Last revised on: November 22, 2021
These Terms of Service govern a customer’s use of Holmusk Technologies Inc. (“Holmusk”) software and/or services, including the MindLinc 2.0 platform. By mutually executing a Service Order that references these Terms of Service and all exhibits thereto or by using the Holmusk MindLinc™ website or Services, the customer identified in such Service Order (“Customer”)(each of Holmusk and Customer, a “Party”) agrees to these Terms of Service and those in the applicable Service Order (collectively, the “Agreement”). This Agreement will become effective when the Service Order is executed by authorized representatives of both Parties (the “Effective Date”).
These Terms of Service were last updated November 22, 2021. Holmusk reserves the right to periodically modify these Terms of Service upon written notice to Customer, and such modification will become effective in the next service term.
1. DEFINITIONS. Capitalized terms shall have the meanings set forth in this section, or in the section where they are first used.
1.1 “Access Protocols ”means the passwords, access codes, technical specifications, connectivity standards or protocols, or other relevant procedures, as may be necessary to allow Customer or any Authorized Users to access the MindLinc 2.0 Services.
1.2 “Authorized User” means any individual Customer employee who is approved and authorized by the Customer to access the Services in accordance with Customer’s rights under this Agreement.
1.3 “Customer Content” means the data, records and content provided or made available by Customer to Holmusk through the MindLinc 2.0 Service. It includes, but is not limited to, “protected health information” (“PHI”) as that term is defined under the Health Insurance Portability and Accountability Act of 1996 as amended by the American Recovery and Reinvestment Act of 2009, also known as the Health Information Technology for Economic and Clinical Health Act (the “HITECH Act”) (collectively “HIPAA”).
1.4 “Confidential Information” means all written or oral information, disclosed by either Party to the other, related to the operations of either Party or a third party that has been identified as confidential or that by the nature of the circumstances surrounding disclosure ought reasonably to be treated as confidential.
1.5 “Documentation” means the technical materials provided by Holmusk to Customer in hard copy or electronic form describing the use and operation of the MindLinc 2.0 Services, as may be changed by Holmusk from time to time.
1.6 “Intellectual Property Rights” means any and all now known or hereafter existing (a) rights associated with works of authorship, including copyrights, and moral rights; (b) trademark or service mark rights; (c) trade secret rights; (d) patents, patent rights, and industrial property rights; (e) layout design rights, design rights, and other proprietary rights of every kind and nature other than trademarks, service marks, trade dress, and similar rights; and (f) all registrations, applications, renewals, extensions, or reissues of the foregoing, in each case in any jurisdiction throughout the world.
1.7 “MindLinc 2.0 Services” means the services ordered by Customer through a Service Order and provided by Holmusk by means of access to certain content and use of the features and functionality of software applications available and accessible within the MindLinc 2.0 System, solely to the extent set forth and further described in, and as limited by, the Service Orders executed by the Parties.
1.8 “MindLinc 2.0 System” means Holmusk’s hosted integrated behavioral Electronic Health Record (EHR) system and clinic management platform.
1.9 “Objectionable Content” means any viruses, malware or malicious code, as well as any content which may be construed as illegal, unethical, defamatory, obscene, hateful or libelous, or that infringes upon the rights of any third party.
1.10 “Platform Data” means behavioral health data, including all related information, databases, manner of organization, presentation, rendering or display, that Holmusk has collected and utilizes in connection with the MindLinc 2.0 Services.
1.11 “Professional Services” means services performed by Holmusk in connection with the rights granted to Customer by Holmusk under this Agreement, including, by way of example, integration, data migration, configuration and/or customization of MindLinc 2.0 Services or of Customer’s computers or related systems, or any other programming or consulting services set forth in a Service Order.
1.12 “Services” means the MindLinc 2.0 Services, Professional Services and Support Services.
1.13 “Service Levels” means the service levels set forth in the Service Level Agreement, available at: Service Level Agreement.
1.14 “Service Order” means a document signed by both Parties identifying a given type of Services to be made available by Holmusk pursuant to this Agreement. Each Service Order shall be agreed upon by the Parties as set forth in Section 2.1. Each Service Order shall also include, where applicable, a Business Associate Agreement (“BAA”).
