Terms and Conditions

LAST UPDATED August 23RD, 2022

David Melvin Coaching, LLC Terms of Service

melvincoach.com (

https://www.

melvincoach.com),
including all of its related applications, dashboards, or platforms
(individually and collectively, the “Website”), is owned and operated by David
Melvin Coaching, LLC. (“

David Melvin Coaching,” “we,”“us,” or “our”). By using, installing, or
accessing the Website or Services (as defined below), by signing or clicking to
accept these terms or any Subscription Documentation (as defined below)
referencing these terms, you agree to be bound by the following terms and
conditions, including David Melvin Coaching Privacy Policy (together, these
“Terms”, or this “Agreement”).

If you are using a David Melvin Coaching Service on behalf of a company,
organization, or other entity, then “Client” or “you” means that entity, and
you are binding that entity to this Agreement. You represent and warrant that
you have the legal power and authority to enter into this Agreement and that,
if the Client is an entity, this Agreement is entered into by an employee,
agent, or other authorized representative with all necessary authority to bind
that entity to this Agreement.

This Agreement includes and hereby incorporates by reference any
Subscription Documentation executed between you and David Melvin Coaching, as
well as any policies or exhibits linked to or referenced herein. If you have
entered into a separate written agreement with David Melvin Coaching concerning
specific Services, the terms of such agreement control if there is any conflict
between the terms of such agreement and these Terms. Please note that we may
modify this Agreement as described in Section 16.10 below.

1. DEFINITIONS.

1.1. “Business Associate Agreement” (hereinafter “BAA”) means a written
agreement between a covered entity and a business associate containing the
elements specified at 45 CFR 164.504(e).

1.2. “Confidential Information” means code, inventions, know-how, product
plans, technical and financial, business, operational, or other information
exchanged under this Agreement or learned during the performance of this
Agreement, or that is identified as confidential at the time of disclosure or
should reasonably be considered confidential based on the circumstances
surrounding the disclosure and the nature of the information disclosed.

1.3. “HIPAA” means the Health Information Technology for Economic and
Clinical Health Act of 2009 (the “HITECH Act”), the Administrative
Simplification section of the Health Insurance Portability and Accountability
Act of 1996, as codified at 42 U.S.C. §1320d through d-8, as amended from time
to time, and the requirements of any regulations promulgated under either the
HITECH Act or HIPAA, including, without limitation, the federal privacy
regulations as contained in 45 C.F.R. Parts 160 and 164, the federal security
standards as contained in 45 C.F.R. Parts 160 and 162, and the federal
standards for electronic transactions contained in 45 C.F.R. Parts 160, all as
may be amended from time to time.

1.4. "Law(s)” means all applicable local, state, federal, and
international laws, rules, and regulations, or amendments thereto, including
but not limited to the Federal Trade Commission’s Telemarketing Sales Rule, the
Telephone Consumer Protection Act of 1991, the Health Insurance Portability and
Accountability Act of 1996, the Gramm-Leach-Bliley Act of 1999, the CAN-SPAM
Act, Do Not Call rules and prohibitions, and Canada’s Anti-Spam Legislation
(“CASL”).

1.5. “Protected Health Information” (hereinafter “PHI”) has the same meaning
as that term is defined in HIPAA.

1.6. “Territory” means the United States, Canada, and Australia, unless
otherwise expressly set forth in Client’s Subscription Documentation.

Other terms are defined in other Sections of this Agreement.

2. SERVICES.

2.1. Services.

David Melvin Coaching provides a proprietary multi-product platform that
includes without limitation reputation management tools (“Reviews” and
“Feedback”), messaging and communication tools (“Inbox,” “Webchat,”
“Automations,” “Voice,” and “Campaigns”), payment processing and related
services (“Payments”), certain Free Access Subscription or Beta Releases (as
defined below), and any other services David Melvin Coaching may offer from
time to time (together with the Website, the “Service(s)”). Client will, from
time to time, enter into a proposal, quote, services/purchase agreement, order
form, statement of work, or otherwise click to accept or agree to an online
registration form, which references this Agreement (“Subscription
Documentation”) and details the Services ordered from David Melvin Coaching
and, if applicable, the usage limits or other scope of use descriptions for the
Services (including without limitation any usage or volume limits, numerical
limits on Authorized Users, and descriptions of product feature levels) (the
“Scope of Use”). Client may be provided the option to purchase certain Services
as part of a package or bundle offer (each, a “Bundle”), as detailed in the
applicable Subscription Documentation. The Services included in David Melvin
Coaching’s Bundles are currently specified at https://www.melvincoach.com.

David Melvin Coaching has no obligation to provide any services or perform
any tasks not specifically set forth in this Agreement, including any
applicable Subscription Documentation.

2.2. Alteration of Subscription Documentation. Any amendments or
modifications to any existing Subscription Documentation must be agreed to in
writing by the parties. David Melvin Coaching has no obligation to perform any
Services under any amended Subscription Documentation until the parties have
agreed to the effect of such changes on the applicable Fees.

2.3. Modification of the Services. David Melvin Coaching reserves the right
to modify or discontinue the Services at any time (including by limiting or
discontinuing certain features of the Services), or to alter the offering of
the Services (including by adding, limiting, or discontinuing certain Bundle
offers) temporarily or permanently. David Melvin Coaching also reserves the
right to replace certain Services and Bundles with functionally equivalent
Services or Bundles, at its sole discretion. In the event David Melvin Coaching
makes any modification or alteration to the Services or the offering thereof
that has a material adverse effect on the functionality of the Services ordered
under your Subscription Documentation, Client may terminate this Agreement and
receive a pro-rated refund of pre-paid unused Fees for the remainder of
Client’s Subscription Term (as defined below).

2.4. Additional Terms. Client’s subscription to or use of certain Services
may be subject to additional terms, policies, rules, or guidelines applicable
to the Services or certain features of the Services that we may post on or link
to from these Terms or the Services (the “Additional Terms”). To the extent
applicable, all Additional Terms are incorporated by this reference into, and
made a part of, these Terms. If Client purchases or otherwise uses any

3. USE RIGHTS; RESTRICTIONS.

3.1. Use of Services. Subject to all terms and conditions of this Agreement,
including any Additional Terms, David Melvin Coaching grants Client a
non-exclusive, non-transferable, non-sublicensable, revocable, limited right
and license during the applicable Subscription Term and within the Territory (to
the extent available in the Territory) to: (a) install and use an object code
copy of any mobile application associated with the Services; and (b) access and
use the Services, designated on Client’s Subscription Documentation solely for
Client’s internal business purposes, but only in accordance with this
Agreement, the applicable Subscription Documentation, and all applicable Scope
of Use descriptions. Although the Services may be accessible worldwide, David
Melvin Coaching makes no representation that the Services are appropriate or
available for use in locations outside the Territory (or that all products or
features of the Services are available throughout the Territory). Furthermore,
accessing the Services from territories where their content or use is illegal,
is prohibited under this Agreement. Those who choose to access the Services
from other locations do so at their own initiative and are responsible for
compliance with local laws and any costs associated with access or use outside
the Territory. You may not use or export the Services in violation of U.S.
export laws and regulations.

