BREVI TECHNOLOGIES, INC. MASTER SERVICE AGREEMENT


This Brevi Technologies, Inc. Master Service Agreement (the "Agreement") is effective as of the effective date of an applicable signed order form (such form an “Order Form” and such date the “Effective Date”) and is by and between Brevi Technologies, Inc., a Delaware corporation (“Service Provider”), and the contracting party identified on the Order Form (“Company”). For purposes of this Agreement, Company and Service Provider are each a “Party” and collectively are “Parties”. In the event of any inconsistency or conflict between the terms of the Agreement and the terms of any Order Form, the terms of the Order Form control.

 

The Agreement Version: July 1, 2022


RECITALS

 

WHEREAS Company provides professional healthcare services; 


WHEREAS Service Provider is a company specializing in providing technology services to healthcare professionals via its proprietary software, and operates a website and mobile-based application in furtherance thereto; and

 

WHEREAS, the Parties desire that Service Provider provide such software services, and licenses the software to the Company on a non-exclusive basis, on the terms and conditions contained in this Agreement. 

 

NOW, THEREFORE, the Parties to this Agreement do hereby agree as follows:


1.  Relationship of Company and Service Provider. “Technology Platform” shall mean the website and/or mobile app that is a hub owned by Service Provider pursuant to this Agreement.

 

A. Appointment of Service Provider. During the Term of this Agreement, Company hereby appoints Service Provider as the provider of certain services set forth hereunder with respect to Company’s provision of professional services (“Professional Services”) to Company’s patients via the Technology Platform, and Service Provider hereby agrees to furnish Company with such services, in accordance with the terms and conditions set forth in this Agreement. Service Provider shall provide, or arrange for the provision of, such services by or through employees, affiliates, or independent contractors, in whatever manner and time it deems reasonably appropriate to meet the requirements of Company. As part of Service Provider’s appointment, Company shall cause its physician-employees or other employees to submit a profile (including full name, email address, and specialty) for Service Provider to post to the Technology Platform. Service Provider may remove such profile in its sole discretion.

 

B. Retention of Authority and Control by Company of Professional Services. Service Provider's duties for Company under this Agreement shall be purely non-clinical and administrative/technical in nature. Company shall be solely responsible for and have complete authority, supervision and control over the provision of professional healthcare services and healthcare billing procedures performed by Company as Company, in its sole discretion, deems appropriate and in accordance with all applicable laws and regulations. This Agreement shall in no way be construed to mean or suggest that Service Provider is engaged, or permitted to engage, in the practice of medicine, psychology, or any licensed healthcare activity. Company shall solely determine the manner and means to provide the Professional Services; provided, however, all Professional Services shall be performed in a competent, professional, and ethical manner, in accordance with prevailing standards of medical practice, and all applicable laws, regulations, rules, orders, and directives of all applicable governmental and accrediting bodies having jurisdiction.

 

C. License of the Technology Platform and Material. During the term of this Agreement, Service Provider shall non-exclusively license the Technology Platform and the related material to the Company to use the Technology Platform’s functionality only in the United States.

 

D. Name, Logos, Marks. During the Term of this Agreement, neither Party shall use the name, logos, trademarks or service marks of the other (the “Marks”) without the other's prior written consent, except that each Party shall have the non-exclusive right to utilize the Marks identifying the other, solely for the purpose of identifying Service Provider as a vendor of the Company via the Technology Platform. Nothing contained in the Agreement shall give either Party any right, title, or interest in any of the other’s Marks other than pursuant to the terms of this Agreement.


E. Cooperation in Connection with Audits. Company shall cooperate with any auditor who performs any reviews of Service Provider’s activities under this Agreement, and provide any information and documentation reasonably requested in connection with such financial reviews.

2.  Technology Platform Services and Technology Platform.


A. Technology Platform ServicesService Provider shall provide automated medical dialogue audio record transcription and formatting services and related technology services (collectively, "Technology Platform Services") with respect to the practice conducted by Company via the Technology Platform.


