MASTER SERVICES AGREEMENT
Invisible Health Technologies, LLC, a Delaware limited liability company, with its principal office at 3250 NE. 1st Avenue, Suite 305 Miami FL 33137 (“IHT”)
The Customer specified in the applicable ORDER FORM (“Customer”)
IHT has sold Omnisense Systems USA, Inc. Mass Fever Screening System equipment (“Equipment”) to Customer under a separate Sale and Purchase Agreement and is offering the following set of services relating to such Equipment to Customer under the terms and conditions of this Agreement:
- IHT White Glove Service & Support
- Limited Extended Warranty (including Annual Calibration & Updates/Upgrades)
- Device Rental (during white glove servicing)
- 24/7 Customer Service and Support Hotline
- Training Services
- Installation, Configuration & Testing Services
- Pre-Installation Consulting- Site Evaluation, Deployment Reports
- Level 3 System’s Integration Services
- On Site System Diagnosis/Repair
- Advanced RMA
IHT has agreed to perform the services that Customer signs up for as set forth in each Order Form that is executed by both Parties relating to this Agreement, in each case subject to the terms and conditions set out in this Agreement and such Order Form. For the avoidance of doubt, the sale and purchase of the Equipment by Customer is not governed by this Agreement.
IT IS HEREBY AGREED AS FOLLOWS:
1 Definitions and Interpretation
1.1. In this Agreement (unless the context requires otherwise):
1.1.1 “Affiliates” means any business entity from time to time controlling, controlled by, or under common control with, either Party, and a business entity shall be deemed to “control” another business entity if it owns, directly or indirectly, in excess of 50% of the outstanding voting securities or capital stock of such business entity or any other comparable equity or ownership interest with respect to a business entity.
1.1.2 “Agreement”” means this agreement for performance of the Services comprising the terms and conditions set forth herein and the attached Schedule(s), in each case as amended from time to time by mutual agreement of the parties;
1.1.3 “Charges” means the charges payable by Customer to IHT in accordance with this Agreement (including Section 3) and as more specifically set out in detail in the Statement(s) of Work (defined below) under this Agreement;
1.1.4 “Customer Data“ means any data belonging to or provided by the Customer and which IHT is to process or input as part of the Services, including, without limitation, the output of the Equipment along with data generated by processing such output;
1.1.5 “Customer Materials” means any information, materials, systems or data provided by the Customer (or to which the Customer gives IHT access) in connection with this Agreement, including, without limitation, the output of the Equipment;
1.1.6 “Customer Obligations” means the tasks and requirements specified as such in an Order Form;
1.1.7 “Condition(s) of Service” means those necessary conditions and/or dependencies that must be met or performed by Customer in order to enable IHT’s timely and accurate delivery of Services under any Order Form;
1.1.8 “Confidential Information” means all information which is disclosed by one Party to the other whether conveyed in writing, electronically, or orally and (i) would appear to a reasonable person to be confidential considering the circumstances under which it is disclosed, (ii) is marked confidential or proprietary, or (iii) is accompanied by a written or oral statement saying that it is confidential or proprietary and which relates to the business affairs of the Party disclosing it, including, without limitation, information regarding products, operations, processes, plans or intentions, developments, trade secrets, know-how, design rights, market opportunities, personnel, customers, and suppliers of the Party disclosing it or such Party’s Affiliates, and all information derived from the above together with the existence or provisions of this Agreement and the negotiations relating to it;
1.1.9 “Deliverable(s)” means the specific items of work product identified as deliverables in each Order Form, which IHT is specified to deliver to Customer under the terms of this Agreement and such Order Form.
1.1.10 “Effective Date” means the date stated on the front page of this Agreement;
1.1.11 “IPR” means copyrights (including copyright in computer software and websites), database rights, rights in inventions, patent applications, patent, know-how, trademarks, trade names, service marks, design rights, and all associated goodwill, trade secrets, rights in confidential information and all other industrial or intellectual property rights of whatever nature for the full duration of such rights, in each case whether registered or unregistered, including any applications, extensions, or renewals of any registrations;
1.1.12 “Legislation” means any law, statute, directive, regulation, decision, rule, order, proclamation, notice, by-law, rule of court or delegated or subordinated legislation, including directions or guidance issued by regulatory bodies with jurisdiction over the Parties pursuant to any legislation or statute which is applicable to IHT as it relates to its delivery of the Services;
1.1.13 “Order Form” means the order form found at Appendix 1 that specifies the Services ordered by the Customer and the related pricing and any other related terms.
1.1.14 “Party” or “Parties” means IHT and Customer and their Affiliates;
1.1.15 “Relief Event” means any event caused by a default, or wrongful act or omission, by the Customer or the Customer’s other contractors or suppliers in the course of the performance of Customer’s obligations under this Agreement and any relevant Order Forms (including a failure to perform the Customer Obligations and obligations set out in Section 5.4 and such Order Forms), or a force majeure event;
1.1.16 “Resource(s)” means IHT’s personnel performing services for Customer (and chargeable to Customer) under any Order Form;
1.1.17 “Services”‘ means the services described in any Order Form;
1.1.18 “Start Date” means the start date of the provision of Services specified in an Order Form ;
2 Term of the Agreement
2.1 This Agreement shall commence on the Effective Date and shall remain in force for so long as there are any active Order Forms under this Agreement and for one year thereafter. In the event that no Order Forms are currently in force, either Party may terminate this Agreement, effective immediately, by giving written notice to the other Party.