3.2. Account Registration. Client must register for a David Melvin Coaching
account in order to access or receive the Services. Account information must be
accurate, current, and complete, and will be governed by David Melvin Coaching’s
Privacy Policy as may be amended from time to time. Client agrees to keep its
account information up to date so that David Melvin Coaching may send notices,
statements, and other information by email or through Client’s account. By
using or accessing the Website, Client agrees and consents to David Melvin
Coaching’s use of cookies in accordance with the terms of David Melvin Coaching’s
Privacy Policy. Client is solely responsible for all use of its Services
account(s). David Melvin Coaching will not be liable for any loss or damage
arising from unauthorized use of Client’s account(s).

3.3. Eligibility and Use by Others. By agreeing to these Terms, Client
warrants that it and its employees, agents, contractors, and any other users
(including but not limited to Developer Partners or Third-Party Providers) whom
Client has authorized to access the Services on its behalf (“Authorized
Users”): (a) are over 18 years old; (b) have not previously been suspended or removed
from the Services; and (c) will comply with all Laws when using the Services.
Client may permit its Authorized Users to use the Services provided their use
is for Client’s benefit only and remains in compliance with this Agreement.
Authorized Users are and will be subject to the applicable terms and conditions
of this Agreement, which may be communicated by posting to the Website or on a
click-through basis to Authorized Users upon access to the Services and/or
Website.

3.4. Responsibility for Authorized Users. Client will be responsible and
liable for all Authorized Users’ use and access and their compliance with this
Agreement. Client will be solely responsible for authorizing and creating user
IDs, passwords, and other access credentials for Authorized Users. Client is
solely responsible for determining its Authorized Users and restricting and/or
terminating the rights of such users during the Subscription Term, as Client
deems appropriate. Provided, however, David Melvin Coaching may, in its sole
discretion, suspend any Authorized User’s access to the Services. Client is
solely responsible for ensuring that any user IDs, passwords, and other access
credentials (such as API tokens) for the Services are kept strictly
confidential and not shared with any unauthorized person. Additionally, Client
is solely responsible for complying, and ensuring its Authorized Users comply,
with all Laws applicable to Client. Client will be solely responsible for any
and all actions taken using its and its Authorized Users’ accounts, passwords,
or access credentials. Client must notify David Melvin Coaching within
twenty-four (24) hours of any breach of security or unauthorized use of its
account. Use by all Authorized Users in aggregate will count towards any
applicable Scope of Use restrictions.

3.5. Use by Customers. Any person that is a client, customer, or patient of
Client, or that is a potential client, customer, or patient of Client
(“Customer(s)”) who accesses and/or uses the Services, including via Client’s
account or website, are subject to the Acceptable Use Policy and such other
terms as may be provided by David Melvin Coaching from time to time, which
includes David Melvin Coaching’s right to remove or disable access to any
Customer or content or resource that violates the Acceptable Use Policy.

3.6. General Restrictions. Client must not (and must not allow any third
party to): (a) rent, lease, copy, transfer, sublicense, or provide access to
the David Melvin Coaching Technology (as defined below) to a third party
(except Authorized Users as specifically authorized above); (b) incorporate the
David Melvin Coaching Technology (or any portion thereof) into, or use it with
or to provide, any site, product, or service; (c) use the David Melvin Coaching
Technology (or any portion thereof) for time-sharing purposes or for a third
party’s benefit; (d) publicly disseminate information regarding the performance
of the David Melvin Coaching Technology (which is deemed David Melvin Coaching’s
Confidential Information); (e) modify or create a derivative work of the David
Melvin Coaching Technology or any portion thereof; (f) reverse engineer,
disassemble, decompile, translate, or otherwise seek to obtain or derive the
source code, underlying ideas, algorithms, file formats, or non-public APIs to
any David Melvin Coaching Technology or Services, except to the extent
expressly permitted by applicable Law and then only upon advance notice to David
Melvin Coaching; (g) break or circumvent any security measures or rate limits
for Services; (h) distribute any portion of the David Melvin Coaching
Technology other than as specifically permitted above; (i) use the Services in
violation of the Acceptable Use Policy; or (j) remove or obscure any
proprietary or other notices contained in the David Melvin Coaching Technology
including in any reports or output obtained from the David Melvin Coaching
Technology.

3.7. Beta Releases and Free Access Subscriptions. Subject to Client’s
compliance with the terms of this Agreement, David Melvin Coaching may provide
Client with certain Services for free or on a trial basis (a “Free Access
Subscription”) or with “alpha”, “beta”, or other early-stage Services,
integrations, or features (“Beta Releases”) for the Subscription Term set forth
in the applicable Subscription Documentation (if applicable). This Section 3.7
and any relevant Additional Terms will apply to any Free Access Subscription or
Beta Release (even if a Beta Release is provided for a fee or counts towards
Client’s Scope of Use allocations) and supersedes any contrary provision in
this Agreement. For the avoidance of doubt, Section 6 (Availability of
Services; Support) will not apply to any Free Access Subscription or Beta
Release. David Melvin Coaching may use good faith efforts in its discretion to
assist Client with Free Access Subscriptions or Beta Releases. Without limiting
the other disclaimers and limitations in this Agreement, TO THE EXTENT
PERMITTED UNDER APPLICABLE LAW, CLIENT AGREES THAT ANY FREE ACCESS SUBSCRIPTION
OR BETA RELEASE IS PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS WITHOUT ANY
WARRANTY, SUPPORT, MAINTENANCE, STORAGE, SLA, OR INDEMNITY OBLIGATIONS OF ANY
KIND. WITH RESPECT TO BETA RELEASES, CLIENT FURTHER ACKNOWLEDGES AND AGREES
THAT BETA RELEASES MAY NOT BE COMPLETE OR FULLY FUNCTIONAL AND MAY CONTAIN
BUGS, ERRORS, OMISSIONS, AND OTHER PROBLEMS FOR WHICH DAVID MELVIN COACHING
WILL NOT BE RESPONSIBLE. ACCORDINGLY, ANY USE OF A BETA RELEASE IS AT CLIENT’S
SOLE RISK. You may choose to use Free Access Subscriptions and Beta Releases at
your sole discretion. David Melvin Coaching makes no guarantees or promises
with respect to the continued availability of any Free Access Subscriptions or
Beta Releases or that future versions of a Free Access Subscription or Beta
Release will be released or will be available under the same commercial or
other terms. David Melvin Coaching may discontinue Beta Releases at any time,
in our sole discretion, and decide not to make any Beta Releases generally
available. Notwithstanding anything to the contrary herein, David Melvin
Coaching may terminate Client’s right to use any Free Access Subscription or
Beta Release at any time for any reason or no reason in David Melvin Coaching’s
sole discretion, without liability.

4. CLIENT DATA.

4.1. Rights in Client Data. As between the parties, Client retains all
right, title, and interest (including any intellectual property rights) in and
to any text, images, or other content and data that Client selects or submits
for use or incorporation with the Services (including without limitation, chat
and message logs, Customer Data, PHI, or any Third-Party Content) (“Client
Data”). “Customer Data” means data related to the identity, characteristics,
and activities of Customers, collected or submitted to the Services by Client
or captured by the Services. To the extent Client is a Covered Entity or a
Business Associate, as those terms are defined in HIPAA, “Client Data” also
includes PHI. “Third-Party Content” means content, data, or other materials that
Client provides to the David Melvin Coaching Services from its third-party data
providers, including through Third-Party Products (as defined below) used by
Client. Client hereby grants David Melvin Coaching a non-exclusive, worldwide,
royalty-free right and license to collect, use, copy, store, transmit, modify,
and create derivative works of the Client Data solely to the extent necessary
to provide the Services and related services to Client and as otherwise
provided herein. Client further instructs David Melvin Coaching to use and
disclose Client Data and Customer Data as necessary to (a) provide the Services
consistent with this Agreement and David Melvin Coaching’s Privacy Policy,
including detecting, investigating, and preventing security incidents, spam,
fraud, or unlawful use of the Services, and (b) respond to Client’s inquiries
or any technical problems and ensure the Services are working properly.

