The terms and conditions contained in this Moxe Technology Governing Agreement (“the Governing Agreement”) govern use of Moxe’s technology for sharing information between health care organizations and health plans and third-party requestors (“The Moxe Technology”), as well as any associated Services.
By entering into a written License Agreement or similar document with Moxe that incorporates by reference this Governing Agreement, you agree to the terms and conditions set forth herein. If you enter into a separate written agreement with Moxe for use of The Moxe Technology that does not incorporate this Governing Agreement by reference, then the terms of such separate written agreement shall apply and govern.
“Affiliate” means any person, partnership, joint venture, corporation or other form of enterprise, including but not limited to, subsidiaries of Client, which directly or indirectly, Control, are Controlled by, or are under common Control with Client.
“Business Associate Agreement” means the business associate agreement being contemporaneously executed by the parties.
“Client Data” means data, information, and content (including, without limitation, PHI) provided by Client to The Moxe Technology which is input into and/or stored by The Moxe Technology.
”Control” means the possession, directly or indirectly, of the power to direct or cause the direction of the management and operating policies of the entity in respect of which such determination is being made, through the ownership of voting securities (at least fifty percent (50%) of its voting or equity securities), contract, voting trust or otherwise.
“Fees” means the fees set forth in Section 4.1.
“HIPAA” means the Health Insurance Portability and Accountability Act of 1996, Public Law 104-191, and the regulations promulgated thereunder.
“Intellectual Property Rights” means patent rights (including, without limitation, patent applications and disclosures), copyrights, trade secrets, moral rights, know-how, and any other intellectual property rights recognized in any country or jurisdiction in the world.
“Moxe Technology” means Moxe’s hosted integration platform for automating chart retrieval and brokering the exchange of patient data between participating organizations, including (i) all source code, documentation, processes, methodologies, machine learning or artificial intelligence algorithms, (ii) any enhancement or improvement made to The Moxe Technology as a result of any License Agreement, (ii) the functionality, features or capabilities described in any License Agreement, and (iv) any other software or technology developed or provided by Moxe prior to or under any License Agreement.
“License Agreement” means any License Agreement that (a) references this Governing Agreement, (b) is signed by authorized representatives of both parties and (c) sets forth the Services to be performed, The Moxe Technology services to be provided, and the fees for the foregoing.
“Term” means the term of this Governing Agreement as defined in Section 3.1.
“Services” means the professional services to be provided by Moxe as further specified in a License Agreement, relating to the setup, configuration and implementation of The Moxe Technology. Services may include professional services such as consulting, technical services, training, education, development of educational content and materials with regards to Moxe’s technology, eLearning, systems analyses, software programming, software maintenance, and/or other related services applicable to Client’s integration needs, if such services are specifically described in the License Agreement entered into between Client and Moxe during the term of this Governing Agreement.
In addition, the following terms have the meanings ascribed to them under the Business Associate Agreement and/or HIPAA: “Breach”, “Data Aggregation”, “Covered Entities”, “Protected Health Information” (or “PHI”) or “Security Incident.
2. Use of The Moxe Technology
2.1. Moxe Personnel.
Moxe and Moxe’s employees and/or agents (“Moxe Personnel”) shall exercise their own discretion as to the method and manner of performing the Services and Client shall have no right to direct or control Moxe Personnel’s performance of the Services except insofar as may be reasonably necessary to ensure Moxe’s compliance with the terms of this Governing Agreement. Moxe’s authority to act for or on behalf of Client shall be strictly limited to matters directly relating to its performance of the Services pursuant to this Governing Agreement. Moxe Personnel shall perform the Services in a manner consistent with the level of care and skill ordinarily exercised by members of the profession currently practicing in the same locality under similar conditions. Further, Moxe warrants and represents that Moxe Personnel are qualified and experienced in technology matters and the Services to be provided.
