Subscription Service Agreement

Version June 20, 2025

This Subscription Service Agreement Terms and Conditions (“Terms” or “Agreement”) constitute a valid and binding legal agreement between Testaify Inc., a Delaware corporation with its principal offices located at 25 SE 2^nd Avenue Suite 550-670, Miami, Florida 33131, and the entity represented by the end-user (the “Customer”), and describes the terms and conditions under which Testaify will license to Customer the Offerings. “Customer,” “you” or “your” means the person or entity accepting these Terms. “Testaify,” “Company,” “we,” “our” or “us” means the Testaify, Inc., a Delaware corporation.

IMPORTANT: THESE TERMS FORM A BINDING CONTRACT BETWEEN YOU AND TESTAIFY WHEN ACCEPTED BY YOU. YOU ACCEPT THESE TERMS BY (1) SIGNING AN ORDER REFERENCING THESE TERMS; (2) CLICKING “I ACCEPT” OR “I AGREE” (OR SIMILAR BUTTON OR CHECKBOX) TO THESE TERMS WHEN REGISTERING FOR OFFERINGS OR PLACING AN ORDER ONLINE; OR (3) USING THE OFFERINGS. THESE TERMS ARE EFFECTIVE ON THE DATE OF YOUR ACCEPTANCE. IF YOU ARE ACCEPTING THESE TERMS ON BEHALF OF AN ENTITY, YOU WARRANT AND REPRESENT THAT YOU HAVE AUTHORITY TO BIND THAT ENTITY. IF YOU SIGN UP FOR OFFERINGS ONLINE USING AN EMAIL ADDRESS FROM YOUR EMPLOYER OR ANOTHER ENTITY, THEN YOU WILL BE DEEMED TO REPRESENT YOUR EMPLOYER OR THAT ENTITY AND YOUR ACCEPTANCE WILL BIND YOUR EMPLOYER OR THAT ENTITY TO THESE TERMS. IF YOU DO NOT AGREE TO THESE TERMS, OR ARE NOT AUTHORIZED TO ACCEPT THESE TERMS, YOU ARE NOT AUTHORIZED TO USE THE OFFERINGS. IF YOU ACCEPT THESE TERMS PERSONALLY AND NOT ON BEHALF OF ANY ENTITY, YOU MAY NOT USE THE OFFERINGS FOR OR ON BEHALF OF ANY ENTITY.

Capitalized terms used in these Terms are defined in context or in Section 1.

1. DEFINITIONS.

“Administrative Data” means account-related data collected during your purchase and use of the Offerings.

“Affiliate” means any individual or business entity that controls, is controlled by, or is under common control with a party where control means ownership, directly or indirectly, of 50% or more of the voting power (or equivalent).

“Agreement” means these Terms, the Order, the Ancillary Documents and, if applicable, the Data Processing Addendum.

“Ancillary Documents” means any ancillary documents referenced in the Agreement as applicable to your ordered Offerings including the Documentation and Support Plan.

“Customer Content” means any content, User information, URLs, code or customer data provided by you or Users to us in connection with your use of the Offerings.

“Customer Systems” means servers, systems, platforms, networks, applications, databases, computers, mobile devices or other endpoints (physical or virtual) from which Products are accessed, that are owned, operated or managed by, or on behalf of, you and your Affiliates.

“Documentation” means the then-current official user documentation provided by Testaify for the applicable Product.

“Feedback” means comments, ideas, enhancement requests, recommendations, suggestions or other feedback relating to any Offerings.

“Intellectual Property Rights” mean all registered or unregistered worldwide intellectual property rights, including copyrights, trademarks, service marks, trade secrets, patents, patent applications and moral rights.

“Offerings” means the Products and Documentation that Testaify provides to you under the Agreement.

“Order” means the order document or online order on a form approved by Testaify that you submit to Testaify that specifies the Offerings ordered and the applicable [subscription plan and term, quantities, billing and payment terms and other terms].

“Products” means our hosted or cloud-based products that are provided by us on a software-as-a-service basis including any related software provided by us to access or use the product from Customer Systems.

“Sensitive Personal Information” means an individual’s financial information, sexual orientation, political orientation, race, health or medical information protected under any health data protection laws or any other type of information protected as sensitive personal information or a special category of personal information under applicable data protection or privacy laws.