4.2. Aggregate/Anonymous Data. Client agrees that David Melvin Coaching will
have the right to generate usage data from Client use of the Services and may
aggregate anonymized Client Data (“Aggregate/Anonymous Data”). Notwithstanding
anything to the contrary herein, the parties agree that Aggregate/Anonymous
Data is David Melvin Coaching Technology, which David Melvin Coaching may use
for any business purpose during or after the term of this Agreement (including
without limitation to develop and improve David Melvin Coaching’s products and
services and to create and distribute reports and other materials). David
Melvin Coaching will not distribute Aggregate/Anonymous Data in a manner that
personally identifies Client or its Customers, or that would otherwise violate
applicable Laws. If Client and David Melvin Coaching have entered into a BAA, David
Melvin Coaching will use the Aggregate/Anonymous Data only in conformity with
the terms of such agreement.

4.3. Monitoring. Client understands and agrees that David Melvin Coaching
may monitor and analyze Client Data or Customer Data (including but not limited
to reviews, surveys, messages, chats, etc.) to improve the Website or Services;
to improve Client’s experience using the Website or Services; to customize and
communicate informational or product offerings and promotions to Client; to
ensure compliance with the Acceptable Use Policy (including taking corrective
action permitted therein); and/or to make the Website or Services more helpful
or useful to Client and other users. Client also understands that any
third-party platform(s) or Third-Party Provider(s) Client elects to use or
access in conjunction with the Services may also monitor and analyze the Client
Data and/or Customer Data Client uses or accesses in connection with such
third-party platforms, to customize and communicate information or product
offerings and promotions to Client; to ensure compliance with applicable terms
of use; and to make such third-party platform(s) more helpful or useful to
Client and other users.

4.4. Security. David Melvin Coaching agrees to maintain physical, technical,
and organizational measures designed, in its discretion, to secure its systems
from unauthorized access, use, or disclosure. If Client is a Covered Entity or
Business Associate, as defined in HIPAA, David Melvin Coaching and Client agree
to the terms of David Melvin Coaching’s which may be amended from time to time,
and to secure and utilize PHI in accordance with the BAA. David Melvin Coaching
takes no responsibility and assumes no liability for any Client Data other than
its express security obligations in this Section 4.4.

4.5. Storage. David Melvin Coaching does not provide an archiving service.
During the Subscription Term, Client acknowledges that David Melvin Coaching
may delete Client Data no longer in active use. Except for requirements that
are included in any BAA entered into between David Melvin Coaching and Client, David
Melvin Coaching expressly disclaims all other obligations with respect to
storage.

5. CLIENT OBLIGATIONS.

5.1. Warranty. Client warrants and represents that it will use the Services
in full compliance with all Laws and terms of this Agreement, including the
Acceptable Use Policy, and that it will not use the Services in a manner that
would cause David Melvin Coaching to violate any obligation with respect to any
such Laws. Client also warrants and represents that: (a) Client has sole
ownership of any Client Data it provides to David Melvin Coaching, or otherwise
has legal rights to provide such Client Data, and Client Data and David Melvin
Coaching’s use thereof will not violate third-party rights, including
intellectual property, privacy, and publicity rights; (b) David Melvin Coaching’s
possession and/or use of the Client Data on Client’s behalf in connection with
the Services, as contemplated hereunder, will not violate any contract,
statute, or regulation; (c) any Client Data Client and/or Client’s authorized
representative(s) submit for publication on an online review or ratings website
as a provider of goods or services will be true and accurate, and will only
concern Client or the goods and/or services that Client provides; (d) Client is
authorized to provide David Melvin Coaching with any Customer, Client, or
Authorized User information it provides in connection with the Services,
including any personally identifying information; and (e) Client and/or
Client’s Authorized User(s) will only use the Services for interaction with
actual Customers. If Client receives any take-down requests or infringement
notices related to Client Data or its use of Third-Party Products, it will
promptly stop using these items with the Services and notify David Melvin
Coaching immediately. Additionally, if an integration is included in the
Services Client orders, Client grants David Melvin Coaching the right to access
Client’s Data or Client’s CRM system directly or through a third-party service
for the purposes of fulfilling David Melvin Coaching’s obligations under this
Agreement, and Client warrants that Client is not restricted by law or
applicable agreement from granting David Melvin Coaching such right. David
Melvin Coaching will not be held liable for any consequences of false and/or
inaccurate content published to an online review or ratings website through David
Melvin Coaching by Client or its Authorized Users.

5.2. Customer Consent; Intended Use of the Services. Client understands and
agrees that the Services are intended to allow Client to send electronic
communication, including but not limited to text messages, only to Client’s own
current Customers who have consented to the receipt of such communications and
are provided with necessary notices in accordance with applicable Laws. Client
also understands and agrees that the Services are intended primarily to be used
to send transactional and/or informational messages, not advertisements,
marketing, telemarketing, or promotional messages, as such are defined in
applicable Laws (hereinafter, collectively “Marketing”), and that Client may
use the Services to send Marketing messages only via David Melvin Coaching
Campaigns. Accordingly, Client will for the duration of the Subscription Term:
(a) provide all required disclosures to Customers and obtain all required
consents and/or authorizations from Customers, based on applicable Laws, prior
to utilizing the Services; (b) obtain all necessary rights, releases, and
consents to allow Client Data to be collected, used, and disclosed in the
manner contemplated by this Agreement and to grant David Melvin Coaching the
rights herein; and (c) send Marketing messages through David Melvin Coaching
only via David Melvin Coaching Campaigns and only in compliance with all Laws,
the terms of this Agreement, including the Acceptable Use Policy, and
industry-specific best practices, including but not limited to Do Not Call
rules and prohibitions. Client agrees and acknowledges that Client is solely
responsible for its compliance with applicable Laws and the Acceptable Use Policy
and must not rely on the Services for any such compliance. Use of the Services
does not guarantee compliance with applicable Laws or the Acceptable Use
Policy, and David Melvin Coaching expressly disclaims any liability for
Client’s non-compliance. David Melvin Coaching reserves the right to suspend or
terminate Client’s access to the Services or specific feature(s) of the
Services if David Melvin Coaching believes, in its sole discretion, that Client
has violated this Section 5.

6. AVAILABILITY OF SERVICES; SUPPORT.

6.1. Availability. Subject to the terms of this Agreement and any scheduled
maintenance and unavailability caused by: (a) actions or omissions of Client;
(b) failures, errors, or defects in the facilities, hardware, software, or
network of Client; or (c) circumstances that constitute a force majeure event
or that are beyond David Melvin Coaching’s reasonable control, the Services
will be available for access via the Website 99.0% of the time during of the
applicable Subscription Term. Client’s sole remedy and David Melvin Coaching’s
sole liability for failure to meet the aforementioned availability will be
support in accordance with Section 6.2.

