a. “Authorized User” means Customer’s employees, consultants, contractors, and agents (i) who are authorized by Customer to access and use the Services under the rights granted to Customer pursuant to this Agreement and (ii) for whom access to the Services has been purchased hereunder.
b. “Added User” means those Authorized Users added by Customer through the Licensed Software during the Term.
c. “Customer” means the customer of NOVO which is a party to this Agreement and identified in the Sales Order as the Customer.
d. “Customer Data” means information, data, and other content, in any form or medium, that is submitted, posted, or otherwise transmitted by or on behalf of Customer or an Authorized User through the Services.
e. “Documentation” means NOVO’s user manuals, handbooks, and guides relating to the Services provided by NOVO to Customer either electronically or in hard copy form/end user documentation relating to the Services.
f. “Effective Date” means the date this Agreement is first executed by each of the Parties hereto, which is inclusive of the Installation and Configuration Services set forth in Section 2 of this Agreement.
g. “Licensed Software” means the NovoPath Software described in the Sales Order. Improvements, modifications, alterations and enhancements to the Licensed Software, and the products of professional services, including without limitation those made by, at the request of, or on behalf of Customer, shall be the sole and exclusive property of NOVO. Such improvements, modifications, alterations and enhancements, and products of professional services, shall be deemed Licensed Software for purposes of this Agreement.
h. “NOVO IP” means the Services, the Licensed Software, the Documentation, and any and all intellectual property provided to Customer or any Authorized User in connection with the foregoing.
i. “Sales Order” means the purchase order and/or applicable Statement of Work between the Customer and NOVO.
j. “Services” means the NovoPath software-as-a-service offering described in the Sales Order, the license of the Licensed Software by NOVO to Customer on the terms set forth in this Agreement, and the related services provided by NOVO to Customer as set forth in this Agreement.
k. “Unit Fees” means the cost for use of the Licensed Software and NOVO IP under the volume based structure set forth in the applicable Sales Order. Unit Fees are configured on the basis of the number of (i) cases created for data entry under the Licensed Software (each a “Case Entry”) and/or (ii) the number of specimens reported under each Case Entry (“Specimens”) (collectively, the “Units”).
l. “Unit Model” means the volume set of Case Entries and/or Specimens purchased by Customer during the term as set forth under an applicable Sales Order.
2. Installation and Configuration.
a. NOVO’s delivery obligations are defined and detailed in the Statement of Work (“SOW”) under the applicable Sales Order. Within ten (10) days of Effective Date, NOVO will contact Customer in order to arrange a time to work with Customer representative for the purpose of establishing key stakeholders and workstreams for each project component. NOVO will also work with Customer to configure the specifications under the applicable SOW to meet Customer’ s operational requirements. In the event that the design of these customized items exceeds ten (10) hours, Customer will be billed for the additional design and development time as specified in Section 2(f) below.
b. NOVO will configure the Licensed Software, together with hardware and supplemental software as set forth in the Sales Order, in accordance with the terms of this Agreement and the specifications set forth in the Sales Order and SOW.
c. NOVO will provide Customer and its Authorized Users with onsite training and two-hour blocks of online training on the Licensed Software at the levels set forth in the Sales Order. In the event that Customer requires additional training, NOVO will provide it at current pricelist pricing.
d. NOVO estimates that the Installation of the Licensed Software system will commence within ten (10) days of receipt of the Initial Payment as set forth in the Sales Order. NOVO will make commercially reasonable efforts to complete Initial Software Delivery (as defined below) within ninety (90) days of commencement of installation. ‘Initial Software Delivery’ means delivering and installing the Licensed Software, but does not include completion of interfaces or templates, training or certain other necessary steps required for use of the Licensed Software (such completed Services referred to as “Installation Completion”). NOVO will make commercially reasonable efforts for Installation Completion as soon as reasonably practicable after installation commencement. However, many variables affect Installation Completion, including without limitation the changes requested by Customer, the availability of Customer’s representatives and the availability of components from third-party vendors. NOVO shall not be responsible for any delay in the Initial Software Delivery and Installation Completion for reasons beyond its reasonable control.
