IMPORTANT – READ CAREFULLY: Your purchase and use of the software and services is conditioned upon your compliance with and acceptance of this agreement.
Recitals
A. OccuPro, LLC (“Licensor”) has developed programming and protocols for the assessment and rehabilitation of clients which includes a web-based software application (“Software”), procedure manuals, documents and training programming (collectively “Services”). B. The client (“Licensee”) agrees to obtain a license to the Software and to utilize the Licensor’s Services as may be more particularly identified in an Order Form (as defined below), and Licensor agrees to grant a license to the Software to Licensee and to provide Services, in accordance with the terms and conditions stated herein.
Agreement
Introduction
This Service Agreement (“Agreement”) governs the purchase and use of the Software and/or related Services. The Software and/or related Services may be purchased by: (a) executing an order form, work order or statement of work (for purposes of this Agreement each shall be referred to as an “Order Form”); or (b) using the Software and/or related Services. The individual or legal entity executing an Order Form or opening an account for Services under this Agreement shall be referred to as “Licensee” in this Agreement. Each Order Form shall incorporate this Agreement by reference, each Order Form shall govern and control in case of conflict with this Agreement, and each Order Form, in conjunction with this Agreement shall form a separate agreement between the parties that execute the applicable Order Form. Please read this Agreement carefully before executing an Order Form or installing, accessing, or otherwise using the Software and/or related Services. By executing an Order Form or installing, accessing, or otherwise using the Software and/or related Services, Licensee agrees to be bound by this Agreement. Please maintain a copy for your records. If you (Licensee) do not agree with the terms of this Agreement, do not use the Software and/or related Services.
Service Description
This Agreement governs the purchase and use of the Licensor’s Software and/or related Services set forth in the applicable Order Form or used by Licensee if no such Order Form has been executed. Licensor may alter, expand, or reduce the features of the Software and/or related Services from time to time without notice to Licensee. Licensee agrees that Licensor’s obligation to provide Software and/or related Services is conditioned upon Licensee providing all information and assistance reasonably required to install the Software and/or perform the related Services and Licensee’s compliance with standards set forth by Licensor regarding hardware compatibility and installation requirements and Licensee hereby agrees to timely provide all such information, assistance and compliance.
License Grant
Subject to and conditioned upon Licensee’s payment of any and all appropriate license fees and compliance with all other terms and conditions of this Agreement, Licensor hereby grants to Licensee a non-exclusive, non-transferable, non-sublicensable, non-assignable limited license to use and access those features of the Software selected on the Order Form solely in connection with Licensee's location(s) as outlined in the Order Form. Licensee may purchase licenses for additional features of the Software or for additional locations by paying the appropriate software implementation and license fees for such features or locations.
Term and Price Escalator
(a) Initial Term. The Initial Term of this Agreement shall commence upon payment of the appropriate license fees and shall remain in effect for a period of three (3) years (the "Initial Term") unless otherwise stated in the Order Form, in which case the Initial Term shall be as indicated in the Order Form. On the anniversary of the Commencement Date each year during the Initial Term, the licenses and services granted to the Licensee shall be subject to the price escalation as indicated on Schedule A of this Order Form. Within ninety (90) days prior to the end of an Initial Term, Licensor shall provide Notification to Licensee via Licensor’s software system notifying Licensee of the automatic renewal of the Order Form and this Agreement for an additional year pursuant to Paragraph 4(b) below. In said notice, Licensor shall state any change to the Licensing and Service Fees for the upcoming Renewal Period. Licensee hereby consents to and agrees that Licensor’s notice through Licensor’s software system shall be deemed sufficient notification to allow Licensee to exercise its Termination Option pursuant to Paragraph 4(c) below.