6.2. Support. David Melvin Coaching makes available web-based support
through the Website. Additional support services may be available to Client
subject to payment of applicable fees (if any), as specified in any applicable
Subscription Documentation. Any support services are subject to this Agreement
and David Melvin Coaching’s applicable support policies, if any. Client is
primarily responsible for its own account setup and onboarding. David Melvin
Coaching may also provide onboarding, deployment, and other services under this
Agreement, including via Third-Party Providers or subcontractors. If
applicable, the scope, pricing, and other terms for these additional services
will be set forth in the applicable Subscription Documentation. David Melvin
Coaching’s ability to deliver the Services will depend on Client’s reasonable
and timely cooperation and the accuracy and completeness of any information
from Client needed to deliver the Services.

7. FEES AND PAYMENT.

7.1. Fees. Unless otherwise specified on the applicable Subscription
Documentation, the Services are provided on an ongoing, per-license
subscription-basis including automatically recurring payments for periodic
charges, according to the terms and conditions referenced in the Subscription
Documentation (“Subscription”). Client agrees to pay to David Melvin Coaching
the fees for the Subscription to the Services or any Bundle (“Subscription
Fees”) and any additional fees (if applicable), all as set forth in the
applicable Subscription Documentation or Additional Terms (collectively, the
“Fees”). Except as otherwise specified in the applicable Subscription
Documentation, unless Client terminates a Free Access Subscription prior to the
lapse of the Free Access Subscription Term, such Services will convert to a
paid Subscription and Client agrees to pay David Melvin Coaching the applicable
Subscription Fees according to the terms of this Agreement. Unless otherwise
specified in the applicable Subscription Documentation, payment for all Fees is
due within thirty (30) days of the invoice date.

7.2. Payment of Fees. Unless otherwise specified in the applicable
Subscription Documentation, all Subscription Fees will be paid annually in
advance, though overage fees (if any) may be charged in arrears, and all
references to currency set forth herein will mean U.S. dollars, with all
payments hereunder to be made in U.S. dollars. Subscription Fees are
non-refundable and non-creditable, except as expressly set forth in Sections
2.3 (Modification of the Services) and 8.3 (Termination for Cause). If the
payment method selected on the applicable Subscription Documentation is credit
card, ACH, or direct debit, Client authorizes David Melvin Coaching to charge
the Subscription Fees automatically, on an auto-renew basis on your
Subscription Start Date (as defined below) for each subsequent Subscription
Term. For the avoidance of doubt, all additional Subscription Fees for
additional Services accessed by Client will be billed when the Service is first
accessed by Client and automatically, on an auto-renew basis on Client’s
existing Subscription Start Date. The Subscription will continue unless and
until you or David Melvin Coaching terminate your Subscription in accordance
with Section 8. You must cancel your Subscription before it renews in order to
avoid billing the next periodic Subscription Fees to your account. If Client
elects to pay by credit card, then you are responsible for both (a) enabling
auto-recharge on your account and (b) ensuring that your account has a
sufficient positive balance to cover all Fees when due. Should David Melvin
Coaching be unable to process/receive the Fees when due and owing, payment
shall be considered overdue. David Melvin Coaching will have the right to
charge interest on all overdue amounts equal to the maximum amounts allowed by
applicable Law. Additionally, after payment becomes overdue, David Melvin
Coaching will have the right to immediately suspend Client’s access to the
Services and/or seek to enforce Client’s payment obligations including through
the use of third-party services.

7.3. Taxes. David Melvin Coaching’s Fees are exclusive of all taxes and
regulatory fees, and Client must pay any applicable taxes regulatory fees, or
levies, whether domestic or foreign, other than taxes based on the income of David
Melvin Coaching. Client will make tax and regulatory fee payments to David
Melvin Coaching to the extent amounts are included on David Melvin Coaching’s
invoices.

7.4. Fee Increase. David Melvin Coaching reserves the right to determine the
applicable Fees for any Services. While David Melvin Coaching will make
reasonable efforts to keep the information relating to Fees published on its
Website up to date, you should check the Website periodically for information
about current Fees. If any Fees are specified on your Subscription
Documentation, David Melvin Coaching may increase Fees applicable to you upon
forty-five (45) days’ prior written notice, effective on the start date of your
subsequent Subscription Term. Additionally, notwithstanding the foregoing, David
Melvin Coaching may adjust the Payments Services Fees as set forth in the
Payments Service Terms. David Melvin Coaching may also, from time to time and
in its sole discretion, make promotional offers or different Fees available to
its clients or other users. Such promotional offers will not apply to you or
this Agreement unless specified in writing in your Subscription Documentation.

8. TERM AND TERMINATION.

8.1. Term. This Agreement is effective until the applicable Subscription
Term for the Services has expired or the Subscription is terminated as
expressly permitted herein. Unless otherwise stated in Client’s Subscription
Documentation, the initial term for any Subscription to the Services is twelve
(12) months and will automatically renew for subsequent periods of equal
duration (the “Subscription Term”), unless either party gives written notice of
non-renewal at least one (1) month before the end of the then-current
Subscription Term. Client may give notice of non-renewal by sending an email to
melvincoach.com. If no Subscription start date is specified on the applicable
Subscription Documentation, the Subscription starts when Client first obtains access
to the Services (“Subscription Start Date”). By agreeing to any Subscription
Documentation, Client is agreeing to pay applicable fees for the entire
Subscription Term. Client cannot cancel or terminate a Subscription Term except
as expressly permitted by this Section 8.1 or Section 8.3 (Termination for
Cause). Unless Client’s Subscription Documentation expressly states otherwise,
any additional Services purchased during Client’s Subscription Term will be
coterminous with Client’s most recent David Melvin Coaching platform
Subscription Term.

8.2. Suspension of Services. David Melvin Coaching may suspend Client’s (or
any Authorized User’s, as applicable) access to the Services if: (a) Client’s
account is overdue, or (b) Client has exceeded its Scope of Use limits. David
Melvin Coaching may also suspend Client’s (or any Authorized User’s, as
applicable) access to the Services, remove Client Data, or disable Third-Party
Products if it determines that: (i) Client has breached Sections 3 (Use Rights;
Restrictions) or 5 (Client Obligations); or (ii) suspension is necessary to
prevent harm or liability to other clients of David Melvin Coaching or third
parties or to preserve the security, stability, availability, or integrity of
the Services. David Melvin Coaching will have no liability for taking action as
permitted above. For avoidance of doubt, Client will remain responsible for
payment of Fees during any suspension period. Unless this Agreement has been
terminated, David Melvin Coaching will cooperate with Client to restore access
to the Services once it verifies that Client has resolved the condition
requiring suspension.

8.3. Termination for Cause. Either party may terminate this Agreement,
including any related Subscription Documentation, if the other party: (a) fails
to cure any material breach of this Agreement (including a failure to pay fees)
within thirty (30) days after written notice detailing the breach; (b) ceases
operation without a successor; or (c) seeks protection under any bankruptcy,
receivership, trust deed, creditors’ arrangement, composition, or comparable
proceeding, or if any such proceeding is instituted against that party (and not
dismissed within sixty (60) days thereafter). If Client terminates during the
Subscription Term for any reason other than the foregoing, Client will be
responsible for the Fees due for the entire Subscription Term. David Melvin
Coaching may also terminate this Agreement or any related Subscription
Documentation immediately if Client breaches Sections 3 (Use Rights;
Restrictions) or 5 (Client Obligations), for repeated violations of other
Sections of this Agreement, or if applicable, a breach of the parties’ BAA.

