General Terms and Conditions

These General Terms and Conditions (“Terms and Conditions”) shall govern the provision of the Services by ImageMover Expert’s Inc., a Delaware corporation (“ImageMover”) to the entity or person identified on the Order Form as the purchaser (“Customer”). ImageMover and Customer may be referred herein individually as a “Party” and collectively as the “Parties”. All capitalized terms used but not defined herein shall have the respective meanings ascribed to them under the Order Form. The Order Form and these Terms and Conditions are collectively referred to as the “Agreement”. 

1. Definitions.

"Access Credentials" means any user name, identification number, password, license or security key, security token, PIN or other security code, method, technology or device used, alone or in combination, to verify an individual's identity and authorization to access and use the Services.

"Action" has the meaning set forth in Section 10.1.

"Agreement" has the meaning set forth in the preamble.

"Authorized User" means each of the individuals authorized to use the Services pursuant to Section 3.1 and the other terms and conditions of this Agreement.

"Confidential Information" has the meaning set forth in Section 7.1.

"Customer" has the meaning set forth in the preamble.

"Customer Data" means, other than Resultant Data, information, data and other content, in any form or medium, that is collected, downloaded or otherwise received, directly or indirectly from Customer or an Authorized User by or through the Services or that incorporates or is derived from the Processing of such information, data or content by or through the Services. For the avoidance of doubt, Customer Data includes information reflecting the access or use of the Services by or on behalf of Customer or any Authorized User other than Resultant Data.

"Customer Failure" has the meaning set forth in Section 4.2.

"Customer Indemnitee" has the meaning set forth in Section 10.1.

"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.

"Disclosing Party" has the meaning set forth in Section 7.1.

"Documentation" means any manuals, instructions or other documents or materials that the ImageMover provides or makes available to Customer in any form or medium and which describe the functionality, components, features or requirements of the Services or ImageMover Materials, including any aspect of the installation, configuration, integration, operation, use, support or maintenance thereof.

"Effective Date" has the meaning set forth in the preamble.

"Fees" has the meaning set forth in the Order Form.

"Force Majeure Event" has the meaning set forth in Section 12.1.

"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 Systems as intended by this Agreement. Harmful Code does not include any ImageMover Disabling Device. 

"ImageMover" has the meaning set forth in the preamble.

"ImageMover Disabling Device" means any software, hardware or other technology, device or means (including any back door, time bomb, time out, drop dead device, software routine or other disabling device) used by ImageMover or its designee to disable Customer's or any Authorized User's access to or use of the Services automatically with the passage of time or under the positive control of ImageMover or its designee.

"ImageMover Indemnitee" has the meaning set forth in Section 10.2.

"ImageMover Materials" means the Service Software, Specifications, Documentation and ImageMover Systems and any and all other information, data, documents, materials, works and other content, devices, methods, processes, hardware, software and other technologies and inventions, including any deliverables, technical or functional descriptions, requirements, plans or reports, that are provided or used by ImageMover or any Subcontractor in connection with the Services or otherwise comprise or relate to the Services or ImageMover Systems. For the avoidance of doubt, ImageMover Materials include Resultant Data and any information, data or other content derived from ImageMover's monitoring of Customer's access to or use of the Services, but do not include Customer Data.

"ImageMover Personnel" means all individuals involved in the performance of Services as employees, agents or independent contractors of ImageMover or any Subcontractor.

"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 directly by ImageMover or through the use of third-party services.

"Indemnitee" has the meaning set forth in Section 10.3.

"Indemnitor" has the meaning set forth in Section 10.3.

"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. 

"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 providers. 

"Permitted Use" means any use of the Services by an Authorized User for the benefit of Customer solely in or for Customer's business operations.

"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" means to take any action or perform any operation or set of operations that the Services are capable of taking or performing on any data, information or other content, including to collect, receive, input, upload, download, record, reproduce, store, organize, compile, combine, log, catalog, cross-reference, manage, maintain, copy, adapt, alter, translate or make other derivative works or improvements, process, retrieve, output, consult, use, perform, display, disseminate, transmit, submit, post, transfer, disclose or otherwise provide or make available, or block, erase or destroy. "Processing" and "Processed" have correlative meanings.

"Receiving Party" has the meaning set forth in Section 7.1.

