By executing an Order Form (“Order Form”) with Juniper Solutions, Inc., a Delaware C-Corporation (“Company”) or accessing or using any Company services (“Services”), as described in greater detail in the Order Form, you agree to be bound by these Juniper Terms of Service (“Agreement”). If you are using the Services on behalf of an organization, you represent and warrant that you have full authority to bind the account owner and the organization to this Agreement (in which case, “Customer”, “you”, and “your” will refer to that organization). Customer may use the Services only in compliance with this Agreement. You agree to this Agreement only if you have the power to form a contract with Company and are not barred under any applicable laws from doing so. IF YOU DO NOT AGREE TO BE BOUND BY THIS AGREEMENT, YOU MUST NOT USE THE SERVICES. Should you have any questions concerning this Agreement, please contact us at email@example.com.
WHEREAS, Company develops and sells software solutions and revenue cycle management services to behavioral health providers;
WHEREAS, Customer is a behavioral health provider that diagnoses and treats patients suffering from mental illnesses;
WHEREAS, Customer desires to purchase Company’s software solution and revenue cycle management services to enhance Customer’s ability to focus on and improve patient care; and
WHEREAS, Company and Customer agree that the compensation under the Agreement reflects fair market value for the services provided.
NOW, THEREFORE, in consideration of the mutual covenants and promises contained herein and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged by the parties hereto, the parties agree as follows:
In this Agreement, the following terms have the meanings specified or referred to in this Section 1 and shall be equally applicable to both the singular and plural forms. The words “including,” “include” and “includes” shall each be deemed to be followed by the term “without limitation.”
“Affiliate” means, with respect to a specified Person, any other Person that directly or indirectly Controls, is Controlled by, or is under common Control with, the specified Person.
“Control” means (a) the possession, directly or indirectly, of the power to vote 50% or more of the securities or other equity interests of a Person having ordinary voting power, or (b) the possession, directly or indirectly, of the power to direct or cause the direction of the management policies of a Person, by contract or otherwise.
“Deliverable” means all work product produced by or for Customer pursuant to or in connection with this Agreement.
“Losses” means all losses, claims, penalties, fines, judgments, damages, liabilities or expenses (including reasonable attorneys’ fees, expert witness fees, expenses and costs of settlement).
“Person” means an individual, corporation, limited liability company, partnership, sole proprietorship, joint venture, or other form of organization or governmental agency or authority.
“Specifications” means all functional or technical specifications, design documents, product descriptions, performance criteria, manuals, schematics, drawings, listings, standards and all other written or electronically stored material related in any way to the performance, capabilities or other attributes of any of the Services or a Deliverable.
“Warranty Period” means with respect to a Deliverable, that period of time commencing on the date of its acceptance by Customer and ending 12 months thereafter (unless a different period of time is specified in the applicable Order Form).
2. Performance of Services.
a. Implementation. This Agreement shall be implemented through one or more Order Forms executed pursuant to this Agreement (each an “Order Form”). Each Order Form shall specify the Services to be performed by Company, the time frame in which such Services are to be performed and whether the Services shall be performed on a fixed price or a time and materials basis. Each Order Form shall also specify any Deliverables and applicable Specifications for Services and Deliverables. Company shall perform all Services and deliver all Deliverables specified in each Order Form, all in accordance with the terms of this Agreement and the applicable Order Form. Upon its execution, each Order Form shall be subject in all respects to, and shall be deemed to be a part of, this Agreement.
b. Change in Scope. Any change (including a modification, addition or reduction) to an Order Form (a “Change Request”) shall be in writing and no such Change Request shall be valid until it is executed by both parties. Each Change Request executed by the parties shall be incorporated into and constitute an amendment to the applicable Order Form.
c. Personnel; Devotion.
ii. Devotion. Company shall devote necessary time, effort and resources to the provision of the Services and the delivery of the Deliverables. Company shall provide the Services and deliver the Deliverables in a diligent, careful, thorough, workmanlike and professional manner. Company shall use only employees or permitted consultants of Company having a level of skill in the area commensurate with the requirements of the Services and any Deliverables. Company shall promptly disclose to Customer the existence of any activities or other circumstances that result in or are reasonably expected to result in a conflict of interest with Company’s obligations hereunder. While on Customer’s premises, Company shall cause its employees and permitted consultants, to at all times comply with all rules, regulations and policies established or issued by Customer to Company in writing.
ii. Identification of Personnel. If required by Customer, each Order Form shall specify the Company employees and permitted consultants identified in such Order Form to devote their necessary time and attention to the provision of the Services and the delivery of the Deliverables. Customer may, in its reasonable judgment, withdraw its approval of any such employees or consultants. If Customer withdraws its approval of any such employee or successor employee or consultant, Company shall replace such employee or consultant and shall cause such replacement employee or consultant to devote their necessary time and attention to the provision of the Services and the delivery of the Deliverables, subject to Customer’s prior written approval, which approval shall not be unreasonably withheld or delayed.
d. Time of the Essence; Delay. Time is of the essence in the performance of each Order Form.
