MASTER SERVICES AGREEMENT
This Master Services Agreement (the “Agreement”) is entered into by and between between the MetaMap´s entity (together with its Affiliates as defined below, “MetaMap”) and the customer (“Customer”) identified under the applicable Order Form as of the effective date stated thereunder. MetaMap and Customer are sometimes referred to jointly as the “parties” or singularly as a “party.”
1. DEFINITIONS.
“Affiliate” means (i) an entity of which a party directly or indirectly owns fifty percent (50%) or more of the stock or other equity interest, (ii) an entity that directly or indirectly owns fifty percent (50%) or more of the stock or other equity interest of a party, or (iii) an entity which is under common control with a party by having fifty percent (50%) or more of the stock or other equity interest of such entity and a party directly or indirectly owned by the same person or entity, but such entity shall only be deemed to be an Affiliate so long as such ownership exists.
“Aggregated Anonymous Data” means data submitted to, collected by, or generated by MetaMap in connection with Customer’s use of the Services in aggregated, anonymized form which cannot be linked to Customer, any Authorized Personnel, or any End-User.
"Agreement” means this Master Services Agreement as well as any exhibits, annexes, schedules, appendixes and the like attached hereto, and the Data Processing Addendum (as defined below). In the event of conflict between the Master Services Agreement and any of the ancillary documents aforementioned such ancillary document will prevail solely with respect to the specific matters addressed therein (e.g., data protection).
“Authorized Personnel” means any employee or contractor of Customer or its Affiliates that Customer allows to use (operate) the Services on its behalf.
“Claims and Resulting Losses” will have the meaning set out in Section 6.1 below.
“Confidential Information” means information disclosed under this Agreement that is designated by the disclosing party as proprietary or confidential or that should be reasonably understood to be proprietary or confidential due to its nature and the circumstances of its disclosure. The terms of this Agreement are the Confidential Information of both parties. All pricing information, Response Data, and technical information, disclosed by MetaMap is MetaMap’s Confidential Information.
“Customer Data” means data including Personal Data (as applicable) uploaded or submitted to the Services by Customer or on its behalf.
“Data Processing Addendum or DPA” means the data processing addendum, if any, executed by the parties in connection herewith.
“Documentation” means MetaMap’s usage guidelines and standard technical documentation for the Services, the current version of which is available at the site specified in the applicable service exhibit to the Order Form or such site as MetaMap may notify Customer.
“End-User” means an identified or identifiable natural person who will ultimately provide their personal data to be processed through the Services.
“Order Form or Proposal” shall mean those commercial documents agreed to by the parties which contain the Services purchased from MetaMap under this Agreement.
“Response Data” means any information MetaMap provides to Customer in connection with the Services pursuant to this Agreement and/or any applicable Order Form that is provided to the Customer solely for its internal business purposes and/or assessment of End-Users using the Services to access the Customer’s service, and solely for its internal fraud prevention purposes. The Response Data will depend on the Services purchased by Customer.
“Services” means (a) remote access to MetaMap’s hosted solution as specified in an Order Form, and (b) any other services provided by MetaMap that are specified in an applicable Order Form.
“Software” means the any software code provided by MetaMap hereunder.
“Usage Data” means data generated from the use of the Services that is collected and analyzed by MetaMap to improve the functionality, performance, and overall user experience of MetaMap’s services.
2. USE RIGHTS.
2.1 Permitted Use. Subject to Customer’s compliance with all of the terms and conditions of the Agreement, MetaMap hereby grants Customer a nonexclusive, limited, non-sublicensable, non-transferable right to, during the term of an applicable Order Form, remotely access and use the Services specified in such Order Form, only for the internal business purposes of Customer, and only as provided herein and in such Order Form and only in accordance with MetaMap’s applicable Documentation. To the extent any Software is provided, Customer will have a nonexclusive, limited, non-sublicensable, non-transferable right during the term of the applicable Order Form to use the Software (only in object code form) to help Customer use the Services. The Software will be subject to the same restrictions as the Services hereunder. During the period in which the Customer uses the Services, the Customer undertakes to include in its website and/or application where the Services are incorporated, the attribution “Powered by MetaMap an Incode Company” (in a form and placement reasonably acceptable to MetaMap).