2.2 Each Order Form shall commence and expire on the dates specified therein, unless otherwise terminated in accordance with its terms or the terms of this Agreement or as otherwise may be agreed by Customer and IHT in writing. Termination or expiry of an individual Order Form shall not constitute termination of this Agreement.
3.1 The Charges for the Services are set out in the Order Forms and are expressed exclusive of any applicable sales, value add, use or similar taxes.
3.2 Reasonable expenses properly and necessarily incurred by IHT to provide the Services, including, but not limited to travel and stay, that are pre-approved by Customer shall be reimbursed by Customer.
3.3 If Customer requires the use of a third party invoicing or payment portal, any fees related with the use of such portal shall be borne by Customer and will be invoiced to Customer if automatically deducted from payments to IHT.
4 Terms of Payment
4.1 Payment for Services.
4.1.1 Payment for White Glove Services. Customer shall pay for the Charges on a monthly basis in advance for the IHT White Glove Service & Support services. Monthly payments in advance for Charges relating to White Glove Services shall commence on the first day of the first full month after installation (so if installation occurs in relation to White Glove Service between the second day and the last day of the initial month, there will be no charge of fees until the first day of the first full month of such service). All payments shall be made by credit card or ACH transmitted electronically to IHT’s bank account per the bank routing information provided by IHT to Customer. Subject to Section 4.3 herein, any rejected attempt to collect any Charges when due (regardless of whether by credit card or ACH) shall cause an immediate suspension of the associated Services provided hereunder until the Charges are collected. If Customer does not pay all outstanding overdue amounts plus any applicable late fees within fifteen (15) days of the due date, in addition to the imposition of late fees under Section 4.1.3 below, IHT may terminate such Services and this Agreement by written notice to Customer.
4.1.2 Payment for All Other Services. IHT shall be entitled to invoice Customer for the Charges on a monthly basis for the Services in advance. IHT shall send to Customer invoices clearly identifying the relevant Order Form, including all supporting documents (such as expense receipts) and referencing both the Customer’s point of contact for such Order Form and any relevant purchase order number. Payments shall be made in advance by credit card, ACH to IHT’s bank accounts as mentioned on such invoices, or by check (but if by check, clearance of the check will be required prior to the commencement of such Services). Notwithstanding the foregoing, all payments must be received by IHT from Customer no later than thirty (30) days after the invoice date unless a shorter time is specified in the ORDER FORM in which case such shorter time will apply.
4.1.3 Rejected Charges; Late Fees. Subject to Section 4.3 herein, any rejected attempt to collect any Charges when due (regardless of whether by credit card or ACH or check) shall cause an immediate suspension of the associated Services provided hereunder until the Charges plus fees plus any owed interest are collected. If Customer does not pay all outstanding overdue amounts within fifteen (15) days of the due date, in addition to the imposition of fees and interest (computed from the first day for which such charges are overdue) under this Section 4.1.3 herein, IHT may terminate such Services and this Agreement by written notice to Customer. Subject to Section 4.3 herein, IHT shall be entitled to interest on overdue Charges at a rate that is the lesser of (i) one and a half percent (1.5%) per month, and (ii) the maximum rate allowable under applicable law.
4.2 Unless otherwise agreed in writing, all payments shall be stated and made in US dollars. Customer shall pay for all sales, use, value added, or other similar taxes assessed based on the provisioning of the Services or Deliverables to Customer, but Customer will have no liability for any taxes based on IHT’s net assets or income or for which Customer has an appropriate resale or other exemption.
4.3 Customer may be entitled to withhold payment where and to the extent that it has a bona fide and good faith dispute over the amount of the charges, provided that Customer immediately notifies IHT in writing the detailed reasons for such dispute and pays any undisputed parts of the invoice concerned. IHT and Customer shall, acting in good faith, seek to resolve any such dispute as soon as possible. In the event any such dispute extends beyond thirty (30) days, the parties may escalate the dispute through the dispute resolution process in Section 22.
4.4 Subject to Section 4.3 herein, all amounts due under this Agreement shall be paid in full without any deduction or withholding other than as required by Legislation. Subject to Section 4.3 herein, the Customer shall not be entitled to assert any credit, set-off, or counterclaim against IHT in order to justify withholding payment of any such amount in whole or in part.
4.5 Suspension. Notwithstanding anything to the contrary in this Agreement and in addition to any other rights to suspend or terminate the Services that IHT provides hereunder and all other remedies IHT may have hereunder, IHT may temporarily suspend Customer’s access to any portion or all of the Services, including professional and consulting services provided under a Order Form, if IHT reasonably determines that:
4.5.1 Customer has used the Services in violation of this Agreement;
4.5.2 Customer’s use of the Services, or any act of a third party (e.g., a threat or attack), disrupts or poses a security risk to the Services, or to services provided to IHT’s other customers;
4.5.3 Customer is using the Services for fraudulent or illegal activities;
4.5.4 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;
4.5.5 IHT’s provision of the Services to Customer becomes prohibited by applicable law, governmental order, or regulation;
4.5.6 any vendor of IHT has suspended or terminated IHT’s access to or use of any third-party services or products required to enable Customer to access the Services; or
4.5.7 for the non-payment of undisputed Charges after Customer is given notice and thirty (30) days to cure.
IHT 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. IHT 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. IHT will have no liability for any damage, liabilities, losses (including any loss of data or profits), or any other consequences that Customer or any third party may incur as a result of a Service suspension.
