ONLINE SUBSCRIPTION AND SERVICES AGREEMENT

Version 1.0

LIFEOMIC, INC. (“LifeOmic” or “we”) provide subscriptions to our Precision Medicine Platform™, which includes the modules, functionality and features described on your Service Order, and including all new versions, updates, revisions, improvements and modifications of this platform (all together, the “Software”) as well as the Services described below, subject to the terms and conditions of this agreement (this “Agreement”).

  1. Acceptance. By executing a Service Order with LifeOmic, you also accept the terms of this Agreement.  You should read this Agreement carefully for the terms and conditions that govern your use of the Software and your receipt of the Services.  The individual executing the Service Order on your behalf represents and warrants to us that he or she is fully and duly authorized to agree to be bound by this Agreement on your behalf.
  2. Our Services.
    1. Services. During the Term, we will use commercially reasonable efforts to provide to you and your Authorized Users the following services (the “Services”): (i) the hosting, management and operation of the Software for remote electronic access and use by you and your Authorized Users; (ii) the Support Services described in Section 5; and (iii) any other services we agree to provide in your Service Order.
    2. Changes. We may make any changes to the Software that we deem necessary or useful to improve the Software or for any other reason.  If you do not agree with the changes we make to the Software, you may exercise your right not to renew our contract as described below in Section a.
    3. Subcontractors. We may, in our discretion, engage subcontractors to perform Services under this Agreement, but we will remain liable for any act or omission by such subcontractors that would be a breach or violation of this Agreement.
    4. Suspension of Services. We may suspend or deny your or any Authorized User’s access to or use of all or any part of the Services or Software, without any liability to you or others, if (i) we’re required to do so by law or court order, (ii) you or any Authorized User have accessed or used our Services or Software beyond the scope of the rights granted to you under this Agreement, (iii) you or any Authorized User are or have been involved in any fraudulent, misleading or unlawful activities relating to or in connection with the Software or any of the Services, (iv) you or any Authorized User have failed to comply with the limitations and restrictions described in Section b, (v) you have failed to cooperate or otherwise comply with the further assurances required of you in Section 8.d, or (vi) you or any Authorized User have otherwise failed to comply with this Agreement and have failed to cure such breach within 10 days after we provide written notice to you.  Our remedies in this Section are in addition to, and not in lieu of, our termination rights in Section 10.
  1. Right to Access and Restrictions.
    1. Authorization. So long as you and your Authorized Users comply with this Agreement, we hereby authorize you to access and use, during the Term, the Services and the Software (including any provided Third-Party Materials) for your internal business purposes (the “Permitted Use”), by and through your Authorized Users, in accordance with the documentation we provide with the Software (the “Documentation”).  This authorization is non-exclusive and non-transferable (except as described in Section 14(f)).
    2. Limitations and Restrictions. You must not, and you must not permit any other person or entity to, access or use the Services or the Software except as we’ve specifically allowed in this Agreement and, in the case of any third-party materials (including open source components) we provide to you (“Third-Party Materials”), as allowed in the applicable third-party license agreement.  You and your Authorized Users must not do any of the following:
      1. copy, modify or create derivative works or improvements of our Software;
      2. make our Software or Services available (e.g., sublicense, distribute or transfer) to any other person or entity, including through any time-sharing, service bureau or software as a service arrangement;
      3. reverse engineer, disassemble, decompile, decode, adapt or otherwise attempt to derive or gain access to the source code of our Software;
      4. input, upload, transmit or otherwise provide to or through the Software or Services any information or materials that are unlawful or injurious, or contain, transmit or activate any Harmful Code;
      5. damage, destroy, disrupt, disable, impair, interfere with or otherwise impede or harm in any manner our Software or Services or our ability to provide services to any third party;
      6. access or use our Software or Services in any way that infringes, misappropriates or otherwise violates any intellectual property right, privacy right or other right of any third party, or that violates any applicable law or regulation; or
      7. access or use our Software or Services for the development or provision of a competing software service or product.
