Terms of Service

These Terms of Service (the “Agreement”) set forth the terms and conditions under which individuals may use the Herewith platform for coordinating and facilitating management of in-home elder care, which includes Herewith’s mobile software applications (including the Herewith Care/Pro app), websites, documentation and all other aspects of the complete Herewith ecosystem (the “Services”). Please read this Agreement before using the Services. You are entering into a legal contract with Herewith, Inc. (“Herewith”, “we” or “us”) and you hereby accept the terms of and agree to this Agreement and you represent and warrant that you have the right, authority and capacity to enter into this Agreement. If you object to anything in this Agreement, do not use the Services. IMPORTANT NOTICE: THIS AGREEMENT INCLUDES AN ARBITRATION PROVISION REQUIRING BINDING ARBITRATION OF DISPUTES AND A WAIVER OF CERTAIN RIGHTS TO JURY TRIALS AND/OR CLASS ACTIONS. IF YOU DON’T WANT TO BE SUBJECT TO ARBITRATION, YOU CAN OPT OUT OF THE ARBITRATION PROVISION BY FOLLOWING THE INSTRUCTIONS PROVIDED AT THE END OF THE ARBITRATION PROVISION.

1 . Our Services

Herewith offers various Services to help its users find, coordinate, and monitor care for elders or individuals who require non-medical in-home care (users coordinating such care for themselves or on behalf of another individual, a “Care Recipient”). The Services we offer include, among others, assisting Care Recipients in locating individuals who provide in-home care (each, a “Caregiver”), enabling Caregivers to receive and monitor certain data from a Care Recipient (with such Care Recipient’s consent), and otherwise enabling communication between a Care Recipient and one or more Caregivers, who have agreed to coordinate care for such Care Recipient (a “Care Group”). Herewith Services do not include any medical, diagnostic, treatment or clinical service, nor does Herewith engage in any conduct that requires a professional license. Herewith reserves the right to modify or update the Services from time to time, or to suspend or discontinue our Services, or any part of our Services, at any time. Herewith will not be liable to you or to any third party should it exercise such rights. If any modifications or updates to the Services are made available to you by Herewith, the terms of this Agreement will govern such updates, unless the update is accompanied by a separate license in which case the terms of that license will apply.

2. Your Account

Whether you are a Care Recipient or a Caregiver, you will need to register and create an account to use certain of our Services (“Service Account”). You must be at least 18 years old and reside in the United States to create a Service Account and to use our Services. In addition, you agree that: - You will register your account in your own legal name, even if you are coordinating care for another individual or family member and will otherwise provide accurate, current and complete information in connection with your registration for a Service Account and use of the Services; - You are solely responsible for any and all use of your Service Account and all activities that occur under or in connection with your Service Account; - You will not allow another person to use our Services with your Service Account; - You will not access our Services under anyone else’s Service Account; - You will not use your Service Account for any commercial or promotional purpose; - You will not use any of our Services to create, receive, maintain or transmit any sensitive information or data, including “protected health information” (as defined in 45 CFR § 160.103 and other applicable law), or use our Services in any manner that would make Herewith your or any third party’s “business associate,” as defined under 45 CFR § 160.103 and other applicable law; - If Herewith disables your Service Account, you will not create another Service Account without our consent; and - You are responsible for maintaining the confidentiality and security of your Service Account credentials. Herewith is not responsible for any losses arising from the unauthorized use of your Service Account. You will notify us immediately if you find out that your Service Account is being used without your permission. You may choose to link your Services Account with, and/or share data using your Services Account with, other users of the Services (such as a Care Recipient linking their Services Account to one or more Caregivers in a Care Group). You are solely responsible for any decisions to link your Services Account to other users and/or to share any information or communicate with such other users. Herewith reserves the right, but is not obligated, to utilize third party service providers to verify on an ongoing basis that Service Account data submitted by you is accurate. You agree that Herewith may conduct any such verification and take such action in response as it deems appropriate in its sole discretion, including without limitation suspending and/or terminating your access to the Services.

3. Privacy

Your privacy is important to us. Our Privacy Policy (available at Herewith.com/privacy) describes how we collect, use, and disclose information about you. Please read our Privacy Policy carefully so you understand how we use and share information we collect about you.

