TERMS OF SERVICE AND CONDITIONS OF USE

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This Terms and Conditions of Use Agreement (“Terms and Conditions”) is between Health Partners America, L.L.C., a Delaware limited liability company (“HPA”) and any individual, entity, or organization who accepts these Terms and Conditions (“You”).

 NOTICE: PLEASE CAREFULLY READ THESE TERMS AND CONDITIONS BEFORE USING THIS WEBSITE (“HPA WEBSITE”).  BY USING THE HPA WEBSITE, YOU AGREE TO BE BOUND BY THE TERMS AND CONDITIONS. THESE TERMS AND CONDITIONS CONSTITUTE A LEGALLY BINDING AGREEMENT.  IF YOU DO NOT WISH TO ACCEPT THESE TERMS AND CONDITIONS, OR ANY PART THEREOF, DO NOT USE THE HPA WEBSITE.  CONTINUED USE OF THE HPA WEBSITE BY YOU SHALL CONSTITUTE YOUR ACCEPTANCE OF THE TERMS AND CONDITIONS, INCLUDING ANY MODIFICATIONS THERETO.  WE RESERVE THE RIGHT, IN OUR SOLE DISCRETION, TO MODIFY THE TERMS AND CONDITIONS AT ANY TIME.  IT IS YOUR RESPONSIBILITY TO CHECK THESE TERMS AND CONDITIONS FOR CHANGES. YOUR CONTINUED USE OF THE HPA WEBSITE FOLLOWING THE POSTING OF ANY CHANGES TO THE TERMS AND CONDITIONS SHALL CONSTITUTE YOUR ACCEPTANCE OF THE CHANGES.

 

  1.                   Intellectual Property, Copyrights and Trademarks.

 All text, graphics, user interfaces, visual interfaces, music, artwork, photographs, videos, logos, sounds, and other materials on the HPA Website, including without limitation the training and sales materials, and marketing tools currently available on the HPA Website (“HPA Training”), as well as the HPA trademarks and/or service marks, constitute proprietary information and intellectual property of HPA, and/or its affiliates, and are protected by copyright and trademark laws,  and other intellectual property rights and unfair competition laws, all rights reserved.  You may only use materials from the HPA Website for the purposes set forth in these Terms and Conditions, and in accordance therewith.  Except as expressly permitted herein, no part of the HPA Website or the HPA Training may be copied, reproduced, republished, disseminated, publicly displayed, posted, uploaded, encoded, translated, transmitted or distributed in any way (including “mirroring”) to any other computer, website, server, or other medium for publishing or distributing without HPA’s express written consent.

 You further acknowledge and agree that the HPA Services (as hereinafter defined) also constitute proprietary information and HPA intellectual property, and that all right, title, and interest in and to any and all copyrights, trademarks, or other intellectual property right in the HPA Services and any other HPA Confidential Information (as hereinafter defined), as well as all legally protectable elements, enhancements, modifications or derivative works thereof, are and shall continue to be the exclusive property of HPA.  You acknowledge and agree that You have no ownership claim or right, title or interest in or to the HPA Services.  You acknowledge and agree that the right to modify the HPA Services and to affix Your name and contact information does not change HPA’s ownership of the HPA Services and all intellectual property rights therein.

 

HPA WEBSITE, TRAINING, SERVICES, EXCHANGE, REFERRAL PROGRAM

 

2.                  General Rights; Restrictions on Use

a.         So long as You comply with these Terms and Conditions, we grant You a non-exclusive, non-transferable, non-assignable, limited, revocable, terminable license (“HPA License”) to enter and use the HPA Website and the HPA Training for the purpose of marketing the Exchange and HPA Referral Program (“Exchange” and “HPA Referral Program” are defined in the Parties’ “Producer Referral Agreement for Producer Developer”) to others.  (The HPA License, HPA Training, and the HPA Website are collectively referred to herein as “HPA Services”.);

 

b.         You shall not remove or obscure any copyright or trademark notice or other notices contained in the HPA Training, including but not limited to intellectual property rights notices.

