MANAGEMENT SERVICES AGREEMENT
BY CLICKING A BOX INDICATING YOUR ACCEPTANCE OF THIS MANAGEMENT SERVICES AGREEMENT OR BY EXECUTING AN ORDER FORM THAT REFERENCES THIS AGREEMENT (THE “ORDER FORM”, AND TOGETHER WITH THIS MANAGEMENT SERVICES AGREEMENT, THIS “AGREEMENT”), YOU AGREE YOU HAVE READ AND ARE BOUND BY THE TERMS OF THIS AGREEMENT. IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY TO THIS AGREEMENT, IN WHICH CASE THE TERM “CUSTOMER” WILL REFER TO SUCH ENTITY. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH THIS AGREEMENT, YOU MUST NOT ACCEPT THIS AGREEMENT AND MAY NOT USE THE COMPANY PLATFORM.
This Agreement, by and between Customer and Vansanity Management Services Organization (“Company”), is effective as of the date set forth in the Order Form or the date on which Customer clicks a box accepting this Agreement (the “Effective Date”) and governs Customer’s use of Company’s proprietary software-as-a-service platform which enables med spa owners to easily manage their med spa (the “Company Platform”). Customer wishes to access and use the Company Platform to, among other things, enable patient scheduling, maintenance of medical records, billing and collections, ordering of equipment and products and inventory tracking of such equipment and products. Company reserves the right to change or modify portions of this Agreement at any time. If Company does so, it will post the changes on this page and will indicate at the top of this page the date this Agreement was last revised. Company will also notify Customer, either through the Company Platform user interface, in an email notification or through other reasonable means. Any such changes will become effective no earlier than fourteen (14) days after being posted, except that changes addressing new functions of the Company Platform or changes made for legal reasons may become effective immediately; provided, that, if any such changes or modifications materially adversely affect Customer, Customer may terminate this Agreement upon written notice to Company within fourteen (14) days’ of receiving notice of such change or modification. Customer’s continued use of the Company Platform thereafter constitutes acceptance of such changes or modifications. Each of Company and Customer may be referred to herein individually as a “Party” or collectively as “Parties”.
ACCESS TO PLATFORM.
Access to Platform. Subject to the terms and conditions of this Agreement, Company will use commercially reasonable efforts to make the Company Platform available to Customer and to fulfill any requests for equipment and products submitted therethrough. Subject to the terms and conditions of this Agreement, Company hereby grants Customer the limited, non-exclusive, non-transferable, non-sublicenseable right to access and use the Company Platform during the Term solely for Customer’s internal business purposes. Customer will be responsible for maintaining the confidentiality of Customer’s usernames, passwords and account details. Customer will be responsible for any actions taken by parties with access to such usernames and passwords, and Customer agrees not to disclose such usernames and passwords to any third parties (other than employees of Customer). Customer will inform Company immediately if it discovers that any such username and/or password has been disclosed or made available to a third party.
License Restrictions and Responsibilities. Customer will not use the Company Platform for any purpose other than the purposes expressly set forth herein. Customer may not, directly or indirectly: (a) reverse engineer, decompile, disassemble or otherwise attempt to discover the source code, object code or underlying structure, ideas, know-how or algorithms relevant to the Company Platform; (b) modify, translate, or create derivative works based on the Company Platform (except to the extent expressly permitted by Company); (c) use the Company Platform for timesharing or service bureau purposes or otherwise for the benefit of a third party; or (d) remove any proprietary notices or labels. Customer shall be responsible for obtaining and maintaining any equipment and ancillary services needed to connect to, access or otherwise use the Company Platform, including, without limitation, modems, hardware, server, software, operating system, networking, web servers and the like.