5 Provision of the Services
5.1 In consideration for the payment of Charges, IHT shall perform the Services specified in each Order Form, subject to the terms and conditions detailed in this Agreement and in each Order Form.
5.2 Either IHT and/or any of its Affiliates may execute an Order Form for Services to be delivered under this Agreement. The Customer shall pay the invoices issued under any Order Form in favor of IHT.
5.3 The Parties acknowledge and agree that the use of particular products, services, vendors, and subcontractors in the provisioning of the Services shall be subject to IHT’s reasonable discretion, and that any named products, services, vendors, and subcontractors in a given Order Form are provided as examples only and may be substituted or replaced based on such discretion.
If Customer subscribes to the IHT White Glove Service & Support services or the Extgended Warranty – Regular Service, Customer will receive annual calibrations in Years 2 and 3 at no additional charge. IHT may provide Customer with updates or upgrades to the operating software of the Equipment from time to time as they are made available to IHT by its supplier. If provided, such updates or upgrades shall be deemed part of the operating software licensed to Customer under the Sale and Purchase Agreement with Customer for the Equipment. IHT shall not be responsible for any Service Levels or Extended Warranty repairs if Customer’s Equipment is not updated to the latest version of the operating software within ninety (90) days of receiving such update from IHT.
5.4 IHT OBLIGATIONS
5.4.1 IHT shall provide the Services from the Start Date in each Order Form and shall use commercially reasonable efforts to provide the Services in accordance with the any milestones or timelines identified in such Order Form.
5.4.2 IHT shall ensure the Services are provided in a professional and workmanlike manner with reasonable skill and care.
5.4.3 IHT shall use staff of appropriate skill and expertise for the provision of the Services.
5.4.4 IHT shall be relieved of its obligations to provide the Services and shall not be in breach of this Agreement if and to the extent that (a) it is prevented or hindered by noncooperation or any actions or inactions by Customer or (b) to the extent any failure or inability on the part of IHT is caused by a Relief Event.
5.5 CUSTOMER OBLIGATIONS
5.5.1 Customer shall perform the Customer Obligations;
5.5.2 Customer shall provide IHT with such prompt co-operation and assistance (including by providing any information, Customer Materials, Customer Data and/or documentation) that IHT may require in order to enable IHT to provide the Services
5.5.3 Customer shall keep Equipment operating software up to date;
5.5.4 Customer shall permit IHT staff to have such access as IHT may reasonably require to the Customer’s premises, facilities and systems as required for the purpose of allowing IHT to provide the Services under the terms and conditions of this Agreement (including any applicable Order Forms).
6.1 Except as may be otherwise provided in any Order Form and, save to the extent provided in Section 6.2, all Deliverables produced by IHT in the course of, and solely for the purposes of, providing the Services to Customer and as detailed in any Order Form shall be the property of Customer. Customer hereby grants to IHT a non-exclusive, royalty free, world-wide license to use the Deliverables and any Customer Data and Customer Materials for use in conjunction with the provision of the Services and performance of any other obligation under this Agreement or any Order Form.
6.2 Notwithstanding anything to the contrary above, Customer acknowledges and agrees that nothing in this Agreement shall preclude or affect IHT’s right and ability to utilize any databases, tools, software, IPR, processes and methodologies, concepts, know how, techniques, improvements or methods discovered, adopted, developed or licensed by IHT or its subcontractors at any time, whether or not while rendering the Services under an Order Form, including through the process of creating and providing the Deliverables (“IHT IPR”), in order to develop work product for its own purposes (including to provide similar or dissimilar services to its other clients) that in their purpose and functionality are the same as, similar to or are derivatives of those developed for Customer, provided that none of Customer’s Confidential Information is incorporated therein. Customer acknowledges and agrees that all right, title, and interest in and to such IHT IPR shall vest and accrue in and to IHT and inure solely to the benefit of IHT. To the extent that any IHT IPR vests by operation of law in Customer, Customer hereby irrevocably assigns to IHT all right, title and ownership interest in all such IHT IPR without restriction of any kind. In furtherance of the foregoing, at the request and the cost of IHT, Customer shall comply with all reasonable requests from IHT to ensure IHT’s rights in and to IHT IPR, including, without limitation by cooperating in the preparation and execution of documents, instruments, affidavits, assignments, declarations, and applications related to IHT IPR.
6.3 No rights or licenses, whether express, implied, or by estoppel is granted under this Agreement by IHT except as expressly granted hereunder.
6.4 Feedback. Customer may provide direct or indirect suggestions to IHT from time to time (e.g., for new features or functionality) (“Feedback“), IHT shall have the right to use (or not use) such Feedback at its sole discretion. In furtherance of the foregoing, Customer hereby grants, and shall cause its personnel and agents to grant, to IHT a non-exclusive, perpetual, royalty-free, transferable, irrevocable, worldwide, fully paid-up, sublicensable license to use, practice, and exploit any Feedback in relation to IHT’s products and services, including the Services.
7.1 IHT warrants to Customer that:
7.1.1 it will, at all times, comply with applicable Legislation, and the rules and regulations of all applicable regulators as from time to time in force in so far as they relate to IHT in its performance of the Services and provisioning of the Deliverables;
7.1.2 subject to Section 7.2.3, it has full right power and authority to enter into and provide the Services in accordance with the terms of this Agreement; and
7.1.3 this Agreement is executed by a duly authorized representative of IHT.
