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These Terms of Service, together with any fully-executed Master Services Agreement (and any incorporated Statement of Work (“SOW”) with respect thereto), and any documents expressly incorporated into these Terms of Service by reference, are a legal agreement between you and Data4Cure, Inc., a Delaware corporation (referred to herein as “we,” “us” and “our”), governing all access to and use of the Services and other items we provide through the Site. In any conflict between the terms of these Terms of Service and the terms of a Master Services Agreement, the terms of the Master Services Agreement shall govern.
These Terms of Service may be accepted by (1) you clicking on an acceptance box or a button indicating acceptance when it is presented to you; (2) you and us fully executing a separate document that incorporates this agreement, or (3) you accessing or using any part of the Services. If you are accepting on behalf of another person or entity, then you represent and warrant that you have the authority to bind that person or entity, you have read and understood these Terms of Service, and you agree on behalf of that person or entity to these Terms of Service (and, other than these representations, “you” refers to that person or entity).
1.1 Services. You hereby engage us to provide the Services which may include without limitation access to the Data4Cure website, servers and platform (collectively the “Site”) during the Term and subject to the terms and conditions of these Terms of Service.
1.2 Other Activities. You understand and agree that we are free to be employed by, or provide services for third parties similar to the Services rendered for you hereunder even if such third parties provide the same or similar data to us for analysis, and that we are free to use the same Personnel to provide such services for third parties that we may use for rendering Services for you hereunder, subject to our obligations respecting your Confidential Information as set out herein. Notwithstanding anything to the contrary in this Agreement, you agree that we and our Personnel shall be free to use and employ their general skills, know-how, and expertise, and to use, disclose, and employ any generalized ideas, concepts, know-how, methods, techniques or skills gained or learned during the course of providing Services hereunder. As used herein, “Personnel” means the directors, officers, employees, agents and independent contractors of a party.
2.1 Fees. Some Services available on the Site may be free to use, while other Services require the payment of a fee. Subject to the terms and conditions of these Terms of Service, you shall pay us the fees for Services you use as stated on the Site (“Fees”). All Fees are nonrefundable except as expressly provided otherwise in these Terms of Service. You will be responsible for all taxes related to the Fees or your use of the Service, excluding taxes based on our net income. We may, at our option, change the Fees; provided that we will notify you in advance of any material changes to the Fees.
3.1 We grant you a non-exclusive, non-transferable, non-sublicensable and limited license to use the Site for your internal research purposes only. You do not have the right to use the Site to provide services to any third party or offer access to the Site to any third party for any purpose. As used herein, “Data4Cure Systems” means information systems and networks owned, operated, rented, managed or controlled by Data4Cure. Data4Cure Systems includes the Site and also may include Third-Party Products.
3.2 Restrictions. When you complete Data4Cure’s registration process, you create a Data4Cure account ("Account"). You may not reveal, share or otherwise allow others to use your password, the Account, Data4Cure Systems, or any data or results contained therein, except as otherwise specifically permitted by these Terms of Service or authorized by Data4Cure. Any use of your Account with your login and/or password is deemed made by you and you are responsible for it and for the security of your computer system. You may use the Site, Services, and any data or materials associated therewith solely in accordance with these Terms of Service and applicable laws and government regulations (including without limitation HIPAA, and export control laws and regulations). You shall not, and will not permit any third party to: (i) translate, modify, adapt, enhance, decompile, disassemble or reverse engineer the Site or otherwise determine or attempt to determine source code or protocols from the executable code of the Site or create any derivative works based upon the Site; or (ii) extract ideas, algorithms, procedures, workflows or hierarchies from the Site or otherwise use the Site for the purpose of creating another product or service. You shall use commercially reasonable efforts to prevent unauthorized access to, or use of, the Site. As used herein, “Including” (whether capitalized or not) has the same meaning as “including, without limitation” or “including but not limited to.”
3.3 Site content. The Site content includes a knowledgebase that may include data, experimental study results, internally processed data and information, and other materials and results. You understand and acknowledge that the Site content may include content of various origins and types, including content originally created by Data4Cure, content derived from publicly available resources and websites, content licensed from third parties, and other content that each may come with their own limitations of use. Data4Cure, its suppliers including public data sources provide the materials and any services provided in connection herewith “as is” and make no warranty with respect to these materials, including without limitation any implied warranties regarding merchantability, fitness for a particular purpose, title or non-infringement or otherwise (irrespective of any course of dealing, custom or usage of trade), of the site, any services under this agreement or any materials provided incidental to such services provided, or that any such site, services or materials will be error-free, reliable, or complete. You are solely liable and responsible for any decisions and/or actions taken by You that may be based on or influenced by Site or Site content.