e. NOVO will seek Customer’s approval prior to incurring any unforeseen expenses or additional expenses required to complete the implementation.
f. Any additional consulting services which are provided by NOVO and not included in the Unit Fees as defined in the Sales Order will be paid by Customer at NOVO’s then-current hourly consulting rate. NOVO’s current hourly consulting rate is $250. This will be Customer’s rate and will stay in effect for the first year of the Terms (as defined below) under the Sales Order. NOVO reserves the right to change its hourly rates at any time after that.
3. Access and Use.
a. Provision of Access. Subject to and conditioned on Customer’s payment of the Unit Fees, the Initial Payment as set forth in the applicable Sales Order and such other fees hereunder, and compliance with all the terms and conditions of this Agreement, NOVO hereby grants Customer a non-exclusive, non-transferable right to access and use the Services during the Term, solely for use by Authorized Users in accordance with the terms and conditions herein. Such use is limited to Customer’s internal use. NOVO shall provide to Customer the necessary passwords and network links or connections to allow Customer to access the Services. The total number of Authorized Users is set forth in the Sales Order, and such number represents a minimum number of Authorized Users that Customer agrees to for the Term of this Agreement for purposes of Unit Fees hereunder.
b. Licensed Software and Documentation License. Subject to the terms and conditions contained in this Agreement, NOVO hereby grants to Customer a non-exclusive, non-sublicensable, non-transferable license to use the Licensed Software and the Documentation during the Term solely for Customer’s internal business purposes in connection with its use of the Services.
c. Use Restrictions. Customer shall not use the Services for any purposes beyond the scope of the access granted in this Agreement. Customer shall not at any time, directly or indirectly, and shall not permit any Authorized Users to: (i) copy, modify, or create derivative works of the Services or Licensed Software or Documentation, in whole or in part; (ii) rent, lease, lend, sell, license, sublicense, assign, distribute, publish, transfer, or otherwise make available the Services or Licensed Software or Documentation; (iii) reverse engineer, disassemble, decompile, decode, adapt, or otherwise attempt to derive or gain access to any software component of the Services or Licensed Software, in whole or in part; (iv) remove any proprietary notices from the Services or Licensed Software or Documentation; or (v) use the Services or Licensed Software or Documentation 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.
d. Added Users. The Parties acknowledge and agree that additional users may be required to support Customer’s operational objectives under this Agreement during the Term. Customer shall be permitted to add further Added Users through the Licensed Software in accordance with the terms and conditions of this Agreement; provided that Customer shall, within twenty-four (24) hours thereafter, provide notice to NOVO of any Added User at email@example.com.
e. Reservation of Rights. NOVO reserves all rights not expressly granted to Customer in this Agreement. Except for the limited rights and licenses expressly granted under this Agreement, nothing in this Agreement grants, by implication, waiver, estoppel, or otherwise, to Customer or any third party any intellectual property rights or other right, title, or interest in or to the NOVO IP.
f. Suspension. Notwithstanding anything to the contrary in this Agreement, NOVO may temporarily suspend Customer’s and any Authorized User’s access to any portion or all of the Services if: (i) NOVO reasonably determines that (A) there is a threat or attack on any of the NOVO IP; (B) Customer’s or any Authorized User’s use of the NOVO IP disrupts or poses a security risk to the NOVO IP or to any other customer or vendor of NOVO; (C) Customer, or any Authorized User, is using the NOVO IP for fraudulent or illegal activities; (D) subject to applicable law, Customer has ceased to continue its business in the ordinary course, made an assignment for the benefit of creditors or similar disposition of its assets, or become the subject of any bankruptcy, reorganization, liquidation, dissolution, or similar proceeding; or (E) NOVO’s provision of the Services to Customer or any Authorized User is prohibited by applicable law; (ii) any vendor of NOVO has suspended or terminated NOVO’s access to or use of any third-party services or products required to enable Customer to access the Services (any such suspension described in subclause (i) or (ii), a “Service Suspension”). NOVO shall use commercially reasonable efforts to provide written notice of any Service Suspension to Customer and to provide updates regarding resumption of access to the Services following any Service Suspension. NOVO shall use commercially reasonable efforts to resume providing access to the Services as soon as reasonably possible after the event giving rise to the Service Suspension is cured. NOVO will have no liability for any damage, liabilities, losses (including any loss of data or profits), or any other consequences that Customer or any Authorized User may incur as a result of a Service Suspension.
