Master Services Agreement

WHEREAS, Provider has developed the Way To Health (“W2H”) platform, a proprietary software program for medical research and patient engagement, and Customer wishes to obtain subscription rights to access and use W2H in a Software as a Service (SaaS) model (“Platform Services”) through specified sites that will function in accordance with agreed service levels; and

WHEREAS, this Agreement is a master agreement and details of specific applications of W2H will be specified in separate service orders (each a “Service Order”), which shall set forth the business terms and which shall be governed by the terms and conditions of this Agreement; and

NOW, THEREFORE, in consideration of the mutual promises contained herein and for other good and valuable consideration, and intending to be legally bound, the Parties hereto agree as follows:

1. Definitions

• 1.1 - Affiliate shall mean
  • (a) any persons or entities that, directly or indirectly, control, are controlled by, or are under common control with either Party, or
  • (b) any persons or entities that are acquired, managed, or operated by either Party, whether by membership, stock ownership, joint operating agreement, or other substantial relationship. Control means, with respect to a corporation, the direct or indirect control of more than fifty percent (50%) of the voting power to elect directors thereof, or with respect to any other entity, the power to direct the management or management policies of such entity.
• 1.2 - Agreement means this Master Software as a Service Agreement as defined above, and includes any Exhibits or Appendices thereto.
• 1.3 - Authorized Users or Users means all persons authorized by Customer to access the Services through Customer’s account under this Agreement, each of which shall be identified by Customer’s written notice to Provider as set forth in an applicable Service Order. Customer may have only as many Authorized Users activated at any one time for the Services as specified in the applicable Service Order. No registered account may be shared or accessed by more than one Authorized User.
• 1.4 - Customer Data means all data, reports, information, or other materials created by Customer on or through the Platform Services.
• 1.5 - Permitted Uses means access and use of the Services by Customer for the benefit of Customer for Customer’s research and patient engagement operations or for Authorized Users within Customer’s network of physicians, case managers and patients.
• 1.6 - Platform Services shall mean the research and patient engagement platform as a service that it makes available through an internet accessible user interface or other Provider web site.
• 1.7 - Professional Services means those services provided by Provider in connection with the delivery of Services to the Customer but invoiced as a separate line item from the Platform Services itself such as, by way of example, set up, implementation, training, customization and other professional services.
• 1.8 - Service Order means an official order request for Platform Services and/or Professional Services which should include all of the data elements of the order, including a description of what is being ordered, product specifications, quantity, price, service levels, payment terms and order duration. Once signed by both Parties, each Service Order shall be incorporated by reference into, and subject to the terms of this Agreement.

2. Scope of Agreement

• 2.1 - Service Orders. This Agreement sets forth the terms and conditions for Customer’s purchase of a subscription to the Services subject to an applicable Service Order entered into between the Parties hereto. From time to time, Customer may add new Service Orders, which, upon execution by both Parties, will be subject to the terms and conditions of this Agreement.
• 2.2 - Access. Provider shall provide Customer with a subscription to access the Platform Services and service support levels as identified in an applicable Service Order. and according to the service levels indicated in Exhibit A attached hereto
• 2.3 - Authorized Users. Customer may allow any Authorized User designated by Customer to access the Platform Services, subject to the restrictions in this Agreement and an applicable Service Order, which shall specify the type of User and the number of Users that may be activated at any one time for the Platform Services. No registered account may be shared or accessed by more than one User.
• 2.4 - Support Services. Provider shall provide Customer with support services as described in Exhibit A. (the “Service Level Agreement”).
• 2.5 - Professional Services. Provider, where requested, will provide Customer training, implementation, customization, and/or other professional services as described in an applicable Service Order. (the “Professional Services”).

