Master Services Agreement
This Master Services Agreement is entered into pursuant to an Order Form executed by and between Kimedics, Inc., a Delaware limited liability company (“Kimedics”), and the Customer named in such Order Form. The “Effective Date” of this Agreement shall be the effective date set forth in the Order Form.
TABLE OF CONTENTS
- INTELLECTUAL PROPERTY, RIGHTS OF USE
- TERM AND TERMINATION
- FEES AND PAYMENT
- REPRESENTATIONS, WARRANTIES AND COVENANTS
- LIMITATIONS OF LIABILITY
- GOVERNING LAW; SUBMISSION TO BINDING ARBITRATION; WAIVER OF JURY TRIAL
“Acceptable Use Policy” means the terms and conditions in effect from time-to-time governing Authorized Users’ access to the Platform, the current version of which can be found at https://www.kimedics.com/terms-of-service (or such other location that is from time to time communicated by Kimedics).
“Agreement” means this Master Services Agreement entered into as of the Effective Date between the Parties.
“Affiliate” means any entity which is directly or indirectly controlling, controlled by, or under common control with a Party to this Agreement. For purposes of this definition, “control” shall mean either (i) the ownership of 50% or more of the voting securities of the applicable entity, or (ii) the ability to singularly direct the management, strategy and operations of such entity.
“Authorized User” means an individual user who is an employee or independent contractor of Customer, who is authorized by Customer to use the Kimedics Services for Internal Use only, and to whom Customer has made available a user identification and password for such purpose.
“Connected Services” means any third-party services supported by the Platform that Customer elects to, and has provided Kimedics with a Connected Services Authorization to, connect to through the Platform (whether through use of an application programming interface (API) or other available connection).
“Connected Services Authorization” means the authorization enabling the Platform to interact with Customer’s Connected Services accounts.
“Contractor” means a Party’s subcontractors, vendors, resellers and advisors, as applicable.
“Customer Data” means all data, material and other information relating to Customer’s business, in each case other than Provider Data, that is (i) entered or uploaded into the Kimedics Account by Customer or its Authorized Users, or (ii) imported into the Kimedics Account from, or connected through the Kimedics Account to, any Connected Services. For the avoidance of doubt, Customer Data shall not include any Performance Data or any data, material or other information belonging to Customer’s clients and/or vendors.
“Force Majeure Event” means circumstances beyond a Party’s reasonable control, including, but not limited to, widespread public internet outage, denial of service attack, war, act of terrorism, insurrection, multi-day widespread power outage, or acts of God. In addition, a Force Majeure Event shall include a temporary suspension of the Kimedics Services at any time Kimedics reasonably believes such suspension is necessary to combat a security threat to the Kimedics Service, and in the event of such a Force Majeure Event, time for delivery or other performance under this Agreement shall be as soon as practicable following such Force Majeure Event.
“Intellectual Property” means all rights and interests in all (a) patents, patent applications, and continuing (continuation, divisional, or continuation-in-part) applications, re-issues, extensions, renewals, and re-examinations thereof and patents issued thereon; (b) registered and unregistered trademarks, service marks, trade names, domain names, and all of the associated goodwill; (c) registered and unregistered copyrights and all other literary and author’s rights or moral rights; (d) trade secrets, know how, show-how, concepts, ideas, methods, processes, designs, discoveries, improvements, and inventions, whether patentable or unpatentable; (e) other intellectual, industrial, technology and proprietary rights now or hereafter coming into existence throughout the world; (f) applications for and registrations, renewals, and extensions of any of the foregoing; and (g) exclusive and non-exclusive license rights to any of the foregoing.
“Internal Use” means use of the Kimedics Services for Customer’s internal business use, solely for the benefit of Customer, including the provision of services by Customer to its clients and Providers, but does not include any use or resale of the Kimedics Services to or for the benefit of any person, entity or organization.
“Kimedics Account” means Customer’s password restricted account to access and use the Platform.
“Kimedics Data” means all data (other than Customer Data and Provider Data), material, documentation, source code, object code, underlying structure, ideas, algorithms, and other information comprising the Platform, the User Guides, the Professional Services and the Performance Data, and all Intellectual Property rights in each of the foregoing.