g. Audit Rights. During the Term, and for a period of one year thereafter, NOVO may have an independent third party reasonably acceptable to Customer conduct an audit of Customer’s books and records, including in electronic form, for the sole purposes of (a) tracking Added Users under the Licensed Software and (b) reviewing the payments set forth in this Agreement. The auditor shall be subject to terms of confidentiality that are materially consistent with those terms set forth herein. To the extent such records are shared with NOVO, all Customer’s records are deemed the Confidential Information of Customer, whether or not marked as confidential, and are subject to the terms of Section 8. Any audit will be conducted in a manner designed to minimize disruption to Customer’s business and during Customer’s normal business hours. NOVO will provide Customer reasonable (no less than 14 days) prior written notice of any audit. NOVO shall pay the costs and expenses of any such audit; provided, however that if an audit reveals an underpayment of five percent or more for the audited period (“Material Underpayment”), Customer shall pay or reimburse such costs and expenses, in addition to any underpaid amounts.
4. Customer Responsibilities.
a. General. Customer is responsible for all its own personnel, IT, equipment and configuration resources (including time) at its own cost to access and make use of the training, Licensed Software and Services. Customer is responsible and liable for all uses of the Services and Licensed Software and Documentation resulting from access provided by Customer, directly or indirectly, whether such access or use is permitted by or in violation of this Agreement. Without limiting the generality of the foregoing, Customer is responsible for all acts and omissions of Authorized Users, and any act or omission by an Authorized User that would constitute a breach of this Agreement if taken by Customer will be deemed a breach of this Agreement by Customer. Customer shall use reasonable efforts to make all Authorized Users aware of this Agreement’s provisions as applicable to such Authorized User’s use of the Services, and shall cause Authorized Users to comply with such provisions. Customer shall notify NOVO of any Added Users in accordance with Section 3(d).
b. Customer will designate and make available its representative for the purposes set forth in Section 2(a) above.
c. Customer’s representative will remain available for the purpose of working with NOVO in order to refine specifications and adjustments to the Licensed Software.
d. During the first 30 days after the date of Installation Completion, Customer will promptly and in writing request reasonable changes and adjustments to the Licensed Software in accordance with Section 2(d) above. The judgment of NOVO as to the necessity and reasonableness of the changes requested by Customer shall be final. If Customer has elected training pursuant to Section 2(c) above, Customer shall make its Authorized Users available for training.
e. Customer and NOVO shall be subject to the terms and conditions as set out in the NovoPath™ Business Associate Agreement (the ‘BAA’) available at https://www.novopath.com/novopath-baa/. Customer acknowledges that the Licensed Software, together with any modifications, alterations and enhancements thereto, including without limitation those made by, at the request of, or on behalf of Customer shall remain at all times the sole and exclusive property of NOVO.
f. During the first 30 days after the date of Installation Completion with respect to any Customer on-premises installation of Licensed Software and thereafter during the Term of this Agreement, including any renewal terms thereof, Customer shall at all times provide NOVO with current VPN information and passwords, such that NOVO may remotely access Customer’s NovoPath system when required. Customer acknowledges that NOVO requires such access in order to provide the Services set forth in this Agreement and to monitor Customer’s use of the Licensed Software for compliance with Customer’s obligations pursuant to this Agreement.