"Representatives" means, with respect to a party, that party's and its Affiliates' employees, officers, directors, consultants, agents, independent contractors, service providers, sublicensees, subcontractors and legal advisors. 

"Resultant Data" means information, data and other content that is derived by or through the Services from Processing Customer Data and is sufficiently different from such Customer Data that such Customer Data cannot be reverse engineered or otherwise identified from the inspection, analysis or further Processing of such information, data or content.

"Services" has the meaning set forth in Section 2.1.

"Service Software" means the ImageMover software application or applications and any third-party or other software, and all new versions, updates, revisions, improvements and modifications of the foregoing, that ImageMover provides remote access to and use of as part of the Services. 

"Subcontractor" has the meaning set forth in Section 2.4.

"Term" has the meaning set forth in Section 8.1. 

"Territory" means the territory indicated in the Order Form. 

"Third Party Materials" means materials and information, in any form or medium, including any open-source or other software, documents, data, content, specifications, products, equipment or components of or relating to the Services that are not proprietary to ImageMover. 

2. Services.

2.1 Services. Subject to and conditioned on Customer's and its Authorized Users' compliance with the terms and conditions of this Agreement, during the Term, ImageMover shall use commercially reasonable efforts to provide to Customer and its Authorized Users the services and licensed software described in the Order Form and these Terms and Conditions ("Services"). 

2.2 Service and System Control. Except as otherwise expressly provided in this Agreement, as between the parties:

(a) ImageMover has and will retain sole control over the operation, provision, maintenance and management of the Services and ImageMover Materials, and the ImageMover Systems; and

(b) 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 Services and ImageMover Materials 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 Services or ImageMover; (ii) results obtained from any use of the Services or ImageMover Materials; and (iii) conclusions, decisions or actions based on such use.

Notwithstanding anything to the contrary in this Agreement, all Services, including all Processing of Customer Data by or on behalf of ImageMover shall be provided solely from within, and on computers, systems, networks and other infrastructure located in, the United States.

2.3 Changes. ImageMover reserves the right, in its sole discretion, to make any changes to the Services and ImageMover Materials that it deems necessary or useful to: (a) maintain or enhance (i) the quality or delivery of ImageMover's services to its customers, (ii) the competitive strength of or market for ImageMover's services or (iii) the Services' cost efficiency or performance; or (b) to comply with applicable Law. 

2.4 Third Party Services and Materials.  Customer acknowledges that some of the Services provided are performed by third party providers (“Subcontractor”) that ImageMover has engaged to provide certain Services, such as credentialing and managed payment services (“Third Party Services”).  In addition, the content in the Services may link to, interface and integrate with third party software applications, websites, data, content, or materials that are not operated or controlled by ImageMover (“Third-Party Materials”). Customer hereby acknowledges and agrees that ImageMover is not responsible for the content or practices of the Third Party Services and Third-Party Materials providers. 

2.5 Suspension or Termination of Services. ImageMover may suspend, terminate or otherwise deny Customer's, any Authorized User's or any other Person's access to or use of all or any part of the Services or ImageMover Materials, without incurring any resulting obligation or liability, if: (a) ImageMover receives a judicial or other governmental demand or order, subpoena or law enforcement request that expressly or by reasonable implication requires ImageMover to do so; or (b) ImageMover believes, in its good faith and reasonable discretion, that: (i) Customer or any Authorized User has failed to comply with, any term of this Agreement, or accessed or used the Services beyond the scope of the rights granted or for a purpose not authorized under this Agreement; (ii) Customer or any Authorized User is, has been, or is likely to be involved in any fraudulent, misleading or unlawful activities; or (iii) this Agreement expires or is terminated. This Section 2.5 does not limit any of ImageMover's other rights or remedies, whether at law, in equity or under this Agreement.

2.6 Access to Services. ImageMover 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’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.

3. Authorization and Customer Restrictions.

3.1 Authorization. Subject to and conditioned on Customer's payment of the Fees and compliance and performance in accordance with all other terms and conditions of this Agreement, ImageMover hereby authorizes Customer to access and use, solely in the Territory and during the Term, the Services and such ImageMover Materials as ImageMover may supply or make available to Customer solely for the Permitted Use by and through Authorized Users in accordance with the conditions and limitations set forth in this Agreement. This authorization is non-exclusive and other than as may be expressly set forth in Section 13.7, non-transferable.