2.2 Authorized Personnel. Only Authorized Personnel may access or use the Services on behalf of the Customer. Each Authorized Personnel must keep its login credentials confidential and not share them with anyone else. Customer is responsible for each Authorized Personnel’s compliance with this Agreement and any actions taken through their accounts. Customer will promptly notify MetaMap if it becomes aware of any compromise of any of its Authorized Personnel’s login credentials.
2.3 Restrictions. No rights or licenses are granted except as expressly and unambiguously set forth in this Agreement. Except as expressly set forth in this Agreement, Customer shall not (and shall not permit any third party to), directly or indirectly: (a) reverse engineer, decompile, disassemble, or otherwise attempt to discover the source code, object code, or underlying structure, ideas, or algorithms of the Services (but the foregoing will not apply to the extent prohibited by applicable law); (b) modify, translate, or create derivative works based on the Services; (c) copy, rent, lease, distribute, pledge, assign, or otherwise transfer or encumber rights to the Services; (d) use the Services for the benefit of a third party (other than, indirectly, End-Users as contemplated herein); (e) remove or otherwise alter any proprietary notices or labels from the Services or any portion thereof; (f) use or access the Services to build an application or product that is competitive with any MetaMap product or service or for other competitive or benchmarking purposes; (g) interfere or attempt to interfere with the proper working of the Services or any activities conducted on the Services; (h) bypass any measures MetaMap may use to prevent or restrict access to the Services (or other accounts, computer systems, infrastructure services or networks connected to the Services); or (i) sell, resell, license, sublicense, distribute, make available, rent or lease any Services or Response Data provided under the Services or (j) disclose MetaMap’s Services or any technical or performance information about the Services in violation of or in a manner not permitted under this Agreement. For clarity, all of the foregoing restrictions will also apply to any Software. Customer is responsible for all of Customer’s activity in connection with the Services, including but not limited to uploading Customer Data onto the Services. Customer shall use the Services in compliance with all applicable local, state, national and foreign laws, treaties and regulations in connection with Customer’s use of the Services (including those related to data privacy, international communications, export laws and the transmission of technical or personal data laws). Furthermore, Customer acknowledges and agrees that MetaMap is not a “consumer reporting agency” and neither the Services nor the Response Data constitutes “consumer reports”, as those terms are defined in the Fair Credit Reporting Act, 15 U.S.C. § 1681, et seq., or any similar state statute (“FCRA”). Consequently, Customer is prohibited from using the Services or Response Data, in whole or in part, for the purpose of serving as a factor in establishing a person’s eligibility for credit, insurance, employment, or another purpose for which a consumer report is permitted be used under the FCRA. MetaMap makes no representation or warranty as to the credit worthiness, credit standing, credit capacity, character, general reputation, personal characteristics, or mode of living of any person. Customer agrees not to use any part of the Services or the Response Data in the preparation of a consumer report and/or take any “adverse action” (as that term is defined in the FCRA) against a consumer based in whole or in part on the Services or Response Data. Customer may use, except as otherwise prohibited, restricted or otherwise limited by this Agreement (including the restrictions contained in this Section 2.3), the Services or Response Data for the purposes of (i) verifying individuals’ identities, (ii) preventing or detecting fraud, and (iii) satisfying Customer’s KYC/KYB requirements, and may not use the Services or Response Data for any other purpose. If Customer uses the Services or Response Data to verify the identities of employees or potential employees of any entity, Customer shall provide an alternative method for such individuals to verify their identity in the event their identity is not able to be verified using the Services or Response Data and shall provide notice of such alternative method to such individuals, including instructions on how to use it.