8.4. Effect of Termination. Upon any expiration or termination of this
Agreement or any Subscription Documentation: (a) Client’s license rights will
terminate and it must immediately cease use of the Services (including any
related David Melvin Coaching Technology) and delete (or, at David Melvin Coaching’s
request, return) any and all copies of any David Melvin Coaching documentation,
scripts, passwords or access codes, and any other David Melvin Coaching
Confidential Information in Client’s possession, custody, or control; and (b)
Client’s right to access any Client Data in the applicable Services will cease,
and unless otherwise precluded by a BAA, David Melvin Coaching may delete any
such data in its possession at any time. If David Melvin Coaching terminates
this Agreement for cause as provided in Section 8.3 (Termination for Cause),
any payments for the remaining portion of the Subscription Term will become due
and must be paid immediately by Client. Except where this Agreement specifies
an exclusive remedy, all remedies under this Agreement, including termination
or suspension, are cumulative and not exclusive of any other rights or remedies
that may be available to a party.

8.5. Survival. The following Sections survive any expiration or termination
of this Agreement: 1 (Definitions); 3 (Use Rights; Restrictions); 4 (Client
Data); 7 (Fees and Payment); 8 (Term and Termination); 9 (Confidential
Information); 10 (David Melvin Coaching Technology); 11 (Third-Party Providers
and Third-Party Products); 12 (Indemnification); 13 (Disclaimers); 14
(Limitations of Liability); 15 (Dispute Resolution); and 16 (General).

9. CONFIDENTIAL INFORMATION.

9.1. Obligation of Confidentiality. Except as otherwise expressly permitted
in this Agreement, each party (as the receiving party) must: (a) hold in
confidence and not disclose the other party’s Confidential Information to third
parties; and (b) use the other party’s Confidential Information only as
necessary to fulfill its obligations and exercise its rights under this
Agreement. Each party may share the other party’s Confidential Information with
its employees, agents, contractors, subcontractors, or Authorized Users having
a legitimate need to know (which, for David Melvin Coaching, includes the
subcontractors referenced in Section 16.6), provided that such party remains
responsible for any recipient’s compliance with the terms of this Section 9 and
these recipients are bound to confidentiality obligations no less protective
than this Section.

9.2. Exclusions. These confidentiality obligations do not apply to (and
Confidential Information does not include) information that: (a) is or becomes
public knowledge through no fault of the receiving party; (b) was known by the
receiving party prior to receipt of the Confidential Information; (c) is
rightfully obtained by the receiving party from a third party without breach of
any confidentiality obligation; or (d) is independently developed by the
receiving party without using the disclosing party’s Confidential Information.
A party may also disclose the other party’s Confidential Information to the
extent required by law, subpoenas, or court orders, provided it uses commercially
reasonable efforts to notify the other party where permitted to do so) and
cooperates in any effort by the other party to obtain confidential treatment
for the information.

9.3. Remedies. The parties acknowledge that disclosure of Confidential
Information may cause substantial harm for which damages alone may be an
insufficient remedy, and so upon breach of this Section, each party is entitled
to seek appropriate equitable relief in addition to any other remedies it may
have at law.

10.

DAVID MELVIN COACHING TECHNOLOGY.

10.1. Ownership and Updates. By accepting this Agreement, Client
acknowledges that it is obtaining only a limited right to use the Services and
irrespective of any use of the words “purchase”, “sale”, or similar terms, no
ownership rights are transferred to Client under this Agreement and, except as
expressly permitted by such limited right, Client may not make any use of David
Melvin Coaching Technology. Client agrees that David Melvin Coaching (or its
suppliers) exclusively retains all rights, title, and interest (including all
intellectual property rights) in and to all Services, products, any and all
related documentation, software, technology, code, know-how, logos, trademarks,
service marks, and templates (including in any reports or output obtained from
the Services), anything delivered as part of support, materials or other
services, and any updates, modifications, or derivative works of any of the
foregoing, including as may incorporate any Feedback (as defined below) (“David
Melvin Coaching Technology”) provided by David Melvin Coaching (which is deemed
David Melvin Coaching’s Confidential Information) and reserves any licenses not
specifically granted herein. Furthermore, David Melvin Coaching exclusively
owns and reserves all right, title, and interest in and to David Melvin
Coaching’s Confidential Information and any data, in anonymized or aggregated
form that does not identify you, any end users, or any natural person,
generated or derived from the use or operation of the Services, including volumes,
frequencies, bounce rates, and performance results for the Services. The
Services are offered as an online, hosted product. Accordingly, Client
acknowledges and agrees that it has no right to obtain a copy of the software
behind any Services and that David Melvin Coaching at its option may make
updates, bug fixes, modifications, or improvements to the Services from
time-to-time.

10.2. Feedback. If Client elects to provide any suggestions, comments,
improvements, information, ideas, or other feedback or related materials to David
Melvin Coaching (collectively, “Feedback”), Client hereby grants David Melvin
Coaching a worldwide, perpetual, non-revocable, sublicensable, royalty-free
right, and license to use, copy, disclose, license, distribute, and exploit any
such Feedback in any manner without any obligation, payment, or restriction
based on intellectual property rights or otherwise. Nothing in this Agreement
limits David Melvin Coaching’s right to independently use, develop, evaluate,
or market products, whether incorporating Feedback or otherwise.

11. THIRD-PARTY PRODUCTS AND INTEGRATIONS.

David Melvin Coaching may, from time to time, contract with a third party to
facilitate certain features of the Services, including as described in Section
16.6 of this Agreement. David Melvin Coaching may also allow or facilitate
Client to make arrangements with other third-party providers that provide
products or services in connection with, but which are not included in, the
Services as described in this Agreement (“Third-Party Provider(s)”). If Client
elects to use any Third-Party Provider(s) or any applications, integrations,
add-ons, software, code, online services, systems, and other products that are
not David Melvin Coaching Technology (“Third-Party Products”) in connection
with the Services, such Third-Party Provider(s) or Third-Party Products may
make Third-Party Content available to Client and may access Client’s instance
of the Services, including Client Data. Client agrees and acknowledges that use
of such Third-Party Provider(s) or Third-Party Products may require Client to
enter into separate terms and conditions with such third-party. Unless David
Melvin Coaching expressly agrees otherwise in a signed writing, David Melvin
Coaching (a) is not a party to any such terms; (b) will not be liable
thereunder; (c) does not warrant or support Third-Party Providers, Third-Party
Products; or Third-Party Content; and (d) disclaims all responsibility and
liability for these providers and items and their access to the Services,
including their modification, deletion, disclosure, or collection of Client
Data. David Melvin Coaching is not responsible in any way for Client Data once
it is transmitted, copied, or removed from the Services.

