This Agreement sets forth the terms and conditions under which a Group Partner may provide services that include access to Posit Science’s Apps by a Group of End Users to be managed by one or more Group Admins.
This Agreement specifically governs the relationship between Posit Science and the Group Partner and includes additional or different terms from the Terms of Service that govern the general use of the Apps (“Terms of Service”), which can be found at http://www.brainhq.com/terms. In the event of any conflict between this Agreement and the Terms of Service, this Agreement shall control with respect to Group Partners, Group Admins, and the use of the Apps by Groups of End Users.
By registering for or using a Group Admin Account (as described in Section 1 (Group Admin Accounts)), you are agreeing on behalf of the Group Partner that you have the authority to bind, and expressly do bind, that Group Partner to the terms and conditions of this Agreement, otherwise you must not register for a Group Admin Account.
For this Agreement, the following definitions apply:
“Agreement” means this Posit Science Group Agreement and is between Posit Science Corporation (“Posit Science,” “we,” “us” or “our) and the Group Partner that the Group Admin represents.
“Apps” means Posit Science’s websites, including www.BrainHQ.com, and our BrainHQ, Drivesharp, InGear, and Useful Field of View (UFOV) applications on the web, mobile phones, or tablets. The Apps are copyrighted works belonging to Posit Science.
“End Users” means people who are using the Apps under the terms of this Agreement (e.g., residents of a senior living community, members of a sports team, research participants at a university, or customers or employees of an organization).
“Group” means a set of End Users managed by a Group Admin.
“Group Admin” or “you” means a person who sets up or manages a Group (e.g., an activities director at a senior living community, a coach of a sports team, a scientist at a university, or a manager at an organization), and who represents a Group Partner.
“Group Partner” means the company or entity that the Group Admin represents (e.g., a senior living community, a sports team, or a university).
- Group Admin Accounts.
- Group Admin Account. In order to manage the Group, a Group Admin must have a group administrator account (“Group Admin Account”). Group Admins represent and warrant that they will maintain the accuracy of the information about themselves in their Group Admin Accounts. They are responsible for maintaining the confidentiality of their Group Admin Account login information and are fully responsible for all activities that occur under their Group Admin Accounts. They agree to immediately notify Posit Science of any unauthorized use, or suspected unauthorized use, of their Group Admin Account or any other breach of security. Posit Science cannot and will not be liable for any loss or damage arising from their failure to comply with the above requirements. Posit Science may suspend a Group Admin Account at any time without notice if Posit Science believes that the Group Admin is in breach of this Agreement.
- Additional Group Admin Accounts. A Group Admin may provide other people in their Group with Group Admin Accounts using the tools provided in the Apps, thus allowing them to manage the Group. Group Admins will inform all such people who receive Group Admin Accounts prior to their use of their Group Admin Account that the use of their Group Admin Account is subject to this Agreement, and that by using their Group Admin Account they agree to be bound by and comply with this Agreement. Whether or not the person a Group Admin provides with a Group Admin Account is employed at the Group Partner, the providing Group Admin represents and warrants on behalf of the Group Partner that the Group Partner permits the disclosure of both Personally Identifiable Information (PII) and Protected Health Information (PHI) regarding End Users in the Group to each person who has been provided with a Group Admin Account.
- End User Accounts.
- End User Information. Group Admins are responsible for the creation of End User Accounts for their Groups, using the tools provided in the Apps. If a Group Admin and an End User who is not in a Group agree, Posit Science will add that End User to the Group, at which point the Group Admin will be responsible for that End User in the same way as for an End User for whom the Group Admin created an End User Account.
- End User Terms. End User use of the Apps is subject to the Terms of Service that govern the relationship between Posit Science and such End User, which can be found at http://www.brainhq.com/terms. Group Admins will inform all End Users that by using the Apps the End User agrees to be bound by and comply with the Terms of Service.
- End User Support. The Group Partner will provide support to End Users for inquiries that relate to (i) the issuance of Group Licenses, (ii) computing systems, software, and internet access provided by the Group Partner, or (iii) services provided by the Group Partner to End Users (e.g., cognitive training classes, specific choices made by Group Admins about how End Users should use the Apps). Posit Science will provide support to End Users and Group Admins for inquiries related to the use of the Apps.
