALL OTHER DATA, MATERIALS, AND DOCUMENTATION PROVIDED IN CONNECTION WITH THIS AGREEMENT BY SAVII AND ITS SUPPLIERS ARE PROVIDED “AS IS” AND “AS AVAILABLE,” WITHOUT REPRESENTATIONS OR WARRANTIES OF ANY KIND. Savii AND ITS SUPPLIERS MAKE NO OTHER WARRANTIES, EXPRESS OR IMPLIED, BY OPERATION OF LAW OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF NONINFRINGEMENT, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR ANY IMPLIED WARRANTIES ARISING OUT OF COURSE OF PERFORMANCE, COURSE OF DEALING OR USAGE OF TRADE. Savii DOES NOT WARRANT THAT THE SAVII CARE SERVICE WILL BE PROVIDED ERROR-FREE, UNINTERRUPTED, COMPLETELY SECURE, OR VIRUS-FREE.
10. INDEMNITY
10.1 Customer agrees to indemnify Savii and its respective directors, officers, employees and agents against any and all losses, damages, penalties, settlements, costs and expenses (including reasonable attorneys’ fees), and to defend Savii in any suit, claim, or proceeding, brought by any third party or governmental agency, arising from (a) Customer’s breach of any of the representations, warranties or obligations contained in this Agreement, (b) any allegation that the Customer Data, or the use of Customer Data pursuant to this Agreement, infringes the intellectual property or other right of a third party or otherwise causes harm to a third party, or (c) any third party claim against Savii arising out of or related to Customer’s use of the Savii Care System or Savii Care Service. Savii will notify Customer within a commercially reasonable time if Savii becomes subject to such a claim, and will give Customer reasonable information, assistance and cooperation required to defend such suit, claim, or proceeding. Savii will allow Customer to control the defense of any such action and all negotiations for its settlement or compromise (provided that any settlement or compromise does not involve an admission of wrongdoing on behalf of Savii). Savii may participate in the defense of any such claim, at Savii’s expense, by counsel of Savii’s selection.
11. LIMITATION OF LIABILITY. Savii’S TOTAL CUMULATIVE LIABILITY TO CUSTOMER FOR ANY AND ALL CLAIMS ARISING FROM OR IN CONNECTION WITH THIS AGREEMENT (UNDER ANY LEGAL THEORY INCLUDING CLAIMS IN CONTRACT OR TORT), THE SAVII CARE SERVICE AND THE SAVII CARE SYSTEM, WILL NOT EXCEED THE AMOUNTS ACTUALLY PAID TO Savii BY CUSTOMER IN THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE CUSTOMER’S FORMAL WRITTEN NOTICE OF THE CLAIM FOR LIABILITY HEREUNDER. ALL CLAIMS THAT CUSTOMER MAY HAVE AGAINST Savii WILL BE AGGREGATED TO SATISFY THIS LIMIT AND MULTIPLE CLAIMS WILL NOT ENLARGE THIS LIMIT. IN NO EVENT WILL Savii BE LIABLE FOR SPECIAL, INCIDENTAL, INDIRECT OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT (UNDER ANY LEGAL THEORY INCLUDING CLAIMS IN CONTRACT OR TORT), INCLUDING, BUT NOT LIMITED TO, INTERRUPTED COMMUNICATIONS, LOST DATA OR LOST PROFITS, AND DAMAGES THAT RESULT FROM INCONVENIENCE, DELAY OR LOSS OF USE OF ANY INFORMATION OR DATA OR OF THE SAVII CARE SYSTEM OR SAVII CARE SERVICE, EVEN IF Savii HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY PROVIDED HEREIN.
12. MARKETING
Savii may use Customer’s name as part of a general list of customers and may refer to Customer as a user of the Product Offering in its advertising, marketing and promotional materials.
13. GENERAL PROVISIONS
13.1 Publicity. Savii and Customer may make public announcements, including but not limited to, press releases and media announcements, of the existence of this Agreement and the relationship between the parties. All public announcements by either party concerning this Agreement are subject to prior written approval by Customer and Savii, which approval shall not be unreasonably withheld. The parties will use reasonable efforts to review and approve public announcements within three (3) days of submittal. Customer agrees to allow Savii to use Customer’s name in customer lists and other promotional materials describing Customer as a customer of Savii and a user of the Savii Care Service.
13.2 Assignment. Neither party may assign any rights or obligations arising under this Agreement, whether by operation or law or otherwise, without the prior written consent of the other; except that either party may assign this Agreement without consent of the other party in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets. Customer agrees that Savii may subcontract certain aspects of the Savii Care Service to qualified third parties, provided that any such subcontracting arrangement will not relieve Savii of any of its obligations hereunder. Subject to the foregoing limitation, this Agreement shall inure to the benefit of and shall be binding on the successors and assignees of the parties.
13.3 Governing Law and Venue. This Agreement will be governed by and construed in accordance with the laws of the State of North Carolina without giving effect to principles of conflict of laws. The United Nations Convention on Contracts for the International Sale of Goods will not apply to this Agreement. Any action or proceeding arising from or relating to this Agreement must be brought in a federal or state court sitting in Wake County, North Carolina and each party irrevocably submits to the jurisdiction and venue of any such court in any such action or proceeding. If a dispute arising under this Agreement results in litigation, the non-prevailing party shall pay the court costs and reasonable attorneys’ fees of the prevailing party.
13.4 Force Majeure. Savii will not be liable hereunder by reason of any failure or delay in the performance of its obligations hereunder for any cause which is beyond Savii's reasonable control, including without limitation, acts of God, acts of government, flood, fire, earthquakes, civil unrest, acts of terror, strikes or other labor problems, telecommunications failures or delays, computer failures involving hardware or software not within Savii's possession or reasonable control and acts of vandalism (including network intrusions and denial of service attacks).
13.5 Notices. Any notice or other communication required or permitted under this Agreement and intended to have legal effect must be given in writing to the other party at the address set forth above (each party may change its address from time to time upon written notice to the other party of the new address). Notices will be deemed to have been given upon receipt (or when delivery is refused) and may be (a) delivered personally, (b) sent via certified mail (return receipt requested) (c) sent via e-mail or fax (all with confirmation of receipt), or (d) sent by recognized air courier service.
13.6 Entire Agreement. This Agreement is the entire understanding and agreement of the parties, and supersedes any and all previous and contemporaneous understandings, agreements, proposals or representations, written or oral, between the parties, as to the subject matter hereof. Only a writing signed by both parties may modify it.
13.7 Severability and Waiver. In the event that any provision of this Agreement is held to be invalid or unenforceable, the valid or enforceable portion thereof and the remaining provisions of this Agreement will remain in full force and effect. Any waiver or failure to enforce any provision of this Agreement on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion. All waivers must be in writing. Other than as expressly stated herein, the remedies provided herein are in addition to, and not exclusive of, any other remedies of a party at law or in equity.
13.8 Relationship of the Parties. The parties to this Agreement are independent contractors, and no agency, partnership, franchise, joint venture or employee-employer relationship is intended or created by this Agreement.