3. Reservation of Rights
Provider hereby reserves all rights in and to the Platform Services, Support Services, and Professional Services, and any underlying or related software for the foregoing (the “Software”). Nothing in this Agreement will be deemed to grant any license therein. Customer is entitled to, and is hereby granted the worldwide right, during the term of this Agreement, to access the Platform Services solely in accordance with the terms of this Agreement for no royalty except for fees agreed to hereunder. Customer shall NOT decompile, disassemble, reverse engineer, reverse assemble, analyze or otherwise examine, prepare derivative works of, modify, or attempt to derive source code from the Platform Services or associated Software. Customer shall not frame or utilize framing techniques to enclose any marks of Provider or its third party suppliers or partners, or other proprietary information (including images, text, page, layout or form), without Provider’s prior written consent.

4. Customer Obligations

• 4.1 - No Resale. The Platform Services are to be accessed by Customer and its Authorized Users only, and only for Customer’s Permitted Uses, not for resale or distribution to any third party.
• 4.2 - Access of Services by Users. Customer agrees to require that each of its Authorized Users agree that (i) such User is solely responsible for the content of all visual, written or audible communications using such User’s account, (ii) such User will not use the Services to send unsolicited mass communications outside such User’s or Customer’s organization(iii) such User agrees to comply with Customer’s privacy and security rules including those rules and regulations promulgated under the Health Insurance Portability and Accountability Act of 1996 (“HIPAA”), (iv) such User further agrees not to use the Services to communicate any message or material that is harassing, libelous, threatening, obscene, would violate the intellectual property rights of any Party or is otherwise unlawful, that would give rise to civil liability, or that constitutes or encourages conduct that could constitute a criminal offense, under any applicable law or regulation.
• 4.3 - Content. Customer agrees that it is solely responsible for the content of all visual, written or audible communications or any other material (“Content”) displayed, uploaded, exchanged or transmitted on, through or by Customer’s account. Provider shall not be liable in any way for the Content, including, but not limited to, any errors or omissions in any Content, or any loss or damage of any kind incurred as a result of the use of, access to, or denial of access to the Content. Provider does not endorse and has no control over what Customer or Users post or submit to the Platform Services.
• 4.4 - Support Obligations. Provider’s obligations to provide support services are subject to the following: (a) Customer shall assist Provider to duplicate and resolve errors, (b) Customer shall document and promptly report errors or malfunctions related to the Platform Services to Provider, and © Customer shall use reasonable efforts to carry out procedures to remedy errors or malfunctions within a reasonable time after such procedures have been communicated to Customer.
• 4.5 - Third Party Agreements. Provider may license technologies and products from third-party suppliers (the “Third Party Suppliers”) and the underlying agreements with the Third Party Suppliers may require Provider to include certain additional terms in this Agreement. Where Customer requests, pursuant to an applicable Service Order, to interface or integrate with a Third Party Supplier, Customer may also be required to review and agree to that Third Party Supplier’s terms and conditions of use prior to Provider’s activation of that Third Party Supplier service, and Customer acknowledges and agrees that Provider has no obligation or ability to influence or negotiate that Third Party Supplier’s terms and conditions.

5. Fees/Payment of Services/Taxes

• 5.1 - Fees. Customer shall pay to Provider the fees specified in a Service Order as executed by both Parties. Customer understands and agrees that if Provider does not receive timely payment for the Platform Services that it reserves the right to discontinue the provisioning of such Platform Services to Customer.
• 5.2 - Invoicing and Payment. Provider shall invoice Customer for all fees for the Services in advance, on a quarterly basis. Payment is due within thirty (30) business days of the date of receipt of invoice by Customer. Customer shall notify Provider in writing of any dispute with any invoice (along with a reasonably detailed description of the dispute) within ten (10) business days from Customer’s receipt of such invoice. Invoices for which no such timely notification is received shall be deemed accepted by the Customer as true and correct, and the Customer shall pay all amounts due under such invoices within the period set forth in Section 5.2. The Parties shall seek to resolve all such disputes expeditiously and in good faith. All payments must be made in U.S. dollars. Late payments hereunder will accrue interest at a rate of one percent (1%) per month. In addition to all other remedies available under this Agreement or at law (which Provider does not waive by the exercise of any rights hereunder), Provider shall be entitled to suspend the provision of any Services if the Customer fails to pay any undisputed amounts/fees when due hereunder and such failure continues for thirty (30) days following written notice thereof.
• 5.3 - Taxes. Provider asserts it is exempt from all federal, state and local taxes and shall provide, upon request, a certificate documenting its tax-exempt status. All payments required by this Agreement exclude all sales, value-added, use, and other taxes and obligations, all of which Customer shall pay in full, as applicable.
• 5.4 - Pricing. Provider reserves the right to unilaterally determine and modify its pricing for its Platform Services without any prior notice to Customer. Where a Service Order is in effect, the pricing for the Platform Services shall remain at the agreed upon terms and conditions of that Service Order and any renewal of the Service Order shall not exceed a three percent (3%) annual price adjustment.

