Legal

Data Processing Addendum

This Data Processing Addendum, including its annexes and the Standard Contractual Clauses, ("DPA") is made by and between Forescribe (“Forescribe”), and Customer, pursuant to the Subscription Terms of Service at https://forescribe.ai/terms or other written or electronic agreement between the parties (as applicable) ("Agreement").

This DPA forms part of the Agreement and sets out the terms that apply when Customer Personal Data is processed by Forescribe under the Agreement. The purpose of the DPA is to ensure such processing is conducted in accordance with applicable laws and with due respect for the rights and freedoms of individuals whose Personal Data is processed.

1. Definitions.

Any capitalized term used but not defined in this DPA has the meaning provided to it in the Agreement.

i. "Account Data" means Personal Data that relates to Customer’s relationship with Forescribe, including to access Customer’s account and billing information, identity verification, maintain or improve performance of the Services, provide support, investigate and prevent system abuse, or fulfill legal obligations.

ii. "Affiliate" means any entity controlled by, controlling or under common control by an entity, where "control" means ownership of or the right to control greater than 50% of the voting securities of such entity.

iii. "Applicable Data Protection Legislation" refers to laws and regulations applicable to Forescribe’s processing of personal data under the Agreement, including but not limited to (a) the GDPR, (b) in respect of the UK, the GDPR as saved into United Kingdom law by virtue of section 3 of the United Kingdom's European Union (Withdrawal) Act 2019 ("UK GDPR") and the Data Protection Act 2018 (together, "UK Data Protection Laws"), (c) the Swiss Federal Data Protection Act and its implementing regulations ("Swiss DPA"), (d) CCPA & CPRA, and (e) Australian Privacy Principles and the Australian Privacy Act (1988), in each case, as may be amended, superseded or replaced.

iv. "CCPA" or "CCPA and CPRA" means the California Consumer Privacy Act of 2018 and any binding regulations promulgated thereunder, in each case, as may be amended from time to time. This includes but it is not limited to the California Privacy Rights Act of 2020.

v. "Controller" or "controller" means the natural or legal person, public authority, agency, or other body which, alone or jointly with others, determines the purposes and means of the processing of Personal Data. It shall have the same meaning ascribed to “controller” under the GDPR and other equivalent terms under Applicable Data Protection Legislation (e.g., ”Business” as defined under the CCPA), as applicable.

vi. "Customer Data" has the meaning set forth in the Agreement.

vii. “Customer Personal Data” means Personal Data that Forescribe processes as a Processor on behalf of Customer.

viii. "Europe" means for the purposes of this DPA the European Economic Area ("EEA"), the United Kingdom ("UK") and Switzerland, or another country which ensures an adequate level of protection for the rights and freedoms of data subjects in relation to the processing of Personal Data, as determined by the European Commission in the case that EU Data Protection Law applies respectively as determined by the ICO in the case that UK Data Protection Law applies.

ix. "GDPR" means Regulation 2016/679 of the European Parliament and of the Council on the protection of natural persons with regard to the processing of personal data and on the free movement of such data (General Data Protection Regulation).

x. "Personal Data" or "personal data" or "personal information" means any information, including personal information, relating to an identified or identifiable natural person (“data subject”) or as defined in and subject to Applicable Data Protection Legislation.

xi. “Privacy Policy” means the then-current privacy policy for the Services available at https://forescribe.ai/privacy.

xii. "Processor" or "processor" means the entity which processes Personal Data on behalf of the Controller. It shall have the meaning ascribed to “processor” under the GDPR and other equivalent terms under other Applicable Data Protection Legislation (e.g., “Service Provider” as defined under the CCPA), as applicable.

xiii. "Processing" or "processing" (and "Process" or "process") means any operation or set of operations performed upon Personal Data, whether or not by automated means, means any operation or set of operations that is performed upon Personal Data, whether or not by automatic means, such as collection, recording, securing, organization, storage, adaptation or alteration, access to, retrieval, consultation, use, disclosure by transmission, dissemination or otherwise making available, alignment or combination, blocking, erasure, or destruction.

xiv. "Restricted Transfer" means: (i) where the GDPR applies, a transfer of personal data from the EEA to a country outside of the EEA which is not subject to an adequacy determination by the European Commission; (ii) where the UK GDPR applies, a transfer of personal data from the UK to any other country which is not based on adequacy regulations pursuant to Section 17A of the Data Protection Act 2018; and (iii) where the Swiss DPA applies, a transfer of personal data to a country outside of Switzerland which is not included on the list of adequate jurisdictions published by the Swiss Federal Data Protection and Information Commissioner.

