These Visible Body Institution Subscription Terms and Conditions (these “Terms”) are by and between ARGOSY PUBLISHING, INC. d/b/a VISIBLE BODY, a Massachusetts corporation (“Visible Body”) and the subscriber obtaining from Visible Body the right to allow its faculty, staff, and students to access the Services for educational purposes (“Subscriber”). Each defined term used in these Terms is defined either in the body or in Section 1 of these Terms.
1.1 “Authorized User” shall mean an individual who is authorized by Subscriber to access the Services; and who is affiliated with Subscriber as a current student or faculty member at the Campus.
1.2 “Campus” shall mean the geographic location of Subscriber’s campus as specified in the Order Form, it being understood that the reference to a geographical location does not preclude Authorized Users from accessing the Services from other geographical locations.
1.3 “Services” shall mean the services provided by Visible Body as specified in the Order Form, which may include certain software, technologies, services, support services, and educational content developed and owned by Visible Body, in the form(s) hosted on the Server, or available as downloads from Apple’s App Store or the Google Play Store, from time to time.
1.4 “Documentation” shall mean the Visible Body user manuals, system guides and related Visible Body publications which are made available to Subscriber and/or its Authorized Users by Visible Body.
1.5 "Intellectual Property Rights" means any and all registered and unregistered rights granted, applied for, or otherwise now or hereafter in existence under or related to any patent, copyright, trademark, trade secret, database protection, or other intellectual property rights laws, and all similar or equivalent rights or forms of protection, in any part of the world.
1.6 “Order Form” shall mean the order form(s) issued by Visible Body and accepted by Subscriber that supplement this Agreement and further define the relationship between the parties. All applicable Order Forms are incorporated by reference into these Terms notwithstanding the fact that the Order Forms may not be attached to these Terms. The Order Forms and these Terms shall be herein collectively referred to as this “Agreement.”
1.7 “Secure Network” shall mean a password-protected network (whether a stand alone network or a virtual network in the Internet) which is accessible only to Authorized Users whose identity is authenticated by Subscriber at the time of log-in and periodically thereafter consistent with current best-practices. A cache server or any server or network which can be accessed by unauthorized users is not a secure network for purposes of this definition.
1.8 “Server” shall mean either Visible Body’s server or a third-party server designated by Visible Body on which the Services is hosted and through which Subscriber and its Authorized Users may gain access to the Services by means of the World Wide Web.
1.9 “Subscription Period” shall have the meaning set forth in Section 9.1.
1.10 "Third-Party Materials" means materials and information, in any form or medium, including any open-source or other software, documents, data, content, specifications, products, equipment, or components of or relating to the Services that are not proprietary to Visible Body.
1.11 “User Agreement” shall mean the terms for use of the Services that Authorized Users must accept prior to gaining access to the Services, as posted on https://support.visiblebody.com/hc/en-us/articles/360053560673-Visible-Body-User-Agreement. The terms set forth in the User Agreement are incorporated into and made a part of this Agreement.
1.12 “User Content” shall mean all data, information, and other content, including all lessons, quizzes, and other electronic data or information, submitted or uploaded by Subscriber or Authorized Users to the Services.
1.13 “Visible Body Materials” means the Services, Documentation, the information technology infrastructure used by or on behalf of Visible Body in performing its services and any and all other information, data, documents, materials, works, and other content, devices, methods, processes, hardware, software, and other technologies and inventions, including any deliverables, technical or functional descriptions, requirements, plans, or reports, that are provided or used by Visible Body in connection with the Services. For the avoidance of doubt, Visible Body Materials include any information, data, or other content derived from Visible Body's monitoring of Subscriber and Authorized Users’ access to or use of the Services, but do not include User Content.
2.1 Visible Body grants to Subscriber the non-exclusive and non-transferable right to access and use the Services during the Subscription Period, solely for use by Authorized Users in accordance with the terms and conditions herein, for the purposes of research, teaching, and private study, and by means of one or more Secure Networks, or by entering user credentials. The total number of Authorized Users will not exceed the number set forth in the applicable Order Form, except as expressly agreed to in writing by the parties.