“Kimedics Services” means the particular modules of the Platform that, as of the relevant time, Customer has contracted for in an applicable Order Form, and the particular Professional Services that, as of the relevant time, Customer has contracted for from time to time in an applicable SOW. The Kimedics Services include Updates made during the Term.
“Order Form” means the written order pursuant to which the Parties have agreed to enter into this Master Services Agreement, which defines the respective order parameters and Platform information, such as modules purchased, term and associated fees, and each other written order for Kimedics Services entered into by and between the Parties from time to time.
“Performance Data” means data derived from the operation and use of the Platform and Professional Services by Customer and its Authorized Users, including, without limitation, certain usage, service, quality, financial and performance information and metrics.
“Platform” means Kimedics’ utilization management software made available to its customers from time to time.
“Professional Services” means services other than the Platform that may be offered by Kimedics from time to time and that Customer elects to receive pursuant to (and as described in) an executed SOW.
“Provider” means any physician, nurse, mid-level provider or other service provider managed in the Platform.
“Provider Data” means any personal or professional data, material or other information relating to or connected with any Provider managed in the Platform, including, without limitation, any state license information, work experience, education, board specialty or certification information.
“SOW” means a written statement of work executed by the Parties which identifies any Professional Services ordered by Customer, including the description of such services, the term and associated fees.
“Updates” means modifications, updates and changes made by Kimedics to the Platform that Kimedics makes generally available to its customers at no additional fee. Updates exclude new features, functions and capabilities which are related to modules of the Platform that are not then contracted for by Customer and/or that are offered for an additional fee and, in each case, which must be contracted for in an Order Form or SOW.
“User Guides” means all Kimedics materials made available to Customer to assist Customer Users, including all user manuals, operating manuals and other instructions, specifications, documents and materials, in any form or media, that describe any component, feature, requirement or other aspect of the Platform, including any functionality, testing, operation or use thereof, as such materials may be updated during the Term.
- INTELLECTUAL PROPERTY, RIGHTS OF USE
2.1 Customer owns, and shall retain, all right, title and interest in and to all Customer Data.
2.2 Kimedics is the sole and exclusive owner of, and shall retain, all right, title and interest in and to all Kimedics Data.
2.3 Subject to the terms and conditions of this Agreement, Kimedics hereby grants Customer a limited, non-exclusive, non-transferable right to access and use the Kimedics Services and the User Guides for Customer’s Internal Use during the Term. Customer is authorized to grant access to the Kimedics Services for an unlimited number of Authorized Users during the Term. Customer shall not permit the shared use of Authorized User login information or accounts; sharing of Authorized User accounts (user identification and password) is prohibited.
2.4 Customer shall ensure that each of its Authorized Users complies with the terms of this Agreement (including, but not limited to the Acceptable Use Policy). Customer shall be responsible for and liable for all acts or omissions of its Authorized Users under this Agreement, and nothing herein shall be deemed to discharge Customer’s obligations under this Agreement. In no event shall Customer be permitted to provide access to the Kimedics Services to any person, entity or organization who Kimedics determines, in its sole discretion, is a competitor of Kimedics.
2.5 Subject to the terms and conditions of this Agreement, Customer hereby grants Kimedics a royalty-free, fully paid-up, non-exclusive, non-transferable, worldwide right and license to: (i) copy, cache, store, reproduce, process, display, access, use, distribute, transmit and generally make available Customer Data in electronic form through the Platform in order to provide the Kimedics Services; and (ii) access Customer Data on the Connected Services in order to provide the Kimedics Services.
2.6 None of Customer, any Affiliate of Customer or any of its or their Authorized Users shall, directly or indirectly: (i) misappropriate or infringe any of Kimedics’ Intellectual Property or any other ownership rights in any Kimedics Data; (ii) reverse engineer, decompile, disassemble, disclose or otherwise attempt to discover the source code, object code or underlying structure, ideas or algorithms of the Platform; (iii) modify, translate, or create derivative works based on any Kimedics Data; (iv) use the Kimedics Services for purposes of a third-party or otherwise for the benefit of a third-party (other than for Internal Use as permitted hereunder); (v) use Kimedics Data for the purposes of developing, directly or indirectly, any product or service competitive to the Platform; (vi) represent, state, proclaim, assert or otherwise imply, suggest or maintain that the Platform or any of the Kimedics Services are owned by or are exclusive to Customer or any of its Affiliates, including, but not limited to, any statement or representation that the Platform or the Kimedics Services are proprietary technology of Customer or its Affiliates; or (vii) restrict any person, entity or organization from being able to independently engage in a business relationship with Kimedics. Customer acknowledges and agrees that monetary damages will not be an adequate remedy for any breach of this Section 2, and Kimedics shall be entitled to injunctive relief, in addition to any other rights and remedies available under this Agreement or at law or in equity, to restrain any such breach, threatened or actual, without proof of irreparable injury and without the necessity of posting bond.