  1. Service Level Commitment. We will use commercially reasonable efforts to keep the Software available and operating in accordance with its Documentation at least 99.9% of the time (measured on a month-by-month basis), except for unavailability due to any Scheduled Downtime or Exceptions.  “Scheduled Downtime” means pre-scheduled downtime for routine maintenance between 10:00 p.m. and 6:00 a.m. Eastern time where we’ve given you at least 48 hours prior notice of such downtime.  “Exceptions” means any downtime or failure of the Software due, in whole or in part, to any (a) access or use of the Software not in accordance with this Agreement or the Documentation, (b) your or your Authorized User’s internet connectivity issues, (c) Force Majeure Event, (d) failure, interruption, outage or other problem with any software, hardware, system, network, or other technology infrastructure that is not ours, or (e) suspension of your access to the Software or Services as described in Section d above.  If we fail to meet the availability commitment described above, we will credit you 10% of your Monthly Fee for the month when the failure occurred.  If you are unhappy with the service availability, you may also exercise your right not to renew our contract as per Section 10.a.
  2. Support Services. Your subscription comes with our standard support (“Support Services”), which includes: (a) e-mail support (or other online support made available to our customers from time to time) to: (i) provide technical and operational assistance for the use of the Software, including assistance with initial configuration of the Software, and (ii) attempt to correct any reproducible failure of the Software to perform in accordance with its Documentation; and (b) case management to help track the status of any failures reported to us.  You must provide all information and assistance that we reasonably request in connection with providing such Support Services.  To be sure, our Support Services do not include: (i) support for software or hardware that is not ours, (ii) on-site training or assistance; or (iii) performance of any professional, consulting or advisory services.
  1. Security and Data.
    1. Security Program. We will develop, implement, maintain and monitor a written data security program that contains commercially reasonable administrative, technical, and physical safeguards to protect against anticipated threats or hazards to the security, confidentiality or integrity of Your Data, including the unauthorized or accidental acquisition, destruction, loss, alteration or use of, and the unauthorized access to, Your Data, in a manner that is consistent with applicable federal and state laws and regulations, including HIPAA.  We will review and, as appropriate, revise our security program at least annually or whenever there is a material change in our business that may reasonably affect the security or integrity of Your Data.
    2. Physical and Environmental Security. We will ensure that our information processing facilities that handle, process, and store Your Data are housed in secure areas and protected by perimeter security, such as barrier access controls that provide a physically secure environment from unauthorized access, damage, and interference.
    3. Security Breaches. We will promptly report to you any unauthorized acquisition, access, use or disclosure of Your Data maintained on servers owned or otherwise licensed by us from a third party (g., AWS) (each, a “Security Breach”).  We will also use diligent efforts to remedy any such Security Breach in a timely manner and deliver to you a root cause assessment and future incident mitigation plan with regard to each Security Breach.
    4. Data Backup and Disaster Recovery. Throughout the Term, we will maintain or cause to be maintained commercially reasonable disaster avoidance procedures designed to safeguard Your Data, our processing capability and the availability of the Software.  Without limiting the foregoing, we will conduct or have conducted daily backups of Your Data and perform or cause to be performed other periodic backups of Your Data and store such backups in a commercially reasonable location and manner.
    5. Reputable Hosting Provider. We may provide our hosting services using Amazon Web Services (“AWS”) or such other hosting provider that implements and maintains commercially reasonable security programs, policies, procedures, controls and technologies.
  1. Confidentiality.
    1. Treatment of Confidential Information. If you and we already have a nondisclosure agreement in place that will continue to apply during the Term of this Agreement, then you and we will indicate this in your Service Order.  Otherwise, the following confidentiality provisions will apply: During the Term and for a period of five years thereafter, each receiving party (each, a “Recipient”) will hold in strict confidence any proprietary or confidential information (collectively, “Confidential Information”) of the other party (the “Discloser”) and will not disclose Discloser’s Confidential Information to any third party nor use the Discloser’s Confidential Information for any purpose except for carrying out its obligations or exercising its rights under this Agreement.  To be clear, our Software, all information related to our Software, and the terms and existence of this Agreement are all our Confidential Information, and Your Data is your Confidential Information.  These restrictions will not restrict the use or disclosure of information disclosed by one party to the other that (i) is or becomes publicly known other than as a result of any act by the Recipient, (ii) is lawfully received by the Recipient from a third party not in a confidential relationship with the Discloser, (iii) was already rightfully known by the Recipient prior to receipt thereof from the Discloser, or (iv) after notice and an opportunity to object, is required by law to be disclosed.  Notwithstanding the foregoing, each party’s confidentiality obligations will survive with respect to the other party’s Confidential Information that is a trade secret for so long as such Confidential Information continues to be a trade secret under applicable law.
