Terms and Conditions

TERMS AND CONDITIONS 

1. DEFINITIONS.  The following definitions shall apply to these Terms: 

1.  “Access Protocols” means the passwords, access codes, technical specifications, connectivity standards or protocols, or other relevant procedures, as may be necessary to allow Provider or any Authorized Users to access the Prospyr Platform.
2. “Affiliate(s)” means any legal entity that directly or indirectly is controlled by, controls or is under common control with another person or entity, provided that “control” means ownership as to more than 50% of another legal entity or the power to direct decisions of another legal entity, including the power to direct management and policies of another legal entity, whether by reason of ownership, by contract, or otherwise. 
3. “Authorization” means an express consent and authorization from each Authorized User and from each Patient permitting, under all applicable Data Protection Laws, the Personal Data and other Provider Content relating to that Authorized User or Patient to be Processed by Prospyr solely as contemplated by this Agreement including, without limitation, to allow Prospyr to exercise the licenses in Section 3 hereof.
4. “Authorized User” means each of Provider’s employees, agents, and independent contractors who are authorized to access the Prospyr Platform pursuant to Provider’s rights under this Agreement.
5. “Business Associate Agreement” or “BAA” means Prospyr’s business associate agreement setting forth the conditions under which Prospyr may create, receive, maintain or transmit PHI, as described in 45 C.F.R. § 164.504(e) and § 164.314(a).
6.  “Data Protection Laws” means any applicable Laws, regulations, orders, or judgments issued by a governmental authority that govern the privacy, security, confidentiality, protection, processing or transfer of the Personal Data or that govern the rights of Authorized Users, Patients, or other data subjects with regard to that Personal Data. Data Protection Laws include the Health Insurance Portability and Accountability Act, the Health Information Technology for Economic and Clinical Health Act, and all regulations implemented under either act (collectively, “HIPAA”) with regard to any Personal Data that is PHI.
7. “De-identified Data” means data created and derived from Prospyr’s provision of its services under this Agreement that is anonymized and/or aggregated and which does not identify Provider, Patient, or any other individual.
8. “Documentation” means the user’s manuals, if any, in either physical or electronic form, or other documentation provided to Provider with respect to the Prospyr Platform.
9. “Governmental Authority” means any federal, national, provincial or state or local government, or any political subdivision of any of them, or any agency, court or body exercising executive, legislative, judicial, regulatory or administrative functions.
10. “Intellectual Property Rights” means any and all intellectual property rights worldwide arising under statutory law, common law or by contract and whether or not perfected, including without limitation, all: (i) trade dress, trademark, and service mark rights; (ii) patents, patent applications and patent rights; (iii) rights associated with works or authorship including copyrights, copyright applications, copyright registrations, mask works rights, mask work applications, mask work registrations; (iv) rights relating to trade secrets and confidential information; (v) any rights analogous to those set forth in this section and any other proprietary rights relating to intellectual property; and (vi) divisionals, continuations, renewals, reissues and extension of the foregoing (as and to the extent applicable) now existing, hereafter filed, used or acquired, and whether registered or unregistered.
11. “Law(s)” means with respect to any party, in each case to the extent applicable to such party, its property, any of the Platform Services or in connection with this Agreement, any federal, national, provincial, state, county, municipal or local law, ordinance, statute, rule, regulation, code, policy, notice, treaty, judgment, executive order, decree, injunction, permit, issuance or other determination or finding of any Governmental Authority which is legally enforceable by a governmental entity.
12. “Personal Data” means any information relating to an identified or identifiable natural person, and all information that is “personal data,” “personal information,” “personally identifiable information,” or PHI under applicable Data Protection Laws.
13. “PHI” means “protected health information” as defined in 45 C.F.R. 160.103.
14. “Patient” means any patient of Provider whose Personal Data and/or PHI is submitted to the Prospyr Platform by one (1) or more Authorized Users in connection with this Agreement.
15. “Platform Services” means the provision of access to the Prospyr Platform to Provider and its Authorized Users.
16. “Processing” (including “Process”, “Processes”, “Processed”, and other variants of the term) means any operation or set of operations that is performed upon Personal Data, whether or not by automatic means, such as collection, collation, recording, organization, storage, adaptation or alteration, retrieval, consultation, analysis, interpretation, compilation, aggregation, use, disclosure by transmission, dissemination, viewing, copying, deleting, or otherwise making available, alignment or combination, blocking or erasure, or destruction.
17. “Professional Services” means professional services provided by Prospyr to Provider as described in any statement of work or order form (“SOW”) separately executed.
18. “Prospyr Platform” means Prospyr’s proprietary software-as-a-service aesthetics practice management software.  The Prospyr Platform is intended as a data collection and information management tool only and is not a diagnostic tool.  
19. “Provider Content” means any data (including, without limitation, Personal Data of Patients), content and information provided or submitted by, or on behalf of, Provider or its Authorized Users to or for use with, or in connection with the use or enjoyment of, the Services.
20. “Provider Materials” means, collectively, (i) Provider Content and (ii) other information, materials, software, information, instructions, data, or other materials provided by or on behalf of Provider or its Authorized Users in connection with Prospyr’s performance hereunder or under any SOW. 
21.  “Services” means any services provided by Prospyr to Provider under this Agreement, including Professional Services and Platform Services. 
22. “Updates” means upgrades, updates, bug fixes, or improvements to the Prospyr Platform that Prospyr generally releases to all users of the Prospyr Platform during the term of this Agreement.
23. “Usage Data” means any data collected by or on behalf of Prospyr relating to usage of the Prospyr Platform, including e.g., device and connection information; crash and error information; browser and operating system information; clickstream data; user conduct, engagement, intent, and interaction information; traffic logs; haptic, and positional data; and tracking information.