- TERM AND TERMINATION
3.1 The term of this Agreement will begin on the Effective Date and continue until the later of: (i) the date that this Agreement is terminated pursuant to either (a) Section 3.2 or (b) by written agreement of each of the Parties; and (ii) the expiration or termination of all Order Forms and/or SOWs (the “Term”). Each Order Form and SOW shall specify the term (and any renewal terms) applicable to the Kimedics Services provided thereunder.
3.2 Either Party may immediately terminate this Agreement and/or any or all Order Forms and SOWs in the event that the other Party (i) is in material breach of this Agreement and/or any Order Form or SOW and such material breach has not been cured within 30 days following receipt by the breaching Party of written notice from the non-breaching Party of such breach (
3.3 Upon the termination of this Agreement and/or the termination or expiration of any Order Form or SOW: (i) Customer shall pay all Fees (as defined below) then due and payable as provided in Section 4; (ii) all of Customer’s rights to access and use the Platform shall immediately cease and the provision of Professional Services shall immediately end; and (iii) within 30 days, each Party shall return or destroy at the disclosing Party’s request the other Party’s Confidential Information (
3.4 It shall be the obligation of Customer to ensure that all Customer Data is removed from the Platform prior to termination of this Agreement. If requested by Customer within 30 days of the date that this Agreement terminates, Kimedics will make any remaining and reasonably accessible Customer Data available for extraction from the Platform pursuant to a customary transfer methodology (typically Kimedics provides an SFTP for the transfer) as promptly as is commercially practicable following the receipt of such request. Data contained within any Authorized User accounts deactivated prior to termination of this Agreement may be deleted and therefore will not be available for extraction, therefore Customer must extract such data prior to deactivating any such accounts. If Customer’s request is made after such 30-day period expires, Kimedics shall have no obligation to maintain or return any Customer Data and may delete and destroy any such Customer Data in its sole discretion, without prior notice, and without any liability to Customer or any other person, entity or organization. Customer shall be responsible for paying $275 per hour of time incurred by Kimedics to extract such data.
- FEES AND PAYMENT
4.1 Customer shall pay Kimedics all fees and expenses (collectively, “Fees”) set forth in each applicable Order Form and SOW within 30 days of the invoice date (the “Payment Due Date”), unless explicitly stated otherwise in such Order Form or SOW. Customer may withhold payment of any Fees that are the subject of a good faith dispute of which Customer has provided Kimedics written notice within five Business Days of invoice receipt (“Disputed Fees”);
4.2 Unless the applicable Order Form or SOW explicitly provides otherwise, all Fees will be invoiced by Kimedics at the beginning of each calendar month based on the previous calendar month’s usage (as defined in the applicable Order Form or SOW). Any of Customer’s usage of the Platform that occurs prior to the date that this Agreement or the applicable Order Form terminates or expires but that is not yet invoiceable shall immediately become due and payable by Customer on the date that this Agreement or the applicable Order Form terminates or expires.
4.3 Kimedics reserves the right to charge Customer interest at the rate of the lesser of 1.5% per month, or the maximum rate permitted by law on any Fees not received by Kimedics within 15 days of the Payment Due Date. Additionally, in the event any Fees are more than 30 days overdue, Kimedics may (i) suspend its performance of the Kimedics Services, and (ii) require full payment before Kimedics resumes performance.