B. IP Ownership.


(1)  Service Provider. Company acknowledges that Service Provider and its licensors own all right, title, and interest, including all Intellectual Property Rights, in and to all software and technology associated with the Technology Platform and provision of Technology Platform Services hereunder (the “Service Provider Technology”) (excluding any Company Data contained therein) and all components thereof, and any other work product, developments, inventions, technology or materials provided under this Agreement. Service Provider expressly reserves all rights not expressly granted to Company in this Agreement. Company shall not engage in any act or omission that would impair Service Provider’s and/or its licensors’ Intellectual Property Rights in the Service Provider Technology, and any other materials, information, processes or subject matter proprietary to Service Provider. Company further acknowledges that Service Provider retains the right to use the foregoing for any purpose in Service Provider’s sole discretion.


(2)  Company. As between Service Provider and Company, except for the rights expressly granted herein, Company owns all right, title and interest in and to all Company Data.

 

(3)  Feedback. Company may, from time to time, provide suggestions, techniques, know-how, comments, feedback or other input to Service Provider with respect to the Service Provider Technology (collectively, "Feedback"). Both Parties agree that any Feedback is and will be given entirely voluntarily. Any Feedback, even if designated as confidential by Company will not, absent a signed, written agreement with Service Provider, create an obligation of confidentiality for Service Provider. Company agrees that it will not give any Feedback that is subject to license terms or restrictions that seek to require any Service Provider technology, service, product or documentation incorporating or derived from any Feedback, or any Service Provider intellectual property, to be licensed or otherwise shared with Company or any third party. Furthermore, except as otherwise set forth in a separate, subsequent written agreement between the Parties, Service Provider will be free to use, disclose, reproduce, license or otherwise distribute and exploit any Feedback as it sees fit, entirely without obligation or restriction of any kind on account of Intellectual Property Rights or otherwise.


C. Licensed MaterialService Provider will also provide Licensed Material, which includes: (i) Brevi software and applications for automated medical dialogue audio record transcription and formatting; (ii) various systems, know-how, trade secrets, and other related intellectual property; and (iii) all derivative works created therefrom, and enhancements, modifications, changes or improvements to the same (collectively, the “Licensed Technology Platform and Material”). All rights not expressly granted under this Agreement are reserved, and this reservation shall survive the termination or expiration of this Agreement. All rights not expressly granted under this Agreement are reserved, and this reservation shall survive the termination or expiration of this Agreement. The Licensed Technology Platform and Material are the sole and exclusive property of Service Provider and is protected by U.S. laws and international treaties. Subject to the terms of this Agreement, Service Provider grants to Company and Company hereby accepts a limited, non-transferable, non-assignable, non-exclusive license to use the Licensed Technology Platform and Material. Service Provider licenses the Licensed Technology Platform and Material “as is” with all defects and without warranty or conditions of any kind. Company agrees that Service Provider shall not be liable for any damages whatsoever relating to Company’s use of Licensed Technology Platform and Material. In no event shall Service Provider be liable for any damages relating to the functionality, maintenance or standardization of any of the Licensed Technology Platform and Material. Company will notify Service Provider of any errors or deficiencies in the Licensed Technology Platform and Material, suggestions for improvements, developments, compatibility problems, and other information regarding the Licensed Technology Platform and Material (collectively, “Comments”). Company acknowledges that Service Provider may or may not incorporate Comments; Service Provider does not warrant that it will correct all defects in the Licensed Technology Platform and Material; Company acknowledges and agrees that any use of the Licensed Technology Platform and Material shall be at Company’s own risk. All improvements, feedback and developments based on or derived from the Licensed Technology Platform and Material shall remain the exclusive property of Service Provider. The Parties agree to enter in a separate mutual agreement if the Parties desire to jointly develop new technologies that would not be covered by the Licensed Technology Platform and Material.