3.4 Research purposes. You understand and acknowledge that services and site are provided for internal non-GxP research purposes only. The service and any information derived thereof is in no way intended to be used for, or in substation of, medical advice, or to aid in diagnosis, treatment, or testing recommendations, or medical decision making of any kind. You acknowledge and agrees that Site content and results are scientific hypotheses and are not intended to be statements of fact or truth and are mere starting points for further experimental validation by You. Data4Cure does not independently verify the information provided in the site and cannot endorse its accuracy or completeness. Although content is obtained from sources considered by Data4Cure to be reliable, the accuracy and completeness thereof are not guaranteed and neither Data4Cure nor any of its third-party licensors or content providers shall have any responsibility or liability for errors, delays, interruptions, omissions, or malfunctions with respect to content or its delivery, regardless of the cause or source thereof. You are solely responsible for the decisions made based on use of services or site, or related materials and services, or any effects that may result from such use.
3.5 Saving or disclosing results outside of the Site. You may copy, save, disclose and/or publish Client Results (as defined below) generated through the Site. You may save the Data4Cure Results generated through the Site outside of the Site for internal research purposes, provided that You comply with the terms and conditions of this Agreement, and that the total sum of Data4Cure Results downloaded and saved outside of the Site does not constitute a substantial portion of all Data4Cure Results available through the Site. You agree to reference Data4Cure and the Site as the source of any results generated through the Site and agrees not to remove any proprietary rights notices contained in printed and electronic Results generated by the Site.
3.6 Monitoring. We may monitor your use of the Site for any reason, including quality assurance, improvement of the Site, Services, Data4Cure Software, and verification of compliance with these Terms of Service. As used herein, “Software” means the object (binary) or source-code version of any applications programs, operating systems software, computer software languages, utilities, other computer programs and related Documentation, in whatever form or media, including the tangible media upon which such applications programs, operating system software, computer software languages, utilities, other computer programs and related Documentation are recorded or printed, together with all corrections, improvements, updates and releases thereof, whether developed, licensed, or owned by you, us, or any third party, and “Data4Cure Software” means Software owned, controlled or developed by us, including Software provided or used as part of the Services or through the Site, including any Software provided by us to you for uploading Client Data. As used herein, “Documentation” means electronic or digitized user manuals, product manuals, schematics, diagrams, instructions, illustrations, guides, descriptions and specifications made available by us in connection with the Services.
3.7 Third-Party Providers. We or the Site may provide information about or links to third parties that offer products or services that may be related to the Services, including computer software or applications (“Third-Party Providers”). We make no representation, warranty or promise regarding such Third-Party Providers or the products or services they may offer, whether or not such products or services are presented on the Site. We provide such information or links only for your convenience. We do not endorse or recommend any Third-Party Provider or its products or services. Any access to or purchase of a product or service of Third-Party Providers made through the Site is subject to the terms and conditions of the Third-Party Provider with respect to that purchase. You acknowledge and agree that any such product or service is accessed through or purchased from the Third-Party Provider (and not us) and that the Third-Party Provider (and not us) is solely responsible therefor. As used herein, “Third Party Products” means (i) Software and other technology products and services utilized in the provision of Services which are owned, controlled or provided by a third party; and (ii) any Software or other technology products or services expressly licensed or provided to you pursuant and subject to an SOW, which are owned, controlled or provided by a third party.
3.8 Data Storage. We may use cloud based computing platform and infrastructure services provided by a third party, such as Amazon Web Services (AWS), Google Cloud Platform or Microsoft Azure, to store and process data, including any data, information, files, images, text or other content that may be provided by you or accessed by us in connection with the Services (“Client Data”), including your Confidential Information. We make no representations or warranties regarding such third party service providers, their service or performance standards. You agree that we will have no responsibility (or related liability) for backing up any Client Data.
4.1 Responsibility. You shall obtain and maintain throughout the Term all necessary licenses, consents, permissions, waivers and releases from the owners or licensors of any relevant Client Data and/or Client Confidential information to the extent such licenses, consents, permissions, waivers and releases are necessary for the Services or for providing us with Client Data or uploading Client Data to the Site.
4.2 Client Data. You shall be responsible for the accuracy, quality, integrity and legality of all Client Data provided to us in connection with the Services, and we may rely on all Client Data furnished to us by you in connection with the Services.
