Prahsys Terms and Conditions

Exhibit D - Terms and Conditions

1. Audit Rights

Each Party shall maintain books, records, documents, and other written evidence, consistent with its normal accounting procedures and practices, sufficient to reasonably and accurately reflect the performance of its obligations under this Agreement. Each Party shall permit the other Party, its designated representatives and independent third parties, including any federal or state regulator with regulatory oversight over such Party, to audit and review the other Party’s books and records related to such Party’s compliance with this Agreement. For the avoidance of doubt, a Party may audit and review the other Party’s books and records related to such Party’s compliance with all exhibits under this Agreement. To the extent reasonable, a Party may produce audit results from an independent, third-party auditor in substitution for permitting an on-site audit by the other Party.

2. Unsecured Obligations of Prahsys; Subordination

2.1

Notwithstanding anything contained herein to the contrary, the obligations of Prahsys to Channel Partner under this Agreement shall be unsecured obligations of Prahsys, which carry no voting rights as it relates to the operations of Prahsys. The obligations in this Agreement are the corporate obligation of Prahsys only and no recourse shall be had against any past, present, or future member or manager of Prahsys directly. The rights and indebtedness evidenced by this Agreement are subordinated and junior in right of payment, to the extent and in the manner enforceable by federal and applicable state laws, to all indebtedness owed by Prahsys to the senior creditor(s) of Prahsys, whether now existing or hereafter arising, plus all interest, expenses, and fees related thereto (such indebtedness, hereinafter referred to as the “Senior Debt”). If at any point in the future, non-senior, unsecured debt financing is obtained by Prahsys, this Agreement shall be senior in its position among all unsecured creditors.

2.2

If applicable, upon the Administrative Agent’s receipt of notice from a Senior Creditor of a default by Prahsys under the Senior Debt, Prahsys shall stop making payments under this Agreement and the Administrative Agent shall stop accepting such payments. Any payments received by the Administrative Agent, if applicable, and/or Channel Partner after receipt of such notice shall be held in trust by the Administrative Agent, if applicable, for the benefit of the Senior Creditor(s) and shall be immediately paid over to Senior Creditor(s), or its designated representative, for application to the payment of the Senior Debt, until all the Senior Debt is paid in full.

2.3

If applicable, upon request by Prahsys, or Senior Creditor(s) and provided that no unexcused default shall have occurred under this Agreement, Channel Partner hereby authorizes the Administrative Agent to enter into a mutually-acceptable and commercially reasonable subordination agreement with any Senior Creditor, on behalf of Channel Partner that is a Party to this Agreement, subordinating Prahsys’s obligations to Channel Partners to the extent and in the manner set forth in the paragraph above up to the lesser of (a) the principal amount of the indebtedness to such Senior Creditor, or (b) the outstanding amounts owed to Channel Partner.

2.4

If there shall occur any receivership, insolvency, assignment for the benefit of creditors, bankruptcy, reorganization, or arrangements with creditors (whether or not pursuant to bankruptcy or other insolvency laws), sale of all or substantially all of the assets, dissolution, liquidation, or any other marshaling of the assets and liabilities of Prahsys, (i) no amount shall be paid by Prahsys to Channel Partner unless and until the principal amount of the Senior Debt has been paid in full, and (ii) no claim or proof of claim shall be filed with Prahsys by or on behalf of Channel Partner that is a Party to this Agreement which shall assert any right to receive any payments except subject to the payment in full of the principal of and interest on all of the Senior Debt then outstanding.

2.5

Subject to the foregoing paragraphs, nothing contained in this Section 7 shall impair, as between Prahsys and Channel Partner, the obligation of Prahsys, subject to the terms and conditions hereof, to pay to Channel Partner the Quarterly Revenue Share as and when the same become due and payable, or shall prevent Channel Partner and the Administrative Agent, if applicable, upon default hereunder, from exercising all rights, powers and remedies otherwise provided herein or by applicable law.