2.2 Throughout the Subscription Period, Authorized Users may:
2.2.1 access the Server by means of a Secure Network, or by entering user credentials, in order to use the Services to view, retrieve, and display portions thereof;
2.2.2 print out single copies of screen shots generated by the user of the Services, provided that the screen shots do not contain histology, CT, MRI, or cadaver slice images;
2.2.3 use the Services in lecture for Authorized Users;
2.2.4 use screen captures of the Services in course handout materials, provided (a) that the materials are not sold in any form, (b) that the materials do not support ad revenue, (c) that the screen shots do not contain histology, CT, MRI, or cadaver slice images, and (d) that the content includes “Image courtesy of Visible Body” displayed with the image or video;
2.2.5 use screen captures of the Services in student papers or presentations, provided (a) that the materials are not sold in any form, (b) that the materials do not support ad revenue, (c) that the screen shots do not contain histology, CT, MRI, or cadaver slice images, (d) that the content includes “Image courtesy of Visible Body” displayed with the image or video, and (e) that the materials are circulated exclusively to instructors and students in the same course.
2.3 Subscriber and Authorized Users shall not, and shall not permit any other person to, during the Subscription Period or thereafter, access or use the Services or other Visible Body Materials except as expressly permitted by this Agreement and, the in the case of Third-Party Materials, the applicable third-party license agreement. For purposes of clarity and without limiting the generality of the foregoing, Subscriber and Authorized Users shall not, except as this Agreement expressly permits:
2.3.1 remove or alter Visible Body’s copyright notices or other means of identification or disclaimers as they appear in the Visible Body Materials;
2.3.2 systematically make printed or electronic copies of multiple portions of the Visible Body Materials for any purpose other than those authorized under Section 2.2;
2.3.3 display or distribute any part of the Visible Body Materials on any electronic network, including without limitation the Internet and the World Wide Web;
2.3.4 permit anyone other than Authorized Users to access or use the Visible Body Materials;
2.3.5 use all or any part of the Visible Body Materials for the purposes of monetary reward (whether by or for Subscriber, an Authorized User, or any other person or entity) by means of license, sublicense, distribution, sale, rental, lease, loan, time-share, transfer, assignment, hire, or other form of exploitation of the Visible Body Materials;
2.3.6 act as a service bureau or application service provider (ASP) that allows third party access to the Visible Body Materials;
2.3.7 modify, translate, decompile, nor create or attempt to create, by reverse engineering or otherwise, the Visible Body Materials, or any part thereof, or adapt the whole or any part thereof in any way, or use the Services to create a derivative work.
2.4 Reservation of Rights. Nothing in this Agreement grants any right, title, or interest in or to (including any license under) any Intellectual Property Rights in or relating to, the Services, the Visible Body Materials, or Third-Party Materials, whether expressly, by implication, estoppel, or otherwise. All right, title, and interest in and to the Services, the Visible Body Materials, and the Third-Party Materials are and will remain with Visible Body and the respective rights holders in the Third-Party Materials.
3. Responsibilities of Subscriber
3.1 Subscriber will obtain at its cost all telecommunications and other equipment and software together with all relevant software licenses necessary to access the Services online. Subscriber has and will retain sole responsibility for: (a) all User Content, including its content and use; (b) all information, instructions, and materials provided by or on behalf of Subscriber or any Authorized User in connection with the Services; (c) Subscriber's information technology infrastructure, including computers, software, databases, electronic systems (including database management systems), and networks, whether operated directly by Subscriber or through the use of third-party services ("Subscriber Systems"); (d) the security and use of Subscriber's and its Authorized Users' access credentials; and (e) all access to and use of the Services and other Visible Body Materials directly or indirectly by or through the Subscriber Systems or its or its Authorized Users' access credentials, with or without Subscriber's knowledge or consent, including all results obtained from, and all conclusions, decisions, and actions based on, such access or use.