    2. Protected Health Information. With respect to handling any Protected Health Information, we will comply with the applicable provisions of HIPAA to the same extent as you are required to comply with HIPAA.  We will not use or further disclose any Protected Health Information other than as permitted by this Agreement and the requirements of HIPAA pertaining to you.  To the extent we are a “business associate” of yours under HIPAA, we will execute a business associate agreement with you, in a form that you and we agree upon, and we will comply with such agreement.
  1. Fees and Payment.
    1. Fees. You will pay to us the Monthly Fees and other fees and charges described in your Service Order (the “Fees”) in accordance with your Service Order and this Section.  All Fees once paid are non-refundable.
    2. Taxes. Our Fees do not include taxes and similar assessments.  We will pass along to you the cost of all sales and excise (and other similar) taxes, duties and charges of any kind imposed by a governmental authority on amounts payable under this Agreement, other than taxes imposed on our income.  If any such amounts are owed to a governmental authority, we will calculate the amount of the obligation and include this on your bill or invoice, and we will remit those amounts to the applicable authority.
    3. Payment. You will make all payments in US dollars.  You will, upon our request, establish and maintain valid and updated credit card information or a valid ACH auto debit account (in each case, the “Automatic Payment Method”).  Upon establishment of an Automatic Payment Method, we may charge the Fees using that Automatic Payment Method.  If instead we invoice you for the applicable Fees, invoiced amounts are due net 30 days from the invoice date.  You are responsible for providing complete and accurate billing and contact information and notifying us of any changes to that information.
    4. Further Assurances. If at any time, through your usage of the Software and our Services or otherwise, you incur an aggregate balance owed to us of $5,000 or more, we reserve the right, in our reasonable discretion, to take any reasonable action to ensure and confirm your ability to pay, including, but not limited to, processing a D&B report, processing a credit report, requiring written validation that the individual who has executed this Agreement on your behalf was duly authorized, processing a nominal charge to your Automatic Payment Method for validation purposes, or requiring you to immediately deposit an amount equal to a commercially reasonable percentage of the balance owed.  You will provide all reasonable cooperation and assistance we request in connection with our actions under this Section.
  1. Intellectual Property Rights.
    1. Software and Services. We (or the respective rights holders in any Third-Party Materials) own all right, title and interest in and to the Services and our Software, including all related intellectual property rights.  We are not granting you any right, license or authorization with respect to any of the Services, our Software, or any Third-Party Materials except as we’ve specifically provided in Section 3.a above (and subject to the limitations and restrictions in Section 3.b above).  We and the respective rights holders in any Third-Party materials reserve all other rights in and to the Services, our Software, and any Third-Party Materials.
    2. Your Data. As between you and us, you are and will remain the sole and exclusive owner of all right, title and interest in and to all of Your Data, including all intellectual property rights relating to Your Data, subject to the rights you grant to us in Section 9.c.
    3. Right to Use Your Data. During the Term, you hereby grant all such rights and permissions in or relating to Your Data: (i) to us and our subcontractors as are necessary to perform the Services and provide our Software to you; (ii) to us as are necessary to enforce this Agreement and exercise our rights and perform our obligations under this Agreement; (iii) to us as are necessary or useful for our internal research purposes, to improve the quality of our services, software, and analytics, and to improve our algorithms.
    4. AI Model Improvements. To the extent we make any improvements to our algorithms (“Improvements”) based upon our Software’s processing of Your Data and the resulting “machine learning” or “training” of our algorithms, you agree that we own all right, title and interest in and to the Improvements, including all related intellectual property rights.  You specifically acknowledge and agree that any Improvements based upon processing of Your Data may be used for the benefit of our other customers.
  1. Term and Termination.
    1. Term. The initial term of this Agreement is as indicated in your Service Order (the “Initial Term”).  After the Initial Term, this Agreement will automatically renew for successive one-month periods (each a “Renewal Term” and, together with the Initial Term, the “Term”) unless one of us gives the other written notice of non-renewal at least seven days before the end of the then-current term.
    2. Termination. In addition to any other termination rights described in this Agreement, this Agreement may be terminated at any time:
      1. By us, effective when we provide written notice to you, if you fail to pay any Fees when due and if you do not cure this failure within 10 days after our written notice regarding your late payment;
      2. By either party, effective when that party provides written notice to the other, if the other party materially breaches this Agreement and such breach (A) is incapable of cure, or (B) being capable of cure, remains uncured 30 days after the non-breaching party provides the breaching party with written notice regarding such breach; and