4.4 All Fees exclude taxes. Customer agrees to pay, in accordance with the provisions of this Section 4, Kimedics (or remit to the applicable government authority, as applicable) any and all applicable sales or use taxes assessed by a government authority with respect to the Kimedics Services provided pursuant to this Agreement. To the extent possible, Kimedics will separately itemize on its invoice(s) to Customer any such taxes that Kimedics is legally required to collect and remit. If Customer is tax-exempt, Customer shall provide Kimedics with its tax-exemption number and certificate within five Business Days after the Effective Date. Customer shall be responsible for any liability or expense incurred by Kimedics as a result of Customer’s failure or delay in paying taxes due or if Customer’s claimed tax exemption is rejected. Customer agrees to gross up all Fees that are subject to any withholding tax, and shall not be entitled to reduce the Fees on an Order Form and/or SOW by any equalization taxes, such that the net payment received by Kimedics is the full originally stated amount of such Fees. For the avoidance of doubt, Customer shall not be liable for the payment of taxes imposed upon Kimedics or upon Kimedics’ personnel resources, including state and federal income taxes, franchise taxes, Social Security taxes or welfare taxes.
- REPRESENTATIONS, WARRANTIES AND COVENANTS
5.1 Each Party represents and warrants to the other Party that this Agreement is valid and enforceable against it, that it has the legal right and authority to enter into and perform its obligations under this Agreement, and that it will comply with all laws applicable to it.
5.2 Kimedics warrants that during the Term, when used by Customer as expressly permitted hereunder, the Kimedics Services shall substantially conform to the User Guides and shall perform in all material respects in accordance with the terms of this Agreement and each Order Form or SOW. In the event Customer determines that the Kimedics Services have not met the foregoing warranty, Customer shall give Kimedics prompt notice of the deficiency, including details sufficient to allow Kimedics to replicate the deficiency, and in such event Kimedics will use commercially reasonable efforts to remedy the identified deficiency. If Kimedics does not remedy the deficiency, Customer may terminate the affected Order Form or SOW as its sole and exclusive remedy. This warranty does not cover any problem with or damage to the Platform to the extent caused by: (i) Customer’s or its Authorized Users’ negligence, abuse, misuse, improper handling and/or use; (ii) modifications by anyone other than Kimedics or Kimedics’ Contractors; (iii) failure to operate the Platform in accordance with the User Guides; or (iv) a Force Majeure Event. Nothing in this Agreement or any Order Form or SOW shall limit Kimedics ability to modify, in its sole discretion, the Platform from time to time.
5.3 Kimedics represents and warrants that, to its knowledge as of the Effective Date, (i) it has all rights and authorizations necessary to provide the Kimedics Services as contemplated herein and (ii) as accessed and used by Customer in accordance with this Agreement, the Kimedics Services do not infringe, misappropriate or otherwise violate any Intellectual Property right of any third-party.
5.4 Customer warrants that it, its Affiliates and its and their respective Authorized Users have and will have the legal right to possess, store and transmit all Customer Data uploaded or entered into, stored on, and/or transmitted through the Kimedics Services, and Customer agrees that it will do so only in compliance with all agreements, laws and regulations applicable to Customer and its use of the Kimedics Services and the Customer Data, including all privacy laws and regulations, data protection laws and regulations, and the Health Insurance Portability and Accountability Act of 1996 (and all regulations promulgated thereunder (including the Standards for Privacy of Individually Identifiable Health Information and Security Standards for the Protection of Electronic Protected Health Information)) (collectively, “Privacy and Security Regulations”). Customer acknowledges and agrees that this Agreement does not constitute a “business associate agreement” and that Kimedics shall not be considered a “business associate” of Customer or any of Customer’s clients, Contractors or Providers.
5.5 Customer acknowledges and agrees that the Kimedics Services are being provided to Customer solely to assist Customer in managing its clients, vendors and/or Providers and their assignments and performance, and such clients, vendors and Providers are not customers, clients, employees, Contractors, officers or agents of Kimedics as a result of Kimedics’ provision of the Kimedics Services pursuant to this Agreement. Customer’s rights and obligations vis-à-vis such clients, vendors and Providers shall be governed by, and limited to, its separate agreements with such clients, vendors and Providers. Such clients’, vendors’ and/or Providers’ interactions with the Kimedics Services by means of a web interface or mobile app are, and shall remain, subject to the Acceptable Use Policy.