4. Your Use of the Services

You may be able to interact with others through our Services, including by viewing content created by others or communicating with others. You are solely responsible for your interactions with other people through our Services. Herewith may, but has no obligation to, monitor your (or another user’s) use of the Services to ensure that you are following these acceptable use requirements. You agree that you will not, nor enable or permit others to: - Use our Services in a way that negatively affects others or our ability to provide the Services; - Use our Services to provide inaccurate information or for any illegal or unauthorized purpose; - Use any technology or other means not authorized by us to access our Services or to extract data; - Attempt to gain unauthorized access to any Services, including by trying to circumvent any restrictions; - Attempt to decipher, decompile, reverse engineer, disassemble, reproduce, modify, copy, distribute, publicly perform, publicly display or create derivative works of the Services or the source code of the software used to provide the Services (except as and only to the extent permitted by applicable law); - Use our Services in excess of any applicable technical or capacity limitations; - Use our Services to create a competitive product or service, or for benchmarking or vulnerability testing purposes, except as authorized by Herewith in writing; - Share data regarding another individual using the Services without their consent; or - Infringe upon or violate the rights of Herewith, other people in our community, or any third party.

5. Service Limitations and Risks

Using an online platform such as Herewith’s Services, which consist of primarily user-generated content and for the purpose of connecting with other individuals who are not employed by Herewith, comes with inherent risks. By using Herewith’s Services, you hereby agree to assume all such risks, including, without limitation, as follows: By using our Services, you understand that Herewith does not endorse or actively review any content posted or sent by others within our Services, including content describing Caregivers or Care Recipients. Herewith will not be responsible for any liability incurred as the result of your interactions with others, your use of content provided by other people, or your decision to share your information with others. Your use of any content provided by other people, any interactions with others, and any decision to share your information with others is your responsibility and at your own risk. In addition, Herewith does not employ any Caregivers, does not refer or recommend Caregivers, and is not responsible for the conduct, whether online or offline, of any Caregiver, Care Recipient, or other user of the Services. Herewith does not make any representations about the suitability, reliability, timeliness, or accuracy of the information or services provided by Caregivers or Care Recipients, or their integrity, responsibility or suitability to provide or receive care. Care Recipients and Caregivers are solely responsible for their decision(s) to interact with other Care Recipients or Caregivers (whether online or offline), to form Care Groups, or to enter into any employment relationship (whether in connection with the provision of care or otherwise). Caregivers are solely responsible for the care they provide and, if you are a Care Recipient, you hereby agree to assume all risks associated with any care provided by a Caregiver, including, without limitation, the risk of illness, injury or death. While Herewith takes certain steps to assist Care Recipients in identifying appropriate Caregivers, such as requiring that Caregivers whose accounts are enabled to interact with Care Recipients through the Services undergo limited Initial Background Checks (as described below) and displaying certain information about Caregivers (such as whether they have insurance), those steps are limited in scope. Care Recipients are solely responsible for interviewing, vetting, performing any background and reference checks they deem appropriate on, verifying information provided by, and selecting an appropriate Caregiver for themselves or on behalf of another. If you are a Care Recipient, you hereby agree you will not rely solely on any steps taken by Herewith in selecting a Caregiver. Care Recipients are further responsible for compliance with all applicable employment and other laws in connection with any employment relationship they establish with a Caregiver. Herewith does not control, monitor, or supervise any services provided by Caregivers, including whether services are performed at all. While Herewith’s Services may include features for managing, tracking, or arranging payment for care, Herewith does not pay Caregivers or otherwise guarantee that Caregivers will be paid for care. Care Recipients and Caregivers are solely responsible for their own conduct, whether online through Herewith’s Services or offline, and for making all employment and payment arrangements. Any disputes or other issues between Care Recipients and Caregivers must be resolved with among such Care Recipients and Caregivers – Herewith will not be responsible for resolving any such issues. YOU HEREBY REPRESENT, UNDERSTAND, AND EXPRESSLY AGREE TO RELEASE AND HOLD HEREWITH AND HEREWITH’S OFFICERS, DIRECTORS, SHAREHOLDERS, EMPLOYEES, PARENTS, SUBSIDIARIES, OTHER AFFILIATES, SUCCESSORS, ASSIGNEES, AGENTS, AND REPRESENTATIVES (“AFFILIATES”) HARMLESS FROM ANY CLAIM OR CONTROVERSY THAT MAY ARISE OUT OF THE ACTIONS OR INACTIONS OF, ANY INFORMATION PROVIDED BY, OR THE RELATIONSHIP BETWEEN, YOU AND ANY CAREGIVER, CARE RECIPIENT, OR OTHER USER(S) OF THE SERVICES. WITHOUT LIMITING ANY OTHER PROVISION OF THIS AGREEMENT, HEREWITH AND ITS AFFILIATES EXPRESSLY DISCLAIM ANY LIABILITY WHATSOEVER FOR ANY DAMAGE, SUIT, OR CLAIM ARISING FROM THE FOREGOING.