3.2 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 Services, ImageMover Materials or Third Party Materials, whether expressly, by implication, estoppel or otherwise. All right, title and interest in and to the Services, the ImageMover Materials and the Third Party Materials are and will remain with ImageMover and the respective rights holders in the Third Party Materials.

3.3 Authorization Limitations and Restrictions. Customer shall not, and shall not permit any other Person to, access or use the Services or ImageMover Materials except as expressly permitted by this Agreement and, in the case of Third-Party Materials, the applicable third-party license agreement. For purposes of clarity and without limiting the generality of the foregoing, Customer shall not, except as this Agreement expressly permits:

(a) copy, modify or create derivative works or improvements of the Services or ImageMover Materials;

(b) rent, lease, lend, sell, sublicense, assign, distribute, publish, transfer or otherwise make available any Services or ImageMover Materials 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;

(c) reverse engineer, disassemble, decompile, decode, adapt or otherwise attempt to derive or gain access to the source code of the Services or ImageMover Materials, in whole or in part;

(d) bypass or breach any security device or protection used by the Services or ImageMover Materials or access or use the Services or ImageMover Materials other than by an Authorized User through the use of his or her own then valid Access Credentials;

(e) input, upload, transmit or otherwise provide to or through the Services or ImageMover Systems, any information or materials that are unlawful or injurious, or contain, transmit or activate any Harmful Code;

(f) damage, destroy, disrupt, disable, impair, interfere with or otherwise impede or harm in any manner the Services, ImageMover Systems or ImageMover's provision of services to any third party, in whole or in part;

(g) remove, delete, alter or obscure any trademarks, Documentation, warranties or disclaimers, or any copyright, trademark, patent or other intellectual property or proprietary rights notices from any Services or ImageMover Materials, including any copy thereof;

(h) access or use the Services or ImageMover Materials in any manner or for any purpose that infringes, misappropriates or otherwise violates any Intellectual Property Right or other right of any third party (including by any unauthorized access to, misappropriation, use, alteration, destruction or disclosure of the data of any other ImageMover customer), or that violates any applicable Law;

(i) access or use the Services or ImageMover Materials for purposes of competitive analysis of the Services or ImageMover Materials, the development, provision or use of a competing software service or product or any other purpose that is to the ImageMover's detriment or commercial disadvantage; or

(j) otherwise access or use the Services or ImageMover Materials beyond the scope of the authorization granted under Section 3.1. 

4. Customer Obligations.

4.1 Customer Systems and Cooperation.  Customer shall at all times during the Term: (a) set up, maintain and operate in good repair and in accordance with all Customer Systems on or through which the Services are accessed or used; and (b) provide all cooperation and assistance as ImageMover may reasonably request to enable ImageMover to exercise its rights and perform its obligations under and in connection with this Agreement.

4.2 Effect of Customer Failure or Delay. ImageMover is not responsible or liable for any delay or failure of performance caused in whole or in part by Customer's delay in performing, or failure to perform, any of its obligations under this Agreement (each, a "Customer Failure"). 

4.3 Corrective Action and Notice. If Customer becomes aware of any actual or threatened activity prohibited by Section 3.3, Customer shall, and shall cause its Authorized Users to, immediately: (a) take all reasonable and lawful measures within their respective control that are necessary to stop the activity or threatened activity and to mitigate its effects (including, where applicable, by discontinuing and preventing any unauthorized access to the Services and ImageMover Materials and permanently erasing from their systems and destroying any data to which any of them have gained unauthorized access); and (b) notify ImageMover of any such actual or threatened activity. 

4.4 Non-Solicitation. During the Term and for two (2) years after, Customer shall not, and shall not assist any other Person to, directly or indirectly recruit or solicit for employment or engagement as an independent contractor any Person then or within the prior twelve (12) months employed or engaged by ImageMover or any Subcontractor. In the event of a violation of this Section 4.4, ImageMover will be entitled to liquidated damages equal to the compensation paid by ImageMover to the applicable employee or contractor during the prior twelve (12) months.

5. Security and Data Responsibility.

5.1 Customer Control and Responsibility. Customer has and will retain sole responsibility for: (a) the accuracy of all Customer Data provided, and Customer’s use of such Customer Data; (b) all information, instructions and materials provided by or on behalf of Customer or any Authorized User in connection with the Services; (c) 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.  