1.15 “Software” means the software programs that are part of the Holmusk System and any associated user interfaces and related technology that Holmusk makes available pursuant to this Agreement.
1.16 “Support Services” has the meaning set forth in Section 2.3.
1.17 “Third Party Items” means third party data, products and services made available to Customer through the MindLinc 2.0Services or used in connection with the Professional Services, as may be changed from time to time.
1.18 “Work Product” means any and all technology, products, design and associated documents that are developed by Holmusk (or jointly by the parties) pursuant to, related to, or in connection with this Agreement and the activities contemplated herein, including, without limitation, any and all techniques, discoveries, developments, improvements, inventions, software and algorithms.
2. ORDERS; SERVICES
2.1 Orders. The Services to be provided by Holmusk under this Agreement will be set forth in one or more Service Orders executed by the Parties from time to time during the Term. Each Service Order shall set out a description of the applicable Services, the costs associated with such Services, the schedule of payments for such Services, and any unique additional terms, including any assumptions or Customer obligations. Each Service Order shall be considered to be attached to this Agreement and is hereby incorporated into this Agreement by reference.
2.2 MindLinc 2.0 Services
(a) Provision of Access. Subject to the terms and conditions of this Agreement, Holmusk hereby grants to Customer a non-exclusive, non-transferable right to access the features and functions of the applicable MindLinc 2.0Services ordered pursuant to a Service Order during the Term in accordance with the Documentation and the terms and conditions of this Agreement solely for Customer’s internal business purposes. As soon as commercially practicable after the Effective Date, Holmusk shall provide to Customer the necessary Access Protocols.
(b) Usage Restrictions. Except as expressly permitted herein, Customer will not, and will not permit any third party to: (1) access the MindLinc 2.0 Services other than in accordance with this Agreement; (b) modify, adapt, alter or translate the Software or Documentation; (c) sublicense, lease, rent, loan, distribute, or otherwise transfer the Software or Documentation to any third party; (d) reverse engineer, decompile, disassemble, or otherwise derive or determine or attempt to derive or determine the source code (or the underlying ideas, algorithms, structure or organization) of the Software or MindLinc 2.0 System; or (e) use or copy the Software or Documentation except as expressly allowed under Section 2.2(a), or the applicable open source license for Other Software. Customer will ensure that its use of the MindLinc 2.0 Services and the Documentation complies with all applicable laws, statutes, regulations or rules.
(c) Communications Responsibilities. Customer shall not and shall not permit any third party to directly or indirectly use the MindLinc 2.0 Services to communicate on its behalf, by way of electronic communication or otherwise, any Objectionable Content. Customer is solely responsible for the content of any communications sent by or on behalf of Customer through Customer’s use of the MindLinc 2.0 Services and, without limiting the foregoing, Customer agrees that such communications will comply with all laws, including HIPAA.
(d) Future Functionalities. Customer agrees that its purchase of a subscription to the MindLinc 2.0 Services is neither contingent upon the delivery of any future functionality or features nor dependent upon any oral or written public comments made by Holmusk with respect to future functionality or features.
2.3 Support Services. Holmusk will provide support for the MindLinc 2.0 Services in accordance with its standard support offerings for a particular MindLinc 2.0 Service ordered under Holmusk’s Service Level Agreement, provided that all fees due under this Agreement have been paid. Holmusk’s Service Level Agreement is available at Service Level Agreement. The Parties acknowledge and agree that Holmusk will have no obligation to provide support to Customer with respect to use of the MindLinc 2.0 Service other than according to the Documentation or the terms of this Agreement.
2.4 Professional Services.
(a) General. If applicable, Holmusk shall perform the Professional Services set forth in a Service Order. Customer may at any time request a modification to the Professional Services to be performed pursuant to any particular Service Order by written request to Holmusk specifying the desired modifications. Holmusk shall, within a reasonable time following receipt of such request, agree to such request, or, if applicable, submit an estimate of the cost for such modifications and a revised estimate of the time for performance of the Professional Services pursuant to the change request. If accepted in writing by Customer, such modifications in the Service Order shall be performed under the terms of this Agreement. Modifications in any Service Order shall become effective only when a written change request, an amendment to a Service Order, or a new Service Order is executed by authorized representatives of both Parties.
