11. General Provisions.
A. No Assignment. Unless otherwise permitted in this Agreement, neither Party hereto shall assign any of its rights, nor delegate any of its duties under this Agreement, without first obtaining the express written consent of the other Party. Subject to the foregoing restriction, this Agreement shall be binding on the Parties hereto and their successors and permitted assigns. Notwithstanding the foregoing, Service Provider may assign this Agreement, without Company’s prior written consent, to any entity that purchases more than fifty percent (50%) of Service Provider or that acquires substantially all of Service Provider’s business assets (including direct and indirect ownership interests in entities conducting business operations). Further, notwithstanding the foregoing, Service Provider may assign the proceeds of this Agreement without Company’s prior written consent.
B. Severability. In the event that any provision of this Agreement, or the application thereof, becomes or is declared by a court of competent jurisdiction to be illegal, void or unenforceable, the remainder of this Agreement shall continue in full force and effect and the application of such provision to other persons or circumstances shall be interpreted so as reasonably to effect the intent of the Parties. The Parties further agree to use their commercially reasonable efforts to replace such void or unenforceable provision of this Agreement with a valid and enforceable provision that shall achieve, to the extent possible, the economic, business, and other purposes of such void or unenforceable provision. This Section (Severability) shall survive termination or expiration of this Agreement.
C. Notice. Any and all notices, demands, requests, and other communications required or permitted to be given hereunder shall be in writing and shall be given by overnight courier or by certified U.S. mail (with return receipt requested), or via email, addressed as indicated in the Order Form to this Agreement, or as otherwise indicated by notice given in accordance with this provision. If delivered by overnight courier, such notice shall be effective on the date of delivery to the address indicated above if delivered on a business day, otherwise such notice shall be effective on the next succeeding business day. If delivered by certified U.S. mail, such notice shall be effective on the third business day after the date of mailing. If delivered by email, such notice shall be effective on the first business day after the date the email was sent.
D. Waiver. A waiver by either Party of any of the terms and conditions of this Agreement in any instance shall not be deemed or construed to be a waiver of such term or condition for the future, or of any subsequent breach thereof, nor shall it be deemed a waiver of performance of any other obligation hereunder.
E. Entire Understanding. This Agreement and any exhibits attached hereto contain the entire understanding of the Parties hereto relating to the subject matter contained herein, and supersede all prior and collateral agreements, understanding, statements and negotiations of the Parties. This Agreement can only be changed, modified, amended, rescinded or supplemented by a written agreement executed by both Parties.
F. Governing Law. The laws of the State of California (without giving effect to its conflicts of law provisions) shall govern all matters arising out of or relating to this Agreement, including, but not limited to, its validity, interpretation, performance, enforcement, and construction. This Section (Governing Law) shall survive termination or expiration of this Agreement.
G. Arbitration. Any dispute, claim, or controversy arising out of or relating to this Agreement or the breach, termination, enforcement, interpretation or validity thereof, including the determination of the scope or applicability of this agreement to arbitrate, shall be determined by arbitration in Santa Clara, California, before one (1) arbitrator. The arbitration shall be administered by AHLA Alternative Dispute Resolution Service Rules of Procedure for Arbitration, in the above-mentioned city or county. Judgment on the award may be entered in any court having jurisdiction. This provision shall not preclude either Party from seeking provisional remedies in aid of arbitration from a court of appropriate jurisdiction. The arbitrator may, in the award, allocate all or part of the costs of the arbitration, including the fees of the arbitrator. Each Party has read and understood this Section (Arbitration) and understands that it thereby agrees to submit any claims arising out of this Agreement to binding arbitration, and that this dispute resolution provision constitutes a waiver of the Party’s right to a jury trial. HOWEVER, prior to either Party initiating Arbitration of any dispute, the Parties agree to attempt mediation of the dispute with a mutually agreeable trained mediator in the above-mentioned city or county. “Trained mediator” means a professional with actual training and experience in the field of Mediation and/or dispute resolution. EACH PARTY HAS READ AND UNDERSTANDS THIS SECTION and UNDERSTANDS THAT BY SIGNING THE ORDER FORM TO THIS AGREEMENT, THE PARTY AGREES TO SUBMIT ANY CLAIMS ARISING OUT OF, RELATING TO, OR IN CONNECTION WITH THIS AGREEMENT, OR THE INTERPRETATION, VALIDITY, CONSTRUCTION, PERFORMANCE, BREACH, OR TERMINATION THEREOF TO MEDIATION AND ARBITRATION, AND THAT THE DISPUTE RESOLUTION PROVISIONS SET FORTH IN THIS SECTION CONSTITUTE A WAIVER OF THE PARTY’S RIGHT TO A JURY TRIAL.
H. Attorney's Fees. Should either Party institute any action or proceeding, including without limitation arbitration, relating to this Agreement, the prevailing Party in any such action or proceeding shall be entitled to receive from the other Party all costs and expenses, including reasonable attorney's fees, incurred in connection with such action or proceeding. This Section (Attorney’s Fees) shall survive termination or expiration of this Agreement.