g. After Installation Completion and during the time that Customer is a client of NOVO, Customer will act as a positive reference site and will host NOVO prospective clients during business hours with reasonable notification in advance. Upon Installation Completion and the implementation of the NovoPath Software cloud based services, Customer will participate in a short question/answer article or digital media for marketing purposes or jointly issue a press release in a form agreed to by both Parties. After the successful Installation Completion and the implementation of the NovoPath Software cloud based services, and during the time that Customer is a client of NOVO, Customer will act as a reference site and will host approved NOVO prospective clients during business hours, provided that such requests are made to Customer with reasonable advanced notice and Customer approves the request and schedule in advance.
h. As NOVO modifies existing modules to make them available in the cloud or as web modules or develops new cloud-based modules with the functionality of Licensed Software licensed to Customer, NOVO will coordinate with Customer to implement such cloud solutions (involving NOVO’s proprietary NovoPath Software) for Customer on a mutually acceptable timetable at the agreed upon cost to be quoted and approved separately. Such additional cloud solutions will be Licensed Software and be subject to the terms and conditions of this Agreement and its Schedules. NOVO will make commercially reasonable efforts to promptly complete installation of the NovoPath Software (the “NovoPath Software Installation Completion”) on a mutually agreeable timeline. However, many variables affect NovoPath Software Installation Completion, including changes requested by Customer and the availability and responsiveness of Customer’s representatives, third-party interface partners, clients and other vendors.
5. Maintenance and Technical Support. Subject to the terms and conditions of this Agreement, NOVO shall use commercially reasonable efforts to make the Services available in accordance with the maintenance and technical support service levels set out in the Sales Order.
6. Fees and Payment.
a. Initial Payment. NOVO shall issue Initial Software Delivery and implementation as set forth in the applicable Sales Order.
b. Unit Fees. The Unit Fees payable by Customer under this Agreement are as set forth on each Sales Order under this Agreement. In the event of termination or cancellation of this Agreement, Customer shall not be entitled to a credit or refund of any Units not utilized by Customer under a Unit Model as set forth in the applicable Sales Order; provided that any such unutilized Units may be carried over to a subsequent Renewal Term.
c. Payment; Disputes. All Fees will be due and payable by Customer as indicated in that Sales Order. If a Sales Order does not include applicable payment terms, the Fees under that Sales Order will be due and payable by Customer as invoiced by NOVO. Amounts not paid when due will be subject to a late charge of 1.5% per month or any applicable legal maximum, whichever is less. If NOVO requires use of collection agencies, attorneys, or courts of law for collection of any past-due Fees, Customer will be responsible for those expenses. If Customer disputes any charge or amount on any invoice in good faith and such dispute cannot be resolved promptly through good-faith discussions between the parties, Customer shall pay the amounts due under this Agreement less the disputed amount and the parties shall diligently proceed to resolve such disputed amount. An amount will be considered disputed in good faith if (a) Customer delivers a written statement to NOVO on or before the due date of the invoice, describing in detail the basis of the dispute and the amount being withheld by Customer, (b) such written statement represents that the amount in dispute has been determined after due investigation of the facts and that such disputed amount has been determined in good faith, and (c) all other amounts due from Customer that are not in dispute have been paid in accordance with the terms of this Agreement.
d. Taxes. All Unit Fees and other amounts payable by Customer under this Agreement are exclusive of taxes and similar assessments. Customer is responsible for all sales, use, and excise taxes, and any other similar taxes, duties, and charges of any kind imposed by any federal, state, or local governmental or regulatory authority on any amounts payable by Customer hereunder, other than any taxes imposed on NOVO’s income.
e. Additional Costs. Added Unit Fees. Additional necessary costs which are not included in the Unit Fees include the cost of additional professional services not included in the specifications in the Sales Order; training for Added Users; additional Unit Fees requested by Customer during the Term; the cost of changes which are not included in the specifications in the Sales Order; price increases, if any, imposed by third-party vendors; and shipping costs for items shipped from third-party vendors.