12. INDEMNIFICATION.

12.1. Indemnification by Client. Client will indemnify and hold harmless David
Melvin Coaching and its officers, directors, employees, consultants,
affiliates, subsidiaries, and agents (together, the “David Melvin Coaching
Entities”) from and against any third-party claims and related costs, damages,
liabilities, and expenses (including reasonable attorney’s fees) arising from
or pertaining to: (a) your unauthorized use of, or misuse of, the Services,
including but not limited to the David Melvin Coaching Marketplace and David
Melvin Coaching API, as applicable; (b) your violation of, any claim that you
have violated, any applicable Law or third party right, including any
intellectual property right or publicity, confidentiality, other property, or
privacy right; (c) any dispute or issue between you and any third party
(including but not limited to your Customers, any Developer Partners, and any
Third-Party Service Providers); (d) any demand, dispute, or issue (including
without limitation fee disputes) between you and any Payment Service
Provider(s) (as defined in the applicable Additional Terms); (e) any Client
Data; (f) David Melvin Coaching’s use, as contemplated in this Agreement, of any
information provided to David Melvin Coaching by you or your Customers; (g)
breach or alleged breach of this Agreement, including Client’s warranties and
obligations; or (h) if applicable, alleged breach or breach of Client’s
obligations contained in the BAA. Client also agrees to defend the David Melvin
Coaching Entities against these claims at David Melvin Coaching’s request, but David
Melvin Coaching may participate in any claim through counsel of its own
choosing and the parties will reasonably cooperate on any defense. In the event
David Melvin Coaching assumes exclusive defense of such claims, Client agrees
to cooperate with our defense of any such claims. Client may not settle any
claim without David Melvin Coaching’s prior written consent if the settlement
does not fully release David Melvin Coaching from liability or would require David
Melvin Coaching to admit fault, pay any amounts, or take or refrain from taking
any action.

12.2. Indemnification by David Melvin Coaching. David Melvin Coaching will
indemnify and hold Client harmless from and against any third-party claims and
related costs, damages, liabilities, and expenses (including reasonable
attorney’s fees) arising from or pertaining to (a) David Melvin Coaching’s
gross negligence or willful misconduct; or (b) David Melvin Coaching’s
infringement, misappropriation, or violation of a third party’s intellectual
property rights. David Melvin Coaching also agrees to defend Client against
these claims at Client’s request, but Client may participate in any claim
through counsel of its own choosing and the Parties will reasonably cooperate
on any defense. David Melvin Coaching must not settle any claim without
Client’s prior written consent if the settlement does not fully release Client
from liability or would require Client to admit fault, pay any amounts, or take
or refrain from taking any action.

12.3. Exclusions to David Melvin Coaching’s Indemnification. David Melvin
Coaching will not be required to indemnify Client in the event of: (a)
modification of the Services by Client, its Authorized Users, Developer
Partners, Third-Party Providers, affiliates, employees, or contractors in
conflict with Client’s obligations or as a result of any prohibited activity
under this Agreement, (b) use of the Services in a manner inconsistent with
this Agreement, the Acceptable Use Policy, the Additional Terms, the
Subscription Documentation, or any other agreement related to this Agreement,
or (c) use of the Services in combination with any other application, product,
or service not provided by David Melvin Coaching if such claim would not have
occurred without such combination.

13. DISCLAIMERS.

13.1. EXCEPT AS PROVIDED EXPRESSLY HEREIN, ALL DAVID MELVIN COACHING
TECHNOLOGY AND RELATED SERVICES, MATERIALS, AND CONTENT AVAILABLE THROUGH THE DAVID
MELVIN COACHING TECHNOLOGY ARE PROVIDED “AS IS” AND ON AN “AS AVAILABLE” BASIS.
NEITHER DAVID MELVIN COACHING NOR ITS SUPPLIERS MAKE ANY WARRANTIES, EXPRESS OR
IMPLIED, STATUTORY, OR OTHERWISE, INCLUDING BUT NOT LIMITED TO WARRANTIES OF
MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE, OR NONINFRINGEMENT. DAVID
MELVIN COACHING MAKES NO REPRESENTATION, WARRANTY, OR GUARANTEE THAT DAVID
MELVIN COACHING TECHNOLOGY WILL MEET CLIENT’S REQUIREMENTS OR EXPECTATIONS,
THAT CLIENT DATA WILL BE ACCURATE, COMPLETE, OR PRESERVED WITHOUT LOSS, OR THAT
DAVID MELVIN COACHING TECHNOLOGY WILL BE SECURE, TIMELY, UNINTERRUPTED, OR
ERROR-FREE, AND DAVID MELVIN COACHING DOES NOT WARRANT THAT ANY OF THOSE ISSUES
WILL BE CORRECTED. DAVID MELVIN COACHING WILL NOT BE RESPONSIBLE OR LIABLE IN
ANY MANNER FOR ANY CLIENT PROPERTIES, THIRD-PARTY PROVIDERS, THIRD-PARTY
PRODUCTS, THIRD-PARTY CONTENT, OR NON-DAVID MELVIN COACHING SERVICES (INCLUDING
FOR ANY DELAYS, INTERRUPTIONS, TRANSMISSION ERRORS, SECURITY FAILURES, AND
OTHER PROBLEMS CAUSED BY THESE ITEMS), FOR THE COLLECTION, USE, AND DISCLOSURE
OF CLIENT DATA AUTHORIZED BY THIS AGREEMENT, OR FOR DECISIONS OR ACTIONS TAKEN
(OR NOT TAKEN) BY CLIENT BASED UPON DAVID MELVIN COACHING TECHNOLOGY OR DAVID
MELVIN COACHING’S RELATED SERVICES (INCLUDING CHANGES TO CLIENT PROPERTIES).
THE DISCLAIMERS IN THIS SECTION 13 WILL APPLY TO THE MAXIMUM EXTENT NOT
PROHIBITED BY APPLICABLE LAW, NOTWITHSTANDING ANYTHING TO THE CONTRARY HEREIN.
CLIENT MAY HAVE OTHER STATUTORY RIGHTS. HOWEVER, ANY STATUTORILY REQUIRED
WARRANTIES UNDER APPLICABLE LAW, IF ANY, SHALL BE LIMITED TO THE SHORTEST
PERIOD AND MAXIMUM EXTENT PERMITTED BY LAW.

13.2. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU
FROM THE SERVICES OR DAVID MELVIN COACHING ENTITIES OR ANY MATERIALS OR CONTENT
AVAILABLE THROUGH THE SERVICES WILL CREATE ANY WARRANTY REGARDING ANY OF THE DAVID
MELVIN COACHING ENTITIES OR THE SERVICES THAT IS NOT EXPRESSLY STATED IN THESE
TERMS. DAVID MELVIN COACHING DOES NOT PROVIDE ITS CLIENTS WITH LEGAL ADVICE
REGARDING DATA PRIVACY OR COMPLIANCE WITH RELEVANT LAW IN ANY JURISDICTION, AND
ANY STATEMENTS MADE BY DAVID MELVIN COACHING TO ITS CLIENT(S) DO NOT CONSTITUTE
LEGAL ADVICE. USE OF THE SERVICES DOES NOT GUARANTEE COMPLIANCE WITH APPLICABLE
LAWS IN ANY JURISDICTION.

