STANDARD TERMS AND CONDITIONS FOR BOLT.HEALTHCARE®/BOLT HOMECARE APP™ CUSTOMERS
These terms and conditions (referred to as the “Bolt Intake App® Standard Terms”, the “Bolt Homecare App™ Standard Terms” or “the Terms”) (hereinafter, the “Terms”) are incorporated into and considered material terms and conditions of the written agreements between Bolt Web Solutions, LLC (formerly d/b/a “Bolt.Digital®” and now rebranded and d/b/a “Bolt.Healthcare®”) (hereinafter, “Bolt.Healthcare”) and its “Customers” (each a “Customer”) that each Customer signed, and which agreements have been titled “BOLT INTAKE APP® Agreement”, “Bolt Intake App Order Form” or “Bolt Homecare App™ Agreement”, and were executed by a Customer in connection with Customer’s license of the Bolt Intake App® /Bolt Homecare App™ (hereinafter, the “Bolt Homecare App”) and Bolt.Healthcare’s provision of the services specified in the Customer’s written Order Form or Agreement (hereinafter, the “Agreement”). Bolt.Healthcare® and Customer are referred to herein individually, as a “Party” and, collectively, as the “Parties.”
1.DEFINITIONS. Capitalized terms not defined within these Terms have the meaning given thereto in the Agreement. Other capitalized terms shall have the respective meaning set forth below:
1.1. “Confidential Information” means nonpublic information, in any form or medium, that is either designated as proprietary and/or confidential by the disclosing Party or, by the nature of the circumstances surrounding disclosure ought in good faith to be treated as proprietary and/or confidential. Confidential Information shall not include any information that: (a) was publicly known at the time of its receipt by the receiving Party or has become publicly known other than by a breach of the Agreement or any other obligation of confidentiality; (b) was already known by the receiving Party prior to its disclosure without obligation to keep it confidential as evidenced by prior documentation thereof; (c) is developed independently by the receiving Party without use of or reference to the other Party’s Confidential Information; or (d) is received by the receiving Party in good faith from a Third Party lawfully in possession thereof without obligation to keep such information confidential and without requiring the receiving Party to keep the information confidential. Bolt.Healthcare® Confidential Information includes the Bolt Homecare App™, and Customer Confidential Information includes Customer Data.
1.2 “Customer Data” means all data and information input into Bolt Homecare App™ by or on behalf of Customer or Customer Users or produced or generated therefrom.
1.3 “Customer Materials” means any information, materials, systems, or technology owned or licensed to Customer, including Customer Data, which Customer may provide to or allow Bolt.Healthcare® to access in connection with its provision of the Bolt Homecare App™ and/or Services.
1.4 “Customer Users” means Customer’s employees, contractors, and agents authorized by Customer to access and use the Bolt Homecare App™ in accordance with the Agreement.
1.5 “Fees” means, collectively, the fees specified in the Agreement.
1.6 “IPR” means any and all intellectual property or other proprietary rights protectable by law anywhere throughout the world, including any patents, copyrights, trademarks, service marks, domain names, trade secrets, know-how, or similar rights protectable under any laws or international conventions throughout the world, and in each case including any improvements, enhancements or modifications to, or derivative works from, any of the foregoing.
1.10 “Services” means, collectively, the following services as specified in the Agreement: (a) Setup/On-Boarding/Training services, and (b) monthly services.
2.1 Grant. During the Term, Bolt.Healthcare® hereby grants to Customer a limited, non-transferable, non‑exclusive license, without the right to sublicense, to access and use the Bolt Homecare App™ solely for Customer’s internal business purposes.
2.2 Restrictions. Customer will not, directly or indirectly, (a) modify, adapt, alter, translate, or create derivative works from the Bolt Homecare App™; (b) license, sublicense, sell, resell, rent, lease, transfer, assign, distribute, reproduce, timeshare, provide on a service bureau basis, or otherwise commercially exploit, make available, or allow any third party to access or use the Bolt Homecare App™ in any way; (c) create Internet “links” to the Bolt Homecare App™ or “frame” or “mirror” the Bolt Homecare App™; (d) alter, distort, or remove any IPR legends or marks from any copy of the Bolt Homecare App™ or any documentation associated therewith; (e) reverse engineer, decompile, disassemble, or otherwise attempt to derive the source code of the Bolt Homecare App™; or (f) otherwise access, use, or copy the Bolt Homecare App™ in any manner not expressly permitted herein, including accessing the Bolt Homecare App™ in order to (i) build a competitive product or service, or (ii) build a product using ideas, features, functions, templates, or graphics similar to those on any part of the Bolt Homecare App™.