License to Customer Data. Customer hereby grants to Company a non-exclusive, royalty-free, fully paid up, non-sublicenseable (except to contractors and consultants performing services on behalf of Company), non-transferable (subject to Section 11.6) right and license to copy, distribute, display, create derivative works of and otherwise use the data or information submitted, transmitted or uploaded by Customer via the Company Platform (the “Customer Data”) to (a) perform its obligations under this Agreement, (b) improve and develop its products and services and (c) create anonymized and/or aggregated data (“Aggregated Data”), which Aggregated Data will not identity of Customer and/or its individual clients. For the avoidance of doubt, Aggregated Data is not Customer Data. The Parties acknowledge and agree that the Company Platform is not intended to capture any personally identifiable information or personal health information, and Customer will ensure that the Customer Data does not include any such information.
Feedback. Customer may from time to time provide suggestions, comments for enhancements or functionality or other feedback (“Feedback”) to Company with respect to the Company Platform or Evaluation Services (as defined below). Company will have full discretion to determine whether or not to proceed with the development of the requested enhancements, new features or functionality. Customer hereby grants to Company a royalty-free, fully paid up, worldwide, transferable, sublicenseable, irrevocable, perpetual license to (a) copy, distribute, transmit, display, perform, and create derivative works of the Feedback, and (b) use the Feedback and/or any subject matter thereof, including without limitation, the right to develop, manufacture, have manufactured, market, promote, sell, have sold, offer for sale, have offered for sale, import, have imported, rent, provide and/or lease products or services which practice or embody, or are configured for use in practicing, the Feedback and/or any subject matter of the Feedback.
Evaluation Services. From time to time, Customer may be invited to try certain services at no charge for a free trial or evaluation period or if such services are not generally available to customers (collectively, “Evaluation Services”). Evaluation Services will be designated as beta, pilot, evaluation, trial, limited release or the like. Evaluation Services are for Customer’s internal evaluation purposes only and are provided “as is” without warranty of any kind, and may be subject to additional terms. Unless otherwise stated, any Evaluation Services trial period will expire sixty (60) days from the trial start date. Company may discontinue Evaluation Services at any time in its sole discretion and may never make them generally available. Company will have no liability for any harm or damage arising out of or in connection with any Evaluation Services.
Third Party Services. The Company Platform may enable access to or integration with certain third party services, products, solutions, software or technology which are currently or may be in the future utilized by Customer and with respect to which Customer has a separate contractual relationship with the applicable third party (collectively, the “Third Party Services”) to enhance Customer’s use of the Company Platform. The Third Party Services may also be subject to additional terms and conditions, privacy policies, or other agreements with such third party, and Customer may be required to authenticate to or create separate accounts to use Third Party Services. Some Third Party Services may provide Company with access to certain information that Customer has provided to such Third Party Services. Any data, information or other materials collected via or received by Company from any Third Party Service will be deemed Customer Data and will be treated by Company as Confidential Information. Company has no control over and is not responsible for such Third Party Services, including for the accuracy, availability, reliability or completeness of information shared by or available through Third Party Services, or on the privacy practices of Third Party Services. Company encourages Customer to review the privacy policies of Third Party Services prior to using them. Company will not be responsible or liable, directly or indirectly, for any damage or loss caused or alleged to be caused by or in connection with use of or reliance on any Third Party Services. Company enables these Third Party Services merely as a convenience and the integration or inclusion of such Third Party Services does not imply an endorsement or recommendation. Any dealings Customer has with third parties while using the Company Platform are between Customer and the third party. Company is not liable for any loss caused by or claim that Customer may have against any such third party or that arise under Customer’s agreements with any such third party.
Purchasing. Customer can place orders for products (“Products”) offered and supplied by third-party suppliers or vendors (“Suppliers”) on the Company Platform. Orders for Products placed by Customer on the Company Platform are “Purchase Orders”.
Purchase Orders and Vendor of Record. Products are supplied by Suppliers and shipped directly from Supplier to Customer. Notwithstanding, for any Purchase Order placed on the Company Platform, Company may be listed as the vendor of record for such Products, and Customer will pay Company directly for such Products.