7.2 Customer warrants to IHT that:
7.2.1 it will not do or omit to do anything, or contract IHT to do or omit to do anything that will cause IHT to be in breach of any applicable Legislation and/or regulations;
7.2.2 it has full capacity and authority to enter into and to perform its obligations under this Agreement;
7.2.3 that it has the necessary authority and consents and rights to sublicense to or otherwise permit IHT to access and use the Customer Data, Customer Materials and other IPR provided by Customer to IHT (or to which Customer grants IHT access); and
7.2.4 this Agreement is executed by a duly authorized representative of Customer.
7.3 Extended Warranty Terms. If Customer either subscribes to the Limited Extended Warranty or IHT White Glove Services option under any Order Form, the following limited extended warranty from the manufacturer Omnisense Systems USA, Inc. shall apply in regard to the Equipment. During the period that Customer continuously pays Extended Warranty Charges (or if ever terminated, subject to a reactivation charge at IHT’s sole discretion) (“Extended Warranty Term”), Omnisense Systems USA, Inc. (“Omnisense”) has indicated to IHT that it will repair or replace any Equipment that materially malfunctions due to a defect in materials or workmanship under ordinary consumer use under normal conditions in accordance with the manufacturer’s documentation. In the event of any detected malfunction during the Extended Warranty Term you may contact IHT’s service team at (800) 406-5374 or email email@example.com, with a description of the malfunction and steps to reproduce it. In the case of IHT White Glove Service & Support, IHT will process all Customer support issues and coordinate with Omnisense. In the case that the Limited Extended Warranty applies, Omnisense will solely handle all Customer support issues. In either case, IHT and/or Omnisense will attempt to troubleshoot the issue remotely with Customer’s onsite staff, and will promptly deliver any necessary replacement parts at Omnisense’s cost and expense. Any repairs made under IHT White Glove Service & Support or the Extended Warranty may be made with refurbished parts and devices in Omnisense’s sole discretion. The foregoing parts and labor warranty is the sole and exclusive warranty and remedy provided under IHT White Glove Service & Support or the Limited Extended Warranty. Any malfunction caused by factors or use outside of the covered terms and conditions of this Agreement or after of the Extended Warranty Term shall not be covered by any warranty, and any such repair services provided by Omnisense on such Equipment will be at Omnisense’s then current time and materials rates. For avoidance of doubt, IHT shall not be responsible for any warranty service and Omnisense shall be fully responsible for any and all such services.
7.3.1 Warranty Exclusions.
220.127.116.11 Neither IHT nor Omnisense shall be responsible, and the Extended Warranty shall not apply, if the Equipment is: damaged by use with a third-party component or product that is incompatible with the Equipment; modified or tampered with (e.g., any attempt is made to defeat or circumvent any technical limitations or security mechanisms) or its serial number is altered or removed; damaged by any external cause (including, e.g., by being dropped, exposed to liquid, used with inadequate ventilation, etc. or failure to follow instructions in the instruction manual); scratched, dented, etc., shows other cosmetic damage; caused by Customer or any non-authorized third-party; or used with an operating software other than the operating software preinstalled in the Equipment (or any contemporaneous or later versions of that operating software from Omnisense that are provided to Customer), or if Customer breach the terms of the license agreement for the operating software under the Sale and Purchase Agreement for the Equipment, resulting in the termination of Customer’s license to use the operating software.
18.104.22.168 This Extended Warranty does not apply to consumable parts (such as batteries) that are designed to diminish over time unless the failure has occurred due to a defect in materials or workmanship.
22.214.171.124 IHT does not guarantee that Customer’s use of the Equipment will be uninterrupted, timely, secure, or error-free, or that data loss will not occur.
7.4 Third Party Products and Services Disclaimer. IHT does not own and does not make any representations or warranties regarding the ownership, validity, enforceability, or freedom to use any IPR associated with any third-party products or services (including any Omnisense services), including any such third party products or services provided to Customer by IHT (or Omnisense) in the provisioning of Services. All representations and warranties (if any) with regard to such third-party products or services are provided directly by such third-party providers.
8 DISCLAIMER OF WARRANTIES.
8.1 EXCEPT FOR THE EXPRESS WARRANTIES PROVIDED UNDER THIS AGREEMENT, THE SERVICES AND DELIVERABLES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, AND IHT EXPRESSLY DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON-INFRINGEMENT, QUIET ENJOYMENT, OR AS TO ACCURACY, COMPLETENESS OR ADEQUACY OF INFORMATION. NOTHING IN THIS AGREEMENT OR ANY ORDER FORM SHALL AMOUNT TO A REPRESENTATION, WARRANTY, UNDERTAKING OR OBLIGATION TO ENSURE THAT THE SERVICES OR THE DELIVERABLES WILL BE PROVIDED ENTIRELY FREE OF ERRORS OR OMISSIONS. CUSTOMER RECOGNIZES THE UNCERTAINTIES INHERENT IN ANY ANALYSIS OR INFORMATION THAT MAY BE PROVIDED AS PART OF THE SERVICES AND ACKNOWLEDGES THAT THE SERVICES ARE NOT A SUBSTITUTE FOR CUSTOMER’S OWN INDEPENDENT EVALUATION AND ANALYSIS AND SHOULD NOT BE CONSIDERED A RECOMMENDATION TO PURSUE ANY COURSE OF ACTION. IHT SHALL NOT BE LIABLE FOR ANY ACTIONS OR DECISIONS THAT CUSTOMER MAY TAKE BASED ON THE SERVICES OR ANY INFORMATION OR DATA CONTAINED THEREIN. CUSTOMER UNDERSTANDS THAT IT ASSUMES THE ENTIRE RISK WITH RESPECT TO THE USE OF THE SERVICES AND DELIVERABLES.
