Authenticx Terms of Service

AGREEMENT

These Authenticx Terms of Service (“Agreement”) are entered into by and between Authenticx (see Section 14 (Definitions) for this and other capitalized defined terms) and the entity or person placing an order for, or accessing, any Authenticx Offerings (“Customer”). This Agreement consists of the terms and conditions set forth below and any attachments, addenda or exhibits referenced in the Agreement, and any Order Forms that reference this Agreement.

The “Effective Date” of this Agreement is the date which is the earlier of (a) Customer’s initial access to any Authenticx Offering (as defined below) through any online provisioning, registration or order process or (b) the effective date of the first Order Form referencing this Agreement. This Agreement will govern Customer’s initial purchase on the Effective Date as well as any future purchases made by Customer through an Order Form that reference this Agreement.

From time to time, Authenticx may modify this Agreement. Unless otherwise specified by Authenticx, changes become effective immediately. Authenticx will use reasonable efforts to notify Customer of the changes through communications via Customer’s Account, email or other means. Customer may be required to click to accept or otherwise agree to the modified Agreement before renewing a Subscription Term or upon the effective date of a new Order Form, and in any event continued use of any Authenticx Offering after the updated version of this Agreement goes into effect will constitute Customer’s acceptance of such updated version. Customer should cease use of Authenticx Offerings if they do not agree to the updated terms within the Terms.

1. Software Services.
1.1. Access and Use. Subject to and conditioned on Customer’s and its Authorized Users’ compliance with the terms and conditions of this Agreement, Authenticx hereby grants Customer a non-exclusive, non-transferable (except in compliance with Section 13.6) right to access and use the Services during the Subscription Term, solely for use by Authorized Users in accordance with the terms and conditions herein. Such use is limited to Customer’s internal business use. Authenticx shall provide to Customer the Access Credentials following its receipt of Authorized User data and in the manner set forth in the Order Form or Statement of Work. The total number of Authorized Users will not exceed the number set forth in the Order Form or Statement of Work, except as expressly agreed to in writing by the parties and subject to any appropriate adjustment of the Fees payable hereunder.

1.2. Provision of Software Services. Authenticx will (a) make the Software Services available to Customer pursuant to this Agreement, the Documentation and the applicable Order Forms, (b) provide the standard support for the Software Services to Customer, and (c) subject to the provisions of our Service Level Agreement, use commercially reasonable efforts to make the Software Services available 24 hours a day, 7 days a week, except for: (i) planned downtime (which Authenticx shall schedule to the extent practicable during off-peak hours), and (ii) any unavailability caused by circumstances beyond Our reasonable control, including, for example, an act of God, act of government, flood, fire, earthquake, civil unrest, act of terror, strike or other labor problem (other than one involving Our employees), Internet service provider or essential service provider failure or delay, or denial of service attack.

1.3. Documentation License. Authenticx hereby grants to Customer a non-exclusive, non-sublicensable, non-transferable (except in compliance with Section (Assignment) license to use the Documentation during the Term solely for Customer’s internal business purposes in connection with its use of the Services.

1.4. Support and Availability. During a Subscription Term, Authenticx will provide Customer the level of support for the Service set forth in the applicable Order Form, in accordance with the Support Policy.

1.5. Service and System Control. Except as otherwise expressly provided in this Agreement, as between the parties:

(a) Authenticx has and will retain sole control over the operation, provision, maintenance, and management of the Authenticx Materials; and
(b) Customer has and will retain sole control over the operation, maintenance, and management of, and all access to and use of, the Customer Systems, and sole responsibility for all access to and use of the Authenticx Materials by any Person by or through the Customer Systems or any other means controlled by Customer or any Authorized User, including any: (i) information, instructions, or materials provided by any of them to the Services or Authenticx; (ii) results obtained from any use of the Services or Authenticx Materials; and (iii) conclusions, decisions, or actions based on such use.