4.3 Protected Health Information. You understand and acknowledge that we are not a Covered Entity (or “CE”) as that term is defined in the Health Insurance Portability and Accountability Act of 1996 and its related regulations set forth in Parts 160, 162, and 164 of Title 45 of the Code of Federal Regulations (collectively, “HIPAA”). We do not purposefully collect or store “protected health information” (“PHI”), as defined in HIPAA (45 C.F.R. § 160.103); and sending, submitting, posting or otherwise providing to us, or uploading, storing, or otherwise transferring to the Site, any PHI (or other personally identifying information for any individuals from which the Client Data is derived), including “individually identifiable information”, as defined in HIPAA, and “personal data”, as defined in the EU General Data Protection Regulation, is strictly prohibited and we disclaim all responsibility or liability with respect to any such information. You understand and acknowledge that this may require you, in some instances, to anonymize Client Data provided to us or uploaded to the Site. You further agree to indemnify and hold harmless the Client Indemnified Parties from and against any Losses which results from or arise out of any claim asserted against or sought from any Client Indemnified Party relating to you uploading, storing, or transferring of such information using the Site or otherwise providing such information to us in connection with the Services. As used herein, “Loss” means any financial loss, damage, injury, penalty, sanction, judgment, fine, liability, cost, expense and fee (including reasonable attorneys' fees, expert witness fees, investigator fees, court costs, costs and fees associated with arbitration or mediation).
4.4 Business Associate Privacy Agreement. In certain cases, and to the extent offered by us, you may enter into a separate HIPAA Business Associate Privacy Agreement (“BA Privacy Agreement”) with us that allows you to send, submit, or otherwise provide PHI to us, or upload, store, or otherwise transfer PHI using the Site. The BA Privacy Agreement must be executed prior to sending, submitting, or otherwise providing PHI to us, or uploading, storing, or otherwise transferring PHI using the Site.
4.5 Dependencies. Notwithstanding anything to the contrary in these Terms of Service, we shall not be in breach of the terms of these Terms of Service to the extent such breach and/or failure is caused by your failure to comply with its obligations under these Terms of Service.
4.6 Use of Services. These Terms of Service do not give you the right to use the Services or the Site (or any data or materials associated therewith) under any circumstances to provide medical advice, diagnosis or treatment recommendations.
5.1 Use of Confidential Information. As used herein, “Confidential Information” means (i) for you, Client Proprietary Datasets (as defined below); and (ii) for us, the Site, Services, Data4Cure Data, Data4Cure Software and any information disclosed or materials provided in connection with these Terms of Service by us to you, in any form or medium (and without regard to whether the information is owned by us or by a third party), that is designated as confidential in writing by us. Under these Terms of Service, the party receiving or having access to any Confidential Information is referred to as the (“Receiving Party”) and the party disclosing the Confidential Information is referred to as the “Disclosing Party”). Confidential Information shall not include information that: (a) is in the public domain or is otherwise publicly known; (b) was previously known to the Receiving Party free of any obligation to the Disclosing Party to keep it confidential; (c) was rightfully received by the Receiving Party from a third party whose disclosure would not violate a confidentiality obligation and which disclosure was not in breach of this Agreement; (d) was subsequently and independently developed by Personnel of the Receiving Party without reference to the Confidential Information disclosed under this Agreement; or (e) was approved for release by the written authorization of the Disclosing Party. Each Receiving Party shall keep confidential, all Confidential Information and not disclose or reveal such information to any third party (other than (i) Personnel of such party on a need to know basis in connection with performing or receiving Services hereunder; (ii) as necessary to perform obligations under these Terms of Service; or (iii) in connection with a Dispute related to these Terms of Service) without the express prior consent of the Disclosing Party. Each Receiving Party shall take the same measures to protect the Confidential Information of the Disclosing Party in its possession or control that it takes to protect its own Confidential Information, but in no event less than reasonable measures.
5.2 Disclosure Required by Law. If a Receiving Party is requested or required by a Governmental Authority to disclose Confidential Information, or determines that a disclosure is affirmatively required by Law, the Receiving Party shall, if legally permissible, promptly notify the Disclosing Party of such request or determination so that the Disclosing Party may take, at its expense, such steps as are necessary to protect the Confidential Information. If the Receiving Party is thereafter requested or required to disclose the Confidential Information to such Governmental Authority, only such requested or required part of such information or required for compliance with Law to be disclosed shall be disclosed and confidential treatment shall be requested as appropriate. As used herein, “Governmental Authority” means any national, state or local government, any political subdivision thereof or any other governmental, quasi-governmental, judicial, public or statutory instrumentality, authority, body, agency, department, bureau, commission or entity, as well as any entity that contracts with a governmental entity to administer or assist in the administration of a government program (including any Medicare or Medicaid intermediaries and carriers) or any arbitrator with authority to bind a party, and “Law” means any constitutional provision, statute, ordinance or other law, rule, regulation, interpretation, judgment, decree or order of any Governmental Authority or any settlement agreement or compliance agreement with any Governmental Authority.