 

c.         The general rights granted to You under the Terms and Conditions are as follows:

 

(1)        The right to electronically display HPA Training retrieved from the HPA Website to assist You in Your business of marketing defined contribution health plans and other health insurance products and services to Your customers.  Only Your agents, servants, employees, directors, officers, members, consultants, advisors, and/or attorneys (“Representatives”) shall have authority to utilize the HPA Services at Your direction and in accordance with these Terms and Conditions.  You shall not allow third-parties to retrieve HPA Training via LANs, WANs, intranets, Internet, or otherwise.  Notwithstanding the foregoing, You may electronically display HPA Training for the purpose of marketing the Exchange and the HPA Referral Program to others;

 

(2)        The right to email, fax, download or make printouts of HPA Training using the commands embedded in the HPA Website in order to create printouts of HPA Training accessed and/or downloaded from the HPA Website (collectively, “Authorized Printouts“) for the purpose of marketing the Exchange and the HPA Referral Program to others;

 

(3)        The right to download HPA Training using the commands embedded in the HPA Website and store in machine readable form for Your exclusive use, a copy of HPA Training included in any individually searchable file or content source on this website, for the purpose of marketing the Exchange and the HPA Referral Program to others ;

 

(4)        The right to modify the HPA Training to affix Your name and contact information thereto, for the purpose of marketing the Exchange and the HPA Referral Program to others;

 

(5)        The right to represent that the HPA Training is Your product and service, for the purpose of marketing the Exchange and the HPA Referral Program to others;

 

(6)        In addition to the rights set forth herein, the right to (a) excerpt and/or quote portions of HPA Training in documents prepared in the ordinary course of Your business to the extent permitted by applicable copyright law; (b) distribute Authorized Printouts to Your customers (including via email through the functionality of this HPA Website); and (c) store HPA Training to the extent required for legal or regulatory compliance provided that all other HPA Training is purged promptly upon the expiration of these Terms and Conditions; and

 

(7)        Downloading and storing HPA Training in an archival database is prohibited. HPA Services are protected by copyright, other intellectual property rights, and other laws that prevent unauthorized access, storage, and use. No one other than You or Your Representatives are permitted to access or use the HPA Services.  If an individual or entity other than You or Your Representatives accesses or uses the HPA Services without authorization from HPA, and gained said access with Your consent, any such unauthorized access and use shall be governed by these Terms and Conditions and both You and the non-authorized individual and/or entity shall be liable to HPA for any breach of the terms and conditions, as well as for unauthorized access, unauthorized use, and for payment for such access and use. If an individual or entity other than You or Your Representatives accesses or uses the HPA Services without authorization from HPA, and gained said access without Your knowledge, any such unauthorized access and use shall be governed by these Terms and Conditions, and the non-authorized individual and/or entity shall be liable to HPA for any breach of these Terms and Conditions, as well as for unauthorized access, unauthorized use, and for payment for such access and use.

 

d.         Except as specifically provided in these Terms and Conditions, You are prohibited from downloading, emailing, faxing, storing, reproducing, transmitting, displaying, copying, distributing, or otherwise using HPA Services for commercial purposes, except for use by You and/or Your Representatives for the purpose of marketing the Exchange and the HPA Referral Program to others;

 

e.         You may not sell, use or exploit the goodwill of HPA, including HPA’s trademarks, service marks, or logos. Additionally, under no circumstances can You directly or indirectly sell, permit or offer any HPA Services (including the HPA Website and HPA Training), or transfer of or access thereto, for resale or redistribution in any form or medium, except as provided herein.  You shall not use the HPA Services to compete with any business of HPA.

 

f.          All right, title, and interest (including all copyrights, trademarks and other intellectual property rights) in the HPA Services in any form or medium are the property of HPA.  You shall not acquire any proprietary interest in the HPA Services, or copies thereof, except for the HPA License granted herein.