Except as expressly set forth in this Agreement, or as otherwise authorized in writing by Service Provider, Company may not: (1) download, transmit, copy, store, make back-ups of, reverse compile, adapt, publish, or distribute the Licensed Material in any form or by any means; (2) decompile, reverse engineer, disassemble, or attempt to derive the source code of, modify, or create derivative works or allow any third party to do so, with respect to the Licensed Material; (3) assign, transfer, sell, lease, rent, charge, sublicense, or otherwise deal in the Licensed Material on behalf of any third party or make available the same to any third party; (4) remove or alter any copyright or other proprietary notice on any of the Licensed Material. Any attempt to do so is a violation of the rights of the Service Provider. If Company breaches this restriction, Company may be subject to prosecution and damages.

 

The name and title of the Licensed Technology Platform and Material shall at all times remain exclusively with Service Provider. Within ten (10) days after Company has discontinued the use of any part of the Licensed Technology Platform and Material or immediately upon the termination or expiration of this Agreement, Company shall cease using the Licensed Technology Platform and Material, and return to Service Provider the original and all whole or partial copies of the Licensed Technology Platform and Material that Company may have acquired or generated during the term of this Agreement. Company shall certify in writing to Service Provider that it has done so. Upon termination or expiration of this Agreement, Service Provider shall provide Company access to Company’s account for 30 days for Company to manage and retrieve its data. Company must arrange to do so during this 30-day period. By indicating acceptance of these terms, Company does not become the owner of Licensed Technology Platform and Material, but is entitled to use them as specifically permitted according to the terms of this Agreement and subject to all additional intellectual property notices, information or accessed through this Agreement. Company shall keep confidential the Licensed Technology Platform and Material and notify Service Provider immediately if Company becomes aware of any unauthorized use of the whole or any part of the Licensed Technology Platform and Material by any third party, and take all such other steps as are necessary to protect the confidential information and Intellectual Property Rights of Service Provider in the Licensed Technology Platform and Material.

 

“Intellectual Property Rights” means any and all now known or hereafter existing (a) rights associated with works of authorship, including copyrights, mask work rights, and moral rights; (b) trademark or service mark rights; (c) trade secret rights; (d) patents, patent rights, and industrial property rights; (e) layout design rights, design rights, and other proprietary rights of every kind and nature other than trademarks, service marks, trade dress, and similar rights; and (f) all registrations, applications, renewals, extensions, or reissues of the foregoing, in each case in any jurisdiction throughout the world.


In providing the Licensed Technology Platform and Material, Service Provider is not engaged in rendering medical advice, diagnosis or other medical or professional or clinical services. The Licensed Technology Platform and Material is made available for administrative purposes only and not as a substitute for Company's analysis or judgment. Company must exercise professional judgment when using any information contained in the Licensed Technology Platform and Material and take sole responsibility for its use, including but not limited to responsibility for compliance with licensing, scope of practice, medical record maintenance, health insurance billing and coding policies, and all other applicable laws.

 

D. Platform Access. Company may permit any staff of Company who use the Technology Platform (“Users”) to access and use the features and functions of the Technology Platform only in accordance with this Agreement and any documentation related to the Technology Platform (“Documentation”) and Company will: (a) provide to Service Provider information and other assistance as necessary to enable Service Provider to establish usernames to be used by Users; (b) be responsible for maintaining the confidentiality of all Users’ usernames and passwords; (c) be solely responsible for all activities that occur under these usernames; (d) not to allow a third party to use its account, usernames or passwords at any time; and (e) notify Service Provider promptly of any actual or suspected unauthorized use of its account, User usernames or passwords, or any other breach or suspected breach of this Agreement. Nothing will be construed to require delivery of a copy of the technology associated with the Service Provider Technology or to grant Company any right to obtain such a copy (apart from the limited right to install and use the Software). Company shall have the right to add and remove Users of Technology Platform at any time. Such addition may affect Service Provider’s fee.