2.4 Customer Data. Customer shall retain all right, title and interest in and to the Customer Data. Customer represents and warrants that it owns all right, title and interest in and to the Customer Data or otherwise has sufficient rights to the Customer Data to permit its use as contemplated hereunder. MetaMap shall use commercially reasonable efforts to maintain the security and integrity of the Services and the Customer Data. MetaMap is not responsible to Customer for unauthorized access to Customer Data or the unauthorized use of the Services unless such access is due to a failure to comply with its security obligations under this Agreement. The parties acknowledge and agree that any data personal and specific to an End-User is owned by such End-User. Customer acknowledges and agrees that MetaMap may use Customer Data to: (i) improve its products and services and provide the Services to Customer; and (ii) generate Usage Data, including Aggregated Anonymous Data. MetaMap may perpetually retain and use Usage Data and Aggregated Anonymous Data for MetaMap’s business purposes (including without limitation, for purposes of preventing fraud, improving, testing, operating, promoting and marketing MetaMap’s products and services). Customer acknowledges and agrees that it is responsible to keep records of all Customer Data, including any backups, required to comply with its legal obligations.
2.5 End User Data. Customer represents and warrants that (a) all of its activities in connection with the processing of End User personal information (including, without limitation, biometrics), including, without limitation, provision of the same to MetaMap for the purposes hereunder, will comply with all laws, regulations, and third-party rights and (b) it will ensure that it fully complies with the End User consent and notice requirements set out in the DPA or as otherwise agreed to by the parties.
2.6 Feedback. Customer may (but is not obligated to) provide suggestions, comments or other feedback to MetaMap with respect to the Services or Software (“Feedback”). Customer shall, and hereby does, grant to MetaMap an exclusive, worldwide, perpetual, irrevocable, transferable, sublicensable, royalty-free, fully paid-up license to reproduce, modify, develop, distribute, use and otherwise exploit any Feedback for any purpose. MetaMap acknowledges that Feedback is provided “AS IS”.
2.7 No Assignment of IP. No intellectual property rights are assigned or transferred by either party in connection with this Agreement.
3. METAMAP SERVICES.
3.1 Support; Service Levels. During the Order Form Term, and subject to Customer’s payment of all fees due under such Order Form, MetaMap will provide support, maintenance service, and uptime for each Service in accordance with MetaMap’s service level and support policy attached to the applicable Order Form (“SLA and Support Policy”).
3.2 Service Updates. From time to time, in its sole discretion, MetaMap may provide upgrades, patches, enhancements, or fixes for the Services to its customers generally without additional charge (“Updates”), and such Updates will become part of the Services and subject to this Agreement. MetaMap shall use commercially reasonable efforts to give Customer reasonable prior notice of any major changes; provided that Customer understands that MetaMap may cease supporting old versions or releases of the Services at any time in its sole discretion. This Section 3.3 will also apply to all Software.
3.3 SDK Updates. MetaMap will provide reasonable notice of new MetaMap Software Development Kit (SDK) Updates. Customer hereby agrees to implement, and use on a going forward basis, the most recent version of the MetaMap SDK within ninety (90) days from it being made available by MetaMap. In the event Customer fails to implement and use the updated SDK as required above, MetaMap will not be responsible for any resulting issues (including without limitation service level issues). MetaMap reserves the right to cancel or adjust SLA and Support Policy terms with respect to Customer if Customer is not in compliance with these requirements, to reflect the limitations imposed by the use of outdated SDK versions.
4. COMMERCIAL TERMS.
4.1 Order Forms. Each Order Form shall be incorporated into and form a part of the Agreement once executed by the parties.
4.2 Affiliate Orders. Additional Affiliates of Customer may execute their own Order Forms(s), subject to MetaMap’s acceptance in its reasonable discretion. This creates a separate agreement between the Affiliate and MetaMap incorporating this Agreement with the Affiliate treated as “Customer”. Neither Customer nor any Customer Affiliate has any rights under each other’s Agreement with MetaMap, and breach or termination by Customer of any such Agreement shall not be considered breach or termination by Affiliate and vice versa. However, for those Affiliates listed on a Customer Order Form and which are using the Services under such Order Form, Customer is fully liable for their breach of this Agreement.