 

g.         You shall not use the HPA Services in any fashion that infringes the intellectual property rights or proprietary interests of HPA or any third-party. Your use of the HPA Services must comply with all applicable international, federal, state and local laws, rules and regulations.

 

h.         You represent and warrant that You will only use the HPA Services for Your exclusive use in the conduct of Your business of marketing Your own products and services and for the purpose of marketing the Exchange and the HPA Referral Program to others.

 

i.          You further represent and warrant that the HPA Services provided pursuant to these Terms and Conditions shall only be utilized by You or Your Representatives.

 

j.          You shall prevent unauthorized use of any login usernames and/or passwords assigned to You by HPA.  In the event that You suspect or determine that another party has unlawfully and/or wrongfully gained access to the HPA Services using Your information, or that Your password has been lost, stolen, compromised, or misused, You shall promptly notify HPA.  Upon receipt of notification from You, HPA will cancel Your login username and password and assign You a new login username and password.    You are responsible for all use of the HPA Services accessed with Your login username and password, including associated charges, whether incurred by You, Your Representatives, or others.

 

k.         You shall not obtain or attempt to obtain, or to access, copy, capture, or monitor the HPA Website (or any materials, content or information therein) or the HPA Training, or any portion thereof, or in any other way attempt to circumvent the structure of the HPA Website or the HPA Training, or otherwise reproduce them in any manner not made available by HPA, including but not limited to any mechanical, programmatic, robotic, scripted or other automated means, or any other manual process.  You may not, via hacking, password “mining” or any other illegal or illegitimate means, attempt to gain unauthorized access or entry to the HPA Website or the HPA Training, or any portions thereof, or to any other systems or networks connected to the HPA Website or to any other HPA website or server.

 

3.         Confidentiality.   You acknowledge and agree that You, the affiliates, related entities and indirect or direct subsidiaries (“Affiliates”) of You, and Your Representatives may have access to confidential information (whether in written, electronic, digital, or oral form) regarding HPA and the HPA Services, including but not limited to know-how, trade secrets, copyrights, trademarks, service marks, patents, documentation, any and all proposed and/or actual business plans, any and all proposed and/or actual technical plans, transactions, products, services, training materials, brochures, checklists, webinars, letters, customer lists, client lists, supplier lists, participating provider lists, systems and systems architecture, software, software architecture, websites, proprietary techniques or website look and feel information, licensing, employer and consumer information, salaries, business management lists, employment agreements, pricing information, reimbursement schedules, purchasing or sales agreements, organizational information, sources of funds, assets, finances, financing, management, management agreements, proprietary business and/or management methods and protocols, managed care agreements, marketing information, marketing strategy, production information, plans and protocols, fee schedules, drawings, templates, artwork, manuals, models, reports, designs, specifications,  calculations, product data and ideas, processes, prototypes, cost and other financial information, projections, estimates, pricing, pricing programs, suppliers, domain names which are owned and/or licensed by HPA and/or used by HPA in connection with the operation of its business, and other proprietary knowledge, materials and information provided by or on behalf of HPA (“Confidential Information”).  The term “Confidential Information” shall also include, but not be limited to, any reports, analyses, data, notes, evaluations, studies, summaries or information derived, generated or prepared from the Confidential Information.  The term “Confidential Information” shall also include, but not be limited to, the information that You are a non-exclusive licensee with HPA and/or otherwise affiliated with HPA. “Confidential Information” shall not include information that is available in the public domain.

 

You acknowledge that the Confidential Information is a commercially valuable proprietary product of HPA, which affords HPA a commercial advantage over its competitors, and that loss of this competitive advantage due to unauthorized disclosure or use of such Confidential Information would cause great injury and harm to HPA. You acknowledge that the Confidential Information constitutes intellectual property and trade secrets, disclosed to You on the basis of the confidential relationship between You and HPA under these Terms and Conditions, to be used only as may be expressly permitted by these Terms and Conditions, and that the restrictions imposed upon You by this Section are necessary to protect the confidentiality of such proprietary information and prevent the occurrence of such injury and harm to HPA.