Client shall not attempt to interfere with or disrupt The Moxe Technology or attempt to gain access to any systems or networks that connect to The Moxe Technology (except as required to access and use The Moxe Technology as provided in this Governing Agreement). Client shall not permit unauthorized third parties to access or use The Moxe Technology. Client shall not: (a) copy, modify or distribute any portion of The Moxe Technology or its documentation; (b) rent, lease, or provide access to The Moxe Technology on a time-share or service bureau basis; (c) reverse engineer, disassemble, decompile, translate into human readable form any portion of The Moxe Technology; (d) permit any third party to do any of the foregoing; or (d) transfer any of its rights under this Governing Agreement. The obligations of Client under this Section 2.2 will survive any termination of this Governing Agreement.
2.3. Acceptable Use Policies.
Client acknowledges and agrees that Moxe does not monitor or police communications or data transmitted through The Moxe Technology and that Moxe shall not be responsible for the content of any such communications or transmissions. Client shall use The Moxe Technology exclusively for authorized and legal purposes, consistent with all applicable laws, regulations and the rights of others.
2.4. Independent Contractor.
Moxe is an independent licensor and independent contractor for the Client. Nothing in this Governing Agreement creates an employer-employee relationship, a partnership, agency, or joint venture, as granting a franchise, or as a limitation upon the parties’ discretion to terminate this Governing Agreement pursuant to Section 3 hereof. Moxe agrees to be responsible for all of Moxe’s federal and state income taxes, payroll withholding, social security, insurance, and other benefits for its employees.
3. Term and Termination
The term of this Governing Agreement commences on the Effective Date of the License Agreement and continues for as long as Moxe is performing Services or providing access to The Moxe Technology pursuant to a License Agreement, unless otherwise terminated in accordance with Section 3.2 below. Either party may terminate an individual License Agreement in accordance with Section 3.2 below.
This Governing Agreement may be terminated upon the occurrence of any of the following events:
(a) by mutual written agreement of the parties;
(b) by either party at any time after giving the other party at least ninety (90) days’ written notice so long as there are no unexpired License Agreements existing under this Governing Agreement; or
(c) by Moxe, upon thirty (30) business days’ written notice, if Client fails to pay the Fees due to Moxe when due pursuant to Section 4 that are not properly and timely disputed; provided that Moxe first provides Client with at least five (5) business days’ prior notice of the nonpayment and an additional five (5) business days to pay the Fees not in dispute; or
(d) by either party for any material breach of this Governing Agreement, other than failure to make payments under Section 4 of this Governing Agreement, that is not cured within thirty (30) business days following written notice specifying the breach and requiring its cure, or within such additional period, if any, as may be reasonably required to cure such default if it is of such a nature that it cannot be cured within such thirty (30) business day period.
3.3. Effect of Termination.
Upon expiration or termination of this Governing Agreement, Client’s right to access and use The Moxe Technology will immediately terminate, Client shall immediately cease all use of The Moxe Technology, and each party shall return and make no further use of any materials containing Confidential Information. Client also agrees to return to Moxe all The Moxe Technology.
The rights and obligations of Moxe and Client contained in Sections 2.2 (Restrictions), 2.3 (Acceptable Use Policies), 2.4 (Independent Contractor), 3.3 (Effect of Termination), 3.4 (Survival), 4 (Fees and Payment), 5 (Confidentiality), 6 (HIPAA), 7 (Warranty), 8 (Indemnification), 9 (Limitation on Liability), 10 (Restrictive Covenant), 11 (Intellectual Property Rights), and 12 (General) survive any expiration or termination of this Governing Agreement.
4. Fees and Payment
4.1. Fees and Expenses.
Client shall pay Moxe the fees in the amounts and on the schedule set forth in any applicable License Agreement (the “Fees”). Client agrees to pay Moxe any and all additional Fees set forth in a properly completed and executed License Agreement. Unless otherwise stated in the applicable License Agreement, Moxe shall invoice the Client on a monthly basis with net receipt terms.
Client will pay invoices within thirty (30) calendar days of receipt of each invoice. If Client owes Moxe any amount after the date specified in the preceding sentence, then such amount will accrue interest until paid at the rate of the lesser of one percent (1%) per month or the maximum rate allowed by law. If prior to the due date for any invoiced amount Client disputes, in good faith, the accuracy or legitimacy of any Moxe fees, charges, expenses, credits or other amounts payable under this Governing Agreement, it shall promptly notify Moxe in writing of such dispute. The parties shall use good faith efforts to resolve any such dispute promptly.