3. Fees, Expenses and Payment.
a. Fees. In consideration of the performance of the Services, the delivery of the Deliverables and the performance of Company’s other duties and obligations set forth in each Order Form and hereunder, Customer shall pay to Company the fees (the “Fees”) set forth in each Order Form.
b. Fair Market Value Compensation. The parties acknowledge and agree that the Fees contemplated under the terms of this Agreement (i) constitutes fair market value for the Services provided; (ii) is not being given in exchange for any explicit or implicit agreement by either party to recommend, provide, use, order, or provide favorable status for any of the parties’ products or services, including the Services, or to reward or influence any formulary or clinical practice guidelines committees or prescribing or dispensing decisions; and (iii) has not been determined in a manner that takes into account the volume or value of any referrals or business or potential referrals or business that might otherwise be generated by the parties.
c. Taxes. Any sales, use, excise, value-added or other taxes or duties (other than taxes on Company’s income), and penalties and interest relating thereto, shall be the responsibility of Customer.
d. Invoices. In connection with each fixed-price Order Form, Company shall invoice Customer in accordance with the payment schedule set forth in the applicable Order Form. In connection with each time and materials Order Form, Company shall invoice Customer on a monthly basis for all Services performed by Company pursuant to such Order Form during the immediately preceding calendar month. Each invoice shall: (i) specify the applicable Order Form with specificity; (ii)set forth in detail the Services performed and the dates of the performance of the Services; and (iii) contain the disclosures required under the federal Anti-Kickback Statute discount safe harbor, 42 C.F.R. § 1001.952(h). Each undisputed invoice shall be due and payable 30 days after Customer’s receipt thereof.
e. No Presumption of Acceptance. No payment made under any Order Form shall be evidence of the performance by Company of its obligations set forth in this Agreement, either wholly or in part. No payment shall be construed to be an acceptance of, or to relieve Company of liability for, Company’s failure to perform its duties and obligations under this Agreement in accordance with the terms of this Agreement.
f. Risk of Loss. Until Customer accepts a Deliverable, Company shall assume all risk of loss of, damage to, or destruction of the same. Customer shall bear the risk of loss, damage or destruction that shall occur after Customer accepts such Deliverable.
g. Accounting Records. Each party shall maintain complete and accurate records of, and supporting documentation for, all amounts billable to and payments made by either party hereunder in accordance with generally accepted accounting principles. Company shall provide Customer with reasonable documentation and other information for each invoice as may be reasonably requested by Customer.
4. Term and Termination.
a. Term. The term of this Agreement shall commence as of the date first written in the Order Form and shall continue until the later of one year following the date first written in the Order Form or the end of the term specified in such Order Form, unless terminated earlier in accordance with this Agreement.
b. Termination of Agreement. Company may terminate this Agreement without penalty at any time and for any reason upon not less than 30 days prior notice to the other party.
c. Termination upon Change in Law. Upon the enactment, promulgation, rescission, modification, or interpretation of any state or federal law or regulation after the Effective Date, which could (i) materially adversely affect the manner in which the parties are obligated to perform under this Agreement; (ii) render this Agreement or any provision hereof illegal or unenforceable; or (iii) impose additional payment obligations or costs to the parties, Company may terminate this Agreement to the extent this Agreement is affected by any such enactment, promulgation, rescission, modification, or interpretation
d. Termination of Order Form(s). Either party may terminate any Order Form as set forth in such Order Form; or immediately if the other party breaches or is in default of any material obligation hereunder which default is incapable of cure or which, being capable of cure, has not been cured within 30 days after receipt of notice of such default (or such additional cure period as the non-defaulting party may authorize). In addition, Customer may terminate any Order Form in accordance with Section 8(b) of this Agreement.
e. Consequences of Termination.
i. Upon termination of this Agreement, each party shall, upon the disclosing party’s request, except as set forth in this Agreement, return promptly to the disclosing party all Confidential Information of the disclosing party in the receiving party’s possession, and certify in writing to the disclosing party its compliance with this Section 4(d)(ii).
ii. The following provisions shall survive the termination of this Agreement and any Order Form: Sections 3, 4(c), 4(d), 5, 6, 9, and 10.