(b) Automatic Renewal. Upon the expiration of the Initial Term, this Agreement shall automatically renew on a year-to-year basis (a “Renewal Period”) (the Initial Term and any Renewal Term collectively hereinafter referred to as the “Term”) on the same terms and conditions set forth on the Order Form, unless Licensee exercises its Termination Option prior to any renewal period, pursuant to Paragraph (c) below. On the first day of each Renewal Period, the licenses and services granted to the Licensee shall be subject to the price escalation as indicated on Schedule A of the Order Form. Within ninety (90) days prior to the end of the then-current Renewal Period, Licensor shall provide Notification of Automatic Renewal to Licensee via Licensor’s software system, notifying Licensee of the upcoming automatic renewal of the Order Form and this Agreement for an addition Renewal Period, and the price increase to the licensing and service fees for the upcoming Renewal Period. Licensee hereby consents and agrees that Licensor’s notice through Licensor’s software system shall be deemed sufficient notification to allow Licensee to exercise its Termination Option pursuant to Paragraph 4(c) below.
(c) Termination Option. Licensee may terminate this Agreement and the Order Form at the end of the Initial Term by providing written notice of exercise of this Termination Option to Licensor at least fifteen (15) days prior to the expiration of the Initial Term. Licensee may also terminate this Agreement and the Order Form at the end any renewal period by providing written notice of exercise of this Termination Option to Licensor at least fifteen (15) days prior to the expiration of the Renewal Period. Failure to timely provide written notice, pursuant to this paragraph, shall render such Termination Option null, void and of no further force and effect. If Licensee does not timely exercise this Termination Option as required herein, the Term of the Agreement and the Order Form is automatically renewed, pursuant to the terms and conditions set forth in the Order Form and pursuant to Section 4(b) herein, and this Agreement and the Order Form shall continue in full force and effect pursuant to all of the terms and conditions set forth in this Agreement and the Order Form during the entire Term.
(d) Licensor’s Option to Terminate. Notwithstanding anything herein to the contrary, Licensor may elect to terminate this Order form and Software and Service Agreement upon the expiration of the Initial Term, or upon the expiration of the then-current Renewal Period by providing notice to Licensee no earlier than two hundred and ten (210) days but no later than ninety (90) days prior to the expiration of the Initial Term or the then-current Renewal Period. Upon Licensors exercise of Licensor’s Option to Terminate, the Licensor shall continue to provide such license and services through the last date of the Term and Licensee shall be responsible for paying and all costs and fees provided herein through the last day of the Term.
Termination
(a) Termination by Mutual Agreement. This Agreement may be terminated with 30 day written notice, at any time by mutual consent of the parties hereto, provided that such consent to terminate is in writing and is signed by each of the parties hereto.
(b) Termination for Default. Either party may terminate this Agreement upon thirty (30) days written notice if the other party is in material breach of any term or condition of this Agreement and fails to cure such material breach during such 30-day period. Licensee shall be considered to be in material default under the terms of this Agreement if Licensee does not make any payment when due and payable or otherwise fails to perform any of its obligations under this Agreement. Licensor shall be in material breach if those features of the Software described in the sales literature do not consistently work as described in the sales literature and such failure is not caused by the negligence of the Licensee or the Licensee’s failure to adhere to the terms of this Agreement.
(c) Effect of Termination. Termination of this Agreement shall not result in a termination of any rights and obligations of the Parties as set forth herein or any liabilities and obligations (whether a payment obligation or otherwise) that have accrued prior to termination and, in the event of Licensee default, Licensee’s payment obligations through the remainder of the Term of this Agreement. Upon expiration or termination of this Agreement, Licensee shall, (i) immediately cease all use of the Software; and (ii) return all documentation pertaining to the Software to Licensor, or at Licensor’s written request destroy, and permanently erase from all devices and systems Licensee directly or indirectly controls, the Software, documentation and Licensor's Confidential Information, including all documents, files, and tangible materials (and any partial and complete copies) containing, reflecting, incorporating, or based on any of the foregoing, whether or not modified or merged into other materials; (iii) Licensee shall certify in writing to Licensor that has complied with all requirements of this Section 5(c); and (iv) Licensor shall have the right to disable Licensee's user name and password. Upon termination for any reason, including without limitation to Licensor's material breach, Licensee shall be obligated to pay Licensor for all outstanding software setup fees, license fees, installment payments, service or training fees, interest and costs as set forth in this Agreement. In addition, in the event of Licensee breach, Licensee shall be liable for all license fees up through the end of the Term of this Agreement.