3.2 Subscriber will:
3.2.1 be responsible for the confidentiality and all use of any user credentials required to access the Services;
3.2.2 use all reasonable efforts to ensure that only Authorized Users are permitted access to the Services;
3.2.3 ensure that all Authorized Users abide by applicable terms set forth this Agreement and the User Agreement.
3.3 Subscriber agrees to inform Visible Body, immediately upon becoming aware of any unauthorized use or other breach of this Agreement or the User Agreement, and take reasonable and appropriate steps both to ensure that such activity ceases and to prevent any recurrence.
3.4 If Visible Body identifies any unauthorized use or other breach of this Agreement or of the User Agreement, Visible Body has the right to immediately cause access under this Agreement for the offending user, IP, or session to be terminated until the breach is corrected. Visible Body and Subscriber agree that they will work together to correct the breach as soon as possible so that access can be restored.
4. Rights and Responsibilities of Visible Body
4.1 Visible Body will use commercially reasonable efforts:
4.1.1 to make the Services available by means of the World Wide Web to Subscriber’s Authorized Users during the Subscription Period;
4.1.2 to ensure that the Server has sufficient capacity and rate of connectivity to provide Subscriber with a quality of service consistent with current standards in the World Wide Web on-line information provision industry;
4.1.3 to restore access to the Services in the event of an interruption or suspension of the service.
4.2 Visible Body may, directly or indirectly, suspend, terminate, or otherwise deny Subscriber's, any Authorized User's, or any other person's access to or use of all or any part of the Visible Body Materials, without incurring any resulting obligation or liability, if: (a) Visible Body receives a judicial or other governmental demand or order, subpoena, or law enforcement request that expressly or by reasonable implication requires Visible Body to do so; or (b) Visible Body believes, in its reasonable discretion, that: (i) Subscriber has not met its obligation to pay fees or other amounts due to Visible Body hereunder; (ii) Subscriber or any Authorized User has failed to comply with any other term of this Agreement, or accessed or used the Services beyond the scope of the rights granted or for a purpose not authorized under this Agreement or in any manner that does not comply with any instruction or requirement provided by Visible Body; (iii) Subscriber or any Authorized User is, has been, or is likely to be involved in any fraudulent, misleading, or unlawful activities; or (iv) this Agreement expires or is terminated. This Section 4.2 does not limit any of Visible Body 's other rights or remedies, whether at law, in equity, or under this Agreement.
4.3 Visible Body reserves the right to modify and make changes to the Visible Body Materials that it deems necessary or useful to (a) maintain or enhance: (i) the quality or delivery of Visible Body’s services to its customers; (ii) the competitive strength of or market for Visible Body’s services; or (iii) Visible Body’s cost efficiency or performance; or (b) to comply with applicable law.
5. Fees and Payment
5.1 In consideration of the rights granted to Subscriber and its Authorized Users to access and use the Services pursuant to Section 2.1 hereof, Subscriber agrees to pay Visible Body the annual license fee as specified in the Order Form for the initial term. Payment is due upon execution of this Agreement, unless otherwise stated in the Order Form. Thereafter, Visible Body may adjust the annual license fee for subsequent renewal terms by providing written notice of such change at least 30 days prior to the commencement of such renewal term. Payment of the annual license fee for any renewal term shall be due on or before the first day of such renewal term.
5.2 Subscriber is solely responsible for payment of any taxes (including value added, sales or use taxes, intangible taxes and property taxes), resulting from its acceptance of this Agreement and its use of the Services, exclusive of taxes based on Visible Body’s income.
6. Representations and Warranties
6.1 Visible Body represents and warrants that it has the authority to enter into this Agreement and to grant the rights herein granted to subscriber and that use by Subscriber of the Services in accordance with the terms of this Agreement does not violate or infringe upon any U.S. patent, copyright, trademark, trade secret or other proprietary right of any third party.