“Service Data” means any data that is not Customer Content, including information about you and your Users’ use of the Offerings, performance of the Offerings, the model generated by the discovery engine, the test designed by Testaify, input test data generated by Testaify, execution results, data visualization, and other consent or data, primary or residual, generated by Testaify.

“Support Plan” means the Testaify support plan identified in the applicable Order.

“Taxes” means any sales, value added, goods and services, gross receipts, business and occupation, and other taxes (other than taxes on Testaify’s income or property), export and import fees, customs duties and similar charges imposed by any government or other authority.

“Term” means the term specified in the Order during which Customer may use the Offerings, including any renewal terms.

“Third-Party Content” means third-party software, products or services that are not owned by Testaify or licensed under this Agreement that may be used or integrated with the Offerings.

“Users” means you and your Affiliates’ agents, employees, contractors, representatives, and service providers that are authorized to use the Offerings.

2. LICENSE; USE OF OFFERINGS.

2.1. Products.

For Products specified in an Order and provided under the Agreement, Testaify grants to you a worldwide, limited, non-exclusive, non-transferable, non-sublicensable license to access and use the Offerings during the Term solely for your internal business purposes subject to the terms of the Agreement, including payment of fees.

2.2. Customer Systems.

You and your Users are responsible for providing adequate technological infrastructure and computing power for Customer Systems accessed by the Products.

2.3. Restrictions.

You and your Users must not: (1) decompile, disassemble, reverse engineer, attempt to identify source code, modify or create a derivative work of any Offerings except as expressly permitted by law; (2) copy, reproduce, republish, post or transmit any Offerings; (3) sell, resell, rent, lease, license, sublicense, assign, distribute or transfer any Offerings to a third party except as authorized by Testaify under a written agreement; (4) permit anyone other than Users to access and use any Offerings; (5) incorporate any Offerings into a product or service that you provide to a third party except as authorized by Testaify under a written agreement; (6) use any Offerings to develop or operate competitive products or services; (7) publish or disclose information regarding the availability, performance or functionality of any Offerings to a third party, including any benchmarking; (8) remove, alter or obscure any proprietary rights notices contained in any Offerings; (9) use the Products in any hazardous environments in which the failure of the Products could result in death, personal injury, or physical or environmental damage; (10) attempt to gain unauthorized access to or circumvent any technical or legal limitations on the use of any Offerings; (11) use any Offerings to store or transmit malicious code, Trojan horses, malware, spam, viruses or other destructive technology; (12) disrupt or interfere with the security, integrity or availability of any Offerings or any third parties’ use of any Offerings; (13) perform any attack, scan, test, probe or penetration other security assessment of the Products hosted in Testaify’s third party cloud environments; (14) use any Offerings in a way that violates the terms of the Agreement, the rights of others or any applicable law; or (15) allow, encourage or assist any third party to do any of the foregoing. Any breach of this Section 2.3 will be considered a material breach.

2.4. Limits on Use.

Your use of the Products is limited to the precise plan and description stated in the Order. You are responsible for all actions taken by Users or through access credentials provided by us for the Products (“User IDs”). You will notify Testaify immediately if you become aware of any unauthorized use of the Products or a User ID. Testaify may restrict access to features not licensed, even if made accessible at the time of delivery.

2.5. Support.

Testaify will provide support for the Products during the Term according to its published standards or as otherwise explicitly described on the Order.

2.6. Limited Use Licenses.

At its sole discretion, Testaify may provide certain Products to you for free or under other limited use licenses (collectively, “Limited Use Licenses”). Your use of a Product under a Limited Use License is: (1) subject to these Terms and any additional terms we specify when we provide the Limited Use License to you; and (2) restricted to the use for which it is provided during the Term. Limited Use Licenses for trials are restricted to use for internal evaluation. Limited Use Licenses for alpha, beta or other pre-release versions of Products or features are restricted to use for pre-release testing. You understand that Products and features provided under Limited Use Licenses for pre-release testing are still under development, may be inoperable or incomplete, and may contain more errors and bugs than generally available versions of Products. All information regarding the features or performance of Products provided under a Limited Use License is our Confidential Information. We may terminate a Limited Use License at any time for any reason at our sole discretion. Use of multiple free accounts to avoid incurring fees may result in termination of your account(s) or conversion to a paid subscription. Limited Use Licenses are intended for use in test environments or by test accounts in production environments. Any use by you of Products under a Limited Use License, including any use by a test account in a production environment, is at your own risk. To the maximum extent permitted by law, Products under a Limited Use License are provided “AS IS” without support, warranty or indemnification of any kind, express or implied. Notwithstanding anything else in these Terms, Testaify’s maximum aggregate liability to you for Limited Use Licenses will not exceed USD$100.