License Restrictions
Licensee may not use or copy the Software, in whole or in part, except as expressly provided for in this Agreement. Licensee may not modify, correct, translate, reverse engineer, reverse compile, reverse assemble, decompile, disassemble or create derivative works of the Software or otherwise attempt to defeat, avoid, by-pass, remove, deactivate or otherwise circumvent any software protection mechanisms in the Software, including, without limitation, any such mechanism used to restrict or control the functionality of the Software or derive the source code or the underlying ideas, algorithms, structure or organization form of the Software. Licensee agrees to use the Software only for Licensee’s own internal business operations. Licensee shall not rent, lease, sell, distribute or re-license the Software or use the Software to provide assessments, data processing, outsourcing, hosting services or training to third parties. Licensee shall not permit any parent, subsidiary, affiliated entity or third party to use the Software, process or permit to be processed the data of any other party through the Software. Licensee agrees that it shall not have the right to alter, maintain, enhance or otherwise modify the Software without the prior written consent of Licensor, which consent may be withheld or granted in the sole and absolute discretion of Licensor. Licensee agrees that is shall not use the Software for purposes of developing and/or providing a competitive software product or service, or any other purpose that is detrimental or commercially disadvantageous for the Licensor. Licensee agrees not to use the Software in any manner that infringes, misappropriates or violates any Intellectual Property Right of any other person or party. Licensee agrees not to use the Software in a manner that violates any applicable Law. Further, no license, right or interest in any Licensor’s trademarks, trade names or service marks is granted hereunder including but not limited to OccuPro™, Functional Progress Note™ and/or Functional Discharge Summary™ without Licensor’s express written consent.
Licensor Rights
Licensor shall at all times maintain the right to: (a) grant additional licenses for the Software (including any previous or subsequent versions of the Software) anywhere in the world to any party it desires and at any rate it desires; (b) access, copy, display, execute, install, load, transmit, host, store, and otherwise use the Software; (c) modify, improve, interpret, compile, recompile, and create derivative works from, the Software in source code form and to create one or more derivative products; (d) to merge, combine, incorporate, embed and/or integrate the Software and any derivative works from the Software into any derivative products; (e) to use, manufacture, reproduce (in any medium), have reproduced, display, perform, sell, market, license and otherwise transfer and/or distribute one or more derivative products; and (f) to use, manufacture, reproduce (in any medium), have reproduced, display, perform, sell, market, license and otherwise transfer and/or distribute the Software (including any incorporated portion of the Software) in source or object code form.
Licensee Use Obligations
Licensee agrees not to misuse the Software, or content that Licensor provides to Licensee under this Agreement. Examples of such misuse shall include, but are not limited to: (a) copy, modify, host, stream, sublicense, or resell the Software or its content; (b) enable or allow others to use the Software using Licensee account information; (c) access or attempt to access the Software by any means other than the interface provided or authorized by Licensor; (d) circumvent any access or use restrictions put into place to prevent certain uses of the Software; (e) share content or engage in behavior that violates Licensor’s Intellectual Property Rights (“Intellectual Property Rights” means copyright, moral rights, trademark, trade dress, patent, trade secret, unfair competition, right of privacy, right of publicity, and any other proprietary rights); (f) upload or share any content through the Software that is unlawful, harmful, threatening, abusive, tortious, defamatory, libelous, vulgar, lewd, profane, invasive of another’s privacy, or hateful; (g) impersonate any person or entity, or falsely state or otherwise misrepresent your affiliation with a person or entity; (h) attempt to disable, impair, or destroy the Software; (i) disrupt, interfere with, or inhibit any other user from using the Software; (j) use any data mining or similar data gathering and extraction methods in connection with the Software™; violate applicable law.
