Test Result Capture End User Software License Agreement
This End User Software License Agreement, including the Customer Purchase Order which by this reference is incorporated herein (collectively this “Agreement”), is a binding agreement between ImageMover(MD), Inc., a Delaware corporation (“ImageMover(MD)”), maintaining an address at 2858 University Ave #265, Madison, WI 53705, and the person or entity identified on the Customer Purchase Order 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 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 to Section 2.1, specifically individuals that directly or indirectly utilize or access the Licensed Software as provided by 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 Purchase Order” means the order form filled out and submitted by or on behalf of Customer with either ImageMover(MD) or a reseller authorized by ImageMover(MD), for Customer’s purchase of the license for the Software granted under this Agreement.
“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 that is Processed in accordance with this Agreement.
“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.
“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) 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, 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 authored and developed by ImageMover(MD) and identified and described in the Customer Purchase Order. The Licensed Software may be distributed in combination or aggregation with additional Open-source Components. Any use of the Open-source Components by Customer is governed by, and subject to, the terms and conditions of the applicable Open-source Component license(s). A list of Open-source Components and associated licenses can be found at https://www.imagemovermd.com/foss.
“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.
“Person” means an individual, corporation, partnership, joint venture, limited liability entity, governmental authority, unincorporated organization, trust, association or other entity.
“Personal Information” means information 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.
“Process” or “Processing” or “Processed” means any Customer Data entered by the Customer or an Authorized User using the Licensed Software and converted and transmitted by ImageMover(MD) Systems to the Customer Systems.
“Service(s)” means the Processing of a single test result using the Software from each Test Kit unit purchased by Customer, each a “Service Unit”.
“Test Kit” means the diagnostic Test Kit for COVID-19 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.
“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 Customer Purchase Order, ImageMover(MD) grants to Customer and its Authorized Users a limited, nonexclusive, nontransferable, license (“License”) to use the Licensed Software, together with the Documentation for the Service, 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 Documentation, whether expressly, by implication, estoppel or otherwise. All right, title and interest in and to the Licensed Software and Documentation are and will remain with ImageMover(MD).
2.3 Delivery. Customer shall download the ImageMover(MD) mobile application (“ImageMover Mobile”) from the Apple App Store or the Google Play Store and shall comply with the applicable terms and conditions; other ImageMover components are provided to Customer via FTP or HTTP download, or such other means as ImageMover(MD) may in its discretion select.
2.4 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 or Canada and their respective territories and possessions without ImageMover(MD)’s prior written consent.
2.5 Access to Services. ImageMover(MD) shall use commercially reasonable efforts to provide access to the Services, but provides no guarantees or warranties that the Services will be available 24 hours a day, seven days a week, and the Customer acknowledges and agrees that the Service may be inaccessible from time to time for scheduled Service downtime; degradation due to a Force Majeure Event; or other circumstances beyond ImageMover(MD)’s reasonable control, including Customer’s or any Authorized User’s misuse of the Licensed Software, or use of the Licensed Software other than in compliance with the express terms of this Agreement; and any suspension or termination of Customer’s or any Authorized Users’ access to or use of the Licensed Software as permitted by this Agreement.
2.6 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.
2.7 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.
2.8 Subcontractors. ImageMover(MD) may from time to time in its discretion engage third parties to perform Services (each, a “Subcontractor”).
3. Security and Data Responsibility.
3.1 Processing of Customer Data. Unless otherwise agreed to by ImageMover(MD) and Customer pursuant to a separate ImageMover Data Hosting Agreement (which, if applicable, is incorporated herein by this reference), 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.
3.2 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 information technology infrastructure, including computers, software, databases, electronic systems (including database management systems) and networks, whether operated directly by Customer or through the use of third-party services (“Customer 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.
3.3 Access and Security. Customer shall employ adequate 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 reasonably 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.