6. Professional Services

• 6.1 - Acceptance Protocol. For any Professional Services performed by Provider, Provider will notify Customer when it believes it has completed a Deliverable (as may be defined in the applicable Service Order). Customer will have thirty (30) days after such notification to evaluate whether the Deliverable is complete according to the specifications in the applicable Service Order. If Customer believes that a Deliverable is not complete according to the applicable specifications, Customer will promptly provide a written notice of rejection to Provider specifying in reasonable detail the basis for Customer’s rejection and any specifications Customer contends are not met. In the event Customer has not provided a written notice of rejection within thirty (30) days after Provider’s notation of completion of a Deliverable, the Deliverable shall be deemed accepted. Upon receipt of a written notice of rejection, Provider shall make commercially reasonable efforts to complete the Deliverable and the completion of the Deliverable will again be subject to the acceptance procedure described above. In addition to the provisions of this Section 6.1, in the event that Customer intends to request a substantial amount of Professional Services from Provider, Customer may request that Provider enter into a separate agreement for such services.

7. Data Rights/License Grant

• 7.1 - Non-Personally Identifiable Data License and Restrictions. Customer agrees that Provider may collect and use technical data and related information, including, but not limited to, technical information about Customer’s devices, apps, applications, servers, technologies, system and application software, and peripherals that Provider periodically gathers, only to facilitate the provision of Platform Services and its underlying Software updates, product support and other services to Customer (if any) related to the Services. Customer agrees to and hereby grants to Provider a non-exclusive, worldwide, royalty-free, fully paid-up, sub-licenseable license to use, reproduce, copy, modify, make derivative works of, distribute, publicly display, and otherwise exploit this information, as long as it is in a form that does not personally identify Customer or any application or app users, and that it does not contain electronic Protected Health Information (“PHI”), and only for the purposes of (1) providing the Services to Customer; and (2) developing, enhancing and supporting the Services and its technologies.
• 7.2 - Data Ownership and Data Sharing. Excluding any data provided by Provider, Customer will retain all rights to Customer Data uploaded or entered on or through the Platform Services by Customer or by Customer’s Users. By submitting, posting or displaying Customer Data on or through the Services which are intended to be made available to Users, Customer grants Provider a worldwide, non-exclusive, royalty-free license to reproduce, adapt, modify, publish and distribute such Customer Data on the Services, as long as it is in a form that does not personally identify Customer or any application or app users, and that it does not contain electronic PHI, only for the purpose of performing Provider’s obligations under this Agreement. Customer represents and warrants that it has all rights, power and authority necessary to grant the rights granted herein to any Customer Data so submitted.
• In addition, Customer reasonably will make available a de-identified data set consistent with NIH data sharing guidelines which may be utilized by Provider for purposes of further analyses of data and possible publication. Provider shall have a no-cost, perpetual, worldwide license to use, reproduce, copy, modify, make derivative works of, distribute, publicly display, and otherwise utilize this information as long as it is in a form that does not contain or disclose PHI. Provider shall acknowledge Customer as a data contributor when feasible, subject to HIPAA regulations for de-identified data.