- End User Marketing. Posit Science agrees to opt-out (i.e., will no longer send marketing emails to) End Users who receive Group Licenses (defined below in Section 4A (Group Licenses)) from Posit Science email marketing as long as such End Users hold valid Group Licenses. Posit Science may continue to send such End Users administrative emails, such as password reset emails; and informational emails, such as the new user onboarding emails and Posit Science newsletter. Such informational emails may incidentally contain information about subscriptions to the Apps.
- End User Data.
- End User Analytics. Posit Science may offer the Group Partner access to certain analytics regarding the use of the Apps by End Users (the “End User Analytics”). The End User Analytics will be deemed the Confidential Information of Posit Science, unless otherwise authorized by Posit Science as described in Section 3C (Use of End User Data).
- End User PII. Posit Science may disclose to the Group Partner certain PII, including in connection with the End User Analytics. The Group Partner will only use any PII disclosed as authorized in writing by Posit Science as described in Section 3C (Use of End User Data) and, notwithstanding anything to the contrary in Section 10 (Confidentiality), will not disclose PII to any third party, except to the extent required by applicable law or a court order or with the express, informed consent of the applicable End User. The Group Partner will protect all such PII from unauthorized use, disclosure, or access.
- Group Licenses.
- “Group License” means a nonexclusive, limited right for an End User to access and use the Apps on a term basis, subject to the Terms of Service found at http://www.brainhq.com/terms and any other terms and conditions governing the use of the Apps.
- Orders. Group Admins may place orders with Posit Science for Group Licenses. All orders will be subject to acceptance by Posit Science in its sole discretion. Posit Science will notify a Group Admin of acceptance of an order by email to the address specified in the Group Admin Account or through such other means as specified in the Apps. If Posit Science accepts the order, then Posit Science will provide instructions on how to activate the Group Licenses through the Apps and associate them with particular End Users. The terms of this Agreement will govern all such orders submitted by Groups Admins to Posit Science; no additional or inconsistent term or condition in any such order will have any legal effect.
- Fees and Payment. For each order of Group Licenses accepted by Posit Science under this Agreement, the Group Partner will pay Posit Science the fees set forth in Posit Science’s then-current price list as specified in the Apps or on the invoice. Upon placing an order for any Group Licenses, the Group Partner will be responsible for the payment of the applicable fees as described in the Apps or on the invoice.
- Subscription Licenses. Posit Science provides Group Licenses purchased using the tools available in the Apps on an automatically recurring subscription basis with specific terms as described in the Apps. The Group Partner acknowledges that Posit Science reserves the right to change our fees from time to time in our discretion, provided that any such change will not apply until the next subscription period. Posit Science will notify Group Admins of such changes by posting a notice in the Apps or sending an email notice to the email address provided in the Group Admin Account. All subscriptions automatically renew upon the expiration of the then-current subscription period, unless cancelled earlier, which a Group Admin may do according to Section 11B (Termination) by contacting Posit Science as set forth in Section 21 (Contact Information) below. Posit Science will automatically bill a credit card or other payment method on the date that the subscription to the applicable Group License begins, and each date thereafter on which a successive subscription period begins, until a Group Admin cancels the subscription to that Group License in accordance with Section 11B (Termination). The Group Partner hereby authorizes Posit Science to bill a credit card or other payment method as described in this Section 5. The Group Partner is responsible for paying all fees and applicable taxes associated with our Group Licenses in a timely manner with a valid payment method. If the payment method fails or any amounts owed to Posit Science are past due, Posit Science may collect fees owed using other collection mechanisms (including retaining collection agencies and legal counsel) or suspend the Group Admin Accounts of the Group Partner and/or access to any or all Apps (including the paid and/or the free features).
- Enterprise Licenses. Posit Science provides Group Licenses purchased on a site or enterprise license basis (an “Enterprise License”). The terms of an Enterprise License shall be set forth in a quote, agreement, or other written instrument that sets forth the cost, extent, and any other additional terms of the Enterprise License granted by Posit Science to the Group Partner.