5. Intellectual Property.
a. Company Tools and Objects. Except as otherwise expressly provided herein or in an Order Form, all of Company’s “Tools” and “Objects” (as defined below) in any form are and shall remain the sole and exclusive property of Company, and, upon termination of this Agreement, Customer will return to Company the originals and all copies of such Tools and Objects in its possession or control, regardless of form. Except as otherwise expressly provided herein or in an Order Form, Customer does not acquire any right or license in Company’s Tools and Objects. Company’s Tools and Objects constitute Confidential Information of Company.
i. “Tools” means any and all of Company’s proprietary information and know-how not in the public domain which is used by Company in the conduct of its business, including, by way of illustration but not limitation, technical information, designs, templates, software modules, processes, methodologies, systems used to create computer programs or software, procedures, code books, computer programs, plans or any other similar information, including improvements, modifications, and developments thereto, as well as new Tools developed by Company, which occur or are created during the term of this Agreement.
ii. “Objects” means any and all of Company’s proprietary, reusable software code not in the public domain that can be used in a variety of environments and that may be installed, modified, extended and/or incorporated as part of the Work Product created for Customer.
b. Work Product. Customer shall own all right, title and interest in all “Customer Reports” and all “Customer Custom Software” (collectively, “Work Product”). Company hereby transfers, grants, conveys, assigns and relinquishes exclusively to Customer all of Company’s worldwide right, title and interest in and to such Work Product in perpetuity or for the longest period otherwise permitted by law.
i. “Customer Reports” means, except for software-related materials (Customer’s Custom Software, Company’s Custom Software and Company’s Standard Software Product(s), as expressly defined below), all original written material in any form and originated and prepared specifically for Customer (including drawings, plans, specifications, reports and data) pursuant to this Agreement and any applicable Order Forms.
ii. “Customer Custom Software” means custom software developed by Company that is either a wholly new application program designed to meet some specifically-defined Customer requirement or constitutes modifications to software owned by Customer. All Customer Custom Software shall be so denoted on the applicable Order Form.
c. Company’s Custom Software. “Company Custom Software” means customized modules developed by Company for any Tool or Object to adapt it to Customer’s environment, or an application that has broad general application for customers of Company other than Customer (and which does not incorporate any Confidential Information of Customer or any ideas or concepts provided by Customer). Company will own all right, title and interest in and to such Company Custom Software; provided however, Company hereby grants to Customer a perpetual, non-exclusive (object code as to software), royalty-free, worldwide, irrevocable license to use, copy, make derivative works, distribute and display (for Customer’s internal business purposes only) such Company Custom Software. Moreover, Customer shall have a perpetual, non-exclusive (object code as to software), royalty-free, worldwide, irrevocable license to use, copy, make derivative works, distribute and display (for Customer’s internal business purposes only) all Tools and Objects embedded or incorporated in such Company’s Custom Software, as integral components of such Company Custom Software. Customer may transfer or sublicense any such Company Custom Software in connection with any transfer of the computer system on which such Company Custom Software runs, provided that Customer shall not un-bundle any Tools or Objects embedded or incorporated in such Company’s Custom Software, or use such Tools and Objects in any manner other than as integral components of such Company’s Custom Software. Company Custom Software constitutes Confidential Information of Company.
d. Customer Materials. Customer Materials. Customer hereby grants to Provider a worldwide, royalty-free, non-exclusive, limited, nontransferable right and license, to use, reproduce, distribute, transmit, perform (publicly, digitally, or otherwise), display (publicly or otherwise),and make derivative works of any and all data, information, content, and other materials prepared by Customer through the use of, stored by Customer in connection with, or transmitted by Customer by or through, the Services (the “Customer Materials”) for purposes of (a) making the Services available to Customer, (b) aggregating and/or anonymizing Customer Materials, and(c) (solely with respect to derivatives of the Customer Materials that have been aggregated or otherwise anonymized) for analytic, developmental, statistical, security, quality control, and other purposes that are not legally prohibited, including optimizing the Services. The license grant under clauses (a) and (b) shall be limited for the term of this Agreement, and the license grant under clause (c) shall be perpetual.