14. LIMITATIONS OF LIABILITY.

TO THE MAXIMUM EXTENT NOT PROHIBITED BY APPLICABLE LAW, IN NO EVENT WILL DAVID
MELVIN COACHING OR ITS SUPPLIERS BE LIABLE FOR ANY LOSS OF USE, LOST OR
INACCURATE DATA, INTERRUPTION OF BUSINESS, LOST PROFITS, COSTS OF DELAY,
REPUTATIONAL HARM, OR ANY INDIRECT, SPECIAL, INCIDENTAL, COVER, RELIANCE, OR
CONSEQUENTIAL DAMAGES OF ANY KIND, HOWEVER CAUSED, EVEN IF INFORMED IN ADVANCE
OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT WILL DAVID MELVIN COACHING’S OR
ITS SUPPLIERS’ TOTAL LIABILITY EXCEED IN AGGREGATE THE AMOUNT ACTUALLY PAID BY
CLIENT TO DAVID MELVIN COACHING FOR THE APPLICABLE SERVICE(S) OR RELATED
SERVICE(S) IN THE TWELVE (12) MONTHS PRECEDING THE CLAIM. FOR FREE ACCESS
SUBSCRIPTIONS OR BETA RELEASES, DAVID MELVIN COACHING’S TOTAL LIABILITY WILL
NOT EXCEED IN AGGREGATE FIFTY U.S. DOLLARS ($50.00 US). NOTWITHSTANDING THE
FOREGOING, NONE OF THE LIMITATIONS IN THIS SECTION 14 EXCLUDES EITHER PARTY’S
LIABILITY FOR FRAUD OR FOR DEATH OR PERSONAL INJURY TO THE EXTENT CAUSED BY A
PARTY’S NEGLIGENCE. IN ADDITION, THE LAWS IN SOME JURISDICTIONS MAY NOT ALLOW
SOME OF THE LIMITATIONS OF LIABILITY IN THIS SECTION. IF ANY OF THESE LAWS IS
FOUND TO APPLY TO THIS AGREEMENT, THIS SECTION 14 WILL APPLY TO THE MAXIMUM
EXTENT NOT PROHIBITED BY SUCH LAW. EACH PARTY ACKNOWLEDGES AND AGREES THAT THIS
SECTION 14 IS A FUNDAMENTAL BASIS OF THE BARGAIN AND A REASONABLE ALLOCATION OF
RISK BETWEEN THE PARTIES AND WILL SURVIVE AND APPLY TO ANY CLAIMS ARISING OUT
OF OR RELATED TO THIS AGREEMENT, ANY DAVID MELVIN COACHING TECHNOLOGY, OR ANY
RELATED SERVICES, REGARDLESS OF THE THEORY OF LIABILITY (CONTRACT, TORT, STRICT
LIABILITY, OR OTHERWISE), EVEN IF ANY LIMITED REMEDY IN THIS AGREEMENT IS FOUND
TO HAVE FAILED OF ITS ESSENTIAL PURPOSE. EACH PROVISION OF THESE TERMS THAT
PROVIDES FOR A LIMITATION OF LIABILITY, DISCLAIMER OF WARRANTIES, OR EXCLUSION
OF DAMAGES IS INTENDED TO AND DOES ALLOCATE THE RISKS BETWEEN THE PARTIES UNDER
THESE TERMS. THIS ALLOCATION IS AN ESSENTIAL ELEMENT OF THE BASIS OF THE
BARGAIN BETWEEN THE PARTIES. EACH OF THESE PROVISIONS IS SEVERABLE AND
INDEPENDENT OF ALL OTHER PROVISIONS OF THESE TERMS. THE LIMITATIONS IN THIS
SECTION 14 WILL APPLY EVEN IF ANY LIMITED REMEDY FAILS OF ITS ESSENTIAL
PURPOSE.

15. DISPUTE RESOLUTION.

If a dispute arises between the parties related to this Agreement or the
Services provided therefrom, and the dispute cannot be settled through informal
negotiations, the parties agree to resolve their dispute (referred to herein as
“Claim(s)”) as follows:

15.1. Mediation. The parties agree to participate in mediation to settle
their Claims in accordance with the rules and procedures found in Utah Code §
78B-10-101 et seq. (Utah Uniform Mediation Act and referred to as “UUMA”) and
this Agreement before a party can file a judicial action, whether in a court of
law, an administrative body, government agency, or otherwise. If there are any
conflicting provisions between UUMA and this Agreement, the provisions in this
Agreement will govern.

15.1.1. Notice. Mediation must be conducted within sixty (60) days from a
party receiving written notice of Claims from a complaining party. The notice
must contain a detailed description of the nature of the Claims and the
requested relief sought.

15.1.2. Mediator Selection and Mediator Fees. A neutral mediator will be
selected as mutually agreed upon by the parties. The mediator’s fees and costs
will be paid to the mediator at the end of mediation, with both parties equally
sharing the mediation costs and paying their own legal fees and costs.

15.1.3. Location. Mediation will occur in Salt Lake City, Utah.

15.2. Judicial Action. If the parties are unable to resolve the Claim
pursuant to the mandatory mediation referenced above (or if one of the parties
refuses to participate in the mandatory mediation or fails to respond to a
complaining party’s request for mediation), the parties may subsequently file a
judicial action.

15.3. Disputes Not Subject to the Mediation Process. The following claims or
actions are not subject to the mandatory mediation provisions of this Section
15:

15.3.1. A request for an order of injunctive relief and any related
incidental damages;

15.3.2. A request for an order to prevent the disclosure of or misuse of
Confidential Information or trade secrets; and/or

15.3.3. Enforcement of Client’s payment obligations as set forth under
Section 7.

16. GENERAL.

16.1. Assignment. This Agreement will bind and inure to the benefit of each
party’s permitted successors and assigns. Neither party may assign this
Agreement without the advance written consent of the other party, except that David
Melvin Coaching may assign this Agreement without consent to an affiliate or in
connection with a merger, reorganization, acquisition, or other transfer of all
or substantially all of its assets or voting securities. Any attempt to
transfer or assign this Agreement except as expressly authorized under this
Section 16.1 will be null and void.

16.2. Notices. Any notice or communication to David Melvin Coaching under
this Agreement must be in writing. Client must send any notices under this
Agreement (including breach notices) to

David Melvin Coaching Headquarters (include “Attn. Legal Department” in the
subject line) or by email to david@melvincoaching.com. David Melvin Coaching
may send notices to the e-mail addresses on Client’s account or, at David Melvin
Coaching’s option, to Client’s last-known postal address. David Melvin Coaching
may also provide operational notices regarding the Services or other
business-related notices through conspicuous posting of such notice on David
Melvin Coaching’s Website or the Services. Each party hereby consents to
receipt of electronic notices and agrees that any notices, agreements,
disclosures, or other communications that we send to you electronically will
satisfy any legal communication requirements, including that those communications
be in writing. David Melvin Coaching is not responsible for any automatic
filtering Client or its network provider may apply to email notifications.

16.3. Publicity. Unless otherwise specified in the applicable Subscription
Documentation, David Melvin Coaching may use Client’s name, logo, and marks to
identify Client as a David Melvin Coaching Client on David Melvin Coaching’s
website and other marketing materials. 6.4. David Melvin Coaching Communication
with Client. You agree that David Melvin Coaching may send you emails and text
messages, including transactional, operational, and marketing messages,
possibly using automated technology, to the email or phone number you provide
to David Melvin Coaching. Message and/or data rates may apply to such messages,
and you may opt out at any time. You will keep your contact information up to
date and will notify David Melvin Coaching immediately in the event that your
contact information changes.

16.5. Referral Programs.

David Melvin Coaching may, from time to time, and in its sole discretion,
offer referral programs or opportunities to certain

David Melvin Coaching clients or users. Such programs or opportunities may
include incentives for such clients or users to promote David Melvin Coaching
and/or its Services to their family or friends. Participation in such programs
or opportunities is completely voluntary and is subject to this Agreement and
the David Melvin Coaching Referral Submission Terms (“Referral Submission Terms”).
David Melvin Coaching may modify, discontinue, or terminate any referral
program or similar opportunity at any time, without notice.