4.3 Fees; Payment. Customer shall pay MetaMap the fees for the Services set forth in each Order Form (“Fees”). Unless otherwise specified in an Order Form, all Fees shall be invoiced annually in advance and all invoices issued under this Agreement are payable in U.S. dollars within the term(s) stated in the corresponding Order Form. Customer shall pay a late fee on any amount that is not paid when due at a rate of the lesser of 1.5% per month or the maximum amount permitted by law, in addition to any costs of collection incurred by MetaMap. Customer is responsible for any sales, use, GST, value-added, withholding or similar taxes or levies that apply to its Order Form(s), whether domestic or foreign (“Taxes”), excluding taxes based on MetaMap’s net United States income. Fees and expenses are exclusive of Taxes. All payments to be made by Customer to MetaMap hereunder shall be made free and clear of and without deduction for or on account of withholding taxes. In case Customer is required to make such a payment subject to the deduction or withholding of Tax, the sum payable by Customer (in respect of which such deduction or withholding is required to be made) shall be increased to the extent necessary to ensure that MetaMap receives a sum net of any withholding or deduction equal to the sum which it would have received had no such deduction or withholding been made or required to be made. Except as set out in Section 5.3 below, all Fees are non-cancellable, non-refundable, and are not subject to set-off. If Customer exceeds any Authorized Personnel or usage limitations set forth on an Order Form, then (a) MetaMap shall invoice Customer for such additional end-users (i.e. Transactions as defined in the Order Form) or usage at the overage rates set forth on such Order Form (or if no overage rates are set forth on the Order Form, at MetaMap’s then-current standard overage rates for such usage or number of Authorized Personnel), in each case calculated on a daily pro-rata basis from the first date of such excess usage through the end of the Order Form initial term or then-current Order Form renewal term (as applicable), and (b) if such Order Form Term renews, such renewal shall include the additional fees for such excess Authorized Personnel and/or usage, as applicable.
5. TERM; TERMINATION.
5.1 Term. This Agreement shall commence on the Effective Date and will be valid until terminated as set out below. For each Order Form, the “Order Form Term” shall begin as of the effective date of the Order Form and, unless earlier terminated as set forth herein, shall continue for the term specified on such Order Form.
5.2 Termination. Either party may terminate this Agreement on written notice if there are no Order Forms in effect. There is no other right to terminate this Agreement for convenience. Order Forms cannot be terminated for convenience. Either party may also terminate this Agreement if the other party materially breaches this Agreement and fails to cure such breach within thirty (30) days (ten (10) days in the case of non-payment) from receipt of written notice thereof (provided that such notice provides sufficient detail regarding the breach and expressly states the intent to terminate if not cured). A party may also terminate this Agreement if the other party seeks protection under a bankruptcy, receivership, trust deed, creditors’ arrangement, composition or comparable proceeding, or if such a proceeding is instituted against that party and not dismissed within one hundred and twenty (120) days. Without limiting the foregoing, MetaMap may suspend or limit Customer’s access to, or use of the Services, if: (a) Customer’s account is more than ten (10) days past due, (b) Customer takes any action that imposes or may impose (as determined in MetaMap’s sole discretion) an unreasonable or disproportionately large load on MetaMap’s infrastructure or (c) Customer’s use of the Services results in (or is reasonably likely to result in) damage to or material degradation of the Services which interferes with MetaMap’s ability to provide access to the Services to other customers, including but not limited to the following actions caused by act or omission of Customer such as: processing that generates a loop in calls, connections that generate intermittency, implementations that cause disruption to Customer’s users and other MetaMap customers, and illegal or unauthorized manipulation of the Services. In the case of subsection (c), MetaMap shall use commercially reasonable efforts to: (i) cooperate with Customer to resolve or mitigate the damage or degradation in order to resolve the issue without resorting to suspension or limitation; (ii) provide notice to Customer describing the nature of the damage or degradation prior to any such suspension or limitation; and (iii) reinstate Customer’s use of or access to the Services, as applicable, if Customer remediates the issue within thirty (30) days of receipt of such notice.