1.6. Reservation of Rights. Nothing in this Agreement grants any right, title, or interest in or to (including any license under) any Intellectual Property Rights in or relating to, the Services, Authenticx Materials, or Third-Party Materials, whether expressly, by implication, estoppel, or otherwise. All right, title, and interest in and to the Services, the Authenticx Materials, and the Third-Party Materials are and will remain with Authenticx and the respective rights holders in the Third-Party Materials.

1.7. Changes. Authenticx reserves the right, in its sole discretion, to make any changes to the Software Services and Authenticx Materials that it deems necessary or useful to: (a) maintain or enhance: (i) the quality or delivery of Authenticx’s services to its customers; (ii) the competitive strength of or market for Authenticx’s services; or (iii) the Services’ cost efficiency or performance; or (b) to comply with applicable Law.

1.8. Suspension or Termination of Services. Authenticx may, directly or indirectly, suspend, terminate, or otherwise deny Customers, any Authorized User’s, or any other Person’s access to or use of all or any part of the Services or Authenticx Materials, without incurring any resulting obligation or liability, if: (a) Authenticx receives a judicial or other governmental demand or order, subpoena, or law enforcement request that expressly or by reasonable implication requires Authenticx to do so; or (b) Authenticx believes, in its reasonable discretion, that: (i) Customer or any Authorized User has failed to comply with any term of this Agreement, or accessed or used the Services beyond the scope of the rights granted or for a purpose not authorized under this Agreement or in any manner that does not comply with any instruction or requirement of the Specifications; (ii) Customer or any Authorized User is, has been, or is likely to be involved in any fraudulent, misleading, or unlawful activities relating to or in connection with any of the Services; or (iii) this Agreement expires or is terminated. This Section 1.8 (Suspension or Termination of Services) does not limit any of Authenticx’s other rights or remedies, whether at law, in equity, or under this Agreement

1.9. Service Levels. The parties shall comply with the Support and Service Level Addendum.

2. Managed Services
2.1. Provision of Managed Services. Authenticx will perform the Managed Services for Customer as set forth in each applicable SOW or Order Form, subject to the terms and conditions of this Agreement.

2.2. Subcontractors. Authenticx may from time to time in its discretion engage third parties to perform Services (each, a “Subcontractor”).

2.3. Assistance. Customer acknowledges that timely access to applicable Customer Materials, resources, and personnel is necessary for the provision of Managed Services. Customer agrees to provide such access and to reasonably cooperate with Authenticx during a Managed Services Term. Authenticx will have no liability for any delay or deficiency to the extent resulting from Customer’s breach of its obligations under this Section 2 (Managed Services)

2.4. Customer Materials. Customer hereby grants Authenticx a limited right to use any Customer Materials solely for the purpose of providing Managed Services to Customer. Customer will retain any of its rights (including all intellectual property rights) in and to the Customer Materials. Customer Materials comprising Confidential Information will be subject to Section (Confidentiality). Customer warrants that Customer has and will have sufficient rights in the Customer Materials to grant the rights to Authenticx under this Agreement and that the Customer Materials will not violate any third-party rights.

2.5. Access to Customer Data under an SOW. With respect to access to any Customer Data under an SOW, Customer is solely responsible for ensuring that both the duration and scope of access is strictly limited to the access required under the specific SOW. Customer agrees that it will not grant Authenticx access to Customer Data unless specifically required and noted in an SOW, and that Customer will grant any such access only during the term of the applicable Managed Services project. Unless otherwise specified in an SOW, Customer must ensure that any access to Customer Data that it grants is limited to read-only access in Customer’s environment.