3.4 Privacy. All use by ImageMover(MD) of Customer Data will be subject to the Privacy Policy located at https://www.imagemovermd.com/test-result-privacy-policy, which is incorporated herein by this reference. Customer must use all data Processed and/or received from the Services (including Customer Data) in compliance with all applicable privacy laws, including the Health Insurance Portability and Accountability Act of 1996 (“HIPAA”), the Personal Information Protection and Electronic Documents Act (Canada) (“PIPEDA”) and applicable provincial privacy statutes including those related to personal health information (collectively, “Privacy Laws”), and ImageMover(MD) will not be responsible or liable for any use by the Customer of Customer Data or any data Processed and/or received from the Services. Customer will not instruct ImageMover(MD) to Process, use or disclose Personal Information in any manner that would not be permissible under applicable Privacy Laws if done by the Customer.
3.5 ImageMover(MD) is acting in the capacity as a service provider to Customer in the Processing of Personal Information of Data Subjects using the Licensed Software and Services. Customer retains control of the Personal Information and remains solely responsible for its compliance obligations under applicable Privacy Laws, including providing any required notices to and obtaining any required consents from Data Subjects with respect to the Personal Information Processed by ImageMover(MD) or shared with other Persons via the Services, and for the Processing instructions it provides to ImageMover(MD). Customer will notify ImageMover(MD) of any changes in, or revocation of, the consent by a Data Subject for the collection, use or disclose his or her Personal Information, to the extent that such changes or revocation may affect ImageMover(MD)’s Processing of such Personal Information in accordance with this Agreement.
3.6 ImageMover(MD) will attempt to host Personal Information in the country in which Customer is located. Customer, however, acknowledges that the Licensed Software may be hosted on Amazon Web Services and may store Personal Information in a U.S.-based cloud service and that to the extent ImageMover(MD) does so, such arrangement is a fundamental condition of this Hosting Agreement. Customer is responsible for providing the appropriate notices to, or obtaining the requisite consents from, Data Subjects as required under Privacy Laws for the transfer of Personal Information outside the jurisdiction in which it was collected, where applicable. Customer will notify ImageMover(MD) of any data localization requirement or restriction on the transfer of Personal Information to the extent that such requirement or restriction may affect ImageMover(MD)’s Processing of such Personal Information in accordance with this Agreement. If Privacy Laws restrict the cross-border or trans-border transfer of Personal Information, Customer shall only transfer Personal Information to ImageMover(MD) 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.
3.7 Customer will ensure that its Authorized Users are aware of and adhere to the terms and conditions of this Agreement. Customer will control the use by its Authorized Users of the Licensed Software and Services, including by restricting access of Authorized Users to the Licensed Software and the Services, if Customer has revoked the authorization of such individual or such individual’s relationship with Customer has been suspended or terminated.
3.8 The Software may, from time-to-time, contain certain features and functionalities to report Test Kit results and other similar types of information to federal and state authorities on Customer’s behalf as required under applicable laws or as otherwise instructed by Customer (the “Results Reporting Feature”). By using the Results Reporting Feature, Customer: (a) instructs and authorizes ImageMover(MD) to submit applicable information to third parties, including, without limitation, federal and state authorities, on Customer’s behalf; and (b) represents and warrants to ImageMover(MD) that Customer has complied with all applicable requirements under this Agreement, including, without limitation, those set forth in Section 3.5.
4. Intellectual Property Rights.
4.1 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). Customer has no right, license or authorization with respect to any of the Licensed Software 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 are expressly reserved by ImageMover(MD).
4.2 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 as are necessary or useful to perform the Services.
4.3 De-identified Data. ImageMover(MD) owns all De-identified Data, and Customer acknowledges and agrees that ImageMover(MD) has the right to use the De-identified Data for any and all purposes, including sharing or distributing such De-Identified Data with third parties.
5. Term and Termination.
5.1 Term. Unless terminated earlier under Section 5.2 of this Agreement, the license granted hereunder shall remain in effect until the Customer has used all Service Units purchased under the Customer Purchase Order or until twelve (12) months have passed from Customer’s purchase of the Service Units (the “Term”).
5.2 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) uses the Software for purposes outside of the Services and the Service Units purchased; 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 thirty (30) days after the non-breaching party provides the breaching party with written notice of such breach.