(b) Suitability. Holmusk shall assign employees and subcontractors with qualifications suitable for the Professional Services described in the relevant Service Order. Holmusk may replace or change employees and subcontractors in its sole discretion with other suitably qualified employees or subcontractors.
(c) Customer Responsibilities. Customer shall make available in a timely manner to Holmusk all data, third party systems, computer facilities, programs, files, documentation, and other information and resources of Customer reasonably required by Holmusk for the performance of the Professional Services. Holmusk’s delayed performance of the Professional Services shall be excused to the extent such delay is caused by Customer’s failure to timely provide such access, information or resources or perform any of Customer’s other responsibilities set forth in the applicable Service Order. Customer shall be responsible for, and assumes the risk of, any problems resulting from, the content, accuracy, completeness and consistency of all such data, materials and information supplied by Customer.
(d) Non solicitation. Customer acknowledges and agrees that the employees and consultants of Holmusk who perform the Professional Services area valuable asset to Holmusk and are difficult to replace. Accordingly, Customer agrees that, during the Term of this Agreement and for a period of one (1) year after the termination or expiration of this Agreement, it shall not offer employment or engagement(whether as an employee, independent contractor or consultant) to any Holmusk employee or consultant who performs any of the Professional Services.
2.5 Other Software. Use of any third-party software and associated documentation that is made available via the Platform (“Other Software”) is governed by the terms of the license agreement that accompanies or is included with such Other Software. These license terms may be posted in the Documentation or at the website page where the Other Software can be accessed. Such Other Software may be offered under an open source license, and there may be provisions in the open source license that will apply to Customer’s use thereof.
3. PROPRIETARY RIGHTS
3.1 Ownership of Services. Subject to the rights granted in this Agreement, and Customer’s rights in its Customer Content, Holmusk and its licensors and suppliers retain all right, title and interest in and to the MindLinc 2.0 System, Platform Data and Services, and Intellectual Property Rights related thereto, and Customer acknowledges that it neither owns nor acquires any rights in and to the MindLinc 2.0 System, Platform Data or Services or the related Intellectual Property Rights not expressly granted by this Agreement.
3.2 Ownership of Work Product. Unless otherwise expressly agreed in any particular Service Order, ownership of all Work Product and related Intellectual Property Rights shall be solely owned by Holmusk, subject to the usage rights granted to Customer under this Agreement and subject to Customer’s rights in its Customer Content.
3.3 Data Rights.
(a) Customer Content.
(i) Customer is responsible for the collection, accuracy, currency, quality, legality, completeness and use of the Customer Content, including Customer Content that is stored and used by Customer through the MindLinc 2.0 Services. Customer shall not provide or make available to Holmusk any Objectionable Content in connection with this Agreement.
(ii) Customer retains all right, title and interest in and to the Customer Content, and Holmusk acknowledges that it neither owns nor acquires any additional rights in and to the Customer Content not expressly granted by this Agreement. Subject to the foregoing, Customer hereby grants to Holmusk a non-exclusive, non-transferable right and license to use the Customer Content to perform Holmusk’s obligations hereunder. In addition, provided it is performed in compliance with HIPAA, Holmusk may remove all personally identifiable information from the Customer Content to create “De-Identified Data” or aggregate the Customer Content in an anonymous manner to create “Aggregate Data.” All right, title and interest in and to De-Identified Data and Aggregate Data shall be owned by Holmusk. In the event that the Customer Content may contain “protected health information” as defined in HIPAA, the parties will execute a BAA.
(b) Holmusk Appended Data. The parties expect that Holmusk may append information to the Customer Content for purposes of providing the Services to Customer (“Holmusk Appended Data”). Holmusk retains all right, title and interest in and to the Holmusk Appended Data, provided that, during the Term, Customer may use the Holmusk Appended Data accessible through the MindLinc 2.0 Services solely for Customer’s internal business purposes.