1. GRANT OF SAAS ACCESS; INTELLECTUAL PROPERTY RIGHTS AND RESTRICTIONS.

1. Prospyr Platform. Subject to the terms and conditions of this Agreement, and payment of the Fees, Prospyr grants to Provider during the term of this Agreement a limited non-exclusive, non-transferable, non-sub-licensable license to access the Prospyr Platform on SaaS basis, solely in accordance with the Documentation, and subject to any restrictions set forth on an SOW. 
2. Documentation. Subject to the terms and conditions of this Agreement, Prospyr grants to Provider during the term of this Agreement a non-exclusive, non-transferable license to download, copy and reproduce the Documentation solely for use in connection with the Prospyr Platform authorized by this Agreement.
3. Updates.  From time to time, Prospyr may (at Prospyr’s option) release and implement Updates.  Prospyr shall use commercially reasonable efforts to provide prior notice to Provider if such Update is material to Provider’s licensed use of the Prospyr Platform, except to the extent such Update concerns safety or the security of the Prospyr Platform and any data stored thereon, then Prospyr has the right to implement such Update immediately. 
4. Provisioning of Prospyr Platform Only. Provider is responsible for meeting, and ensuring its Authorized Users meet, the then-current hardware, operating system, browser and other technical requirements necessary to properly use and access the Prospyr Platform.  The Platform Services do not include, and Prospyr shall not provide for, any Provider‐side hardware or software, programming, training, hardware or software not set forth in this Agreement. Provider is responsible for having access to the internet and computer systems required to access and use the Platform Services. 
5. Responsibility for Access to Prospyr Platform. Provider shall be responsible for all access, including tracking and terminating, to the Prospyr Platform and/or Platform Services by any individual using Provider’s Access Protocols, including improper, malicious, or harmful access. Provider shall implement Provider’s own security measures in order to safeguard Provider’s Access Protocols and to prevent disclosure of the same to any third party. Provider is not entitled to resell, transfer, assign, or sub-license Provider’s rights under this Agreement to any third party. Provider shall use the Prospyr Platform solely for Provider’s own business purposes. Prospyr may audit Provider to ensure Provider compliance with this clause upon reasonable notice and during normal business hours. Provider shall cooperate with such audit. 
6. Ownership and Proprietary Rights. The Prospyr Platform, Documentation, and any and all Updates, improvements, modifications, bug fixes, and version releases thereto, all Usage Data, and all Intellectual Property Rights therein, and all other generally applicable technologies developed in the course of performing under this Agreement are and remain the exclusive property of Prospyr. Prospyr also would own all improvements, insights, analytics, etc. that Prospyr creates through the exercise of the licenses set out in Section 3 below.
7. Restrictions. Provider’s use of the Prospyr Platform is limited to the scope of the license granted under this Section 2. Provider is not permitted to otherwise use the Prospyr Platform in any way. The Prospyr Platform and its structure, organization, source code, and Documentation constitute proprietary information and valuable trade secrets of Prospyr. Provider shall not, and shall not permit any third party to: (a) use or access the Prospyr Platform or Documentation other than in accordance with the terms of this Agreement; (b) modify, adapt, alter, translate, or create derivative works from the Prospyr Platform or Documentation; (c) sub-license, distribute, sell, use for service bureau use, lease, rent, loan, or otherwise transfer the Prospyr Platform, access to the Prospyr Platform, or Documentation to any third party; (d) reverse engineer, decompile, disassemble, or otherwise attempt to derive the source code for the Prospyr Platform; (e) disseminate performance-related information relating to the Prospyr Platform; (f) otherwise use, reproduce, display or copy the Prospyr Platform or the Documentation; (g) use the Prospyr Platform to store or Process any PHI without having first entered into the Business Associate Agreement with Prospyr; (h) use the Prospyr Platform to store or Process any Personal Data regarding natural persons who reside in the European Economic Area or California without having first entered into a data processing agreement with Prospyr; or (i) knowingly violate HIPAA rules.  Provider acknowledges that the Prospyr Platform is not intended to be used as medical advice, diagnosis, or treatment of any medical condition or health problem, and Provider shall be responsible for all medical advice, diagnosis and treatment provided to any patients.  
8. No Assignment; No Other Rights. Prospyr retains all rights, title and interests in and to the Prospyr Platform, the Platform Services, along with any improvements, Updates, or derivative works thereof. Nothing in this Agreement assigns or transfers any rights in the Prospyr Platform or the Platform Services to Provider. Prospyr grants and Provider obtains only the rights expressly granted under this Agreement. Any rights not expressly granted to Provider hereunder are expressly reserved by Prospyr. 
9. Support Services. Subject to the terms and conditions of this Agreement, Prospyr will exercise commercially reasonable efforts to (a) provide support for the use of the Prospyr Platform to Provider, and (b) keep the Prospyr Platform operational and available to Provider, in each case in accordance with its standard policies and procedures. Prospyr will use reasonable commercial efforts to provide bug fixes or workarounds intended to correct a reproducible failure of the Prospyr Platform to substantially conform to the Documentation.  