2.3 Rights Reserved. Except for the licenses and rights expressly granted herein, no rights or implied licenses of any kind, whether by implication, estoppel, or otherwise, are granted by Bolt.Healthcare® to Customer.
3.OBLIGATIONS OF CUSTOMER.
3.1 Access and Use. Customer is responsible for establishing and maintaining, at its own expense, all equipment and telecommunications services necessary to access the Bolt Homecare App™. Customer is solely responsible for Customer Users’ access to and use of the Bolt Homecare App™ and their compliance with the Agreement. Customer is solely responsible for maintaining the confidentiality of the login credentials for Customer and Customer Users the Bolt Homecare App™. Neither Customer nor Customer Users shall: (a) use or permit any others to use or access any part of the Bolt Homecare App™ or any information contained or stored therein, including any information that may be considered to be Protected Health information (“PHI”) under the Health Insurance Portability and Accountability Act of 1996 and regulations (“HIPPA”), in violation of applicable laws, rules, or regulations of any governmental authority; (b) knowingly send or store viruses, worms, time bombs, Trojan horses or other harmful or malicious code, files, scripts, agents or programs within any part of the Bolt Homecare App™; (c) interfere with or disrupt the integrity or performance of any part of the Bolt Homecare App™; or (d) attempt to gain unauthorized access to any part of the Bolt Homecare App™ or its related systems or networks.
3.2 Customer Data. Customer has sole responsibility for the accuracy, quality, integrity, legality, reliability, and appropriateness of the Customer Data, and for obtaining all rights, licenses, consents, authorizations, and approvals necessary for use of the Customer Data in connection with the Bolt Homecare App™. Customer assumes full responsibility (a) for the use and transmission of Customer Data through the Bolt Homecare App™ (or by Bolt.Healthcare® through any exchanges (as defined in section 3.3 below) and (b) to safeguard against unauthorized access and to provide appropriate protection of Customer Data based on the nature thereof prior to and during the transmission and storage of Customer Data through, on and within the Bolt Homecare App™ or through any exchanges (as defined in section 3.3 below).
3.3 Exchanges. Bolt currently maintains relationships and agreements with a number of exchanges that provide services to the home health care industry (e.g., HHAeXchange/HHS) whereby each such exchange provides Bolt with integration and/or access to the exchange’s platform(s), system(s) and services through the use of the exchange’s (or its affiliate’s) application programming interface (“API”), and Bolt anticipates entering into such relationships and/or agreements with additional exchanges as well on behalf of itself and/or its Customers (collectively, “the Exchanges”, or individually, an “Exchange”). (a) While Bolt will undertake reasonable commercial efforts to establish or maintain its relationship with and access to any Exchange with which Customer and Bolt are currently doing business, Bolt does not warrant, represent or make any promises that Bolt’s relationship with and access to, any particular Exchange’s service(s), platform(s), services or API will continue, as that is dependent upon the terms and conditions imposed by, and cooperation of, the Exchange(s). A termination or interruption of Bolt’s relationship with or access to a particular Exchange shall not constitute grounds or justification for a termination of the Agreement between Customer and Bolt. (b) Customer shall execute, and comply with, the terms of any agreements, waivers or other documents required or reasonably requested by any Exchange in order to facilitate the use of the Exchange’s API or the Exchange’s platform(s), system(s) or service(s) on behalf of Customer, as Customer’s independent contractor/vendor. (c) Customer expressly authorizes Bolt to execute a Notice of Sale (e.g., sale of services to Company) or any other agreements or documentation required or reasonably requested to access any Exchange’s platform(s)/system(s) through the exchange’s API on behalf of Customer, or to provide the Bolt Intake App and related or ancillary services to Customer, as Customer’s independent contractor/vendor. Customer expressly authorizes Bolt to interface directly with the Exchanges as Customer’s independent contractor/vendor, to populate or access Customer’s account(s) or data at any Exchange, and to run whatever tests are necessary to set-up, test, and maintain the ability to transmit Customer’s data and to access the Exchange’s platform(s)/system(s) and to transmit Customer’s data (utilizing the protocols and standard operating procedures that Bolt has established with the Exchange, including text packets for fictitious providers and/or patients (e.g., “Mickey Mouse” or “Test Caregiver” or “Test Patient”).