I. Interpretation of Agreement; Attorney Review; Headings. The Parties acknowledge and agree that Company has been advised and afforded the opportunity to seek its own legal counsel as to the consequences of signing the Order Form to this Agreement, and that each has either sought separate legal counsel or has chosen not to do so. Accordingly, no rule of construction shall apply to this Agreement which construes any language, whether ambiguous, unclear or otherwise, in favor of, or against any Party by reason of that Party's role in drafting this Agreement. The descriptive headings of sections and subsections in this Agreement are provided for convenience only, do not constitute a part of this Agreement, and do not affect this Agreement’s construction or interpretation. This Section (Interpretation of Agreement) shall survive termination or expiration of this Agreement.
J. Additional Acts. The Parties hereto agree to perform such other acts, and to execute such additional documents, as may be required from time to time to carry out the provisions of this Agreement or the intentions of the Parties.
K. Health Care Disclaimer. Company acknowledges and agrees that decisions regarding diagnosis and appropriate courses of treatment for any given patient are solely the responsibility of the Company and its healthcare providers, and Service Provider shall not be responsible for (and expressly disclaims any responsibility or liability for) any decisions made by Company or its healthcare providers based upon the Technology Platform or the output or results generated by it or any acts or omissions by Company, its users, or billable healthcare providers which give rise to any claims of any nature by any patient or third party.
L. Limitation of Liability. Service Provider makes no representations and offers no warranties that its provision of the Service Provider Technology or Company’s use of the Service Provider Technology or any records or forms it generates, comply with any state or federal laws or third-party health insurer billing and coding policies specifically applicable to Company.
Under no circumstances shall Service Provider be liable to Company or any third party for consequential damages, punitive damages, incidental damages, or damages for harm to business, lost revenues, profits, or goodwill, or any other special or exemplary damages, whether the claim is based on negligence, breach of contract or express or implied warranty, strict liability, misrepresentation, statute, tort, or any other theory of recovery, even if either Party knew or was advised that such damages could or may result. Service Provider disclaims any obligations, representations, or warranties, whether express or implied, that are not expressly set forth in this Agreement including any warranty of merchantability or fitness for a particular purpose. Service Provider’s maximum liability in respect of any loss or damage suffered by Company and arising out of or in connection with this Agreement, whether in contract, tort (including negligence) or for breach of statutory duty or in any other way, shall not exceed the value of sums paid by Company to Service Provider in relation to this Agreement pursuant to which the relevant loss or damage has arisen.
Some states do not allow the exclusion or limitation of incidental or consequential damages under certain circumstances and the above exclusion or limitation may not apply. Without limiting any of the foregoing, in no event will any Party be liable for any delay or failure to perform which is due to causes beyond its reasonable control.
This Section shall survive termination or expiration of this Agreement.
M. Counterparts; Execution. This Agreement may be executed in counterparts, each of which will be deemed an original, but all of which together will constitute one and the same instrument. The signatures of the Parties need not appear on the same counterpart. Delivery of an executed counterpart of this Agreement may be made by fax, email, or other electronic transmission, and as such shall be deemed to be a written and signed original for all purposes. This Agreement is effective only upon signed acceptance of the Order Form to this Agreement by both Parties. By their signatures on the Order Form to this Agreement, each of the signatories of the Order Form to this Agreement represent that they have the authority to execute this Agreement and to bind the Party on whose behalf their execution is made. This Agreement when mutually executed constitutes the legal, valid and binding obligation of the Parties enforceable in accordance with its terms.
N. Force Majeure. Neither Party will be responsible for any failure or delay in its performance under this Agreement (other than financial obligations, including payment of amounts due) if such failure or delay is the result of any of the following (each, a “Force Majeure Event”): labor dispute; act of God; inability to obtain labor or materials; accident; pandemic; future law, regulation, ordinance, or requirement of any governmental or regulatory agency; or any other event which is beyond its reasonable control. The Technology Platform may be subject to limitations, delays, and other problems inherent in the use of the internet and electronic communications. Service Provider is not responsible for any delays, deliver failures, or other damages resulting from such problems or any other Force Majeure Event. Notwithstanding the foregoing, a Force Majeure Event does not include economic hardship, reduction in reimbursement, changes in market conditions, or insufficiency of funds. This Section (Force Majeure) shall not, however, release such Party from using its reasonable efforts to avoid or remove such cause and such Party shall resume performance hereunder with the utmost dispatch whenever such causes are removed. This Section shall survive termination or expiration of this Agreement.
O. Third Parties. Nothing in this Agreement creates, or will be deemed to create, any third Party beneficiaries of or under this Agreement. This Section (Third Parties) shall survive termination or expiration of this Agreement.
P. Rights Cumulative. The various rights and remedies herein granted to the respective Parties hereto shall be cumulative and in addition to any other rights any such Party may be entitled to under law. The exercise of one or more rights or remedies by a Party shall not impair the right of such Party to exercise any other right or remedy, at law or equity. This Section shall survive termination or expiration of this Agreement.
Q. Export. Company agrees not to export, reexport, or transfer, directly or indirectly, any U.S. technical data acquired from Service Provider, or any products utilizing such data, in violation of the United States export laws or regulations.