1. PROVIDER-GRANTED RIGHTS; PROVIDER OBLIGATION.

1. Grant of Licenses. Provider grants to Prospyr a limited, non-exclusive, transferable, royalty-free and paid up, sub-licensable license: (i) during the term of this Agreement, to receive, transmit, copy, and use Provider Materials to facilitate access to the Prospyr Platform and to perform and provide the Services; (ii) during the term of this Agreement and perpetually thereafter, (A) to use Provider Content to provide and improve Prospyr products and services (including without limitation the Prospyr Platform) and (B) to create and/or use De-identified Data.  Provider acknowledges and agrees that Prospyr shall be the owner of any De-identified Data created by Prospyr and may Process De-identified Data for any purposes permitted under applicable Law, including without limitation creating aggregated data sets, insights, and analytics for clinical and academic research purposes.  For the avoidance of doubt, De-identified Data shall not be the Confidential Information of Provider. Provider hereby transfers and assigns, and shall throughout the term of this Agreement transfer and assign, any rights Provider might otherwise have to any De-identified Data to Prospyr. 
2. Rights in Provider Materials. Subject to the terms and conditions of this Agreement, between Provider and Prospyr, Provider shall retain all rights, title and interests in and to any Provider Materials not granted to Prospyr hereunder. 
3. Provider Feedback. If Provider provides Prospyr with feedback, e.g., reports of defects in the Prospyr Platform, Platform Services or Documentation, or any changes or modifications proposed or suggested by Provider, any Authorized User, or any Patient (collectively “Provider Feedback”), Prospyr shall have the right to use such Provider Feedback without any obligation to Provider on a perpetual, transferable, sub-licensable basis.

1. FEES AND EXPENSES; PAYMENTS

1. Fees. In consideration for the access rights granted to Provider and the Platform Services performed by Prospyr under this Agreement, Provider will pay to Prospyr the fees set out in the applicable SOW (“Monthly Fees”). Such Monthly Fees will be charged to the payment method specified on the SOW (“Payment Method”), monthly, in advance.  In the event Provider exceeds the limitations relating to Patients and/or Authorized Users (as set forth on the SOW), Provider agrees to pay any additional per-patient-per-month amounts and/or per-user-per-month amounts as indicated on the SOW for each such additional Patient and/or Authorized User (as applicable) (“Additional Fees”). Provider hereby agrees to Prospyr’s automatic charging of such Fees to Provider’s Payment Method as described herein and that no further consent is required for such charges. Except as otherwise provided in the SOW, all fees for Professional Services (“Professional Services Fees”) are billed at the end of the month in arrears and payable within thirty (30) days of the date of the invoice.  Monthly Fees, Additional Fees, and Professional Services Fees are referred to herein as the “Fees”.  Prospyr will be reimbursed only for expenses that are expressly provided for in an SOW or that have been approved in advance in writing by Provider, provided Prospyr has furnished such documentation for authorized expenses as Provider may reasonably request.  Prospyr reserves the right (in addition to any other rights or remedies Prospyr may have) to discontinue the Prospyr Platform and suspend all Authorized Users’ and Provider’s access to the Platform Services if Prospyr is unable to process any payment amounts to the Payment Method when due and/or Provider has not otherwise paid outstanding Fees for a period exceeding thirty (30) days from the date such Fees were due, until such amounts are paid in full. Provider will maintain complete, accurate and up-to-date Provider billing and contact information at all times. 
2. Audit Rights. Provider will keep and maintain, for a period of three (3) years (or longer, as required by applicable laws, rules, and regulations), full and complete records and books of account relating to Provider’s use of the Prospyr Platform.  Prospyr may inspect such records to verify rendered statements.  Any such inspection will be conducted by Prospyr or its designee during regular business hours at Provider’s offices in a manner that does not unreasonably interfere with Provider’s business activities.  Such inspection shall be at Prospyr’s cost and expense; provided, however, if the audit reveals overdue payments in excess of five percent (5%) of the payments owed to date, Provider shall immediately pay all such amounts and shall pay the cost of such audit(s) and for each such audit Prospyr may conduct another audit during the same twelve (12) month period.  Except as set forth above, such audits may be conducted no more than once in any twelve (12) month period.
3. Taxes. The Fees are exclusive of all applicable sales, use, value-added and other taxes, and all applicable duties, tariffs, assessments, export and import fees, or other similar charges, and Provider will be responsible for payment of all such taxes (other than taxes based on Prospyr’s income), fees, duties, and charges and any related penalties and interest, arising from the payment of the fees, the provision of the Services, or the license of the Prospyr Platform to Provider. Provider will make all payments of Fees to Prospyr free and clear of, and without reduction for, any withholding taxes; any such taxes imposed on payments of Fees to Prospyr will be Provider’s sole responsibility, and Provider will provide Prospyr with official receipts issued by the appropriate taxing authority, or such other evidence as the Prospyr may reasonably request, to establish that such taxes have been paid. 
4. Interest. Any amounts not paid when due will bear interest at the rate of one and one half percent (1.5%) per month, or the maximum legal rate if less, from the due date until paid.