Purchase Order Confirmation. All Purchase Orders are subject to the confirmation of the applicable Supplier; a Purchase Order is not confirmed until Company provides written confirmation to Customer (notification via email or the Company Platform portal sufficient). Company will use reasonable efforts to confirm a Purchase Order by the end of the next business day of a Purchase Order’s authorization or approval pursuant to this Agreement. A Supplier may reject a Purchase Order and/or propose different pricing for Products, different Product volume or unit number availability, different Product shipping costs or timing, or other terms that differ from the initial Purchase Order. In such an event, Company will provide notice to Customer of such different terms (such notice, the “Purchase Order Exception”). Customer may accept the Purchase Order Exception via the Company Platform (in which case, such new terms supersede the prior Purchase Order and such new terms are deemed the Purchase Order), or Customer may reject the Purchase Order Exception, in which case the applicable Purchase Order will be cancelled.
Suppliers. All Purchase Orders are subject to the terms and conditions of the applicable Supplier and the terms and details listed on the Company Platform page for such Product (collectively, the “Supplier Policies”). Supplier Policies include shipping and return policies of the applicable Supplier as well as the warranties for any Product. The Supplier Policies are subject to change, in each Supplier’s sole discretion. Before placing any Purchase Orders, Customer must review the applicable Supplier Policies as they may be updated, and will govern the purchase of any Product. As between Company and Customer, in the event of a conflict between the Supplier Policies and this Agreement, this Agreement will govern.
Authorization. Certain Authorized Users will be designated by Customer in writing or appointed by Customer via the Company Platform as “Administrative Users”. Administrative Users have the permissions to act on behalf of the Customer, including to remove or authorize new Authorized Users, or to designate Authorized Users as accounts with the authority to approve or accept certain Purchase Orders or Purchase Order Exceptions initiated by other Authorized Users (the Authorized Users with such approval authority, the “Approvers”). Purchase Orders will not be processed until approved by an applicable Approver. Any Purchase Order or Purchase Order Exception approved or accepted by an Approver account (whether or not such action was authorized or permitted by Customer) will be fully processed and submitted and subject to the Supplier Policies and this Agreement.
Product Pricing. Prices for Products are listed on the appropriate Company Platform page for such Product, and are subject to change. Company may offer discounts as agreed to in writing by Customer and Company in a separate agreement or additional discounts at its sole discretion. Customer must remit the discounted price listed on the Company Platform for each such Product, or, if applicable, the revised price set out in an Purchase Order Exception accepted by Customer.
Support. Support for Products will be provided by the applicable Suppliers, and Company will provide reasonable assistance to Customer in coordinating such support.
Ownership; Reservation of Rights. Customer acknowledges and agrees that, as between the Parties, Company retains all right, title and interest in and to the Company Platform and all intellectual property rights therein and thereto. Company grants no, and reserves any and all, rights other than the rights expressly granted to Customer under this Agreement with respect to the Company Platform. Customer will acquire no right, title, or interest in and to the Company Platform other than the limited licensed rights expressly granted under this Agreement. Notwithstanding the foregoing, Customer retains all right, title and interest in and to the Customer Data.
FEES; PAYMENT TERMS.
Fees; Payment Terms. In exchange for use of the Company Platform and the rights granted pursuant to this Agreement, Customer will pay to Company the fees set forth in the Order Form (or selected by Customer in subscribing to the Company Platform via any online menu presented by Company, if applicable) (the “Service Fees”) in accordance with the terms and conditions set forth herein and therein. Company may, in its sole discretion, introduce new fees applicable to the Company Platform, or increase any of the existing Service Fees for any Renewal Term (as defined below), provided that Company gives Customer written notice of any such additional fees or Service Fee increases at least ninety (90) days’ prior to the end of the then-current term. If Company does not provide such notice to Customer, then the Service Fees applicable to the immediately prior term will continue to apply to the subsequent Renewal Term. Payment obligations are non-cancelable and fees paid are non-refundable.