8. Compliance with HIPAA
Provider recognizes that it may from time to time have access or be exposed to patient information and protected health information and as defined by the Health Insurance Portability and Accountability Act of 1996 (HIPAA), 42 USC 1171 et seq., and the Health Insurance Technology for Economic and Clinical Health Act of 2009 (“HITECH”) and regulations promulgated thereunder. Provider shall be responsible for ensuring that performance of its obligations and exercise of its rights under this Agreement comply with all applicable privacy laws. If this Agreement or any practices which could be, or are, employed in performance of this Agreement are inconsistent with or do not satisfy the requirements of any privacy laws, (i) the Parties shall agree in good faith upon an appropriate amendment to this Agreement to comply with such laws and regulations, and (ii) the Parties shall execute and deliver any documents required to comply with such privacy laws including, without limitation, any business associate agreements required under HIPAA and HITECH.

9. Confidentiality

• 9.1 - Confidential Information. “Confidential Information” means any technical or non-technical information related to the past, current or proposed operations, products, technology, services or business that one Party (the “Disclosing Party”) discloses or otherwise makes available in any manner to the other Party (the “Receiving Party”), or to which the Receiving Party may gain access in the performance of its obligations or the exercise of its rights hereunder, whether such information is disclosed orally, visually or in writing, and whether or not bearing any legend or marking indicating that such information or data is confidential, including, without limitation, software, know-how, processes, trade secrets, manuals, reports, procedures, and methods. Confidential Information also includes proprietary or confidential information of any third party that may be in the Disclosing Party’s possession, as well as the terms of this Agreement. The Receiving Party will not use any Confidential Information of the Disclosing Party for any purpose not expressly permitted by this Agreement. Unless expressly permitted by this Agreement, during the term of this Agreement, and for five (5) years thereafter, the Receiving Party will not disclose the Confidential Information of the Disclosing Party to any third party, except to those employees or contractors of the Receiving Party who have a need to know such Confidential Information for purposes of this Agreement and who have signed confidentiality agreements (or are otherwise under a duty of confidentiality) no less protective of Confidential Information than the terms of this Agreement. For such period, the Receiving Party shall take reasonable measures to protect the secrecy of and avoid disclosure and/or unauthorized use of the Disclosing Party’s Confidential Information. Without limiting the foregoing, the Receiving Party will protect the Disclosing Party’s Confidential Information from disclosure and/or unauthorized use in the same manner as the Receiving Party protects its own confidential or proprietary information of similar type and importance.
• 9.2 - Exceptions. Confidential Information shall not include any information the Receiving Party can document: (a) was already lawfully known by the Receiving Party at the time of disclosure by the Disclosing Party; (b) was disclosed to the Receiving Party by a third party who had the right to make such disclosure without any confidentiality restrictions; © is, or through no fault of the Receiving Party has become, generally available to the public; or (d) was independently developed by the Receiving Party without access to, or use of, the Disclosing Party’s Confidential Information. The Receiving Party may disclose Confidential Information of the Disclosing Party to the extent that such disclosure is (i) approved in writing by the Disclosing Party, or (ii) required by law or by the order or a court or similar judicial or administrative body, provided that the Receiving Party notifies the Disclosing Party of such required disclosure promptly and in writing and reasonably cooperates with the Disclosing Party, at the Disclosing Party’s reasonable request and expense, in any lawful action to contest or limit the scope of such required disclosure.
• 9.3 - Return of Confidential Information. The Receiving Party will, at its option, either return to the Disclosing Party or destroy all Confidential Information of the Disclosing Party in the Receiving Party’s possession or control and permanently erase all electronic copies of such Confidential Information promptly upon the written request of the Disclosing Party or the termination of this Agreement, whichever comes first. In addition, the Receiving Party will certify in writing signed by an officer of the Receiving Party that it has fully complied with its obligations under this Section 9.3.
• 9.4 - Confidentiality of Agreement. Neither Party will disclose any terms of this Agreement to anyone except (a) to its affiliates, attorneys, accountants, or other professional advisors under a duty of confidentiality, (b) as required by law, © pursuant to a mutually agreeable press release, or (d) in connection with a proposed merger, financing, or sale of such Party’s business (provided that any third party to whom the terms of this Agreement are to be disclosed signs a confidentiality agreement no less protective of Confidential Information than the terms of this Agreement).