 

E. Restrictions. Company will use the Service Provider Technology solely in accordance with the Documentation and as contemplated by this Agreement and will not: (a) copy, modify, or duplicate the Service Provider Technology, or create any derivative work thereof; (b) decompile, disassemble, reverse engineer or otherwise attempt to obtain or perceive the source code from which any component of the Service Provider Technology is compiled or interpreted, and Company acknowledges that nothing in this Agreement will be construed to grant Company any right to obtain or use such source code; (c) license, sublicense, sell, resell, rent, lease, transfer, assign, distribute, time share or otherwise commercially exploit or make the Service Provider Technology available to any third party, other than as expressly permitted by this Agreement; (d) interfere with or disrupt the integrity or performance of the Service Provider Technology or the data contained therein; (e) attempt to gain unauthorized access to the Service Provider Technology or its related systems or networks; (f) remove, alter or obscure any proprietary notices associated with the Service Provider Technology or Documentation; or (g) utilize the Service Provider Technology in order to (1) send spam or otherwise duplicative or unsolicited messages in violation of Applicable Law; (2) upload, send or store infringing, obscene, threatening, libelous, or otherwise unlawful, unsafe, malicious, abusive or tortious material, including material harmful to children or violative of third party privacy rights; or (3) send or store material containing software viruses, worms, Trojan horses or other harmful computer code, files, scripts, agents or programs.


F. Risk of Use. Use of the Service Provider Technology is at the sole risk and responsibility of Company and any practitioner, health care provider, User or Facility using the Service Provider Technology. This Section will not diminish Service Provider’s commitments under this Agreement.

 

G. Third Party Content. Certain tools and features of the Platform, to the extent ordered by Company, may make Third Party Content available to Company through the Platform. Because Service Provider does not control such Third Party Content, Company agrees that: (a) Service Provider is not responsible for any such Third Party Content; and (b) Service Provider does not make any guarantees about the accuracy, currency, suitability, or quality of the information in such content, and does not assume responsibility for unintended, objectionable, inaccurate, misleading, or unlawful Third Party Content. Service Provider makes no warranty, representation, endorsement, or guarantee regarding, and accept no responsibility for, the quality, content, nature or reliability of Third Party Content or any products or services referenced thereby.

3.  Compensation To Service Provider. In consideration for the performance of all of its duties and obligations as provided in this Agreement, Service Provider shall receive compensation (“Fees”) as set forth in Order Form.


A. Services. “Services” means the product(s) and service(s) that are ordered by Company from Service Provider online or through an Order Form referencing this Agreement, whether on a trial or paid basis, and to which Service Provider thereby provides access to Company.

 

B. Payment; Taxes. Service Provider will invoice Company for Fees, either within the Services or directly, within ten (10) days after the end of each month of using the services. Company will pay all invoiced Fees net forty-five (45) days from the date of the invoice. Fees do not include local, state, or federal taxes or duties of any kind and any such taxes will be assumed and paid by Company, except for taxes on Service Provider based on Service Provider’s income or receipts.

4.  Term and Termination.


A. Term of Agreement. This Agreement will commence on the Effective Date and continue unless earlier terminated as set forth herein (the “Term”). Notwithstanding the foregoing, Company has the right to pause and resume the services hereunder at any time.


B. Termination


(1)  For Breach. Either Party may terminate this Agreement immediately upon written notice in the event that the other Party materially breaches the Agreement and thereafter: (a) in the case of material breach resulting from non-payment of amounts due hereunder, has failed to pay such amounts within thirty (30) days after receiving written notice thereof; or (b) has failed to cure any other material breach (or to commence diligent efforts to cure such breach that are reasonably acceptable to the terminating Party) within ninety (90) days after receiving written notice thereof.