5.3 Effect of Expiration or Termination. On the expiration or earlier termination of this Agreement:
(a) all rights, licenses and authorizations granted to Customer 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 5.3(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.
5.4 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 (Restrictions), Section 5.3 (Effect of Expiration and Termination), this Section 5.4 (Surviving Terms), Section 6 (Representations and Warranties), Section 7 (Indemnification), Section 8 (Limitations of Liability) and Section 10 (Miscellaneous).
6. Representations and Warranties.
6.1 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.
6.2 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.
6.3 DISCLAIMER OF WARRANTIES. EXCEPT FOR THE EXPRESS WARRANTIES SET FORTH IN SECTION 6.2, 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 TEST KITS, 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.
7. Indemnification.
7.1 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 a 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.
7.2 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 Licensed Software 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 7.2 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.
8. Limitations of Liability.
8.1 EXCLUSION 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.
8.2 CAP ON MONETARY LIABILITY. IN NO EVENT WILL THE COLLECTIVE AGGREGATE LIABILITY OF IMAGEMOVER(MD) AND ITS AFFILIATES, 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 CUSTOMER PURCHASE ORDER IN THE THREE (3) 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.
8.3 IN NO EVENT WILL IMAGEMOVER(MD) BE LIABLE TO CUSTOMER OR ANY THIRD PARTY FOR, AND CUSTOMER AGREES TO HOLD IMAGEMOVER(MD) HARMLESS FROM, ANY DAMAGES THAT RESULT FROM CUSTOMER’S USE OF ANY TEST KITS OR DATA PROVIDED BY THE SOFTWARE, INCLUDING DATA RELATED TO THE TEST KITS.
8.4 DATA PROVIDED IN RELATION TO THE TEST KITS, AND ANY RESULTS FROM THE TEST KITS AS PROVIDED THROUGH THE SERVICES UNDER THIS AGREEMENT ARE INTENDED FOR USE ONLY BY LICENSED HEALTH CARE PROFESSIONALS OR FOR SPECIFIC HEALTH OR WELLNESS MANAGEMENT PURPOSES. THOSE RECEIVING INFORMATION CONCERNING ANY RESULTS FROM ANY TEST KITS THROUGH THE SERVICES UNDER THIS AGREEMENT, INCLUDING LICENSED HEALTH CARE PROVIDERS, SHOULD AT ALL TIMES ABIDE BY APPLICABLE EXPERT GUIDANCE AND EXERCISE THEIR OWN JUDGMENT, INCLUDING MEDICAL AND CLINICAL JUDGMENT, AS APPLICABLE, FOR ANY GIVEN PATIENT OR INDIVIDUAL AND IN ANY GIVEN SITUATION. SERVICES PROVIDED BY IMAGEMOVER(MD) UNDER THIS AGREEMENT AND ARE NOT INTENDED, AND SHOULD NOT BE DEEMED IN ANYWAY, TO PROVIDE OR CONSTITUTE MEDICAL ADVICE, DIAGNOSIS, OR TREATMENT. UNDER NO CIRCUMSTANCES WILL IMAGEMOVER(MD) BE DEEMED TO BE ENGAGED IN THE PRACTICE OF MEDICINE, OR THE PROVISION OF MEDICAL ADVICE, DIAGNOSIS, OR TREATMENT.
9. Force Majeure.
9.1 No 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.
10. Miscellaneous.
10.1 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.
10.2 Notice. Any notice or other communication given to a party under or in connection with this Agreement must be in writing and delivered to such party’s address set forth on the Customer Purchase Order or as otherwise amended in writing. Delivery shall be effective upon delivery by professional courier or, if a contact email address is provided, by email.
10.3 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.
10.4 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 10.3 is void. This Agreement is binding upon and inures to the benefit of the parties hereto and their respective permitted successors and assigns.
10.5 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.
10.6 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.
10.7 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 on the Customer Purchase Order shall be effective service of process for any suit, action or other proceeding brought in any such court.
10.8 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 anglais.