(c) Data Models. Notwithstanding anything to the contrary in this Agreement, to the extent that Holmusk develops models, analytics and algorithms (“Analytical Tools”)during the Term and in the course of providing Services under this Agreement(such as propensity models, etc.), Holmusk shall retain all right, title and interest in and to such Analytical Tools.
4. ADDITIONAL HOLMUSK OBLIGATIONS
4.1 Integration. Customer understands that before it can access the MindLinc 2.0 Service, the MindLinc 2.0 Service may require modification or configuration, and integration with Customer’s other systems. All such activities shall be set forth on a Service Order or an attachment to a Service Order as Professional Services. The term of access to a particular MindLinc 2.0 Service shall be set forth in the Service Order.
4.2 Application and Content Hosting. Holmusk shall provide for the hosting of the MindLinc 2.0 System which is accessible as part of the MindLinc 2.0 Services, provided that nothing herein shall be construed to require Holmusk to provide for, or bear any responsibility with respect to, any telecommunications or computer network hardware required by Customer to provide access from the Internet to the MindLinc 2.0 Services.
5. ADDITIONAL CUSTOMER OBLIGATIONS.
5.1 Authorized Users Access to Services. Customer is responsible for approving and authorizing persons that are Authorized Users to access and use the features and functions of the MindLinc 2.0 Services as contemplated by this Agreement. Customer shall be responsible for any unauthorized access to, or use of, the MindLinc 2.0 Services, and shall promptly notify Holmusk of any unauthorized use known to Customer.
5.2 Customer Responsibility for Data and Security. Customer and its Authorized Users shall have access to the Customer Content and shall be responsible for all changes to and/or deletions of Customer Content and the security of all passwords and other Access Protocols required in order to access the MindLinc 2.0 Services.
6. FEES AND EXPENSES;PAYMENTS.
6.1 Fees. Inconsideration for the access rights granted to Customer and the MindLinc 2.0 Services performed by Holmusk under this Agreement, Customer will pay to Holmusk, without offset or deduction, all fees required by a particular Service Order. Holmusk will submit invoices to Customer with respect to such fees according to the relevant invoice schedules indicated on the applicable Service Order, and, unless otherwise set forth in the applicable Service Order, each invoiced amount will be due and payable within thirty (30)days of Customer’s receipt of the relevant invoice.
6.2 Additional Fees. Out-of-pocket expenses, including reasonable expenses incurred for non-local travel of Holmusk personnel in connection with this Agreement, will be invoiced to Customer monthly.
6.3 Taxes. Customer will be responsible for payment of any applicable sales, use and other taxes and all applicable export and import fees, customs duties and similar charges(other than taxes based on Holmusk’s income), and any related penalties and interest for the grant of access rights hereunder, or the delivery of related services. Customer will make all required payments to Holmusk free and clear of, and without reduction for, any withholding taxes. Any such taxes imposed on payments to Holmusk will be Customer’s sole responsibility, and Customer will, upon Holmusk’s request, provide Holmusk with official receipts issued by appropriate taxing authorities, or such other evidence as Holmusk may reasonably request, to establish that such taxes have been paid. Customer shall supply Holmusk with documentation evidencing Customer’s exemption from taxation if applicable.
6.4 Late Payments; Interest. Any portion of any amount payable hereunder that is not paid when due will accrue interest at one and one-half percent (1.5%) per month or the maximum rate permitted by applicable law, whichever is less, from a date thirty (30) days after the due date until paid.
7. CONFIDENTIAL INFORMATION.
7.1 Ownership of Confidential Information. The Parties acknowledge that during the performance of this Agreement, each Party will have access to certain of the other Party’s Confidential Information or Confidential Information of third parties that the disclosing Party is required to maintain as confidential. Both Parties agree that all items of Confidential Information are proprietary to the disclosing Party or such third party, as applicable, and will remain the sole property of the disclosing Party or such third party.