- Bulk Purchase Licenses. Posit Science provides Group Licenses purchased by invoice on a bulk purchase basis. The Group Partner may purchase a non-refundable credit (the “Credit”) to be applied to the use of the Apps by End Users and Group Admins. Each calendar month, Posit Science will track the number of people who make use of the Apps as an End User and the number of people who make use of the Apps as a Group Admin, and will deduct from the Credit the price set forth on the invoice for each such End User and each such Group Admin. The Group Partner may purchase additional Credit from time to time; and in doing so, replenish the Credit to avoid any interruption in service to End Users and Group Admins. Any unused Credit will expire 36 months after its purchase.
- Transfers. A Group Admin may transfer, and permit the transfer of, any valid Group License from one End User to another End User using the tools provided in the Apps.
- Confidential Pricing: The price of Group Licenses is Confidential Information, and may not be disclosed, including (for example) to End Users by pricing Group Licenses on a pass-through or line-item basis.
- Proprietary Rights.
- License to Provide Group Licenses. Subject to the terms and conditions of this Agreement, Posit Science grants the Group Partner a non-exclusive, non-transferable, revocable license to directly provide Group Licenses to the Apps solely to End Users in the territory designated by Posit Science (“Territory”) while a person has an active Group Admin Account.
- License to Demo. Subject to the terms and conditions of this Agreement, Posit Science grants the Group Partner a limited, non-exclusive, royalty-free, non-transferable, personal, revocable license, without right to sublicense, (i) to access and use Apps for internal training of employees and agents, and (ii) to demonstrate and market the Apps to customers and potential customers (“Demo License”). The Group Partner is not entitled to use the Apps for any other purpose under the Demo License.
- Restrictions. The Group Partner agrees not to, and not to allow any third party to (a) reproduce, modify, adapt, alter, translate, or create derivative works from the Apps; (b) distribute, sublicense, sell, lease, rent, loan, make available, or otherwise transfer the Apps to any third party, except as expressly permitted in Section 5A (License to Provide Group Licenses); (c) reverse engineer, decompile, disassemble, or otherwise attempt to derive the source code for the Apps; (d) sell, lease, rent, loan, or otherwise transfer any Group License, in whole or in part, to any third party except as expressly permitted in Sections 5A (License to Provide Group Licenses) or 4D (Transfers); or (e) use the Apps, information about the Apps or information or data derived from the Apps in a research study without prior written approval from Posit Science.
- Trademark and Collateral License. Subject to the terms and conditions of this Agreement, Posit Science grants to the Group Partner a non-exclusive, non-transferable, revocable license (without the right to grant sublicenses) to (a) use and display the trademarks, service marks, and logos provided by Posit Science (collectively, the “Marks”) solely in connection with promoting the Apps in the Territory; and (b) use, reproduce, and distribute the publicly available content on http://www.brainhq.com/ regarding the Apps (“Collateral”) solely in connection with promoting the Apps in the Territory. The Group Partner will not modify, edit, or translate the Collateral in any way, except as permitted by Posit Science in writing. The Group Partner will provide Posit Science with a sample of each proposed use of Marks and/or Collateral upon request. The Group Partner will use the Marks in the form provided and in conformance with any trademark usage policies provided, from time to time, by Posit Science to the Group Partner. The Group Partner acknowledges Posit Science’s exclusive ownership of the Marks and Collateral. The Group Partner agrees not to take any action inconsistent with such ownership and will cooperate, at Posit Science’s request and expense, in any action which Posit Science deems necessary or desirable to establish or preserve Posit Science’s exclusive rights in and to the Marks. Upon request, the Group Partner will immediately cease all use and display of the Marks and use, reproduction, and distribution of the Collateral.
- Ownership of Apps. The Apps, and all worldwide intellectual property rights therein, are the exclusive property of Posit Science and its suppliers. There are no implied licenses granted hereunder, and all rights in and to the Apps not expressly granted to the Group Partner in this Agreement are reserved by Posit Science and its suppliers.
- Describing the Apps. The Group Partner will not make or publish any representations, warranties, or guarantees concerning the Apps, other than those expressly made by Posit Science on http://www.brainhq.com/ and in the context made there.