In addition to the Fees due pursuant to Section 4.1, Client agrees, subject to Client’s prior written approval, to pay Moxe’s reasonable out-of-pocket expenses incurred by Moxe in performance of the Services, provision of The Moxe Technology or maintenance and support in accordance with the documentation, including without limitation approved travel expenses.
4.4. Taxes and Assessments.
Client shall be responsible for all excise, sales and use taxes, fees, assessments and other charges imposed by any federal, state, or local government or governmental agency resulting from the Services and provision of The Moxe Technology service under this Governing Agreement (other than taxes based on Moxe’s income), unless the Client is exempt from such taxes. Client shall promptly reimburse Moxe if Moxe is required to pay any such tax to a governmental agency. Client shall have the right, without obligation to challenge the applicability of any such tax. If Client claims exemption from any taxes resulting from this Governing Agreement, Client will provide Moxe with documentation required by the taxing authority to support an exemption. At Client’s request Moxe shall fully cooperate with Client in any such challenge and Moxe shall refund any tax collected which is subsequently determined to have been improper.
5.1. Confidential Information.
“Confidential Information,” as used in this Governing Agreement, means any written, machine-reproducible and/or visual materials that are clearly labeled as proprietary, confidential, or with words of similar meaning, and all information that is orally or visually disclosed, if not so marked, if it is identified as proprietary or confidential at the time of its disclosure or in a writing provided within thirty (30) days after disclosure, and any information of any nature described in this Governing Agreement as confidential. Without limiting the foregoing, Confidential Information includes information concerning the business, services, products, technology, customers, or finances of either party, and any other confidential or proprietary information the disclosure of which might harm or destroy a competitive advantage of the disclosing party. Confidential Information also includes all information disclosed by Moxe relating to The Moxe Technology.
The obligations of Moxe and the Client under this Section 5 do not extend to any information which the receiving party can show through documented evidence: (i) becomes publicly available other than through the action of the receiving party; (ii) is subsequently rightfully furnished to the receiving party by a third party without restriction on disclosure or use; (iii) is furnished by the disclosing party to a third party without restriction on disclosure; or (iv) is rightfully known by the receiving party prior to the effective date of this Governing Agreement, which was not obtained from the disclosing party as evidenced by its business records.
5.3. Use and Nondisclosure.
During the Term and for a period of five (5) years after expiration or termination of this Governing Agreement, the receiving party shall not, directly or indirectly, disclose to any party other than its employees, Affiliates and authorized agents or contractors with a legitimate need to know (and even then only to such extent as is necessary and essential to complete the Services or use The Moxe Technology), any Confidential Information whether or not in writing and whether or not designated as confidential, without the prior written permission of the disclosing party, unless such disclosure is specifically required in the course of the performance by the receiving party of its obligations under this Governing Agreement or under any License Agreement. Each receiving party shall ensure that its personnel having access to Confidential Information shall preserve the confidential nature of such information, and shall be primarily liable for any breaches of the obligations arising under this Section 5 by its personnel.
5.4. Compelled Disclosure.
In the event that the receiving party is required to disclose all or any part of any Confidential Information under applicable law or an order issued by a court of competent jurisdiction or by another governmental agency, such party shall: (a) promptly, and prior to any disclosure, notify the disclosing party of the existence, terms and circumstances surrounding such disclosure; (b) consult with the disclosing party on the advisability of taking steps to resist or narrow such request; (c) cooperate with the disclosing party, at the disclosing party’s expense, in its efforts to obtain a protective order or other reliable assurance that confidential treatment will be accorded to such portion of the Confidential Information that is required to be disclosed, and (d) if a protective order or other protective arrangement cannot be obtained, furnish to the least extent required to comply with such request such portion of the Confidential Information as the receiving party is advised by counsel is legally required to be disclosed.
6.1. Patient Confidentiality.
The parties agree to the terms of the Business Associate Agreement that is being contemporaneously executed by the parties, and is incorporated into and forms an integral part of this Governing Agreement. As more fully described in the Business Associate Agreement, Client shall be responsible for procuring and properly maintaining all hardware, software, and other equipment necessary to maintain secure use of and access to The Moxe Technology over the Internet by its personnel. Client shall be responsible for ensuring that its personnel will use The Moxe Technology in a manner that is consistent with the terms of this Governing Agreement and the Business Associate Agreement.