4.1 Payment. In consideration of the license granted to Customer for use of the Bolt Homecare App™ and Services provided by Bolt.Healthcare® as specified in the Agreement, Customer will pay Bolt.Healthcare® the Fees within five (5) days of the date specified in the Agreement or an invoice date (“Due Date”). (a) Bolt.Healthcare’s delay in invoicing any Fees when due shall not be deemed to be a waiver of Bolt.Healthcare’s right to invoice Customer for any Fees due under the Agreement. Bolt.Healthcare® may increase any of the Fees upon thirty (30) days prior written notice. All Fees are fully earned, non-cancelable and the sums paid are non-refundable. Bolt.Healthcare® may charge a late fee on Fees not paid within thirty (30) days after the Due Date at the lesser of the maximum amount chargeable by law or one and one-half percent (1.5%) per month commencing with the Due Date. Customer will be liable for all costs of collection of any past due amounts including, without limitation, all court costs and attorneys’ fees incurred by Bolt.Healthcare®. (b) Customer’s delay in deploying the Bolt Homecare App™ — with or without any modifications or customizations requested by Customer — shall not excuse or alter Customer’s obligation to being paying user fees on the date specified in the Customer’s Agreement. Should Customer decline to deploy the Bolt Homecare App™ and to refuse to pay user fees, or any other Fees when due, Customer shall be responsible for the reasonable costs and fees of Bolt Healthcare’s time and materials spent on Customer’s account, including all customization or modifications of the Bolt Homecare App™ or creation of templates for Customer.
4.2 Taxes. Customer is liable for any and all sales, use, excise, value added, customs fees, or other similar taxes relating to the Bolt Homecare App™, the Services, or the Agreement, except for taxes based on Bolt.Healthcare’s income. If Customer is exempt from the payment of any such taxes, Customer must provide Bolt.Healthcare® with a valid tax exemption certificate; otherwise, absent proof of Customer’s direct payment of such taxes to the applicable taxing authority, Bolt.Healthcare® will invoice Customer for and Customer will pay to Bolt.Healthcare® all such taxes in accordance with the payment terms set forth in this Section 4.
5.INTELLECTUAL PROPERTY RIGHTS.
5.1 Bolt.Healthcare® IP and Materials. Bolt.Healthcare® is the sole and exclusive owner of the Bolt Homecare App™, and all software, systems, networks, materials, and technology used to develop, incorporated into, or used in the provision of the Bolt Homecare App™, together with all modifications to, and derivate works of the Bolt Homecare App™ (including, without limitation, all customizations and modifications made in the provision any professional services provide to Customer) and all IPR associated therewith.
5.2 Customer Data and Customer Materials. Customer is the sole and exclusive owner of all Customer Data and Customer Materials and all IPR associated therewith.
5.3 Ownership of Feedback. Bolt.Healthcare® shall exclusively own any suggestions for improvements or changes, ideas, feedback, error identifications, or other information related to the Bolt Homecare App™ or the use thereof provided, whether orally or in writing, by Customer or the Customer Users, or otherwise communicated to Bolt.Healthcare® in connection with the Services.
6.1 Confidentiality Obligations. Neither Party shall use or disclose Confidential Information of, or obtained from, the other Party (in any form) to or for the benefit of any Third Party without the disclosing Party’s prior written consent. Each Party shall take all reasonable measures, consistent with those taken to protect its own Confidential Information, and in no event less than commercially reasonable steps or as required by law, to protect the other’s Confidential Information against use or disclosure in violation of the Agreement. All Confidential Information shall remain the property of the disclosing Party and shall be returned upon written request. Each Party will limit the disclosure of the other Party’s Confidential Information to employees, contractors, agents, and representatives with a need to know who have been advised of the proprietary nature thereof and are bound by confidentiality obligations.
6.2 Compelled Disclosure. Neither Party is restricted from disclosing Confidential Information pursuant to any order, subpoena, regulation, or process of law; provided, that the receiving Party (to the extent it is legally permitted) shall give prior notice to the disclosing Party so that the disclosing Party may seek an appropriate protective order or other remedy or waive the provisions of the Agreement, and the receiving Party shall cooperate with the disclosing Party to obtain such protective order. To the fullest extent permitted by law, a Party will continue to protect as confidential and proprietary all information disclosed pursuant to this Section 6.2.