Net of Taxes. All amounts payable by Customer to Company hereunder are exclusive of any sales, use and other taxes or duties, however designated, including without limitation, withholding taxes, royalties, know-how payments, customs, privilege, excise, sales, use, value-added and Platform taxes (collectively “Taxes”). Customer will be solely responsible for payment of any Taxes, except for those taxes based on the income of Company. Customer will not withhold any Taxes from any amounts due Company.
Term; Termination. Subject to earlier termination as set forth in this Agreement, the term of this Agreement will commence on the Effective Date and continue for the initial subscription period set forth in the Order Form (or selected by Customer in subscribing to the Company Platform via any online menu presented by Company, if applicable) (the “Initial Term”), and shall automatically renew for additional periods of the same duration, unless either Party provides written notice of non-renewal at least sixty (60) days prior to the end of the then-current term (each, a “Renewal Term”, and together with the Initial Term, the “Term”). In addition, a Party may terminate this Agreement immediately if the other Party materially breaches any material provision of this Agreement and does not cure such material breach within thirty (30) days after receiving written notice thereof.
Effect of Termination. In the event that this Agreement expires or is terminated for any reason, all rights with respect to the Company Platform will immediately terminate, and Customer will (a) cease use of the Company Platform; (b) return to Company or destroy, in Company’ sole discretion, all copies or other embodiments of Company’s Confidential Information; and (c) pay to Company all amounts due and owing under this Agreement.
Survival. Upon termination of this Agreement, all obligations in this Agreement will terminate, provided that Sections 1.3 (License Restrictions and Responsibilities), 1.4 (License to Customer Data), 1.5 (Feedback), 3 (Ownership; Reservation of Rights), 4 (Fees; Payment Terms), 5 (Term; Termination), 6 (Confidentiality), 7.2 (Disclaimer), 8 (Limitations of Liability), 9 (Indemnification) and 11 (General) will survive.
Definition of Confidential information. “Confidential Information” means, subject to the exceptions set forth in Section 6.2 hereof, any information or data or materials, regardless of whether it is in tangible form, that is disclosed or otherwise made available by a party (the “Discloser”) to the other party (the “Recipient”) and that (a) the Discloser has marked as confidential or proprietary, or (b) the Discloser identifies as confidential at the time of disclosure with written confirmation within fifteen (15) days of disclosure to the Recipient; provided, however, that reports and/or information related to or regarding the Discloser’s business plans, business methodologies, strategies, technology, specifications, development plans, customers, prospective customers, partners, suppliers billing records, and products or services will be deemed Confidential Information of the Discloser even if not so marked or identified, unless such information is the subject of any of the exceptions set forth in Section 6.2 hereof.
Exceptions to Confidential Information. Confidential Information will not include any information which: (a) the Recipient can show by written record was in its possession prior to disclosure by the Discloser hereunder, provided that the Recipient must promptly notify the Discloser of any prior knowledge; (b) appears in issued patents or printed publications in integrated form or which otherwise is or becomes generally known by the public other than through the Recipient’s failure to observe any or all terms and conditions hereof; or (c) subsequent to disclosure to the Recipient by the Discloser, is obtained by the Recipient from a third person who is not subject to any confidentiality obligation in favor of Discloser.
Use and Disclosure of Confidential Information. The Recipient may only use the Confidential Information for the purpose of performing its obligations and exercising its rights hereunder. The Recipient must keep secret and will never disclose, publish, divulge, furnish or make accessible to anyone any of the Confidential Information of the Discloser, directly or indirectly, other than furnishing such Confidential Information to (a) the Recipient’s employees who are required to have access to such Confidential Information in connection with the performance of the Recipient’s obligations, or the exercise of the Recipient’s rights, hereunder, and (b) professional advisers (e.g., lawyers and accountants), in each case, during the time that the Recipient is permitted to retain such Confidential Information hereunder; provided that any and all such employees are bound by written agreements or, in the case of professional advisers, ethical duties, respecting the Confidential Information in the manner set forth in this Agreement. The Recipient will use at least reasonable care and adequate measures to protect the security of the Confidential Information of the Discloser and to ensure that any Confidential Information of the Discloser is not disclosed or otherwise made available to other persons or used in violation of this Agreement.