10. Representations and Warranties

• 10.1 - By Provider.
  • 10.1.1 - Documentation and Performance. Provider represents, warrants and covenants that any and all documentation for the Platform Services provided by Provider (the “Documentation”) will be accurate and complete and will be revised by Provider on a timely basis at no cost to Customer to reflect material changes and updates to the Platform Services. Provider warrants that the Platform Services shall substantially perform the functions described in the associated Documentation. If the Platform Services fail to comply with this, then Provider shall use commercially reasonable efforts to correct such non-conformity within a reasonable period of time;
  • 10.1.1 - Disclaimer. EXCEPT AS EXPLICITLY STATED IN THIS AGREEMENT: (I) THE PLATFORM SERVICES AND THE SERVICES ARE PROVIDED “AS IS,” AND CUSTOMER’S USE OF THE PLATFORM SERVICES AND SERVICES IS AT ITS OWN RISK; (II) PROVIDER (INCLUDING PROVIDER’S THIRD PARTY SUPPLIERS AND PARTNERS AND EACH OF THEIR AFFILIATES, SUPPLIERS AND RESELLERS) DO NOT MAKE, AND HEREBY DISCLAIMS, ANY AND ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE; AND (III) PROVIDER DOES NOT WARRANT THAT THE PLATFORM SERVICES OR SERVICES WILL BE UNINTERRUPTED, ERROR-FREE OR COMPLETELY SECURE.
• 10.2 - By Customer. Customer represents and warrants that, to the best of its knowledge, Customer’s services, products, materials, data, content and information used by Customer in connection with this Agreement, as well as Customer’s access to and use of the Platform Services (separate and apart from the Platform Services themselves), do not and will not during the term of this Agreement operate in any manner that would violate any applicable law or regulation. Customer hereby represents and warrants that, to the best of its knowledge, any materials, data, content and information uploaded, transmitted, stored or created by Customer in the course of using the Platform Services will comply with all applicable laws, and will not infringe any copyright, trade secret, privacy, publicity, or other rights of any third party.

11. Term and Termination

• 11.1 - Term. Unless terminated earlier in accordance with the termination rights set forth in this Section 11, this Agreement shall commence upon the Effective Date and remain in full force and effect until all Service Orders have expired or terminated.
• 11.2 - Termination for End of Life. In the event that Provider decides to cease maintenance and support for any Platform Services, Provider may terminate the Service Order under which such Platform Services were ordered by providing written notice to Customer at least one (1) year prior to the termination effective date. Provider shall have no right to terminate a Service Order under this Section 11.2, unless the termination effective date is at least one (1) year after the applicable Service Order Effective Date.
• 11.3 - Termination for Cause. Either Party may terminate this Agreement or the applicable Service Order, upon ninety (90) days’ prior written notice, if the other Party is in material breach of this Agreement or any Service Order and the breaching Party fails to remedy the breach within the ninety (90)-day notice period. Any written notice under this Section 11.3 must specify in reasonable detail the nature of the alleged material breach.
• 11.4 - Effect of Termination. Upon the expiration or termination of a Service Order, Customer will cease using the Services under such Service Order and, excluding its obligation to pay all amounts then currently owing under an applicable Service Order, be relieved from any additional obligation to make payments under such Service Order, and Provider will be relieved from any further obligation to provide the Services under such Service Order. The following Sections will survive any termination or expiration of this Agreement and continue in full force and effect: 3 (Reservation of Rights), 5 (Fees/Payment of Services/Taxes), 7 (Data Rights/License Grant), 9 (Confidentiality), 10 (Representations and Warranties), 11 (Term and Termination), 12 (Responsibilities), 13 (Limitation of Liability), 14 (Dispute Resolution), and 15 (Miscellaneous).