3. Use Restrictions and Security.
3.1. Use Restrictions. Customer shall not, and shall not permit any other Person to, access or use the Services or Authenticx Materials except as expressly permitted by this Agreement and, in the case of Third-Party Materials, the applicable third-party license agreement. For purposes of clarity and without limiting the generality of the foregoing, Customer shall not, except as this Agreement expressly permits:

(a) copy, modify, or create derivative works or improvements of the Services or Authenticx Materials;
(b) rent, lease, lend, sell, sublicense, assign, distribute, publish, transfer, or otherwise make available any Services or Authenticx Materials to any Person, including on or in connection with the internet or any time-sharing, service bureau, software as a service, cloud, or other technology or service;
(c) reverse engineer, disassemble, decompile, decode, adapt, or otherwise attempt to derive or gain access to the source code of the Services or Authenticx Materials, in whole or in part;
(d) bypass or breach any security device or protection used by the Services or Authenticx Materials or access or use the Services or Authenticx Materials other than by an Authorized User through the use of his or her own then valid Access Credentials;
(e) input, upload, transmit, or otherwise provide to or through the Services or Authenticx Systems, any information or materials that are unlawful or injurious, or contain, transmit, or activate any Harmful Code;
(f) damage, destroy, disrupt, disable, impair, interfere with, or otherwise impede or harm in any manner the Services, Authenticx Systems, or Authenticx’s provision of services to any third party, in whole or in part;
(g) remove, delete, alter, or obscure any trademarks, Specifications, Documentation, warranties, or disclaimers, or any copyright, trademark, patent, or other intellectual property or proprietary rights notices from any Services or Authenticx Materials, including any copy thereof;
(h) access or use the Services or Authenticx Materials in any manner or for any purpose that infringes, misappropriates, or otherwise violates any Intellectual Property Right or other right of any third party, or that violates any applicable Law;
(i) access or use the Services or Authenticx Materials for purposes of competitive analysis of the Services or Authenticx Materials, the development, provision, or use of a competing software service or product or any other purpose that is to the Authenticx’s detriment or commercial disadvantage; or
(j) otherwise access or use the Services or Authenticx Materials beyond the scope of the authorization granted under this Section 3.1 (Use Restrictions).

3.2. Security. The parties shall comply with the Security Addendum.

4. Customer Data
4.1. Rights in Customer Data. As between the parties, Customer retains all right, title and interest (including any and all intellectual property rights) in and to the Customer Data and any modifications made thereto in the course of operation of the Authenticx Service. Subject to the terms of this Agreement, Customer hereby grants to Authenticx a non-exclusive, worldwide, royalty-free right to process the Customer Data solely to the extent necessary to provide the Authenticx Service to Customer, to prevent or address service or technical problems therein, or as may be required by law.

4.2. Data Rights. Customer’s use of the Authenticx Services and all Customer Data will comply with applicable laws, government regulations, and any other legal requirements, including but not limited to, any data localization or data sovereignty laws, regulations, and any other third-party legal requirements applicable to Customer. Customer is solely responsible for the accuracy, content and legality of all Customer Data. Customer warrants that Customer has and will have sufficient rights in the Customer Data to grant the rights to Authenticx under this Agreement.

4.3. HIPAA Data. Customer agrees not to upload to the Software Service any HIPAA Data unless Customer has entered into Business Associate Agreement (BAA) or Data Usage Agreement (DUA) with Authenticx. Unless such an agreement is in place, Authenticx will have no liability under this Agreement for HIPAA Data, notwithstanding anything to the contrary in this Agreement or in HIPAA or any similar federal or state laws, rules or regulations. If Customer is permitted to submit HIPAA Data for the Service, then Customer may submit HIPAA Data to the Service only by uploading it as Customer Data. Upon mutual execution of a BAA or DUA, the BAA or DUA is incorporated by reference into this Agreement and is subject to its terms.

4.4. Data Privacy. The parties shall comply with the Data Privacy Addendum.

4.5. Customer Data Portability and Deletion. Without prejudice to the aforementioned and subject to Retrieval Rights in Section 12.3(d) (Retrieval Rights), upon request made by Customer within 30 days after the date of termination or expiration of this Agreement, Authenticx will make Customer Data available to Customer for export or download in a reasonable format to the extent required by applicable law. After the Retrieval Period, Authenticx will have no obligation to maintain or provide Customer Data and may thereafter delete or destroy all copies of Customer Data in Authenticx systems or otherwise in Authenticx’s possession or control, unless legally prohibited.