Disclosures Required by Law. In the event that the Recipient is required by law to make any disclosure of any of the Confidential Information of the Discloser, by subpoena, judicial or administrative order or otherwise, the Recipient will first give written notice of such requirement to the Discloser, and will permit the Discloser to intervene in any relevant proceedings to protect its interests in the Confidential Information, and provide full cooperation and assistance to the Discloser in seeking to obtain such protection.
REPRESENTATIONS and WARRANTIES; DISCLAIMER.
Representations and Warranties. Each Party represents and warrants to the other Party that (a) such Party has the required power and authority to enter into this Agreement and to perform its obligations hereunder, (b) the execution of this Agreement and performance of its obligations thereunder do not and will not violate any other agreement to which it is a party, and (c) this Agreement constitutes a legal, valid and binding obligation when signed by both Parties. In addition, Customer represents and warrants that (i) Customer and its owner(s), personnel and agents are duly licensed, registered and qualified under all applicable laws, rules and regulations to furnish any services offered through the Company Platform and to operate and furnish any equipment or supplies purchased or leased through the Company Platform, (ii) all personnel employed or contracted by Customer to furnish any services offered through the Company Platform and to operate and furnish any equipment or supplies purchased or leased through the Company Platform are appropriately supervised with respect to the provision of services to patients in accordance with applicable laws, rules and regulations; (iii) any services offered through the Company Platform shall be furnished in accordance with, applicable law, rules and regulations and the ethics and standards of care of the community in which Customer is located (including compliance with any laws requiring certain services to be provided by certain medical professionals, such as physicians or nurse practitioners); and (iv) neither Customer nor any of its owners, personnel or agents are or have been sanctioned or investigated by any state professional licensing board, accrediting organization, or the department of health, and there is no pending investigation or proceeding that could result in Customer its owner(s), personnel, or agents being sanctioned by such an entity.
Disclaimer. EXCEPT AS EXPRESSLY SET FORTH HEREIN, THE COMPANY PLATFORM IS PROVIDED ON AN “AS-IS” BASIS AND COMPANY DISCLAIMS ANY ADDITIONAL REPRESENTATION OR WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED (EITHER IN FACT OR BY OPERATION OF LAW), OR STATUTORY, AS TO ANY MATTER WHATSOEVER. COMPANY EXPRESSLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUALITY, ACCURACY, TITLE, AND NON-INFRINGEMENT. COMPANY DOES NOT WARRANT THAT THE COMPANY PLATFORM IS ERROR-FREE OR THAT OPERATION OF THE COMPANY PLATFORM WILL BE SECURE OR UNINTERRUPTED.
Disclaimer Regarding Suppliers and Products. With respect to Product purchases, Customer acknowledges that Company only provides the Company Platform as a marketplace solution for Customer to purchase Products that are provided by Suppliers. Company does not fulfill Purchase Orders and only assists in the processing or placing thereof. Company does not ship or inspect any Products, and Company does not guarantee that a Supplier will actually fulfill a Purchase Order. Except as explicitly provided in this Agreement, (a) Company makes no representations or warranties about the suitability, reliability, timeliness or accuracy of any information provided by Suppliers and does not independently verify this information, and (b) Company makes no representations or warranties as to the quality, safety or legality of items advertised, or that a Product will meet the Customer’s requirements, needs or expectations. Company is not responsible to Customer, or any of Customer’s own customers, clients, buyers or end users as relates to their or Customer’s use of the Products, or for any disputes with or liability that may arise with any Supplier.
limitations of liability.