6.3 Survival. The obligations of confidentiality set forth in this Section 6 survive the expiration or any termination of the Agreement as follows: (a) with respect to Confidential Information that constitutes a trade secret, for so long as such information is deemed a trade secret under applicable law; and (b) with respect to all other Confidential Information, the shorter period of five (5) years after the expiration or any termination of the Agreement or until such information no longer qualifies as confidential hereunder.
7.TERM AND TERMINATION.
7.1 Term. Unless earlier terminated or extended as provided herein, the initial term of the Agreement shall be for a period of one year following the date of the Customer’s execution of its written “Agreement (the “Initial Term”). Thereafter, the Agreement automatically renews for additional periods of one (1) year each (each a “Renewal Period”), unless either Party provides the other Party with notice of its intent not to renew at least sixty (60) days prior to expiration of the Initial Term or the then-current Renewal Period (as applicable). In the event that Bolt.Healthcare® may increase the Monthly License and Services Fee specified in the Agreement for any Renewal Period by giving Customer at least ninety (90) days written notice thereof prior to the expiration of the Initial Term or the then-current Renewal Term. The Initial Term and Renewal Periods are collectively referred to as the “Term.”
7.2 Suspension. Bolt.Healthcare® reserves the right, in its sole discretion, to suspend Customer’s or any Customer User’s access to or use of the Bolt Homecare App™, or any portion thereof, with or without prior notice (a) in response to any violation or suspected violation of the terms and conditions contained herein, or (b) if Bolt.Healthcare® believes that there is a significant threat to the functionality, security, integrity, or availability of the Bolt Homecare App™. In the event of a suspension under Section 7.2(b), where the suspension is not due to force majeure or any act or omission by Customer, Bolt shall provide Customer with a credit for such suspension against any Fees owed for the period of suspension.
7.3 Termination for Cause. Without prejudice to any other rights and remedies to which the Parties may be entitled, either Party may terminate the Agreement for cause without liability to the other in the event: (a) the other Party breaches or defaults in performing any material obligation under the Agreement and fails to cure such within (30) calendar days following written notice thereof from the non-breaching Party; or (b) either Party becomes the subject of a petition in bankruptcy or any proceeding related to its insolvency, receivership, liquidation, or an assignment for the benefit of creditors (which termination shall be effective immediately).
7.4 Effect of Expiration or Termination. Upon the expiration or termination of the Agreement for any reason (a) the license granted in Section 2 will automatically and immediately cease and Customer and Customer Users will cease all access to and use of the Bolt Homecare App™; (b) Customer will pay all Fees incurred as of the expiration or termination date (and in the event that Customer terminates the Agreement prior to the termination of the Initial Term, such Fees will include twelve months of the Monthly License and Basic Services fee specified in the Customer’s written Bolt Homecare App™ Agreement, even if the payment of the monthly fees was to be deferred until after the implementation and deployment of the Bolt Homecare App™ and deployment did not take place during the first month of the Initial Term); (c) each Party shall destroy or return all copies of the other Party’s Confidential Information in its possession or control, regardless of the form or medium and including, but not limited to, partial copies thereof, and will certify to the disclosing Party that all copies and portions thereof have been destroyed or returned.
8.WARRANTIES AND DISCLAIMERS.
8.1 Bolt.Healthcare® Warranty. Bolt.Healthcare® represents and warrants that it shall perform and provide the Services in a professional and workmanlike manner consistent with generally accepted industry practices. For any breach of this warranty, Customer’s exclusive remedy, and Bolt.Healthcare’s entire liability, will be for Bolt.Healthcare® to re-perform of such deficient Services. Customer must identify in a written notice to Bolt.Healthcare® any deficiencies in the Services within thirty (30) days of completion thereof in order to receive the above warranty remedy and to refund or credit Customer for any period during which the Bolt Homecare App™ is not available other than where such unavailability is due to force majeure or periodic maintenance updates of the Bolt Homecare App™.