3. Confidential Information

3.1 Obligations

3.1.1

The receiving Party shall exercise, at a minimum, the same degree of care to prevent unauthorized use, access to, acquisition or disclosure of the other Party’s Confidential Information as it normally takes to prevent the unauthorized use or disclosure of its own proprietary information of like kind, but in no event less than a commercially reasonable degree of care. The receiving Party shall refrain from using the Confidential Information except as necessary in performing its obligations under this Agreement and shall limit use or disclosure to individuals needing to know the information to perform their obligations under this Agreement. Neither Party shall disclose the negotiated pricing or terms of this Agreement to any third party, and any such disclosure shall be a material breach of this Agreement, except that, (1) if requested by Prahsys to meet its due diligence and regulatory requirements, Channel Partner may disclose such information as necessary to comply with such requirements, provided that any recipient is bound by confidentiality obligations at least as protective as those contained herein, and (2) a Party may disclose the fact that the other Party is a client and the commercial terms of this Agreement to potential investors and acquirers in connection with a bona fide financing or acquisition due diligence. In any event, each Party shall be liable for any breach of the obligations defined within this section by its respective personnel, external or internal auditors or independent contractors.

3.1.2

As requested by a Party during the Term upon any termination of this Agreement, the other Party shall return or destroy, as the requesting Party may direct, all material in any medium that contains, the requesting Party’s Confidential Information and retain no copies (except those necessary to comply with regulatory requirements applicable to the retaining Party) or pursuant to their data retention policies. Any destruction pursuant to this section shall be certified in writing.

3.2 Exclusions

The restrictions set forth regarding Confidential Information shall not apply to information which a Party can demonstrate in writing (i) was, at the time of disclosure to it, in the public domain; (ii) after disclosure to it, is published or otherwise becomes part of the public domain through no fault of the receiving Party; (iii) was in the legal possession of the receiving Party at the time of disclosure to it without a duty of confidentiality; (iv) was received after disclosure to it from a third party who had a lawful right to disclose such information to such Party without confidentiality restrictions; or (v) was independently developed by the receiving Party without reference to Confidential Information of the disclosing Party.

3.3 Legally Required Disclosures

Nothing in this Agreement shall prevent, limit or restrict the receiving Party and/or any of its affiliates (and/or it’s or their representatives) from disclosing any Confidential Information or other information to any governmental authority or regulator that seeks, requests or requires any such information (including in connection with any audit, examination or filing) and, accordingly, any obligations of confidentiality or non-disclosure and limitations thereon (including prior notice and cooperation) set forth herein shall not apply to any such disclosure; provided, if the receiving Party is required by a governmental authority or applicable law to disclose any Confidential Information of the disclosing Party, the receiving Party must first, if legally permissible, give written notice of the required disclosure to the disclosing Party; take reasonable steps to allow the disclosing Party to seek to protect the confidentiality of the Confidential Information required to be disclosed; and then disclose only that part of the Confidential Information which, in the written opinion of its legal counsel, it is required to disclose.

3.4 Loss of Confidential Information

In the event of any unauthorized disclosure or loss of, or inability to account for, any Confidential Information of the disclosing Party, the receiving Party shall promptly, at its own expense: (i) notify the disclosing Party in writing, (ii) take reasonable steps to minimize the violation; and (iii) reasonably cooperate with the disclosing Party to minimize any damage resulting therefrom.

3.5 No Implied Rights

Nothing contained in this Agreement shall be construed as obligating a Party to disclose its Confidential Information to the other Party or as granting to or conferring on a Party, express or implied, any rights or license to the Confidential Information.

3.6 Prior Non-Disclosure Agreement

Notwithstanding any termination of this Agreement, all the receiving Party’s obligations pursuant to this Agreement survive (i) with respect to Confidential Information (other than Trade Secrets), for so long as such information continues to be confidential pursuant to the terms of this Agreement; (ii) with respect to Trade Secrets, for so long as the information continues to constitute a trade secret under applicable law; and (iii) with respect to customer data, for so long as required by applicable law.

3.7 Equitable Relief

If either Party or its affiliates breached or threatens to breach any provision regarding its obligations with respect to Confidential Information, then the non-breaching Party, in addition to any other remedy it may have at law or in equity, shall be entitled to seek a restraining order, injunction or other similar remedy to specifically enforce the provisions of this Agreement without proving actual damages or posting bond or other security. Each Party specifically acknowledges that money damages alone would be an inadequate remedy for the injuries and damages that would be suffered and incurred by the non-breaching Party or its affiliates from a breach of any provision of this Agreement related to the Confidential Information.