8.2 FOR AVOIDANCE OF DOUBT, IHT EXPRESSLY DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE REGARDING THIRD PARTY PRODUCTS OR SERVICES (INCLUDING ANY OMNISENSE WARRANTY SERVICES) OR ANY RELATED THIRD PARTY IPR.
9 Independent Contractor
9.1 IHT is an independent contractor to Customer and nothing in this Agreement shall render it an agent or partner of Customer. Customer shall not, and shall ensure that its employees and consultants shall not, hold itself out as an agent or partner of IHT. Neither Customer nor any of its employees or consultants shall have any right or power to bind IHT to any obligation other than as provided for in this Agreement.
10 Confidentiality and Non-Disclosure
10.1 Customer and IHT shall keep secret and confidential all Confidential Information given by one Party (“Disclosing Party”) to the other (“Receiving Party”) and shall not use or disclose the same to any third party other than for the purposes of the proper performance of this Agreement or with the prior written consent of the other Party. The provisions of this Section 10.1 shall not apply to any information that is in or comes into the public domain (except as a result of a breach of this Agreement); is received by the Receiving Party from third party not under an obligation of confidentiality with respect thereto; is developed independently by a party without including any Confidential Information of the Disclosing Party; is required to be disclosed by the Receiving Party under operation of law or in accordance with the requirement of any regulatory or supervisory authority to which the either Party is subject. Customer and IHT shall disclose the Confidential Information only to those employees, consultants or subcontractors who are involved in this Agreement and shall ensure that such employees, consultants or subcontractors are aware of, and comply with, these obligations as to confidentiality.
10.2 The obligations of both parties as to disclosure and confidentiality of Confidential Information shall continue in force notwithstanding the termination of this Agreement for a period of at least five (5) years.
10.3 Customer acknowledges and agrees that all documentation relating to the Services provided by IHT to Customer shall be deemed IHT’s Confidential Information, including, without limitation, all training materials, procedures, and system/architecture designs.
10.4 Upon the termination or expiration of this Agreement, at the Disclosing Party’s request, the Receiving Party shall have fifteen (15) days to destroy or return any of the Disclosing Party’s Confidential Information in Receiving Party’s possession and Receiving Party shall provide written certification of such destruction or return as appropriate.
11 Personally Identifiable Information. The Parties acknowledge and agree that IHT shall not be required to process or otherwise access personally identifiable information in connection with providing the Services or Deliverables without being specifically engaged to do so under an Order Form (and in such cases, subject to the terms of such Order Form). Customer acknowledges and agrees that Customer shall not send any personally identifiable information to IHT for processing, and in the event that Customer sends any personally identifiable information to IHT inadvertently, IHT’s sole duty to Customer with respect to the discovery of such inadvertently received personally identifiable information is to delete such personally identifiable information and to notify Customer of the same (and such inadvertent “processing” of personally identifiable information shall in no way constitute a violation of this Agreement).
12 Limitations on Liability.
12.1 No Limitation. There shall be no limitation of liability for a Party’s indemnity obligations or breach of its confidentiality obligations hereunder. In addition, nothing in this Agreement shall exclude or limit either Party’s liability to the other party for (a) fraud, (b) death or personal injury caused by that Party’s negligence, or (c) any other liability which cannot be excluded or limited by law.
12.2 No Indirect Damages. Neither Party shall be liable to the other Party in contract, tort, misrepresentation or otherwise for indirect, consequential, special exemplary or punitive damages or losses howsoever caused and, regardless of whether direct or indirect, loss of actual or anticipated profit, loss of or damage to or corruption of data, economic loss, loss of business opportunity, loss of anticipated savings, and loss of goodwill; in each case, even if such losses and/or damages were foreseen, foreseeable or known, or a Party was advised of the possibility of such losses and/or damages in advance, and/or in such losses and/or damages arise out of this Agreement or otherwise.
12.3 Limitation on Liability. Subject to Section 12.1 and Section 12.2 herein, the maximum aggregate liability of IHT and its Affiliates for loss or damage arising out of or in relation to this Agreement (including all Order Forms) will not exceed the charges paid by Customer to IHT (excluding any out of pocket expenses, reimbursable expenses, and taxes) under this Agreement in the twelve (12) months prior to the month in which the claim for damage or liability first arose.
13.1 Customer shall indemnify IHT, its Affiliates and subcontractors performing Services under this Agreement against all third party claims and damages related to Customer Data, Customer Materials, Customer IPR or other IPR provided by Customer to IHT, along with all claims relating to Customer’s use of the Equipment.
14.1 Either Party may terminate a Order Form in the event of a material breach by the other Party of its obligations under the applicable Order Form, if the Party in breach fails to cure such breach within thirty (30) days after receipt of written notice of such breach.
14.2 Either Party may terminate this Agreement or any part thereof (or any Order Form) in the event that the other Party shall become insolvent or bankrupt or shall have a receiver or administrative receiver appointed over it or over any part of its undertaking or assets or shall pass a resolution for winding up (otherwise than for the purpose of a bona fide scheme of solvent amalgamation or reconstruction) or a court of competent jurisdiction shall make an order to that effect or if either Party shall enter into any voluntary arrangement with its creditors or shall become subject to an administration order or shall cease to carry on business.