5.6 Customer shall, at its sole expense, provide, configure and maintain, to the extent required for Customer and Authorized Users to obtain the benefit of, and access, the Kimedics Services: (i) all client side hardware (including servers, computers, mobile devices or other access devices) and software (including a compatible Internet browser) necessary to access the Kimedics Services; (ii) Internet access; (iii) systems software for the hardware and access devices; and (iv) third party office applications and other software (collectively “Customer Facilities”). It is Customer's responsibility to ensure that the Customer Facilities provide sufficient capacity, performance and connectivity and meet the minimum requirements recommended by Kimedics from time to time during the Term. Kimedics shall use reasonable efforts to keep Customer apprised of anticipated changes to minimum and recommended levels and compatibilities. Kimedics will not be responsible for the unavailability of Kimedics Services or any other issue with any Kimedics Service arising from the failure of the Customer Facilities to conform to minimum or recommended levels of configurations.
5.7 Customer shall be responsible for configuring Customer Facilities as necessary to use the Kimedics Services. Customer is responsible to assure that it and its Authorized Users install any updates to the Kimedics Services promptly following notice (which may be via notification on a mobile application and/or posting information or a link to information on the Kimedics landing webpage or Customer’s login screen) and availability of the update.
5.8 As reasonably requested in order to provide helpdesk support, Customer shall provide Kimedics personnel with access to Customer Facilities when required to resolve support issues. Customer shall terminate such access once no longer required.
5.9 EXCEPT FOR THE EXPRESS WARRANTIES SET FORTH IN THIS SECTION 5, ALL KIMEDICS SERVICES AND USER GUIDES ARE PROVIDED ON AN "AS IS" BASIS. BOTH PARTIES HEREBY DISCLAIM ALL WARRANTIES, ORAL OR WRITTEN, EXPRESS OR IMPLIED, INCLUDING AND WITHOUT LIMITATION, WARRANTIES OF MERCHANTABILITY, TITLE AND FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT AND ALL WARRANTIES ARISING FROM COURSE OF DEALING, USAGE OR TRADE PRACTICE. WITHOUT LIMITING THE FOREGOING, KIMEDICS MAKES NO WARRANTY OF ANY KIND THAT THE KIMEDICS SERVICES OR USER GUIDES, OR RESULTS OF THE USE THEREOF, WILL MEET CUSTOMER'S OR ANY OTHER PERSON’S, ENTITY’S OR ORGANIZATION'S REQUIREMENTS, OPERATE WITHOUT INTERRUPTION, BE COMPATIBLE OR WORK WITH ANY SOFTWARE, SYSTEM, OR BE SECURE, ACCURATE, COMPLETE, OR ERROR FREE. EACH PARTY ACKNOWLEDGES AND AGREES THAT IT HAS NOT ENTERED INTO THIS AGREEMENT ON THE BASIS OF, OR IN RELIANCE ON, ANY REPRESENTATIONS OR PROMISES NOT EXPRESSLY CONTAINED IN THIS SECTION 5.
6.1 Kimedics shall indemnify, defend and hold harmless Customer and its Affiliates (and its and their respective officers, directors, employees and agents) (the “Customer Parties”) from and against any and all losses, damages, suits, fees, judgments, penalties, costs and expenses (including reasonable attorney’s fees) (collectively, “Losses”) incurred by a Customer Party arising from any claim, suit, action or proceeding (a “Claim”) brought or sought by a third-party against a Customer Party alleging that the Kimedics Services, when used by Customer as permitted by this Agreement, infringes any third-party Intellectual Property right in any jurisdiction that Customer is then using the Kimedics Services;
6.2 Customer shall indemnify, defend and hold harmless Kimedics and its Affiliates (and its and their respective officers, directors, employees and agents) (the “Kimedics Parties”) from and against any and all Losses incurred by a Kimedics Party arising out of, or related to, any Customer Party’s (or its respective Authorized Users’ or Contractors’): (i) failure to comply with any laws or regulations applicable to it, its use of the Kimedics Services or any Customer Data, including any Privacy and Security Regulations; or (ii) breach of any policies of, agreements with, or obligations owed to, any of its clients, vendors, Providers or Connected Services or any other person, entity or organization.