3. INTELLECTUAL PROPERTY.

3.1. Testaify Ownership.

Testaify, its Affiliates, and licensors retain all right, title and interest to the Offerings (including derivative works) and all related Intellectual Property Rights. The Offerings are licensed, not sold. The use of terms such as “purchase” or “sale” do not change the nature of the license. Your right to use the Offerings is limited to the rights expressly granted in these Terms.

3.2. Your Ownership.

You, your Affiliates, and licensors retain all right, title and interest to Customer Content and all directly related Intellectual Property Rights. You grant to Testaify, its Affiliates, and its service providers a worldwide, limited license to use and process Customer Content during the Term solely to provide the Offerings and as expressly permitted under the Agreement.

3.3. Feedback.

If you provide Feedback to Testaify, you agree that Testaify may use the Feedback and incorporate the Feedback into Offerings without restriction, compensation or other obligation to you.

3.4. Third-Party Content.

Third-Party Content is licensed to you under its own terms and those terms apply to your use of the Third-Party Content. Testaify does not control or review Third-Party Content. You are responsible for ensuring that Third-Party Content is appropriate for your intended use and that you have the rights necessary to use the Third-Party Content.

4. ORDERING AND PAYMENT.

4.1. Orders.

You may only purchase Offerings directly from Testaify. The Offerings will be made available to you on your acceptance of an Order and these Terms. An Order is accepted by you when you sign or submit the Order in the manner specified by Testaify. All Orders are non-cancelable and non-refundable except as expressly provided in such Order.

4.2. Fees and Payment.

Fees will be due and payable immediately, prior to accessing the Products, unless otherwise specified on the Order. If you fail to pay any amount when due under the Agreement, Testaify may, at its sole discretion, suspend the Offerings until you pay all outstanding amounts or terminate the applicable Order or the Agreement. If Testaify accepts your credit card for payment, you agree that Testaify may bill your credit card or other payment method for renewals or other amounts due and payable by you under the Agreement until you provide written notice to Testaify to stop.

4.3 Taxes.

All fees are exclusive of any applicable Taxes. If you are Tax exempt, you will provide us with a copy of the exemption certificates from the relevant taxing authorities with the Order. Upon reasonable request, we will provide you documentation of payment of any withheld or collected Taxes to the relevant taxing authorities.

5. WARRANTIES.

5.1. Product Warranty.

Testaify warrants that the Products will materially conform to the applicable Documentation during the Term. This warranty applies only to currently supported versions of the Product licensed to you that are used in unmodified form in accordance with the Documentation and the Agreement. TESTAIFY MAKES NO REPRESENTATION OR WARRANTY THAT ITS PRODUCTS WILL IDENTIFY ALL ERRORS IN CUSTOMER CONTENT OR OTHERWISE PERFORM ERROR-FREE. The remedies provided in this Section are your sole and exclusive remedies for a breach of the product warranty provided in this Section.

5.2. Warranty Disclaimer.

The express warranties set forth in this Section 5 (Warranties) are in lieu of all other warranties. To the maximum extent permitted by law, Testaify disclaims all other warranties, whether express, implied or statutory (including any implied warranties of merchantability, fitness for a particular purpose, title or noninfringement), and any warranties arising from usage of trade, course of dealing or course of performance. Testaify does not warrant that the Offerings will meet your requirements or that they will be accurate or operate without interruption or error. You acknowledge and agree that you have not relied on any promise, warranty, or representation not expressly provided in this Agreement.