Right to Identify Licensee in Advertising
Licensor shall have the right to identify Licensee as a client on Licensor’s website and in Licensor’s marketing materials and advertising.
Title to Software
Licensee agrees that aspects of the Software and its related documentation, including the specific design and structure of individual programs, constitute trade secrets of Licensor. Licensee agrees not to disclose, provide, or otherwise make available such trade secrets in any form to any third party without the prior written consent of Licensor. Licensee agrees to implement reasonable security measures to protect such trade secrets. Except for the rights and licenses granted herein, Licensor retains all right, title and interest in and to any and all portions of the Software and the documentation.
Title to Derivative Products
Licensor shall own all right, title and interest in and to any and all portions of “Derivative Products”. For purposes of this Paragraph 11, Derivative Products shall mean any computer program in object code or source code form developed by or for Licensee which is a replication, modification of or enhancement to the Software.
Obligations of Lincesee
Licensee (a) acknowledges that the Software (including any previous or subsequent versions) contains valuable proprietary information, and (b) agrees not to disclose the source code of the Software (including previous and subsequent versions) to anyone other than those of its assigns (as expressly permitted herein), its employees or consultants, having a need to know for purposes consistent with this Agreement. Licensee shall exercise reasonable care to protect the confidential information related to the Software from disclosure to third parties; and no such disclosure shall be made without Licensor’s written permission. All written documents containing Licensor’s confidential information and other material in tangible form received by Licensee under this Agreement shall remain the property of the Licensor, and such documents and materials, together with copies of excerpts thereof, shall promptly be returned to Licensor upon request, except one copy may be retained for archival purposes.
Beta Version
Licensee acknowledges and agrees that certain portions or features of the Software may be trial, beta releases and/or upgrades to software. Licensee agrees to provide timely feedback, which may include bug reports, conferences with Licensor representatives and written evaluations, to Licensor in relation to beta portions or upgrades of the Software. Licensee acknowledges and agrees that all such feedback shall become the property of Licensor and that, unless otherwise mutually agreed by the parties, Licensor shall have no confidentiality obligations with respect to such feedback. Licensee agrees that Licensor and its designees will be free to copy, modify, create derivative works, publicly display, disclose, distribute, license and sublicense through multiple tiers of distribution and licensees, incorporate and otherwise use the feedback. Licensee will at all times, including during and after the term of this Agreement, keep the Software, all information relating to Licensee's use of the Software including any benchmarks, performance results and other information, confidential unless otherwise expressly agreed in writing by Licensor or until such time that Licensor makes this information available to the public.
Support
Provided that Licensee is current with all software setup fees, license fees, installment fees, support fees and any other fees identified in the Order Form and is not in material breach of this Agreement, Licensor agrees to provide Licensee with the technical support and storage as identified in the Order Form. Licensor attempts to respond to any email or phone support question after receipt of a technical support question within one business day. Further, Licensor will make reasonable attempts to remedy software issues as they arise. From time-to-time Licensor will deploy upgraded versions of web-based software and will review any input from Licensee in regards to it’s viability for said deployments as features in said deployments. Licensee agrees to reasonably cooperate with Licensor for software upgrade implementation and fixes.
Training
Licensor shall provide training for Licensee as outlined in the Order Form.
Ownership
The Software is protected by copyright and is proprietary and confidential to Licensor. All rights, title and interest in and to the Software (including associated intellectual property rights) are and will remain vested in Licensor or Licensor's affiliated companies or assigns. Nothing contained in this Agreement shall grant Licensee the right to use any Licensor trademark. Licensee agrees that it will not use, or knowingly allow others to use, the Software, its content or any documentation, any of Licensor's trademarks or any related data or documentation for the purpose of creating similar software, programs, assessments, strategies or materials which is competitive with Licensor's Software and assessment program, and further will not furnish any information, data or copies of documentation to any third party to assist in the creation or design of competitive software, assessment programs, strategies or materials. Licensee hereby unconditionally and irrevocably assigns to Licensor, its entire right, title and interest in and to any and all intellectual property rights (including without limitation, derivative works) that Licensee may have now or may have in the future in or relating to the Software or Services, whether held or acquired by the operation of law, contract, assignment or otherwise. This Paragraph 16 shall survive expiration or termination of this Agreement.