6.3 The indemnification obligations contained in this Agreement are conditioned upon: (i) notice by the party seeking indemnity (“Indemnitee”) to the party from whom indemnity is sought (“Indemnitor”) of any Claim for which indemnity is claimed within five days of the Indemnitee receiving notice of such claim (
- LIMITATIONS OF LIABILITY
7.1 IN NO EVENT SHALL EITHER PARTY BE LIABLE, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), WARRANTY OR ANY OTHER THEORY, FOR ANY INDIRECT, CONSEQUENTIAL, INCIDENTAL, PUNITIVE, SPECIAL OR EXEMPLARY DAMAGES, INCLUDING, WITHOUT LIMITATION, ANY LOSS OF PROFITS, LOSS OF BUSINESS, LOSS OF USE OR DATA, INTERRUPTION OF BUSINESS OR ANY OTHER MATTER RELATING TO THE KIMEDICS SERVICES, EVEN IF THE OTHER PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. ADDITIONALLY, KIMEDICS SHALL HAVE NO LIABILITY OR RESPONSIBILITY TO CUSTOMER OR TO ANY OTHER PERSON, ENTITY OR ORGANIZATION FOR (A) ANY ACTIONS OR FAILURES TO ACT BY CUSTOMER OR ANY OF CUSTOMER’S CLIENTS, CONTRACTORS, PROVIDERS, AUTHORIZED USERS OR CONNECTED SERVICES, OR (B) ANY VIOLATION OR BREACH BY CUSTOMER OR ANY OF ITS AFFILIATES OR AUTHORIZED USERS OF (X) ANY POLICIES OF, AGREEMENTS WITH, OR OBLIGATIONS OWED TO, ANY OF CUSTOMER’S (OR ITS AFFILIATES’) CLIENTS, CONTRACTORS, PROVIDERS OR CONNECTED SERVICES, OR (Y) ANY PRIVACY AND SECURITY REGULATIONS.
7.2 EXCEPT FOR (I) EITHER PARTY’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT; (II) THE PARTIES’ INDEMNIFICATION OBLIGATIONS SET FORTH IN SECTION 6; (III) THE PARTIES’ CONFIDENTIALITY OBLIGATIONS SET FORTH IN SECTION 8; (IV) A BREACH OF SECTION 2.6; OR (V) CUSTOMER’S OBLIGATION TO PAY THE FEES OWED FOR ANY KIMEDICS SERVICES UNDER THIS AGREEMENT, IN NO EVENT SHALL A PARTY’S LIABILITY FOR ANY AND ALL DAMAGES, LOSSES, AND CAUSES OF ACTION (WHETHER IN CONTRACT OR TORT, INCLUDING, BUT NOT LIMITED TO, NEGLIGENCE OR OTHERWISE), ARISING FROM, OR OTHERWISE IN ANY WAY RELATED TO THE SUBJECT MATTER OF, THIS AGREEMENT, ANY ORDER FORM OR SOW, OR CUSTOMER’S USE OF THE KIMEDICS SERVICES, EXCEED, IN THE AGGREGATE, THE TOTAL FEES PAID OR PAYABLE TO KIMEDICS UNDER THIS AGREEMENT IN THE 3-MONTH PERIOD IMMEDIATELY PRECEDING THE FIRST ACT GIVING RISE TO THE LIABILITY.
7.3 Except for Customer’s obligation to pay Fees pursuant to the terms of this Agreement, neither Party will be liable to the other for any failure to perform, or delay in the performance of, any obligation under this Agreement caused by a Force Majeure Event.
7.4 Customer acknowledges that Kimedics has set its prices and entered into this agreement in reliance upon the limitations of liability and the disclaimers of warranties and damages set forth herein, and that the same form an essential basis of the bargain between the Parties. The Parties agree that the limitations and exclusions of liability and disclaimers specified in this Agreement will survive and apply even if found to have failed of their essential purpose.