6. INDEMNIFICATION.

6.1. Testaify Indemnification.

Testaify agrees to indemnify and defend you, your Affiliates, and your respective officers, directors and employees from and against any unaffiliated third-party suit or proceeding alleging that the Products infringe any patent, trademark or copyright, or misappropriate a trade secret, of that third party (“Testaify Indemnified Claim”). Testaify will indemnify you from the damages finally awarded against you to that third party by a court of competent jurisdiction or agreed to by Testaify in settlement. Testaify’s obligations under this Section 6.1 apply only if you: (1) promptly notify Testaify of the Testaify Indemnified Claim in writing; (2) allow Testaify sole control over the defense of the claim and any settlement negotiations; and (3) reasonably cooperate in response to Testaify’s requests for assistance. If a Product becomes, or in Testaify’s opinion is likely to become, the subject of a Testaify Indemnified Claim, Testaify will at its option and expense either: (A) procure the rights necessary for you to make continued use of the affected Product; (B) replace or modify the affected Product to make it non-infringing while materially retaining functionality; or (C) terminate your right to use the affected Product and, upon your certified deletion of the affected Product, refund you the amount that Testaify received for the unused portion of the Term for the terminated Product. Testaify’s obligations under this Section 6.1 do not apply to any claim based on: (i) a combination of any Product with non-Testaify products; (ii) any use of a Product that is not in compliance with the terms of the Agreement; (iii) continued use of an infringing version of the Product after Testaify has provided you a non-infringing version or terminated your right to use the affected Product; (iv) any modification to a Product made by anyone other than Testaify; (v) Customer Content; or (vi) Third-Party Content. This Section 6.1 sets forth your sole and exclusive remedy and Testaify’s entire liability for any Testaify Indemnified Claim.

6.2. Customer Indemnification.

You agree to indemnify and defend Testaify, its Affiliates, and their respective officers, directors and employees against any unaffiliated third-party suit or proceeding alleging that any Customer Content or our use of Customer Content in compliance with the Agreement infringes any patent, trademark or copyright, or misappropriates a trade secret, of that third party or arising out of your use of the Offerings in breach of the Agreement (“Customer Indemnified Claim”). You will indemnify Testaify from the damages finally awarded against Testaify to that third party by a court of competent jurisdiction or agreed to in settlement. Your obligations under this Section 6.2 apply only if Testaify: (1) promptly notifies you of the Customer Indemnified Claim in writing; (2) allows you sole control over the defense of the claim and any settlement negotiations except that you may not agree to any settlement that requires Testaify or its other customers to admit liability or subjects Testaify or its other customers to ongoing obligations without Testaify’s express prior written consent; and (3) reasonably cooperates in response to your requests for assistance. This Section 6.1 sets forth Testaify’s sole and exclusive remedy and your entire liability for any Customer Indemnified Claim.

7. LIMITATIONS OF LIABILITY.

7.1. Limitation on Damages.

Neither Testaify nor its Affiliates are liable for any lost profits or business opportunities, loss of use, loss of data, business interruption, or any indirect, punitive, special, incidental or consequential damages under any theory of liability. This limitation applies regardless of whether Testaify or you have been advised of the possibility of those damages and regardless of whether any remedy in this Agreement fails of its essential purpose.

7.2. Cap on Monetary Liability.

Testaify’s maximum aggregate liability for claims related to the Agreement will not exceed the fees paid or payable to Testaify for the Offering that is subject of the claim in the 6 months preceding the event giving rise to the claim.

7.3. Exclusions.

The limitations in Section 7 (Limitations of Liability) will not apply to: (1) either party’s obligations in Section 6 (Indemnification); (2) either party’s violation of the other party’s Intellectual Property Rights; (3) your payment obligations under Section 4.2 (Fees and Payment); (4) your violation of Section 2.3 (Restrictions); or (5) any liability that cannot be excluded under applicable law.

8. CONFIDENTIALITY.

8.1. Confidential Information.

“Confidential Information” means non-public information provided by one party (“Discloser”) to the other party (“Recipient”) in connection with the Agreement that is labeled confidential or proprietary or that a reasonable businessperson would consider to be proprietary or confidential due to its nature. Testaify’s Confidential Information includes information related to the Offerings, pricing and product roadmaps. Your Confidential Information includes Customer Content. Confidential Information does not include any information that Recipient can show: (1) was rightfully known to Recipient without any obligation of confidentiality at the time of disclosure; (2) was disclosed to Recipient by a third party who had the right to make the disclosure without any confidentiality restrictions; (3) was generally available to the public at the time of disclosure through no fault of Recipient; or (4) was independently developed by Recipient without use of Discloser’s Confidential Information.