5.3 Return Upon End of Term. Following termination or expiration of these Terms of Service, no Receiving Party shall: (i) use, recreate or reproduce Confidential Information of a Disclosing Party; or (ii) disclose such information to any third party. The Receiving Party may retain one (1) copy of the Disclosing Party’s Confidential Information to verify or document the performance or receipt of Services, for audit purposes, and to enforce its rights under this Agreement and defend itself from any Dispute or any allegation, assertion and/or demand asserted or made by or on behalf of a third party and any formal proceeding, investigation, legal action, lawsuit, arbitration, mediation, hearing or proceeding that arises out of such allegation, or that arises out of any action by a Governmental Authority (“Claim”) or Dispute.
6.1 No Right or License. No right or license to either party’s Intellectual Property Rights is granted or implied as a result of these Terms of Service, except that you grant us a license under your Intellectual Property Rights to the extent necessary to perform the Services. As used herein, “Intellectual Property Rights” means any and all of the following in any jurisdiction throughout the world: (i) patents, patent applications and patent disclosures and any and all reissues, continuations, continuations-in-part, divisionals, extensions, requests for continued examinations, continued prosecution applications and reexaminations thereof and all inventions and designs and all improvements and enhancements thereto, whether or not patentable and whether or not reduced to practice; (ii) registered and unregistered trademarks, service marks, certification marks, trade dress, logos, trade names, corporate names, business and product names, Internet domain names and Internet protocol addresses, together with all translations, adaptations, derivations and combinations thereof and all goodwill associated with any of the foregoing and all applications, registrations and renewals in connection with any of the foregoing and all common law rights relating to any of the foregoing; (iii) registered and unregistered works of authorship, copyrights, industrial designs and industrial models and all applications, registrations and renewals in connection therewith; (iv) Trade Secrets and other Confidential Information of any kind (including know-how, ideas, research and development, formulas, compositions, manufacturing and production processes and techniques, technical data, designs, drawings, specifications, customer and supplier lists, pricing and cost information and business and marketing plans, proposals and methods, whether in tangible or intangible form and whether or not stored, compiled or memorialized physically, electronically, graphically, photographically or in writing); (v) computer Software (including data and related documentation); and (vi) all rights pertaining to any of the foregoing (including all statutory, contractual and other claims, demands and rights for royalties, fees or other income from any of the foregoing and all rights to sue for infringement or violation of any of the foregoing and all proceeds thereof).
6.2 Background. As between you and us, you shall have and retain sole and exclusive right, title and interest, including without limitation all Intellectual Property Rights, in and to your Confidential Information. As between you and us, we shall have and retain sole and exclusive right, title and interest, including without limitation all Intellectual Property Rights, in and to our Confidential Information and to the Services, Site, Data4Cure Software and any other trade secret, know-how, invention, copyrightable material or other intellectual property developed or used by us to provide the Services hereunder or which otherwise relate to the conduct of our business and any improvements, enhancements or modifications made thereto in providing the Services hereunder (collectively, the “Data4Cure Background”). You agree that you shall not, under any circumstance, attempt to copy, modify, create derivative works, or reverse engineer the Data4Cure Background or any part thereof.
6.3 Results. As between you and us, you shall own all rights, title and interest, including without limitation all Intellectual Property Rights, in and to any Results derived from and solely relating to Client Proprietary Datasets (“Client Results”). As used herein, “Results” means all information, results, data, deliverables, reports, know-how, designs, drawings, inventions, software, materials and work product that is or are provided to Client that was or were identified, made, conceived, produced, developed, reduced to practice and/or implemented in connection with the Services or these Terms of Service, including without limitation any data or information resulting from the analysis of Client Data provided by you to us for analysis or data otherwise accessed, incorporated or curated by us. As used herein, “Client Proprietary Dataset” means any Client Data provided by you to us for analysis, other than a Public Dataset or Data4Cure Data. As used herein, “Data4Cure Data” means data owned, curated, developed, generated, controlled or licensed by us. Data4Cure Data does not include Client Proprietary Datasets. As between you and us, we shall (i) own all rights, title and interest, including without limitation all Intellectual Property Rights, in and to any Results other than Client Results (“Data4Cure Results”); and (ii) we grant to you a nonexclusive, fully paid-up limited right and license to use the Data4Cure Results as reasonably necessary in connection with the Services provided hereunder, but not for the purpose of providing services to the benefit of third parties. As used herein, “Public Dataset” means Client Data provided by you to us for analysis, or data otherwise accessed, incorporated or curated by us that has been published, is available on request to the public, is accessible on-line or is otherwise in the public domain and can be freely used without infringing third party rights.
6.4 Client Feedback. To the extent you provide any ideas, suggestions, recommendations, improvements or other feedback with respect to the Site, Software or Services (collectively, “Feedback”), we shall have the right to use (and have others use) such Feedback for any purpose, including improving the Services.