      3. By either party, effective immediately, if the other: (A) is dissolved or liquidated or takes any corporate action for such purpose; (B) becomes insolvent or is generally unable to pay its debts as they become due; (C) becomes the subject of any voluntary or involuntary bankruptcy proceeding under any domestic or foreign bankruptcy or insolvency law; (D) makes or seeks to make a general assignment for the benefit of its creditors; or (E) applies for, or consents to, the appointment of a trustee, receiver or custodian for a substantial part of its property.
    3. Effect of Termination. If this Agreement is terminated or expires, then, except as specifically described below in Section d: (i) all rights, licenses and authorizations granted by one party to the other will immediately terminate, (ii) we may disable your and your Authorized Users’ access to the Software, and (iii) we each will cease all use of the other party’s Confidential Information and promptly destroy or (at such other party’s request) return all of the other party’s Confidential Information, except that each party may retain Confidential Information in its backups, archives and disaster recovery systems until such Confidential Information is deleted in the ordinary course (so long as it remains subject to all confidentiality, security and other applicable requirements of this Agreement)
    4. Post-Termination Retrieval of Your Data. During the 30 days after termination or expiration of this Agreement, we will not destroy or remove any of Your Data as a result of the termination or expiration.  During that period, we will allow you continued access to the Software and our Services for the sole purpose of retrieving any of Your Data, unless (i) doing so is prohibited by law or is reasonably likely to subject us to liability, or (ii) we would otherwise have the right to suspend your access as described above in Section d.  For any use of our Software or Services during such period, the terms of this Agreement will continue to apply.
    5. Surviving Terms. Sections 3.b (Limitations and Restrictions), 7 (Confidentiality), 9 (Intellectual Property Rights), 10.c (Effect of Termination), 10.d (Post-Termination Retrieval of Your Data), 11.b (Your Assurances), 12 (Indemnification), 13 (Limitations of Liability), 14 (Miscellaneous), 15 (Definitions) and this Section will survive any expiration or termination of this Agreement.
  2. Assurances.
    1. Mutual. Each party represents and warrants to the other that: (i) it has the full right, power and authority to enter into and perform its obligations and grant the rights, licenses and authorizations it grants and is required to grant under this Agreement; and (ii) it will comply with all applicable federal and state laws, statutes, rules and regulations in the performance of its obligations hereunder.
    2. By You. You represent, warrant and covenant that: (i) your collection and use of all of Your Data (including as contemplated in this Agreement) is consistent with your own privacy policy, with any applicable IRB-approved patient or research subject informed consent document, and with all applicable federal and state laws, rules and regulations, including but not limited to HIPAA, the Common Rule and GINA; (ii) to the extent any patient or research subject has withheld consent for the use of any of their data, information or materials for the purposes described in Section c, you have notified us in writing and have complied with our reasonable requirements for you to segregate the applicable patient or research subject data, information or materials at the time it is delivered to us; and (iii) to the extent any patient or research subject has withdrawn consent for the use of any of their data, information or materials for any purpose contemplated under this Agreement, you will immediately notify us in writing and reasonably cooperate with us in our efforts to return or destroy such patient’s or research subject’s data, information or materials to the extent required by applicable law.  You will indemnify, defend and hold us and our subcontractors and personnel harmless from any third party claim arising from allegations that you or your Authorized Users have breached any provision in this Section.
    3. By Us Regarding Our Services. We warrant that we will perform all Services in a timely, professional and workmanlike manner, using adequate resources and appropriately qualified personnel, and consistent with the highest standards of quality in our industry.
    4. By Us Regarding Our Software. We warrant that: (i) the Software will at all times during the Term substantially conform in all material respects to the specifications set forth in your Service Order and its Documentation, (ii) we have used and will continue to use all reasonable efforts consistent with industry best practices to ensure that the Software does not contain (and will not introduce) any Harmful Code into any of your devices, software, systems or telecommunications equipment, (iii) we have all necessary rights to possess, use, and authorize you and your Authorized Users to use in accordance with this Agreement our Software, (iv) our Software as provided to you under this Agreement complies with all applicable federal, state and local laws, rules and regulations.