Disclaimer of Consequential Damages. EXCEPT FOR (A) CUSTOMER’S BREACH OF SECTION 1.3 (LICENSE RESTRICTIONS AND RESPONSIBILITIES) ABOVE AND (B) EITHER PARTY’S BREACH OF SECTION 6 (CONFIDENTIALITY) ABOVE, IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER FOR ANY SPECIAL, INDIRECT, RELIANCE, INCIDENTAL OR CONSEQUENTIAL DAMAGES OF ANY KIND, LOST OR DAMAGED DATA, LOST PROFITS OR LOST REVENUE, WHETHER ARISING IN CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, EVEN IF A PARTY HAS BEEN NOTIFIED OF THE POSSIBILITY THEREOF.
General Cap on Liability. EXCEPT FOR (A) CUSTOMER’S BREACH OF SECTION 1.3 (LICENSE RESTRICTIONS AND RESPONSIBILITIES) ABOVE, (B) EITHER PARTY’S BREACH OF SECTION 6 (CONFIDENTIALITY) ABOVE, AND (C) LIABILITY ARISING FROM A PARTY’S INDEMNIFICATION OBLIGATIONS SET FORTH IN SECTIONS 9.1 AND 9.2 BELOW, AS APPLICABLE, UNDER NO CIRCUMSTANCES WILL EITHER PARTY’S LIABILITY FOR ALL CLAIMS ARISING UNDER OR RELATING TO THIS AGREEMENT (INCLUDING BUT NOT LIMITED TO WARRANTY CLAIMS), REGARDLESS OF THE FORUM AND REGARDLESS OF WHETHER ANY ACTION OR CLAIM IS BASED ON CONTRACT, TORT, OR OTHERWISE, EXCEED THE AGGREGATE FEES PAID AND PAYABLE BY CUSTOMER TO COMPANY UNDER THIS AGREEMENT DURING THE TWELVE (12) MONTHS PRECEDING THE CLAIM. THIS LIMITATION OF LIABILITY IS CUMULATIVE AND NOT PER INCIDENT.
Independent Allocations of Risk. EACH PROVISION OF THIS AGREEMENT THAT PROVIDES FOR A LIMITATION OF LIABILITY, DISCLAIMER OF WARRANTIES, OR EXCLUSION OF DAMAGES IS TO ALLOCATE THE RISKS OF THIS AGREEMENT BETWEEN THE PARTIES. EACH OF THESE PROVISIONS IS SEVERABLE AND INDEPENDENT OF ALL OTHER PROVISIONS OF THIS AGREEMENT, AND EACH OF THESE PROVISIONS WILL APPLY EVEN IF THEY HAVE FAILED OF THEIR ESSENTIAL PURPOSE.
Indemnification by Company. Company will indemnify, defend and hold Customer and the officers, directors, agents, and employees of Customer (“Customer Indemnified Parties”) harmless from settlement amounts and damages, liabilities, penalties, costs and expenses (“Liabilities”) that are payable to any third party by the Customer Indemnified Parties (including reasonable attorneys’ fees) arising from any claim, demand or allegation by a third party that the Company Platform infringes any United States copyright or trade secret (except for claims for which Company is entitled to indemnification under Section 9.2, in which case Company will have no indemnification obligations with respect to such claim). Company will have no liability or obligation under this Section 8.1 with respect to any Liability if such Liability is caused in whole or in part by: (a) modification of the Company Platform by any party other than Company; (b) the combination, operation, or use of the Company Platform with other product(s), data or services where the Company Platform would not by itself be infringing; or (c) unauthorized or improper use of the Company Platform. This Section 9.1 states Company’ entire obligation and Customer’s sole remedies in connection with any claim regarding the intellectual property rights of any third party.