6. Background Checks

Herewith requires individuals who have registered as Caregivers and wish to provide care to Care Recipients using Herewith’s Services to complete an initial background check from third-party consumer reporting agencies (“Initial Background Check”), the scope of which shall be at Herewith’s discretion. Users who join Herewith’s Services as Caregivers but who do not agree to complete an Initial Background Check will have only limited access to certain Herewith Services and will not be visible to Care Recipients through Herewith’s Services. Initial Background Checks require payment of a fee by the applicable Caregiver requesting such Initial Background Check. While Herewith requires an Initial Background Check from all Caregivers whose accounts are enabled to interact with Care Recipients through the Services, such Initial Background Checks are limited and should not be taken as complete, accurate, up-to-date or conclusive evidence of the accuracy of any information those Caregivers have provided or of their eligibility to use the Services. Caregivers and Care Recipients may also have the opportunity to request additional background checks, on a one-time or recurring basis (“Additional Background Checks” and collectively with the Initial Background Check, “Background Checks”). All Additional Background Checks require payment of a separate fee by the individual who is initiating the Additional Background Check request and are subject to the consent of the Caregiver on whom the Background Check is being performed. Each of these Background Checks is regulated by the Fair Credit Reporting Act ("FCRA"), and the reports (“Background Reports”) resulting from these services are considered "consumer reports" under FCRA. Consumer reports may contain information on character, general reputation, personal characteristics, and mode of living, including but not limited to consumer credit, criminal history, workers' compensation, driving, employment, military, civil, and educational data and reports. If you are a Caregiver and you authorize an Additional Background Check ordered by a Care Recipient, the applicable Background Report will be made available to the Care Recipient who ordered it, regardless of its contents. Results of the Initial Background Check will not be shared with any Care Recipients without your specific authorization. All Background Checks made available by Herewith will be performed using a third-party service provider (currently, Checkr). In requesting or authorizing a Background Check, you acknowledge and agree that Checkr may contact you regarding such Background Check and that you may be required to agree to additional terms and conditions with Checker in order to proceed with such Background Check. ## Use of Background Reports by Herewith Herewith will receive a copy of each Background Report for any Background Check that you order or authorize through Herewith. If you are a Caregiver, you acknowledge and agree that Herewith may review and use any Background Checks you have ordered or authorized about yourself for the purpose of protecting the safety and integrity of Herewith’s Services and its users. Herewith reserves the right to terminate your access to Herewith’s Services based on the information contained in such Background Report, even if such information was subsequently removed or changed. If Herewith terminates your access to the Services on the basis of information in a Background Report, we will notify you and provide you the name and contact information of the consumer reporting agency that created the Background Report. We will also provide you a copy of the Background Report unless the consumer reporting agency has already provided you a copy or access to it. You agree that Herewith is under no obligation to reinstate your access to the Services even if the information that led to the termination is subsequently changed or corrected. Furthermore, any inaccuracies in Background Reports must be addressed with the consumer reporting agency that issued it and not Herewith. ## Use of Background Reports by Care Recipients The use of any Background Reports, including by Care Recipients, is governed by the FCRA and certain state laws. If you are a Care Recipient using a Background Report, you will have to (i) comply with the FCRA and any applicable state laws in using such Background Report (a summary of such responsibilities can be found here: http://www.ftc.gov/tips-advice/business-center/guidance/using-consumer-reports-what-employers-need-know) and (ii) if there is negative data in a Background Report you receive, and you choose not to engage such Caregiver or take any other adverse action on that basis, you must follow certain procedures more information is available at: http://www.ftc.gov/tips-advice/business-center/guidance/using-consumer-reports-what-employers-need-know). These procedures include required notices of your decision and the subject's right to contest the accuracy or completeness of the Background Report. You are responsible for making any required notifications yourself. If the subject contests the report with the consumer reporting agency, you are required to suspend the hiring process while the agency researches the accuracy and completeness of the Background Report.