    5. Warranty Limitations. The warranties in Section d above do not apply to any non-conformance resulting from: (i) your use of the Software in a manner inconsistent with this Agreement or its Documentation, (ii) the operation of or access to your or a third party’s system or network, or (iii) any Third-Party Materials.  Additionally, if we breach the warranty in Section 11.d(i) above, we will, within a commercially reasonable period of time, at our sole option, and at our sole cost and expense, either (x) modify, fix or correct the Software to remedy such non-conformity, or (y) replace the non-conforming portion of the Software, in each case without causing a material loss of features or functionality of the Software.  If we do not cure the breach as provided in the preceding sentence within a commercially reasonable period of time after our receipt of written notice from you regarding the breach, then you may, effective upon your written notice, terminate this Agreement.  THE REMEDIES DESCRIBED IN THIS SECTION 11.e ARE YOUR SOLE REMEDIES AND OUR ENTIRE OBLIGATION AND LIABILITY TO YOU OR ANY OTHER PERSON OR ENTITY FOR ANY BREACH OF THE WARRANTY PROVIDED IN SECTION 11.d(i).
    6. Disclaimer of Warranties. EXCEPT FOR THE EXPRESS LIMITED WARRANTIES IN SECTION c AND 11.d, ALL SERVICES AND OUR SOFTWARE ARE PROVIDED “AS IS” AND WE HEREBY DISCLAIM ALL OTHER WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHER, INCLUDING ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT.  ALL THIRD-PARTY MATERIALS ARE PROVIDED “AS IS” AND ANY REPRESENTATION OR WARRANTY OF OR CONCERNING ANY THIRD PARTY MATERIALS IS STRICTLY BETWEEN CUSTOMER AND THE THIRD-PARTY OWNER OR DISTRIBUTOR OF THE THIRD-PARTY MATERIALS.
  3. Indemnification.
    1. By Us. We will indemnify, defend and hold you and your officers, directors, employees, agents, successors and permitted assigns (each, including you, an “Indemnitee”) from and against any and all Losses incurred by the Indemnitee arising out of or relating to any Claim by a third party (other than an affiliate of an Indemnitee) to the extent that such Losses arise from any allegation that your use of the Services or Software (excluding Your Data and Third-Party Materials) in accordance with this Agreement and the Documentation infringes any intellectual property right of such third party.  This obligation does not apply to the extent that such Claim arises from your or your Authorized Users’ failure to timely implement any upgrades or enhancements we make available or from any Claims for which you are obligated to indemnify pursuant to Section 11.b above.  Additionally, this obligation does not apply unless the Indemnitee (a) promptly gives us written notice of the Claim, (b) gives us sole control of the defense and settlement of the Claim (provided that we may not settle any Claim that imposes liability on or contains any admission of fault by the Indemnitee without the Indemnitee’s consent), (c) provides us (at our sole cost and expense) with all available information and reasonable assistance necessary for us to defend or settle the Claim; and (d) has not compromised or settled the Claim without our prior written approval.
    2. Mitigation. If the Services or Software are, or in our opinion are likely to be, claimed to infringe any intellectual property right, we may, at our option and our sole cost and expense: (i) obtain the right for you to continue to use the Services and Software as contemplated by this Agreement, (ii) modify or replace the Services and Software to make the Services and Software (as so modified or replaced) non-infringing, without causing a material loss of features or functionality, or (iii) if the remedies in clauses (i) and (ii) are not feasible within commercially reasonable standards, then we may terminate this Agreement upon written notice and without any liability to you.
    3. Sole Remedy. THIS SECTION 12 SETS FORTH YOUR SOLE REMEDIES AND OUR SOLE LIABILITY AND OBLIGATION TO YOU OR ANY OTHER PERSON OR ENTITY FOR ANY ACTUAL, THREATENED OR ALLEGED CLAIMS THAT THIS AGREEMENT OR ANY SUBJECT MATTER HEREOF (INCLUDING THE SERVICES AND SOFTWARE) INFRINGES, MISAPPROPRIATES OR OTHERWISE VIOLATES ANY INTELLECTUAL PROPERTY RIGHTS OF ANY THIRD PARTY.
  4. Limitations of Liability.
    1. Exclusion of Damages. IN NO EVENT WILL EITHER PARTY, OR ANY OF THEIR RESPECTIVE LICENSORS, SERVICE PROVIDERS OR SUPPLIERS BE LIABLE UNDER OR IN CONNECTION WITH THIS AGREEMENT OR ITS SUBJECT MATTER UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY AND OTHERWISE, FOR ANY: (i) LOSS OF PRODUCTION, USE, BUSINESS, REVENUE OR PROFIT; (ii) IMPAIRMENT, INABILITY TO USE OR LOSS, INTERRUPTION OR DELAY OF THE SOFTWARE OR SERVICES, OTHER THAN FOR THE ISSUANCE OF ANY APPLICABLE SERVICE CREDITS PURSUANT TO SECTION 4, (iii) LOSS, DAMAGE, CORRUPTION OR RECOVERY OF DATA, OR BREACH OF DATA OR SYSTEM SECURITY, OTHER THAN PURSUANT TO THE POLICY CROSS-REFERENCED IN SECTION 6.c, OR (iv) CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, ENHANCED OR PUNITIVE DAMAGES, IN EACH CASE REGARDLESS OF WHETHER SUCH PERSONS WERE ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES OR SUCH LOSSES OR DAMAGES WERE OTHERWISE FORESEEABLE, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.
    2. Cap on Monetary Liability. IN NO EVENT WILL THE AGGREGATE LIABILITY OF EITHER PARTY OR THEIR RESPECTIVE LICENSORS, SERVICE PROVIDERS AND SUPPLIERS UNDER OR IN CONNECTION WITH THIS AGREEMENT OR ITS SUBJECT MATTER, UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY AND OTHERWISE, EXCEED THE GREATER OF (i) $100,000, OR (ii) TWO TIMES THE AGGREGATE AMOUNT PAID TO LIFEOMIC HEREUNDER DURING THE SIX-MONTH PERIOD IMMEDIATELY PRECEDING THE FIRST CLAIM HEREUNDER (NOT TO EXCEED $500,000). THE FOREGOING LIMITATION APPLIES NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.