(2)  Termination by Service Provider. Service Provider may at any time suspend or terminate its agreement with Company if Service Provider is required to do so by law (for example, where the Technology Platform Service is or becomes unlawful). Service Provider may terminate anytime for any reason in its sole discretion upon 30 days’ notice.


(3)  Access to Company Data. Upon termination or expiration of this Agreement, Service Provider shall provide Company access to Company’s account for 30 days for Company to manage and retrieve its data. Company must arrange to do so during this 30-day period.


(4)  Suspension by Service Provider. At any time during the Term, Service Provider may, immediately upon notice to Company, suspend access to the Platform if and as necessary to protect the Company data in the event of a threat to the technical security or technical integrity of the Technology Platform. Additionally, Service Provider will have the right, in addition to any of its other rights or remedies, to immediately suspend the provision of the Services or access to the Technology Platform to Company, without liability to Company, if any undisputed amount due under this Agreement is not received by Service Provider within fifteen (15) days after Service Provider provided notice that such amount was overdue. Service Provider will immediately notify Company of any suspension under this Section.


C. Effect of Termination. Upon termination or expiration of this Agreement, Company shall: (i) return all documents, data and other materials or information that constitute "Confidential Information" as defined below (and any license granted under this Agreement shall immediately terminate including, but not limited to, the license to the Licensed Technology Platform and Material), and (ii) immediately cease using any logo, trade name, trade or service mark or other commercial symbol that suggests a connection or association with Service Provider.


Termination will not relieve either Party of the obligation to pay any fees accrued or payable to the other Party prior to the effective date of termination. Upon termination or expiration of this Agreement: (a) Company will cease all use of the Service Provider Technology and the rights and licenses granted to Company to the Service Provider Technology, including the Software, will immediately terminate; (b) Company will permit Service Provider to enter Facilities to properly delete all copies of the Technology Platform installed thereon; and (c) all fees will be immediately due and payable.


Any provisions of the Agreement containing representations and warranties, warranty disclaimers, confidentiality rights and obligations, intellectual property rights, limitations of liability and/or indemnity terms, and any provision of the Agreement which, by its nature, is intended to survive shall remain in effect following any termination or expiration of the Agreement.

5.  Covenants. Company covenants and agrees that, at all times during the term hereof, Company will meet all applicable licensing and registration requirements, and conduct business and clinical practice in accordance with all governing laws; regulations; and medical record and billing policies established by third party insurers, as applicable. Company will maintain minimum system requirements and all rights and privileges necessary to upload and transfer data using the Technology Platform.

 

A. Company Obligations. Company grants to Service Provider a limited, royalty-free license: (a) during the Term to use, copy, reformat, display, disclose and distribute the Company Data solely for the purpose of providing the Technology Platform Services and as otherwise necessary for exercising Service Provider’s rights or performing Service Provider’s obligations under this Agreement; and (b) to the extent permitted by HIPPA, on a perpetual basis, to use, copy, reformat, and display de-identified (in accordance with 45 CFR §164.514) Company Data and/or statistics and to use, copy, disclose and distribute such data and statistics for Service Provider’s business purposes; provided, however, in any such data or statistics, Service Provider will ensure that the Company Data is used in de-identified form only and in a manner that is not directly or indirectly attributable to or identified with any individual Company patient, User or employee.

 

B. Service Provider Obligations. Service Provider will employ commercially reasonable efforts to ensure that the Technology Platform is free from viruses, worms, Trojan horses, spyware, adware, and other malicious code. Service Provider will not be responsible or liable for any failure to meet the foregoing responsibilities caused, in whole or in part, by the performance, adequacy, accuracy, concurrency or other matters related to Company’s systems. Service Provider will provide technical support to Company in accordance with Service Provider’s then standard support policies, as may be amended from time to time by Service Provider.

 

C. Communication with Users. As part of the provision of the Technology Platform Services, Service Provider may need to communicate with Users from time-to-time. Company grants Service Provider the limited right to communicate with Users as may be necessary as part of the provision of the Service Provider Technology and Services, in Service Provider’s reasonable discretion.