Limitations and Release

Background Checks are based on the information made available by the underlying report agencies, which may be limited in scope. In addition to legal and reporting system limitations of Background Checks, each Background Check is performed with the authorization of the person being checked, using information he or she provides, such as home address, social security number, date of birth, and name. If the subject of a Background Check provides incorrect information, the Background Check might be run with inaccurate identifying data, which can impact the validity of such Background Check. Finally, records are not always reported accurately or promptly, and human and electronic error can result in inaccurate or incomplete reporting. Consequently, even the most comprehensive background check may not disclose the existence of all negative information. You hereby represent, understand and expressly agree that Herewith does not have control over or assume any responsibility for the quality, accuracy, or reliability of Background Checks or the information included in Background Reports. You hereby further agree to release, indemnify and hold harmless Herewith from any loss, liability, injury, death, damage, or costs that may result from your use of, reliance on, or sharing of the information contained in a Background Check or a Background Report, whether as a Caregiver or Care Recipient, regardless of the cause, including, without limitation, due to the inaccuracy or incompleteness of any such information.

7. Insurance Checks

Herewith may offer Caregivers the opportunity to confirm that such Caregivers have obtained insurance coverage for care services that they may provide (“Insurance Checks”). If you are a Caregiver who has requested an Insurance Check, Herewith will ask you to provide certain information, including a copy of your current certificate of insurance. Herewith may indicate in your profile that you have completed an Insurance Check. You may be obligated to periodically re-perform any Insurance Check in order to retain any such indication in your profile. Information that you share in connection with your Insurance Check will not be shared with any Care Recipients without your specific authorization.

8. Payments

If you make any purchases with Herewith, such as a Background Check, you authorize us (or our third-party payment processor) to charge your payment method for the total amount of your purchase (including any applicable Taxes (as defined below) and other charges). We may accept various forms of payment, including credit and debit cards. Unless otherwise indicated, the purchase price will be billed in full at the time you make your purchase. When you make sure a purchase, you represent and warrant that you are authorized to use the payment method you use. By providing your payment information, you authorize us (or our third-party payment processor) to not only process your payment but also store your payment and related information. In the event the payment method you designate cannot be verified, is invalid, or is not otherwise acceptable, we may suspend or cancel your order. You are responsible for resolving any problems we encounter in order to proceed with your order. If your purchase is subject to any type of use or sales tax, duty or other governmental tax or fee (“Taxes”), then we may charge you for those Taxes. You are responsible for any Taxes due with respect to your purchase.

9. Pre-Release Materials and Confidentiality

You may have the opportunity to receive certain pre-release Herewith features, functionality, services or other materials, at Herewith’s option. Your use of any pre-release materials are subject to the confidentiality obligations below and may be conditioned on your acceptance of additional terms that we provide you. In the event of any conflict between the terms provided for any pre-release materials and this Agreement, the other terms will govern your use of the pre-release materials. You acknowledge that you may receive non-public information relating to Herewith, its business, products, services, and related intellectual property (collectively, “Confidential Information”) in connection with your use of any pre-release materials. You agree to keep the Confidential Information confidential, not to publish or disclose any Confidential Information to a third party, and only use such information to the extent necessary to use the Services (including any such pre-release materials you are provided, under this Agreement. You will use at least a reasonable standard of care in maintaining the confidentiality of the Confidential Information. Your obligations with respect to Confidential Information will continue even after you have stopped using the Services and/or pre-release materials. You agree to destroy or return any Confidential Information at Herewith’s request. You also acknowledge that if you breach your confidentiality obligations, it will cause immediate and irreparable injury to Herewith and Herewith will have the right to seek and obtain injunctive relief, and to pursue any other remedies available at law or in equity, without being required to show any actual damage or irreparable harm, prove the inadequacy of its legal remedies, or post any bond or other security.

10. Your Content

Our Services may include features and areas where you can create, upload, store, and/or share data, notes, or other content with us or others (“Your Content”). Herewith does not have any ownership rights in Your Content, but you hereby grant Herewith a worldwide, irrevocable (except as set forth below), perpetual, non-exclusive, transferable, royalty-free and fully sublicensable right and license to use, copy, display, store, adapt, and distribute Your Content so that Herewith can operate, deliver, and improve our Services. The license granted to Herewith to display or distribute Your Content is revocable by you if and when you choose to independently remove or delete any of Your Content uploaded to features of our Services (e.g., notes functionality that we may provide), to the extent that such Services provide the functionality to do so. You are solely responsible for Your Content. You agree that any Content that you post, upload or transmit to or through the Services is solely for the purpose of coordinating or managing care, or for finding or sharing information relating to care. Herewith has no obligation to review, approve, monitor, endorse, reject, refuse to post, screen, edit, move or remove any of Your Content or similar content created by other members of our community from our Services, but may choose to do so at any time, including if Your Content violates this Agreement. In addition, Herewith may also decide to suspend or remove your Services Account. You represent and warrant that you either control or own Your Content, or you have obtained all rights necessary to share Your Content in compliance with this Agreement and Your Content, and our use of Your Content as permitted under this Agreement, will not infringe, misappropriate or violate any third party’s intellectual property rights, or rights of publicity or privacy, or result in the violation of any applicable laws, rules, or regulations.