5.2 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 Services and reasonably protect against any unauthorized access to or use of the Services; and (b) control the content and use of Customer Data, including the uploading or other provision of Customer Data for Processing by the Services.

5.3 Processing of Personal Information. Customer shall comply with the applicable terms and conditions set forth in this Agreement and with all applicable Laws in relation to the collection, use, storage, disclosure, transfer, and other Processing of any Personal Information contained within the Customer Data. All use of Personal Information contained within the Customer Data by ImageMover will be in accordance with the ImageMover Privacy Policy located at https://www.imagemovermd.com/test-result-privacy-policy, which may be modified by ImageMover from time to time in accordance with the terms set forth therein.  Customer must use all data Processed and/or received from the Services (including Customer Data) in compliance with all applicable privacy laws, which may include, without limitation, 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 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 to Process, use or disclose Personal Information in any manner that would not be permissible under applicable Privacy Laws if done by the Customer.

5.4 Control of Personal Information. ImageMover 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 or shared with other Persons via the Services, and for the Processing instructions it provides to ImageMover.  Customer will notify ImageMover of any changes in, or revocation of, the consent by a Data Subject for the collection, use or disclosure of his or her Personal Information, to the extent that such changes or revocation may affect ImageMover’s Processing of such Personal Information in accordance with this Agreement. 

5.5 Location of Processing of Personal Information. ImageMover will attempt to Process Personal Information in the country in which Customer is located.  Customer, however, acknowledges that the Licensed Software may be hosted on third party hosting providers, such as Amazon Web Services, and may Process Personal Information from a U.S.-based cloud service and that to the extent ImageMover does so, such arrangement is a fundamental condition of this 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 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 Agreement. 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.

5.6 Notice of Authorized Users. 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.

5.7 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 all Access Credentials and protect against any unauthorized access to or use of the Services; and (b) control the content and use of Customer Data, including the uploading or other provision of Customer Data for Processing by the Services.

6. Intellectual Property Rights.

6.1 Services and ImageMover Materials. All right, title and interest in and to the Services and ImageMover Materials, including all Intellectual Property Rights therein, are and will remain with ImageMover and the respective rights holders in the Third-Party Materials. Customer has no right, license or authorization with respect to any of the Services or ImageMover Materials (including Third-Party Materials) except as expressly set forth in Section 3.1 or the applicable third-party license, in each case subject to Section 3.3 All other rights in and to the Services and ImageMover Materials (including Third-Party Materials) are expressly reserved by ImageMover and the respective third-party licensors. In furtherance of the foregoing, Customer hereby unconditionally and irrevocably grants to ImageMover an assignment of all right, title and interest in and to the Resultant Data, including all Intellectual Property Rights relating thereto.

6.2 Customer Data. As between Customer and ImageMover, Customer is and will remain the sole and exclusive owner of all right, title and interest in and to all Customer Data, including all Intellectual Property Rights relating thereto, subject to the rights and permissions granted in Section 6.4. 

6.3 De-identified Data.  ImageMover owns all De-identified Data, and Customer acknowledges and agrees that ImageMover 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.

6.4 Consent to Use Customer Data. Customer hereby irrevocably grants all such rights and permissions in or relating to Customer Data: (a) to ImageMover, its Subcontractors and the ImageMover Personnel as are necessary or useful to perform the Services; and (b) to ImageMover as are necessary or useful to enforce this Agreement and exercise its rights and perform its duties hereunder.

7. Confidentiality.

7.1 Confidential Information. In connection with this Agreement each party (as the "Disclosing Party") may disclose or make available Confidential Information to the other party (as the "Receiving Party"). Subject to Section 7.2, "Confidential Information" means information in any form or medium (whether oral, written, electronic or other) that the Disclosing Party considers confidential or proprietary, including information consisting of or relating to the Disclosing Party’s technology, trade secrets, know-how, business operations, plans, strategies, customers, and pricing, and information with respect to which the Disclosing Party has contractual or other confidentiality obligations, in each case whether or not marked, designated or otherwise identified as "confidential".  Without limiting the foregoing all ImageMover Materials are the Confidential Information of ImageMover. 