14.3 Any termination of this Agreement howsoever occasioned shall not affect any accrued rights or liabilities of either Party (including but not limited to Customer’s obligation to pay any outstanding Charges) nor shall it affect the coming into force or the continuance in force of any provision hereof which is expressly or by implication intended to come into or continue in force on or after such termination.
15 Compliance with Customer’s Procedures
15.1 IHT shall, while on Customer’s premises, comply with all safety procedures applicable to Customer’s premises which may be imposed from time to time and that have been disclosed to IHT in advance in writing.
16.1 Any notice or other document or communication required or permitted hereunder to the Parties hereto will be deemed to have been duly given only if in writing and delivered by any of the following methods: (i) registered or certified mail; (ii) electronic mail or (iii) deposit with a recognized commercial overnight courier service, fees prepaid, in each case delivered to the addresses of the receiving Parties set forth on the Order Form or such other addresses as such Parties may subsequently provide in writing from time to time. Notice shall be deemed to have been given five (5) days after deposit in the mail, immediately upon confirmation of receipt if by facsimile or email, or one day after deposit with overnight carrier or delivery service, except that notice of change of address shall be effective only upon receipt.
If to IHT, all notices shall be addressed and delivered to:
|Invisible Health Technology LLC3250 NE. 1st Avenue, Suite 305 |
Miami FL 33137
ATTN: Charlie Myers
If to Customer, all notices shall be addressed and delivered to the Customer specified in the applicable ORDER FORM.
17.1 Neither Party shall assign or otherwise transfer this Agreement or any of its rights and obligations hereunder whether in whole or in part without the prior written consent of the other Party, except that in relation to any sale, merger, acquisition, restructuring, or change of control of such Party or the business unit(s) of such Party related to the performance of this Agreement. This Agreement shall inure to the benefit of the Parties permitted successors and assigns.
17.2 IHT shall be entitled to sub-contract any of its rights and obligations under this Agreement or any Order Form to any Affiliate without the consent of the Customer.
18.1 No waiver, alteration or modification of this Agreement will be binding or effective unless in writing and signed by the duly authorized representative of both IHT and Customer.
19 Force Majeure
19.1 Notwithstanding anything else contained in this Agreement, neither Party shall be liable for any delay in performing its obligations (other than Customer’s obligation to pay the Charges) if such delay is caused by circumstances beyond its reasonable control, including, without limitation, acts of God, act of governmental body or military authority, fire, explosion, power failure, flood, epidemic, riot or civil disturbance, war, sabotage, accidents, civil insurrections, blockades, embargoes, storms, labor disputes, earthquakes, elements of nature, terrorism, rebellions or revolutions or other similar and dissimilar events (“Force Majeure“) subject to the Party so delaying promptly notifying the other Party in writing of the reasons for the delay and the likely duration of the delay, the performance of such Party’s obligations shall be suspended during the period that the said circumstances persist and such Party shall be granted an extension of time for performance equal to the period of the delay.
20 Partial Invalidity of Agreement Terms
20.1 If any provision of this Agreement is determined to be unlawful or invalid and can be deleted without altering the essence of this Agreement, the unlawful or invalid provision will be severed and the remaining provisions will remain in full force and effect.
21 Entire Agreement
21.1 This Agreement sets out the entire agreement and understanding between the Parties in respect of its subject matter and supersedes any previous agreement, warranty, statement, representation, understanding, or undertaking (in each case whether written or oral) given or made before the Effective Date by, or on behalf of, the Parties and relating to its subject matter.
21.2 Each Party confirms that it has not relied upon, and shall have no remedy in respect of, any agreement, warranty, statement, representation, understanding or undertaking made by any Party (whether or not a Party to this Agreement) unless that agreement, warranty, statement, representation, understanding or undertaking is expressly set out in this Agreement.
22 Governing Law; Venue; Waivers; and Dispute Resolution
22.1 Governing Law; Venue. This Agreement (including all Purchase Orders and Change Orders) shall be governed by, and construed in accordance with, the law of the New York, without giving effect to conflicts of law principles. The United Nations Convention on Contracts for the International Sale of Goods and the Uniform Commercial Code shall not apply. Each Party irrevocably and unconditionally submits, for itself and its property, to the exclusive jurisdiction of the Federal and state courts located in New York County, New York, for any equitable proceeding arising out of relating to this Agreement or for recognition or enforcement of any judgment. Each Party agrees that a final judgement in any arbitration under this Section 23 or any equitable proceeding arising out of relating to this Agreement or for recognition or enforcement of any judgment shall be conclusive and may be enforced in other jurisdictions by entrance of such order or suit on the judgment if necessary or in any other manner provided by law.
22.2 Dispute Resolution; Binding Arbitration. In connection with any dispute between the Parties arising from this Agreement (including all Order Forms), the Parties shall attempt to resolve the dispute by utilizing the procedure specified in this Section 22 and according to the law specified in Section 22.1 above. This Section 22 shall survive the expiration or termination of this Agreement.
THE PARTIES ACKNOWLEDGE AND AGREE THAT THEY ARE AGREEING TO ARBITRATE UNDER THE FOLLOWING TERMS AND CONDITIONS AND THEREFORE WAIVE THE RIGHT TO A TRIAL, INCLUDING A TRIAL BY JURY OR A JUDGE IN COURT.