11. Feedback

You may choose to provide Herewith with ideas, feedback, or suggestions for us about our existing products and services including the Services (“Feedback”). If you provide Herewith with Feedback, you hereby grant Herewith a non-exclusive, perpetual and irrevocable license to use and exploit such Feedback for any purpose, including to incorporate such Feedback within its products and services, without providing payment or any other consideration to you. Herewith has no confidentiality or other obligations with respect to your Feedback. You are solely responsible for Your Content. You agree that any Content that you post, upload or transmit to or through the Services is solely for the purpose of coordinating or managing care, or for finding or sharing information relating to care. Herewith has no obligation to review, approve, monitor, endorse, reject, refuse to post, screen, edit, move or remove any of Your Content or similar content created by other members of our community from our Services, but may choose to do so at any time, including if Your Content violates this Agreement. In addition, Herewith may also decide to suspend or remove your Services Account. You represent and warrant that you either control or own Your Content, or you have obtained all rights necessary to share Your Content in compliance with this Agreement and Your Content, and our use of Your Content as permitted under this Agreement, will not infringe, misappropriate or violate any third party’s intellectual property rights, or rights of publicity or privacy, or result in the violation of any applicable laws, rules, or regulations.

12. Third-Party Materials and Web Sites

We may make available through our Services certain additional services, features, or content provided by third parties (“Third-Party Materials”). Your use of Third-Party Materials made available through the Services may be subject to additional terms and conditions of the third party. Herewith has no responsibility or liability with respect to your access to, or use of, the Third-Party Materials. Our Services may also contain links or provide access to other web sites or other online services operated by third parties. Those third-party services are not under our control, and we are not responsible for the content on any third-party service or any link contained in a third-party service. We provide these links only as a convenience and we don’t have any obligation to review, approve, monitor, endorse, move, remove, warrant, or make any representations with respect to third-party services.

13. Suspension/Termination

We may immediately terminate this Agreement and consequently your access to our Services at any time if you violate this Agreement, create possible legal liability or if your use of the Services poses a health or safety risk. If we terminate this Agreement: (i) your Service Account will be deactivated and Your Content may be inaccessible, deleted, or deactivated, and (ii) your rights and obligations under this Agreement will terminate (other than those provisions that survive as described below). You may also remove your Service Account at any time, which will terminate this Agreement (other than those provisions that survive as described below). We will not have any liability for any termination of this Agreement for any of the reasons described above.

14. Intellectual Property

The software, code, proprietary methods and systems used to provide the Services (“Herewith Technology”) is owned by Herewith and/or our licensors under United States and international intellectual property laws. You must abide by all legal notices, information, or restrictions contained in, or attached to, any Herewith Technology. Nothing in this Agreement grants you any rights to receive Herewith Technology or to obtain access to Herewith Technology except as generally and ordinarily permitted through the Services, in accordance with this Agreement. Furthermore, nothing in this Agreement will be deemed to grant, by implication, estoppel or otherwise, a license to Herewith Technology. The names, logos, and other business identifiers displayed on the Services constitute trademarks, tradenames, service marks or logos (“Marks”) of Herewith. You are not authorized to use any Marks. Ownership of all such Marks and the goodwill associated with those Marks remain with Herewith.

15. Indemnity

You will defend, hold harmless, and indemnify Herewith, its affiliates and its and their directors, officers, employees, agents, successors and assigns, from and against any third-party allegation or claim based on, or any loss, damage, settlement, cost, expense and any other liability (including reasonable attorneys’ fees incurred and/or those necessary to successfully establish the right to indemnification) (collectively, “Claims”) arising from or related to your breach of any term of this Agreement.