6.  Records.

 

A. Patient Records. Company shall own all patient medical records with respect to all services billed in the name of Company. Company (or, as applicable, its healthcare professionals) shall be solely responsible for making all entries on all such records. Such records shall at all times be owned and controlled by Company, but: (i) may be stored at various locations (including in the Technology Platform), and may be maintained, inspected, or copied by Service Provider, in connection with Service Provider's performance of services under this Agreement; and (ii) in the event of a termination of this Agreement, Company understands that Service Provider may retain a copy of such records related to such services, consistent with applicable federal and state privacy law. Both Parties shall comply with all applicable federal, state, and local laws and regulations relating to patient records. This Section (6A, Patient Records) shall survive termination or expiration of this Agreement


B. Business Records. All business and administrative records maintained by Service Provider in connection with the Technology Platform Services shall be Service Provider's property. Notwithstanding Section 6A (Patient Medical Records) above, Service Provider shall maintain a record of basic contact information of individuals that visit the Technology Platform (“Companies”); such records shall be considered business and administrative records, and Service Provider shall have the right in its sole discretion to contact the Companies with respect to matters such as feedback and quality assurance, and (subject to HIPAA and/or relevant state law) future services by Service Provider and its affiliates and contractors. This Section 6B (Business Records) shall survive termination or expiration of this Agreement.

7.  Insurance; Indemnification.

 

A. Company. During the Term of this Agreement, Company shall maintain, at its cost and in its name: (i) adequate and appropriate professional liability coverage; and (ii) any other insurance coverage reasonably necessary for Company’s operation.

 

B. Indemnification. Company shall indemnify and hold harmless Service Provider from and against any and all liability, loss, damage, cause of action, cost, or expense (including reasonable attorney’s fees) arising out of, or in any way connected with, any negligent or intentional act or failure to act, any breach of any representation or warranty under this Agreement, or any other wrongful conduct by Company, its shareholders, agents, employees, or subcontractors in the performance of its duties under this Agreement. This Section (Indemnification) shall survive termination or expiration of this Agreement.

8.  Compliance with Laws. Both Parties understand that payment of the compensation under this Agreement is not intended to be, and shall not be interpreted or applied as, permitting Service Provider to share in Company’s fees for Professional Services, but is acknowledged as the Parties’ negotiated agreement as to the reasonable fair market value of the items and services furnished by Service Provider pursuant to this Agreement. Company warrants that it has not been excluded, debarred, or otherwise ineligible to participate in the Federal health care programs nor has ever been convicted of a criminal offense related to health care.


A. Compliance as Business Associate. The Parties acknowledge that to the extent Service Provider is a “business associate,” as defined in federal regulations issued pursuant HIPAA relating to the privacy and security of medical records and health information, and/or relevant state privacy and security law, Service Provider will execute an appropriate Business Associate Agreement pursuant to relevant law.

9.  Confidentiality Etc.


A. Confidentiality. The Parties covenant and agree that they will keep the terms of this Agreement completely confidential and will not hereafter disclose such information concerning this Agreement to any person other than (i) their attorneys, accountants, financial advisors, lenders, or prospective purchasers, (ii) as needed to enforce the terms of this Agreement, or (iii) as required by law. Further, each Party hereby agrees that it and its officers, owners, directors, employees, agents, and advisors (collectively, “Representatives”) will use the Confidential Information of the other Party in good faith solely in connection with this Agreement and for no other purpose, that the Confidential Information will be kept confidential, and that the Party and its Representatives will not disclose any of the Confidential Information in any manner whatsoever or use it for any purpose except as necessary to perform its obligations hereunder; provided, however that (i) either Party and its Representatives may make any disclosure of such information to which the disclosing Party gives its prior written consent, (ii) any of such information may be disclosed to the other Party’s Representatives who need to know such information in connection with this Agreement, who agree to keep such information confidential and who agree to be bound by the terms hereof to the same extent as if they were Parties hereto, and (iii) either Party and its Representatives may make any disclosure that, in the opinion of its legal counsel, is required by law or governmental process. In any event, each Party agrees to undertake reasonable precautions to safeguard and protect the confidentiality of the Confidential Information of the other Party and to accept responsibility for any breach of this Section (Confidential Information) by any of its Representatives.