8.2. Obligations; Permitted Use and Disclosure.

Recipient will protect the Discloser’s Confidential Information in the same manner as it protects its own Confidential Information of a similar nature or value, and always with at least reasonable care. Recipient may use Confidential Information of Discloser solely to exercise its rights and perform its obligations under the Agreement. Recipient may disclose Confidential Information only to its and its Affiliates’ officers, directors, employees, service providers, contractors, advisors or representatives (“Representatives”) who have a reasonable need to know the Confidential Information to perform under the Agreement and who are bound by a similar duty of confidentiality. Recipient is responsible for its Representatives compliance with this Section 8. Recipient also may disclose Confidential Information to the extent required by law or regulation, in which case Recipient will notify Discloser as soon as practicable if permitted by law or regulation. At Discloser’s request and expense, Recipient will take reasonable steps to contest and to limit the scope of any required disclosure. Recipient’s obligation to protect Confidential Information of Discloser applies during the Term and for three (3) years after the end of the Term except with respect to Confidential Information that constitutes a trade secret, which will remain subject to the confidentiality obligations for as long as it remains subject to trade secret protection under applicable law.

9. DATA PRIVACY AND INFORMATION SECURITY.

9.1. Data Protection and Security.

Each party will comply with its respective obligations under applicable data protection laws. You are solely responsible for maintaining the security of Customer Systems.

9.2. Service Data.

You agree that Testaify may analyze and use Service Data to provide features, improve the Offerings and develop new features, products and services. Service Data is not Customer Content or your Confidential Information.

9.3. Administrative Data.

You agree that Testaify may use Administrative Data to provide the Offerings, bill you for the Offerings, advise you of new Testaify products and services, or otherwise comply with Testaify’s contractual obligations and applicable law.

9.4. Customer Content and Data Obligations.

You agree to obtain and maintain all rights and permissions necessary for you to transmit Customer Content to the Products, make Customer Content, Administrative Data and Service Data available to Testaify and its service providers in connection with your use of the Offerings, and to grant us the rights to use and process Customer Content provided under these Terms. You agree not to transmit Sensitive Personal Information to the Products or otherwise make Sensitive Personal Information available to Testaify or its service providers in connection with the use of the Offerings unless its processing is expressly supported as a feature of the applicable Product in the applicable Documentation or a written agreement between you and Testaify.

10. TERM AND TERMINATION.

10.1. Term.

The Agreement will remain in effect for the Term of all Orders accepted under the Agreement unless earlier terminated under this Section.

10.2. Renewals.

The Term will renew as set forth in the Order.

10.3. Suspension.

Testaify may immediately suspend or terminate your access to the Offerings if: (1) you have not paid applicable fees; (2) Testaify reasonably believes that you have materially breached the Agreement; or (3) Testaify reasonably determines your use is disrupting or interfering with the security, integrity or availability of any Offerings or any third parties’ use of any Offerings.

10.4. Termination for Breach.

If the other party materially breaches the Agreement and does not cure the breach within thirty (30) days of receiving written notice describing the breach from the other party, the non-breaching party may terminate the affected Orders or the Agreement immediately by written notice. Termination of the Agreement under this Section will also terminate all Orders then in effect. If you terminate under this Section for Testaify’s uncured breach, then Testaify will refund the amount that Testaify received for the unused portion of the Term for the terminated Offering.

10.5. Termination for Insolvency.

Either party may terminate this Agreement effective immediately by written notice if the other party becomes insolvent, makes an assignment for the benefit of creditors, or becomes subject to control of a trustee, receiver or similar authority, or to any bankruptcy or insolvency proceeding. Termination of the Agreement under this Section will also terminate all Orders then in effect.

10.6. Effect of Expiration or Termination.

Upon termination or expiration of an Order, you will immediately stop using and Testaify will stop providing the applicable Offerings. Any unpaid fees will become immediately due and payable on termination. You will not be entitled to a refund of any pre-paid fees except as provided under Sections 5.1, 6.1, 10.4 and 11.2.

10.7. Survival.

The following Sections will survive termination or expiration of this Agreement: 2.3 (Restrictions); 2.4 (Limits on Use); 3 (Intellectual Property); 4.2 (Fees and Payment); 5.2 (Warranty Disclaimer); 6 (Indemnification); 7 (Limitations of Liability); 8 (Confidentiality); 9 (Data Privacy and Information Security); 10.6 (Effect of Expiration or Termination; 10.7 (Survival) and 12 (Miscellaneous).

11. MODIFICATIONS.

11.1. Changes to Offerings.

Our Offerings are continually evolving. We may update or modify the Offerings and the Ancillary Documents during the Term to reflect changes in the Products, laws, technology, industry practices, our business or other market factors. The Ancillary Documents applicable at any time are the current version. Testaify may use third-party service providers to deliver the Offerings and may change or replace third-party service providers from time to time at its sole discretion. Use of third parties and any changes to Offerings will not materially reduce the level of performance, security or availability of the Offerings during the Term. If we decide to discontinue any Products, it will be according to our product lifecycle policies.