5.3 Fees on Termination; Effect of Termination. Termination of this Agreement will automatically terminate all Order Forms. If this Agreement is terminated by Customer pursuant to Section 5.2, or if an Order Form is terminated by MetaMap pursuant to Section 6.3, MetaMap will promptly refund all fees paid in advance for the terminated portion of the Order Form Term. In the event of any other termination, all fees that but for termination would otherwise have been due for what would otherwise have been the full term of all outstanding Order Forms will be non-cancellable and non-refundable (and, if not already paid, will be promptly due). Upon expiration or earlier termination of this Agreement or an Order Form, all licenses granted to Customer will cease, and Customer must immediately cease using the Services and delete (or, upon request, return) all copies of the Software. At the disclosing party’s request upon expiration or earlier termination of this Agreement, the receiving party will delete all of the disclosing party’s Confidential Information. Confidential Information may be retained in the receiving party’s standard backups after deletion but will remain subject to this Agreement’s confidentiality and non-use restrictions. Upon Customer’s written request and for a period of thirty (30) days after the effective date of expiration or termination of this Agreement, MetaMap shall make available to Customer for download from the Service Customer Data that MetaMap then has in its possession. After those thirty (30) days, MetaMap will delete or destroy any and all Customer Data from the Service, unless legally prohibited.
5.4 Survival. All Sections that by their nature should survive expiration or any termination of this Agreement will survive, including but not limited to the following Sections: 1, 2.3, 2.4, 2.5, 2.6, 2.7, 4.3 (with respect to any outstanding payment obligations), 5.3, 5.4, and 6 through 10 (inclusive).
6. INDEMNIFICATION.
6.1 Indemnification by MetaMap. MetaMap will defend, hold harmless, and indemnify Customer from and against any third-party claims, actions, or demands (and all resulting, to the extent payable to unaffiliated third parties, damages, fines, cost and expenses, including reasonable attorneys’ fees)) (“Claims and Resulting Losses”) to the extent alleging that the Services or Software, as provided by MetaMap, violates a third party’s patent, copyright, trademark or trade secret.
6.2 Indemnification by Customer. Customer will, at its own expense, defend, hold harmless, and indemnify MetaMap from and against any Claims and Resulting Losses related to Customer’s breach of Section 2.5.
6.3 Exclusions. If a claim arises pursuant to Section 6.1, or MetaMap determines that such a claim may arise, MetaMap may at its option: (a) procure rights for Customer’s continued use of the Services or Software (as applicable), (b) replace or modify the allegedly infringing portion of the Services or Software (as applicable) to avoid infringement without reducing its overall functionality or (c) terminate the affected Order Form on thirty (30) days’ notice and provide Customer with the refund set out in Section 5.3 above. MetaMap’s obligations in this Section 6 do not apply to: (i) infringement resulting from Customer’s modification of the Software, (ii) the combination, operation or use of the Services or Software with software and/or hardware not delivered by MetaMap if such infringement could have been avoided by combination, operation or use of the Services or Software with other software and/or hardware, (iii) unauthorized use of the Services or Software, (v) Customer’s failure to follow the procedures set forth in Section 6.4 below, or (iv) evaluations or other free use of the Services or Software. This Section 6 sets out Customer’s exclusive remedy and MetaMap’s entire liability regarding infringement of third-party intellectual property rights.