    3. Exceptions to Limitations. The exclusions and limitations in this Section 13 will not apply to a party’s confidentiality obligations, a party’s indemnification obligations, liability for a party’s infringement or misappropriation of the other’s intellectual property rights, liability for a party’s fraud, gross negligence or willful or intentional misconduct, or our commitments under the policy cross-referenced in Section 6.c.
  5. Miscellaneous. (a)  Entire Agreement. This Agreement and the Service Order constitute the entire agreement, and supersede all prior negotiations, understandings or agreements (oral or written), between the parties regarding the subject matter of this Agreement (and all past dealing or industry custom).  (b)  Counterparts.  Any Service Order may be executed in one or more counterparts, each of which will be an original, but taken together will constitute one and the same instrument.  Execution of a facsimile copy (including PDF) or execution through electronic means will have the same force and effect as execution of an original.  (c)  Amendment, Severability and Waiver.  No change, consent or waiver under this Agreement will be effective unless in writing and signed by the party against which enforcement is sought. Any delay or failure of either party to enforce its rights, powers or privileges under this Agreement, at any time or for any period, will not be construed as a waiver of such rights, powers and privileges, and the exercise of one right or remedy will not be deemed a waiver of any other right or remedy.  If any provision of this Agreement is determined to be illegal or unenforceable, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect and enforceable.  (d)  Governing Law and Venue.  This Agreement will be deemed to have been made in, and will be governed by and construed in accordance with the laws of, the State of Indiana, without regard to its conflicts of law provisions.  The sole jurisdiction and venue for actions related to this Agreement will be the state or federal courts located in Indianapolis, Indiana, and both parties consent to the exclusive jurisdiction of such courts with respect to any such action.  (e)  Notices.  All notices under this Agreement will be in writing and may be delivered by electronic mail in portable document format (.pdf), certified or registered mail, overnight courier, or personal delivery, in each case to the address or e-mail address specified in the Service Order.  (f)  Assignment.  Neither party may assign, delegate or otherwise transfer its rights or obligations under this Agreement without the prior written consent of the other party; provided that either party may assign this Agreement in its entirety without the other party’s consent to its affiliates or to an entity that acquires all or substantially all of the business or assets of such party to which this Agreement pertains, whether by merger, reorganization, acquisition, sale or otherwise.  This Agreement will be binding upon, and inure to the benefit of, the successors and permitted assigns of the parties.  (g)  No Third Party Beneficiaries.  This Agreement is for the sole benefit of the parties hereto and their respective successors and permitted assigns and nothing herein, express or implied, is intended to or will confer on any other person or entity any legal or equitable right, benefit or remedy of any nature whatsoever under or by reason of this Agreement.  (h)  Relationship of the Parties.  The relationship between the parties is that of independent contractors. Nothing contained in this Agreement will be construed as creating any agency, partnership, joint venture or other form of joint enterprise, employment or fiduciary relationship between the parties, and neither party will have authority to contract for or bind the other party in any manner whatsoever.  (i)  Publicity Rights.  We may, without your consent, include your name, trademarks and/or logos on our website and/or in other sales and marketing materials in order to factually identify you as a current or former customer (as the case may be).  (j)  Force Majeure.  Neither party will be liable for any delays or non-performance of its obligations (excluding the obligation to pay fees due hereunder) arising out of causes not within such party’s reasonable control, including, without limitation, actions or decrees of governmental authorities, criminal acts of third parties, earthquakes, flood, and other natural disasters, war, terrorism, acts of God, or fire (a “Force Majeure Event”), except to the extent that the delay or non-performance was not reasonably safeguarded against (in accordance with industry standards) or the party had notice.  (k)  Equitable Remedies.  Each party acknowledges and agrees that a breach or threatened breach by such party of any of its obligations under Section b (Limitations and Restrictions), Section 7 (Confidentiality) or Section 9 (Intellectual Property Rights) of this Agreement would cause the other party irreparable harm for which monetary damages would not be an adequate remedy and that, in the event of such breach or threatened breach, the other party will be entitled to equitable relief, including in a restraining order, an injunction, specific performance and any other relief that may be available from any court of competent jurisdiction, without any requirement to post a bond or other security, or to prove actual damages or that monetary damages are not an adequate remedy. Such remedies are not exclusive and are in addition to all other remedies that may be available at law, in equity or otherwise.
  6. Other Definitions. Capitalized terms that are used in this Agreement have the meanings described below, or as otherwise defined in your Service Order.