11.2. Changes to Terms.

We may modify these Terms by posting modified Terms on our website. Any changes to these Terms will be effective at the start of your next Order unless a different effective date is stated on the notice. Your continued use of the Offerings after effectiveness of the change confirms your acceptance..

12. MISCELLANEOUS.

12.1. Governing Law and Forum.

Unless otherwise specified in the Order, the Agreement is governed by the laws of the State of Delaware without regard to principles of conflicts of law and any dispute arising out of the Agreement will be exclusively resolved in the State or Federal courts located in Palm Beach County, Florida. The United Nations Convention on Contracts for the International Sale of Goods will not apply.

12.2. Injunctive Relief.

Each party acknowledges and agrees that a breach of its obligations with respect to the other party’s Confidential Information and Intellectual Property Rights may cause irreparable harm to the other party that could not be remedied by payment of damages alone and that the other party may seek injunctive relief to prevent the breach in any appropriate jurisdiction.

12.3. Assignment.

Customer may not assign its rights or obligations under the Agreement or any Order without Testaify’s prior written consent. Any purported assignment in violation of this Section is void.

12.4. Export Compliance.

You agree to comply with applicable anti-corruption and export control laws in your use of the Offerings. You represent and warrant that you are not, are not acting on behalf of, and will not export or re-export any part of the Offerings to: (1) any person who is a citizen, national, resident of, or who is controlled by, the government of any country to which the United States has prohibited export transactions; (2) any person or entity listed on the U.S. Treasury Department list of Specially Designated Nationals and Blocked Persons or the U.S. Commerce Department Denied Persons List or Entity List; or (3) any country to which the United States government requires an export license or other governmental approval without first obtaining the license or approval. You are not subject, either directly or indirectly, to any order issued by any agency of the United States government revoking or denying, in whole or in part, your United States export privileges.

12.5. Notices.

All notices will be in writing. The parties agree that electronic communications to Customer will satisfy applicable legal notice requirements to Customer, including that the notice be in writing. Notice will be deemed given to the Customer on the next business day after the notice is sent. Testaify will send notices to you at the email address indicated on the Order or updated through your customer account. It is your responsibility to keep your email address for notices valid and current to receive notices. You will send termination and non-renewal notices to Testaify at least thirty (30) days before the termination date.

12.6. Records.

You agree to make available to Testaify on request all information and records reasonably necessary to demonstrate that your use of the Offerings complies with the Agreement. For Products, you agree that Testaify may monitor your use of the Products for compliance with applicable limits on use. If Testaify determines your use exceeds applicable limits, Testaify will invoice you for fees related to the excess use.

12.7. Publicity.

We may identify you as a Testaify customer and use your name and logo in promotional and marketing materials unless you notify us that you do not consent to such use by sending notice to legalnotices@Testaify.com.

12.8. Severability.

If part of the Agreement is held to be void, invalid or unenforceable, the rest will remain in full force and effect.

12.9. Entire Agreement.

The Agreement as it may be modified from time to time is the entire agreement of the parties regarding your purchase and use of the Offerings. The Agreement supersedes all prior or contemporaneous communications, understandings and agreements, whether written or oral, between the parties regarding its subject matter. Any additional terms included in a purchase order or other business form provided by you will l have no legal effect and will not supersede, amend or supplement the terms of the Agreement. In the event of a conflict, the order of precedence will be: (1) the Order; (2) these Terms; and (3) the applicable Ancillary Document.

12.10. Waiver and Amendment.

The waiver of a breach of any provision of the Agreement will not constitute a waiver of another provision or a later breach. Any modifications to the Agreement must be in writing and signed by both parties.

12.11. Relationship of the Parties.

The parties are independent contractors. Nothing in this Agreement creates a partnership, joint venture or agency relationship. Neither party has any authority to assume or create any obligation of any kind in the name of or on behalf of the other party.

12.12. Force Majeure.

A party’s delay or failure to perform obligations under this Agreement (except for payment obligations) that is caused by conditions beyond the reasonable control of that party is not a breach of this Agreement. The time for performance will be extended for a period equal to the duration of the conditions preventing performance.

12.13. Construction.

The words “include” and “including” mean “including but not limited to.” Section headings are for convenience only and are not to be used in interpreting this Agreement.