1. PROVIDER WARRANTIES AND COVENANTS

1. Provider Warranties.  Provider is solely responsible for any and all obligations with respect to the accuracy, quality and legality of Provider Content.  Provider will obtain all third party licenses, consents and permissions needed for Prospyr to use the Provider Materials to provide the Services.  Without limiting the foregoing, Provider will be solely responsible for obtaining from third parties all necessary rights for Prospyr to use the Provider Content submitted by or on behalf of Provider for the purposes set forth in this Agreement.  Provider represents and warrants that any Provider Materials will not (a) infringe any copyright, trademark, or patent; (b) misappropriate any trade secret; (c) be deceptive, defamatory, obscene, pornographic or unlawful; (d) contain any viruses, worms or other malicious computer programming codes intended to damage Prospyr ‘s system or data; and (e) otherwise violate the rights of a third party. While Prospyr periodically backs up Provider Content, Prospyr makes no guarantees with respect to the timing or efficiency of any such backups. Provider agrees that any use of the Prospyr Platform contrary to or in violation of the representations and warranties of Provider in this Section 5 constitutes unauthorized and improper use of the Prospyr Platform.  Provider represents and warrants to Prospyr that Provider has the legal right to convey the licenses granted to Prospyr in this Agreement so that the use by Prospyr of any Provider Materials in connection with this Agreement does not violate the Intellectual Property Rights or other rights of a third party, or any Laws.
2. Authorization. Provider represents, warrants and covenants that it has, and shall throughout the term of this Agreement have a valid legal basis for Prospyr‘s Processing of Personal Data and, including, to the extent required by Data Protection Laws, an Authorization from each Authorized User and each Patient. Upon Prospyr’s reasonable request, Provider shall provide information sufficient to demonstrate the foregoing to Prospyr’s reasonable satisfaction. Provider further represents, warrants and covenants that Prospyr’s Processing of Personal Data as contemplated by this Agreement and/or as instructed by Provider shall not cause Prospyr to be in violation of any Data Protection Laws.
3. Regulatory Approvals. Provider is solely responsible for obtaining all regulatory approvals for: using the Prospyr Platform for any of Provider’s business purposes or in the provision of medical care, providing Provider Content through the Prospyr Platform and authorizing Prospyr to Process Provider Content as contemplated by this Agreement, in accordance with all applicable Laws.  Prospyr shall provide reasonable assistance to respond to or to assist Provider in responding to any regulatory body inquiry or request for information regarding the Prospyr Platform.
4. Relationship with Third Parties. Provider acknowledges that Provider controls the relationship with Provider’s Authorized Users and Patients for purposes of this Agreement, and for all aspects of the provision of medical advice.  Provider, and not Prospyr, is solely responsible for the Provider Materials or other information or data that it chooses to share with its Patients. Provider will ensure that Provider’s operations and business terms with its Authorized Users and Patients comply with all Laws applicable to the Processing of the Provider Content, and Provider will make legally adequate disclosures of its privacy practices to the extent required by Data Protection Laws. Provider hereby agrees to and shall hold Prospyr harmless from and against any damages, claims, losses, settlements, attorney’s fees, and other expenses related to the Processing of any Provider Content.  
5. Provider Security. Provider and its Authorized Users will have access to the Provider Content and will be responsible for all changes to and/or deletions of Provider Content and the security of all passwords and other Access Protocols required in order to access the Prospyr Platform. Provider will have the ability to export Provider Content out of the Prospyr Platform. Provider will have the sole responsibility for the accuracy, quality, integrity, legality, reliability, and appropriateness of all Provider Content.  Provider shall implement and maintain appropriate technical, physical, organizational and administrative security measures, procedures, practices and other safeguards to protect against unauthorized access to the Prospyr Platform. Provider shall promptly inform Prospyr of any actual or suspected security incident involving the Prospyr Platform. Provider shall reasonably cooperate with any of Prospyr’s investigations into Platform Service outages, security problems, and suspected breaches of the Agreement. NEITHER PROSPYR NOR ANY OF ITS EMPLOYEES, AGENTS, REPRESENTATIVES, SERVICE SUPPLIERS OR LICENSORS WILL BE LIABLE FOR UNAUTHORIZED ACCESS (I.E., HACKING) INTO THE PROSPYR PLATFORM OR THE PLATFORM SERVICES THROUGH PROVIDER’S EQUIPMENT, OR USING PROVIDER’S ACCESS CREDENTIALS, OR FOR UNAUTHORIZED ACCESS TO DATA FILES, PROGRAMS, PROCEDURES OR INFORMATION THEREON, UNLESS AND ONLY TO THE EXTENT THAT THIS DISCLAIMER IS PROHIBITED BY APPLICABLE LAW.
6. PHI and Personal Information.