3.8 Trade Secrets

Nothing herein shall be deemed to adversely affect or otherwise waive any rights or remedies available at law or equity that a disclosing Party may have for protection of its Trade Secrets. “Trade Secret” means any proprietary information of a Party, including technical or non-technical data, formulas, patterns, compilations, computer programs, code and software, devices, drawings, prototypes, samples, processes, methods, techniques, data, lists of actual or potential customers and suppliers and other business information which (i) such Party derives economic value, actual or potential, from not being generally known to or readily ascertainable by other persons who can obtain economic value from its disclosure or use; and (ii) is the subject of efforts by the disclosing Party or its affiliates that are reasonable under the circumstances to maintain its secrecy.

4. Intellectual Property

4.1 Existing IP

The Parties acknowledge and agree that no collaborative development of intellectual property will occur under this Agreement and each Party retains ownership of its intellectual property. Each Party maintains ownership of its intellectual property and, except as otherwise expressly described in Section 9(b) of this Agreement, will not be deemed to grant to the other Party a license under any patents, copyrights or other intellectual property rights.

4.2 Trademark, Trade Name and Other Marks

4.2.1

Any and all trademarks, trade names, service marks, logos and titles owned by or licensed to Prahsys including, without limitation, those used by Prahsys under this Agreement (the “Prahsys Marks”) shall remain the sole and exclusive property of Prahsys. Prahsys grants Channel Partner a limited right during the Term of this Agreement to reproduce Prahsys Marks as necessary for, and for the sole purpose of, promoting and marketing the services pursuant to the terms of this Agreement. Channel Partner acknowledges and agrees that, except for the limited right to use Prahsys Marks as expressly granted to it in this Section 9(b), nothing in this Agreement gives Channel Partner any right, title or interest in, to or under Prahsys Service or any intellectual property rights therein. Upon Prahsys’s request, Channel Partner agrees to supply Prahsys with samples of any materials which use or include any Prahsys Marks at no cost, and Prahsys may, in its sole discretion, approve or disapprove any such use. If Prahsys disapproves of any such use, Channel Partner shall immediately cause such use to cease. All goodwill arising out of any use of Prahsys Marks in connection with this Agreement will inure to the sole benefit of Prahsys. Channel Partner shall not contest the validity of any of Prahsys Marks or Prahsys’s exclusive ownership of them. Channel Partner shall not adopt, use, or register, whether as a corporate name, trademark, service mark, or other indication of origin, any of Prahsys Marks, or any word or mark confusingly similar to them in any jurisdiction.

4.2.2

Any and all trademarks, trade names, service marks, logos and titles owned by or licensed to Channel Partner including, without limitation, those used by Channel Partner under this Agreement (the “Channel Partner Marks”) shall remain the sole and exclusive property of Channel Partner. Channel Partner grants Prahsys a limited right during the Term of this Agreement to reproduce Channel Partner Marks as necessary under this Agreement. Prahsys acknowledges and agrees that, except for the limited right to use Channel Partner Marks as expressly granted to it in this Section 9(b), nothing in this Agreement gives Prahsys any right, title or interest in, to or under Channel Partner Marks or any or any intellectual property rights therein. All goodwill arising out of any use of Channel Partner Marks in connection with this Agreement will inure to the sole benefit of Channel Partner. Prahsys shall not contest the validity of any of Channel Partner Marks or Channel Partner’s exclusive ownership of them. Prahsys shall not adopt, use, or register, whether as a corporate name, trademark, service mark, or other indication of origin, any of Channel Partner Marks, or any word or mark confusingly similar to them in any jurisdiction.

5. Representations

5.1 Channel Partner represents continuously during the Term of this Agreement:

5.1.1

Channel Partner is a legal entity, duly formed and validly existing under the laws of the state of its organization, and has full power and authority to execute, deliver, and perform its obligations under this Agreement. Performance of this Agreement has been duly authorized and such performance is not in conflict with and does not violate the terms of the organizational documents of Channel Partner and shall not result in a material breach of or constitute a default under or require any consent under any material indenture, loan, or agreement to which Channel Partner is a party.

5.1.2

This Agreement constitutes a legal, valid, and binding obligation of Channel Partner, enforceable against Channel Partner in accordance with its terms, except (1) as such enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium, or other similar laws now or hereafter in effect, and (2) as such enforceability may be limited by general principles of equity.