16. Warranty Disclaimer and Limits on Liability

TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, WE ARE PROVIDING OUR SERVICES ON AN “AS IS” BASIS FOR USE AT YOUR OWN RISK. WE DISCLAIM ALL WARRANTIES WITH RESPECT TO OUR SERVICES (INCLUDING ANY THIRD-PARTY MATERIALS OR CONTENT AVAILABLE THROUGH OUR SERVICES) PROVIDED UNDER THIS AGREEMENT, WHETHER EXPRESS, IMPLIED, OR STATUTORY, INCLUDING, WITHOUT LIMITATION, ANY WARRANTIES OF NON-INFRINGEMENT OF THIRD-PARTY RIGHTS, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUIET ENJOYMENT, NON-INTERFERENCE, SYSTEM INTEGRATION, LOSS OR CORRUPTION OF DATA, OR ACCURACY. WE DO NOT WARRANT THAT YOUR USE OF OUR SERVICES (INCLUDING ANY THIRD-PARTY MATERIALS OR CONTENT AVAILABLE THROUGH OUR SERVICES) PROVIDED UNDER THIS AGREEMENT WILL BE UNINTERRUPTED, ERROR-FREE, VIRUS-FREE OR SECURE. WE ALSO MAKE NO REPRESENTATIONS OR WARRANTIES AND DISCLAIM ALL WARRANTIES OR LIABILITY, WHETHER EXPRESS, IMPLIED, OR STATUTORY, ON BEHALF OF ANY OF OUR AFFILIATES, AGENTS, SUPPLIERS, DISTRIBUTORS, PARTNERS, OR LICENSORS (“HEREWITH PARTIES”). THE FEATURES AND FUNCTIONALITY OF OUR SERVICES (INCLUDING ANY THIRD-PARTY MATERIALS OR CONTENT AVAILABLE THROUGH OUR SERVICES) MAY CHANGE AT ANY TIME AND HEREWITH DISCLAIMS ANY RESPONSIBILITY FOR SUCH CHANGES OR ANY STATEMENTS HEREWITH MAKES OR HAS MADE ABOUT THE EXISTENCE OF SUCH FEATURES OR FUNCTIONALITY. OUR SERVICES ARE NOT INTENDED OR SUITABLE FOR USE IN SITUATIONS OR ENVIRONMENTS WHERE THE FAILURE OR TIME DELAYS OF, OR ERRORS OR INACCURACIES IN THE DATA OR INFORMATION PROVIDED BY OUR SERVICES COULD LEAD TO DEATH, PERSONAL INJURY, OR SEVERE PHYSICAL OR ENVIRONMENTAL DAMAGE. IN NO EVENT WILL HEREWITH BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR IN CONNECTION WITH OUR SERVICES (INCLUDING ANY THIRD-PARTY MATERIALS OR CONTENT AVAILABLE THROUGH OUR SERVICES), WHETHER OR NOT WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. HEREWITH’S TOTAL CUMULATIVE LIABILITY IN CONNECTION WITH THIS AGREEMENT OR OUR SERVICES, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, WILL NOT EXCEED THE GREATER OF THE PRICE YOU PAID FOR THE SERVICES GIVING RISE TO THE APPLICABLE CLAIM OR TWENTY-FIVE DOLLARS ($25). THE FOREGOING LIMITATIONS OF LIABILITY APPLY TO THE FULLEST EXTENT ALLOWED BY LAW. THE LIMITATIONS OF DAMAGES SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN HEREWITH AND YOU. THE FOREGOING CAP ON LIABILITY WILL NOT APPLY TO LIABILITY OF HEREWITH FOR DEATH OR PERSONAL INJURY CAUSED BY HEREWITH’S GROSS NEGLIGENCE IN CONNECTION WITH THE SERVICES; OR FOR ANY DAMAGES CAUSED BY HEREWITH’S FRAUD OR FRAUDULENT MISREPRESENTATION, INTENTIONAL MISCONDUCT OR GROSS NEGLIGENCE.

17. Modifications to this Agreement

Herewith reserves the right to change and make additions to this Agreement at any time. If we do, we’ll use reasonable efforts to notify you, for example, by sending a notification to your Service Account and/or giving notice through our Services. Unless we say otherwise in our notice, the revised Agreement will be effective immediately and your continued use of your Service Account after we provide notice of the changes will confirm your acceptance of the revised Agreement. We encourage you to review the Agreement from time to time to ensure you understand the terms and conditions that apply to your use of the Services.

18. Governing Law and Venue

This Agreement will be governed by the laws of the State of California, without reference to rules governing choice of laws or the U.N. Convention on Contracts for the International Sale of Goods. If either of us has a claim against the other, most claims or disputes will be resolved by binding arbitration, as described in the Arbitration Provision below. However, to the extent this Agreement permits litigation in court, you hereby irrevocably consent to and waive any objection to the exclusive jurisdiction and venue of the federal and state courts located at Santa Clara County, California with respect to any claims, suits or proceedings arising out of or in connection with this Agreement or the Services.