 

You agree that the You shall not disclose any such Confidential Information, intentionally or unintentionally, directly or indirectly.  You further agree that You shall not use any of the Confidential Information in any manner, except in accordance with the terms of these Terms and Conditions, either during the term of these Terms and Conditions or at any time thereafter.  All Confidential Information coming into Your possession shall remain the exclusive property of HPA.  You agree that no third-parties, including any consultants or other independent contractors engaged by You, may have access to the Confidential Information without the prior written consent of HPA.  You may not use the Confidential Information for illegal purposes or to interfere with or disrupt the use of HPA Services. You represent and warrant that You shall comply with all privacy obligations relating to Your customers, as required by law or regulation and shall hold HPA and HPA’s Representatives and affiliated third-parties harmless from any failure to do so.  Upon Your request, HPA may grant You written permission, at HPA’s sole discretion, to use HPA’s name and information for purposes of advertising.

 

You acknowledge that the breach by You or any of Your current or former Representatives or Affiliates of any of the provisions contained in this Section will cause HPA irreparable injury and damage.  You expressly agree that HPA shall be entitled to injunctive and other equitable relief, including reasonable attorneys’ fees, without the posting of a bond or other security, in the event of, or to prevent, a breach of any provision of these Terms and Conditions by You or any of Your current or former Representatives or Affiliates.  Should HPA seek equitable relief, said election shall in no way be construed as a waiver of any other rights or remedies that HPA may have for damages or otherwise.  The various rights and remedies of HPA under these Terms and Conditions or otherwise shall be construed to be cumulative, and no one of them shall be exclusive of any other or of any right or remedy allowed by law.  It is understood and agreed by the Parties hereto that this Section shall survive the termination of these Terms and Conditions.

 

4.         Disclaimers.HPA has made and shall make reasonable efforts to ensure that the HPA Services are complete and accurate and that Internet access to the HPA Training through this HPA Website shall be available as provided in these Terms and Conditions.  HPA shall make reasonable efforts to address, in its reasonable discretion, any specific issue provided in writing to HPA regarding the HPA Services.

 

Notwithstanding the foregoing, You specifically acknowledge, understand and agree as follows:

 

a.         THAT THE HPA SERVICES, AND ALL INFORMATION, CONTENT AND OTHER MATERIALS ON THE HPA WEBSITE, ARE BEING MADE AVAILABLE AND PROVIDED TO YOU ON AN “AS-IS, AS-AVAILABLE” BASIS, WITHOUT WARRANTIES OR REPRESENTATIONS OF ANY KIND.  HPA HEREBY EXPRESSLY DISCLAIMS ANY AND ALL EXPRESS, IMPLIED, OR STATUTORY WARRANTIES, INCLUDING BUT NOT LIMITED TO, WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, MARKETABILITY, EFFORT TO ACHIEVE PURPOSE, QUALITY, ACCURANCY, PROFITABILITY, SUSTAINABILITY, TITLE AND NON-INFRINGEMENT, AND ANY WARRANTIES ARISING FROM COURSE OF DEALING, COURSE OF PERFORMANCE, OR TRADE USAGE;

 