f. Invoicing. Professional Services will be invoiced separately at the end of each month in which such services were rendered and will be due upon receipt.
g. Unit Fees Escalation and Other Purchases. The Unit Fees may be increased annually during the Initial Term as set forth in the Sales Order or at NOVOs sole discretion with 30 days advance written notice to the Customer. If Customer purchases additional software, licenses, or modules from NOVO they will be at the then current pricing after the date hereof.
7. Representations and Warranties.
a. NOVO represents and warrants that:
i. NOVO has the right to enter into this Agreement and to perform all obligations of this Agreement.
ii. The Licensed Software will meet the specifications set forth in the Sales Order.
iii. The system will be compliant with HIPAA recommendations.
b. Customer represents and warrants that:
i. Customer has the right to enter into this Agreement and to perform all obligations of this Agreement.
ii. Improvements, modifications, alterations and enhancements to the Licensed Software, and the products of professional services, made by, at the request of, or on behalf of Customer (“Client Requested Modifications”) will not result in or constitute a violation of any laws, rules, or regulations which apply to the conduct of Customer’s business or any of its facilities.
iii. Client Requested Modifications will not result in or constitute a default or a breach or violation of any contract, commitment or other agreement, instrument or arrangement to which Customer is a party.
8. Confidential Information. From time to time during the Term, either Party may disclose or make available to the other Party information about its business affairs, products, confidential intellectual property, trade secrets, third-party confidential information, and other sensitive or proprietary information, whether orally or in written, electronic, or other form or media/in written or electronic form or media, and whether or not marked, designated, or otherwise identified as “confidential” (collectively, “Confidential Information”). Confidential Information does not include information that, at the time of disclosure is: (a) in the public domain; (b) known to the receiving Party at the time of disclosure; (c) rightfully obtained by the receiving Party on a non-confidential basis from a third party; or (d) independently developed by the receiving Party. The receiving Party shall not disclose the disclosing Party’s Confidential Information to any person or entity, except to the receiving Party’s employees who have a need to know the Confidential Information for the receiving Party to exercise its rights or perform its obligations hereunder. Notwithstanding the foregoing, each Party may disclose Confidential Information to the limited extent required (i) in order to comply with the order of a court or other governmental body, or as otherwise necessary to comply with applicable law, provided that the Party making the disclosure pursuant to the order shall first have given written notice to the other Party and made a reasonable effort to obtain a protective order; or (ii) to establish a Party’s rights under this Agreement, including to make required court filings. With respect to any Confidential Information that constitutes a trade secret (as determined under applicable law), such obligations of non-disclosure will survive the termination or expiration of this Agreement for as long as such Confidential Information remains subject to trade secret protection under applicable law.
9. Intellectual Property Ownership.
a. NOVO IP. Customer acknowledges that, as between Customer and NOVO, NOVO owns all right, title, and interest, including all intellectual property rights, in and to the NOVO IP.
b. Customer Data. NOVO acknowledges that, as between NOVO and Customer, Customer retains all right, title, and interest, in and to the Customer Data. Customer hereby grants to NOVO a right to reproduce and otherwise use the Customer Data and perform all acts with respect to the Customer Data as may be necessary for NOVO to provide the Services to Customer, subject to the terms of the Business Associate Agreement annexed hereto at SCHEDULE B.
10. Warranty Disclaimer. THE NOVO IP IS PROVIDED “AS IS” AND NOVO HEREBY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE. NOVO 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. NOVO MAKES NO WARRANTY OF ANY KIND THAT THE NOVO IP, 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.