8.2 Customer Warranties. Customer represents and warrants that: (a) Customer shall comply with all applicable laws in accessing and using the Bolt Homecare App™; and (b) Customer is authorized to provide Bolt.Healthcare® the Customer Materials and that Bolt.Healthcare® is authorized to use such Customer Materials solely for the purpose of providing the Bolt Homecare App™ and Services.
8.3 Disclaimers. EXCEPT AS SPECIFICALLY SET FORTH HEREIN, THE BOLT HOMECARE APP™ AND SERVICES AND “ONBOARDING DOCUMENTS” (AS DEFINED IN 8.4, BELOW) ARE PROVIDED BY BOLT.HEALTHCARE® ON AN “AS IS” AND “AS AVAILABLE” BASIS WITHOUT WARRANTIES OF ANY KIND, AND BOLT.HEALTHCARE® EXPRESSLY DISCLAIMS ALL OTHER WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED. BOLT.HEALTHCARE® DOES WARRANT THE LEGALITY OR EFFICACY OR ENFORCEABILITY OF THE WORKER ONBOARDING DOCUMENTS (OR ANY OF THE PROVISIONS CONTAINED THEREIN) AND TAKES NO RESPONSBILITY OR LIABILITY ARISING FROM CUSTOMER’S USE OF THE WORKER ONBOARDING DOCUMENTS, RELIANCE ON ANY ADVISORIES OR REPORTS, AND ANY ILLEGALITY, EFFICACY OR ENFORCEABILITY OF THE WORKER ONBOARDING DOCUMENTS (OR ANY OF THE PROVISIONS CONTAINED THEREIN) OR OF ANY REPORTS OR ADVISORIES. BOLT.HEALTHCARE® DOES NOT WARRANT THAT THE BOLT HOMECARE APP™ OR THE SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE. CUSTOMER ACKNOWLEDGES THAT IT HAS NOT ENTERED INTO THE AGREEMENT IN RELIANCE UPON ANY WARRANTY OR REPRESENTATION NOT EXPRESSLY CONTAINED IN THE AGREEMENT.
8.4 Onboarding Documents. Bolt.Healthcare® may from time to time provide Customer with documents or forms that Customer may choose to use to onboard, hire or retain home health care workers for Customer, and advisories or reports about the home health care industry or practices being used by home health care companies (collectively or individually “Worker Onboarding Documents”). Worker Onboarding Documents, including any advisories and reports, are provided to Customer as a courtesy, free of charge, and Customer may elect to use or not to use or rely upon any such documents, in whole or in part, at Customer’s sole discretion and responsibility. By providing any such Worker Onboarding Documents, Bolt.Healthcare® does not make any representations or warranties regarding the legality, enforceability of efficacy of any such documents (or any of the provisions contained therein), and disclaims any responsibility, obligations or liability arising from the Customer’s voluntary use of the Worker Onboarding Documents or Customer’s reliance upon the Worker Onboarding Documents, including any industry reports or advisories providing by Bolt.Healthcare®.
9.LIMITATION OF LIABILITY.
9.1 Damages Cap. Except for damages arising from a Party’s (a) breach of Section 6 (Confidentiality), (b) infringement or misappropriation of the other Party’s IPR in connection with the Agreement, or (c) indemnification obligations hereunder, in no event will either Party’s liability for any damages in any way arising from or relating to the Agreement, regardless of the form of action, exceed in the aggregate the total Monthly Fees actually paid by Customer to Bolt.Healthcare® during the twelve (12) months immediately preceding the event giving rise to such claim.
9.2 Exclusion of Damages. Except for damages arising from a Party’s (a) breach of Section 6 (Confidentiality), (b) infringement or misappropriation of the other Party’s IPR in connection with the Agreement, or (c) indemnification obligations hereunder, in no event will either Party be liable to the other or any third party for any indirect, special, incidental, exemplary, or consequential damages, or loss of revenue or business profits, loss of goodwill or reputation, or loss of or damage to records or data in any way arising from or relating to the Agreement, even if such Party has been notified of the possibility or likelihood of such damages occurring, and regardless of the form of action.