Indemnification by Customer. Customer will indemnify, defend and hold Company and the officers, directors, agents, and employees of Company (“Company Indemnified Parties”) harmless from Liabilities that are payable to any third party by the Company Indemnified Parties (including reasonable attorneys’ fees) arising from, directly or indirectly, any claim, demand or allegation by a third party that arises out of or is in connection with (a) any use by Customer of the Company Platform in violation of this Agreement, (b) Company’s use of the Customer Data in accordance with this Agreement, (c) Customer’s violation of any terms and conditions related to and/or governing use of any Third Party Services, and (d) Customer’s violation of any Supplier Policies.
Action in Response to Potential Infringement. If the use of the Company Platform by Customer has become, or in Company’s opinion is likely to become, the subject of any claim of infringement, Company may at its option and expense (a) procure for Customer the right to continue using the Company Platform as set forth hereunder; (b) replace or modify the Company Platform to make it non-infringing so long as the Company Platform has at least equivalent functionality; (c) substitute an equivalent for the Company Platform or (d) if options (a)-(c) are not reasonably practicable, terminate this Agreement.
Indemnification Procedure. If a Customer Indemnified Party or a Company Indemnified Party (each, an “Indemnified Party”) becomes aware of any matter it believes it should be indemnified under Section 9.1 or Section 9.2, as applicable, involving any claim, action, suit, investigation, arbitration or other proceeding against the Indemnified Party by any third party (each an “Action”), the Indemnified Party will give the other Party (the “Indemnifying Party”) prompt written notice of such Action. The Indemnified Party will cooperate, at the expense of the Indemnifying Party, with the Indemnifying Party and its counsel in the defense and the Indemnified Party will have the right to participate fully, at its own expense, in the defense of such Action with counsel of its own choosing. Any compromise or settlement of an Action will require the prior written consent of both Parties hereunder, such consent not to be unreasonably withheld or delayed.
GOVERNMENT MATTERS. Customer may not remove or export from the United States or allow the export or re-export of the Company Platform, or any direct product thereof in violation of any restrictions, laws or regulations of the United States Department of Commerce, the United States Department of Treasury Office of Foreign Assets Control, or any other United States or foreign agency or authority. As defined in FAR section 2.101, the Company Platform (including the software, documentation and data related thereto) are “commercial items” and according to DFAR section 252.227-7014(a)(1) and (5) are deemed to be “commercial computer software” and “commercial computer software documentation.” Consistent with DFAR section 227.7202 and FAR section 12.212, any use modification, reproduction, release, performance, display, or disclosure of such commercial software or commercial software documentation by the U.S. Government will be governed solely by the terms of this Agreement and will be prohibited except to the extent expressly permitted by the terms of this Agreement.
Force Majeure. No Party hereto will have any liability under this Agreement for such Party’s failure or delay in performing any of the obligations imposed by this Agreement to the extent such failure or delay is the result of any event beyond such Party’s reasonable control, including: (a) any fire, explosion, unusually severe weather, natural disaster or Act of God; (b) epidemic; any nuclear, biological, chemical, or similar attack; any other public health or safety emergency; any act of terrorism; and any action reasonably taken in response to any of the foregoing; (c) any act of declared or undeclared war or of a public enemy, or any riot or insurrection; (d) damage to machinery or equipment; any disruption in transportation, communications, electric power or other utilities, or other vital infrastructure; or any means of disrupting or damaging internet or other computer networks or facilities; (e) any strike, lockout or other labor dispute or action; or (f) any action taken in response to any of the foregoing events by any civil or military authority.
Severability. In the event that any provision of this Agreement is found to be unenforceable, such provision will be reformed only to the extent necessary to make it enforceable, and the remainder will continue in effect, to the extent consistent with the intent of the parties as of the Effective Date. The terms and conditions of this Agreement are severable. If any term or condition of this Agreement is deemed to be illegal or unenforceable under any rule of law, all other terms will remain in force. Further, the term or condition which is held to be illegal or unenforceable will remain in effect as far as possible in accordance with the intention of the parties as of the Effective Date.