8.1 “Confidential Information” means: (i) business or technical information, data, or know-how, whether or not a statutory “trade secret”, including, but not limited to, that which relates to product plans, designs, source code, software, Intellectual Property, marketing plans, business opportunities, personnel, research, developments, processes, designs, drawings, engineering, product pricing, financial information, third-party confidential information and other sensitive or proprietary information, in whatever form, whether oral, written or electronic, and whether or not marked, designated or otherwise identified as confidential (all of the foregoing as they relate to the Kimedics Services, including the Platform (current or planned), are “Kimedics’ Confidential Information”, and all of the foregoing as they relate to Customer’s business, are “Customer’s Confidential Information”). Confidential Information includes information disclosed prior to or during the Term of this Agreement. Confidential Information shall not include information which: (i) is or becomes generally available to the public other than as a result of wrongful disclosure by the receiving party; (ii) is already known by the receiving party, by means not subject to a confidentiality obligation owed to the disclosing party, at the time disclosed by the disclosing party; (iii) is or becomes available to the receiving party from a third-party that lawfully possesses the Confidential Information and has the legal right to make such disclosure; or (iv) is developed independently by the receiving party without use of any of the disclosing party’s Confidential Information and by persons without access to such Confidential Information.
8.2 Except as explicitly provided in Section 8.3, each of Customer and Kimedics agrees that, during and after the Term, it will hold the Confidential Information of the other Party in strict confidence, it will not use such Confidential Information for any purpose other than in compliance with the terms of this Agreement, and it will not disclose any such Confidential Information to any person, entity or organization other than (i) as consented to by the other Party; (ii) to its Affiliates, employees, directors, officers, consultants, contractors and agents who, in each case, (x) need to know such information to perform such Party’s obligations under this Agreement, (y) have been advised of the confidential nature of the information, and (z) who agree to abide by the confidentiality obligations of this Agreement or are otherwise subject to an obligation to keep such information confidential; (iii) to any person, entity or organization with whom Customer or any Authorized User shares Customer’s Confidential Information through the Platform; or (iv) to any person, entity or organization to whom such disclosure is required to be made pursuant to an applicable law, rule, regulation, or legal process,
8.3 Notwithstanding the restrictions contained in Section 8.2, (i) Customer may publicly disclose the fact that it is using the Kimedics Services, but all details about the uses, functionalities or other aspects of the Kimedics Services (including screenshots and specific features of the Platform, which, for the avoidance of doubt, shall require Kimedics’ prior written consent to share and may not, in any event, be shared without attribution to Kimedics) are Confidential Information of Kimedics and may not be disclosed without Kimedics’ prior written consent;
8.4 Each Party acknowledges and agrees that monetary damages will not be an adequate remedy for any breach of this Section 8 and the Party whose Confidential Information is, or is threatened to be, disclosed in violation hereof shall be entitled to injunctive relief, in addition to any other rights and remedies available under this Agreement or at law or in equity, to restrain any such breach, threatened or actual, without proof of irreparable injury and without the necessity of posting bond.
- GOVERNING LAW; SUBMISSION TO JURISDICTION; WAIVER OF JURY TRIAL
9.1 This Agreement is governed by and construed in accordance with the internal laws of the State of Delaware, without reference to any choice or conflict of law principles or rules.
9.2 Each of the Parties irrevocably and unconditionally (i) consents to submit to the sole and exclusive jurisdiction of the Court of Chancery of the State of Delaware, or, if the Court of Chancery of the State of Delaware declines to accept jurisdiction over a particular matter, any state or federal court sitting in the State of Delaware (or any applicable court of appeal thereto) (collectively, the “Chosen Courts”), in any disputes, actions or proceedings arising out of, or related to, this Agreement, any Order Form or any SOW, and (ii) agrees that all claims in respect of such disputes, actions or proceedings may be heard and determined in the Chosen Courts and to not bring any dispute, action or proceeding in any other court or jurisdiction. The Parties consent and agree to the exclusive jurisdiction of the Chosen Courts mentioned in this Section 9.2, and irrevocably and unconditionally waive any and all objections to such forums, including but not limited to objections based on improper venue or inconvenient forum, and waive any bond, surety or other security that may be required of any other party with respect thereto. Each Party agrees that service of summons and complaint or any other process that might be served in any dispute, action or proceeding may be made on such Party by sending or delivering a copy of the process to the Party to be served at the address of the Party, and in the manner provided for the giving of notices, in Section 10.4. Nothing in this Section 9.2, however, shall affect the right of any party to serve legal process in any other manner permitted by law. Each Party agrees that a final, non-appealable judgment in any action or proceeding so brought shall be conclusive and may be enforced by suit on the judgment or in any other manner provided by law.