b.         That the Internet is not an error-free environment.  HPA Services does not promise, guarantee, represent or warrant that: (1) the Internet access to, or the operation, services, features, or content of the HPA Website will be uninterrupted or error free; (2) that defects will be corrected; (3) that the HPA Website, any files or data downloaded from the HPA Website, or any emails sent by HPA or the server which makes the HPA Website available, will be free of viruses, contamination or other harmful devices; (4) that the HPA Website will be available to You or that You will qualify for the HPA Services offered;  or (5) that the materials offered through the HPA Website will be accurate as of any particular date.   ACCESS TO HPA SERVICES IS SUBJECT TO LIMITATIONS, DELAYS AND PROBLEMS INHERENT WITH THE INTERNET AND ELECTRONIC COMMUNICATIONS. HPA HEREBY DISCLAIMS ANY AND ALL WARRANTIES THAT HPA SERVICES WILL MEET YOUR REQUIREMENTS, OR THAT THE HPA SERVICES WILL BE UNINTERRUPTED, TIMELY, SECURE, ERROR-FREE, OR PROVIDE SPECIFIC RESULTS.  MOREOVER, HPA DISCLAIMS ANY AND ALL LIABILITY FOR ANY ACTS, OMISSIONS, OR CONDUCT OF ANY THIRD PARTIES IN CONNECTION WITH OR RELATED TO YOUR USE OF THE HPA WEBSITE OR HPA SERVICES.  YOU ASSUME TOTAL RESPONSIBILITY FOR YOUR USE OF THE HPA WEBSITE AND HPA SERVICES, AND ANY LINKED WEBSITES;

 

c.         HPA IS NOT ACTING AS AN INSURANCE AGENT, BROKER, DEALER, ADVISOR, OR REPRESENTATIVE.  HPA IS PROVIDING YOU WITH A NON-EXCLUSIVE, NON-TRANSFERABLE, LIMITED, TERMINABLE LICENSE FOR THE LIMITED RIGHT TO ACCESS AND USE THE HPA SERVICES.  NOTHING IN THESE TERMS AND CONDITIONS, ANY OTHER AGREEMENT BETWEEN THE PARTIES, THE HPA TRAINING OR THE HPA WEBSITE CONSTITUTES INSURANCE OR OTHER PROFESSIONAL ADVICE.  IT IS YOUR RESPONSIBILITY TO EVALUATE THE ACCURACY AND COMPLETENESS OF ANY OPINIONS, ADVICE, SERVICES OR OTHER INFORMATION PROVIDED TO YOUR CUSTOMERS.   ALL INFORMATION CONTAINED ON ANY OF THE HPA TRAINING OR HPW WEBSITE IS DISTRIBUTED WITH THE UNDERSTANDING THAT THE AUTHORS AND DISTRIBUTORS ARE NOT RENDERING INSURANCE OR OTHER PROFESSIONAL ADVICE OR OPINIONS ON SPECIFIC FACTS OR MATTERS, AND ACCORDINGLY ASSUME NO LIABILITY WHATSOEVER IN CONNECTION WITH ITS USE.

 

d.         That this Section shall survive the termination of this agreement.

 

5.         Limitations of Liability.  Except where prohibited by law, You specifically acknowledge, understand and agree as follows:

 

a.         That a Covered Party (as hereinafter defined) shall not be liable to You for any loss, injury, claim, liability, or damage of any kind whatsoever, including but not limited to consequential, special, indirect, exemplary, incidental, or punitive damages, regardless of the form of the action, arising out of, related to, or resulting in any way from: (1) any errors in or omissions from the HPA Website or HPA Training; (2) the unavailability or interruption of the HPA Website or any features thereof or of any HPA Training; (3)  Your customers’ or Your use of the HPA Website or HPA Training; (4) any advice, guidance, instructions, assistance, representations or recommendations made by You, Your Representatives, Affiliates, brokers, or independent contractors in relation to the HPA Services; (5) the loss or corruption of any data or equipment in connection with the HPA Website; (6) the content, accuracy, or completeness of HPA Services, regardless of whether You received assistance in the use of the HPA Services from a Covered Party; (7) any delay or failure in performance of a Covered Party; (8) any content retrieved from the Internet even if retrieved or linked to from within the HPA Website; or (9) any content or information retrieved or accessed as a result of You utilizing any 3rd party links made available on the HPA Website;

 

b.         “Covered Party” means (1) HPA and any Representatives, affiliated third-parties, subcontractors, successors, or assigns of HPA; and (2) each third-party supplier of HPA Training, third-party alliance entities, their affiliates, and any Representatives, subcontractors, successors, or assigns of any third-party supplier of HPA Training or third-party alliance entity or any of their affiliates;