7.2 Mutual Confidentiality Obligations. Each Party agrees as follows: (a) to use Confidential Information disclosed by the other Party only for the purposes of meeting its obligations or exercising its rights under this Agreement; (b) that such Party will not reproduce Confidential Information disclosed by the other Party, and will hold in confidence and protect such Confidential Information from dissemination to, and use by, any third party except as necessary for the purposes of meeting its obligations or exercising its rights under this Agreement; (c) to restrict access to the Confidential Information disclosed by the other Party to such of its personnel, agents, and/or consultants, if any, who have a need to have access for the purposes of meeting its obligations or exercising its rights under this Agreement and who have been advised of and have agreed in writing to treat such information in accordance with terms substantially similar to the terms of this Agreement; and (d) to the extent practicable, to return or destroy all Confidential Information disclosed by the other Party that is in its possession upon termination or expiration of this Agreement.
7.3 Confidentiality Exceptions. Notwithstanding the foregoing, the provisions of Sections 7.1 and 7.2 will not apply to Confidential Information that (a) is publicly available or in the public domain at the time disclosed; (b) is or becomes publicly available or enters the public domain through no fault of the recipient; (c) is rightfully communicated to the recipient by persons not bound by confidentiality obligations with respect thereto; (d) is already in the recipient’s possession free of any confidentiality obligations with respect thereto at the time of disclosure; (e)is independently developed by the recipient without reference to the Confidential Information of the discloser; or (f) is approved in writing for such use, release or disclosure by the disclosing Party. Notwithstanding the foregoing, each Party may disclose Confidential Information to the limited extent required (x) in order to comply with the order of a court or other governmental body, or as otherwise necessary to comply with applicable law, provided that the Party making the disclosure pursuant to the order shall first have given written notice to the other Party to enable the other Party to attempt to obtain a protective order; or (y) to establish a Party’s rights under this Agreement, including to make such court filings as it may be required to do.
8. REPRESENTATIONS AND WARRANTIES.
8.1 Mutual Representations and Warranties. Each Party hereby represents and warrants (i)that it is duly organized, validly existing and in good standing under the laws of its jurisdiction of incorporation or organization; (ii) that the execution and performance of this Agreement will not conflict with or violate any provision of any law having applicability to such Party; and (iii) that this Agreement, when executed and delivered, will constitute a valid and binding obligation of such Party and will be enforceable against such Party in accordance with its terms.
8.2 Holmusk Representations and Warranties. Holmusk hereby represents and warrants that (i) the MindLinc 2.0 Services will be provided in a professional manner in accordance with industry standards and procedures; and (ii) Holmusk will use commercially reasonable efforts to prevent the transmission of any Objectionable Content through the MindLinc 2.0 Services.
8.3 Customer Representations and Warranties. Customer hereby represents and warrants that(i) Customer has and will have all necessary licenses, approvals and consents required to perform its obligations hereunder and (ii) without limiting the foregoing, Customer has and will have adequate authority to share the Customer Content with Holmusk as set forth herein and permit Holmusk to use and disclose the Customer Content as contemplated herein.
9. DISCLAIMERS, EXCLUSIONS AND LIMITATIONS OF LIABILITY.
9.1 Disclaimer. EXCEPT AS EXPRESSLY SET FORTH IN THIS SECTION 8, TOTHE MAXIMUM EXTENT PERMITTED BY LAW, THE MINDLINC 2.0 SERVICES, PROFESSIONAL SERVICES AND DOCUMENTATION ARE PROVIDED “AS IS” AND HOLMUSK HEREBY DISCLAIMS ALL OTHER WARRANTIES, EXPRESS, IMPLIED OR STATUTORY, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, NON INFRINGEMENT OR FITNESS FOR A PARTICULAR PURPOSE. HOLMUSK DOES NOT WARRANT THAT ALL ERRORS CAN BE CORRECTED, OR THAT OPERATION OF THE SOFTWARE AND MINDLINC 2.0 SERVICES SHALL BE UNINTERRUPTED OR ERROR-FREE. SOME STATES AND JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES, SO SOME OF THE ABOVE LIMITATIONS MAY NOT APPLY TO CUSTOMER.