11. Limitations of Liability. IN NO EVENT WILL NOVO BE LIABLE UNDER OR IN CONNECTION WITH THIS AGREEMENT UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE, FOR ANY: (a) CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, ENHANCED, OR PUNITIVE DAMAGES; (b) INCREASED COSTS, DIMINUTION IN VALUE OR LOST BUSINESS, PRODUCTION, REVENUES, OR PROFITS; (c) LOSS OF GOODWILL OR REPUTATION; (d) USE, INABILITY TO USE, LOSS, INTERRUPTION, DELAY, OR RECOVERY OF ANY DATA, OR BREACH OF DATA OR SYSTEM SECURITY; OR (e) COST OF REPLACEMENT GOODS OR SERVICES, IN EACH CASE REGARDLESS OF WHETHER NOVO WAS ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES OR SUCH LOSSES OR DAMAGES WERE OTHERWISE FORESEEABLE. IN NO EVENT WILL NOVO’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE EXCEED THE TOTAL AMOUNTS PAID TO NOVO UNDER THIS AGREEMENT IN THE SIX MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO THE CLAIM. NOVO shall not be liable for any failure or inoperability of the Licensed Software due to loss of power, failure of the Internet, act of God, fire, strike or similar event which is beyond the control of NOVO. NOVO shall bear no responsibility for Customer hardware or software other than those products delivered and installed by NOVO pursuant to this Agreement. After installation of the Licensed Software, NOVO will provide Customer with revised Schedules A setting forth the hardware and software products which have been delivered and installed by NOVO. Without limiting the foregoing, to the fullest extent permitted by applicable laws, NOVO excludes and disclaims liability for any losses and expenses of whatever nature and however arising, including without limitation special, incidental or consequential or exemplary damages, arising out of any claim related to Client Requested Modifications. NOVO shall bear no responsibility for the consequences of errors made by users of the Services or Licensed Software.
a. NOVO Indemnification. NOVO will indemnify, defend, and hold the Customer harmless from and against any losses incurred by or imposed upon Customer in connection with any third party claim that Customer’s permitted use of the Licensed Software or NOVO IP, infringes, violates, or misappropriates any third party’s intellectual property rights. Notwithstanding the foregoing, NOVO will have no obligation to indemnify the Customer to the extent that any claim arises from (a) Customer’s or its Authorized User’s use of the Licensed Software or NOVO IP in contravention of this Agreement or any applicable Documentation; (b) the combination or use of the Licensed Software or NOVO IP with any other service, technology, content, or materials that was not provided, specified, or authorized by NOVO; or (c) any modification to the Licensed Software or NOVO IP made by Customer, Authorized User’s or by a third-party on behalf of Customer, or made in accordance with Customer’s specifications.
b. Customer Indemnification. Customer will indemnify, defend, and hold the NOVO harmless from and against any losses incurred by or imposed upon NOVO in connection with any claim arising from (i) the Customer Data or NOVO’s permitted use of the Customer Data or (ii) Customer’s or its Authorized User’s breach of this Agreement, or violation of applicable law.
c. NOVO’s Right to Ameliorate Damages. In the event that a court of competent jurisdiction determines, or in the event that NOVO reasonably determines, that the Licensed Software or NOVO IP infringes, violates, or misappropriates, or may infringe, violate, or misappropriate, any third-party intellectual property right, NOVO will at NOVO’s sole discretion, either: (a) obtain a license for Customer to continue using the Licensed Software or NOVO IP; (b) modify the Licensed Software or NOVO IP to not infringe, violate, or misappropriate the third party’s rights, while retaining substantively equivalent functionality; (c) replace the affected Licensed Software or NOVO IP with functionally equivalent software that does not infringe, violate, or misappropriate the third party’s rights; or (d) if (a), (b), or (c) cannot be obtained after using commercially reasonable efforts to do so, terminate this Agreement and provide Customer a refund of all Fees paid under this Agreement for the affected Services.