6.2 Except as expressly stated above, the Services is provided “AS IS” and “AS AVAILABLE,” and Visible Body makes no representation or warranty, express or implied, that (a) the Services will be of satisfactory quality, suitable for any particular purpose or for any particular use under specified conditions, notwithstanding that such purpose, use, or conditions may be known to Visible Body; or (b) that the Services will operate error free or be available without interruption or that any errors will be corrected; or (c) that the material contained in the Services is either complete or accurate.
6.3 UNDER NO CIRCUMSTANCES WILL VISIBLE BODY BE LIABLE TO SUBSCRIBER OR ANY THIRD PARTY FOR ANY LOSS RESULTING FROM A CAUSE OVER WHICH VISIBLE BODY DOES NOT HAVE DIRECT CONTROL, INCLUDING BUT NOT LIMITED TO FAILURE OF ELECTRONIC OR MECHANICAL EQUIPMENT OR COMMUNICATION LINES, TELEPHONE OR OTHER INTERCONNECT PROBLEMS, UNAUTHORIZED ACCESS, THEFT, OR OPERATOR ERRORS.
6.4 UNDER NO CIRCUMSTANCES WILL VISIBLE BODY BE LIABLE TO SUBSCRIBER OR ANY THIRD PARTY FOR ANY CONSEQUENTIAL, INCIDENTAL, SPECIAL, PUNITIVE, EXEMPLARY OR INDIRECT DAMAGES OR LOSS OF PROFITS INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF DATA OR CORRUPTION OF DATA, LOSS OF PROGRAMS, LOSS OF BUSINESS OR GOODWILL, OR OTHER DAMAGES OR LOSSES OF ANY NATURE ARISING OUT OF THE USE OF, OR INABILITY TO USE THE LICENSED WORK(S), EVEN IF IT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
6.5 SUBSCRIBER AGREES THAT THE ENTIRE LIABILITY OF VISIBLE BODY TO SUBSCRIBER OR AUTHORIZED USERS ARISING OUT OF ANY KIND OF LEGAL CLAIM (WHETHER IN CONTRACT, TORT, BY STATUTE OR OTHERWISE) IN ANY WAY CONNECTED WITH THE USE OR INABILITY TO USE THE LICENSED WORK(S) SHALL BE THE REFUND OF ANY FEE PAID TO VISIBLE BODY HEREUNDER WITHIN THE TWELVE MONTH PERIOD IMMEDIATELY PRECEDING THE CAUSE GIVING RISE TO THE CLAIM.
6.6 The limitations upon damages and claims set forth in this section are intended to apply without regard to whether other provisions of this agreement have been breached or have proven ineffective.
7. Proprietary Rights and Confidentiality
7.1 Visible Body Materials. All right, title, and interest in and to the Visible Body Materials, including all Intellectual Property Rights therein, are and will remain with Visible Body and, with respect to Third-Party Materials, the applicable third-party providers own all right, title, and interest, including all Intellectual Property Rights, in and to the Third-Party Materials. Subscriber has no right, license, or authorization with respect to any of the Visible Body Materials except as expressly set forth in Section 2.1 or the applicable third-party license, in each case subject to Section 2 and Section 3. All other rights in and to Visible Body Materials are expressly reserved by Visible Body.
7.2 Notification. Subscriber shall notify Visible Body promptly (a) of the facts and circumstances surrounding any unauthorized possession or use of Visible Body Materials, or any portion thereof; and (b) on becoming aware of any claim by any third party that the Services infringes an intellectual property or proprietary right of any third party.
7.3 User Content. All User Content is and shall remain the property of Subscriber’s Authorized Users. Visible Body makes no claims, warranties or representations with regard to the ownership of User Content. Visible Body may share User Content, in the singular - or aggregate, by providing reports or otherwise, to Authorized Users, all in accordance with elections and criteria established by Authorized Users through the Services, consistent with the Family Educational Rights and Privacy Act, 11 U.S.C. § 1232g (“FERPA”) and the regulations promulgated thereunder. Subscriber agrees that Visible Body is contracted to perform educational services, including supplemental assessments, for which the Subscriber may otherwise use its employees. Disclosures made to Authorized Users (if any) are limited to persons within the Subscriber institution whom the Subscriber has determined have legitimate educational interests. Pursuant to this Agreement, Visible Body remains under the direct control of the Subscriber with respect to the use and maintenance of the education records. Subscriber and each Authorized User (if applicable) hereby grants Visible Body a world-wide license to host, copy, transmit, display and otherwise use User Content in accordance with elections and criteria established by Authorized Users, consistent with FERPA.