9.2 Exclusions of Remedies; Limitation of Liability. EXCEPT WITH RESPECT TO EACH PARTY’S CONFIDENTIALITY OBLIGATIONS SET FORTH IN SECTION 7 AND INDEMNIFICATION OBLIGATIONS SET FORTH IN SECTION 10, IN NO EVENT WILL EITHER PARTY BE LIABLE TOTHE OTHER PARTY FOR ANY INCIDENTAL, INDIRECT, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES, REGARDLESS OF THE NATURE OF THE CLAIM, INCLUDING, WITHOUT LIMITATION, LOST PROFITS, COSTS OF DELAY, ANY FAILURE OF DELIVERY, BUSINESS INTERRUPTION, COSTS OF LOST OR DAMAGED DATA OR DOCUMENTATION, OR LIABILITIES TO THIRD PARTIES ARISING FROM ANY SOURCE, EVEN IF THE PARTY HAS BEEN ADVISED OFTHE POSSIBILITY OF SUCH DAMAGES. EXCEPT WITH RESPECT TO EACH PARTY’S CONFIDENTIALITY OBLIGATIONS SET FORTH IN SECTION 7AND INDEMNIFICATION OBLIGATIONS SET FORTH IN SECTION 10, THE CUMULATIVE LIABILITY OF EACH PARTY TO THE OTHER PARTY FOR ALL CLAIMS ARISING FROM OR RELATING TOTHIS AGREEMENT, INCLUDING, WITHOUT LIMITATION, ANY CAUSE OF ACTION SOUNDING IN CONTRACT, TORT, OR STRICT LIABILITY, WILL NOT EXCEED THE TOTAL AMOUNT OF FEES PAID TO HOLMUSK BY CUSTOMER UNDER THIS AGREEMENT DURING THE TWELVE (12) MONTH PERIOD PRIOR TO THE ACT, OMISSION OR OCCURRENCE GIVING RISE TO SUCH LIABILITY. THESE LIMITATIONS OF LIABILITY ARE INTENDED TO APPLY WITHOUT REGARD TO WHETHER OTHER PROVISIONS OF THIS AGREEMENT HAVE BEEN BREACHED OR HAVE PROVEN INEFFECTIVE OR THERE IS AN ADEQUATE REMEDY AVAILABLE.
9.3 Essential Basis of the Agreement. Customer acknowledges and understands that the disclaimers, exclusions and limitations of liability set forth in this Section 9 form an essential basis of the agreement between the Parties, that the Parties have relied upon such disclaimers, exclusions and limitations of liability in negotiating the terms and conditions in this Agreement, and that absent such disclaimers, exclusions and limitations of liability, the terms and conditions of this Agreement would be substantially different.
10. INDEMNIFICATION.
10.1 Holmusk’s Indemnity Obligations. Holmusk agrees to indemnify, defend and hold harmless Customer from and against any and all losses, liabilities, costs (including reasonable attorneys’ fees) or damages finally awarded by a court or agreed upon in settlement (“Damages”) resulting from any claim by any third party (a) that the MindLinc 2.0 Service and/or the Documentation infringes such third party’s U.S. patents issued as of the Effective Date, or infringes or misappropriates, as applicable, such third party’s copyrights or trade secret rights under applicable laws of any jurisdiction within the U.S., (b)arising out of a breach of the BAA, or (c) arising out of Holmusk’s gross negligence or willful misconduct. If a claim for infringement is made or appears possible, Holmusk may, at Holmusk’s sole discretion, obtain adequate rights to enable Customer to continue to use the MindLinc 2.0 Service, or modify or replace any such infringing material to make it non-infringing. If Holmusk determines that none of these alternatives is reasonably available, Customer shall, upon written request from Holmusk, cease use of, and, if applicable, return, such materials as are the subject of the infringement claim and Holmusk shall refund to Customer a pro-rated amount of applicable prepaid fees, if any, for the time period during which Customer no longer has use of the materials subject to the claim. The indemnification for infringement provided under this Section 10.1 shall not apply if the alleged infringement arises, in whole or in part, from (i) modification of the MindLinc 2.0 Service or the Documentation by Customer, (ii) combination, operation or use of the MindLinc 2.0 Service with other software, hardware or technology not provided by Holmusk or explicitly contemplated by this Agreement, (iii) use of the MindLinc 2.0 Services not in accordance with the Documentation or (iv) Holmusk’s use of the Customer Content as authorized herein (any of the foregoing circumstances under clauses (i), (ii), and (iii) a “Customer Indemnity Responsibility”). THIS SECTION STATES HOLMUSK’S ENTIRE OBLIGATION AND LIABILITY WITH RESPECT TO ANY CLAIM OF INFRINGEMENT.