 

As used in this Agreement, “Confidential Information” shall be defined as oral, written and/or recorded information concerning a Party’s (or any of its subsidiaries’ or affiliates’) business, including all notes, analyses, summaries, compilations, studies, sheets, explanation of tests, legal advisory, technical data, marketing information, medical technology, technical specifications, banking, financing methodologies, investors, introductions to persons, business plans, marketing plans, supplier information, ideas, vendors, development strategies, intellectual property, know-how, proprietary property, written deliverables, business usage or requirements, customer lists, employee and consultant lists, system integrators, financial and operational information, accounting, pricing information, equipment used, reimbursement information, trade secrets, or other documents or records prepared by the non-disclosing Party of such information which contain, reflect, or are based on such information, but does not include information which (i) is or becomes generally available to the public other than as a result of a disclosure directly or indirectly by the applicable Party or any of its Representatives, (ii) was independently acquired or developed by the non-disclosing Party or its Representatives without breach of this Agreement, or (iii) becomes available to the non-disclosing Party or any of its Representatives on a non-confidential basis from a person (other than the disclosing Party or any of its Representatives) who, to the non-disclosing Party’s knowledge, is not and was not bound by a confidentiality agreement with the disclosing Party, or is not and was not otherwise prohibited from transmitting the information to the non-disclosing Party or its Representatives. 

 

If either Party or any of its Representatives are required by applicable law or regulation or by legal process to make any disclosure otherwise prohibited hereunder, each Party agrees to provide the other with prompt notice of such requirement prior to disclosure so that the other Party may seek a protective order or other appropriate remedy. If a protective order or other remedy is not obtained, the Party subject to legal disclosure agrees to furnish only that portion of the Confidential Information which its counsel advises it that it is legally compelled to disclose and to use its reasonable efforts, at the request and cost of the other Party, to obtain confidential treatment for the Confidential Information disclosed. If at any time either Party so requests for any reason, the other Party will promptly deliver to the requesting Party or, as elected by the other Party, destroy all Confidential Information delivered to it or its Representatives by or on behalf of the requesting Party. Notwithstanding the return or destruction of the Confidential Information, each Party and its Representatives will continue to be bound by the obligations of confidentiality and other obligations hereunder. All Confidential Information is provided “as is,” without warranty of any kind, and the non-disclosing Party shall not be liable for any damages whatsoever relating to recipient’s use of such Confidential Information. This Section (Confidential Information) shall survive termination or expiration of this Agreement.

 

B. Injunctive Relief. In the event of a breach of this Section 9, Company acknowledges that any violation of this Section would result in irreparable injury to Service Provider, and the remedy at law would be inadequate. Accordingly, Service Provider shall be entitled to injunctive relief in addition to any other remedies to which Service Provider may be entitled at law or in equity.

10.  Independent Contractor. The relationship between Service Provider and Company is not one of partners, joint venturers, principal and agent or employer and employee, or any relationship other than that of independent contractors. Except as specifically provided herein, Company shall neither have nor exercise any control or direction over the methods by which Service Provider and its employees and independent contractors provide the services required of it hereunder. Service Provider shall neither have nor exercise any control or direction over the professional judgment of Company or the manner in which Company performs his or her professional services. The Parties hereto understand that Service Provider, in its capacity as Service Provider, does not provide health care services and shall not employ, engage or supervise Company in his or her provision of such services. Each Party hereto shall be solely responsible for the compensation, benefits, insurance coverage, employer taxes and any other obligations of its own employees or independent contractors.

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.