7.4 Confidential Information. In connection with this Agreement each party (as the "Disclosing Party") may disclose or make available Confidential Information to the other party (as the "Receiving Party"). Subject to Section 7.5, "Confidential Information" means information in any form or medium (whether oral, written, electronic, or other) that the Disclosing Party considers confidential or proprietary, including information consisting of or relating to the Disclosing Party's technology, trade secrets, know-how, business operations, plans, strategies, customers, and pricing, and information with respect to which the Disclosing Party has contractual or other confidentiality obligations, in each case whether or not marked, designated, or otherwise identified as "confidential". Without limiting the foregoing: all Visible Body Materials are the Confidential Information of Visible Body and the terms of this Agreement are the Confidential Information of Visible Body.
7.5 Confidential Information Exclusions. Confidential Information does not include information that: (a) was rightfully known to the Receiving Party without restriction on use or disclosure prior to such information's being disclosed or made available to the Receiving Party in connection with this Agreement; (b) was or becomes generally known by the public other than by the Receiving Party's or any of its representatives' noncompliance with this Agreement; (c) was or is received by the Receiving Party on a non-confidential basis from a third party that was not or is not, at the time of such receipt, under any obligation to maintain its confidentiality; or (d) the Receiving Party can demonstrate by written or other documentary records was or is independently developed by the Receiving Party without reference to or use of any Confidential Information.
7.6 Protection of Confidential Information. As a condition to being provided with any disclosure of or access to Confidential Information, the Receiving Party shall:
7.6.1 not access or use Confidential Information other than as necessary to exercise its rights or perform its obligations under and in accordance with this Agreement;
7.6.2 not disclose or permit access to Confidential Information other than to its representatives who: (a) need to know such Confidential Information for purposes of the Receiving Party's exercise of its rights or performance of its obligations under and in accordance with this Agreement; (b) have been informed of the confidential nature of the Confidential Information and the Receiving Party's obligations under this Section 7.6; and (c) are bound by written confidentiality and restricted use obligations at least as protective of the Confidential Information as the terms set forth in this Section 7.
8.1 Indemnification by Visible Body. Visible Body shall indemnify, defend and hold Subscriber harmless from and against any and all losses, costs, liabilities, damages, judgments, and expenses to the extent resulting from any third party claim that the use of the Services, or any portion thereof, by Subscriber in accordance with this Agreement and the User Agreement infringes or violates any U.S. copyright or patent.
In the event that the Services or any portion thereof is held to constitute an infringement and its use is enjoined, Visible Body may, at its sole discretion, (a) modify the infringing portion of the Services so that it is non-infringing, (b) procure for Subscriber and its Authorized Users the right to continue to access the Services in accordance with the terms of this Agreement, (c) replace the Services or portions thereof with equally suitable, non-infringing software, or (d) other remedies that Visible Body determines to be reasonable and appropriate. Visible Body shall have no liability for any claim of infringement based on (x) use or combination of any portion of the Services with any products not supplied by Visible Body if such infringement would not have occurred without such use or combination, (y) use of the Services by Subscriber after having received notice from Visible Body that the Services infringes the proprietary rights of a third party, or (z) use of the Services in a manner not authorized under the terms of this Agreement.
8.2 Indemnification by Subscriber. Subscriber shall indemnify, defend and hold Visible Body harmless from and against any losses, costs, liabilities, damages, judgments, and expenses (including reasonable attorneys’ fees) resulting from any third party claim based on Subscriber’s or any of its Authorized Users’ use of Services and Visible Body Materials, except to the extent it is based on a claim covered under Section 8.1, above.