5.1.3

All licenses, approvals, authorizations, consents, and other actions by, notices and disclosures to, and filings with any person, have been obtained or shall be acquired in connection with this Agreement, including, but not limited to, obtaining all required approvals and licenses to receive the Quarterly Revenue Share. Channel Partner is not subject to any agreement with any governmental authority that would prevent the consummation by Channel Partner of the transactions contemplated by this Agreement.

5.1.4

There are no proceedings or investigations pending or, to the best knowledge of Channel Partner, threatened against Channel Partner (1) asserting the invalidity of this Agreement, (2) seeking to prevent the consummation of any of the transactions contemplated by Channel Partner pursuant to this Agreement, (3) seeking any determination or ruling that, in the reasonable judgment of Channel Partner, would materially and adversely affect Channel Partner’s ability to perform this Agreement, (4) seeking any determination or ruling that would materially and adversely affect the validity or enforceability of this Agreement, or (5) that would have a materially adverse financial effect on Channel Partner or its operations if resolved adversely to it.

5.1.5

Channel Partner’s acceptance and usage of Quarterly Revenue Share contemplated by this Agreement will not be in violation of any other law or regulation.

5.1.6

Channel Partner may benefit from and rely on the representations and warranties made by Prahsys and may enforce this Agreement for its benefit with respect to any breach of the representations and warranties.

5.2

Channel Partner agrees to promptly notify Prahsys if any of the representations and warranties set forth in this Agreement are no longer materially true and accurate.

5.3 Prahsys represents continuously during the Term of this Agreement:

5.3.1

Prahsys is a legal entity, duly formed and validly existing under the laws of the state of its organization, and has full power and authority to execute, deliver, and perform its obligations under this Agreement. Performance of this Agreement has been duly authorized and such performance is not in conflict with and does not violate the terms of the organizational documents of Prahsys and shall not result in a material breach of or constitute a default under or require any consent under any material indenture, loan, or agreement to which Prahsys is a party.

5.3.2

This Agreement constitutes a legal, valid, and binding obligation of Prahsys, enforceable against Prahsys in accordance with its terms, except (1) as such enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium, or other similar laws now or hereafter in effect, and (2) as such enforceability may be limited by general principles of equity.

5.3.3

All approvals, authorizations, consents, and other actions by, notices and disclosures to, and filings with any person, where the lack of such would have a material adverse effect on the performance of this Agreement by Prahsys, have been obtained or shall be acquired prior to providing services under the Agreement in which give rise to the need for such a license. Prahsys is not subject to any agreement with any governmental authority that would prevent the consummation by Prahsys of the transactions contemplated by this Agreement.

5.3.4

There are no proceedings or investigations pending or, to the best knowledge of Prahsys, threatened against Prahsys (1) asserting the invalidity of this Agreement, (2) seeking to prevent the consummation of any of the transactions contemplated by Prahsys pursuant to this Agreement, (3) seeking any determination or ruling that, in the reasonable judgment of Prahsys, would materially and adversely affect Prahsys’s ability to perform this Agreement, (4) seeking any determination or ruling that would materially and adversely affect the validity or enforceability of this Agreement, or (5) that would have a materially adverse financial effect on Prahsys or its operations if resolved adversely to it.

5.3.5

Prahsys may benefit from and rely on the representations and warranties made by Channel Partner and may enforce this Agreement for its benefit with respect to any breach of the representations and warranties.

5.4

Prahsys agrees to promptly notify Channel Partner if any of the representations and warranties set forth in this Agreement are no longer materially true and accurate.

6. Termination

6.1 Termination of Agreement

This Agreement and Prahsys’s obligation to pay the Quarterly Revenue Share shall automatically renew at the end of the Initial Term unless terminated by either party by providing written notice to the other party at least ninety (90) days before the Initial Term’s expiration, in which case it will continue until the expiration of the Renewal Term. Beginning one (1) year from the Effective Date of this Agreement, Prahsys may terminate this Agreement at any time by providing a notice to Channel Partner pursuant to Section 11 hereof at least 30-days in advance. If this Agreement is terminated, at the end of the Initial Term or at another time, Channel Partner shall continue to receive Payments of Quarterly Revenue Share, as outlined in Exhibit B, for four full calendar quarters following the effective date of termination. Exhibit B will be in full effect during this additional four calendar quarters.