6.2. Protected Health Information.
Client grants to Moxe an irrevocable, non-exclusive, royalty-free, worldwide, perpetual license to: (a) use Protected Health Information to create de-identified information that is, and will remain, the exclusive property of Moxe, and Moxe may use such data in connection with efforts to improve or modify The Moxe Technology, or for research, analytics and modeling purposes; and (b) combine Protected Health Information disclosed by Client to Moxe with the Protected Health Information of other covered entities received by Moxe in its capacity as a business associate of those other covered entities, to permit data analyses that relate to the health care operations of the respective covered entities (Data Aggregation).
7.1. Mutual Warranties.
Each party warrants that it has the full right, power and authority to execute, deliver, and perform this Governing Agreement and any License Agreement without the consent of any third party, or, to the extent any consent is needed, such party warrants that such consent has been obtained or will be obtained prior to the performance of this Governing Agreement.
Moxe warrants that the Services will be performed in a good and workmanlike manner consistent with applicable industry standards and will meet the requirements set forth in any applicable License Agreement. This warranty will be in effect for a period of thirty (30) days from the completion of any Services. As Client’s sole and exclusive remedy and Moxe’s entire liability for any breach of the foregoing warranty, Moxe will, at its sole option and expense, promptly re-perform any Services that fail to meet this limited warranty or refund to Client the fees paid for the non-conforming Services
7.3. The Moxe Technology.
Moxe warrants that The Moxe Technology will provide the functionality set forth in any applicable License Agreement.
7.4. Client Disclaimer.
Any data obtained by Moxe via electronic access is provided by Client on an “AS-IS” basis, Client does not warrant the accuracy or completeness of such data, and Client expressly disclaims any implied warranties, including but not limited to, the IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. Client does not warrant the availability of Client’s network or that any connection with Moxe will be uninterrupted or continuous.
7.5 Moxe Disclaimer
EXCEPT AS OTHERWISE EXPRESSLY PROVIDED ABOVE, THE SERVICES AND THE MOXE TECHNOLOGY ARE PROVIDED “AS IS,” AND WITHOUT WARRANTY OF ANY KIND, INCLUDING THE IMPLIED WARRANTIES OF NONINFRINGEMENT, MERCHANTABILITY, AND FITNESS FOR A PARTICULAR PURPOSE.
8.1. Indemnification by Moxe.
Moxe agrees to, subject to applicable limitations on liability, indemnify, and defend Client and its Affiliates, agents, officers, directors, and employees (together the “Client Indemnified Parties“) from and against any and all damages, loss, cost, expenses, liability, claims or demands (including without limitation, reasonable attorney’s fees and court costs) based on a claim against Client Indemnified Parties by a third party alleging that the acts or omissions of Moxe in performing the Services provided under any License Agreement or that The Moxe Technology (collectively, the “Deliverables”) infringe or misappropriate the Intellectual Property Rights of any third party. Moxe shall have no liability under this Section 8.1 to the extent that such third-party claims are based on: (i) the use of the Deliverables in a manner not contemplated by or in accordance with the License Agreement or this Governing Agreement; (ii) any use of the Deliverables in combination with other products, equipment, software or data not supplied by Moxe, or not otherwise contemplated by or in accordance with the License Agreement or this Governing Agreement, and in which the alleged infringement would not have arisen from the use of the Deliverables alone; (iii) Client Indemnified Parties’ continued use of any non-current version of the Deliverables if such infringement would have been avoided by the use of a current, unaltered release of the Deliverables; or (iv) any modification of the Deliverables by any person other than Moxe. (“Indemnity Exclusions”).