e. Cooperation. Without any additional compensation, Company shall execute any documents requested by Customer and shall perform any and all further acts deemed necessary or desirable by Customer to confirm, exploit or enforce the ownership by Customer of the Work Product.
a. Confidential Information. All information and confidential materials made available by one party to the other in connection with or as a result of this Agreement before or after the date hereof shall be considered a trade secret or confidential or proprietary information or materials, whether or not expressly designated as such (“Confidential Information”). Among other things, Confidential Information shall include confidential or proprietary information or materials of third Persons and the parties’ respective Affiliates that are in the possession of one of the parties and disclosed hereunder. This Agreement shall be considered Confidential Information of each of the parties.
b. Obligations. Except as expressly authorized by the prior written consent of the disclosing party, the receiving party shall:
i. limit access to any Confidential Information disclosed by the other to its and its Affiliates’ employees, agents, representatives and consultants who have a need-to-know in connection with this Agreement and the obligations of the parties hereunder;
ii. advise such Persons having access to such Confidential Information of the proprietary nature thereof and of the obligations set forth in this Agreement;
iii. safeguard all such Confidential Information using a reasonable degree of care, but not less than that degree of care used by the receiving party in safeguarding its own similar information or material;
iv. except as set forth in this Agreement, not disclose any such Confidential Information to any Person; and
v. use such Confidential Information only for the purposes and in connection with the performance of such party’s obligations set forth in this Agreement.
c. Exceptions to Confidentiality. Notwithstanding Section 6(b), the parties’ obligations of confidentiality and non-use shall not apply to any particular information or materials that the other party can demonstrate: (i) was, at the time of disclosure to it, in the public domain; (ii) after disclosure to it, is published or otherwise becomes part of the public domain through no fault of the receiving party; (iii) was in the possession of the receiving party at the time of disclosure to it without being subject to another obligation of confidentiality; (iv) was received after disclosure to it from a third party who had a lawful right to disclose such information or materials to it; (v) was independently developed by the receiving party without reference to or use of Confidential Information of the furnishing party; (vi) was required to be disclosed to any regulatory body having jurisdiction over either party or any of their respective Affiliates or clients; or (vii) that disclosure is necessary by reason of applicable legal, accounting or regulatory requirements beyond the reasonable control of the receiving party. In the case of any disclosure pursuant to Sections 6(c)(vi) or 6(c)(vii), to the extent practical, the disclosing party shall notify the other party in advance of the required disclosure and shall use commercially reasonable efforts to assist the non-disclosing party in obtaining a protective order covering such disclosure. If such a protective order is obtained, such information and materials shall continue to be deemed to be Confidential Information.
d. Publicity and Use of Certain Information. Except as set forth in this Agreement, neither party shall, without the other party’s prior written consent, use the names, service marks, trademarks or domain names of the other party or any of its Affiliates. Except as set forth in this Agreement, neither party may disclose to other Persons the existence or general nature of the Agreement or the terms and conditions hereof; provided, however, that either party may disclose such information to its financial and legal advisors.
7. Representations and Warranties; Covenants.
a. Mutual Representations and Warranties. Each party represents and warrants to the other as follows:
i. Existence. It is duly organized, validly existing, and in good standing under the laws of the jurisdiction of its formation and has the requisite power and authority to enter into and perform its obligations under this Agreement in accordance with its terms without the consent of any other Person.
ii. Due Authorization. The execution, delivery, and performance of this Agreement by it have been duly and effectively authorized by all necessary action. This Agreement, upon execution by both parties, shall constitute its legal, valid and binding obligation, enforceable against it except as may be limited by bankruptcy, insolvency, reorganization or other laws affecting creditors rights generally and except as may be limited by general principles of equity.
iii. No Conflict. The execution, delivery and performance of this Agreement by it does not conflict with any provision of law applicable to it or result in any breach of its constituent documents, any agreement with any other Person or any order, judgment or other restriction by which it may be bound.
iv. Compliance with Laws. Each party agrees to fully comply with all laws, statutes, regulations, rulings, and enactments of any governmental authority applicable to the performance of such party’s obligations hereunder, including, without limitation, the federal Anti-Kickback Statute (42 U.S.C. § 1320a-7b(b)); the federal False Claims Act (31 U.S.C. §§ 3729 et seq.); the Health Insurance Portability and Accountability Act of 1996 (“HIPAA”), as amended by the Health Information Technology for Economic and Clinical Health Act (“HITECH”); the Federal Food, Drug, and Cosmetic Act; any amendments to and regulations promulgated under such laws; and all comparable state and local laws applicable to the Services.