8.1 Your Indemnification. You shall indemnify and hold us and our Personnel (the “Client Indemnified Parties”) harmless from and against any Losses which result from or arise out of any Claim asserted against or sought from any Client Indemnified Party in connection with these Terms of Service or the Services, only to the extent such Losses are caused by (i) material breach of these Terms of Service by you; (ii) the fraud, willful misconduct or gross negligence of you or your Personnel; (iii) any material failure by you or your Personnel to comply with applicable Law; except to the extent such Losses are caused by the fraud, willful misconduct or gross negligence of, or the material breach of these Terms of Service by, a Client Indemnified Party.
8.2 Our Indemnification. We shall indemnify and hold harmless the you and your Personnel (“Data4Cure Indemnified Parties”) from and against any Losses which result from or arise out of any Claim asserted against or sought from any Data4Cure Indemnified Party in connection with these Terms of Service or the Services, only to the extent such Losses are caused by (i) material breach of this Agreement by us, (ii) the fraud, willful misconduct or gross negligence of us or our Personnel; or (ii) any material failure by a us or our Personnel to comply with applicable Law; except to the extent such Losses are caused by the fraud, willful misconduct or gross negligence of, or the material breach of this Agreement by, a Data4Cure Indemnified Party.
8.3 Indemnification Process. Promptly after becoming aware of a Claim, the indemnified party shall notify the indemnifying party (i.e., either you or us, as applicable) of the Claim and the basis of the indemnified party's request for indemnification and shall provide the indemnifying party with a copy of all pleadings, papers, notices, documents and correspondence received or delivered by the indemnified party in connection with the Claim. The indemnifying party shall control such defense and negotiations, shall notify the indemnified party that it is doing so, and shall retain the right to make final decisions with respect to the defense or settlement thereof. The indemnified party shall have the right to participate in the defense or settlement of the Claim at its own expense, without a right of further reimbursement for such expense. If the indemnifying party does not notify the indemnified party of its election to conduct the defense of a Claim, the indemnified party may conduct the defense of the Claim, provided that the indemnifying party may participate in such defense at its own expense. The indemnified party may at any time notify the indemnifying party of its intention to settle, compromise or satisfy any Claim (the defense of which the indemnifying party has not undertaken) but may not make such settlement, compromise or satisfaction without the prior written consent of the indemnifying party, which shall not be unreasonably withheld or delayed. Notwithstanding anything to the contrary in this Section 8.3, the indemnifying party shall not, without the indemnified party's prior written consent, which may not be unreasonably withheld or delayed, settle or compromise any Claim or consent to entry of any judgment in respect of any Claim unless such settlement, compromise or consent (i) includes as an unconditional term the giving by the claimant or the plaintiff to the indemnified party of a release from all liability in respect of such Claim, and (ii) does not include a finding or admission by the indemnified party of any violation of any Law or regulation or any violation of the rights of any any natural person, corporation, general partnership, limited partnership, limited liability company, union, association, court, agency, government, tribunal, instrumentality, commission, arbitrator, board, bureau or other entity or authority (“Person”).
9.1 Representations. Each party represents as of the Effective Date and throughout the Term that it has the power and authority to enter into and deliver these Terms of Service on behalf of themselves and their organization. You further represents all Client Data provided to us may be relied upon by us in the performance of the Services; and does not infringe or misappropriate or will infringe or misappropriate any Intellectual Property Rights or proprietary or privacy right of any third party.
9.2 Disclaimer. EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT, WE HEREBY DISCLAIM ALL REPRESENTATIONS AND WARRANTIES, EXPRESS OR IMPLIED, MADE TO YOU OR ANY OTHER PERSON, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTIES REGARDING MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE OR NON-INFRINGEMENT OR OTHERWISE (IRRESPECTIVE OF ANY COURSE OF DEALING, CUSTOM OR USAGE OF TRADE), OF THE SITE, ANY SERVICES UNDER THESE TERMS OF SERVICE OR ANY MATERIALS PROVIDED INCIDENTAL TO SUCH SERVICES PROVIDED, OR THAT ANY SUCH SITE, SERVICES OR MATERIALS WILL BE ERROR-FREE, RELIABLE, COMPLETE OR SECURE. EACH PARTY WILL BE SOLELY AND INDIVIDUALLY RESPONSIBLE FOR COMPLYING WITH ALL LAWS AND REGULATIONS RELATING TO ITS BUSINESS OPERATIONS.
WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, YOU AGREE THAT WE ARE PROVIDING A SERVICE THAT IS INTENDED ONLY TO ASSIST YOU IN YOUR OWN RESEARCH AND THAT YOU ARE SOLELY RESPONSIBLE FOR (AND WE ASSUME NO RESPONSIBILITY AND WILL HAVE NO LIABILITY OF ANY KIND FOR) THE DECISIONS MADE BASED ON USE OF OUR SITE, SERVICE, OR MATERIALS, OR ANY EFFECTS THAT MAY RESULT FROM SUCH USE. WE MAKE NO REPRESENTATIONS OR WARRANTIES TO ANY THIRD PARTY. WE WILL NOT BE LIABLE FOR ANY DEFICIENCY IN PERFORMING UNDER THIS AGREEMENT IF SUCH DEFICIENCY RESULTS FROM YOUR FAILURE TO PROVIDE COMPLETE AND ACCURATE INFORMATION OR OTHER COOPERATION REASONABLY NECESSARY FOR OUR PERFORMANCE HEREUNDER (INCLUDING WITHOUT LIMITATION THE PROVISION OF CLIENT DATA).
9.3 Free Trial. From time to time, we may offer Services, including access to the Site, on a limited, trial basis for no fee, including without limitation pre-release version of non-generally released features or functionalities. TO THE EXTENT OFFERED, SUCH SERVICES ARE PROVIDED “AS IS” AND, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, WE MAKE NO REPRESENTATIONS AND DISCLAIM ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING WITHOUT LIMITATION WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR USE AND NONINFRINGEMENT.
10.1 Limitation of Liability. TO THE EXTENT ALLOWED BY APPLICABLE LAW AND DESPITE ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY OR LIMITATION OF LIABILITY, EXCEPT ITS INDEMNIFICATION OBLIGATIONS UNDER SECTION 8 OF THIS AGREEMENT, IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR ANY INDIRECT, CONSEQUENTIAL, SPECIAL, INCIDENTAL, PUNITIVE, OR OTHER EXEMPLARY LOSSES OR DAMAGES, INCLUDING LOST OR PROSPECTIVE PROFITS, LOSS OF BUSINESS, LOSS OF USE OR DATA, OR INTERRUPTION OF BUSINESS, WHETHER BASED IN CONTRACT, WARRANTY, INDEMNITY, NEGLIGENCE, STRICT LIABILITY OR OTHER TORT OR OTHERWISE, REGARDLESS OF THE FORESEEABILITY OR THE CAUSE THEREOF, EVEN IF SUCH OTHER PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, HOWEVER CAUSED.
NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT, OUR CUMULATIVE LIABILITY HEREUNDER FOR ALL CLAIMS AND LOSSES FOR ANY CAUSE WHATSOEVER, INCLUDING THOSE ARISING OUT OF OR RELATED TO THESE TERMS OF SERVICE AND/OR THE SERVICES, AND REGARDLESS OF THE FORM OF ACTION OR LEGAL THEORY, SHALL NOT EXCEED THE TOTAL DOLLAR VALUE OF THE FEES RECEIVED BY US FROM YOU DURING THE 12 MONTHS IMMEDIATELY PRECEDING THE DATE THAT THE EVENT, ACT OR OMISSION FROM WHICH SUCH LIABILITY AROSE OCCURRED. WITHOUT LIMITING THE FOREGOING, NO CLAIM SHALL BE PERMITTED MORE THAN 2 YEARS FROM THE EVENT, ACT OR OMISSION FROM WHICH SUCH CLAIM AROSE.
10.2 Essential Basis of the Bargain. The disclaimers, exclusions and limitations of liability set forth in this Agreement form an essential basis of the bargain between the Parties, and, absent any of such disclaimers, exclusions or limitations of liability, the provisions of this Agreement, including the economic terms, would be substantially different.
11.1 Term. The term of these Terms of Service shall begin on the Effective Date and, unless earlier terminated in accordance with this Agreement, continue in effect while you are using the Site, unless you have a signed agreement and an outstanding SOW with us that provides for a specific term which should prevail. (the “Term”).
11.2 Termination Without Cause. Either Party may terminate these Terms of Service without cause upon thirty (30) days prior written notice. Termination of these Terms of Service without cause will not terminate any outstanding SOW that provides for a specific term over which the Services are to be provided. In such case, this Agreement, as incorporated into the SOW, and the SOW that provides for a specific term will remain in effect for the remainder of such term.
11.3 Termination for Cause. Either Party may terminate this Agreement or the applicable SOW(s) (i) subject to Section 12 if the other Party commits a material breach of this Agreement or the applicable SOW and fails to cure such breach within thirty (30) days after receipt of written notice of the same; (ii) immediately if the other Party becomes the subject of a voluntary petition in bankruptcy or any voluntary proceeding relating to insolvency, receivership, liquidation or composition for the benefit of creditors; or (iii) immediately if the other Party becomes the subject of an involuntary petition in bankruptcy or any involuntary proceeding relating to insolvency, receivership, liquidation or composition for the benefit of creditors, and such petition or proceeding is not dismissed within ninety (90) days of filing.