8.2. Infringement Remedies.
If a claim subject to infringement indemnification has been made, Moxe will have the right to, at Moxe’s option, either: (i) obtain for Client Indemnified Parties the right to continue using the Deliverables ; (ii) replace or modify the Deliverables so that such Deliverables become non-infringing without diminishing the functionality of the Deliverables; or (iii) if neither (i) or (ii) are feasible or commercially practicable, terminate the License Agreement and this Governing Agreement and provide Client Indemnified Parties a refund of the fees paid by such Client Indemnified Parties to Moxe during the previous six (6) months of the License Agreement. THE FOREGOING SETS FORTH MOXE’S SOLE AND EXCLUSIVE LIABILITY AND CLIENT’S SOLE AND EXCLUSIVE REMEDY UNDER THIS GOVERNING AGREEMENT FOR CLAIMS OF INFRINGEMENT OR MISAPPROPRIATION OF INTELLECTUAL PROPERTY RIGHTS OF ANY KIND.
8.3 Indemnification by Client.
Client agrees to defend or settle, and indemnify Moxe and its Client and its Affiliates, agents, officers, directors, and employees (together the “Moxe Indemnified Parties”) from any and all damages, loss, cost, expenses, liability, claims or demands (including without limitation, reasonable attorney’s fees and court costs) made against Moxe Indemnified Parties by a third party related to or arising out of Client’s or any individual’s use of (or inability to use) The Moxe Technology or the Services provided under a License Agreement, including any of the foregoing alleging negligence by any Moxe Indemnified Party.
8.4. Notification, Rights, and Cooperation.
Any claim for indemnification pursuant to this Section 8 will be subject to the following provisions: (i) the indemnifying party must be given prompt written notice of the claim by the indemnified party, provided that any delay in providing notice will not relieve the indemnifying party of its indemnity obligations under this Governing Agreement unless, and only to the extent, the indemnifying party was prejudiced by the delay; (ii) the indemnifying party has the right to control the defense and all negotiations relative to the settlement of any such claim, provided that no settlement admitting liability on the part of the indemnified party may be made without the express written consent of the indemnified party; and (iii) the indemnified party shall reasonably cooperate with the indemnifying party and its counsel at the indemnifying party’s cost and expense. At its discretion and expense, the indemnified party may participate in the defense, any appeals and settlement with counsel of its own choosing.
The parties’ obligation to indemnify each other will survive the expiration or termination of this Governing Agreement by either party for any reason. This agreement to indemnify and defend does not extend to any suits, claims, damages, or losses caused by the acts, omissions, or conduct of the indemnified party.
9. Limitation on Liability.
IN NO EVENT WILL MOXE HAVE ANY LIABILITY TO CLIENT WHATSOEVER FOR ANY INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES, INCLUDING BUT NOT LIMITED TO LOSS OF ANTICIPATED PROFITS OR REVENUE OR OTHER ECONOMIC LOSS IN CONNECTION WITH OR ENSUING FROM THE ACTIVITIES CONTEMPLATED BY THIS GOVERNING AGREEMENT, EVEN IF HAVING BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT WILL MOXE BE LIABLE TO CLIENT FOR ANY DIRECT DAMAGES IN EXCESS OF THE AMOUNT PAID TO MOXE BY THE CLIENT FOR THE SERVICES OR THE MOXE TECHNOLOGY DURING THE TWELVE (12) MONTH PERIOD PRECEDING THE EVENT GIVING RISING TO SUCH CLAIM. NOTWITHSTANDING ANYTHING TO THE CONTRARY SET FORTH IN THIS GOVERNING AGREEMENT, THIS LIMITATION OF LIABILITY DOES NOT APPLY TO THE FOLLOWING: BREACH OF SECTION 5 (CONFIDENTIALITY), SECTION 6 (HIPAA), SECTION 8 (INDEMNIFICATION) AND SECTION 11 (INTELLECTUAL PROPERTY RIGHTS), AND INSTEAD MOXE’S TOTAL AGGREGATE LIABILITY UNDER THIS GOVERNING AGREEMENT FOR ANY OF THE FOREGOING WILL IN NO EVENT EXCEED $500,000.