v. Compliance with Personal Services Safe Harbor. The parties intend that this Agreement be designed to fit within the federal Anti-Kickback Statute personal services safe harbor, 42 C.F.R. § 1001.952(d), including that this Agreement, including all Order Forms, covers all of the Services to be provided by Company pursuant to this Agreement; the Services performed under the Agreement do not involve the counseling or promotion of a business arrangement or other activity that violates any state or federal law; and the Services contracted for do not exceed those which are reasonably necessary to accomplish the commercially reasonable business purpose of the Services.
vi. Compliance with Discount Safe Harbor. The parties intend that any discounts or other price concessions provided under this Agreement shall comply with the federal Anti-Kickback Statute discount safe harbor, 42 C.F.R. § 1001.952(h), including that each party agrees to fully comply with all reporting and disclosure elements of 42 C.F.R. § 1001.952(h) as applicable.
vii. Submission of Claims to Third Party Payors. The parties will at all times act in compliance with all Medicare, Medicaid, and any other third party payor rules and requirements as applicable. Customer acknowledges that it is solely responsible for the accuracy, completeness, and timeliness of all claims or other requests for payment submitted to any third party payors, including any federal healthcare programs as that term is defined in Section 1128B(f) of the Social Security Act, including any claims or other requests for payment submitted to third-party payors on its behalf by Company pursuant to this Agreement. Company makes no representations with regard to the accuracy, completeness, or timeliness of any claims or other requests for payment made by the Customer to any third party payors, including any federal healthcare program as that term is defined in Section 1128B(f) of the Social Security Act, on Customer’s behalf.
viii. No Exclusion/Debarment. The parties represent and warrant that neither the parties nor any person or entity authorized by the parties to assist in the performance of the Services has ever been, and is not currently, debarred, suspended, or excluded from, proposed for debarment, suspension, or exclusion from, or otherwise ineligible for the award of contracts by any federal agency or participation in any federal health care program. The parties’ representations and warranties hereunder include, but are not limited to, debarment under Section 306(a) or (b) of the Federal Food, Drug, and Cosmetic Act, exclusion from participation in any federal health care program (as defined in 42 U.S.C. § 1320a–7b(f)) under 42 U.S.C. § 1320a-7(a) or (b), or exclusion by any federal government agency from receiving federal contracts or federally approved subcontracts under the Federal Acquisition Regulations (FAR) or supplements thereto. In the event that Company, Customer, or any person or entity authorized by Company or Customer to assist in the performance of the Services becomes suspended, sanctioned, debarred, or excluded, each party shall immediately notify the other in writing.
b. Additional Company Representations, Warranties and Covenants. Except as otherwise set forth in any Order Form, Company represents, warrants and covenants to Customer as follows:
i. No Infringement. The Services, Deliverables and the use or possession thereof do not and shall not infringe, misappropriate or violate the intellectual property or rights thereto of any third Person. If any element of the same is subject to any claim alleging a breach of this Section 7(b)(ii), Company shall have 30 days to do one of the following: procure the right to continue use of such element; replace such element with a comparable element that is not subject to any such claim; or modify such element so that it is not subject to any such claim. Any such infringement, misappropriation or violation shall not affect Company’s obligations under this Agreement, including Company’s obligations set forth in Section 9(a). Notwithstanding the foregoing, Company shall have no obligation under this Section 7(b)(ii) to the extent that any such infringement, misappropriation or violation is based on any modifications to the Deliverables performed by any Person other than by or on behalf of Company.
ii. Lawful Owner. Company is the lawful owner or licensee of any software programs or other rights or materials to be used by Company in its performance of the Services and the delivery of the Deliverables, and has all rights necessary to provide to Customer the right, title and interest set forth herein or the applicable Order Form.
iii. Access. The Deliverables shall not contain any methods of gaining access to the same or other computer resources or data of Customer or any of its Affiliates such as master access keys, identification, password, or trap doors.