No Warranty
(a) Web Based Software. THE SOFTWARE IS PROVIDED "AS IS" AND "WITH ALL FAULTS" AND WITHOUT ANY WARRANTY. LICENSEE UNDERSTANDS AND AGREES THAT LICENSOR'S SERVICES AND SUPPORT ARE PROVIDED "AS IS" AND "AS AVAILABLE". LICENSOR AND ITS SUPPLIERS EXPRESSLY DISCLAIM ALL WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT. LICENSOR MAKES NO WARRANTY OR REPRESENTATION REGARDING ANY INFORMATION, MATERIALS, GOODS OR SERVICES OBTAINED THROUGH LICENSOR OR THE SOFTWARE, OR THAT THE SOFTWARE WILL MEET ANY OF LICENSEE’S REQUIREMENTS, OR BE UNITERRUPTED, TIMELY, SECURE OR ERROR FREE. USE OF LICENSOR’S SOFTWARE IS AT LICENSEE’S SOLE RISK. LICENSOR IS NOT LIABLE FOR ACTS OR OMISSIONS OF OTHER SERVICE PROVIDERS, FOR INFORMATION OR CONTENT OF COMMUNICATIONS, THIRD PARTY SERVICES, EQUIPMENT FAILURE OR MODIFICATION, OR CAUSES BEYOND LICENSOR’S REASONABLE CONTROL.
(b) Licensee Reports. Without limitation, to the fullest extent allowable by law, Licensee assumes the entire risk as to the content of all reports performed by Licensee, with the software, for dissemination to Licensee's customers.
Limitation of Liability
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL LICENSOR, OR ITS SUPPLIERS OR AFFILIATES, BE LIABLE FOR INDIRECT, PUNITIVE, INCIDENTAL, SPECIAL, EXEMPLARY, OR CONSEQUENTIAL DAMAGES WHATSOEVER (INCLUDING WITHOUT LIMITATION, DAMAGE FOR LOSS OF PROFITS OR DATA, BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION, COST OF COVER OR ANY OTHER PECUNIARY LOSS) ARISING OUT OF, OR RESULTING FROM THE SOFTWARE, SERVICES OR THIS AGREEMENT WHETHER ARISING IN TORT (INCLUDING NEGLIGENCE, STRICT LIABILITY OR PRODUCT LIABILITY), CONTRACT OR ANY OTHER LEGAL THEORY, EVEN IF LICENSOR HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. EXCEPT FOR DAMAGES THAT MAY NOT BE EXCLUDED BY LAW, LICENSEE AGREES THAT ALL DAMAGES ARE EXCLUDED EXCEPT FOR THE DIRECT DAMAGES THAT ARE ACTUALLY INCURRED BY LICENSEE IN REASONABLE RELIANCE IN AN AMOUNT NOT TO EXCEED 50% OF THE LICENSING FEES PAID BY LICENSEE UNDER THIS AGREEMENT DURING THE SIX (6) MONTHS IMMEDIATELY PRECEDING THE FILING OF SUCH CLAIM REGARDLESS OF THE FORM OF ACTION OR CLAIM (E.G., CONTRACT, WARRANTY, TORT, STRICT LIABILITY, NEGLIGENCE, FRAUD, OR OTHER LEGAL THEORY).