8.3 Indemnification Procedures. The indemnification obligations of the parties under Sections 8.1 and 8.2 shall not apply (a) to the extent that the matter upon which the claim for indemnification is based was caused by the gross negligence or willful misconduct of the party claiming indemnification, and (b) unless the party claiming indemnification promptly notifies the other of any matters in respect of which the indemnity may apply and of which the notifying party has knowledge and gives the other full opportunity to control the response thereto and the defense thereof, including without limitation any agreement relating to the settlement thereof. The indemnified party’s failure to promptly give notice shall affect the indemnifying party’s obligation to indemnify the indemnified party only to the extent the indemnifying party’s rights are materially prejudiced by such failure. The indemnified party may participate, at its own expense, in such defense and in any settlement discussions directly or through counsel of its choice.
9. Term and Termination
9.1 Subscription Period. The initial term of this Agreement shall be one (1) year, commencing upon the License Start Date as specified in the applicable Order Form, unless sooner terminated as provided herein. Unless either party gives the other written notice of non-renewal at least 30 days in advance of the expiration date, the term of the Agreement shall be renewed automatically for successive one year terms, subject to all of the terms and conditions of this Agreement. The initial term and any and all such renewal term(s) shall be referred to herein as the “Subscription Period.”
9.2 Termination by Visible Body. Visible Body may terminate this Agreement, effective on written notice to Subscriber, if Subscriber (a) fails to pay any amount when due hereunder, and such failure continues more than 30 days after Subscriber's delivery of written notice thereof; or (ii) breaches any of its obligations under Section 2.3, Section 3, and Section 7;
9.3 Termination by Either Party. Either party may terminate this Agreement by written notice to the other (a) in the event that the other party commits a material breach of this Agreement and, in the case of a breach capable of cure, fails to cure the same within 30 days of written notice, specifying the breach; or (b) becomes insolvent or is generally unable to pay, or fails to pay, its debts as they become due; (c) files, or has filed against it, a petition for voluntary or involuntary bankruptcy or otherwise becomes subject, voluntarily or involuntarily, to any proceeding under any domestic or foreign bankruptcy or insolvency Law; (d) makes or seeks to make a general assignment for the benefit of its creditors; or (e) applies for or has appointed a receiver, trustee, custodian, or similar agent appointed by order of any court of competent jurisdiction to take charge of or sell any material portion of its property or business.
9.3 Duties Upon Termination. Upon termination of this Agreement, Subscriber shall cease all use of the Services and Visible Body Materials and promptly return to Visible Body, or at Visible Body's written request destroy, all documents and tangible materials containing, reflecting, incorporating, or based on Visible Body’s Confidential Information.
9.4 Effect of Termination. Upon any expiration or termination of this Agreement, except as expressly otherwise provided in this Agreement, all rights, licenses, consents, and authorizations granted by either party to the other hereunder will immediately terminate. Expiration or termination shall not affect payment obligations accrued as of the date of termination.
9.5 Surviving Terms. The provisions set forth in the following sections, and any other right or obligation of the parties in this Agreement that, by its nature, should survive termination or expiration of this Agreement, will survive any expiration or termination of this Agreement: Sections 2.3, Section 6, Section 7, Section 8, Section 9, and Section 10.
10. Dispute Resolution
Prior to either party commencing any legal court action under this Agreement, the parties agree to try in good faith, to settle any disputes amicably between them. Subject to Section 11.4, if a dispute has not been settled after forty-five (45) days of good-faith negotiation, then either party may commence legal action against the other. Notwithstanding the foregoing, a party may seek a preliminary injunction or other preliminary judicial relief if in its judgment such action is necessary to avoid irreparable damage. Despite any such action the parties will continue to participate in good faith in the procedures specified in this Section. All applicable statutes of limitation shall be tolled during the pendency of any negotiations hereunder, and the parties agree to take such action, if any, required to effectuate such tolling.