5. Customer Obligations
5.1. Customer Systems and Cooperation. Customer shall at all times during the Term: (a) set up, maintain, and operate in good repair and in accordance with the Specifications all Customer Systems on or through which the Services are accessed or used; (b) provide Authenticx Personnel with such access to Customer’s personnel and Customer Systems as is necessary for Authenticx to perform the Services; and (c) provide all cooperation and assistance as Authenticx may reasonably request to enable Authenticx to exercise its rights and perform its obligations under and in connection with this Agreement.

5.2. Effect of Customer Failure or Delay. Authenticx is not responsible or liable for any delay or failure of performance caused in whole or in part by Customer’s delay in performing, or failure to perform, any of its obligations under this Agreement (each, a “Customer Failure”).

5.3. Corrective Action and Notice. If Customer becomes aware of any actual or threatened activity prohibited by 3.1 (Use Restrictions), Customer shall, and shall cause its Authorized Users to, immediately: (a) take all reasonable and lawful measures within their respective control that are necessary to stop the activity or threatened activity and to mitigate its effects (including, where applicable, by discontinuing and preventing any unauthorized access to the Services and Authenticx Materials and permanently erasing from their systems and destroying any data to which any of them have gained unauthorized access); and (b) notify Authenticx of any such actual or threatened activity.

6. Fees and Payment; Taxes; Payment Disputes
6.1. Fees and Payment. All Fees and payment terms are as set forth in the applicable Order Form. Except as expressly set forth in this Agreement, all payment obligations are non-cancelable and Fees are non-refundable. If Customer issues a purchase order upon entering into an Order Form, then: (i) any such purchase order submitted by Customer is for its internal purposes only, and Authenticx rejects, and in the future is deemed to have rejected, any purchase order terms to the extent they add to or conflict in any way with this Agreement or the applicable Order Form and such additional or conflicting terms will have no effect; (ii) it shall be without limitation to Authenticx’s right to collect Fees owing hereunder; (iii) it shall be for the total Fees owing under the applicable Order Form; and (iv) on request, Authenticx will reference the purchase order number on its invoices (solely for administrative convenience), so long as Customer provides the purchase order at least ten (10) business days prior to the invoice date.

6.2. Taxes. All Fees and other amounts payable by Customer under this Agreement are exclusive of taxes and similar assessments. Without limiting the foregoing, Customer is responsible for all sales, use, and excise taxes, and any other similar taxes, duties, and charges of any kind imposed by any federal, state, or local governmental or regulatory authority on any amounts payable by Customer hereunder, other than any taxes imposed on Authenticx’s income.

6.3. Late Payment. If Customer fails to make any payment when due, Authenticx may charge interest on the past due amount at the rate of 1.5% per month calculated daily and compounded monthly or, if lower, the highest rate permitted under applicable Law. If such failure continues for ten (10) days following written notice thereof, Authenticx may suspend performance of the Services until all past due amounts have been paid, without incurring any obligation or liability to Customer or any other Person by reason of such suspension. Customer shall reimburse Authenticx for all costs incurred by Authenticx in collecting any late payments or interest, including attorneys’ fees, court costs, and collection agency fees.

6.4. No Deductions or Setoffs. All amounts payable to Authenticx under this Agreement shall be paid by Customer to Authenticx in full without any setoff, recoupment, counterclaim, deduction, debit, or withholding for any reason (other than any deduction or withholding of tax as may be required by applicable Law).

7. Confidentiality.
7.1. Confidential Information. In connection with this Agreement each party (as the “Disclosing Party”) may disclose or make available Confidential Information to the other party (as the “Receiving Party”). Subject to Section .2, “Confidential Information” means information in any form or medium (whether oral, written, electronic, or other) that the Disclosing Party considers confidential or proprietary, including information consisting of or relating to the Disclosing Party’s technology, trade secrets, know-how, business operations, plans, strategies, customers, and pricing, and information with respect to which the Disclosing Party has contractual or other confidentiality obligations, in each case whether or not marked, designated, or otherwise identified as “confidential”.