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- Representations and Warranties. Each party represents and warrants to the other that such party (1) is duly organized and validly subsisting under the laws of its state of domicile and is qualified to do business in every jurisdiction where such qualification is necessary to conduct business hereunder; (2) has the authority to enter into this Agreement, and (3) is not bound by any other agreement, obligation or restriction, and will not assume any other obligation or restriction or enter into any other agreement, which would interfere with its obligations under this Agreement or any rights granted to the other party under this Agreement.
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- Business Practices. Each party will conduct its business in a manner that reflects favorably at all times on such party and on the other party’s products, services, good name, goodwill, and reputation. Each party agrees it will not make any statements on behalf of the other party or on behalf of the other party’s products or services that are inconsistent with the statements made by the other party.
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- Privacy Concerns. Each party agrees that it will not use any non-public personal information, protected health information and/or electronic protected health information about End Users in any manner prohibited by Title V of the Gramm-Leach-Bliley Act or by the Health Insurance Portability and Accountability Act of 1996 (or any other applicable law, regulation, policy or rule).
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- Confidentiality. Posit Science and Group Partner may end up sharing Confidential Information (defined below); in which case each party who receives the other Party’s Confidential Information (the “Receiving Party) agrees to hold the Confidential Information of the other party (the “Disclosing Party”) in strict confidence and to refrain from any disclosure, use or publication of such Confidential Information, except as expressly authorized in writing by the Disclosing Party, during the term of this Agreement and thereafter. “Confidential Information” means any and all information related to the Disclosing Party’s business that is labeled or identified as “confidential” or “proprietary” or that the Receiving Party otherwise knows, or would reasonably be expected to know, the Disclosing Party considers to be confidential or proprietary. The Receiving Party’s obligations set forth in this Section 10 shall not apply with respect to any portion of the Confidential Information that (a) was in the public domain at the time it was communicated to the Receiving Party by the Disclosing Party; (b) entered the public domain not through the Receiving Party’s fault, subsequent to the time it was communicated to the Receiving Party by Disclosing Party; (c) was in the Receiving Party’s possession free of any obligation of confidence at the time it was communicated to the Receiving Party by Disclosing Party; (d) was rightfully communicated to the Receiving Party free of any obligation of confidence subsequent to the time it was communicated to the Receiving Party by the Disclosing Party; or (e) was developed by the Receiving Party’s employees or agents independently of and without reference to any information communicated to the Receiving Party by the Disclosing Party. The Receiving Party may disclose Disclosing Party’s Confidential Information in response to a valid order by a court or other governmental body, or as otherwise required by law, after having given Disclosing Party sufficient prior notice to permit Disclosing Party a reasonable opportunity to lodge objections to such disclosure. Upon termination of the Agreement and request by the Disclosing Party, the Receiving Party agrees, unless otherwise legally required, to (i) promptly deliver to Disclosing Party, or, at Disclosing Party’s option, destroy the original and any copies of the Confidential Information and (ii) permanently erase all electronic copies of the Confidential Information.
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- Term and Termination.
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- Term. The term of this Agreement will begin on the date that a Group Admin first registers for or first uses their Group Admin Account and will continue until terminated pursuant to Sections 11B (Termination) or 15 (Amendment).
- Termination. The Group Partner may terminate this Agreement for any reason or no reason by contacting Posit Science at email@example.com and requesting that termination. Posit Science will do so within five (5) business days, which will terminate this Agreement. Posit Science may terminate this Agreement (i) for non-payment, upon ten (10) business days’ notice to the Group Partner, delivered to the Group Admin, or (iii) for any reason or no reason upon sixty (60) days prior written notice to the Group Partner, delivered to the Group Admins. Either party may terminate this Agreement, effective immediately upon written notice to the other party, if such other party breaches any provision of this Agreement and does not cure the breach within thirty (30) days after receiving written notice thereof from the non-breaching party.