Other Disclaimers
Notwithstanding anything in this Agreement to the contrary, nothing in this Agreement shall be construed as: (a) A warranty or representation that the Software, Services or anything made, used, sold or otherwise disposed of under this Agreement will or will not infringe patents, copyrights or other rights of third parties; or (b) An obligation to furnish any know-how or technology not provided in the Software and/or Services, to bring or prosecute actions or suits against third parties for copyright infringement or to provide any services other than those specified in this Agreement.
Confidentiality
Either party ("Recipient") may gain access to Confidential Information of the other party ("Disclosing Party"), with the agreement of the Disclosing Party. For purposes of this Agreement “Confidential Information” means information, in any form or medium (whether oral, written, electronic or other) that the Disclosing Party considers confidential or proprietary relating to the Disclosing Party’s business affairs, technology, know-how, customers, vendors, finances, properties, procedures, operations, pricing, strategies, techniques, trade secrets or other proprietary or business information (Except as otherwise stated herein, Recipient will not, directly or indirectly, disclose, or cause to be disclosed, any Confidential Information of the Disclosing Party to any third party and will themselves use the Confidential Information only to carry out those purposes contemplated by this Agreement.
(a) Except as otherwise stated herein, Licensee and Licensor agree that all Confidential Information disclosed pursuant to this Agreement will, at all times, remain the exclusive property of the Disclosing Party and that, in receiving any such Confidential Information, the Recipient will not acquire any interest in such Confidential Information whatsoever except as provided in this Agreement.
(b) Licensee and Licensor agree that the restrictions described in this section will remain in force during this Agreement and subsequent to its termination unless and until such time as the Confidential Information becomes generally available to the public through no fault of the Recipient.
(c) Notwithstanding the forgoing, Licensee agrees that Licensor may place Licensee’s name, licensed clinic location and contact information on Licensor’s public website (www.occupro.net) in an effort to promote Licensee’s accomplishments in obtaining Software and training. Licensee’s information may be placed on said public website within the service network, within news and events, and within disseminated bulk e-mails. Licensee also agrees to have the identification of trained individuals placed within the service network under Licensees location and contact information with the individual’s level of certification, within news and events and within bulk e-mails. Licensee also agrees that when an individual employed by Licensee achieves higher levels of certification through Licensor that news releases and bulk e-mails may be sent in regards to their level of certification.
Indemnification
(a) Licensee’s Indemnification. Licensee agrees to indemnify, defend and hold Licensor and its affiliates and their officers, director, employees and suppliers harmless from any and all claims, actions, suits, proceedings, costs, expenses, damages and liabilities, including reasonable attorneys' fees, which arise out of or relate to: (i) Licensee’s use of the Software (including without limitation, any person accessing the Software using Licensee’s accounts); (ii) any actual or alleged violation of this Agreement or law, rule or regulation by Licensee (including without limitation, any person accessing the Software using Licensee’s accounts); (iii) any actual or alleged infringement or violation by Licensee (including without limitation, any person accessing the Software using Licensee’s accounts) of any intellectual property, privacy or other right of any person or entity; (iv) information or content that Licensee submits, posts, transmits or makes available through the Software; (v) Licensee’s breach of this Agreement; and/ or (vi) the negligence/gross negligence, abuse, misapplication, misuse or more culpable act or omission (including recklessness or willful misconduct) by or on behalf of Licensee or any of its Representatives with respect to the Software or Services otherwise in connection with this Agreement.
(b) Licensor’s Indemnification. Licensor shall defend, indemnify and hold Licensee, its affiliates, and their directors, officers, employees and agents harmless from and against any claims, demands, suits and costs, including attorney’s fees, arising out of any third-party claim that the Software or the Services provided infringe, misappropriate or otherwise violate such third-party’s intellectual property rights. This Paragraph 21(b) shall NOT apply to the extent that the alleged infringement arises from: (i) Third-Party materials, (ii) combination, operation, or use of the Software in or with, any technology (including any software, hardware, firmware, system, or network) or service not provided by Licensor, (iii) modification of the Software other than by Licensor, (iv) use of the Software after Licensor's notice to Licensee of such activity's alleged or actual infringement, misappropriation, or other violation of a third party's rights; (v) negligence, abuse, misapplication, or misuse of the Software or Documentation by or on behalf of Licensee, Licensee's Representatives, or a third party; or (vi) Third-Party Claims or Losses for which Licensee is obligated to indemnify Licensor pursuant to Paragraph 21(a).