11.4 Termination Due to Changes in Law. Upon any mandatory changes in applicable Laws that require material changes to the Services and materially and adversely affect the financial assumptions of Client and/or Data4Cure under the applicable SOW(s), each of Client and Data4Cure shall have the right, in its discretion and upon thirty (30) days' notice accompanied by opinion of legal counsel, to (i) propose continuation of the Services with the mandated changes and associated costs to be handled as provided below in Section 12.
11.5 Obligations Upon Termination. Upon any termination of this Agreement or an SOW, Data4Cure's obligations to perform Services hereunder or with respect to such SOW shall completely cease, except to the extent any transition services are expressly included in applicable SOW.
11.6 Payment of Fees and Termination Charges in the Event of Termination or Expiration. Within thirty (30) days of any termination or expiration of this Agreement, Client shall pay to Data4Cure all Fees that have accrued for performed Services (including for work in progress) through the effective date of termination or expiration of this Agreement, including any applicable Termination Charges and any unrecovered capital expenses incurred by Data4Cure prior to termination. In the event of any termination or expiration of an SOW, Client shall pay to Data4Cure (i) all Fees that have accrued for performed Services (including for work in progress) through the effective date of termination or expiration of such SOW, which shall become immediately due and payable; and (ii) any termination charges set forth in the applicable SOW(s) (“Termination Charges”).
12.1 Governance. You and us shall attempt in good faith to resolve any disputes that arise out of or in connection with the interpretation, enforcement or performance of these Terms of Service (each, a “Dispute”).
12.2 Continued Performance Clause. Each of you and us shall, unless otherwise directed by the other, continue performing its obligations under these Terms of Service while any Dispute is being resolved; provided, however, that this provision shall not operate or be construed as extending the Term or prohibiting or delaying the exercise of any right you or we may have to terminate these Terms of Service.
12.3 Unresolved Dispute. If the informal Dispute resolution procedures in Section
12.1 do not lead to a mutually acceptable resolution of the Dispute within sixty (60) days (or any longer period of time mutually agreed to by the Parties), either you or we may initiate arbitration pursuant to Section 12.4 with regards to the Dispute.
12.4 Arbitration. All Disputes that cannot be resolved pursuant to Section 12.1 shall, except as otherwise expressly provided herein, be solely and finally settled by binding arbitration conducted in accordance with the Commercial Arbitration Rules of the American Arbitration Association (the “AAA Rules”). If either Client or Data4Cure determines to submit a Dispute for arbitration, it shall furnish the other with a dated, written statement (the “Arbitration Notice”) indicating (i) the nature, with reasonable detail, of the Dispute and (ii) the remedy or remedies it shall seek.
Neither you nor we shall be liable for any failure or delay in the performance of any of its obligations under this Agreement (except payment obligations) to the extent the delay is attributable to the occurrence of any cause beyond its reasonable control (each, a “Force Majeure Event”). Force Majeure Events may include acts of a public enemy, acts of a civil or military authority, trade embargos, terrorist acts, riots, wars, fires, floods earthquakes or other natural occurrences, labor disputes, strikes, delays in transportation, failures or delays in receiving electronic data, non-performance by suppliers and vendors, or third party computer Software or hardware failures. Notwithstanding the foregoing, the delayed party must use reasonable efforts to mitigate the effect of the Force Majeure Event and complete performance of the delayed obligation. If either you or we believe that it has been or is likely to be delayed in performing an obligation because of a Force Majeure Event, it shall notify the other as soon as practicable, with reasonable details of the circumstances of the Force Majeure Event and its expected impact.
14.1 Governing Law/Venue. The parties agree that these Terms of Service shall be governed by and construed in accordance with the Laws of the State of California, without giving effect to any choice or conflict of law provision or rule thereof that would cause the application of the laws of any other jurisdiction. Except as otherwise provided in these Terms of Service, including Section 12, the Parties hereby designate all courts of record sitting in San Diego, California, both state and federal, as forums where any action, suit or proceeding in respect of or arising out of these Terms of Service, or the transactions contemplated by these Terms of Service shall be prosecuted as to parties and their respective successors and assigns, and by the foregoing designations the parties hereto consent to the jurisdiction and venue of such courts.
14.2 Successors and Assigns. Subject to Section 14.3, these Terms of Service shall inure to the benefit of and be binding upon the parties hereto and their respective successors and permitted assigns.
14.3 Assignment. Neither Party shall assign these Terms of Service, in whole or in part, without the prior written consent of the other party; provided, however, that either party may, without the prior written consent of the other, assign these Terms of Service in connection with the transfer or sale of all or substantially all of its business related to these Terms of Service, or in the event of its merger, consolidation, change in control or similar transaction. Any permitted assignee shall assume all assigned obligations of its assignor under these Terms of Service. Any purported assignment in violation of this provision shall be null and void.