12. Responsibilities

• 12.1 - By Provider. Subject to Section 12.2, Provider shall be responsible for and hold harmless Customer and its affiliates, from and against all third-party claims, suits, liabilities, losses, costs, damages and expenses, including, without limitation, reasonable attorneys’ fees and expenses, arising out of or related to any third party claim brought against Customer or its affiliates, to the extent it alleges the Platform Services or the underling Software infringes any copyright, trade secret, patent or trademark of any third party, or otherwise results from the negligent or intentional acts or omissions of Provider; provided that, Customer provides Provider with (i) prompt written notice of such claim, (ii) control over the defense and settlement of such claim, and (iii) proper and reasonable information and assistance to settle and/or defend any such claim.
• 12.2 - By Customer. Customer shall be responsible for and hold harmless Provider, from and against all claims, suits, liabilities, losses, costs, damages and expenses, including, without limitation, reasonable attorneys’ fees and expenses, arising out of or related to any third party claim brought against Provider to the extent it alleges the Platform Services or the underlying Software infringes any copyright, trade secret, patent or trademark of any third party, but only to the extent such infringement or alleged infringement is based on any customization, modification or other change to the Platform Services or the Software made at Customer’s request (in a Service Order or otherwise as developed by Customer); or otherwise such claim results from the negligent or intentional acts or omissions of Customer. Provider agrees to (i) promptly notify Customer in writing of any such claim, suit, allegation or proceeding promptly after Provider receives written notice of the same.

13. Limitation Of Liability

• 13.1 - EXCEPT WITH RESPECT TO THE PARTY’S OBLIGATIONS UNDER SECTION 12, NEITHER PARTY SHALL BE LIABLE TO THE OTHER FOR ANY INCIDENTAL, PUNITIVE, SPECIAL, INDIRECT OR CONSEQUENTIAL DAMAGES, OR ANY LOST REVENUE, LOST PROFITS, REPLACEMENT GOODS, LOSS OF TECHNOLOGY, RIGHTS OR SERVICES, LOSS OF DATA, OR INTERRUPTION OF BUSINESS, EVEN IF SUCH PARTY IS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, WHETHER UNDER ANY THEORY OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE.
• 13.2 - Maximum Liability. Each Party’s maximum aggregate liability related to or in connection with this Agreement will be limited to the greater of the amount of fees paid or payable by Customer to Provider hereunder for the six (6) month period prior to the date the cause of action first arose.

14. Dispute Resolution. The Parties agree to engage in good faith efforts to discuss and resolve any disputes that may arise under this Agreement. Every effort should be made to resolve all disputes. The Parties, will arrange personal meetings and/or telephone conferences as needed.

15. Miscellaneous

• 15.1 - Publicity. Neither Party shall use the name, logo or trademark of the other (or of any of the other’s affiliates) in any form of publicity or promotional or advertising material, or in any communications with the media, without the other’s prior written consent to the specific contemplated use.
• 15.2 - Assignment. Neither Party may assign its rights or delegate its duties under this Agreement, in whole or in part, by operation of law or otherwise, without the prior written consent of the other Party, except that a Party shall have the right to assign this Agreement, in whole, as part of a corporate reorganization, consolidation, merger or sale of substantially all of its assets on notice to the other Party. Any attempted assignment or delegation in violation of this Section will be void. This Agreement shall be binding on, and shall inure to the benefit of, the Parties and their respective successors and permitted assigns.
• 15.3 - Relationship. The Parties hereto are independent contractors. Nothing in this Agreement will be deemed to create an agency, employment, partnership, fiduciary or joint venture between the Parties. No Party hereto (nor any agent or employee of such Party) will make any representations or warranties or incur any liability on behalf of the other.
• 15.4 - Severability. If any provision of this Agreement is held to be illegal, invalid or unenforceable, each Party agrees that such provision shall be enforced to the maximum extent permissible so as to effect the intent of the Parties, and the validity, legality and enforceability of the remaining provisions of this Agreement shall not in any way be affected or impaired thereby. If necessary to effect the intent of the Parties, the Parties shall negotiate in good faith to amend this Agreement to replace the unenforceable language with enforceable language that reflects such intent as closely as possible.
• 15.5 - Electronic Signature. Original signatures transmitted and received via electronic transmission of a scanned document (via secure email or a service such as provided by DocuSign) are true and valid signatures for all purposes hereunder and shall bind the Parties to the same extent as that or an original signature.
• 15.6 - Waiver. No delay or omission by a Party hereto to exercise any right occurring upon any noncompliance or default by another Party with respect to any of the terms of this Agreement will impair any such right or power or be construed to be a waiver thereof. A waiver by one of the Parties hereto of any of the covenants, conditions or agreements to be performed by one of the other Parties will not be construed to be a waiver of any subsequent breach thereof or of any covenant, condition or agreement contained herein.
• 15.7 - Notices. All legal notices and other communications required hereunder shall be in writing and delivered in person, via certified mail, return receipt requested, via email (with acknowledgement by the receiving Party), or by overnight express mail to the Parties at their addresses set below:

  • If to Provider: 
        Way To Health
        Chief Operating Officer
        Center For Health Care Innovation
        3400 Civic Center Boulevard
        14th Floor, South Pavilion
        Philadelphia, PA 19104
    
        with a copy to:
    
        University of Pennsylvania and University of Pennsylvania Health System
        Office of General Counsel               
        3539 Locust Walk
        Philadelphia, PA  19104
        Attention: Senior Counsel, Corporate Services, UPHS

• 15.8 - Headings; Construction. The division of this Agreement into sections and the insertion of captions and headings are for convenience of reference only and will not affect the construction or interpretation of this Agreement. The Parties hereto agree that this Agreement is the result of careful negotiation and that any rule of construction to the effect that ambiguities are to be resolved against the drafting Party will not be applied in the construction or interpretation of this Agreement. Unless otherwise expressly stated “day,” “week,” “month,” “quarter” and “year” mean calendar day, week, month, quarter and year, respectively, and “business day” means weekdays (Monday – Friday) on which the United States Postal Service delivers mail.
• 15.9 - Governing Law. This Agreement shall be construed and enforced in accordance with the laws of the Commonwealth of Pennsylvania without regard to its principles of choice of law.
• 15.10 - Force Majeure. Neither Party shall be liable to the other Party or deemed to be in default for any delay or failure in performance of any obligation under this Agreement or interruption of service resulting directly or indirectly from acts of God, civil or military authority, acts of the public enemy, acts of terrorism, war, riots, civil disturbances, insurrections, accidents, fire, explosions, earthquakes, floods, labor strikes, the elements or any other cause beyond the reasonable control of such Party.
• 15.11 - Export Regulations. Customer agree to comply with all applicable export and re-export control laws and regulations, including the Export Administration Regulations (EAR) maintained by the United States Department of Commerce. Specifically, Customer covenant that it shall not, directly or indirectly, sell, export, re-export, transfer, divert or otherwise dispose of any software, source code or technology (including products derived from or based on such technology) received from Provider under this Agreement to any country (or national thereof) subject to antiterrorism controls or U.S. embargo, or to any other person, entity or destination prohibited by the laws or regulations of the United States, without obtaining prior authorization from the competent government authorities as required by those laws and regulations. Customer agrees to be responsible for and hold Provider harmless from and against any fines or penalties that may arise as a result of Customer’s breach of this provision.
• 15.12 - Entire Agreement; Counterparts. The Exhibits attached hereto are incorporated herein by this reference, are an integral part of this Agreement, and will be read and interpreted together with this Agreement as a single document. This Agreement (including all Exhibits and addendums attached hereto), together with the Service Orders and any applicable non-disclosure agreements, sets forth the complete, exclusive and final statement of the agreement between the Parties as to the subject matter hereof and supersedes all prior and contemporaneous agreements, understandings, negotiations and discussions, whether oral or written, between the Parties regarding such subject matter. This Agreement may only be modified, amended, or any rights under it waived, by a written document executed by the Parties. This Agreement may be executed in two or more counterparts, each of which will be deemed an original, but all of which together shall constitute one and the same instrument. Provider acknowledges that Customer’s general personnel are not authorized to amend or supersede this Agreement pursuant to, or to bind Customer to obligations or liabilities expressly contained in, “click acceptance” type, or use based, agreements related to this Agreement (notwithstanding the acceptance of any rights which may be set forth therein), and only authorized signatories are empowered to so amend or supersede, or to so bind Customer, pursuant to executed hardcopy instruments. Accordingly, any terms of use set forth on a Provider website hosting the Platform Services or the Software shall not apply to Customer.