7.2 Exclusions. Confidential Information does not include information that: (a) was rightfully known to the Receiving Party without restriction on use or disclosure prior to such information's being disclosed or made available to the Receiving Party in connection with this Agreement; (b) was or becomes generally known by the public other than by the Receiving Party's or any of its Representatives' noncompliance with this Agreement; (c) was or is received by the Receiving Party on a non-confidential basis from a third party that was not or is not, at the time of such receipt, under any obligation to maintain its confidentiality; or (d) was or is independently developed by the Receiving Party without reference to or use of any Confidential Information.

7.3 Protection of Confidential Information. As a condition to being provided with any disclosure of or access to Confidential Information, the Receiving Party shall during the Term and for five (5) yeas thereafter: 

(a) not access or use Confidential Information other than as necessary to exercise its rights or perform its obligations under and in accordance with this Agreement; 

(b) except as may be permitted by and subject to its compliance with Section 7.4, not disclose or permit access to Confidential Information other than to its Representatives who: (i) need to know such Confidential Information for purposes of the Receiving Party's exercise of its rights or performance of its obligations under and in accordance with this Agreement; (ii) have been informed of the confidential nature of the Confidential Information and the Receiving Party's obligations under this Section 7.3; and (iii) are bound by confidentiality and restricted use obligations at least as protective of the Confidential Information as the terms set forth in this Section 7.3;

(c) safeguard the Confidential Information from unauthorized use, access or disclosure using at least the degree of care it uses to protect its similarly sensitive information and in no event less than a reasonable degree of care; and

(d) ensure its Representatives' compliance with, and be responsible and liable for any of its Representatives' non-compliance with, the terms of this Section 7.

7.4 Compelled Disclosures. If the Receiving Party or any of its Representatives is compelled by applicable Law to disclose any Confidential Information then, to the extent permitted by applicable Law, the Receiving Party shall: (a) promptly, and prior to such disclosure, notify the Disclosing Party in writing of such requirement so that the Disclosing Party can seek a protective order or other remedy or waive its rights under Section 7.3; and (b) provide reasonable assistance to the Disclosing Party, at the Disclosing Party's sole cost and expense, in opposing such disclosure or seeking a protective order or other limitations on disclosure. If the Disclosing Party waives compliance or, after providing the notice and assistance required under this Section 7.4, the Receiving Party remains required by Law to disclose any Confidential Information, the Receiving Party shall disclose only that portion of the Confidential Information that, on the advice of the Receiving Party's legal counsel, the Receiving Party is legally required to disclose and, on the Disclosing Party's request, shall use commercially reasonable efforts to obtain assurances from the applicable court or other presiding authority that such Confidential Information will be afforded confidential treatment.

8. Term and Termination .

8.1 Term. The “Term” (including the “Initial Term” and “Renewal Terms”) will be as set forth in the Order Form. 

8.2 Termination. Except as otherwise set forth in the Order Form, and in addition to any other express termination right set forth elsewhere in this Agreement:

(a) ImageMover may terminate this Agreement, effective on written notice to Customer, if Customer: (i) fails to pay any amount when due hereunder, and such failure continues more than fifteen (15) days after ImageMover's delivery of written notice thereof; or (ii) breaches any of its obligations under Section 3.3 (Use Limitations and Restrictions), or Section 7 (Confidentiality).

(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; and

(c) either party may terminate this Agreement, effective immediately upon written notice to the other party, if the other party: (i) becomes insolvent or is generally unable to pay, or fails to pay, its debts as they become due; (ii) files or has filed against it, a petition for voluntary or involuntary bankruptcy or otherwise becomes subject, voluntarily or involuntarily, to any proceeding under any domestic or foreign bankruptcy or insolvency Law; (iii) makes or seeks to make a general assignment for the benefit of its creditors; or (iv) applies for or has appointed a receiver, trustee, custodian or similar agent appointed by order of any court of competent jurisdiction to take charge of or sell any material portion of its property or business.