6.4 Procedures. The indemnifying party’s obligations in this Section 6 are subject to the indemnified party providing to the indemnifying party: (a) prompt notice of any demand, claim or threat thereof, (b) the exclusive right to defend and settle such claim, and (c) at the indemnifying party’s request and expense, all reasonably necessary cooperation of the indemnified party with such defense and settlement efforts. The indemnifying party may not settle or make any admissions about any claim without the indemnified party’s prior consent, which shall not be unreasonably withheld (but no consent to settlement is necessary if the settlement contains a full release of liability for the indemnified party and does not require the indemnified party to take or refrain from taking any action (other than relating to use of the Services or Software, when MetaMap is the indemnifying party). Subject to the foregoing, the indemnified party may participate in a claim with its own counsel at its own expense.
7. DISCLAIMER. THE SERVICES AND SOFTWARE ARE PROVIDED “AS IS” AND “AS AVAILABLE” AND ALL OTHER WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, ARE HEREBY DISCLAIMED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. METAMAP MAKES NO WARRANTIES WITH RESPECT TO CUSTOMER’S DECISIONS OR RELIANCE ON ANY RESPONSE DATA DERIVED FROM THE SERVICES. METAMAP’S RIGHTS HEREUNDER ARE NOT LIMITED BY, OR CONDITIONED ON, CUSTOMER´S PRODUCTIVITY OR ANY SIMILAR METRIC. WITHOUT LIMITING ITS EXPRESS OBLIGATIONS IN SECTION 3.2 (SUPPORT; SERVICE LEVELS), METAMAP DOES NOT WARRANT THAT CUSTOMER’S USE OF THE SERVICES OR SOFTWARE WILL BE UNINTERRUPTED OR ERROR-FREE OR THAT ANY SECURITY MECHANISMS IMPLEMENTED BY THE SERVICES OR SOFTWARE WILL NOT HAVE INHERENT LIMITATIONS.
8. LIMITATION OF LIABILITY. EXCEPT FOR METAMAP’S INDEMNIFICATION OBLIGATIONS WITH RESPECT TO THE INFRINGEMENT OF THIRD-PARTY INTELLECTUAL PROPERTY RIGHTS, AND CUSTOMER’S INDEMNITY OBLIGATIONS UNDER SECTION 6.2, AND FOR CUSTOMER’S BREACH OF SECTION 2.3 (RESTRICTIONS) AND ITS PAYMENT OBLIGATIONS, IN NO EVENT SHALL EITHER PARTY, NOR ITS DIRECTORS, EMPLOYEES, AGENTS, PARTNERS, SUPPLIERS OR CONTENT METAMAPS, BE LIABLE UNDER CONTRACT, TORT, STRICT LIABILITY, NEGLIGENCE OR ANY OTHER LEGAL OR EQUITABLE THEORY WITH RESPECT TO THE SUBJECT MATTER OF THIS AGREEMENT (A) FOR ANY SPECIAL, INDIRECT, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES OF ANY KIND WHATSOEVER, (INCLUDING, WITHOUT LIMITATION, FOR LOST PROFITS OR LOSS OF DATA) EVEN IF FORESEEABLE, OR (B) FOR ANY DIRECT DAMAGES IN EXCESS OF (IN THE AGGREGATE) THE FEES PAID (PLUS PAYABLE) BY CUSTOMER TO METAMAP HEREUNDER IN THE TWELVE (12) MONTHS PRIOR TO THE EVENT GIVING RISE TO A CLAIM HEREUNDER (“STANDARD CAP”). IN ADDITION, METAMAP WILL NOT BE LIABLE FOR THE COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES. NOTWITHSTANDING THE FOREGOING, WITH RESPECT TO ANY BREACH OF METAMAP’S INFORMATION SECURITY OBLIGATIONS HEREUNDER, THE STANDARD CAP IS HEREBY DOUBLED. METAMAP WILL HAVE NO LIABILITY WITH RESPECT TO CUSTOMER’S DECISIONS OR RELIANCE ON ANY RESPONSE DATA DERIVED FROM THE SERVICES.