11.1 Export Regulation Compliance. Subscriber shall be responsible for complying with any and all applicable United States and foreign export and import laws and regulations in exporting the Services or any portion thereof outside of the United States.
11.2 Notices. Any notice provided pursuant to this Agreement shall be in writing and shall be deemed given (a) if by hand delivery, upon receipt thereof; (b) if mailed, three (3) business days after deposit in the United States mails, postage prepaid, certified mail return receipt requested, or (c) if sent via overnight courier with receipt, the following business day. Notices shall be sent to the address of the applicable party listed in the preamble to this Agreement or such other address as may have been provided by such party in accordance with the terms of this section.
11.3 Assignment. This Agreement shall not be assigned by either party without the written consent of the other; provided, however that Visible Body may assign this Agreement to any successor in interest to the Services; provided such successor in interest agrees in writing to be bound by the terms and conditions of this Agreement. This Agreement shall be binding upon and inure to the benefit of the parties, their successors and permitted assigns.
11.4 Governing Law and Venue. This Agreement and performance hereunder shall be governed by the laws of the Commonwealth of Massachusetts, without regard to conflicts of law. Jurisdiction for litigation of any dispute, controversy or claim arising out of or in connection with this Agreement, or the breach thereof, shall be only in a Federal or State Court with competent jurisdiction located in Suffolk County, Massachusetts.
11.5 Force Majeure. Neither party shall be liable for delay or failure to perform any of its obligations hereunder, except for the payment of any fees or expenses due hereunder, to the extent that such delay or failure arises from any cause beyond that party’s reasonable control. Performance times shall be considered extended for a period of time equal to the time lost because of such delay or failure.
11.6 Severability. If any provision of this Agreement shall be held to be invalid, illegal or unenforceable by a court of competent jurisdiction, the validity, legality and enforceability of the remaining provisions shall in no way be affected or impaired thereby.
11.7 Remedies. The rights and remedies of Visible Body set forth in this Agreement are not exclusive and are in addition to any other rights and remedies available to it in law or in equity.
11.8 No Waiver. The waiver or failure of any party to exercise any right provided for herein shall not be deemed a waiver of any further right hereunder.
11.9 Independent Contractors. It is expressly agreed that Visible Body and Subscriber are acting hereunder as independent contractors and under no circumstances shall any of the employees of one party be deemed the employees of the other for any purpose. This Agreement shall not be construed as authority for either party to act for the other party in any agency or other capacity, or to make commitments of any kind for the account of or on behalf of the other.
11.10 Headings. Headings used in this Agreement are for reference only and shall not be deemed a part of this Agreement.
11.11 Signatures and Counterparts. Facsimile signatures shall be deemed valid as original for all purposes. Digital signatures shall be deemed valid as original for all purposes provided that such digital signature is capable of verification and is linked to data in such a manner that if the data are changed, the digital signature is invalidated. This Agreement may be executed in any number of duplicate counterparts, each of which is an original, and all of which together shall constitute one and the same instrument.
11.12 No Third Party Beneficiaries. The terms and conditions of this Agreement are between Visible Body and Subscriber only. There are no third party beneficiaries of any of the terms or conditions hereunder.
11.13 Publicity. If either party wishes to issue a press release or engage in marketing activities in connection with the activities contemplated in this Agreement, such releases will be subject to prior review and written approval of the other party, which shall not be unreasonably withheld or delayed. Subscriber agrees that Visible Body may publicly announce and list Subscriber as a customer of Visible Body. Visible Body agrees that Subscriber may publicly announce and list Visible Body as a vendor to Subscriber.
11.14 Entire Agreement. This Agreement, including any exhibits hereto, constitutes the complete understanding and agreement of the parties with respect to the subject matter hereof and supersedes and merges any prior understandings, statements, negotiations between the parties, whether oral or otherwise, including without limitation any confidentiality or nondisclosure agreement between the parties. This Agreement may not be modified except by a writing signed by both parties.