1. Business Associate Agreement. Before providing to Prospyr, or enabling Prospyr to Process any PHI, Provider will enter into a Business Associate Agreement with Prospyr in the form provided by Prospyr. If Provider has not entered into the BAA, Provider represents, warrants and covenants Prospyr is not Processing any PHI on behalf of Provider under this Agreement in a manner covered by HIPAA.  Any PHI shall be governed by the Business Associate Agreement and shall not be Confidential Information. In the event of a conflict between any provision of the BAA and this Agreement, the provision providing the higher level of privacy or data protection shall govern.
2. Data Processing Agreement. Before providing to Prospyr or enabling Prospyr to Process any Personal Data that is subject to the California Consumer Privacy Act (“CCPA”), Provider will enter into a DPA with Prospyr in the form provided by Prospyr. If Provider has not entered into such DPA, Provider represents, warrants and covenants that no Personal Data Processed by Prospyr under this Agreement is subject to the CCPA. Any Personal Data that is subject to the CCPA shall be governed by the DPA and shall not be Confidential Information. In the event of a conflict between any provision of the DPA and this Agreement, the provision providing the higher level of privacy or data protection shall govern. 

1. PROFESSIONAL SERVICES. Where the parties have agreed to Prospyr’s provision of Professional Services, the details of such Professional Services will be set out in a mutually executed statement of work (“SOW”).  The SOW will include: (a) a description of the Professional Services; (b) the schedule for the performance of the Professional Services; and (c) any additional Professional Services Fees applicable for the performance of the Professional Services. Each SOW, as applicable, will incorporate the terms and conditions of this Agreement.  
2. PROSPYR  WARRANTIES AND DISCLAIMERS

1. Express Limited Warranty.  Prospyr represents and warrants only that it will provide the Services and perform its other obligations under this Agreement in a professional and workmanlike manner substantially consistent with general industry standards. Provided that Provider notifies Prospyr in writing of the breach within thirty (30) days following performance of the defective Services, specifying the breach in reasonable detail, Prospyr will, as Provider’s sole and exclusive remedy, for any breach of the foregoing, re-perform the Services which gave rise to the breach or, at Prospyr’s option, refund the Fees paid by Provider for the Services which gave rise to the breach.  
2. THE LIMITED WARRANTY SET FORTH IN SECTION 7.1 IS MADE FOR THE BENEFIT OF Provider ONLY. EXCEPT AS EXPRESSLY PROVIDED IN SECTION 7.1, AND TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE SERVICES AND DOCUMENTATION ARE PROVIDED “AS IS,” AND PROSPYR  MAKES NO (AND HEREBY DISCLAIMS ALL) OTHER WARRANTIES, REPRESENTATIONS, OR CONDITIONS, WHETHER WRITTEN, ORAL, EXPRESS, IMPLIED OR STATUTORY, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF SATISFACTORY QUALITY, COURSE OF DEALING, TRADE USAGE OR PRACTICE, SYSTEM INTEGRATION, DATA ACCURACY, MERCHANTABILITY, TITLE, NON-INFRINGEMENT, OR FITNESS FOR A PARTICULAR PURPOSE. PROSPYR DOES NOT WARRANT THAT ALL ERRORS CAN BE CORRECTED, OR THAT OPERATION OF THE PROSPYR PLATFORM WILL BE UNINTERRUPTED OR ERROR-FREE.
3. PROSPYR DOES NOT PROVIDE MEDICAL ADVICE AND THE PROSPYR PLATFORM IS NOT INTENDED TO PROVIDE MEDICAL ADVICE OR DIAGNOSIS. IT IS INTENDED FOR DATA COLLECTION AND INFORMATIONAL PURPOSES ONLY. THE PROSPYR PLATFORM IS NOT A SUBSTITUTE FOR PROFESSIONAL MEDICAL ADVICE, DIAGNOSIS, OR TREATMENT. UNAPPROVED OR NEW APPLICATIONS OR USES OF PROSPYR RPM OR “OFF-LABELLING” IS STRICTLY PROHIBITED AND PROSPYR DISCLAIMS ALL LIABILITY FOR ANY SUCH UNAUTHORIZED USES.