13. Term and Termination.
a. Term. The initial term of an applicable Sales Order begins upon the Effective Date stated therein and, unless terminated earlier pursuant to this Agreement’s express provisions, will continue in effect until two (2) years from such date (the “Initial Term”). Each Sales Order will automatically renew annually for successive one year terms unless earlier terminated pursuant to this Agreement’s express provisions or either Party gives the other Party written notice of non-renewal at least 90 days prior to the expiration of the then-current term (each a “Renewal Term” and together with the Initial Term, the “Term”). The Unit Fees and other fee amounts for any such Renewal Term shall be those set forth in NOVO’s standard then current price list as of the start date of such Renewal Term (the “Renewal Term Unit Fees”); provided, however, that if such Renewal Term Unit Fees would exceed by more than 10% the rates of such fees during the immediately preceding year during the Term, then NOVO shall provide written notice of such Renewal Term Fees amounts to Customer at least 120 days prior to the expiration of the then-current term.
b. Termination. In addition to any other express termination right set forth in this Agreement:
i. NOVO may terminate this Agreement, effective on written notice to Customer, if Customer: (A) fails to pay any amount when due hereunder, and such failure continues more than 30 days after NOVO’s delivery of written notice thereof;
ii. 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: (A) is incapable of cure; or (B) being capable of cure, remains uncured 30 days after the non-breaching Party provides the breaching Party with written notice of such breach; or
iii. either Party may terminate this Agreement, effective immediately upon written notice to the other Party, if the other Party: (A) becomes insolvent or is generally unable to pay, or fails to pay, its debts as they become due; (B) 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; (C) makes or seeks to make a general assignment for the benefit of its creditors; or (D) 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.
c. Effect of Expiration or Termination. Upon expiration or earlier termination of this Agreement, Customer shall immediately discontinue use of the Licensed Software and NOVO IP and Customer shall delete, destroy, or return all copies of the NOVO IP and certify in writing to the NOVO that the NOVO IP has been deleted or destroyed. No expiration or termination will affect Customer’s obligation to pay all Unit Fees that may have become due before such expiration or termination or entitle Customer to any refund.
d. Survival. This Section 12(d) and Sections survive any termination or expiration of this Agreement.
a. Entire Agreement. This Agreement, together with any other documents incorporated herein by reference and all related Schedules, 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, and representations and warranties, both written and oral, with respect to such subject matter. In the event of any inconsistency between the statements made in the body of this Agreement, the related Schedules, and any other documents incorporated herein by reference, the following order of precedence governs: (i) first, this Agreement, excluding its Schedules; (ii) second, the Schedules to this Agreement as of the Effective Date; and (iii) third, any other documents incorporated herein by reference.
b. Notices. All notices, requests, consents, claims, demands, waivers, and other communications hereunder (each, a “Notice”) must be in writing and addressed to the Parties at the addresses set forth on the Sales Order (or to such other address that may be designated by the Party giving Notice from time to time in accordance with this Section). All Notices must be delivered by personal delivery, nationally recognized overnight courier (with all fees pre-paid), facsimile or email (with confirmation of transmission), or certified or registered mail (in each case, return receipt requested, postage pre-paid). Except as otherwise provided in this Agreement, a Notice is effective only: (i) upon receipt by the receiving Party; and (ii) if the Party giving the Notice has complied with the requirements of this Section.
c. Force Majeure. In no event shall either Party be liable to the other Party, or be deemed to have breached this Agreement, for any failure or delay in performing its obligations under this Agreement, if and to the extent such failure or delay is caused by any circumstances beyond such Party’s reasonable control, including but not limited to acts of God, flood, fire, earthquake, explosion, war, terrorism, invasion, riot or other civil unrest, strikes, labor stoppages or slowdowns or other industrial disturbances, or passage of law or any action taken by a governmental or public authority, including imposing an embargo.