9.3 TO THE EXTENT NOT PROHIBITED BY APPLICABLE LAW THAT CANNOT BE WAIVED, THE PARTIES HEREBY WAIVE, AND COVENANT THAT THEY WILL NOT ASSERT (WHETHER AS PLAINTIFF, DEFENDANT OR OTHERWISE), ANY RIGHT TO TRIAL BY JURY IN ANY ACTION ARISING IN WHOLE OR IN PART UNDER OR IN CONNECTION WITH THIS AGREEMENT OR ANY OF THE TRANSACTIONS CONTEMPLATED HEREBY, WHETHER NOW EXISTING OR HEREAFTER ARISING, AND WHETHER SOUNDING IN CONTRACT, TORT OR OTHERWISE.
10.1 This Agreement incorporates any exhibits, appendices and other documents referred to in it, including, but not limited to, the Acceptable Use Policy. This Agreement together with each Order Form and/or SOW is the entire agreement between the Parties relating to the subject matter set forth herein and therein, and supersedes all prior or contemporaneous written or oral proposals, agreements, understandings and discussions of the Parties related thereto;
10.2 No amendment to or modification of this Agreement, any Order Form or any SOW shall be effective unless it is in a written amendment or modification (which may not be via email) signed by an authorized representative of each Party. No waiver by any Party of any of the provisions hereof or thereof or any rights hereunder or thereunder will be effective unless explicitly set forth in writing (which may not be via email) and signed by the Party so waiving. Except as otherwise set forth in this Agreement, (i) no failure to exercise, or delay in exercising, any rights or remedies arising from this Agreement will operate or be construed as a waiver thereof, and (ii) no single or partial exercise of any rights or remedies hereunder will preclude any other or further exercise thereof or any other right or remedy. Except as may be expressly provided herein, all remedies provided for in this Agreement shall be cumulative and in addition to, and not in lieu of, any other remedies available to either Party at law, in equity or otherwise.
10.3 Neither Party to this Agreement may assign or otherwise transfer (by operation of law or otherwise) any of its rights or obligations under this Agreement without the prior written consent of the other party. Notwithstanding the foregoing, either Party may assign or otherwise transfer all of its rights and obligations under this Agreement (i) to an Affiliate of such Party, or (ii) in connection with a sale or other transfer of all or substantially all of such Party’s assets or equity (whether by sale of assets or stock or by merger or other reorganization), in each case, without the prior consent of, but upon written notice given to, the other Party;
10.4 All notices and other communications hereunder must be in writing and addressed to the Parties at the addresses set forth on the first page of this Agreement (or to such other address that may be designated by the Party giving Notice from time to time in accordance with this Section 10.4). All notices must be delivered by personal delivery (effective the date delivered), nationally recognized overnight courier via overnight delivery (effective the date delivered), or email (effective the Business Day sent to the appropriate email address if sent prior to 5:00 p.m. New York City time on such Business Day, or otherwise effective on the next Business Day).
10.5 Notwithstanding anything in this Agreement to the contrary, Customer acknowledges and agrees that (i) in performing the Kimedics Services, Kimedics will prepare, compile, and otherwise receive or produce Performance Data, and (ii) Kimedics may freely use or disclose Performance Data for its internal business and operating purposes, including, without limitation, (a) to deliver benchmarking comparison materials for use in connection with the Kimedics Services, and (b) for a data library used by Kimedics in pursuit of improving performance and providing continued services to customers on the Platform;
10.6 This Agreement shall not benefit, or create any right or cause of action in, or on behalf of, any person, entity or organization other than Customer and Kimedics and their respective successors and assigns (and not for any creditor, client, Provider, vendor, Authorized User or any other person, entity or organization).
10.7 Neither Party is an agent, partner or employee of the other Party and neither Party has any right or any other authority to enter into any contract or undertaking in the name of or for the account of the other Party or to assume or create any obligation of any kind, express or implied, on behalf of the other Party, nor will the act or omissions of either create any liability for the other Party. This Agreement shall in no way constitute or give rise to a partnership or joint venture between the Parties.
10.8 In the event of a conflict between any provision of this Agreement and an SOW or Order Form, unless expressly stated otherwise in the applicable SOW and/or Order Form in respect of specific matters covered thereby, the terms of this Agreement shall prevail;