Authorized User” means each of your employees that has been granted valid access credentials for the Software.

Claim” means any claim, suit, action or proceeding.

Common Rule” means the Federal Policy for the Protection of Human Subjects, 45 C.F.R. Part 46 (as modified from time to time).

Your Data” means information, data and other materials that are collected, uploaded or otherwise received, directly or indirectly, from you or an Authorized User by or through the Software or Services.

GINA” means the Genetic Information Nondiscrimination Act of 2008, Public Law 110-233, and all regulations promulgated thereunder, 29 C.F.R. Part 1635 (collectively, and as modified from time to time).

Harmful Code” means any software, hardware or other technology, device or means, including any virus, worm, malware or other malicious computer code, the purpose or effect of which is to permit unauthorized access to, or to destroy, disrupt, disable, distort, or otherwise harm or impede in any manner any (a) computer, software, firmware, hardware, system or network or (b) any application or function of any of the foregoing or the security, integrity, confidentiality or use of any data processed thereby.

HIPAA” means the Health Insurance Portability and Accountability Act of 1996, Public Law 104-191, as amended by the Health Information Technology for Economic and Clinical Health Act, 42 U.S.C. § 17931, and all regulations promulgated thereunder, 45 C.F.R. Parts 160 through 164 (collectively, and as modified from time to time).

Loss” means any and all losses, damages, liabilities, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs or expenses of whatever kind, including reasonable attorneys’ fees and the costs of enforcing any right to indemnification hereunder and the cost of pursuing any insurance providers.

Monthly Fee” has the meaning given to such term in the Service Order.

Protected Health Information” has the meaning given to it under HIPAA.

Service Order” means the Service Order executed by you and us, which is incorporated into this Agreement for all purposes.