xv. "Security Breach" means a breach of security leading to any accidental, unauthorized or unlawful loss, disclosure, destruction, loss, alteration, unauthorized disclosure of, or access to Customer Personal Data transmitted, stored or otherwise processed by Forescribe. A Security Incident shall not include an unsuccessful attempt or activity that does not compromise the security of Customer Personal Data, including (without limitation) pings and other broadcast attacks of firewalls or edge servers, port scans, unsuccessful log-on attempts, denial of service attacks, packet sniffing (or other unauthorized access to traffic data that does not result in access beyond headers) or similar incidents.

xvi. "Standard Contractual Clauses" or "SCCs" means (i) where the GDPR applies, the standard contractual clauses annexed to the European Commission's Implementing Decision (EU) 2021/914 of 4 June 2021 standard contractual clauses for the transfer of personal data to third countries pursuant to Regulation (EU) 2016/679 of the European Parliament and of the Council, available at https://eur-lex.europa.eu/legal-content/EN/TXT/HTML/?uri=CELEX:32021D0914&from=EN ("EU SCCs"); (ii) where the UK GDPR applies, the applicable standard data protection clauses adopted pursuant to Article 46(2)(c), or (d) where the UK GDPR means the International Data Transfer Addendum to the EU Standard Contractual Clauses issued by the Information Commissioner's Office under s.119A(1) of the Data Protection Act 2018, as such Addendum may be revised under Section 18 therein ("UK SCCs") and (iii) where the Swiss DPA applies, the applicable standard data protection clauses issued, approved or recognized by the Swiss Federal Data Protection and Information Commissioner (the "Swiss SCCs") (in each case, as updated, amended or superseded from time to time).

xvii. "Sub-processor" or "sub-processor" means (a) Forescribe, when Forescribe is processing Customer Personal Data and where Customer is itself a processor of such Customer Personal Data, or (b) any third-party Processor engaged by Forescribe or its Affiliates to assist in fulfilling Forescribe's obligations under the Agreement and which processes Customer Personal Data. Sub-processors may include third parties or Forescribe Affiliates but shall exclude Forescribe employees, contractors or consultants.

xviii. "Third Party Request" means any request, correspondence, inquiry, or complaint from a data subject, regulatory authority, or third party.

xix. "UK Addendum" means the International Data Transfer Addendum to the EU Standard Contractual Clauses issued by the Information Commissioner's Office under s.119A(1) of the Data Protection Act 2018, as such Addendum may be revised under Section 18 therein. This is found in Schedule 4 below.

2. Applicability and Scope.

i. Applicability. This DPA will apply only to the extent that Forescribe processes, on behalf of Customer, Personal Data to which Applicable Data Protection Legislation applies.

ii. Scope. The subject matter of the data processing is the provision of the Services, and the processing will be carried out for the duration of the Agreement. Schedule 1 (Details of Processing) sets out the nature and purpose of the processing, the types of Personal Data Forescribe processes and the categories of data subjects whose Personal Data is processed.

iii. Forescribe as a Processor. The parties acknowledge and agree that regarding the processing of Customer Personal Data, Customer may act either as a controller or processor and Forescribe is a processor. Forescribe will process Customer Personal Data in accordance with Customer’s instructions as set forth in Section 3 (Customer Instructions).

iv. Forescribe as a Controller of Account Data. The parties acknowledge that, regarding the processing of Account Data, Customer is a controller and Forescribe is an independent controller, not a joint controller with Customer. Forescribe will process Account Data as a controller (a) in order to manage the relationship with Customer; (b) carry out Forescribe’s core business operations; (c) in order to detect, prevent, or investigate security incidents, fraud, and other abuse or misuse of the Services; (d) identity verification; (e) to comply with Forescribe’s legal or regulatory obligations; and (f) as otherwise permitted under Applicable Data Protection Legislation and in accordance with this DPA, the Agreement, and the Privacy Policy.

v. The parties agree that any notice or communication sent by Forescribe to Customer shall also satisfy any obligation to send such notice or communication to Customer’s Affiliate.