19. Compliance

You will comply with all applicable laws and regulations and will not, without prior government authorization, export, re-export, or transfer Herewith products, services (including the Services) or technology, either directly or indirectly, in violation of such laws and regulations. You represent and warrant that you (a) are not located in, under the control of, or a national or resident of any country to which the United States has embargoed goods or services, or that has been designated by the U.S. Government as a “terrorist supporting” country; (b) have not been identified as a “Specially Designated National” by the Office of Foreign Assets Control; (c) have not been placed on the U.S. Commerce Department’s Denied Persons List;” and (d) will not use our Services if any applicable laws in your country prohibit you from doing so in accordance with this Agreement.

20. Communications

You hereby consent to receive communications from us about your Service Account in an electronic form, whether via email or posting on our Services or other reasonable means; and agree that all terms and conditions, agreements, notices, disclosures, and other communications that we send to you electronically satisfy any legal requirement that such communications must be in writing. If you have any questions about this, please reach out to hello@herewith.com.

21. General Provisions

This Agreement is personal to you, and you may not assign or delegate your right and/or duties under this Agreement to anyone else. Any attempted assignment or delegation is void. You acknowledge that we have the right to seek an injunction, if necessary, to stop or prevent your violation of this Agreement. Any delay or failure by us to exercise or enforce any right or provision of this Agreement will not constitute a waiver of such right or provision. No waiver by us will have effect unless such waiver is in writing, signed by us. No waiver of any breach or default in one instance will constitute a waiver of any subsequent breach or default. If for any reason a court of competent jurisdiction finds any provision of this Agreement to be unenforceable, that provision of this Agreement will be enforced to the maximum extent permissible so as to effect the intent of the parties, and the remainder of this Agreement will continue in full force and effect. This Agreement constitutes the entire agreement between us with regard to your access to and use of the Services.

22. Survival

Following any termination of this Agreement, Herewith has the right to continue to use Your Content and the Feedback you have provided to us in the ways permitted by this Agreement (subject to your rights above), and the following provisions will also continue to apply: Suspension/Termination, Intellectual Property, Warranty Disclaimer and Limits on Liability, Governing Law and Venue, Compliance, General Provisions, Survival, and the Arbitration Provision.

23. Agreement to Arbitrate and Waiver of Class Action

Please carefully read the following agreement to arbitrate and waiver of class action (“Arbitration Provision”). It requires you to arbitrate disputes with Herewith and limits the manner in which you can seek relief from us. It prevents you from bringing any class, collective, or representative action against Herewith, it prevents you from participating in or recovering any relief in any class, collective, or representative action anyone else might bring against Herewith, and it prevents you from suing Herewith in court or from having a jury trial in most cases. You can opt out of this Arbitration Provision by following the instructions below.

Applicability of Arbitration Provision

You agree that any dispute or claim relating in any way to this Agreement, including this Arbitration Provision, to our privacy policy or data security generally, or otherwise related to the Services or our apps (“Disputes”) will be resolved by binding arbitration, rather than in court, except that (a) you may assert claims in small claims court if your claims qualify, so long as the matter remains in such court and advances only on an individual (non-class, non-representative) basis; (b) you or Herewith may seek equitable relief in court for infringement or other misuse of intellectual property rights (such as trademarks, trade dress, domain names, trade secrets, copyrights, and patents); and (c) Herewith may seek equitable relief in court (including an injunction), if necessary, to stop or prevent your violation of this Agreement. This Arbitration Provision will apply, without limitation, to all Disputes that arose or were asserted before this Agreement or any prior version of this Agreement were in effect, as well as to all Disputes arising thereafter.

Waiver of Class Relief

WHETHER THE DISPUTE IS HEARD IN ARBITRATION OR IN COURT, YOU AGREE THAT YOU AND HEREWITH WILL NOT COMMENCE AGAINST THE OTHER, OR PARTICIPATE IN, A CLASS ACTION, CLASS ARBITRATION OR OTHER REPRESENTATIVE ACTION OR PROCEEDING. YOU AND HEREWITH ARE EACH WAIVING RESPECTIVE RIGHTS TO A TRIAL BY JURY OR TO PARTICIPATE IN A CLASS ACTION.