 

c.         IN NO EVENT SHALL HPA BE LIABLE FOR ANY AMOUNT IN EXCESS OF THE MONTHLY FEE AMOUNTS PAID BY YOU UNDER ANY REFERRAL AND SUBSCRIPTION AGREEMENT DURING THE TWELVE-MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO SUCH LIABILITY. UNDER NO CIRCUMSTANCES SHALL HPA BE LIABLE FOR ANY TYPE OF INCIDENTAL, SPECIAL, PUNITIVE, INDIRECT OR CONSEQUENTIAL DAMAGES TO YOU OR ANY THIRD-PARTY, INCLUDING BUT NOT LIMITED TO, ATTORNEY’S FEES, LOST REVENUE, LOST PROFITS, REPLACEMENT GOODS, COST OF REPLACEMENT GOODS, LOSS OF TECHNOLOGY, LOSS OF RIGHTS OR SERVICES, LOSS OF INFORMATION, OR INTERRUPTION OR LOSS OF USE OF SERVICE OR EQUIPMENT, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, ARISING UNDER ANY THEORY OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE. THE PARTIES ACKNOWLEDGE THAT HPA SET ITS PRICES AND ENTERED INTO THESE TERMS AND CONDITIONS IN RELIANCE UPON THE LIMITATIONS OF LIABILITY AND THE DISCLAIMERS OF WARRANTIES AND DAMAGES SET FORTH IN THESE TERMS AND CONDITIONS, AND THAT THE SAME FORM AN ESSENTIAL BASIS OF THE BARGAIN BETWEEN THE PARTIES. THE PARTIES AGREE THAT THE LIMITATION AND EXCLUSIONS OF LIABILITY AND DISCLAIMERS SPECIFIED IN THESE TERMS AND CONDITIONS SHALL SURVIVE AND APPLY EVEN IF FOUND TO HAVE FAILED OF THEIR ESSENTIAL PURPOSE.  ANY CLAIM UNDER THESE TERMS AND CONDITIONS MUST BE BROUGHT WITHIN TWELVE (12) MONTHS AFTER THE CAUSE OF ACTION ARISES, OR SUCH CLAIM OR CAUSE OF ACTION IS BARRED;

 

d.         You shall use reasonable efforts to take precautions against the contamination of Your systems and computer files with software viruses, worms or other malicious agents that may reside within messages sent through the HPA Website. At a minimum, such precautions shall include the installation, upgrading and use of commercial virus detection software to scan files and documents transmitted via the HPA Website. Additionally, the Parties shall use reasonable efforts to identify and to correct or remove any document or file that may have infected data or contain viruses or other malicious agents. HPA reserves the right to delete infected documents, files or programs, and HPA shall have no liability to You, or the sender or intended recipient of infected materials for such action. However, no precautions or virus detection software is or can be effective against all viruses, and HPA shall have no liability with regard to any contamination of files, documents or the HPA Website; and

 

e.         That this Section shall survive the termination of this agreement.

 

6.         Indemnification.   You hereby agree to, and shall, defend, indemnify and hold harmless HPA (including, without limitation, HPA’s Representatives, affiliated third-parties, successors and assigns) from and against any and all claims, demands, causes of action, liabilities, losses, fines, costs, expenses incurred by HPA (including without limitation, reasonable and actual attorneys’ fees, court costs, costs of administrative or other proceedings, and costs of investigation), or damages of any kind (including but not limited to punitive damages), arising out of or related in any way to Your breach of these Terms and Conditions or any act or omission of You or Your Representatives or Affiliates, or any governmental department or agency thereof, including but not limited to the following:

 

a.         Your infringement or misappropriation of any patent, copyright, trade secret, trade name, service mark or other intellectual property or proprietary right of HPA;

 

b.         Your use of the HPA Services;