10. Restrictive Covenant.
During the performance of the Services under any License Agreement and for a period of twelve (12) months after the License Agreement’s expiration, termination, or completion, as the case may be, Client and Moxe respectively agree not to employ or solicit for employment any persons directly involved in the performance of the Services under such License Agreement who are employed by the other party without the prior written approval of the other party. Neither party will directly induce any employee of the other party to terminate his or her employment with the other party. For purposes of this Governing Agreement, either party’s job postings or advertisements and either party’s response to job inquiries unilaterally made by the other party’s employees will not constitute direct solicitation, an attempt to induce or any breach of this Governing Agreement.
11. Intellectual Property Rights
11.1. Client License Grant.
Client grants Moxe a non-exclusive, non-transferable, royalty-free, limited license to use the Pre-Existing Client Work Product and the Client Data solely for the purposes set forth in the License Agreement.
11.2. Moxe License Grant.
Subject to Client’s compliance with the terms and conditions of this Governing Agreement, Moxe grants client a non-exclusive, non-transferable, revocable limited license to access and use The Moxe Technology during the Term, solely for the purposes set forth in the License Agreement.
11.3. Client Intellectual Property
(a) Pre-Existing Client Work Product. The parties acknowledge that during the course of projects under the applicable License Agreement, Client may provide or otherwise make available to Moxe data, information, materials, methods, ideas, concepts, know-how, techniques, program organization or database structuring techniques that have been previously developed by Client or developed by Client independent of such project (“Pre-Existing Client Work Product”). Client retains, and nothing contained in any License Agreement affects, its ownership or other Intellectual Property rights in the Pre-Existing Client Work Product.
(b) Client Data. Subject to Section 6.2, Client owns and will retain all right, title and interest in and to all Client Data.
11.4. Moxe Intellectual Property.
Moxe retains all right, title and interest, as well as any associated Intellectual Property rights. Any works of authorship created by Moxe in the performance of any License Agreement are not “works made for hire” as defined in the U.S. Copyright law. Other than as expressly provided in this Governing Agreement or in any License Agreement, no license or right is granted to Client by implication or otherwise with respect to or under any such intellectual property rights.
12.1. Enforcement Remedies.
Moxe and Client acknowledge that the remedies at law for any breach of the foregoing covenants may be inadequate and that the non-breaching party will be entitled, and in addition to any remedy at law, to seek equitable relief by way of a restraining order, injunction or other prohibitory or mandatory relief, to prevent the breach or threatened breach of, or to seek to enforce the specific performance of any term, condition, covenant or provision of this Governing Agreement and any License Agreement. This provision with respect to injunctive relief and other equitable remedies will not diminish the right of the non-breaching party to claim and recover damages in addition to such relief.
12.2. Entire Agreement: Construction.
This Governing Agreement, including the Business Associate Agreement, any License Agreements and any other attachments are made part of and are fully incorporated into this Governing Agreement and constitute the sole understanding of the parties and supersede all prior and contemporaneous oral and written agreements and understandings between the parties with respect to the subject matter of this Governing Agreement. No amendment, modification, or alteration of the terms or provisions of this Governing Agreement will be binding unless it is in writing signed by the parties.
12.3. Modification and Waiver.
No delay or omission by either party to exercise any of its rights under this Governing Agreement will impair or be interpreted to be a waiver of such right. This Governing Agreement may be altered, amended, or terminated only in writing signed signed by the parties.
Whenever possible, each provision of this Governing Agreement will be interpreted in such a manner as to be effective and valid under applicable law, but if any provision of this Governing Agreement will be held to be prohibited by or invalid under applicable law, such provision will be ineffective only to the extent of such prohibition or invalidity without invalidating the remainder of such provision or the remaining provisions of this Governing Agreement. Whenever possible, each provision of this Governing Agreement will be interpreted in such a manner as to be effective and valid under applicable law, but if any provision of this Governing Agreement will be held to be prohibited by or invalid under applicable law, such provision will be ineffective only to the extent of such prohibition or invalidity without invalidating the remainder of such provision or the remaining provisions of this Governing Agreement.