8.3 Effect of Expiration or Termination. Upon any expiration or termination of this Agreement, except as expressly otherwise provided in this Agreement:

(a) all rights, licenses, consents and authorizations granted by either party to the other hereunder will immediately terminate;

(b) Customer shall immediately cease all use of any Services or ImageMover Materials and (i) within thirty (30)  days return to ImageMover, or at ImageMover's written request destroy, all documents and tangible materials containing, reflecting, incorporating or based on any ImageMover Materials or ImageMover's Confidential Information; and (ii) permanently erase all ImageMover Materials and ImageMover's Confidential Information from all systems Customer directly or indirectly controls; and (iii) certify to ImageMover in a signed written instrument that it has complied with the requirements of this Section 8.3(b);

(c) notwithstanding anything to the contrary in this Agreement, with respect to information and materials then in its possession or control: (i) the Receiving Party may retain the Disclosing Party's Confidential Information (ii) ImageMover may retain Customer Data; and (iii) Customer may retain ImageMover Materials, in the case of each of subclause (i), (ii) and (iii) in its then current state and solely to the extent and for so long as required by applicable Law; (iv) ImageMover may also retain Customer Data in its backups, archives and disaster recovery systems until such Customer Data is deleted in the ordinary course; and (v) all information and materials described in this Section 8.3(c) will remain subject to all confidentiality, security and other applicable requirements of this Agreement;

(d) ImageMover may disable all Customer and Authorized User access to the Services and ImageMover Materials;

(e) if Customer terminates this Agreement pursuant to Section 8.2(b), Customer will be relieved of any obligation to pay any Fees attributable to the period after the effective date of such termination and ImageMover will: (i) refund to Customer Fees paid in advance for Services that ImageMover has not performed as of the effective date of termination; and (ii) pay to Customer any unpaid Service Credits to which Customer is entitled under the Service Level Agreement;

(f) if ImageMover terminates this Agreement pursuant to Section 8.2(a) or Section 8.2(b), all Fees that would have become payable had the Agreement remained in effect until expiration of the Term will become immediately due and payable, and Customer shall pay such Fees, together with all previously-accrued but not yet paid Fees, on receipt of ImageMover's invoice therefor.

8.4 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 3.3, Section 7, Section 8.3, this Section 8.4, Section 9, Section 10, Section 11 and Section 13.

9. Representations and Warranties.

9.1 Mutual Representations and Warranties. Each party represents and warrants to the other party that: 

(a) it is duly organized, validly existing and in good standing as a corporation or other entity under the Laws of the jurisdiction of its incorporation or other organization;

(b) it has the full right, power and authority to enter into and perform its obligations and grant the rights, licenses, consents and authorizations it grants or is required to grant under this Agreement;

(c) the execution of this Agreement by its representative whose signature is set forth at the end of this Agreement has been duly authorized by all necessary corporate or organizational action of such party; and

(d) when executed and delivered by both parties, this Agreement will constitute the legal, valid and binding obligation of such party, enforceable against such party in accordance with its terms.

9.2 Additional ImageMover Representations, Warranties and Covenants. ImageMover represents, warrants and covenants to Customer that ImageMover will perform the Services using personnel of required skill, experience and qualifications and in a professional and workmanlike manner in accordance with generally recognized industry standards for similar services and will devote adequate resources to meet its obligations under this Agreement.

9.3 Additional Customer Representations, Warranties and Covenants. Customer represents, warrants and covenants to ImageMover 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 and Processed in accordance with this Agreement, they do not and will not infringe, misappropriate or otherwise violate any Intellectual Property Rights of any third party or violate any applicable Law.

9.4 DISCLAIMER OF WARRANTIES. EXCEPT FOR THE EXPRESS WARRANTIES SET FORTH IN SECTION 9.1, SECTION 9.2 AND SECTION 9.3, ALL SAAS SERVICES AND IMAGEMOVER MATERIALS ARE PROVIDED "AS IS" AND IMAGEMOVER HEREBY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHER, AND IMAGEMOVER 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 MAKES NO WARRANTY OF ANY KIND THAT THE SERVICES OR IMAGEMOVER MATERIALS, 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 SERVICES OR THIRD PARTY MATERIALS IS STRICTLY BETWEEN CUSTOMER AND THE THIRD-PARTY OWNER OR DISTRIBUTOR OF THE THIRD-PARTY SERVICES AND THIRD PARTY MATERIALS.