c. Non-Conformance. If a Deliverable becomes defective or fails to operate and perform in accordance with its Specifications (collectively, a “Nonconformity”) during its Warranty Period, Company shall, at its sole cost and expense, correct and repair such Nonconformity as promptly as practicable after notice thereof from Customer (the “Repair Period”). In addition to all other remedies available to Customer, and notwithstanding any other term or provision of this Agreement to the contrary, if Company is unable to fully correct and repair any Nonconformity within the Repair Period, Company shall reimburse to Customer all amounts paid by Customer to Company pursuant to or in connection with the applicable Order Form as such amounts relate to such Nonconformity and any other Deliverables, the use of which is materially adversely affected by such Nonconformity, and Customer may provide or prepare, or have a third Person provide or prepare, as applicable, any such Deliverables.
a. Acceptance Testing. Each Deliverable shall be subject to acceptance testing by Customer to verify that the same is acceptable to Customer, as set forth in the Order Form. The acceptance of any Deliverable by Customer shall not occur until the earlier of: Customer’s express acceptance of the same in writing (which acceptance shall not be unreasonably withheld or delayed); or the expiration of the Acceptance Period.
b. Acceptance Period. Each Deliverable shall be subject to an acceptance period of 30 days after delivery, or such other period of time as may be specified in the applicable Order Form (the “Acceptance Period”). At any time prior to the end of any applicable Acceptance Period, Customer may reject any Deliverable by giving notice to Company if, in Customer’s reasonable opinion, such Deliverable is defective or does not conform to or perform in accordance with its Specifications (a “Deficiency”). Company shall then have 21 days after the giving of such notice to fully correct such Deficiency and redeliver the Deliverable to Customer, all at no cost to Customer. If Company does not fully correct such Deficiency and redeliver the Deliverable to Customer by the end of such 21 day period, Customer may terminate the applicable Order Form without any obligation or liability of any kind to Company. If Company does fully correct such Deficiency and redelivers the Deliverable to Customer by the end of the 21 day period, Customer shall have 30 days, or the remainder of the Acceptance Period, whichever is longer, to evaluate (and reject as provided above) the same. This process shall be repeated until all Deficiencies are fully corrected by Company and Customer accepts each Deliverable in writing. The foregoing notwithstanding, if any Deliverable does not conform to or perform in accordance with its Specifications within 30 days after the end of the Acceptance Period, Customer may: terminate the applicable Order Form without any obligation or liability of any kind to Company; or require Company to continue to correct all Deficiencies, while reserving the right to terminate the applicable Order Form as set forth above. Within ten days after any termination of an Order Form by Customer pursuant to this Section 8(b), Company shall reimburse to Customer all amounts paid by Customer to Company pursuant to or in connection with the terminated Order Form.
9. Indemnification; Limitation of Liability.
a. By Company. Company shall indemnify and hold harmless Customer, its Affiliates and their respective officers, employees and agents from and against any Losses or threatened Losses arising out of or relating to any infringement, misappropriation or violation of any patent, copyright, trade secret or other intellectual property right asserted by any third Person against Customer, its Affiliates or any other Person in connection with the provision, use or possession of any of the Services or any of the Deliverables.
b. Limitations. Company shall have no obligation under Section 9(a) to the extent that such claim is based on any modifications to the Deliverables performed by any Person other than by or on behalf of Company or any Company Affiliate.
c. Procedures. If any civil, criminal, administrative or investigative action or proceeding (any of the foregoing, a “Claim”) is threatened or commenced against any Person that Company is obligated to defend or indemnify under Section 9(a) (such Person, an “Indemnified Party”), then notice thereof shall be given to Company as promptly as practicable; provided, however, that any delay by the Indemnified Party in giving such notice shall not constitute a breach of this Agreement and shall not excuse Company’s obligation under this Section 9 except to the extent, if any, that Company is prejudiced by such delay. After such notice, Company shall take control of the defense, investigation and settlement of such Claim and employ and engage attorneys of its choice reasonably acceptable to the Indemnified Party to handle, defend and/or settle the same consistent with the Indemnifying Party’s obligations set forth in this Agreement, at Company’s sole cost and expense. The Indemnified Party shall cooperate in all reasonable respects with Company and its attorneys in the settlement, investigation, trial and defense of such Claim and any appeal arising therefrom; provided however, that the Indemnified Party may, at its own cost and expense, participate through its attorneys or otherwise, in such settlement, investigation, trial and defense of such claim and any appeal arising therefrom. No settlement of a claim that involves an admission of wrongdoing or a remedy other than the payment of money by Company shall be entered into by Company without the prior consent of the Indemnified Party.