3. Forescribe as a Processor – Processing Customer Personal Data.

i. Customer Instructions. Customer appoints Forescribe as a processor to process Customer Personal Data on behalf of, and in accordance with, Customer’s instructions (a) as set forth in the Agreement, this DPA, and as otherwise necessary to provide the Services to Customer (which may include investigating security incidents, and detecting and preventing exploits or abuse); (b) as necessary to comply with applicable law, including Applicable Data Protection Legislation; and (c) as otherwise agreed in writing between the parties (“Permitted Purposes”).

ii. Lawfulness of Instructions. Customer will ensure that its instructions comply with Applicable Data Protection Legislation. Customer acknowledges that Forescribe is neither responsible for determining which laws are applicable to Customer’s business nor whether Forescribe’s Services meet or will meet the requirements of such laws. Customer will ensure that Forescribe’s processing of Customer Personal Data, when done in accordance with Customer’s instructions, will not cause Forescribe to violate any applicable law, including Applicable Data Protection Legislation. Forescribe will inform Customer if it becomes aware, or reasonably believes, that Customer’s instructions violate applicable law, including Applicable Data Protection Legislation.

iii. Additional Instructions. Additional instructions outside the scope of the Agreement or this DPA will be mutually agreed to between the parties in writing.

4. Purpose Limitation.

Forescribe will process Customer Personal Data in order to provide the Services in accordance with the Agreement.

5. Compliance.

Customer shall be responsible for ensuring that: a) all such notices have been given, and all such authorizations have been obtained, as required under Applicable Data Protection Legislation, for Forescribe (and its Affiliates and Sub-processors) to process Customer Personal Data as contemplated by the Agreement and this DPA; b) it has complied, and will continue to comply, with all applicable laws relating to privacy and data protection, including Applicable Data Protection Legislation; and c) it has, and will continue to have, the right to transfer, or provide access to, Customer Personal Data to Forescribe for processing in accordance with the terms of the Agreement and this DPA.

6. Confidentiality.

i. Confidentiality Obligations of Forescribe Personnel.

a. Security Policy and Confidentiality. Forescribe requires all employees to acknowledge in writing, at the time of hire, they will adhere to terms that are in accordance with Forescribe’s security policy available at https://forescribe.ai/security and to protect Customer Personal Data at all times. Forescribe requires all employees to sign a confidentiality statement at the time of hire.

b. Forescribe will ensure that any person that it authorizes to process Customer Personal Data (including its staff, agents, and subcontractors) shall be subject to a duty of confidentiality (whether in accordance with Forescribe's confidentiality obligations in the Agreement or a statutory duty).

c. Background Checks. Forescribe conducts at its expense a criminal background investigation on all employees who are to perform material aspects of the Services under this Agreement.

ii. Responding to Third Party Requests. In the event any Third Party Request is made directly to Forescribe in connection with Forescribe’s processing of Customer Personal Data, Forescribe will promptly inform Customer and provide details of the same, to the extent legally permitted. Forescribe will not respond to any Third Party Request, without prior notice to Customer and an opportunity to object, except as legally required to do so or to confirm that such Third Party Request relates to Customer.

7. Sub-processors.

i. Authorization for Sub-processing. Customer agrees that (a) Forescribe may engage Sub-processors and Forescribe Affiliates; and (b) such Affiliates and Sub-processors respectively may engage third party processors to process Customer Personal Data on Forescribe's behalf. Customer provides a general authorization for Forescribe to engage onward sub-processors that is conditioned on the following requirements: (a) Forescribe will restrict the onward sub-processor’s access to Customer Personal Data only to what is strictly necessary to provide the Services, and Forescribe will prohibit the sub-processor from processing the Customer Personal Data for any other purpose. (b) Forescribe agrees to impose contractual data protection obligations, including appropriate technical and organizational measures to protect personal data, on any sub-processor it appoints that require such sub-processor to protect Customer Personal Data to the standard required by Applicable Data Protection Legislation; and (c) Forescribe will remain liable and accountable for any breach of this DPA that is caused by an act or omission of its sub-processors.

ii. Current Sub-processors and Notification of Sub-processor Additions.

a. Customer understands that effective operation of the Services may require the transfer of Customer Personal Data to Forescribe Affiliates, such as Innoveer Ventures Private Limited, or to Forescribe's Sub-processors. Customer hereby authorizes the transfer of Customer Personal Data to locations outside Europe (Forescribe’s primary processing facilities are in India and the United States of America), including to Forescribe Affiliates and Sub-processors, subject to continued compliance with this DPA throughout the duration of the Agreement. Customer hereby provides general authorization to Forescribe engaging additional third-party Sub-processors to process Customer Personal Data within the Services for the Permitted Purposes.