Relationship of the Parties. Nothing in this Agreement will be construed to place the Parties in an agency, employment, franchise, joint venture, or partnership relationship. Neither Party will have the authority to obligate or bind the other in any manner, and nothing herein contained will give rise or is intended to give rise to any rights of any kind to any third Parties. Neither Party will represent to the contrary, either expressly, implicitly or otherwise.
Remedies. Each Party acknowledges that a breach by it of any of the terms of Section 6 may cause irreparable harm to the Discloser for which Discloser could not be adequately compensated by money damages. Accordingly, Recipient agrees that, in addition to all other remedies available to Discloser in an action at law, in the event of any breach or threatened breach by the Recipient of the terms of this Agreement, the Discloser may seek, from any court of competent jurisdiction and without the necessity of proving actual damages or posting any bond or other security, temporary and permanent injunctive relief, including specific performance of the terms of Section 6.
Governing Law; Consent to Jurisdiction. The law, including the statutes of limitation, of the Commonwealth of Massachusetts will govern this Agreement, the interpretation and enforcement of its terms and any claim or cause of action (in law or equity), controversy or dispute arising out of or related to it or its negotiation, execution or performance, whether based on contract, tort, statutory or other law, in each case without giving effect to any conflicts-of-law or other principle requiring the application of the law of any other jurisdiction. Each of the parties hereto hereby irrevocably and unconditionally consents to submit to the sole and exclusive jurisdiction of the courts of the Commonwealth of Massachusetts and of the United States of America located in the Commonwealth of Massachusetts (the “Massachusetts Courts”) for any litigation among the parties hereto arising out of or relating to this Agreement, or the negotiation, validity or performance of this Agreement, waives any objection to the laying of venue of any such litigation in the Massachusetts Courts and agrees not to plead or claim in any Massachusetts Court that such litigation brought therein has been brought in any inconvenient forum or that there are indispensable parties to such litigation that are not subject to the jurisdiction of the Massachusetts Courts.
Assignment; Delegation; Binding Effect. Neither Party may assign or transfer this Agreement in whole or in part, by operation of law or otherwise, without the prior written consent of the other Party, except that either Party may assign or transfer this Agreement without the written consent of the other Party to an affiliate or corporation or other business entity succeeding to all or substantially all the assets and business of the assigning Party to which this Agreement relates by merger or purchase. Company may delegate its duties hereunder to any of its affiliates as necessary to perform its obligations hereunder, provided that Company will bear full liability and responsibility for their acts and omissions. Any attempted assignment, delegation or transfer by a Party in violation hereof will be null and void. Subject to the foregoing, this Agreement will be binding on the Parties and their successors and permitted assigns.
Notices. All notices under this Agreement will be in writing and will reference this Agreement. Notices will be deemed given: (i) when delivered personally; (ii) three (3) days after having been sent by registered or certified mail, return receipt requested, postage prepaid; (iii) by email for which receipt is confirmed or (iv) one (1) day after deposit with an internationally recognized commercial overnight carrier, with written verification of receipt. All communications will be sent to the address set forth below if for Company or, if for Customer, to the address provided on the Order Form or during the registration process, as applicable, or such other addresses designated pursuant to this Section 11.7.
Vansanity Management Services Organization
1536 Massachusetts Avenue
Lexington, MA 02420
Attn: Ignacio Fanlo or Shannon Seeberan
No Waiver. Failure by either Party to enforce any provision of this Agreement will not be deemed a waiver of future enforcement of that or any other provision.
Complete Agreement. This Agreement constitutes the entire agreement between the Parties with respect to the subject matter hereof. It supersedes and replaces all prior or contemporaneous understandings or agreements, written or oral, regarding such subject matter, and prevails over any conflicting terms or conditions contained on printed forms submitted with purchase orders, sales acknowledgments or quotations. To the extent of any conflict or inconsistency between the provisions in the body of this Management Services Agreement and any applicable Order Form, the terms of this Management Services Agreement will prevail, unless the Order Form expressly amends a provision in this Management Services Agreement.