1. CONFIDENTIALITY

1. Confidential Information. “Confidential Information” means any nonpublic information of a party (the “Disclosing Party”), whether disclosed orally or in written or digital media, that is identified as “confidential” or with a similar legend at the time of such disclosure or that the receiving party (the “Receiving Party”) knows or should have known is the confidential or proprietary information of the Disclosing Party. The Platform Services, Documentation, and all enhancements and improvements thereto will be considered Confidential Information of Prospyr.
2. Protection of Confidential Information. The Receiving Party agrees that it will not use or disclose to any third party any Confidential Information of the Disclosing Party, except as expressly permitted under this Agreement. The Receiving Party will limit access to the Confidential Information to Authorized Users (with respect to Provider) or to those employees who have a need to know, who have confidentiality obligations no less restrictive than those set forth herein, and who have been informed of the confidential nature of such information (with respect to Prospyr). In addition, the Receiving Party will protect the Disclosing Party’s Confidential Information from unauthorized use, access, or disclosure in the same manner that it protects its own proprietary information of a similar nature, but in no event with less than reasonable care. At the Disclosing Party’s request or upon termination or expiration of this Agreement, the Receiving Party will return to the Disclosing Party or destroy (or permanently erase in the case of electronic files) all copies of the Confidential Information that the Receiving Party does not have a continuing right to use under this Agreement, and the Receiving Party will, upon request, certify to the Disclosing Party its compliance with this sentence. 
3. Exceptions. The confidentiality obligations set forth in Section 8.2 will not apply to any information that (a) is at the time of disclosure or becomes generally available to the public through no fault of the Receiving Party; (b) is lawfully provided to the Receiving Party by a third party free of any confidentiality duties or obligations; (c) was already known to the Receiving Party at the time of disclosure free of any confidentiality duties or obligations; or (d) the Receiving Party can demonstrate, by clear and convincing evidence, was independently developed by employees and contractors of the Receiving Party who had no access to the Confidential Information. In addition, the Receiving Party may disclose Confidential Information to the extent that such disclosure is necessary for the Receiving Party to enforce its rights under this Agreement or is required by law or by the order of a court or similar judicial or administrative body, provided that (to the extent legally permissible) the Receiving Party promptly notifies the Disclosing Party in writing of such required disclosure and cooperates with the Disclosing Party if the Disclosing Party seeks an appropriate protective order.

