End User Software License Agreement
This End User License Agreement, including the Order Form which by this reference is incorporated herein (this "Agreement"), is a binding agreement between ImageMover(MD), Inc., a Delaware corporation (“ImageMover(MD)”), maintaining an address at 2858 University Ave, Suite 265, Madison, Wisconsin 53705 and the person or entity identified on the Customer Order Form as the licensee of the Software ("Customer").
IMAGEMOVER(MD) PROVIDES THE SOFTWARE SOLELY ON THE TERMS AND CONDITIONS SET FORTH IN THIS AGREEMENT AND ON THE CONDITION THAT CUSTOMER ACCEPTS AND COMPLIES WITH THEM. BY PURCHASING THE SOFTWARE FROM THE RESELLER YOU (A) ACCEPT THIS AGREEMENT AND AGREE THAT CUSTOMER IS LEGALLY BOUND BY ITS TERMS; AND (B) REPRESENT AND WARRANT THAT: YOU HAVE THE RIGHT, POWER AND AUTHORITY TO ENTER INTO THIS AGREEMENT ON BEHALF OF CUSTOMER AND BIND CUSTOMER TO ITS TERMS. IF CUSTOMER DOES NOT AGREE TO THE TERMS OF THIS AGREEMENT, IMAGEMOVER(MD) WILL NOT AND DOES NOT LICENSE THE SOFTWARE TO CUSTOMER AND YOU MUST NOT DOWNLOAD/INSTALL THE SOFTWARE OR DOCUMENTATION.
1. Definitions. The definitions of capitalized terms are set forth in this Section 1, and as elsewhere provided in this Agreement.
"Authorized User" means each of the individuals authorized to use the Licensed Software pursuant t o Section 2.1. specifically, (i) physicians, employees, or medical and professional staff of the Customer, (ii) physicians, employees, or medical and professional staff of entities which refer patients to Customer, and (iii) patients or other individuals that directly or indirectly utilize or access the Licensed Software as provided by Customer.
"Customer Data" means information, data and other content, in any form or medium, that is received directly from Customer or an Authorized User by or through the Licensed Software. Customer Data does not include Transaction Data.
"Customer Systems" means the Customer's information technology infrastructure, including computers, software, hardware, databases, electronic systems (including database management systems) and networks, whether operated directly by Customer or through the use of third-party services. Customer Systems includes the Customer’s electronic health records systems and their PACS/VNA systems or other imaging archives.
“Documentation” means all user, technical, and system administrator documentation furnished by ImageMover(MD) to Customer and/or licensees of the Licensed Software.
"Harmful Code" means any software, hardware or other technology, device or means, including any virus, worm, malware or other malicious computer code, the purpose or effect of which is to (a) permit unauthorized access to, or to destroy, disrupt, disable, distort, or otherwise harm or impede in any manner any (i) computer, software, firmware, hardware, system or network or (ii) any application or function of any of the foregoing or the security, integrity, confidentiality or use of any data Processed thereby, or (b) prevent Customer or any Authorized User from accessing or using the Services or ImageMover(MD) Systems as intended by this Agreement.
"ImageMover(MD)" has the meaning set forth in the preamble.
"ImageMover(MD) Indemnitee" has the meaning set forth in Section 9.1.
"ImageMover(MD) Personnel" means all individuals involved in the performance of Services as employees, agents or independent contractors of ImageMover(MD) or any Subcontractor.
"ImageMover(MD) Systems" means the information technology infrastructure used by or on behalf of ImageMover(MD) in performing the Services, including all computers, software, hardware, databases, electronic systems (including database management systems) and networks, whether operated directly by ImageMover(MD) or through the use of third-party services.
"Intellectual Property Rights" means any and all registered and unregistered rights granted, applied for or otherwise now or hereafter in existence under or related to any patent, copyright, trademark, trade secret, database protection or other intellectual property rights Laws, and all similar or equivalent rights or forms of protection, in any part of the world.
"Law" means any statute, law, ordinance, regulation, rule, code, order, constitution, treaty, common law, judgment, decree or other requirement of any federal, state, local or foreign government or political subdivision thereof, or any arbitrator, court or tribunal of competent jurisdiction.
“Licensed Software” means the software programs authored and developed by ImageMover(MD) and identified and described in the Order Form. The Licensed Software may be distributed in combination or aggregation with additional Open Source Components or Third Party Materials. Any use of the Open-source Components or Third Party Materials by Customer is governed by, and subject to, the terms and conditions of the applicable Open-source Component and Third Party Material license(s). On written request to ImageMover(MD), ImageMover(MD) will provide Customer with a copy of any applicable Open-source Component and Third Party Material license(s).
"Losses" means any and all losses, damages, liabilities, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs or expenses of whatever kind, including reasonable attorneys' fees and the costs of enforcing any right to indemnification hereunder and the cost of pursuing any insurance provider.
"Open-Source Components" means any software component that is subject to any open-source copyright license agreement, including any GNU General Public License or GNU Library or Lesser Public License, or other obligation, restriction or license agreement that substantially conforms to the open source definition as prescribed by the Open Source Initiative or otherwise may require disclosure or licensing to any third party of any source code with which such software component is used or compiled.
"Order Form" means the order form filled out and submitted by or on behalf of Customer, for Customer's purchase of the license for the Software granted under this Agreement.
"Person" means an individual, corporation, partnership, joint venture, limited liability entity, governmental authority, unincorporated organization, trust, association or other entity.
“Process” or “Processing” or “Processed” means any Customer Data entered by the Customer or an Authorized User using the Licensed Software (including patient photos or videos taken using the Licensed Software) and converted and transmitted by ImageMover(MD) Systems to the Customer Systems.
"Scheduled Downtime" means time where ImageMover(MD) Systems will be unable to Process data provided by the Licensed Software. ImageMover(MD) will give Customer at least twenty-four (24) hours prior notice of all scheduled outages of the Services.
“Services” means any Processing done by ImageMover(MD) Systems.
"Subcontractor" has the meaning set forth in Section 2.8.
“Support and Maintenance” has the meaning set forth in Section 3.
"Term" has the meaning set forth in Section 7.1.
"Third Party Materials" means materials and information, in any form or medium, including any software, documents, data, content, specifications, products, equipment or components of or relating to the Licensed Software or Services that are not proprietary to ImageMover(MD).
“Transaction Data” means data collected related to the Processing of the Customer Data, but not including the Customer Data. Transaction Data includes, the date and time of the Processing of the Data, the identity of the Customer and/or Authorized User that submitted the Customer Data for Processing, and any data related to usage and system health of the Licensed Software.
“Updates” means any and all bug fixes, security patches, or revisions of the Licensed Software as may be released generally by ImageMover(MD) from time to time. New features or new functionality of the Licensed Software are considered “Upgrades” and are not considered Updates.
2. Licensed Software and Services.
2.1 License Grant. Subject to the terms and conditions of this Agreement, and payment of all applicable license fees under the Order Form, ImageMover(MD) grants to Customer and it’s Authorized Users a limited, nonexclusive, nontransferable, license (“License”) to use the Licensed Software, together with the Documentation, during the Term, solely for the internal purposes of the Customer.
2.2 Reservation of Rights. Nothing in this Agreement grants any right, title or interest in or to (including any license under) any Intellectual Property Rights in or relating to, the Licensed Software or Third Party Materials, whether expressly, by implication, estoppel or otherwise. All right, title and interest in and to the Licensed Software and the Third Party Materials are and will remain with ImageMover(MD) and the respective rights holders in the Third Party Materials.
2.3 Restrictions. Except as this Agreement expressly permits, Customer shall not, and shall not permit any other Person to: copy the Licensed Software, in whole or in part other than for archival or backup purposes; modify, correct, adapt, translate, enhance or otherwise prepare derivative works or improvements of any Licensed Software; rent, lease, lend, sell, sublicense, assign, distribute, publish, transfer or otherwise make available the Licensed Software to any Person, including on or in connection with the internet or any time-sharing, service bureau, software as a service, cloud or other technology or service; reverse engineer, disassemble, decompile, decode or adapt the Licensed Software, or otherwise attempt to derive or gain access to the source code of the Licensed Software, in whole or in part; bypass or breach any security device or protection used for or contained in the Licensed Software or Documentation; remove, delete, efface, alter, obscure, translate, combine, supplement or otherwise change any trademarks, terms of the Documentation, warranties, disclaimers, or Intellectual Property Rights, proprietary rights or other symbols, notices, marks or serial numbers on or relating to any copy of the Licensed Software or Documentation; use the Licensed Software in any manner or for any purpose that infringes, misappropriates or otherwise violates any Intellectual Property Right or other right of any Person, or that violates any applicable Law; use the Licensed Software for purposes of: (i) benchmarking or competitive analysis of the Licensed Software; (ii) developing, using or providing a competing software product or service; or (iii) any other purpose that is to ImageMover(MD)'s detriment or commercial disadvantage; use the Licensed Software or Documentation other than for the permitted use or in any manner or for any purpose or application not expressly permitted by this Agreement; or use the Licensed Software outside the United States, its territories and possessions without ImageMover(MD)’s prior written consent.
2.4 Access to Services. ImageMover(MD) shall use commercially reasonable efforts to provide the Services 24 hours per day, seven days per week every day of the year, except for:
(a) Scheduled Downtime;
(b) Service downtime or degradation due to a Force Majeure Event;
(c) any other circumstances beyond ImageMover(MD)'s reasonable control, including Customer's or any Authorized User's use of Third Party Materials, misuse of the Licensed Software, or use of the Licensed Software other than in compliance with the express terms of this Agreement; and
(d) any suspension or termination of Customer's or any Authorized Users' access to or use of the Licensed Software as permitted by this Agreement.
2.5 Customer Systems. Customer has and will retain sole control over the operation, maintenance and management of, and all access to and use of, the Customer Systems, and sole responsibility for all access to and use of the Licensed Software by any Person by or through the Customer Systems or any other means controlled by Customer or any Authorized User, including any: (i) information, instructions or materials provided by any of them to the Licensed Software or ImageMover(MD); (ii) results obtained from any use of the Licensed Software; and (iii) conclusions, decisions or actions based on such use. ImageMover(MD) has the right to, and be provided access to, communicate with the Licensed Software on the Customer Systems to analyze and determine performance of the Licensed Software and to access Transaction Data.
2.6 Changes. ImageMover(MD) reserves the right, in its sole discretion, to make any changes to the Licensed Software or Services that it deems necessary or useful to: (a) maintain or enhance (i) the quality of the Licensed Software, (ii) the competitive strength of or market for the Licensed Software or (iii) the Services' cost efficiency or performance; or (b) to comply with applicable Law.
2.7 Subcontractors. ImageMover(MD) may from time to time in its discretion engage third parties to perform Services (each, a "Subcontractor").
3. Software Support, Maintenance and Other Services
3.1 Support and Maintenance.
(a) Subscription Term Software Licenses. For any Licensed Software provided to a Customer on a limited Term basis, ImageMover(MD) will provide Support and Maintenance Services to the Customer during such Subscription Term in accordance with the Support and Maintenance Terms found at www.imagemovermd.com/m7-sla.
(b) To enable ImageMover(MD) to provide Support and Maintenance, Customer will initiate requests for support, provide ImageMover(MD) with available information regarding any errors discovered by Customer or Users, and perform its other obligations as further set forth in Exhibit A. All Support and Maintenance solutions, including Updates, constitute Licensed Software.
3.2 Other Services. Customer may request that ImageMover(MD) provide additional services, including custom functionality development, training, or consulting. If ImageMover(MD) agrees to provide such services, the parties shall enter into one or more Statements of Work, including a description of the services; the obligations of the parties; applicable charges; and any deliverables to be provided.
4. Security and Data Responsibility.
4.1 Processing of Data. ImageMover(MD) does not store any Customer Data after Processing such Customer Data. IMAGEMOVER(MD) HAS NO OBLIGATION OR LIABILITY FOR ANY LOSS, ALTERATION, DESTRUCTION, DAMAGE, CORRUPTION OR RECOVERY OF CUSTOMER DATA. ImageMover (MD) may access Transaction Data.
4.2 Customer Control and Responsibility. Customer has and will retain sole responsibility for: (a) all Customer Data, including its content and use; (b) all information, instructions and materials provided by or on behalf of Customer or any Authorized User in connection with the Services; (c) Customer's Systems; and (d) all access to and use of the Licensed Software and Services directly or indirectly by or through the Customer Systems, with or without Customer’s knowledge or consent, including all results obtained from, and all conclusions, decisions and actions based on, such access or use.
4.3 Access and Security. Customer shall employ all physical, administrative and technical controls, screening and security procedures and other safeguards necessary to: (a) securely administer the distribution and use of the Licensed Software and protect against any unauthorized access to or use of the Licensed Software; and (b) control the content and use of Customer Data, including the uploading or other provision of Customer Data for Processing by the Licensed Software.
5. Audits
(a) Audit Procedure. ImageMover(MD) or its nominee (including its accountants and auditors) may, in ImageMover(MD)'s sole discretion and expense, and on reasonable notice, inspect and audit Customer's use of the Licensed Software under this Agreement at any time during the Term and for one (1) years following the termination or earlier expiration of this Agreement. All such audits shall be conducted during regular business hours and in a manner that does not unreasonably interfere with Customer's business operations. Customer shall make available all such books, records, equipment, information and personnel, and provide all such cooperation and assistance, as may reasonably be requested by or on behalf of ImageMover(MD)with respect to such audit. ImageMover(MD)shall only examine information directly related to Customer's use of the Licensed Software.
6. Intellectual Property Rights.
6.1 Licensed Software. All right, title and interest in and to the Licensed Software, including all Intellectual Property Rights therein, are and will remain with ImageMover(MD) and the respective rights holders in the Third-Party Materials. Customer has no right, license or authorization with respect to any of the Licensed Software (including Third-Party Materials) except as expressly set forth in Section 2.1 or the applicable third-party license, in each case subject to Section 2.4 All other rights in and to the Licensed Software (including Third-Party Materials) are expressly reserved by ImageMover(MD) and the respective third-party licensors.
6.2 Consent to Use Customer Data. Customer hereby irrevocably grants all such rights and permissions in or relating to Customer Data to ImageMover(MD), its Subcontractors and the ImageMover(MD) Personnel as are necessary or useful to perform the Services.
7. Term and Termination .
7.1 Term. This Agreement and the license granted hereunder shall remain in effect for the term set forth on the Order Form or until terminated as set forth herein (the "Term").
7.2 Termination. In addition to any other express termination right set forth elsewhere in this Agreement:
(a) ImageMover(MD) may terminate this Agreement, effective on written notice to Customer, if Customer: (i) fails to pay any amount when due under the Order Form; or (ii) breaches any of its obligations under Section 2.4 (Use Limitations and Restrictions).
(b) either party may terminate this Agreement, effective on written notice to the other party, if the other party materially breaches this Agreement, and such breach: (i) is incapable of cure; or (ii) being capable of cure, remains uncured sixty (60) days after the non-breaching party provides the breaching party with written notice of such breach.
7.3 Effect of Expiration or Termination. On the expiration or earlier termination of this Agreement:
(a) all rights, licenses and authorizations granted to licensee hereunder will immediately terminate and Customer shall:
(b) immediately cease all use of and other activities with respect to the Licensed Software and Documentation other than those described in Section 7.3(c);
(c) within fifteen (15) days deliver to ImageMover(MD), or at ImageMover(MD) written request destroy, and permanently erase from all devices and systems Customer directly or indirectly controls, the Licensed Software and the Documentation; and
(d) certify to ImageMover(MD) in a signed written instrument that it has complied with the requirements of this Section 7.3.
7.4 Surviving Terms. The provisions set forth in the following sections, and any other right or obligation of the parties in this Agreement that, by its nature, should survive termination or expiration of this Agreement, will survive any expiration or termination of this Agreement: Section 2.4, Section 7, Section 7.3, this Section 7.4, Section 8, Section 9, Section 10 and Section 12.
8. Representations and Warranties.
8.1 Customer Representations, Warranties and Covenants. Customer represents, warrants and covenants to ImageMover(MD) that Customer owns or otherwise has and will have the necessary rights and consents in and relating to the Customer Data so that, as received by ImageMover(MD) and Processed in accordance with this Agreement, they do not and will not infringe, misappropriate or otherwise violate any Intellectual Property Rights, or any privacy or other rights of any third party or violate any applicable Law.
8.2 ImageMover(MD) Warranty. ImageMover(MD) warrants that for a period of sixty (60) days from delivery of the Licensed Software, the Licensed Software will function substantially in all material respects in accordance with the Documentation. Upon written notice from Customer of a breach of this warranty during the warranty period, ImageMover(MD) shall, at its own expense, correct or replace the Licensed Software so that it conforms to this warranty.