10. Indemnification.

10.1 ImageMover Indemnification. ImageMover shall indemnify, defend and hold harmless Customer and Customer's officers, directors, employees, agents, successors and assigns (each, a "Customer Indemnitee") from and against any and all Losses incurred by such Customer Indemnitee arising out of or relating to any claim, suit, action or proceeding (each, an "Action") by a third party (other than an Affiliate of a Customer Indemnitee) to the extent that such Losses arise from any allegation in such Action that Customer's or an Authorized User's use of the Services (excluding Customer Data and Third Party Services and Third Party Materials) in compliance with this Agreement infringes a Intellectual Property Right. The foregoing obligation does not apply to any Action or Losses arising out of or relating to any: 

(a) access to or use of the Services or ImageMover Materials in combination with any hardware, system, software, network or other materials or service not provided or authorized in writing by ImageMover;

(b) modification of the Services or ImageMover Materials other than: (i) by or on behalf of ImageMover; or (ii) with ImageMover's written approval in accordance with ImageMover's written specification;

(c) failure to timely implement any modifications, upgrades, replacements or enhancements made available to Customer by or on behalf of ImageMover; or

(d) act, omission or other matter described in Section 10.2(a), Section 10.2(b), Section 10.2(c) or Section 10.2(d), whether or not the same results in any Action against or Losses by any ImageMover Indemnitee.

10.2 Customer Indemnification. Customer shall indemnify, defend and hold harmless ImageMover and its Subcontractors and Affiliates, and each of its and their respective officers, directors, employees, agents, successors and assigns (each, an "ImageMover Indemnitee") from and against any and all Losses incurred by such ImageMover Indemnitee in connection with any Action by a third party (other than an Affiliate of a ImageMover Indemnitee) to the extent that such Losses arise from any: 

(a) Customer Data, including any Processing of Customer Data by or on behalf of ImageMover 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'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; 

(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. 

10.3 Indemnification Procedure. Each party shall promptly notify the other party in writing of any Action for which such party believes it is entitled to be indemnified pursuant to Section 10.1 or Section 10.2, as the case may be. The party seeking indemnification (the "Indemnitee") shall cooperate with the other party (the "Indemnitor") at the Indemnitor's sole cost and expense. The Indemnitor shall immediately take control of the defense and investigation of such Action and shall employ counsel reasonably acceptable to the Indemnitee to handle and defend the same, at the Indemnitor's sole cost and expense. The Indemnitee's failure to perform any obligations under this Section 10.3 will not relieve the Indemnitor of its obligations under this Section 10 except to the extent that the Indemnitor can demonstrate that it has been materially prejudiced as a result of such failure. The Indemnitee may participate in and observe the proceedings at its own cost and expense with counsel of its own choosing.

THIS SECTION 10 SETS FORTH CUSTOMER'S SOLE REMEDIES AND PROVIDER'S SOLE LIABILITY AND OBLIGATION FOR ANY ACTUAL, THREATENED OR ALLEGED CLAIMS THAT THIS AGREEMENT OR ANY SUBJECT MATTER HEREOF (INCLUDING THE SAAS SERVICES AND IMAGEMOVER MATERIALS) INFRINGES, MISAPPROPRIATES OR OTHERWISE VIOLATES ANY THIRD PARTY INTELLECTUAL PROPERTY RIGHT. 

11. Limitations of Liability.

11.1 EXCLUSION OF DAMAGES. IN NO EVENT WILL IMAGEMOVER 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.

11.2 CAP ON MONETARY LIABILITY. IN NO EVENT WILL THE COLLECTIVE AGGREGATE LIABILITY OF IMAGEMOVER 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 LARGER OF (1) THE FEES RECEIVED BY IMAGEMOVER FROM CUSTOMER IN THE THREE (3) MONTHS PRECEDING THE CAUSE OF LIABILITY. THE FOREGOING LIMITATION APPLIES NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE. 

11.3 SERVICES PROVIDED UNDER THIS AGREEMENT ARE INTENDED FOR USE ONLY BY LICENSED HEALTH CARE PROFESSIONALS. LICENSED HEALTH CARE PROVIDERS RECEIVING SERVICES UNDER THIS AGREEMENT SHOULD AT ALL TIMES EXERCISE THEIR OWN MEDICAL AND CLINICAL JUDGMENT FOR ANY GIVEN PATIENT AND IN ANY GIVEN SITUATION.  SERVICES PROVIDED BY VOXIMETRY UNDER THIS AGREEMENT ARE NOT INTENDED, AND SHOULD NOT BE DEEMED IN ANYWAY, TO PROVIDE OR CONSTITUTE MEDICAL ADVICE, DIAGNOSIS, OR TREATMENT. UNDER NO CIRCUMSTANCES WILL VOXIMETRY BE DEEMED TO BE ENGAGED IN THE PRACTICE OF MEDICINE, OR THE PROVISION OF MEDICAL ADVICE, DIAGNOSIS, OR TREATMENT.