22.2.1 Negotiation by Individuals. To commence negotiation of a dispute, either Party may send written notice (“Notice”) to the other party containing a concise summary of the dispute and requesting negotiations. Within seven (7) days following receipt of such Notice by the other party, each party will designate in writing to the other party one or more individuals having general responsibility for this Agreement and authority to negotiate a settlement of the dispute (“Individuals”), The chosen Individuals shall make such investigation as they deem appropriate and will promptly, but in no event later than ten (10) days from the date of the Notice, communicate to attempt to resolve the dispute. If the dispute has not been resolved within forty (40) days of the first communication between such Individuals in furtherance of resolving the dispute (the “40-day Individual Negotiation Period”) or such further time as the parties may mutually agree in writing, then the dispute resolution process shall proceed to a negotiation between representatives as described in Section 22.2.2 below. The submission of a Notice shall toll any applicable statutes of limitation or prescriptive periods under this Agreement, pending the settlement or abandonment of the dispute.
22.2.2 Negotiation by Representatives: If the dispute is not resolved within the 40-day Individual Negotiation Period” specified in Section 22.2.1 above (or within such further period as the parties may agree), the parties will elevate the dispute to other representatives (“Representatives”). Specifically, within seven (7) days after the end of the 40-day Individual Negotiation Period above (or such further period as the parties may agree), the parties shall nominate one or more Representatives that are chosen from the senior management ranks of the parties who shall attempt to resolve the dispute. If the dispute is not resolved within thirty (30) days after both Representatives have been nominated (“30-day Representative Negotiation Period”) or such further time as the parties may mutually agree in writing, arbitration proceedings may be commenced by either party, as set forth in Section 22.2.3 below.
22.2.3 Arbitration. If the dispute is not resolved within the 30-day Representative Negotiation Period (or such further time as the parties may mutually agree in writing) as specified in Section 22.2.2 above, either party may commence arbitration upon written notice to the other party. Such arbitration shall be finally settled under the then current Commercial Arbitration Rules (available from the American Arbitration Association (otherwise known as “AAA”)) by one arbitrator appointed in accordance with such rules, and shall be administered by AAA at its office location in New York, New York. The arbitration shall be conducted in English. The parties shall keep confidential: (i) the fact that any arbitration occurred; (ii) any awards awarded in the arbitration; (iii) all materials used, or created for use in, in the arbitration; and (iv) all other documents produced by another party in the arbitration and not otherwise in the public domain, except, with respect to each of the foregoing, to the extent that disclosure may be legally required (including to protect or pursue a legal right) or necessary to enforce or challenge an arbitration award before a court or other judicial authority. The decision of the arbitrator shall be final and judgment may be entered thereon by any court of competent jurisdiction. If warranted, the arbitrator may award to the prevailing party, its costs and expenses, including its attorneys’ fees. The prevailing party shall also be entitled to its attorneys’ fees and costs in any action to confirm and/or enforce any arbitration award in any judicial proceedings. Nothing in the Agreement shall prevent either party from seeking provisional measures (including equitable relief), or the enforcement of any arbitration award from any court of competent jurisdiction, and any such request shall not be deemed incompatible with the Agreement to arbitrate or a waiver of the right to arbitrate.
22.3 CLASS ACTION WAIVER. THE PARTIES HEREBY AGREE THAT ANY PROCEEDINGS TO RESOLVE ANY DISPUTE WILL BE CONDUCTED SOLELY ON AN INDIVIDUAL BASIS. UNLESS DISALLOWED UNDER APPLICABLE LAW, NEITHER PARTY WILL AID ANY PERSON OR ENTITY OR SEEK OR BE ABLE TO HAVE ANY DISPUTE HEARD AS A CLASS ACTION OR OTHER REPRESENTATIVE ACTION, OR IN ANY OTHER PROCEEDINGS IN WHICH EITHER PARTY ACTS OR PROPOSES TO ACT IN A REPRESENTATION CAPACITY. NO ARBITRATION OR OTHER PROCEEDING WILL BE COMBINED WITH ANOTHER ENTITY OR PERSON WITHOUT THE PRIOR WRITTEN CONSENT OF ALL PARTIES TO ALL AFFECTED ARBITRATIONS OR PROCEEDINGS.
23 Export Control.
Customer acknowledges that the Services and Deliverables provided under this Agreement, which may include technology and encryption, may be subject to the customs and export control laws and regulations of the United States (“U.S.“), may be rendered or performed either in the U.S., in countries outside the U.S., or outside of the borders of the country in which Customer is located, and may also be subject to the customs and export laws and regulations of the country in which the Services or Deliverables are rendered or received. Customer agrees to abide by those laws and regulations. Customer further represent that any software provided by Customer and used as part of the Services or Deliverables contains no encryption or, to the extent that it contains encryption, such software is approved for export without a license. If Customer cannot make the preceding representation, Customer agrees to provide IHT with all of the information needed for IHT to obtain export licenses from any applicable governmental authority and to provide IHT with such additional assistance as may be necessary to obtain such licenses. IHT is not liable for delays or failure to deliver Services or Deliverables resulting from Customer’s failure to obtain any such license. Each Party agrees to indemnify, defend and hold the other harmless from any third-party claims, demands, or causes of action against the other due to the indemnifying party’s violation or alleged violation of the applicable export laws, regulations or orders.