d. No Limitations. The foregoing indemnity obligations shall be in addition to, and shall in no respect limit or restrict, any other remedies that may be available to a Party.
e. EXCEPT FOR DAMAGES ARISING OUT OF A PARTY’S BREACH OF ARTICLE 6, FOR INDEMNITY OBLIGATIONS UNDER THIS AGREEMENT, OR FOR A PARTY’S FRAUD, GROSS NEGLIGENCE, OR WILLFUL MISCONDUCT, IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR ANY SPECIAL, INCIDENTAL, INDIRECT, CONSEQUENTIAL, OR PUNITIVE DAMAGES, INCLUDING LOST REVENUES OR PROFITS, BUSINESS INTERRUPTION, DAMAGE TO GOODWILL, ENHANCED DAMAGES, INCLUDING THIRD PARTY CLAIMS, EVEN IF IT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
f. EXCEPT FOR A PARTY’S BREACH OF ARTICLE 6, FOR INDEMNITY OBLIGATIONS UNDER THIS AGREEMENT, OR FOR A PARTY’S FRAUD, GROSS NEGLIGENCE, OR WILLFUL MISCONDUCT, IN NO EVENT WILL EITHER PARTY’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER ARISING OUT OF OR RELATED TO BREACH OF CONTRACT, TORT OR OTHERWISE, EXCEED THE AMOUNTS PAID OR PAYABLE TO COMPANY UNDER THE ORDER FORM.
a. Independent Contractors. Company shall be deemed for all purposes to be an independent contractor and not an agent of Customer, and neither party shall have authority to act for or represent the other party or its Affiliates in any way.
b. Amendments. Company may update or change this Agreement from time to time in order to reflect changes in the Services, changes in the law, or for other reasons as deemed necessary or advisable by Company. Customer’s continued use of the Services after any such change shall constitute Customer’s consent to such change(s). Customer may not amend or modify any term of the Agreement without the written consent of the Company.
c. Assignability; Notice. Neither party may assign or transfer this Agreement by operation of law or otherwise, except in connection with any merger or consolidation of such party with another entity or the sale of substantially all of the party’s assets (including such party’s rights under this Agreement), provided, that the assignee or transferee assumes all of such party’s obligations hereunder. Subject to the foregoing, all provisions contained in this Agreement shall extend to and be binding upon the parties hereto and their respective permitted successors and permitted assigns.
d. Entire Agreement. This Agreement, its exhibits, each executed Order Form and any document incorporated herein by reference contain the entire agreement between the parties with respect to matters to which the same pertains and supersedes all prior and contemporaneous oral and written agreements and understandings between the parties with respect thereto. In the event of a conflict between the terms and provisions of this Agreement and the terms and provisions of an Order Form, the terms and provisions of the Order Form shall prevail.
e. Governing Law; Jurisdiction; Waiver of Jury Trial. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF DELAWARE, WITHOUT REGARD TO SUCH STATE’S PRINCIPLES REGARDING CONFLICTS OF LAW. ALL DISPUTES ARISING OUT OF OR RELATING TO THIS AGREEMENT SHALL BE BROUGHT IN THE FEDERAL OR STATE COURTS LOCATED IN DELAWARE, AND THE PARTIES HEREBY CONSENT AND SUBMIT TO JURISDICTION IN SUCH COURTS. THE PARTIES WAIVE ALL RIGHTS TO TRIAL BY A JURY.
f. Notices. All notices required or permitted hereunder shall be in writing and shall be delivered by registered or certified mail, return receipt requested, postage prepaid, by Federal Express or similar express mail service, or by email to the parties at their respective addresses set forth below or to such other address as either party may, from time to time, designate by notice to the other party.
g. No Waiver. No failure or delay on the part of any party hereto in exercising any right, power or remedy hereunder shall operate as a waiver thereof, nor shall any single or partial exercise of any such right, power or remedy preclude any other or further exercise thereof of the exercise of any other right, power or remedy. Any waiver granted hereunder must be in writing and shall be valid only in the specific instance in which given.
h. Severability. If any provision of this Agreement or the application of any such provision to any Person or circumstance shall be declared to be invalid, unenforceable or void, such decision shall not have the effect of invalidating or voiding the remainder of this Agreement.
i. Headings. The use of headings in this Agreement is for convenience and shall not affect the interpretation of this Agreement.
j. Counterparts. The Agreement may be executed in counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument.