Test Kit Personal Information Processing Agreement

Last Updated August 26, 2022

This Personal Information Processing Agreement (the “Processing Agreement”), is by and between [insert customer name] (“Customer”) and ImageMoverMD, Inc., a Delaware corporation (“ImageMover”), maintaining an address at 2858 University Ave #265, Madison, WI 53705 (ImageMover and Customer shall each be referred to herein individually as a “Party” and collectively, as the “Parties”).  This Processing Agreement shall be incorporated into and made a part of the Test Kit End User Software License Agreement, including the Order Form, the “Underlying Agreement”) between the Parties. 

WHEREAS, the Underlying Agreement requires ImageMover to Process Personal Information on behalf of Customer as part of its Services; 

WHEREAS, in providing its Services to Customer who is a Health Information Custodian, ImageMover may act as an Information Manager with respect to Personal Health Information, or as a Health Information Network Provider when facilitating the electronic transmission of Personal Health Information between two or more Health Information Custodians; and

WHEREAS, this Processing Agreement sets out additional terms, requirements and conditions for collecting, Processing, disclosing, transferring or storing Personal Information when ImageMover provides its Service to Customer.

NOW, THEREFORE, in consideration of the mutual covenants and agreements hereinafter set forth and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties agree as follows:

1. Definitions and Interpretation

1.1 The following definitions and rules of interpretation apply in this Processing Agreement: 

“Authorized User” means each of the individuals authorized to use the Licensed Software pursuant to the Underlying Agreement, specifically individuals that directly or indirectly utilize or access the Licensed Software as provided by Customer.

“Business Purpose” means the Service provided by ImageMover to Customer.

“Customer Data” means Personal Information, other information, data and other content, in any form or medium, that is collected or received directly by Customer or an Authorized User by or through the Licensed Software. Customer Data does not include Transaction Data or De-identified 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.  

“Data Subject” means an individual who is the subject of Personal Information.

“De-identified Data” means any information, including Customer Data or data derived from Customer Data, from which Personal Information has been removed such that it cannot reasonably be used, alone or in combination with other information, to identify, describe, or be linked to a particular individual or Customer from where the data was derived and complies with any requirements for de-identification included in Privacy Laws.  Any De-identified Data within ImageMover’s control will not be used by ImageMover, either alone or in combination with other information, to identify a specific individual to whom the information belongs.  As between ImageMover and Customer, all right, title, and interest in De-identified Data, and all intellectual property rights therein, belong to and are retained solely by ImageMover. 

“Health Information Custodian” or “HIC” means a “health information custodian” or “custodian” as defined in applicable Privacy Laws.

“Health Information Network Provider” has the same meaning as set out in Ontario Regulation 329/04 to the Personal Health Information Protection Act, 2004 (Ontario).

“ImageMover Systems” means the information technology infrastructure used by or on behalf of ImageMover in performing the Services, including all computers, software, hardware, databases, electronic systems (including database management systems) and networks, whether operated by ImageMover or through the use of third-party services.  

“Information Manager” is as defined in the applicable Privacy Laws and includes an individual or organization that, on behalf of a Health Information Custodian, Processes, stores retrieves, archives, or disposes of Personal Health Information, de-identifies or otherwise transforms Personal Health Information, or provides information management or information technology services. 

“Law” means any statute, law, ordinance, regulation, rule, code, order, constitution, treaty, common law, judgment, decree or other requirement of any federal, state, province/territory, local or foreign government or political subdivision thereof, or any arbitrator, court or tribunal of competent jurisdiction.

“Licensed Software” or “Software” means the software programs licensed to Customer under the Underlying Agreement.

“Order Form” means the order form filled out and submitted by or on behalf of Customer with either ImageMover or a reseller authorized by ImageMover, for Customer’s purchase of the license for the Software granted under the Underlying Agreement.

“Person” means an individual, corporation, partnership, joint venture, limited liability entity, governmental authority, unincorporated organization, trust, association or other entity.

“Personal Information” means any information, including Personal Health Information, that ImageMover Processes on behalf of Customer that relates to an individual person, and identifies or can be reasonably used to identify the particular individual alone or when combined with other personal or identifying information that is or can be associated with that specific individual. Personal Information does not include De-identified Data.

“Personal Health Information” is as defined in the applicable Privacy Laws and includes any identifying information about an individual in oral or recorded form that relates to the individual’s physical or mental health, health history of the individual’s family, the provision of health care including the identification of a person as a provider of health care to the individual; payments or eligibility for health care, or eligibility for coverage for healthcare, in respect of the individual; the donation by the individual of any body part or bodily substance of the individual or is derived from the testing or examination of any such body part or bodily substance; an individual’s health card number; or information that identifies the individual’s substitute decision maker.

“Process” or “Processing” or “Processed” means any Customer Data entered by the Customer or an Authorized User using the Licensed Software and converted as part of a deliverable feature of the Licensed Software and either transmitted by ImageMover Systems to the Customer Systems or hosted by ImageMover as part of the Hosting Services.

“Privacy Laws” means all applicable federal and provincial/territorial Laws relating to the Processing, protection or privacy of the Personal Information, including, where applicable, the guidance and codes of practice issued by regulatory bodies in any relevant jurisdiction. This includes, but is not limited to, the Personal Information Protection and Electronic Documents Act (Canada), the Personal Health Information Protection Act 2004 (Ontario), the Personal Health Information Privacy and Access Act (New Brunswick), Personal Health Information Act (Newfoundland and Labrador), the Act Respecting the Protection of Personal Information in the Private Sector (Quebec), and other applicable provincial and territorial privacy Laws, as amended, repealed, consolidated or replaced from time to time.

“Records” has the meaning set out in Section 12.1 of this Processing Agreement.

“Security Breach” means the loss or unauthorized access, use, disclosure or acquisition of Personal Information.

“Service(s)” means any Processing done by the ImageMover Systems including the Processing of a single test result using the Software from each Test Kit unit purchased by Customer, each a “Service Unit”.

“Term” has the meaning set out in Section 10.1 of this Processing Agreement.

“Test Kit” means the diagnostic Test Kit purchased by Customer in conjunction with the Software.

“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 Customer Data, and the identity of the Customer and/or Authorized User that submitted the Customer Data for Processing.

All other capitalized terms not defined herein have the same meaning as defined in the Underlying Agreement.

1.2 This Processing Agreement is subject to the terms and conditions of the Underlying Agreement. Interpretations and defined terms in the Underlying Agreement apply to the interpretation of this Processing Agreement.  

1.3 Any ambiguity in this Processing Agreement shall be resolved in favor of a meaning that permits Customer and ImageMover to comply with the Privacy Laws.  The provisions of this Processing Agreement shall prevail over any provisions in the Underlying Agreement between the Parties that may conflict or appear inconsistent with any provision of this Processing Agreement.  

1.4 A reference in this Processing Agreement to a provision in the Privacy Laws means the provision in effect or as amended and for which compliance is required at the time.

1.5 A reference to writing or written includes email.

1.6 The terms “includes” or any variation thereof shall be interpreted as meaning “not limited to”.

1.7 The division of this Processing Agreement into paragraphs or other subdivisions and the insertion of headings are for convenience of reference only and do not affect the construction or interpretation of this agreement.

2. Customer’s Obligations

2.1 Customer retains control of the Personal Information and remains solely responsible for its compliance obligations under the applicable Privacy Laws, including providing any required notices and obtaining any required consents from Data Subjects or other Persons with respect to the Personal Information Processed by ImageMover or shared with other Persons via the Service in accordance with this Processing Agreement, and for the Processing instructions it gives to ImageMover. 

2.2 Customer will use reasonable efforts to ensure that the Personal Information of its Data Subjects is accurate, complete and up-to-date or set out any limitations on the accuracy, completeness and currency of such Personal Information.

2.3 Customer will notify ImageMover of any changes in, or revocation of, the permission by a Data Subject to use or disclose his or her Personal Information, to the extent that such changes may affect ImageMover’s Processing of such Personal Information in accordance with this Processing Agreement.

2.4 Customer will not transfer Personal Information to ImageMover or access the Personal Information of another HIC from the Service, if and to the extent that it is aware that the applicable Data Subject has expressly withheld or withdrawn consent to such collection, use or disclosure of his/her Personal Information. 

2.5 Customer will notify ImageMover of any data localization requirement or restriction on the transfer of Personal Information to the extent that such requirement or restriction may affect ImageMover’s Processing of such Personal Information in accordance with this Processing Agreement. 

2.6 Customer and its Authorized Users will access, collect, use and disclose the Personal Information of other HICs solely for the purpose of fulfilling public health reporting obligations via the Service and shall adhere to the Privacy Laws with respect to such Personal Information.

2.7 Customer will ensure that its Authorized Users are aware of and adhere to the terms and conditions of this Processing Agreement.

2.8 Customer will control and terminate the use by its Authorized Users of Personal Information via the Service, including by restricting access of Authorized Users to the Licensed Software and Services, if Customer has revoked the authorization of such individual or such individual’s relationship with Customer has been suspended or terminated.

2.9 Customer will not instruct ImageMover to Process, collect, use or disclose Personal Information in any manner that would not be permissible under applicable Privacy Laws if done by Customer.

3. ImageMover’s Obligations

3.1 ImageMover will only Process the Personal Information to the extent, and in such a manner as is necessary for the Business Purpose in accordance with Customer’s instructions. ImageMover will not Process the Personal Information for any other purpose or in a way that does not comply with this Processing Agreement or the Privacy Laws. 

3.2 When acting in the capacity of an Information Manager or Health Information Network Provider, ImageMover will provide the services and adhere to the security safeguards in place to protect against unauthorized use and disclosure, and to protect the integrity of the information, as described in plain language in Schedule A hereto, which Customer may share with individuals to whom the Personal Health Information relates and which ImageMover makes available to the public.

3.3 ImageMover will promptly comply with any Customer request or instruction requiring ImageMover to amend, transfer or delete the Personal Information, or to stop, mitigate or remedy any unauthorized Processing.

3.4 ImageMover will maintain the confidentiality of all Personal Information and will not disclose Personal Information to any Person except Customer, unless Customer or this Processing Agreement specifically authorizes the disclosure in compliance with Privacy Laws, or as otherwise required by Law. If a Law requires ImageMover to Process or disclose Personal Information, ImageMover will first inform Customer of the legal requirement and give Customer an opportunity to object or challenge the requirement, unless the Law prohibits such notice.

3.5 ImageMover will reasonably assist Customer with meeting Customer’s compliance obligations under the Privacy Laws, considering the nature of ImageMover’s Processing and the information available to ImageMover.

3.6 Customer acknowledges that ImageMover is under no duty to investigate the completeness, accuracy or sufficiency of any specific Customer instructions or the Personal Information other than as required under the Privacy Laws.

3.7 ImageMover will be responsible for compliance with its obligations under the applicable Privacy Laws.

4. ImageMover’s Employees

4.1 ImageMover will limit Personal Information access to (a) those employees, contractors or other persons acting on its behalf who require Personal Information access to meet ImageMover’s obligations under this Processing Agreement and the Underlying Agreement, and (b) the part or parts of the Personal Information that such employees, contractors or other persons strictly require for the performance of their duties.

4.2 ImageMover will ensure that all employees, contractors or any other persons acting on its behalf are (a) informed of the Personal Information’s confidential nature and use restrictions, and (b) aware of, and agree to comply with, ImageMover’s duties and their personal duties and obligations under the Privacy Laws and this Processing Agreement.

5. Security

5.1 ImageMover will at all times implement appropriate administrative, technical and physical measures designed to safeguard Personal Information against unauthorized or unlawful Processing, access, copying, modification, storage, reproduction, display or distribution, and against accidental loss, destruction or damage, taking into account the degree of sensitivity of the Personal Information to be protected, as described further in Schedule A. Customer represents and warrants that Customer has assessed the administrative, technical and physical measures specified in Schedule A and determined such measures are sufficient to provide the requisite protections for the Personal Information Processed by ImageMover under or in connection with this Processing Agreement.

5.2 ImageMover will take reasonable precautions to preserve the integrity of any Personal Information it Processes and to prevent any corruption or loss of the Personal Information, including establishing effective back-up and data restoration procedures in compliance with Privacy Laws.

6.   Security Breaches and Personal Information Loss

6.1 ImageMover will promptly notify Customer if any Personal Information is lost or destroyed or becomes damaged, corrupted or unusable.

6.2 When acting in the capacity of an Information Manager or Health Information Network ImageMover, ImageMover will notify every applicable Health Information Custodian at the first reasonable opportunity if (a) ImageMover accessed, used, disclosed or disposed of Personal Health Information other than in accordance with this Processing Agreement, or (b) an unauthorized person accessed the Personal Health Information.

6.3 Each Party will immediately notify the other Party if it becomes aware of any unauthorized or unlawful Processing of the Personal Information or any Security Breach via the Service.

6.4 Immediately following any unauthorized or unlawful Processing of Personal Information or Security Breach, the Parties will co-ordinate with each other to investigate the matter, each at their own cost.

6.5 ImageMover will not inform any third party of any Security Breach without first obtaining Customer’s prior written consent, except when Privacy Laws or other Laws require such notice. 

6.6 ImageMover will maintain records of any Security Breach in accordance with Privacy Laws.

7.  Cross-Border Personal Information Transfers 

7.1 Customer acknowledges that Licensed Software is hosted on Amazon Web Services and stores Personal Information in a U.S.-based cloud service and that such arrangement is a fundamental condition of this Agreement. 

7.2 Customer is responsible for providing the appropriate notices to, or obtaining the requisite consents from, Data Subjects as required under the Privacy Laws for the transfer of Personal Information outside the jurisdiction in which it was collected, including, without limitation, obtaining consent for ImageMover to transfer such Personal Information to a subsequent third party where such transfer is necessary to provide the Services. 

7.3 If Privacy Laws restrict the cross-border or trans-border transfer of Personal Information, Customer shall only transfer Personal Information to ImageMover if (a) Customer has obtained valid consent under Privacy Laws from the Data Subject to such transfer, or (b) the transfer otherwise complies with the Privacy Laws.

7.4 Customer acknowledges and agrees that ImageMover is entering into this Processing Agreement in fundamental reliance on Customer’s compliance with Sections 7.2 and 7.3 above and failure to adhere to such conditions is a fundamental breach of this Processing Agreement, which may result in ImageMover suspending Customer’s ability to use the Service until Customer is able to satisfy ImageMover that it is in compliance with Sections 7.2 and 7.3 of this Processing Agreement. 

8.   Subcontractors

8.1 ImageMover may only authorize a third party subcontractor to Process the Personal Information if (a) ImageMover enters into a written agreement with the subcontractor that contains terms substantially the same as those set out in this Processing Agreement, and (b) ImageMover maintains control over all Personal Information it entrusts to the subcontractor.

8.2 ImageMover is deemed to control any Personal Information that is controlled by or in the possession of its subcontractors.  Where the subcontractor fails to fulfill its obligations under such written agreement, ImageMover remains fully liable to Customer for the subcontractor’s performance of its agreement obligations.

8.3 Upon Customer’s written request, ImageMover will audit a subcontractor’s compliance with its obligations regarding Customer’s Personal Information and provide Customer with the audit results.

9.  Complaints and Data-Subject Requests

9.1 ImageMover will notify Customer immediately if it receives any complaint, notice, or communication that directly or indirectly relates to its Processing of Personal Information or to either Party’s compliance with the Privacy Laws.

9.2 ImageMover will notify Customer within five (5) working days if it receives a request from a Data Subject for access to his/her Personal Information or a request to correct, delete or withdraw his/her consent from any use by Customer or ImageMover of same. 

9.3 ImageMover will reasonably cooperate with Customer in responding to any complaint, notice, communication or Data Subject request.

9.4 ImageMover will not disclose the Personal Information to any Data Subject or to a third party unless the disclosure is either at Customer’s request or instruction, permitted by this Processing Agreement, or is otherwise required by the Privacy Laws or other applicable Laws, provided Customer has been first informed of such requirement.

10. Term and Termination

10.1 This Processing Agreement will remain in full force and effect for as long as the later of the following (a) the Underlying Agreement remains in effect as between the Parties, or (b) ImageMover retains any Personal Information on behalf of Customer in its possession or control (the “Term”).

10.2 Any provision of this Processing Agreement that expressly or by implication should come into or continue in force on or after termination of the Underlying Agreement to protect Personal Information will remain in full force and effect.

10.3 If ImageMover fails to comply with the terms of this Processing Agreement, Customer may terminate any part of the Underlying Agreement authorizing the Processing of Personal Information effective immediately upon written notice to ImageMover.

10.4 If a change in any Privacy and Data Protection Requirement prevents either Party from fulfilling all or part of its Underlying Agreement obligations, the Parties will suspend the Processing of Personal Information until that Processing complies with the new requirements. If the Parties are unable to bring the Personal Information Processing into compliance with the Privacy and Data Protection Requirement within thirty (30) days, either Party may terminate the Underlying Agreement upon written notice to the other Party without penalty.

10.5 Either Party may terminate its participation in this Processing Agreement for convenience, upon thirty (30) days’ prior written notice to the other Party.  Termination of this Processing Agreement automatically results in termination of the Underlying Agreement as between the Parties.

11.  Data Return and Destruction

11.1  At Customer’s request, ImageMover will provide Customer with a copy of, or access to, all or part of Customer’s Personal Information in its possession or control in the format reasonably specified by Customer.

11.2 On termination of the Underlying Agreement between the Parties for any reason or expiration of its term, ImageMover will securely destroy or, if directed in writing by Customer, return and not retain, all Personal Information related to this Processing Agreement in its possession or control. 

11.3  If any applicable Law or government or regulatory body requires ImageMover to retain any documents or materials that ImageMover would otherwise be required to return or destroy, ImageMover will notify Customer in writing of that retention requirement, giving details of the documents or materials that it must retain, the legal basis for retention and establishing a specific timeline for destruction once the retention requirement ends. ImageMover may only use such retained Personal Information for the required retention reason or audit purposes. 

11.4  Upon Customer’s written request, ImageMover will certify in writing that it has destroyed the Personal Information within fifteen (15) days after it completes the destruction. 

12.  Records

12.1 ImageMover will keep detailed, accurate and up-to-date records regarding any Personal Information Processing it carries out for Customer, including the access, control and security of the Personal Information, approved subcontractors and affiliates, the Processing purposes and any other records required by the applicable Privacy Laws (the “Records”).  ImageMover will ensure that the Records are sufficient to enable Customer to verify ImageMover’s compliance with its obligations under this Processing Agreement.

12.2   With respect to its services as a Health Information Network Provider, ImageMover will to the extent reasonably practical, and in a manner that is reasonably practical, keep and make available to Customer and each applicable customer who is a Health Information Custodian, on the request of such customer, an electronic record of (a) all accesses to all or part of the Personal Health Information associated with Customer being held in equipment controlled by ImageMover, which record will identify the person who accessed the information and the date and time of the access, and (b) all transfers of all or part of the information associated with Customer by means of equipment controlled by ImageMover, which record will identify the person who transferred the information and the person or address to whom it was sent, and the date and time it was sent.

12.3   If Customer is a Health Information Custodian in Ontario, ImageMover will maintain an electronic audit log that enables Customer to meet its requirements under the Personal Health Information Protection Act 2004 (Ontario) or the regulations thereunder.

12.4    If Customer is a Health Information Custodian in New Brunswick, ImageMover will maintain a record of all applicable Security Breaches and the corrective procedures taken to diminish the likelihood of future Security Breaches. 

13.  Audit

13.1  ImageMover will permit Customer and its third-party representatives to audit ImageMover’s compliance with its obligations under this Processing Agreement, including with respect to the electronic audit log described in Section 12.3, upon at least thirty (30) days’ written notice, during the Term, or for so long as may be required under applicable Privacy Laws. ImageMover will provide Customer and its third-party representatives with all necessary assistance to conduct such audits in compliance with Privacy Laws or other Laws. 

13.2  The notice requirements of Customer in Section 13.1 will not apply if Customer reasonably believes that a Security Breach occurred or is occurring, or ImageMover is in breach of any of its obligations under this Processing Agreement or any Privacy Laws.

13.3 If a Security Breach occurs or is occurring, or ImageMover becomes aware of a breach of any of its obligations under this Processing Agreement or any Privacy Laws, ImageMover will (a) promptly conduct its own audit to determine the cause, (b) produce a written report that includes detailed plans to remedy any deficiencies identified by the audit, (c) provide Customer with a copy of the written audit report, upon Customer’s written request, and (d) remedy any deficiencies identified by the audit within thirty (30) days.

13.4  At least once per year, ImageMover will conduct site audits of its Personal Information Processing practices and the information technology and information security controls for all facilities and systems used in complying with its obligations under this Processing Agreement.

13.5 Upon Customer’s written request, ImageMover will perform, and provide to Customer a written copy of the results of, an assessment of the Services provided to Customer, with respect to (a) threats, vulnerabilities and risks to the security and integrity of the Personal Information, and (b) how the services may affect the privacy of Data Subjects.

13.6  Due to their sensitive nature, copies of any audit reports and results conducted by ImageMover will be provided to Customer’s senior management and will be treated by Customer as ImageMover’s confidential information, which shall not be disclosed to any person without ImageMover’s prior written approval.

13.7  ImageMover will promptly address any issues, concerns or exceptions noted in the audit reports with the development and implementation of a corrective action plan by ImageMover’s management. 

14.  Representations and Warranties

14.1  ImageMover represents and warrants that it and anyone acting on its behalf will Process the Personal Information in compliance with both the terms of this Processing Agreement and all applicable Privacy Laws.

14.2  Customer represents and warrants that ImageMover’s expected Processing and use of the Personal Information for the Business Purpose and as specifically instructed by Customer under this Processing Agreement will comply with all Privacy Laws.