7. Post-Termination Obligations

Upon termination of this Agreement: (i) the Parties will work in good faith to implement an orderly wind-down of the Agreement, including Prahsys’s transfer of its obligations to a new payment services provider, (ii) except in the event of Channel Partner’s uncured material breach, the total amount of all due and unpaid Quarterly Revenue Share will be paid to Channel Partner by a date agreed upon by both Parties; (iii) each Party will return the Confidential Information of the other Party, in accordance with this Agreement and applicable law; and (iv) upon Prahsys’s written request up to thirty (30) days after date that Prahsys makes the final Quarterly Revenue Share payment to Channel Partner, or longer as required by law, Channel Partner will make the data related to this Agreement available to Prahsys in a mutually agreed to format at Channel Partner’s then current professional services rates.

8. Events of Default; Remedies

Each of the following events constitutes an “Event of Default” for purposes of this Agreement:

8.1

If three (3) consecutive payments of the Quarterly Revenue Share due to Channel Partner are not paid by Prahsys to Channel Partner on or prior to the due date, to the extent the delay is not excused, as defined in this Agreement, and each such non-payment continues for a period of five (5) business days thereafter, regardless of whether any previous payments remain outstanding.

8.2

If any single payment of the Quarterly Revenue Share due to Channel Partner is not paid by Prahsys to Channel Partner on or prior to the due date, to the extent the delay is not excused, as defined in this Agreement, and the non-payment continues for a period of sixty (60) days thereafter.

8.3

An involuntary proceeding has been commenced or an involuntary petition has been filed seeking (i) liquidation, reorganization or other relief in respect of either Party or any of its debts, or of a substantial part of its assets, under any federal, state or foreign bankruptcy, insolvency, receivership or similar law now or hereafter in effect or (ii) the appointment of a receiver, trustee, custodian, sequestrator, conservator or similar official for the Party or for a substantial part of its assets, and, in any such case, such proceeding or petition has continued undismissed for sixty (60) days or an order or decree approving or ordering any of the foregoing has been entered.

8.4

Either Party has (i) voluntarily commenced any proceeding or filed any petition seeking liquidation, reorganization or other relief under any federal, state or foreign bankruptcy, insolvency, receivership or similar law now or hereafter in effect, (ii) consented to the institution of, or failed to contest in a timely and appropriate manner, any proceeding or petition described in clause (c) immediately above, (iii) apply for or consent to the appointment of a receiver, trustee, custodian, sequestrator, conservator or similar official for the Party or for a substantial part of its assets, (iv) file an answer admitting the material allegations of a petition filed against it in any such proceeding, (v) make a general assignment for the benefit of creditors or (vi) take any action for the purpose of effecting any of the foregoing.

8.5

If (i) either Party breaches any other covenant contained in this Agreement, and such breach continues for a period of thirty (30) days (or five (5) business days for payment breaches) after the non-breaching Party delivers written notice of the breach to the breaching Party, or (ii) any representation or warranty made in this Agreement by either Party shall be materially incorrect when made or deemed made.

9. Liability of Administrative Agent

If applicable, neither any Administrative Agent nor any person to whom such Administrative Agent has delegated authority to act within the scope of such Administrative Agent’s authority shall (i) be liable for any action taken or omitted to be taken by any of them under or in connection with this Agreement (except for its own gross negligence or willful misconduct), or (ii) be responsible in any manner to Prahsys or Channel Partner for any statement, representation or warranty made by Prahsys to Channel Partner or by Channel Partner to Prahsys, or the validity, effectiveness, genuineness, enforceability or sufficiency of this Agreement, or for any failure of Channel Partner or Prahsys to perform its respective obligations hereunder.

10. Indemnification

Channel Partner agrees to indemnify and defend Prahsys, its affiliates, and all directors and officers of each, from and against any and all liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements of any kind or nature whatsoever (other than those expenses and costs to be borne by Prahsys in the ordinary course of its or its Administrative Agent’s fulfillment of services under this Agreement), which may be imposed on, incurred by, or threatened or otherwise asserted against Prahsys in any way relating to or arising out of this Agreement or any action taken or omitted under this Agreement, provided that Channel Partner shall not be liable for any portion of such liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements resulting from the Administrative Agent’s, if applicable, gross negligence or willful misconduct.