8.3 DISCLAIMER OF WARRANTIES. EXCEPT FOR THE EXPRESS WARRANTIES SET FORTH IN SECTION 8.2, THE LICENSED SOFTWARE AND ALL SERVICES ARE PROVIDED "AS IS" AND IMAGEMOVER(MD) HEREBY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHER, AND IMAGEMOVER(MD) SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT, AND ALL WARRANTIES ARISING FROM COURSE OF DEALING, USAGE OR TRADE PRACTICE. WITHOUT LIMITING THE FOREGOING, IMAGEMOVER(MD) MAKES NO WARRANTY OF ANY KIND THAT THE LICENSED SOFTWARE OR SERVICES, OR ANY PRODUCTS OR RESULTS OF THE USE THEREOF, WILL MEET CUSTOMER'S OR ANY OTHER PERSON'S REQUIREMENTS, OPERATE WITHOUT INTERRUPTION, ACHIEVE ANY INTENDED RESULT, BE COMPATIBLE OR WORK WITH ANY SOFTWARE, SYSTEM OR OTHER SERVICES, OR BE SECURE, ACCURATE, COMPLETE, FREE OF HARMFUL CODE OR ERROR FREE. ALL THIRD-PARTY MATERIALS ARE PROVIDED "AS IS" AND ANY REPRESENTATION OR WARRANTY OF OR CONCERNING ANY THIRD PARTY MATERIALS IS STRICTLY BETWEEN CUSTOMER AND THE THIRD-PARTY OWNER OR DISTRIBUTOR OF THE THIRD-PARTY MATERIALS.
9. Indemnification.
9.1 Customer Indemnification. Customer shall indemnify, defend and hold harmless ImageMover(MD) and its Subcontractors and affiliates, and each of its and their respective officers, directors, employees, agents, successors and assigns (each, a "ImageMover(MD) Indemnitee") from and against any and all Losses incurred by such ImageMover(MD) Indemnitee in connection with any Action by a third party (other than an affiliate of an ImageMover(MD) Indemnitee) that arise out of or relate to any:
(a) Customer Data, including any Processing of Customer Data by or on behalf of ImageMover(MD) in accordance with this Agreement;
(b) any other materials or information (including any documents, data, specifications, software, content or technology) provided by or on behalf of Customer or any Authorized User, including ImageMover(MD)'s compliance with any specifications or directions provided by or on behalf of Customer or any Authorized User to the extent prepared without any contribution by ImageMover(MD);
(c) allegation of facts that, if true, would constitute Customer's breach of any of its representations, warranties, covenants or obligations under this Agreement; or
(d) negligence or more culpable act or omission (including recklessness or willful misconduct) by Customer, any Authorized User, or any third party on behalf of Customer or any Authorized User, in connection with this Agreement.
9.2 Mitigation. If the Licensed Software or Services are, or in ImageMover(MD)'s opinion are likely to be, claimed to infringe, misappropriate or otherwise violate any third-party Intellectual Property Right, or if Customer's or any Authorized User's use of the Licensed Software or Services or ImageMover(MD) Materials is enjoined or threatened to be enjoined, ImageMover(MD) may, at its option and sole cost and expense:
(a) obtain the right for Customer to continue to use the Service Services and Services as contemplated by this Agreement;
(b) modify or replace the Licensed Software and Services, in whole or in part, to seek to make the Licensed Software and Services (as so modified or replaced) non-infringing, while providing materially equivalent features and functionality, in which case such modifications or replacements will constitute the Licensed Software and Services, as applicable, under this Agreement; or
(c) by written notice to Customer, terminate this Agreement and require Customer to immediately cease any use of the Licensed Software or Services.
THIS SECTION 9.2 SETS FORTH CUSTOMER'S SOLE REMEDIES AND IMAGEMOVER(MD)'S SOLE LIABILITY AND OBLIGATION FOR ANY ACTUAL, THREATENED OR ALLEGED CLAIMS THAT THIS AGREEMENT OR ANY SUBJECT MATTER HEREOF (INCLUDING THE LICENSED SOFTWARE AND SERVICES) INFRINGES, MISAPPROPRIATES OR OTHERWISE VIOLATES ANY THIRD PARTY INTELLECTUAL PROPERTY RIGHT.
10. Limitations of Liability.
10.1EXCLUSION OF DAMAGES. IN NO EVENT WILL IMAGEMOVER(MD) OR ANY OF ITS LICENSORS, SERVICE PROVIDERS OR SUPPLIERS BE LIABLE UNDER OR IN CONNECTION WITH THIS AGREEMENT OR ITS SUBJECT MATTER UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY AND OTHERWISE, FOR ANY: (a) LOSS OF PRODUCTION, USE, BUSINESS, REVENUE OR PROFIT OR DIMINUTION IN VALUE; (b) IMPAIRMENT, INABILITY TO USE OR LOSS, INTERRUPTION OR DELAY OF THE SERVICES, (c) LOSS, DAMAGE, CORRUPTION OR RECOVERY OF DATA, OR BREACH OF DATA OR SYSTEM SECURITY, OR (d) CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, ENHANCED OR PUNITIVE DAMAGES, REGARDLESS OF WHETHER SUCH PERSONS WERE ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES OR SUCH LOSSES OR DAMAGES WERE OTHERWISE FORESEEABLE, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.