9. CONFIDENTIALITY. As the receiving party, each party will (a) use reasonable measures to hold in confidence and not disclose Confidential Information to third parties except as permitted in this Agreement and (b) only use Confidential Information to fulfill its obligations and exercise its rights in this Agreement. The receiving party may disclose Confidential Information to its employees, agents, contractors and other representatives having a legitimate need to know, provided the receiving party remains responsible for the compliance of such representatives with this Section 9 and such representatives of the receiving party are bound to confidentiality and non-use obligations no less protective than this Section 9. These confidentiality and non-use obligations do not apply to information that the receiving party can document (i) is or becomes publicly available through no fault of the receiving party, (ii) it rightfully knew or possessed prior to receipt under this Agreement, (iii) it rightfully received from a third party without breach of confidentiality obligations or (iv) it independently developed without using the disclosing party’s Confidential Information. The receiving party may disclose Confidential Information if required by law, subpoena or court order, provided (if permitted by law) the receiving party notifies the disclosing party in advance and cooperates in any effort to obtain confidential treatment. In addition, either party may disclose this Agreement and its terms to its advisors and potential investors and acquirers (subject to reasonable confidentiality obligations). The Parties acknowledge that unauthorized use or disclosure of Confidential Information may cause substantial harm for which damages alone are an insufficient remedy. Each party may seek appropriate equitable relief, in addition to other available remedies, for breach or threatened breach of this Section. Each Party’s obligations with respect to Confidential Information it receives under this Agreement will survive termination of this Agreement for a period of five (5) years from receipt and will be binding upon such Party’s heirs, successors, and assigns.
10. GENERAL TERMS.
10.1 Assignment. Neither party may assign or transfer this Agreement without the prior consent of the other party, except that either party may assign or transfer this Agreement in connection with a merger, reorganization, acquisition or other transfer of all or substantially all its assets or voting securities. Any non-permitted assignment or transfer is void. This Agreement will bind and inure to the benefit of each party’s permitted successors and assigns.
10.2 Governing Law, Jurisdiction and Venue. This Agreement is governed by the laws of the State of California and the United States without regard to its conflicts of laws provisions and without regard to the United Nations Convention on the International Sale of Goods. Any dispute or claim arising out of or in connection with this Agreement or the performance, breach or termination thereof, shall be finally settled by arbitration in accordance with the rules and procedures of the Judicial Arbitration and Mediation Service. The arbitration shall be conducted in San Francisco, California pursuant to JAMS Streamlined Arbitration Rules and Procedures. Each party may be represented by counsel in any such arbitration. During the course of any arbitration hereunder, each Party will (i) bear its own costs and attorneys’ fees and any expert witness fees, and (ii) share equally the arbitrators’ fees and expenses, provided that the arbitrators shall award to the prevailing party all reasonable attorneys’ fees, expert witness fees, arbitrators’ fees and all other expenses resulting directly or indirectly from such arbitration. Any arbitration under this Agreement shall be confidential, and either party may request that the arbitrators issue appropriate protective orders to safeguard each party’s confidential information. Any award rendered by the arbitrators shall be final, and judgment may be entered upon it in any court having jurisdiction. The arbitrators shall have the authority to award temporary, preliminary and permanent injunctive and equitable relief in the arbitration (in addition to any monetary relief); provided, however, that either party may opt at any time to seek equitable relief, including emergency injunctive relief, at any time, from a court of competent jurisdiction, and the other party shall not contest such court as a proper form for seeking such relief.
10.3 Notices. Except as set out in this Agreement, notices and consents under this Agreement must be in writing to the address(es) set forth in an Order Form. MetaMap may also send operational and late payment notices to Customer by email to the contact information specified in an Order Form. Either party may update its contact addresses on notice.
10.4 Amendments. Any amendments, modifications or supplements to this Agreement must be in writing and signed by each party’s authorized representatives. Nonetheless, MetaMap may modify the SLA and Support Policy to reflect new features or changing practices, but the modifications will not substantially decrease MetaMap’s overall obligations during an Order Form Term.