Arbitration Rules and Forum

The Federal Arbitration Act governs the interpretation and enforcement of this Arbitration Provision. To begin an arbitration proceeding, you must send a letter requesting arbitration and describing your claim to <a href="https://arbitration@herewith.com" target="_blank" rel="noopener">arbitration@herewith.com</a>. The arbitration will be conducted by JAMS, an established alternative dispute resolution provider. Disputes will be subject to JAMS’s most current version of the Comprehensive Arbitration Rules and Procedures, available here. JAMS’s rules are also available here or by calling JAMS at 800-352-5267. If JAMS is not available to arbitrate, the parties will jointly select an alternative arbitral forum. If the arbitrator finds that you cannot afford to pay JAMS’s filing, administrative, hearing and/or other fees (“Arbitration Fees”) and cannot obtain a waiver from JAMS, Herewith will pay them for you. Herewith will not seek attorneys’ fees and costs in arbitration unless the arbitrator determines the claims are frivolous. You may choose to have the arbitration conducted by telephone, based on written submissions, or in person in the country where you live or at another mutually agreed location. Any final decision made by the arbitrator may be entered in any court of competent jurisdiction.

Authority of Arbitrator

The arbitrator, and not any federal, state or local court or agency, will have exclusive authority to resolve any dispute related to the interpretation, applicability, enforceability or formation of this Agreement, including this Arbitration Provision including, but not limited to, any claim that all or any part of this Agreement or this Arbitration Provision are void or voidable. The arbitrator will decide the rights and liabilities, if any, of you and Herewith. The arbitration proceeding will not be consolidated with any other matters or joined with any other cases or parties. The arbitrator will have the authority to grant motions dispositive of all or part of any claim. The arbitrator will have the authority to award monetary damages and to grant any non-monetary remedy or relief available to an individual under applicable law, the arbitral forum’s rules, and this Agreement (including the Arbitration Provision). The arbitrator will issue a written award and statement of decision describing the essential findings and conclusions on which the award is based, including the calculation of any damages awarded. The arbitrator has the same authority to award relief on an individual basis that a judge in a court of law would have. The award of the arbitrator is final and binding upon you and us.

Waiver of Jury Trial

ALL CLAIMS AND DISPUTES WITHIN THE SCOPE OF THIS ARBITRATION PROVISION MUST BE ARBITRATED ON AN INDIVIDUAL BASIS AND NOT ON A CLASS BASIS, ONLY INDIVIDUAL RELIEF IS AVAILABLE, AND CLAIMS OF MORE THAN ONE PERSON CANNOT BE ARBITRATED OR CONSOLIDATED WITH THOSE OF ANY OTHER PERSON. In the event that this subparagraph is deemed invalid or unenforceable, neither you nor Herewith are entitled to arbitration and instead claims and disputes will be resolved in a court as set forth in the Governing Law and Venue section above.

Waiver of Class or Consolidated Actions

ALL CLAIMS AND DISPUTES WITHIN THE SCOPE OF THIS ARBITRATION PROVISION MUST BE ARBITRATED ON AN INDIVIDUAL BASIS AND NOT ON A CLASS BASIS, ONLY INDIVIDUAL RELIEF IS AVAILABLE, AND CLAIMS OF MORE THAN ONE PERSON CANNOT BE ARBITRATED OR CONSOLIDATED WITH THOSE OF ANY OTHER PERSON. In the event that this subparagraph is deemed invalid or unenforceable, neither you nor Herewith are entitled to arbitration and instead claims and disputes will be resolved in a court as set forth in the Governing Law and Venue section above.

Right to Opt Out

You have the right to opt out of the provisions of this Arbitration Provision by sending written notice of your decision to opt out to the following address: Herewith, Inc., Attn: Arbitration, 225 Bush Street, Suite 1850, San Francisco, CA 94104, and/or arbitration@herewith.com within 30 days after first becoming subject to this Arbitration Provision. Your notice must include your name and address, your Service Account username, and an unequivocal statement that you want to opt out of this Arbitration Provision. If you opt out of this Arbitration Provision, all other provisions of this Agreement will continue to apply to you. Opting out of this Arbitration Provision has no effect on your agreement to the rest of this Agreement or your agreement to any other arbitration agreements that you may currently have, or may enter in the future, with us. If you opt out of this Arbitration Provision, Herewith will likewise not be bound by this Arbitration Provision.

Severability

If any part or parts of this Arbitration Provision are found under the law to be invalid or unenforceable, then such specific part or parts will be of no force and effect and will be severed and the remainder of the Arbitration Provision will continue in full force and effect.

Survival of Provision

This Arbitration Provision will survive the termination of your relationship with Herewith.

Modification

Notwithstanding any provision in this Agreement to the contrary, we agree that if we make any future material change to this Arbitration Provision, such change will not apply to any individual claims of which you had already provided notice to Herewith.

herewith