10.1 Infringement. Bolt.Healthcare® shall defend, indemnify, and hold Customer harmless from any third party claim alleging that the Bolt Homecare App™ infringes such third party’s United States patent or registered copyright or registered trademark. Bolt.Healthcare® shall have no obligation pursuant to this Section 10.1 to the extent the claim arises from: (a) any modification of the Bolt Homecare App™ by Customer or any third party other than Bolt.Healthcare®; (b) the combination, operation, or use of the Bolt Homecare App™ with software or data not provided by Bolt.Healthcare® if such infringement would have been avoided but for such combination, operation, or use; (c) Bolt.Healthcare’s adherence to Customer’s written specifications or requirements; or (d) use of the Bolt Homecare App™ in violation of the Agreement. In the event of an infringement claim or if Bolt.Healthcare® believes such a claim is likely, Bolt.Healthcare® may, in its sole discretion, (i) modify the Bolt Homecare App™ or substitute a non-infringing version thereof with substantially equivalent functionality, (ii) obtain a license to allow for continued use of the Bolt Homecare App™, or (iii) terminate the license and the Agreement in which event Bolt.Healthcare® will refund to Customer any unused portion of the prepaid Monthly Fee. The obligations set forth in this Section 10.1 constitute Bolt.Healthcare’s entire liability and Customer’s sole remedy for any actual or alleged infringement of proprietary and intellectual property rights.
10.2 Bolt.Healthcare’s Additional Obligations. Bolt.Healthcare® shall defend, indemnify, and hold Customer harmless from any third party claim or suit, including any liabilities, losses, damages, costs, expenses, and reasonable attorney’s fees incurred in connection therewith, resulting from Bolt.Healthcare’s (a) violation of law applicable to its obligations hereunder, (b) material breach of the Agreement, (c) gross negligence, willful misconduct or intentional wrongdoing; or (d) unauthorized or unlawful disclosure of the Customer Materials.
10.3 Customer’s Obligations. Customer shall defend, indemnify, and hold Bolt.Healthcare® harmless from any third party claim or suit, including any liabilities, losses, damages, costs, expenses, and reasonable attorney’s fees incurred in connection therewith, resulting from (a) Customer’s (i) violation of law applicable in connection with its use of the Bolt Homecare App™, (ii) material breach of the Agreement, or (ii) grossly negligent or willful acts or omissions; or (b) any Customer Materials unless the claim relates to Bolt’s breach of Section 6.1 with regard thereto.
10.4 Procedures. The defense and indemnification obligations set forth in this Section 10 are conditioned upon (a) the indemnified Party providing the indemnifying Party prompt notice of any claim or cause of action upon which the indemnified Party intends to base a claim of indemnification hereunder, provided that failure to give such notice will alleviate the indemnifying Party from its obligations only to the extent that it is prejudiced thereby; (b) the indemnified Party providing reasonable assistance and cooperation to enable the indemnifying Party to defend the action or claim hereunder; and (c) allowing the indemnifying Party to have sole control of the defense of the claim and all related settlement negotiations.
11.1 Equitable Relief. A breach of Sections 2.2 or 6 or any violation, infringement, or misappropriation of the other Party’s IPR will result in irreparable injury to the non-breaching Party for which a remedy in damages would be inadequate. Thus, in the event of an actual or threatened breach, the non-breaching Party shall be entitled to seek an injunction to prevent such actual or threatened breach without the necessity of proving damages or posting a bond. Customer and Bolt.Healthcare® hereby permanently and irrevocably consent to the exclusive jurisdiction and venue of the Federal, State, and City Courts located in the Counties of Nassau or New York, within the State of New York, and hereby waive any objection, including that of forum non conveniens. Nothing herein shall be construed as prohibiting the non-breaching Party from pursuing any other remedy available under the Agreement at law or in equity for such actual or threatened breach. The breaching Party shall give the other Party written notice of any such breach by it or its employees or agents as soon as the breaching Party becomes aware of the breach.
11.2 Governing Law. The Agreement will be deemed to take place in the State of New York and will be governed by and construed in accordance with the laws of New York excluding its conflicts of law principles.
11.3 Arbitration. Except as otherwise provided in Section 11.1, all disputes arising under the Agreement shall be finally settled under the Fast Tracked Commercial Rules of Arbitration of the American Arbitration Association by one arbitrator, in accordance to their expedited rules and proceedings then in effect, appointed in accordance with said Rules. The place of the arbitration shall be at a location to be chosen by Bolt.Healthcare® (e.g. Bolt.Healthcare® offices or the office of the arbitrator or Bolt.Healthcare® attorneys) in either New York, New York or Great Neck, New York. Each Party shall share the costs of the arbitration proceeding with each bearing its own legal expenses and other costs.