10.5 Waivers and Severability. Waivers must be signed by the waiving party’s authorized representative and cannot be implied from conduct. If any provision of this Agreement is held invalid, illegal or unenforceable, it will be limited to the minimum extent necessary, so the rest of this Agreement remains in effect.
10.6 Force Majeure. Neither party is liable for any delay or failure to perform any obligation under this Agreement (except for a failure to pay fees) due to events beyond its reasonable control, such as a strike, blockade, war, act of terrorism, riot, interruption of infrastructure services provided by third party providers, internet or utility service failures, epidemic, pandemic, refusal of government license or natural disaster.
10.7 Subcontractors. MetaMap may use subcontractors and permit them to exercise MetaMap’s rights and perform MetaMap’s obligations under this Agreement, provided that MetaMap remains responsible for their compliance with this Agreement.
10.8 Independent Contractors. The parties are independent contractors, not agents, partners or joint venturers.
10.9 Export. Customer acknowledges that the Software is subject to export restrictions by the United States government and import restrictions by certain foreign governments. Customer will not and will not allow any third party to remove or export from the United States or Mexico or allow the export or re-export of any part of the Software or any direct product thereof (a) into (or to a national or resident of) any embargoed or terrorist-supporting country, (b) to anyone on the U.S. Commerce Department’s Table of Denial Orders or U.S. Treasury Department’s list of Specially Designated Nationals, (c) to any country to which such export or re-export is restricted or prohibited, or as to which the United States government or any agency thereof requires an export license or other governmental approval at the time of export or re-export without first obtaining such license or approval or (d) otherwise in violation of any export or import restrictions, laws or regulations of any United States or foreign agency or authority. Customer agrees to the foregoing and warrants that it is not located in, under the control of or a national or resident of any such prohibited country or on any such prohibited party list. The Software is further restricted from being used for the design or development of nuclear, chemical or biological weapons or missile technology, or for terrorist activity, without the prior permission of the United States government.
10.10 Open Source. The Software may incorporate third-party open-source software (“OSS”), as listed in the Documentation or by MetaMap upon request. To the extent required by an OSS license, that license will apply to the OSS on a stand-alone basis instead of this Agreement.
10.11 Government End-Users. Elements of the Software are commercial computer software. If the user or licensee of the Software is an agency, department, or other entity of the United States Government, the use, duplication, reproduction, release, modification, disclosure, or transfer of the Software or any related documentation of any kind, including technical data and manuals, is restricted by the terms of this Agreement in accordance with Federal Acquisition Regulation 12.212 for civilian purposes and Defense Federal Acquisition Regulation Supplement 227.7202 for military purposes. The Software was developed fully at private expense. All other use is prohibited.
10.12 Publicity. Either party may publicly announce the existence of this Agreement without the other party’s prior written consent or as required by applicable laws. MetaMap may include Customer and its logos and trademarks (“Trademarks”) in MetaMap’s customer lists and promotional materials in all media and means but will cease this use at Customer’s written request.
10.13 Conflicts. Order Forms will be subject to the Agreement and in the event of conflict between an Order Form and this Agreement, the terms and conditions set forth in an Order Form will prevail with respect to the terms and conditions set forth therein. The terms in any Customer purchase order or business form will not amend or modify this Agreement and are expressly rejected by MetaMap; any of these Customer documents are for administrative purposes only and have no legal effect.
10.14 Entire Agreement. This Agreement is the parties’ entire agreement regarding its subject matter and supersedes any prior or contemporaneous agreements regarding its subject matter. In this Agreement, headings are for convenience only and “including” and similar terms are to be construed as being without limitation. This Agreement may be executed in counterparts (including electronic copies and PDFs), each of which is deemed an original and which together form one and the same agreement.
10.15 Authorized signatories. Each party warrants and represents that its respective signatories whose signatures appear in the applicable Order Form are, on the date of signature of such document, duly authorized to execute this Agreement.