16.6. Subcontractors. David Melvin Coaching may use subcontractors and
permit them to exercise the rights granted to David Melvin Coaching in order to
provide the Services and related services under this Agreement. Unless David
Melvin Coaching expressly states otherwise in signed writing, Third-Party
Providers are not “subcontractors” under this Agreement, and David Melvin
Coaching disclaims all responsibility and liability for the actions or
omissions of any Third-Party Providers, including but not limited to
Developers.

16.7. Subpoenas. Nothing in this Agreement prevents

David Melvin Coaching from disclosing Client Data to the extent required by
law, subpoenas, or court orders, but David Melvin Coaching will use
commercially reasonable efforts to notify Client where permitted to do so.16.8.
Independent Contractors. The parties to this Agreement are independent
contractors, and this Agreement does not create a partnership, joint venture,
employment, franchise, or agency relationship. Neither party has the power to
bind the other or incur obligations on the other party’s behalf without the
other party’s prior written consent.

16.9. Force Majeure. Neither party will be liable for any delay or failure
to perform its obligations under this Agreement (except payment obligations) if
the delay or failure is due to causes beyond its reasonable control, such as a
strike, blockade, war, act of terrorism, riot, natural disaster, disruption in
transportation systems, disruption of labor force, national or state emergency,
epidemic, pandemic, communicable disease outbreak, failure or reduction of
power or telecommunications or data networks or services, or government act or
order.

16.10. Amendments; Waivers. David Melvin Coaching may update or modify these
Terms (including the Additional Terms and any referenced policies and other
documents) from time to time by posting a revised version on the Website or
Services or by notification via the email associated with your account. If a
change to these Terms materially modifies your rights or obligations, you may
be required to click through the updated Terms to show acceptance and to
continue to use the Services. Material modifications are effective upon the
earlier of your acceptance of the modified Terms or upon your next subsequent
Subscription Term. Immaterial modifications will become effective upon posting
or notification, and continued use of the Services or Website, following the
update, will constitute acceptance of the updated Terms. If Client does not
agree to the updated Terms, Client will no longer have the right to use the
Services. Except as otherwise described in this Section 16.10, any modification
or amendment to this Agreement must be made in writing and signed by a duly
authorized representative of each party (each in its discretion). No waiver
will be implied from conduct or failure to enforce or exercise rights under
this Agreement. No waiver of any provision of this Agreement will constitute a
waiver of any other provision, whether or not similar, nor will any waiver
constitute a continuing waiver. Failure to enforce any provision of this
Agreement will not operate as a waiver of such provision or any other provision
or of the right to enforce such provision or any other provision. Waivers must
be made in writing and executed by a duly authorized representative of the
waiving party.

16.11. Headings. The headings used in this Agreement are for ease of
reference only. They are not intended as a complete re-statement of the matters
contained under each heading, and you acknowledge that you have read and
understand all the text of this Agreement, and not just the headings.

16.12. Severability. If any provision of this Agreement is found by any
court of competent jurisdiction to be unenforceable or invalid, that provision
will be limited to the minimum extent necessary so that this Agreement may
otherwise remain in effect, and all other provisions remain in full effect.

16.13. No Third-Party Rights. Nothing in this Agreement confers on any third
party the right to enforce any provision of this Agreement. Client acknowledges
that each Subscription only permits use by and for the legal entity or entities
identified in the Subscription Documentation and not any affiliates.
Furthermore, Client’s affiliates are not permitted to use the Services under
these Terms unless an affiliate agrees to these Terms individually and creates
its own account.

16.14. Attorneys’ Fees and Costs. The substantially prevailing party in any
action to enforce this Agreement will be entitled to recover its reasonable
attorneys’ fees and costs for the action.

16.15. Entire Agreement. This Agreement, including these Terms and any applicable
Subscription Documentation, represents the parties’ complete and exclusive
understanding relating to the Agreement’s subject matter. It supersedes all
prior or contemporaneous oral or written communications, proposals, and
representations with respect to the David Melvin Coaching Technology or any
other subject matter covered by this Agreement. The terms of the United Nations
Convention on Contracts for the Sale of Goods do not apply to this Agreement.
The Uniform Computer Information Transactions Act (UCITA) will not apply to
this Agreement regardless of when or where adopted. Any terms provided by
Client (including as part of any purchase order or other business form used by
Client) are for administrative purposes only and have no legal effect.

16.16. Counterparts; Electronic Transmission. This Agreement may be executed
in counterparts, each of which will constitute an original, and all of which
will constitute one and the same instrument. A facsimile or other reproduction
of this Agreement may be executed by one or more parties hereto, and an
executed copy of this Agreement may be delivered by one or more parties hereto
by facsimile or similar electronic transmission device pursuant to which the
signature of or on behalf of such party can be seen, and such execution and
delivery will be considered valid, binding and effective for all purposes. At
the request of any party hereto, all parties hereto agree to execute an
original of this Agreement as well as any facsimile or other reproduction
hereof.

16.17. Governing Law; Jurisdiction and Venue. This Agreement is governed by
the laws of the State of Utah and the United States, without regard to choice
or conflict of law rules thereof. The exclusive jurisdiction and venue for
actions related to the subject matter of this Agreement will be the state
courts located in Salt Lake County or Utah County, Utah or the United States
District Court for the District of Utah, and both parties submit to the
personal jurisdiction of these courts.

16.18. Notice to California Residents. If you are a California resident,
under California Civil Code Section 1789.3, you may contact the Complaint
Assistance Unit of the Division of Consumer Services of the California
Department of Consumer Affairs in writing at 1625 N. Market Blvd., Suite S-202,
Sacramento, California 95834, or by telephone at (800) 952-5210 in order to
resolve a complaint regarding the Services or to receive further information
regarding use of the Services.

16.19. Notice Regarding Apple. This Section 16.19 only applies to the extent
you are using our mobile application on an iOS device. You acknowledge that
these Terms are between you and David Melvin Coaching only, not with Apple Inc.
(“Apple”), and Apple is not responsible for the Services or the content thereof.
Apple has no obligation to furnish any maintenance and support services with
respect to the Services. If the Services fail to conform to any applicable
warranty, you may notify Apple and Apple will refund any applicable purchase
price for the mobile application to you; and, to the maximum extent permitted
by applicable law, Apple has no other warranty obligation with respect to the
Services. Apple is not responsible for addressing any claims by you or any
third party relating to the Services or your possession and/or use of the
Services, including: (a) product liability claims; (b) any claim that the
Services fails to conform to any applicable legal or regulatory requirement; or
(c) claims arising under consumer protection or similar legislation. Apple is not
responsible for the investigation, defense, settlement, and discharge of any
third-party claim that the Services and/or your possession and use of the
Services infringe a third party’s intellectual property rights. You agree to
comply with any applicable third-party terms when using the Services. Apple and
Apple’s subsidiaries are third-party beneficiaries of these Terms, and upon
your acceptance of these Terms, Apple will have the right (and will be deemed
to have accepted the right) to enforce these Terms against you as a third-party
beneficiary of these Terms. You hereby represent and warrant that: (i) you are
not located in a country that is subject to a U.S. Government embargo, or that
has been designated by the U.S. Government as a “terrorist supporting” country;
and (ii) you are not listed on any U.S. Government list of prohibited or
restricted parties.

Questions, Complaints and Contacts

If you have any questions regarding these Terms and Conditions, please
contact us at www.david@melvincoaching.com or by U.S. mail at the address
below:

David Melvin Coaching, LLC.

Attn: Privacy Officer

South Race Way

Centennial, CO 80122