12. Force Majeure.

12.1 No Breach or Default. In no event will either party be liable or responsible to the other party, 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, (except for any payment obligation), when and to the extent such failure or delay is caused by any circumstances beyond such party's reasonable control (a "Force Majeure Event"), including acts of God, flood, fire, earthquake or explosion, war, terrorism, invasion, riot or other civil unrest, pandemics, epidemics, 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 affecting the other party continues substantially uninterrupted for a period of thirty (30) days or more.

12.2 Affected Party Obligations. In the event of any failure or delay caused by a Force Majeure Event, the affected party shall give prompt written notice to the other party stating the period of time the occurrence is expected to continue and use commercially reasonable efforts to end the failure or delay and minimize the effects of such Force Majeure Event.

13. Miscellaneous.

13.1 Further Assurances. Upon a party's reasonable request, the other party shall, at the requesting party's sole cost and expense, execute and deliver all such documents and instruments, and take all such further actions, necessary to give full effect to this Agreement.

13.2 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.

13.3 Public Announcements. ImageMover may include Customer’s name and logo in its customer lists and on its website and its promotional and marketing materials. Upon signing, ImageMover may issue a high-level press release announcing the relationship and the manner in which Customer will use the ImageMover Services. ImageMover shall coordinate its efforts with appropriate communications personnel in Customer’s organization to secure approval of the press release if necessary.

13.4 Interpretation. For purposes of this Agreement: (a) the words "include," "includes" and "including" are deemed to be followed by the words "without limitation"; (b) the word "or" is not exclusive; (c) the words "herein," "hereof," "hereby," "hereto" and "hereunder" refer to this Agreement as a whole; (d) words denoting the singular have a comparable meaning when used in the plural, and vice-versa; and (e) words denoting any gender include all genders. Unless the context otherwise requires, references in this Agreement: (x) to sections, exhibits, schedules, attachments and appendices mean the sections of, and exhibits, schedules, attachments and appendices attached to, this Agreement; (y) to an agreement, instrument or other document means such agreement, instrument or other document as amended, supplemented and modified from time to time to the extent permitted by the provisions thereof; and (z) to a statute means such statute as amended from time to time and includes any successor legislation thereto and any regulations promulgated thereunder. The parties intend this Agreement to be construed without regard to any presumption or rule requiring construction or interpretation against the party drafting an instrument or causing any instrument to be drafted. The exhibits, schedules, attachments and appendices referred to herein are an integral part of this Agreement to the same extent as if they were set forth verbatim herein.

13.5 Headings. The headings in this Agreement are for reference only and do not affect the interpretation of this Agreement.

13.6 Entire Agreement. These Terms and Conditions, including the Order Form and any Supplements thereto, 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. 

13.7 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's prior written consent, which consent ImageMover shall not unreasonably withhold or delay. For purposes of the preceding sentence, and without limiting its generality, any merger, consolidation or reorganization involving Customer (regardless of whether Customer is a surviving or disappearing entity) will be deemed to be a transfer of rights, obligations or performance under this Agreement for which ImageMover's prior written consent is required. 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 13.7 is void. This Agreement is binding upon and inures to the benefit of the parties hereto and their respective permitted successors and assigns.

13.8 No Third-party Beneficiaries. This Agreement is for the sole benefit of the parties hereto and their respective permitted successors and permitted assigns and nothing herein, express or implied, is intended to or shall confer upon any other Person any legal or equitable right, benefit or remedy of any nature whatsoever under or by reason of this Agreement.

13.9 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.

13.10 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.

13.11 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. 

13.12 Equitable Relief. Each party acknowledges and agrees that a breach or threatened breach by such party of any of its obligations under Section 7 or, in the case of Customer, Section 3.3 or Section 4.3, would cause the other party irreparable harm for which monetary damages would not be an adequate remedy and agrees that, in the event of such breach or threatened breach, the other party will be entitled to seek equitable relief, including a restraining order, an injunction, specific performance and any other relief that may be available from any court, without any requirement to post a bond or other security, or to prove actual damages or that monetary damages are not an adequate remedy. Such remedies are not exclusive and are in addition to all other remedies that may be available at law, in equity or otherwise.