14.4 Subcontract. You understand and agrees that we may utilize subcontractors for the performance or delivery of all or certain Services and may transfer Client Confidential Information to third-party subcontractors for the purposes of providing the communications, hosting, infrastructure and/or related support and other operations necessary in connection therewith. We shall remain primarily liable for the performance of any Services subcontracted pursuant to this Section 14.4.
14.5 Third Party Beneficiaries. No third party shall be considered a third-party beneficiary under these Terms of Service, nor shall any third party have any rights as a result of these Terms of Service.
14.6 Rights Cumulative: Waiver. All rights and remedies conferred under these Terms of Service or by Law shall be cumulative and may be exercised singularly or concurrently. The failure by either party to enforce any term shall not be deemed a waiver of future enforcement of that or any other term. The provisions of these Terms of Service are declared to be severable.
14.7 Illegality. In the event any provision of these Terms of Service is held to be invalid, illegal or unenforceable, such invalidity, illegality, or unenforceability shall not affect the validity of the remainder of these Terms of Service, which shall be and remain in full force and effect, enforceable in accordance with its terms.
14.8 Division. The divisions of these Terms of Service into sections and subsections and the use of captions and headings in connection therewith are solely for convenience and shall have no legal effect in construing the provisions of these Terms of Service.
14.9 Entire Agreement; Amendment. These Terms of Service, together with any fully-executed Master Services Agreement (and any incorporated SOW with respect thereto), and any documents expressly incorporated into these Terms of Service by reference, constitute the complete agreement between the Parties relating to the matters specified in this Agreement, and supersede all prior representations or agreements, whether oral or written, with respect to such matters unless otherwise provided herein. Neither party shall be entitled to benefits other than those specified herein. No oral modification or waiver of any of the provisions of these Terms of Service shall be binding on either party.
14.10 Survival. Where the parties' rights and obligations under these Terms of Service by their terms or by their nature extend or are contemplated to extend beyond the end of the Term, they shall be deemed to survive any termination or expiration of these Terms of Service for as long as necessary to give full force and effect to such rights and obligations of the parties.
14.11 Further Assurances. Each party shall, at the reasonable request and expense of the other party hereto, execute and deliver to such other party all such further instruments, assignments, assurances and other documents, and take such actions as such other party may reasonably request in connection with the carrying out of these Terms of Service.
14.12 Independent Contractors. Notwithstanding anything to the contrary in these Terms of Service, the parties, are independent contractors and are not employees, partners or joint venturers of the other. Neither party will have any right, power or authority, express or implied, to bind the other.
14.13 Publicity. You agree that we may at any time on or after the Effective Date the name of your organization name as our user or customer. We agree that you may disclose our name as your service provider and the source of any Results provided under the Services or through the Site.
14.14 Notices. Any notice, demand or communication required, permitted, or desired to be given hereunder, unless otherwise stated, shall be deemed effectively given when personally received, and shall be sent by (i) electronic mail transmission with return electronic mail from the recipient indicating receipt; (ii) express or overnight courier with proof of delivery; or (iii) U.S. Postal Service, certified or registered mail with signed return receipt, addressed to us at 4225 Executive Square Suite 600 or to you at the address you provided to us. Notwithstanding the foregoing, any notice of breach or termination must be sent by the method in (ii) or (iii) of this Section 14.14. Either party may change the Person and address to which notices or other communications are to be sent to it by giving written notice of any such change in the manner provided herein.
14.15 Export Controls. You agree to comply with all export and re-export restrictions and regulations of the Department of Commerce and any other United States or foreign agencies and authorities in connection with your use of the Site or Services. In particular, but without limitation, neither the Services nor any Results may, in violation of any Laws, be exported or re-exported (1) into any U.S. embargoed country or (2) to anyone on the U.S. Treasury Department's list of Specially Designated Nationals or the U.S. Commerce Department's Table of Deny Orders. You represent and warrant that it is not located in, under the control of, or a national or resident of any such country or on any such list.
14.16 Notice for California Users. Under California Civil Code Section 1789.3, California users of the Site are entitled to the following specific consumer rights notice: If you have a question or complaint regarding the Site, please send an email to firstname.lastname@example.org. You may also contact us in writing to the address provided herein for notice or by calling us at 858.242.5641. The Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs may be contacted in writing at 1625 North Market Blvd, Sacramento, California 95834, or by telephone at (916) 445-1254 or (800) 952-5210.
14.17 Modifications. We reserve the right at any time to change or amend these Terms and to impose new or additional terms or conditions on your use of Site or Services. Such modifications and additional terms and conditions will be effective immediately and incorporated into these Terms. By using the Services or Site you agree to the current Terms of Service.