8. Impact Assessments and Consultations.

Forescribe shall, to the extent required by Applicable Data Protection Legislation, provide Customer with reasonable assistance (at Customer's cost and expense) with data protection impact assessments or prior consultations with data protection authorities that Customer is required to carry out under such legislation.

9. Security.

i. Forescribe has in place and will maintain throughout the term of this Agreement appropriate technical and organizational measures designed to protect Customer Personal Data against Security Breaches.

ii. These measures shall at a minimum comply with applicable law.

iii. Customer acknowledges that the security measures are subject to technical progress and development and that Forescribe may update or modify the security measures from time to time, provided that such updates and modifications do not result in the degradation of the overall security of the Services purchased by the Customer.

iv. Forescribe will ensure that any person authorized to process Customer Personal Data (including its staff, agents, and subcontractors) shall be subject to a duty of confidentiality.

v. Upon becoming aware of a Security Breach involving Customer Personal Data processed by Forescribe on behalf of Customer under this DPA, Forescribe shall notify Customer without undue delay and shall provide such information as Customer may reasonably require, including to enable Customer to fulfil its data breach reporting obligations under Applicable Data Protection Legislation.

vi. Forescribe’s notification of or response to a Security Breach shall not be construed as an acknowledgement by Forescribe of any fault or liability with respect to the Security Breach.

vii. Customer is solely responsible for its use of the Service, including (a) making appropriate use of the Service to ensure a level of security appropriate to the risk in respect of Customer Personal Data; (b) securing the account authentication credentials, systems and devices Customer uses to access the Service; and (c) backing up Customer Personal Data.

10. Return or Deletion of Customer Personal Data.

Upon termination or expiry of this Agreement, Forescribe will (at Customer's election) delete or return to Customer all Customer Personal Data (including copies) in its possession or control as soon as reasonably practicable and within a maximum period of 30 days of termination or expiry of the Agreement, save that this requirement will not apply to the extent that Forescribe is required by applicable law to retain some or all of the Customer Personal Data, or to Customer Personal Data it has archived on back-up systems, which Customer Personal Data Forescribe will securely isolate and protect from any further processing, except to the extent required by applicable law.

11. Audits.

i. The parties acknowledge that when Forescribe is acting as a processor on behalf of Customer, Customer must be able to assess Forescribe’s compliance with its obligations under Applicable Data Protection Legislation and this DPA.

ii. Upon written request and at no additional cost to Customer, Forescribe shall provide Customer, and/or its appropriately qualified third-party representative (collectively, the "Auditor"), access to reasonably requested documentation evidencing Forescribe's compliance with its obligations under this DPA in the form of the relevant audits or certifications.

iii. While it is the parties’ intention ordinarily to rely on the provision of the documentation to demonstrate Forescribe’s compliance with this DPA and the provisions of Article 28 of the GDPR, Forescribe shall permit Customer or its Auditor to carry out an audit, at Customer’s cost and expense, (including, without limitation, the costs and expenses of Forescribe), of Forescribe’s processing of Customer Personal Data under the Agreement upon Customer’s written request for an audit, subject to the terms of this Section. Following Forescribe’s receipt of such request, Forescribe and Customer shall mutually agree in advance on the details of the audit, including the reasonable start date, scope and duration of any such audit. Any such audit shall be subject to Forescribe’s security and confidentiality terms and guidelines, may only be performed a maximum of once annually and will be restricted to only data relevant to Customer. Where the Auditor is a third-party, Forescribe may object in writing to such Auditor, if in Forescribe's reasonable opinion, the Auditor is not suitably qualified or is a direct competitor of Forescribe. Any such objection by Forescribe will require Customer to either appoint another Auditor or conduct the audit itself. Any expenses incurred by an Auditor in connection with any review of reports or an audit shall be borne exclusively by the Auditor. For clarity, the exercise of audit rights under the SCCs shall be as described in this Section 11 (Audits)

12. Transfer Mechanisms.

iv. Forescribe uses external auditors to verify the adequacy of its security measures with respect to its processing of Customer Personal Data.

i. Location of Processing. Customer acknowledges that Forescribe and its Sub-processors may transfer and process personal data to and in India and the United States of America and other locations in which Forescribe, its Affiliates or its Sub-processors maintain data processing operations. Forescribe shall ensure that such transfers are made in compliance with Applicable Data Protection Legislation and this DPA.