14.3  Customer represents and warrants that it and its Authorized Users will access, use and disclose Personal Information received from other Persons via the Service in compliance with both the terms of this Processing Agreement and all applicable Privacy Laws.

14.4   Each of the Parties represent and warrant that the individuals executing this Processing Agreement on its behalf are authorized to sign on its behalf and to bind it to the terms and conditions of this Processing Agreement.

15.   Indemnification

15.1   ImageMover agrees to indemnify, keep indemnified and defend at its own expense Customer against all costs, claims, damages or expenses incurred by Customer or for which Customer may become liable due to (a) any failure by ImageMover or its employees, subcontractors or agents to comply with any of its obligations under this Processing Agreement or applicable Privacy Laws, and (b) any breach of its representations warranties, covenants and other obligations under this Processing Agreement.

15.2   Customer agrees to indemnify, keep indemnified and defend at its own expense ImageMover against all costs, claims, damages or expenses incurred by ImageMover or for which ImageMover may become liable due to any breach of its representations, warranties, covenants and other obligations under this Processing Agreement. 

16.  Insurance

16.1  During the Term, ImageMover will, at its own cost and expense, obtain and maintain insurance, in full force and effect, sufficient to cover ImageMover’s potential indemnity or reimbursement obligations. Upon Customer’s written request, ImageMover will provide Customer with copies of the certificate(s) of insurance. 

17.  Miscellaneous

17.1  Relationship of the Parties.  The relationship between the Parties is that of independent contractors. Nothing contained in this Processing 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.

17.2   Notice. Any notice required under this Processing Agreement shall be delivered in writing to ImageMover or Customer, as appropriate, and submitted to the address indicated below. Delivery shall be effective upon delivery by email.

Privacy & Security:

For ImageMover:                Jen Anderson, Regulatory and Compliance Officer regulatory@imagemovermd.com  

For Customer:               As defined in Order Form

17. Entire Agreement.  This Processing Agreement together with any Schedules attached hereto or other documents incorporated herein by reference, constitutes the sole and entire agreement of the parties with respect to the subject matter of this Processing Agreement and supersedes all prior and contemporaneous understandings, agreements, representations and warranties, both written and oral, with respect to such subject matter. 

17.4   Assignment.  Neither Party shall assign this Processing Agreement in whole or in part without the prior written consent of the other Party. This Processing Agreement is binding upon and inures to the benefit of the Parties hereto and their respective permitted successors and assigns.

17.5   Amendment and Modification; Waiver. The Parties agree to take such action as is necessary to amend this Processing Agreement from time to time as is necessary for compliance with the requirements of applicable Privacy Laws. No amendment to or modification of this Processing 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 Processing Agreement, no failure to exercise, or delay in exercising, any rights, remedy, power or privilege arising from this Processing 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.

17.6   Severability. If any provision of this Processing Agreement is invalid, illegal or unenforceable in any jurisdiction, such invalidity, illegality or unenforceability shall not affect any other term or provision of this Processing 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 Processing 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.

17.7 Force Majeure.  If either Party is delayed or hindered from meeting its obligations or making deliveries in accordance with this Processing Agreement due to circumstances beyond the reasonable control of that Party including without limitation, pandemics, strikes, lockouts, labour disputes, fire, explosion, act of God, war, terrorism, or threat of war or terrorism, or other similar causes, then such failure to meet obligations or make deliveries shall not be a breach of this Processing Agreement provided that Party promptly notifies the other Party of the situation. 

17.8 Counterparts.  This Processing Agreement may be executed and delivered in counterpart copies and by facsimile or human readable digital format, and such copies shall be binding on the Parties. This Processing Agreement is not binding on any Party until executed by all Parties.

17.9  Electronic Signatures and Electronic Delivery:  Each Party agrees that the electronic signatures, whether digital or encrypted, of the Parties included in this Processing Agreement are intended to authenticate this agreement and to have the same force and effect as manual signatures. Electronic signature means any electronic sound, symbol, or Process attached to or logically associated with a record and executed and adopted by a Party with the intent to sign such record, including facsimile or email electronic signatures. Delivery of an executed copy of this Processing Agreement by facsimile or electronic transmission constitutes valid and effective delivery.

17.10  Governing Law; Submission to Jurisdiction. This Processing 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 on the Customer Agreement Form shall be effective service of process for any suit, action or other proceeding brought in any such court. 

17.11   Language of Agreement:  The Parties have agreed that this contract and all related documents be drafted in English. Les parties aux présentes ont demandé et convenu que le présent contrat et tout document y afférent soient rédigés en anglaise.