- Effects of Termination. Upon termination or expiration of this Agreement for any reason, any amounts owed to Posit Science under this Agreement before such termination or expiration will be immediately due and payable, all licensed rights granted in this Agreement will immediately cease to exist, and the Group Partner must promptly discontinue all further use of the Marks and Collateral and all further marketing and resale of the Group Licenses, and cease any use of the Apps under the Demo License. Notwithstanding anything to the contrary, all Group Licenses granted to End Users will survive until their term ends. Posit Science will convert all Group Admin Accounts to Accounts without Group Admin privileges (e.g., Accounts with unpaid access to the Apps). Sections 6 (Describing the Apps) (only with respect to the indemnification and defense obligations), 4C (Fees & Payments) (to the extent any payment obligations have accrued), 5C (License Restrictions), 5D (Trademark & Collateral License), 10 (Confidentiality), 11C (Effects of Termination), 12 (Warranty Disclaimer), 13 (Limitation of Liability), 14 (Indemnification), 16 (Governing Law) and 20 (General Provisions) will survive expiration or termination of this Agreement for any reason.
- Warranty Disclaimer. Posit Science is providing the Apps and any services provided by Posit Science hereunder on an "as is" and "as available" basis for use at the Group Partner’s own risk. Posit Science (and its suppliers) disclaims all warranties, whether express, implied, or statutory, including any warranties of title, noninfringement of third-party rights, merchantability, fitness for a particular purpose, accuracy, and quiet enjoyment. Posit Science (and its suppliers) does not warrant the accuracy or completeness of the site content or that the apps or any services provided by Posit Science hereunder will be provided error free or that all errors will be corrected. Posit Science site content is provided with the understanding that neither Posit Science nor its licensors or suppliers are engaged in rendering medical, legal, or other professional services or advice. The site content is intended solely for informational purposes and is not intended as medical advice, or to be used for medical diagnosis or treatment, for any problem. It is also not intended as a substitute for professional advice and services from a qualified healthcare provider familiar.
Some jurisdictions do not allow the exclusion of certain warranties or the exclusion or limitation of liability for consequential or incidental damages, so those specific limitations that are not allowed in Sections 12 (Warranty Disclaimer) and/or 13 (Limitation of Liability) above, as applicable, may not apply to the Group Partner. The duration of any such warranty that may not be excluded is limited to a period of thirty (30) days after a Group Admin’s first use of our Apps, or, if such limitation on duration is not permitted under applicable law, to the minimum period permitted under applicable law.
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- Limitation of Liability. In no event shall Posit Science or its licensors or suppliers be liable for any indirect, incidental, special, exemplary, or consequential damages arising out of or relating to this Agreement, the Apps or any service provided by Posit Science hereunder, including any damages resulting from loss of use, data, or profits, whether or not Posit Science has been advised of the possibility of such damages, on any theory of liability. Posit Science’s total cumulative liability arising out of or relating to this Agreement, the Apps or any service provided by Posit Science hereunder, whether in contract, tort, or otherwise, shall not exceed the amounts paid to Posit Science by the Group Partner in the twelve (12) months preceding the claim. The existence of more than one claim will not enlarge this limit.
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- Indemnification. Each party, on behalf of itself and its officers, members of its governing board, employees, contractors, affiliates and agents ("Indemnifying Party") agrees to indemnify and hold the other party and its officers, partners, members of its governing board, employees, contractors, representatives, affiliates and agents ("Indemnified Party") from and against all losses, claims, causes of action, demands, damages and judgments finally awarded for or paid in settlement of —and further agrees to defend and handle, and at its own cost and expense—any third-party claim or action against the Indemnified Party as a result of (a) the negligent or intentional acts or omissions of the Indemnifying Party, or (b) a breach by the Indemnifying Party of an obligation, representation or warranty hereunder, and for which recovery is sought against the Indemnified Party by a third party, which would have been available to Indemnified Party under this Agreement. The Indemnifying Party shall have the sole right to conduct the defense of any such claim or action and all negotiations for its settlement or compromise, unless otherwise mutually agreed upon and expressed in writing signed by the parties hereto. The Indemnifying Party also shall indemnify the Indemnified Party for any costs and reasonable attorneys’ fees incurred in the Indemnified Party’s defense of any such third-party claim. The foregoing obligations will be contingent upon the Indemnified Party (a) promptly notifying the Indemnifying Party in writing of the claim or action, except that Indemnified Party’s failure to provide such notice shall not relieve Indemnifying Party of its obligations under this Section, except to the extent Indemnifying Party is prejudiced thereby, and (b) providing the Indemnifying Party, at the Indemnifying Party’s expense, with all assistance, information and authority reasonably required for the defense and settlement of the claim.