 

c.         Your failure to pay any Federal, state or local taxes required by You for the services performed under the terms of this agreement;

 

d.         Any negligent act or omission to act of You in the performance of the services described in this agreement;

 

e.         Any failure by You to comply with HPA’s policies, procedures, or guidelines and/or the policies, procedures, or guidelines of any provider of  products or services that has contracted with HPA, whose products or services are utilized by You in the performance of this agreement;

 

f.          The breach of any Mutual Confidentiality, Non-Disclosure and Non-Solicitation Agreement and/or software agreements required to be signed by HPA  and/or any of HPA’s associated vendors, insurance providers, or contracted parties;

 

g.         Your, or any third-parties’, personal injuries or property damage caused by or related to the performance by You of this agreement;

 

h.         The failure of You to be appropriately licensed and appointed in any state in which the activities performed by You under the terms of this agreement require such licensing and appointment; and

 

i.          The failure of You to comply with any applicable laws, rules and regulations.

 

You understand and agree that HPA shall not undertake to resolve any disputes or litigation on Your behalf involving use of the HPA Services described herein.  It is understood and agreed by the Parties hereto that this Section shall survive termination of this agreement.

 

7.         Arbitration.  In order to settle any dispute between the Parties, any controversy or claim arising out of or relating to these Terms and Conditions or Your access to or use of the HPA Website and/or HPA Services, or any related agreements, representations, acts or omissions, shall be settled by arbitration in accordance with the rules of the American Arbitration Association (the “AAA Rules”), except as such rules may be modified herein. The Arbitrator shall be selected by the American Arbitration Association. Judgment upon the award rendered by the arbitrator may be entered in any court having jurisdiction thereof. The arbitration shall include but not be limited to, the determination by the arbitrator of the scope of arbitration and the arbitrability of controversies or claims. The Parties acknowledge and agree that the transactions contemplated by these Terms and Conditions and/or Your use of the HPA Website and/or HPA Services substantially impact interstate commerce as that term is used in the Federal Arbitration Act, 9 U.S.C. §1, et seq., and under Alabama law. The site of such arbitration shall be Tuscaloosa, Alabama.  The Parties agree and understand that they choose arbitration instead of litigation to resolve disputes. The Parties further understand that they have a right or opportunity to litigate disputes through a court, but they prefer to resolve their disputes through arbitration. The Parties voluntarily and knowingly waive any right they have to a jury trial. The decision of the arbitrator shall be final and binding on the Parties, and access to a judicial forum is foreclosed, except to enforce an arbitral decision.  The Parties agree and understand that all disputes arising under case law, statutory law, and all other laws including, without limitation, all contract, tort, and property disputes, whether or not such disputes arise under or are related to these Terms and Conditions or Your access to or use of the HPA Website and/or HPA Services, shall be subject to binding arbitration in accordance with these Terms and Conditions. The Parties agree and understand that the arbitrator shall have all powers provided by law and these Terms and Conditions. These powers shall include all legal and equitable remedies, including, without limitation, money damages, declaratory relief, and injunctive relief.  The Arbitrator shall determine which portion of the fees and expenses charged by the arbitrator shall be paid by each of the Parties.  Notwithstanding the above, the Parties hereby reserve the right to file suit in the Circuit Court of Tuscaloosa County, Alabama for purposes of seeking declaratory, injunctive and/or equitable relief for any dispute with respect to the confidentiality provisions of these Terms and Conditions or any other agreement between HPA and You.