11. Limitation of Liability

11.1 Limitation on Damages

Except with respect to (i) Prahsys’s payment of Channel Partner’s agreed-upon revenue share, in no event shall Prahsys’s aggregate liability arising out of or related to this Agreement, whether in contract, tort, or any other theory of liability, exceed the total amount of revenue received by Prahsys from payment processing services under this Agreement during the six (6) month period immediately preceding the event giving rise to such liability.

11.2 Exclusion of Certain Damages

In no event shall Prahsys be liable to Channel Partner or any third party for any indirect, incidental, special, consequential, exemplary, or punitive damages (including, but not limited to, damages for loss of profits, revenue, or data) arising out of or in connection with this Agreement, even if Prahsys has been advised of the possibility of such damages.

11.3 Sole Remedy

Channel Partner acknowledges that its sole and exclusive remedy with respect to any failure by Prahsys to pay any amounts owed under this Agreement shall be the payment of any outstanding revenue share allocation due and payable to Channel Partner.

12. Arbitration Agreement

12.1

Prahsys shall determine, in its sole discretion and on a good-faith basis, if any dispute, controversy or claim brought by Channel Partner arising out of, relating to or in connection with the Agreement, including the breach, termination, or validity hereof or thereof, shall be resolved by final and binding arbitration. Channel Partner irrevocably and unconditionally agrees that any such dispute, controversy or claim brought by Channel Partner arising out of, relating to or in connection with the Agreement, including the breach, termination, or validity hereof or thereof, shall be resolved by final and binding arbitration to be administered by a single arbiter of the American Arbitration Association (the “AAA”), in accordance with its Commercial Arbitration rules (the “AAA Rules”), which can be found here: https://www.adr.org/sites/default/files/CommercialRules\_Web-Final.pdf. The arbiter shall have the sole power to rule on any challenge to its own jurisdiction and all issues regarding arbitrability shall be decided solely by the arbitral tribunal. The place of arbitration shall be Woodlands, Texas. The arbitrator shall rule in accordance with the laws of the State of Texas without regard to conflicts of law provisions that would require the application of the laws of another jurisdiction. The tribunal shall have the power to grant any provisional or final remedy or relief that it deems appropriate, including conservatory measures and an award of attorneys’ fees. The language of the arbitration shall be English.

12.2

Channel Partner and Prahsys hereby agree to keep confidential the existence of the arbitration, the arbitral proceedings, the submissions made by the parties and the decisions made by the arbitral tribunal, including its awards to the extent not already in the public domain, except in judicial proceedings related to the award or where required by applicable law.

12.3

Channel Partner irrevocably and unconditionally waives, to the fullest extent permitted by applicable law, any objection that it may now or hereafter have to the laying of venue of any action or proceeding arising out of or relating to the Agreement in any such court. Each of Channel Partner and Prahsys hereby irrevocably waives, to the fullest extent permitted by applicable law, the defense of an inconvenient forum to the maintenance of such action or proceeding in any such court.

12.4 CLASS ACTION WAIVER

NEITHER CHANNEL PARTNER NOR COMPANY WILL HAVE THE RIGHT TO PARTICIPATE IN A CLASS ACTION, PRIVATE ATTORNEY GENERAL ACTION, OR OTHER REPRESENTATIVE ACTION IN COURT OR IN ARBITRATION, EITHER AS A CLASS REPRESENTATIVE OR CLASS MEMBER.

12.5

Further, unless both Channel Partner and Prahsys agree otherwise in writing, the arbitrator may not join or consolidate claims of either Channel Partner or Prahsys with claims of any other persons. The arbitrator shall have no authority to conduct any class, private attorney general, or other representative proceeding, and shall award declaratory or injunctive relief only in favor of the party seeking relief and only to the extent necessary to provide relief warranted by that party’s individual claim. The arbitrator shall have no authority to issue any relief that applies to any person except Channel Partner and Prahsys individually. If any portion of this Section 15 cannot be enforced, the rest of this Section 15 will continue to apply, except that (a) if a determination is made in a proceeding involving Channel Partner and Prahsys that the class action waiver is invalid or unenforceable with respect to a claim that does not seek public injunctive relief, only this sentence of this Section 15 will remain in force and the remainder of this Section 15 shall be null and void, provided that the determination concerning the class action waiver shall be subject to appeal, and (b) if a claim is brought seeking public injunctive relief and a court determines that the restrictions in the class action waiver prohibiting the arbitrator from awarding relief on behalf of third parties are unenforceable with respect to such claim (and that determination becomes final after all appeals have been exhausted), the claim for public injunctive relief will be determined in a court in Texas and any individual claim seeking monetary relief will be arbitrated. In such a case, the parties will request that the court stay the claim for public injunctive relief until the arbitration award pertaining to individual relief has been entered in court. In no event will a claim for public injunctive relief be arbitrated.