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- Amendment. This Agreement may be amended by Posit Science from time to time. If Posit Science make material changes to this Agreement, Posit Science may notify the Group Partner by posting the revised Agreement on our Apps or notifying Group Admins at their primary email address (if any, as specified in their Account Information). Group Admins are responsible at all times for updating their Account Information to provide to us their most current e-mail address. If the last e-mail address that provided to us is not valid, or for any reason is not capable of delivering the notice described above, our dispatch of the e-mail containing such notice will nonetheless constitute effective notice of the changes described in the notice. Any changes to this Agreement will be effective immediately for new users of our Apps; otherwise these changes will be effective upon the earlier of thirty (30) days following our dispatch of an e-mail notice to Group Admins or thirty (30) days following our posting of a notice on our Apps. A Group Admin’s continued use of our Apps thirty (30) days after the changes are first notified by Posit Science as described above will constitute the Group Partner’s agreement to such changes. If the Group Partner objects to any change, the Group Partner’s sole recourse shall be to immediately terminate the Agreement and cease using the Apps. Except as otherwise provided in this Section 15, no amendment to this Agreement will be valid, unless in a written instrument executed by Posit Science and the Group Partner.
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- Governing Law. This Agreement, and any claim, dispute or controversy of any nature arising out of or relating to this Agreement, shall be governed by and construed solely and exclusively in accordance with the laws of the State of California, USA without giving effect to any law that would result in the application of the law of another jurisdiction. The Group Partner expressly agrees and consents to the exclusive jurisdiction and venue of the state and federal courts of the State of California, in the City of San Francisco, for the resolution of any such dispute.
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- Intended Audience. Our Apps are maintained by Posit Science from its offices within the United States. Posit Science makes no representation that materials in our Apps are appropriate or available for use in other locations . Those who choose to access our Apps from other locations do so on their own initiative and are responsible for compliance with local or national laws, as applicable. The software, technology and other information from our Apps are further subject to United States export controls and, potentially, the import laws of the Group Partner’s jurisdiction. No software, technology or other information from our Apps may be downloaded or otherwise exported or re-exported to any person or entity on the U.S. Treasury Department's list of Specially Designated Nationals or the U.S. Commerce Department's Table of Denial Orders or otherwise prohibited by United States export control laws. By accessing or using any software, technology or other information from our Apps in any manner whatsoever, the Group Partner represents and warrants that it is not on any such list or located in, under the control of, or a national or resident of any such country.
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- Security Measures. Posit Science uses industry standard technical and organizational measures to securely transfer, store, and process data, including Account Information and Training Data, as described at https://www.brainhq.com/security (“Security Measures”). The Security Measures are designed to protect the integrity of such data and guard against the unauthorized access to or use of such data. Posit Science may update the Security Measures from time to time at its sole discretion.
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- General Provisions. Our failure to exercise or enforce any right or provision of this Agreement shall not operate as a waiver of such right or provision. If any provision in this Agreement is, for any reason, held to be invalid or unenforceable, the other provisions of the Agreement will be unimpaired and the invalid or unenforceable provision will be deemed modified so that it is valid and enforceable to the maximum extent permitted by law. The section titles in this Agreement are for convenience only and have no legal or contractual effect. The word “including” means including without limitation. As used in this Agreement, “business days” means all days excluding Saturday, Sunday, and federal holidays on which banks are required to close. This Agreement, and any other additional terms located on particular pages of our Apps, constitute the entire agreement between the Group Partner and Posit Science regarding the use of the Apps, unless in a written instrument executed by Posit Science and the Group Partner.
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- Contact Information. If you have any questions about this Agreement, please contact Posit Science by email at firstname.lastname@example.org or by writing to Posit Science at Posit Science Corporation, 160 Pine St., Suite 200, San Francisco, CA 94111, in each case marking the message “Attention: Group Admin Account Agreement.”
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