10.2 Customer’s Indemnity Obligations. Customer agrees to hold harmless, indemnify, and, at Holmusk’s option, defend Holmusk from and against any Damages resulting from (i) Customer’s gross negligence or willful misconduct, or (ii) a Customer Indemnity Responsibility.
10.3 Procedure. The indemnifying Party’s obligations as set forth above are expressly conditioned upon each of the foregoing: (a) the indemnified Party shall promptly notify the indemnifying Party in writing of any threatened or actual claim or suit; (b) the indemnifying Party shall have sole control of the defense or settlement of any claim or suit; and (c) the indemnified Party shall reasonably cooperate with the indemnifying party to facilitate the settlement or defense of any claim or suit.
11. TERM AND TERMINATION.
11.1 Term. The term of this Agreement will commence on the Effective Date and will continue for the period of specified in the Service Order, unless earlier terminated in accordance with this Section 11.
11.2 Termination for Breach. Either Party may terminate this Agreement and the underlying Service Order in the event of a material breach by the other Party, by providing written notice to the breaching Party, specifically identifying the breach on which such notice of termination is based. The breaching Party will have a right to cure such breach within thirty (30) days of receipt of such notice, and this Agreement and the applicable Service Order, as applicable, will terminate in the event that such cure is not made within such thirty (30)-day period.
11.3 Effect of Termination. Upon any termination of this Agreement, Customer will (i) immediately discontinue all use of the MindLinc 2.0 Service and any Holmusk Confidential Information; and (ii) promptly pay to Holmusk all amounts due and payable under this Agreement and the applicable Service Order.
11.4 Survival. The provisions of Sections 2.4(d), 3.1, 3.2, 3.3, 6 through 10, 11.3, this 11.4 and 12 will survive the termination of this Agreement for any reason. In addition, any provisions of the Third Party Terms that by their nature survive termination of this Agreement shall so survive.
12. MISCELLANEOUS.
12.1 Entire Agreement. This Agreement, the Service Order(s), and any exhibits explicitly referenced in either set forth the entire agreement and understanding between the Parties with respect to the subject matter of this Agreement and, supersedes and merges all prior oral and written agreements, discussions and understandings between the Parties with respect to the subject matter of this Agreement, and neither of the Parties will be bound by any conditions, inducements or representations other than as expressly provided for in this Agreement.
12.2 Independent Contractors. In making and performing this Agreement, Customer and Holmusk act and will act at all times as independent contractors, and, except as expressly set forth herein, nothing contained in this Agreement will be construed or implied to create an agency, partnership or employer and employee relationship between them. Except as expressly set forth herein, at no time will either Party make commitments or incur any charges or expenses for, or in the name of the other Party.
12.3 Notices. All notices required by or relating to this Agreement will be in writing and will be sent by means of certified mail, postage prepaid, to the Parties at their respective addresses set forth in the Service Order. All notices required by or relating to this Agreement may also be communicated by electronic transmission to: legal@holmusk.com, provided that the sender receives and retains confirmation of successful transmittal to the recipient. Such notices will be effective on the date indicated in such confirmation.
12.4 Amendments; Modifications. This Agreement may not be amended or modified except in a writing duly executed by authorized representatives of both Parties.
12.5 Assignment; Delegation. Neither party shall assign, subcontract, delegate, or otherwise transfer this Agreement, or its rights and obligations herein, without obtaining the prior written consent of the other party, and any attempted assignment, subcontract, delegation, or transfer in violation of the foregoing will be null and void; provided, however, that either party may assign this Agreement in connection with a merger, acquisition, reorganization or sale of all or substantially all of its assets, or other operation of law, without any consent of the other party. The terms of this Agreement shall be binding upon the parties and their respective successors and permitted assigns.