13. Cooperation and Data Subject Rights.

i. Data Subject Rights. Forescribe provides Customer with a number of self-service features via the Services, including the ability to delete, obtain a copy of, or restrict use of Customer Personal Data. Customer may use such self-service features to assist in complying with its obligations under Applicable Data Protection Law with respect to responding to Third Party Requests from data subjects via the Services at no additional cost. Upon Customer’s request, Forescribe shall, taking into account the nature of the processing, provide reasonable assistance to Customer where possible and at Customer’s cost and expense, to enable Customer to respond to requests from a data subject seeking to exercise their rights under Applicable Data Protection Legislation. In the event that such request is made directly to Forescribe, if Forescribe can, through reasonable means, identify the Customer as the controller of the Customer personal data of a data subject, Forescribe shall promptly inform Customer of the same. As between the Parties, Customer shall have sole discretion and responsibility in responding to the rights asserted by any individual in relation to Customer Personal Data.

ii. Cooperation. In the event that either party receives (a) any request from a data subject to exercise any of its rights under Applicable Data Protection Legislation or (b) any Third Party Request relating to the processing of Account Data or Customer Personal Data conducted by the other party, such party will promptly inform the other party in writing. The parties agree to cooperate, in good faith, as necessary to respond to any Third Party Request and fulfill their respective obligations under Applicable Data Protection Legislation.

14. No sale or Sharing.

To the extent that the processing of Customer Personal Data is subject to U.S. data protection laws, Forescribe is prohibited from: (a) selling Customer Personal Data or otherwise making Customer Personal Data available to any third party for monetary or other valuable consideration; (b) sharing Customer Personal Data with any third party for cross-behavioral advertising; (c) retaining, using, or disclosing Customer Personal Data for any purpose other than for the business purposes specified in this DPA or as otherwise permitted by U.S. data protection laws; (d) retaining, using or disclosing Customer Personal Data outside of the direct business relationship between the parties, and; (e) except as otherwise permitted by U.S. data protection laws, combining Customer Personal Data with personal data that Forescribe receives from or on behalf of another person or persons, or collects from its own interaction with the data subject. Forescribe will notify Customer promptly if it makes the determination that it can no longer meet its obligations under applicable U.S. data protection laws.

15. Miscellaneous.

i. If there is a conflict between the Agreement and this DPA, the terms of this DPA will prevail. The order of precedence will be: (a) this DPA; (a) the Agreement; and (c) the Privacy Policy. To the extent there is any conflict between the Standard Contractual Clauses, and any other terms in this DPA, the Agreement, or the Privacy Policy, the provisions of the Standard Contractual Clauses will prevail.

ii. The parties agree that this DPA shall replace and supersede any prior data processing addendum that Forescribe and Customer may have previously entered into in connection with the Services.

iii. Any claims brought in connection with this DPA will be subject to the terms and conditions, including, but not limited to, the exclusions and limitations set forth in the Agreement.

iv. In no event does this DPA restrict or limit the rights of any data subject or of any competent supervisory authority.

v. In the event (and to the extent only) of a conflict (whether actual or perceived) among Applicable Data Protection Legislation, the parties (or relevant party as the case may be) shall comply with the more onerous requirement or standard which shall, in the event of a dispute in that regard, be solely determined by Forescribe.

vi. Notwithstanding anything else to the contrary in the Agreement and without prejudice to Sections 2(iii) and 2 (iv), Forescribe reserves the right to make any modification to this DPA as may be required to comply with Applicable Data Protection Legislation.

vii. Notwithstanding anything in the Agreement or any order form entered in connection therewith, the parties acknowledge and agree that Forescribe access to Customer Personal Data does not constitute part of the consideration exchanged by the parties in respect of the Agreement.

viii. In no event shall this DPA benefit or create any right or cause of action on behalf of a third party (including a Third-Party Controller), but without prejudice to the rights or remedies available to Data Subjects under Data Protection Laws or this DPA (including the DPF and SCCs).