(c) Licensee shall (x) promptly notify Licensor of any and all threats, claims and proceedings related thereto, provided, however, that the failure to so notify will only relieve Licensor of its obligations under this Paragraph if and to the extent that Licensor is prejudiced thereby, (y) be reasonably cooperative, and (z) allow Licensor at Licensor’s expense to control the defense and all negotiations and decisions regarding a settlement or compromise; provided, however, that Licensor will not consent to the entry of any judgment on or enter into any settlement with respect to any such claim without the prior written consent of Licensee (not to be unreasonably withheld) unless the judgment or proposed settlement involves only the payment of money damages and does not impose an injunction or other equitable relief upon Licensee.
Export and Import Control Laws and Regulations
Licensee acknowledges that the laws and regulations of the United States restrict the export and re-export of commodities and technical data of United States origin, including the Software and any related applications. Without limiting the foregoing, Licensee acknowledges that the Software and any related applications are or may be an "encryption item" subject to controls under the Export Administration Regulations promulgated by the U.S. Department of Commerce. Licensee agrees not to export or re-export the Software or any related applications in any form in violation of the export laws of the United States or any foreign jurisdiction.
Health Insurance Portability and Accountability Act of 1996 (“HIPAA”)
If Licensee is a Covered Entity (as defined by HIPAA) and provides individually identifiable health information or PHI (each as defined by HIPAA) to Licensor as a Business Associate (as defined by HIPAA), then the parties hereto agree to enter into the Licensor’s standard Business Associate Agreement.
Successors and Assigns.
Except as otherwise specifically provided in this Agreement and the Order Form, the terms, covenants and conditions contained in this Agreement or the Order Form shall apply to and bind the heirs, successors, executors, administrators and assigns of the Parties. Notwithstanding anything to the contrary, Licensor shall have the right to assign this Agreement and the Order Form, without the Consent of the Licensee, to a successor in interest pursuant to a future sale, merger, conveyance, or other transfer of the Licensor’s business assets and/ or pursuant to a change of ownership of the Licensor. Licensee shall not assign this Agreement or the Order Form to any third party without the prior written consent of the Licensor.
Governing Law
This Agreement shall be governed by and construed in accordance with the laws of the State of Wisconsin.
Dispute Resolution
In the event of any dispute arising out of or relating to this Agreement, the affected party shall promptly notify the other party (the date of such notice being the "Notice Date"), and the parties shall attempt in good faith to resolve the matter. Any disputes not so resolved shall be referred to senior executives, who shall meet at a mutually acceptable time and location within thirty (30) days of the Notice Date and shall attempt to negotiate a settlement. If the senior executives fail to meet within thirty (30) days of the Notice Date, or if the matter remains unresolved for a period of sixty (60) days after the Notice Date, the parties hereby irrevocably submit to the jurisdiction of a court of competent jurisdiction in Kenosha County, State of Wisconsin, and, by execution and delivery of this Agreement, each (a) accepts, generally and unconditionally, the jurisdiction of such court and any related appellate court, and (b) irrevocably waives any objection it may now or hereafter have as to the venue of any such suit, action or proceeding brought in such court or that such court is an inconvenient forum.
Survival
Paragraphs 5(c), 6, 7, 8, 10, 11, 12, 13, 16, 17, 18, 19, 20, 21, 22, 23, 24, 25, 26, 27 and 28 shall survive the termination of this Agreement and Order Form for any reason.
Contradiction
If there is any contradiction between this Agreement and the Order Form, the terms and conditions of the Order Form shall take precedence to the extent of such contradiction.