d. 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 will be effective unless explicitly set forth in writing and signed by the Party so waiving. Except as otherwise set forth in this Agreement, (i) no failure to exercise, or delay in exercising, any rights, remedy, power, or privilege arising from this Agreement will operate or be construed as a waiver thereof, and (ii) no single or partial exercise of any right, remedy, power, or privilege hereunder will preclude any other or further exercise thereof or the exercise of any other right, remedy, power, or privilege.
e. Severability. If any provision of this Agreement is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability will 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 shall negotiate in good faith to modify this Agreement so as to affect their original intent 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.
f. Governing Law; Submission to Jurisdiction. This Agreement is governed by and construed in accordance with the internal laws of the State of New York 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 New York, Any controversy or claim arising out of or relating to this agreement or the validity, inducement, or breach thereof, shall be settled by arbitration before a single arbitrator in New York in accordance with the Commercial Arbitration Rules of the Judicial Arbitration and Mediation Services, (‘JAMS’) then pertaining.
g. Assignment. Customer may not assign any of its rights or delegate any of its obligations hereunder, in each case whether voluntarily, involuntarily, by operation of law or otherwise, without the prior written consent of NOVO. Any purported assignment or delegation in violation of this Section will be null and void. No assignment or delegation will relieve the assigning or delegating Party of any of its obligations hereunder. This Agreement is binding upon and inures to the benefit of the Parties and their respective permitted successors and assigns.
h. Export Regulation. Customer shall comply with all applicable federal laws, regulations, and rules, and complete all required undertakings (including obtaining any necessary export license or other governmental approval), that prohibit or restrict the export or re-export of the Services or any Customer Data outside the US.
i. US Government Rights. Each of the Documentation and the software components that constitute the Services or Licensed Software is a “commercial item” as that term is defined at 48 C.F.R. § 2.101, consisting of “commercial computer software” and “commercial computer software documentation” as such terms are used in 48 C.F.R. § 12.212. Accordingly, if Customer is an agency of the US Government or any contractor therefor, Customer only receives those rights with respect to the Services and Licensed Software and Documentation as are granted to all other end users, in accordance with (a) 48 C.F.R. § 227.7201 through 48 C.F.R. § 227.7204, with respect to the Department of Defense and their contractors, or (b) 48 C.F.R. § 12.212, with respect to all other US Government users and their contractors.
j. Equitable Relief. Each Party acknowledges and agrees that a breach or threatened breach by such Party of any of its obligations under this Agreement 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 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.
k. Counterparts. This Agreement may be executed in counterparts, each of which is deemed an original, but all of which together are deemed to be one and the same agreement.
During the Term of an applicable Sales Order, the Covered Service will provide Yearly Uptime Percentage to Client of at least 99. 5% (the “Service Level Objective” or “SLO”). If NovoPath does not meet the SLO, and Client meets their obligations under this agreement, Client will be eligible to receive Service Credits as described below. This SLA states Client’s sole and exclusive remedy for any failure by NovoPath to meet the SLO. Capitalized terms used in this SLA, but not defined in this SLA, have the meaning set forth in the Agreement.
The following definitions apply to the SLA:
Client Must Request Service Credit. In order to receive any of the Service Credits described above, Client must notify NovoPath Client Services within thirty days from the time Client becomes eligible to receive a Service Credit. Failure to comply with this requirement will forfeit Client’s right to receive a Service Credit. Client becomes eligible to receive Service Credits on the first day of the next Term year. Failure to renew subscription will forfeit Client’s right to receive any service Credit.
Maximum Service Credit. The aggregate maximum number of Service Credits to be issues by NovoPath to Client for any and all Downtime Periods that occur in a Term year will not exceed Fifty (50) hours.
SLA Exclusions. The SLA does not apply to any: (a) partial downtime where a single functionality or service is down while the rest of the application is accessible, (b) any applications or services installed on premise, (c) scheduled downtime required for updates and/or maintenance, (d) error: (i) caused by factors outside of NovoPath’s reasonable control; (ii) that results from Client’s software or hardware or third party software or hardware, or both; (iii) that resulted from breaching the current Agreement.
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