Acceptable Use Policy

This Acceptable Use Policy applies to Forescribe’s (a) websites (including without limitation www.forescribe.com, www.forescribe.ai, app.forescribe.ai, and any successor URLS, mobile or localized versions and related domains and subdomains) and (b) SaaS Ops and Operational Efficiency products and services ((a) and (b) collectively, “Services”). To keep the Services running safely and smoothly, we need our users to agree not to misuse them. Specifically, you agree not to:

1. probe, scan, or test the vulnerability of any system or network used with the Services;
2. tamper with, reverse engineer or hack the Services, circumvent any security or authentication measures of the Services or attempt to gain unauthorized access to the Services (or any portion thereof) or related systems, networks or data;
3. modify or disable the Services or use the Services in any manner that interferes with or disrupts the integrity or performance of the Services or related systems, network or data;
4. access or search the Services by any means other than our publicly supported interfaces, or copy, distribute, or disclose any part of the Service in any medium, including without limitation by any automated or non-automated “scraping”;
5. overwhelm or attempt to overwhelm our infrastructure by imposing an unreasonably large load on the Services that consume extraordinary resources, such as by: (i) using “robots,” “spiders,” “offline readers” or other automated systems to send more request messages to our servers than a human could reasonably send in the same period of time using a normal browser; or (ii) going far beyond the use parameters for any given Service as described in its corresponding documentation;
6. solicit any users of our Services for commercial purposes unless explicit written consent by Forescribe is provided;
7. use the Services to generate or send unsolicited communications, advertising or spam, or otherwise cause Forescribe to become impaired in its ability to send communications on its own or on its customers’ behalf (e.g., by causing Forescribe to become registered on any Email DNS blocked list or otherwise be denied services by any other third party communications service provider);
8. misrepresent yourself or disguise the origin of any data, content or other information you submit (including by “spoofing”, “phishing”, manipulating headers or other identifiers, impersonating anyone else, or falsely implying any sponsorship or association with Forescribe or any third party) or access the Services via another user’s account without their permission;
9. use the Services for any illegal purpose or in violation of any laws (including without limitation data, privacy and export control laws);
10. use the Services to violate the privacy of others, or to collect or gather other users’ personal information (including account information) from our Services;
11. use the Services to stalk, harass, bully or post threats of violence against others;
12. submit (or post, upload, share or otherwise provide) data, content or other information that (i) infringes Forescribe’s or a third party’s intellectual property, privacy or other rights or that you don’t have the right to submit (including confidential or personal information you are not authorized to disclose); (ii) that is deceptive, fraudulent, illegal, obscene, defamatory, libelous, threatening, harmful to minors, pornographic, indecent, harassing, hateful, religiously, racially or ethnically offensive, that encourages illegal or tortious conduct or that is otherwise inappropriate in Forescribe’s discretion; (iii) contains viruses, bots, worms, scripting exploits or other similar materials; or (iv) that could otherwise cause damage to Forescribe or any third party;
13. promote or advertise products or services other than your own without appropriate authorization;
14. use meta tags or any other “hidden text” including Forescribe’s or our suppliers’ product names or trademarks; or
15. permit or encourage anyone else to commit any of the actions above.

Without affecting any other remedies available to us, Forescribe may permanently or temporarily terminate or suspend a user’s account or access to the Services without notice or liability if Forescribe (in its sole discretion) determines that a user has violated this Acceptable Use Policy.

Service Level Agreement

This Forescribe Service Level Agreement ("SLA") accompanies the Forescribe Subscription Terms of Service, available at https://forescribe.ai/terms or a successor URL (the "Agreement") entered into between you ("Customer") and Forescribe. Capitalized terms used in this SLA that are not defined herein have the meanings given to them in the Agreement.

Target Availability. Forescribe will use commercially reasonable efforts to make each Service available with an uptime of 99.8% of each calendar month ("Target Availability").

Exclusions. The calculation of uptime will not include unavailability to the extent due to: (a) use of the Service by Customer in a manner not authorized in this Agreement or the applicable Documentation; (b) general Internet problems, force majeure events or other factors outside of Forescribe's reasonable control; (c) Customer's equipment, software, network connections or other infrastructure; (d) third party systems, acts or omissions; or (e) Scheduled Maintenance or reasonable emergency maintenance.

Scheduled Maintenance. "Scheduled Maintenance" means Forescribe's scheduled routine maintenance of the Services for which Forescribe notifies Customer at least twenty-four (24) hours in advance. Scheduled Maintenance will not exceed eight (8) hours per month. Forescribe typically performs Scheduled Maintenance once per month.

Remedy for Failure to Meet Target Availability. If there is a verified failure of a Service to meet Target Availability in two (2) consecutive months, then Customer may terminate the applicable Subscription Term by sending written notice of termination within thirty (30) days after the end of the second such month, in which case Forescribe will refund to Customer any fees Customer has pre-paid for use of such Service for the terminated portion of the applicable Subscription Term. This termination and refund right is Customer's sole and exclusive remedy, and Forescribe's sole and exclusive liability, for Forescribe's failure to meet the Target Availability.