10.2CAP ON MONETARY LIABILITY. IN NO EVENT WILL THE COLLECTIVE AGGREGATE LIABILITY OF IMAGEMOVER(MD) AND ITS LICENSORS, SERVICE PROVIDERS AND SUPPLIERS UNDER OR IN CONNECTION WITH THIS AGREEMENT OR ITS SUBJECT MATTER, UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY AND OTHERWISE, EXCEED THE AGGREGATE AMOUNTS OF FEES PAID PURSUANT TO THE ORDER FORM IN THE SIX (6) MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO THE CLAIM. THE FOREGOING LIMITATION APPLIES NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.
11. Force Majeure.
11.1No Breach or Default. In no event will ImageMover(MD) be liable or responsible to Customer, or be deemed to have defaulted under or breached this Agreement, for any failure or delay in fulfilling or performing any term of this Agreement, when and to the extent such failure or delay is caused by any circumstances beyond ImageMover(MD)'s reasonable control (a "Force Majeure Event"), including acts of God, flood, fire, earthquake or explosion, war, terrorism, invasion, riot or other civil unrest, embargoes or blockades in effect on or after the date of this Agreement, national or regional emergency, strikes, labor stoppages or slowdowns or other industrial disturbances, passage of Law or any action taken by a governmental or public authority, including imposing an embargo, export or import restriction, quota or other restriction or prohibition or any complete or partial government shutdown, or national or regional shortage of adequate power or telecommunications or transportation. Either party may terminate this Agreement if a Force Majeure Event continues substantially uninterrupted for a period of thirty (30) days or more.
12. Miscellaneous.
12.1 Relationship of the Parties. The relationship between the parties is that of independent contractors. Nothing contained in this Agreement shall be construed as creating any agency, partnership, joint venture or other form of joint enterprise, employment or fiduciary relationship between the parties, and neither party shall have authority to contract for or bind the other party in any manner whatsoever.
12.2 Entire Agreement. This Agreement, together with any other documents incorporated herein by reference, constitutes the sole and entire agreement of the parties with respect to the subject matter of this Agreement and supersedes all prior and contemporaneous understandings, agreements, representations and warranties, both written and oral, with respect to such subject matter.
12.3 Assignment. Customer shall not assign or otherwise transfer any of its rights, or delegate or otherwise transfer any of its obligations or performance, under this Agreement, in each case whether voluntarily, involuntarily, by operation of law or otherwise, without ImageMover(MD)'s prior written consent. No delegation or other transfer will relieve Customer of any of its obligations or performance under this Agreement. Any purported assignment, delegation or transfer in violation of this Section 12.3 is void. This Agreement is binding upon and inures to the benefit of the parties hereto and their respective permitted successors and assigns.
12.4 Amendment and Modification; Waiver. No amendment to or modification of this Agreement is effective unless it is in writing and signed by an authorized representative of each party. No waiver by any party of any of the provisions hereof shall be effective unless explicitly set forth in writing and signed by the party so waiving. Except as otherwise set forth in this Agreement, no failure to exercise, or delay in exercising, any rights, remedy, power or privilege arising from this Agreement shall operate or be construed as a waiver thereof; nor shall any single or partial exercise of any right, remedy, power or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power or privilege.
12.5 Severability. If any provision of this Agreement is invalid, illegal or unenforceable in any jurisdiction, such invalidity, illegality or unenforceability shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction. Upon such determination that any term or other provision is invalid, illegal or unenforceable, the parties hereto shall negotiate in good faith to modify this Agreement so as to effect the original intent of the parties as closely as possible in a mutually acceptable manner in order that the transactions contemplated hereby be consummated as originally contemplated to the greatest extent possible.
12.6 Governing Law; Submission to Jurisdiction. This Agreement is governed by and construed in accordance with the internal laws of the State of Wisconsin without giving effect to any choice or conflict of law provision or rule that would require or permit the application of the laws of any jurisdiction other than those of the State of Wisconsin. Any legal suit, action or proceeding arising out of or related to this Agreement or the licenses granted hereunder shall be instituted exclusively in the federal courts of the United States or the courts of the State of Wisconsin in each case located in the city of Madison, and each party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action or proceeding. Service of process, summons, notice or other document by mail to such party's address set forth herein shall be effective service of process for any suit, action or other proceeding brought in any such court.