12.6 No Third Party Beneficiaries. The Parties acknowledge that, except as expressly set forth in this Agreement (including in the Third Party Terms), the covenants set forth in this Agreement are intended solely for the benefit of the Parties, their successors and permitted assigns. Except as expressly set forth in this Agreement (including in the Third Party Terms), nothing herein will confer upon any person or entity, other than the Parties, their successors and permitted assigns, any legal or equitable right whatsoever to enforce any provision of this Agreement.
12.7 Severability. If any provision of this Agreement is invalid or unenforceable for any reason in any jurisdiction, such provision will be construed to have been adjusted to the minimum extent necessary to cure such invalidity or unenforceability. The invalidity or unenforceability of one or more of the provisions contained in this Agreement will not have the effect of rendering any such provision invalid or unenforceable in any other case, circumstance or jurisdiction, or of rendering any other provisions of this Agreement invalid or unenforceable whatsoever.
12.8 Waiver. No waiver under this Agreement will be valid or binding unless set forth in writing and duly executed by the Party against whom enforcement of such waiver is sought. Any such waiver will constitute a waiver only with respect to the specific matter described therein and will in no way impair the rights of the Party granting such waiver in any other respect or at any other time. Any delay or forbearance by either Party in exercising any right hereunder will not be deemed a waiver of that right.
12.9 Force Majeure. Except with respect to payment obligations hereunder, if a Party is prevented or delayed in performance of its obligations hereunder as a result of circumstances beyond such Party’s reasonable control, including, by way of example, war, riot, fires, floods, epidemics, or failure of public utilities or public transportation systems, such failure or delay will not be deemed to constitute a material breach of this Agreement, but such obligation will remain in full force and effect, and will be performed or satisfied as soon as reasonably practicable after the termination of the relevant circumstances causing such failure or delay, provided that if such Party is prevented or delayed from performing for more than ninety (90) days, the other Party may terminate this Agreement upon thirty(30) days’ written notice and the Agreement shall terminate if such performance has not resumed within those thirty (30) days.
12.10 Governing Law and Venue. This Agreement and any action related thereto will be governed and interpreted by and under the laws of the State of New York, without giving effect to any conflicts of laws principles that require the application of the law of a different jurisdiction. Customer hereby expressly consents to the personal jurisdiction and venue in the state and federal courts for the county in which Holmusk’s principal place of business is located for any lawsuit filed there against Customer by Holmusk arising from or related to this Agreement. The UnitedNations Convention on Contracts for the International Sale of Goods does not apply to this Agreement. The laws of the jurisdiction where Customer is located may be different from New York law. Customer shall always comply with all international and domestic laws, ordinances, regulations, and statutes that are applicable to its purchase and use of the Software, Documentation, or Services hereunder.
12.11 Marketing; Use of Marks. The Parties may publish mutually acceptable joint press releases. Neither party will use the logos or trademarks (collectively “Marks”) of the other Party in connection with a press release or other public statement without the written approval of the other Party. However, nothing in this Section restricts either Party from disclosing the existence of and nature of this Agreement(including the name of the other Party) or from including the existence of and nature of this Agreement in the routine reporting of its activities (including, without limitation, informing sales prospects that Customer is a user of the MindLinc 2.0 Services, or in connection with a bona fide due diligence inquiry for a financing, acquisition or similar transaction) provided that such disclosure or reporting is limited to statements of fact.
12.12 U.S. Government End-Users. Each of the Documentation and the software components that constitute the MindLinc 2.0 Service is a “commercial item” as that term is defined at 48C.F.R. 2.101, consisting of “commercial computer software” and “commercial computer software documentation” as such terms are used in 48 C.F.R. 12.212. Consistent with 48 C.F.R. 12.212 and 48C.F.R. 227.7202-1 through 227.7202-4, all U.S. Government end users acquire the MindLinc 2.0 Service and the Documentation with only those rights set forth therein.
12.13 Counterparts. This Agreement may be executed in any number of counterparts via electronic or facsimile means, each of which when so executed will be deemed to be an original and all of which when taken together will constitute one Agreement.
[End of Terms]