 

8.         Choice of Law.  The Parties expressly agree that these Terms and Conditions, and any matters relating to them or to Your access to or use of the HPA Website or HPA Services, shall be governed and controlled by, the laws, statutes and decisions of the State of Alabama as to interpretation, enforcement, validity, construction, effect and in all other respects, without reference to applicable conflict of laws principles.  The Parties agree that any matters, actions or proceedings arising directly, indirectly, or otherwise in connection with these Terms and Conditions and/or Your access to or use of the HPA Website and/or HPA Services, including all disputes, shall be litigated only in the Circuit Court of Tuscaloosa County, Alabama or the United States District Court for the Northern District of Alabama.  The Parties consent and submit to said jurisdiction and venue in Tuscaloosa County, Alabama, and/or the Northern District of Alabama, and acknowledge that the Parties have had sufficient contacts with the State of Alabama for purposes of in personam and subject matter jurisdiction.  The Parties further waive any right which either may have to transfer or change the venue of any litigation brought against it in accordance with this Section. Notwithstanding the above, these Terms and Conditions and Your access to or use of the HPA Website and/or HPA Services shall be governed and controlled by the Federal Arbitration Act, 9 U.S.C. §1, et seq., with respect to the arbitration of any issues arising out of these Terms and Conditions and/or Your access to or use of the HPA Website and/or HPA Services.

 

9.         Void Where ProhibitedAlthough the HPA Website is accessible worldwide, to comply with local privacy, data protection and other laws, the HPA Services shall not be used outside the United States.  If HPA suspects any use of the HPA Services outside of the United States, HPA may suspend Your use of the HPA Website and the HPA Services, as well as Your username and password.   In addition, HPA reserves the right, in our sole discretion, to limit the provision and quantity of the HPA Services or of any other features, products or services on the HPA Website or in the HPA Training to any person or geographic area.  Any offer for the HPA Services or any other feature, product or service made on the HPA Website is void where prohibited.

 

10.       Headings.  Section headings are not to be considered a part of these Terms and Conditions and are not intended to be a full and accurate description of the contents hereof.

 

11.       No Waiver No failure or delay on the part of HPA in exercising any right, power or remedy under these Terms and Conditions shall operate as a waiver thereof, nor shall any single or partial exercise of any such right, power or remedy preclude any further exercise thereof or the exercise of any other right, power or remedy.

 

12.       Assignment and Sublicense.  You shall not assign or sublicense any of Your duties, rights or obligations under these Terms and Conditions, or delegate the performance of any of Your duties, rights, or obligations hereunder.

 

13.       Modification or Amendment.  It is understood and agreed that HPA has the right to change, alter, modify or amend these Terms and Conditions or any schedule, exhibit, or other attachment to these Terms and Conditions at any time, at its sole discretion.  HPA shall notify You of any material change(s) in these Terms and Conditions and Monthly Fees pertaining to use of the HPA Services by posting the proposed change(s) on the HPA Website for thirty (30) days prior to the effective date of such change(s). HPA also reserves the right to modify or discontinue features and capabilities of the HPA Services, or any portion of the HPA Services, without advance notice for normal maintenance and enhancements, and to modify or update the HPA Training documentation located on the HPA Website. The continued use of HPA Services by You or Your Representatives, if applicable, after such notice shall constitute acceptance of the change. If You object to such modifications, Your sole recourse shall be the discontinuance of Your use of HPA Services.

 

14.       Enforceability.  If any provision of these Terms and Conditions, or any portion thereof, is held to be invalid and unenforceable, then the remainder of these Terms and Conditions shall remain in full force and effect.

 

15.       Force Majeure.  HPA shall be excused from performance hereunder and shall have no liability for any period in which HPA is prevented or delayed from performing any services or other obligations under these Terms and Conditions due to the result of acts, omissions, or events beyond the control of HPA, including but not limited to the delays or interruptions of or caused by Internet transmissions.

 

16.       Authorization.   Any individual entering into these Terms and Conditions on behalf of an entity or organization shall have full authority to enter into these Terms and Conditions on behalf of said entity or organization.

17.       Entire Agreement.  These Terms and Conditions, and any schedule, exhibit, or other document or attachment attached hereto or referenced herein, constitute the entire understanding and agreement of the Parties with regard to Your use of the HPA Website and HPA Training contained therein, and any and all prior agreements, understandings, and representations (oral or written) are hereby terminated and canceled in their entirety and are of no further force and effect.