1. INDEMNIFICATION.

1. Provider.  Provider shall defend and indemnify Prospyr , its Affiliates, and their respective officers, directors, employees, and agents (“Prospyr Indemnified Parties”) from and against all claims, actions, or suits (whether by a third party or Governmental Authority), and related losses, expenses, damages, judgments, costs and other liabilities (including reasonable attorneys’ fees) (“Claims”) incurred by or assessed against any of the Prospyr Indemnified Parties, arising from or relating to (i) Provider’s failure to secure the rights and/or consents from third parties as necessary for Prospyr ‘s Processing of any Provider Content provided by Provider under this Agreement, (ii) allegations that any possession, transmission, storage, reproduction, or other use of any Provider Materials violates any Laws or rights of any third parties, or infringes or misappropriates any Intellectual Property Rights of any third party, (iii) allegations that any device, product, or services sold or offered by Provider causes any personal injury (including death) or property damage to any third party (including any Claims for product liability or strict liability) or violates any Laws; or (iv) the breach of any subsection of Section 5 by Provider.
2. Prospyr.  Prospyr shall defend and indemnify Provider from and against any Claims brought against Provider, its Affiliates, and their respective officers, directors, employees, and agents (“Provider Indemnified Parties”), but solely to the extent that the Claim is based upon an allegation that the permitted use of the Prospyr Platform, standing alone and not in combination with any technology provided by any third party or by or on behalf of Provider, infringes or misappropriates any Intellectual Property Rights of any third party.  The foregoing obligation does not apply to the extent of any Claims arising out of or relating to any: (i) access to or use of the Prospyr Platform in combination with any hardware, system, software, network or other materials or service not provided by Prospyr or explicitly described in the Documentation; (ii) failure to timely implement any modifications, upgrades, replacements or enhancements to the Prospyr Platform made available by Prospyr  to Provider; or (iii) Claims for which Provider owes an indemnification obligation to Prospyr. 
3. Conditions to Indemnity.  The foregoing obligations are expressly conditioned on the indemnified party: (i) notifying the indemnifying party promptly in writing of such action; (ii) giving the indemnifying party sole control of the defense thereof and any related settlement negotiations; and (iii) cooperating and, at the indemnifying party’s request and expense, assisting in such defense. Neither the party seeking indemnification, nor the alleged indemnifying party shall offer to settle or otherwise compromise such claim or action without the other party’s prior written consent (which shall not be unreasonably withheld).   
4. Claims Related to Infringement of Intellectual Property Rights.  If the Prospyr Platform becomes, or in Prospyr’s opinion is likely to become, the subject of an infringement Claim, Prospyr may, at its option and expense, (A) procure for Provider the right to continue using the Prospyr Platform; (B) replace or modify the Prospyr Platform so that it becomes non-infringing; or (C) accept cancellation of all licenses covering the Prospyr Platform that is the subject of such Claim upon written notice to Provider. THIS SECTION STATES PROSPYR ‘S ENTIRE LIABILITY AND PROVIDER’S SOLE AND EXCLUSIVE REMEDY FOR INFRINGEMENT CLAIMS OR ACTIONS BASED ON THE Prospyr Platform.

1. LIMITATIONS ON LIABILITY.

1. IN NO EVENT SHALL PROSPYR, REGARDLESS OF LEGAL THEORY, BE LIABLE FOR ANY INDIRECT, INCIDENTAL, OR CONSEQUENTIAL DAMAGES, INCLUDING BUT NOT LIMITED TO ANY LOSS OF REVENUE, LOSS OF PROFIT, LOSS OF ANTICIPATED SAVINGS, OR ANY OTHER ECONOMICAL ADVANTAGE, ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, ANY PLATFORM SERVICES, OR OTHERWISE IN CONNECTION WITH THIS AGREEMENT. 
2. IN NO EVENT SHALL PROSPYR, REGARDLESS OF LEGAL THEORY, BE LIABLE FOR THE COST OF ANY REPLACEMENT SERVICES (I.E., “COST OF COVER”). IN NO EVENT SHALL PROSPYR’S LIABILITY FOR SERVICES, REGARDLESS OF LEGAL THEORY, EXCEED, FOR ALL CLAIMS IN THE AGGREGATE, AN AMOUNT EQUAL TO THE FEES PAID BY PROVIDER TO PROSPYR UNDER THE APPLICABLE SOW DURING THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE DATE GIVING RISE TO LIABILITY.  
3. Basis of the Bargain. The parties agree that the limitations of liability set forth in this Section will survive and continue in full force and effect despite any failure of consideration or of an exclusive remedy. The parties acknowledge that the prices have been set and the Agreement entered into in reliance upon these limitations of liability and that all such limitations form an essential basis of the bargain between the parties. 

1. MISCELLANEOUS

1. Controlling Law; Disputes Resolution; Waiver of Jury Trial. 

1. This Agreement shall be governed by and interpreted in accordance with the laws of the State of Delaware exclusive of conflict or choice-of-law rules.  The parties specifically agree that the 1980 United Nations Convention on Contracts for the International Sale of Goods, as may be amended from time to time, does not apply to this Agreement. The parties hereby consent to the personal and exclusive jurisdiction and venue of the Federal and state courts located in Philadelphia, Pennsylvania.

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2. Notwithstanding the foregoing, except with respect to enforcing claims for injunctive or equitable relief, the parties shall submit any dispute, claim or controversy arising from or related in any way to this Agreement or the interpretation, application, breach, termination or validity hereof, or any other aspect of the relationship between Prospyr and Provider or their respective Affiliates, including without limitation any claim of inducement of this Agreement by fraud and a determination of the scope or applicability of this agreement to arbitrate, for resolution by binding arbitration in accordance with the Comprehensive Arbitration Rules & Procedures of JAMS. The arbitration is to be held at the JAMS location nearest to Prospyr’s headquarters and conducted in the English language. The parties shall maintain the confidential nature of the arbitration proceeding and any award, including the hearing, except as may be necessary to prepare for or conduct the arbitration hearing on the merits, or except as may be necessary in connection with a court application for a preliminary remedy, a judicial challenge to an award or its enforcement, or unless otherwise required by law or judicial decision. The arbitrator has the authority to award compensatory damages only and not the authority to award any punitive, exemplary, or multiple damages, and the parties waive any right to recover any such damages. Judgment on any award in arbitration may be entered in any court of competent jurisdiction. Notwithstanding the above, each party has recourse to any court of competent jurisdiction to enforce claims for injunctive and other equitable relief. 