11.4 Independent Contractor. Nothing in the Agreement is intended to create anything other than an independent contractor relationship between the Parties and no partnership, franchise, joint venture, employment or any other form of agency relationship exists or is implied between Customer and Bolt.Healthcare®.
11.5 Assignment. Customer may not assign, delegate, or otherwise transfer the Agreement or any rights or obligations herein without the prior written consent of Bolt.Healthcare® and any attempted assignment in contravention of this provision will be null and void and of no force or effect. Bolt.Healthcare® may assign, delegate, or otherwise transfer all or a portion of its rights and obligations under the Agreement upon written notice thereof.
11.6 Notices and Service of Process. All notices, requests, service of process, and other communications under the Agreement or in connection with a legal dispute hereunder, must be in writing, and must be mailed by registered or certified mail, postage prepaid and return receipt requested, or delivered by hand or overnight delivery to the Party to whom such notice is required or permitted to be given at the address listed in the Agreement. If mailed, any such notice will be considered to have been given five (5) business days after it was mailed, as evidenced by the postmark. If delivered by hand or overnight delivery, any such notice will be considered to have been given when received by the Party to whom notice is given, as evidenced by written and dated receipt of the receiving Party. Either Party may change its mailing address by notice as provided by this Section. Notices shall be sent to the addresses set forth in the Agreement. The Parties hereby waive the requirement that any papers commencing or served in connection with legal proceedings (e.g., injunction actions under Section 11.1 or arbitration proceedings under Section 11.3) be personally served and hereby expressly consent to the service of any such process or papers in the manner set forth herein, provided that a pdf copy of any such papers also be simultaneously sent by e-mail to the e-mail address for Customer listed in the Agreement and to Bolt.Healthcare® at email@example.com.
11.7 Third Party Beneficiaries. The Agreement is for the sole benefit of the Parties and their permitted assigns and nothing herein express or implied will give or be construed to give to any third party any legal or equitable rights hereunder.
11.8 Severability. If any provision of the Agreement is held by a court of competent jurisdiction to be illegal, invalid, or unenforceable with respect to a Party, the remainder of the Agreement, or the application of such provision to persons other than those to whom it is held invalid or unenforceable will not be affected and each remaining provision of the Agreement will be valid and enforceable to the fullest extent permitted by law.
11.9 Waiver. Except as provided herein, the failure to exercise a right or require performance of an obligation under the Agreement will not affect a Party’s ability to exercise such right or require such performance at any time thereafter nor will the waiver of a breach constitute waiver of any subsequent breach.
11.10 Amendments. Except as otherwise permitted herein, no amendments or modifications to the Agreement will be effective unless made in writing and signed by authorized representatives of the Parties. Notwithstanding the foregoing, the Terms may be further amended by Bolt.Healthcare® in its sole discretion from time to time, without advanced notice to Customer. Customer’s continued use of the Bolt Homecare App™ and its failure to object to any material change(s) in the Terms within five (5) business days of having been sent notice of the change(s) by mailing the new Terms to the e-mail address designated by the Customer’s Agreement, shall be deemed to be the Customer’s waiver of any objection to, and an acceptance of, any such change(s) in the Terms.
11.11 Survival. The provisions of the Agreement which by their express language or by their context are intended to survive the expiration or termination of the Agreement will survive.
11.13 Public Relations and Media. Bolt.Healthcare® may from time to time issue one or more press releases and/or engage in media activities announcing the Bolt Homecare App™ and the Parties’ execution of the Agreement. Customer acknowledges and agrees that Bolt.Healthcare® may disclose Customer as a user of the Bolt Homecare App™ to potential users, and may otherwise disclose Customer’s execution of the Agreement and its use of, and access to, the Bolt Homecare App™.
11.14 Force Majeure. Neither Party shall be responsible for failure or delay of performance (except for a payment obligation) if caused by any of the following: an act of war, hostility, or sabotage; act of God; pandemic; electrical, internet, or telecommunication outage that is not caused by the obligated Party; government restrictions (including the denial or cancelation of any export, import or other license); or other event outside the reasonable control of the obligated Party.
11.15 Entire Agreement. The Agreement, and these Terms incorporated therein, contain the entire agreement between the Parties as to the subject matter thereof and fully supersedes all prior understandings, written or oral, between the Parties regarding such subject matter.