Except as otherwise agreed to by IHT in an Order Form, the Services and Deliverables provided under this Agreement are not designed for the processing or storage of the following categories of data: (1) data that is classified and or used on the U.S. Munitions list, including software and technical data; (2) articles, services and related technical data designated as defense articles and defense services; (3) ITAR (International Traffic in Arms Regulations) related data; and (4) other personally identifiable information that is subject to heightened security requirements as a result of Customer’s internal policies or practices or by law (collectively referred to as “Excluded Data“). Customer is solely responsible for reviewing its data that will be provided to IHT (or to which IHT will have access) to ensure that it does not contain Excluded Data.
24.1 Remedies: Unless otherwise stated, no remedy herein conferred is intended to be exclusive of any other remedy, and each and every such remedy will be cumulative and will be in addition to every other remedy given hereunder or now or hereafter existing at law or in equity or by statute or otherwise.
24.2 No Waiver: No delay or omission by either Party to exercise any right or power it has under this Agreement will impair or be construed as a waiver of such right or power. A waiver by any Party of any breach of any representation or warranty, or failure of the other Party to fully perform any covenant, will not be construed to be a waiver of any succeeding breach of any representation or warranty or succeeding failure of the other Party to fully perform any covenant. All waivers must be signed by the Party waiving the rights.
24.3 Headings; Construction: The headings in this Agreement are for convenience of reference only and in no way define or limit any of the provisions hereof or otherwise affect their construction or effect. All Section and Exhibit references used herein refer to Sections and Exhibits of this Agreement. Unless otherwise expressly provided, whenever the words “include”, “includes”, or “including” are used in this Agreement, they will be deemed followed by the words “without limitation,” and will not limit the preceding words or terms. Unless specifically indicated otherwise, the word “or” whenever used in this Agreement is used in the inclusive sense of “and/or” and not the exclusive sense of “either/or.” Words in the singular or plural form include the plural and singular form, respectively. Whenever the words “herein”, “hereto”, “hereof” or “hereunder” are used in this Agreement, they will be deemed to refer to this Agreement as a whole and not to any specific Section.
24.4 Survival: Termination or expiration of this Agreement will not release either Party from its respective obligations hereunder with regard to (a) confidentiality, data protection, and security; (b) indemnification; and (c) Services already delivered or performed, including, without limitation, obligations of payment, warranties, and representations of such Party. Without in any way limiting the foregoing, the Parties understand and agree that Sections 6, 7.3.1, 7.4, 7.5, 10, 12, 13, 14.3, 22 and 24 and any other provisions of this Agreement necessary to interpret the respective rights and obligations of the Parties pursuant thereto, will survive the termination of this Agreement.
24.5 Severability: In the event any one or more of the provisions of this Agreement is held in arbitration or in any court of competent jurisdiction to be invalid, illegal or unenforceable, the same will not affect the other terms or provisions hereof or the whole of this Agreement, or the validity or enforceability of such provision in any other jurisdiction, preserving to the fullest permissible extent the intent and agreements of the Parties set forth herein.
24.6 No Third Party Beneficiary: This Agreement is made and entered into for the sole protection and benefit of the Parties and the entities named in this Agreement and their respective successors and permitted assigns, and is not intended to convey any rights or benefits to any other third party other than the Parties, nor will this Agreement be interpreted to convey any rights or benefits to any person except as provided in this Agreement.
24.7 Representation of Counsel; Mutual Negotiation: The language of this Agreement will in all cases be construed simply, as a whole, and in accordance with its fair meaning and not strictly for or against any Party. The Parties agree that this Agreement has been prepared jointly and has been the subject of arm’s length and careful negotiation. Each Party has been given the opportunity to independently review this Agreement with legal counsel and other consultants, and each Party has the requisite experience and sophistication to understand, interpret and agree to the particular language of the provisions. Accordingly, notwithstanding the general rules of construction, each Party agrees that in the event of an ambiguity in or dispute regarding the interpretation of this Agreement, the drafting of the language of this Agreement will not be attributed to either Party.
24.8 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 first page of this Agreement (or to such other address that may be designated by the Party giving Notice from time to time in accordance with this Section 24.8 and Section 16.1 herein). 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 24.8 herein.
24.9 Agreement: The Parties, intending to be legally bound, have agreed to this Agreement by causing the signature page of this Agreement to be executed by their duly authorized representatives. Notwithstanding anything in this Agreement to the contrary, the terms of any Order Form to this Agreement will supplement and not replace or amend the terms or provisions of this Agreement. Customer acknowledges and agrees that any other terms or conditions included in any click-wrap license agreements, shrink wrap license agreements, quotes, invoices, acknowledgements, bills of lading or other forms utilized by Customer or exchanged by the Parties will not be incorporated in this Agreement or be binding upon the Parties.
24.10 Amendment: No amendment to, change, waiver or discharge of any provision of this Agreement will be valid unless in writing and signed by an authorized representative of each of the Parties.
24.11 Counterparts. This Agreement may be executed in counterparts, each of which, when executed and delivered, shall be deemed to be an original, and all of which, when taken together, shall constitute but one and the same agreement. If any signature is delivered by facsimile transmission or by e mail delivery of a “.pdf” format date file, such signature shall create a valid and binding obligation of the party executing (or on whose behalf such signature is executed) with the same force and effect as if such facsimile or “.pdf” signature page were an original thereof.
24.12 Order of Precedence: This Agreement (including the applicable Order Form) constitutes the entire and exclusive statement of the agreement between the Parties with respect to the subject matter of this Agreement and supersedes all prior representations, understandings or agreements between the Parties with respect to such subject matter.