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3. IN THE EVENT OF ANY DISPUTE BETWEEN THE PARTIES, WHETHER IT RESULTS IN PROCEEDINGS IN ANY COURT IN ANY JURISDICTION OR IN ARBITRATION, THE PARTIES HEREBY KNOWINGLY AND VOLUNTARILY, AND HAVING HAD AN OPPORTUNITY TO CONSULT WITH COUNSEL, WAIVE ALL RIGHTS TO TRIAL BY JURY, AND AGREE THAT ANY AND ALL MATTERS SHALL BE DECIDED BY A JUDGE OR ARBITRATOR WITHOUT A JURY TO THE FULLEST EXTENT PERMISSIBLE UNDER APPLICABLE LAW. To the extent applicable, in the event of any lawsuit between the parties arising out of or related to this Agreement, the parties agree to prepare and to timely file in the applicable court a mutual consent to waive any statutory or other requirements for a trial by jury. 

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2. Export. Provider agrees not to export, reexport, or transfer, directly or indirectly, any U.S. technical data acquired from Prospyr, or any products utilizing such data, in violation of the United States export laws or regulations.
3. Severability. If any provision of this Agreement is, for any reason, held to be invalid or unenforceable, the other provisions of this Agreement will remain enforceable and the invalid or unenforceable provision will be deemed modified so that it is valid and enforceable to the maximum extent permitted by law. 
4. Waiver. Any waiver or failure to enforce any provision of this Agreement on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion.
5. Assignment. Neither party will assign 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 will be binding upon the parties and their respective successors and permitted assigns. 
6. Subcontracting. Provider acknowledges that Prospyr uses and may use the services of third party subcontractors, including but not limited to third‐party datacenters, hosting services providers, technology service providers and marketing providers, and Provider consents to the corresponding subcontracting of Prospyr’s obligations under this Agreement. Prospyr shall be responsible for any act or omission by said third party subcontractors which, if performed or omitted by Prospyr, would constitute a breach of Prospyr’s obligations under this Agreement.
7. Compliance with Law. Provider will always comply with all international and domestic laws, ordinances, regulations, and statutes that are applicable to its purchase and use of the Services and Documentation.
8. Force Majeure. Any delay in the performance of any duties or obligations of either party (except the payment of Fees owed) will not be considered a breach of this Agreement if such delay is caused by a labor dispute, shortage of materials, fire, earthquake, flood, or any other event beyond the control of such party, provided that such party uses reasonable efforts, under the circumstances, to notify the other party of the cause of such delay and to resume performance as soon as possible.
9. Independent Contractors. Provider’s relationship to Prospyr is that of an independent contractor, and neither party is an agent or partner of the other. Provider will not have, and will not represent to any third party that it has, any authority to act on behalf of Prospyr.
10. Non-Exclusive. The parties expressly acknowledge that this Agreement does not create an exclusive relationship between the parties. Provider is free to engage others to perform services of the same or similar nature to those provided by Prospyr, and Prospyr is entitled to offer and provide services to others, solicit other clients and otherwise advertise the services and software offered by Prospyr. 
11. Notices. All notices required or permitted under this agreement must be delivered in writing, if to Prospyr, by emailing info@prospyrmed.com and if to Provider by emailing the Provider Point of Contact email address listed on the Cover Page, provided, however, that with respect to any notices relating to breaches of this agreement or termination, a copy of such notice will also be sent in writing to the other party at the address listed on the Cover Page by courier, by certified or registered mail (postage prepaid and return receipt requested), or by a nationally-recognized express mail service. Each party may change its email address and/or address for receipt of notice by giving notice of such change to the other party.
12. Counterparts. This Agreement may be executed in one or more counterparts, each of which will be deemed an original and all of which will be taken together and deemed to be one instrument.
13. Entire Agreement. This Agreement is the final, complete and exclusive agreement of the parties with respect to the subject matters hereof and supersedes and merges all prior discussions between the parties with respect to such subject matters. No modification of or amendment to this Agreement, or any waiver of any rights under this Agreement, will be effective unless in writing and signed by an authorized signatory of Provider and the Prospyr.
14. Precedence. In the event of a conflict the order of precedence shall be: (1) this Agreement, unless and to the extent an Order Form or SOW states that it specifically takes precedence over a contrary term in the body of the Agreement (and such statement shall apply only to the SOW in which it appears); (2) SOW; (3) other documents signed by the parties.