Any notice, demand, claim, or other communication required or permitted under this Governing Agreement will be in writing and will be effectively given if sent by electronically signed email with return receipt received, facsimile with a hard copy following as provided for in this Section 12.5, or if mailed by United States certified or registered mail, postage prepaid, return receipt requested, or sent by a national commercial courier service, return receipt requested for next day delivery, to be confirmed in writing by such courier, or by hand delivery, or confirmed by signed receipt, and will be deemed to have been given, delivered and received three (3) business days after the same is deposited at a regularly maintained post office of the United States Postal Service, twenty-four (24) hours after the same is deposited with such a courier service, or upon hand delivery of the same, as applicable; provided that it is delivered to the appropriate address set forth in the applicable License Agreement or Business Associate Agreement. The address and individual required for such notice may be changed from time to time upon written notice to the other party.
12.6. Governing Law; Venue; Consent to Jurisdiction.
This Governing Agreement will be construed in accordance with and governed by the laws of the State of Delaware applicable to agreements made and to be performed in such jurisdiction without reference to conflicts of law principles, and any action (whether by arbitration or in court) arising under this Governing Agreement will be brought exclusively in Delaware. The parties consent to the personal jurisdiction of the state and federal courts located in Delaware.
The provisions of this Governing Agreement are binding upon Client’s and Moxe’s agents, employees, successors and permitted assigns. Neither party may transfer or assign its rights under this Governing Agreement without the prior written consent of the other party, which cannot be unreasonably withheld. Notwithstanding the foregoing, no consent is required to assign this Governing Agreement in connection with a merger, reorganization, acquisition, or sale of all or substantially all of the assets, stock, or business of the assigning party.
12.8. Effect of Headings.
The headings of the sections and paragraphs of this Governing Agreement are included for convenience only and will not be deemed to constitute part of this Governing Agreement.
12.9. Force Majeure.
(a) If the performance of this Governing Agreement by either party is prevented, restricted, or interfered with, in whole or in part, by reason of fire or other casualty or accident, strikes or labor disputes, war or other violence, any law, order, proclamation, regulations, ordinance, demand, regulation or requirement of any government agency, or any other act or condition beyond the reasonable control of the parties (“Event of Force Majeure”), the party so affected upon giving prompt notice to the other party will be excused from such performance to the extent of such prevention, restriction or interference; provided that the party so affected will use commercially reasonable efforts to avoid or remove such causes of nonperformance and promptly resume its performance.
(b) The party suffering an Event of Force Majeure shall notify the other party within fifteen (15) calendar days of the occurrence of such Events and within thirty (30) calendar days shall furnish the other party with a recovery plan of action.
12.10. Attorneys’ Fees.
The parties agree that in the event of any breach or alleged breach of this Governing Agreement or other action to enforce the terms of this Governing Agreement, the prevailing party in any such dispute will be entitled to recover from the other party upon written demand all of its reasonable and documented costs and expenses, including reasonable fees and disbursements of its legal counsel and of any experts and agents, incurred in connection with the enforcement of the terms of this Governing Agreement or otherwise as a result of such breach or alleged breach.
12.11. Compliance with Laws.
Each party shall comply with all federal and state laws relating to the subject matter of this Governing Agreement.
12.12. Prior Services.
If any part of the Services provided for by this Governing Agreement was commenced by Moxe prior to the execution of this Governing Agreement, this Governing Agreement will apply to such Services in the same manner as if made before said services were commenced.
Moxe has and may subcontract any services to be performed under this Governing Agreement to other vendors (e.g., software and storage providers). If any such subcontractor or other party Moxe engages in connection with providing The Moxe Technology requires access to Client Data (including Protected Health Information), then Moxe may provide such access if the subcontractor or other vendor agrees in writing to comply with the same or similar restrictions that apply to Moxe with respect to such information.
12.14. Use of Trademark.
Moxe may use Client’s name and logo in connection with describing a list of customers on its website or other commercial communications, such as presentations. With Client’s prior written approval, Moxe may also use Client’s name and logo for purposes of issuing a press release.
12.15. Third Party Beneficiaries.
Each party intends that this Governing Agreement will not benefit, or create any right or cause of action in or on behalf of, any person or entity other than the parties.
12.16. Electronic Documents.
To the extent applicable, because electronic documents may be modified intentionally or inadvertently the parties agree that neither party will be liable for damages resulting from changes in an electronic document occurring after this Governing Agreement is transmitted without the approval of both parties.