13. Waiver of Court Rights

To the extent any dispute, controversy or claim are subject to arbitration pursuant to Section 15 hereof, the Parties acknowledge that they will not have a right to litigate claims through court proceedings, and that the arbitration process may limit each parties’ rights to engage in discovery proceedings or to appeal an adverse decision. The parties hereby knowingly and voluntarily waive their rights to sue each other in a court for any claims that are subject to arbitration under Section 15, except (i) as provided by the rules of the arbitration forum in which a claim is filed, or (ii) as necessary to enforce an arbitration award.

14. Waiver

No waiver of any term, provision, or condition of this Agreement, whether by conduct or otherwise, in one or more instances, shall be deemed to be, or construed as, a further or continuing waiver of any such term, provision, or condition, or of any other term, provision, or condition of this Agreement.

15. Force Majeure

Neither Party shall be liable for any failure or delay in performance under this Agreement (other than for delay in the payment of money due and payable hereunder) to the extent said failures or delays are proximately caused by causes beyond that Party’s reasonable control and occurring without its fault or negligence, including, without limitation, acts of God, strikes, lockouts, riots, acts of war, acts of terrorism, epidemics, pandemics, government orders, system outages, network failures, or other disasters.

16. Notices

All notices and other communications hereunder shall be in writing and shall be deemed duly delivered if delivered personally (upon receipt), or one (1) business day after being delivered by a recognized overnight delivery service, or upon transmission, if sent via electronic mail (with confirmation of receipt, provided that a copy is also sent by overnight delivery service within one business day). Notices to each party shall be addressed as follows:

if to Prahsys, to:

Prahsys Inc. 9595 Six Pines Drive Bldg. 8, Level 2, Ste. 8210 The Woodlands, TX 77380 support@prahsys.com

if to Channel Partner, to the address set forth on the signature page to the Agreement.

Any party may specify a different address for notices to be sent by providing at least five (5) days’ prior written notice of such change in address to the other parties.

17. Entire Agreement and Amendments

This Agreement may not be modified or amended except pursuant to a written instrument signed by Prahsys, Channel Partner, and the Administrative Agent (if the Administrative Agent is a Party to this Agreement). Except as otherwise expressly provided herein, this Agreement represents the entire agreement between the relevant parties regarding the subject matter hereof and supersedes all prior or contemporaneous communications, promises, and proposals, whether oral, written, or electronic, between them.

18. Severability

In case any provision contained in this Agreement should be invalid, illegal, or unenforceable in any respect, the validity, legality, and enforceability of the remaining provisions contained herein shall not in any way be affected or impaired thereby.

19. Successors and Assigns

The rights and benefits of this Agreement shall inure to the benefit of, and be enforceable by, the Parties’ respective permitted successors and assigns. The rights and obligations of Channel Partner under this Agreement may only be assigned with the prior written consent of Prahsys.

20. Governing Law and Venue

This Agreement shall be governed by, and construed in accordance with, the internal laws of the State of Texas, without giving effect to the principles of conflicts of law. The state and federal courts located in Montgomery County, Texas shall have exclusive jurisdiction and venue for any matters that cannot be arbitrated or to enforce arbitration awards.

21. Counterparts

This Agreement may be executed in two or more counterparts, each of which shall constitute an original, but all of which, when taken together, shall constitute one instrument, and shall become effective when one or more counterparts have been signed by each party hereto and delivered to the other party.

22. Medical Data Governance

Channel Partner shall and shall cause its practitioners to follow strict data governance protocols when collecting and processing medical data. All medical data used for analysis, research, and artificial intelligence (AI) training is anonymized before processing to comply with applicable laws and ethical guidelines.

23. Practitioner Agreements on Data Use

Channel Partner shall require its practitioners associated with Prahsys to ensure that any patient data provided for AI training is fully anonymized.