7.2. Exclusions. Confidential Information does not include information that the Receiving Party can demonstrate by written or other documentary records: (a) was rightfully known to the Receiving Party without restriction on use or disclosure prior to such information’s being disclosed or made available to the Receiving Party in connection with the Terms; (b) was or becomes generally known by the public other than by the Receiving Party’s or any of its Representatives’ noncompliance with this Agreement; (c) was or is received by the Receiving Party on a non-confidential basis from a third party that was not or is not, at the time of such receipt, under any obligation to maintain its confidentiality; or (d) was or is independently developed by the Receiving Party without reference to or use of any Confidential Information.

7.3. Protection of Confidential Information. As a condition to being provided with any disclosure of or access to Confidential Information, the Receiving Party shall, during the Term and for three (3) years thereafter, not access or use Confidential Information other than as necessary to exercise its rights or perform its obligations under and in accordance with this Agreement. Except as may be permitted by and subject to its compliance with this Section, the Receiving Party shall not disclose or permit access to Confidential Information other than to its Representatives who: (i) need to know such Confidential Information for purposes of the Receiving Party’s exercise of its rights or performance of its obligations under and in accordance with this Agreement; (ii) have been informed of the confidential nature of the Confidential Information and the Receiving Party’s obligations under this Section .3; and (iii) are bound by confidentiality and restricted use obligations at least as protective of the Confidential Information as the terms set forth in this Section The Receiving Party shall safeguard the Confidential Information from unauthorized use, access, or disclosure using at least the degree of care it uses to protect its similarly sensitive information and in no event less than a reasonable degree of care. The Receiving Party shall promptly notify the Disclosing Party of any unauthorized use or disclosure of Confidential Information and take all reasonable steps to prevent further unauthorized use or disclosure.

7.4. Compelled Disclosures. If the Receiving Party or any of its Representatives is compelled by applicable Law to disclose any Information then, to the extent permitted by applicable Law, the Receiving Party shall: (a) promptly, and prior to such disclosure, notify the Disclosing Party in writing of such requirement so that the Disclosing Party can seek a protective order or other remedy or waive its rights under Section 7.3; and (b) provide reasonable assistance to the Disclosing Party, at the Disclosing Party’s sole cost and expense, in opposing such disclosure or seeking a protective order or other limitations on disclosure. If the Disclosing Party waives compliance or, after providing the notice and assistance required under this Section 7.4, the Receiving Party remains required by Law to disclose any Confidential Information, the Receiving Party shall disclose only that portion of the Confidential Information that, on the advice of the Receiving Party’s legal counsel, the Receiving Party is legally required to disclose and, on the Disclosing Party’s request, shall use commercially reasonable efforts to obtain assurances from the applicable court or other presiding authority that such Confidential Information will be afforded confidential treatment.

8. Intellectual Property Rights.
8.1. Authenticx Materials. All right, title, and interest in and to the Authenticx Materials, including all Intellectual Property Rights therein, are and will remain with Authenticx and, with respect to Third-Party Materials, the applicable third-party providers own all right, title, and interest, including all Intellectual Property Rights, in and to the Third-Party Materials. Customer has no right, license, or authorization with respect to any of the Authenticx Materials except as expressly set forth in Section 1.1 (Access and Use) or the applicable third-party license, in each case subject to 3.1 (Use Restrictions). Customer acknowledges that the Service is offered as an online, hosted solution, and that Customer has no right to obtain a copy of the underlying computer code for the Service. Notwithstanding anything to the contrary herein, Authenticx may freely use and incorporate any Feedback into Authenticx’s products and services. All other rights in and to the Authenticx Materials are expressly reserved by Authenticx.

8.2. Customer Data. As between Customer and Authenticx, Customer is and will remain the sole and exclusive owner of all right, title, and interest in and to all Customer Data, including all Intellectual Property Rights relating thereto, subject to the rights and permissions granted in Section 8.3 (Consent to Use Customer Data).

8.3. Consent to Use Customer Data. Customer hereby grants all such rights and permissions in or relating to Customer Data as are necessary or useful to Authenticx and Authenticx Personnel in order to perform its obligations hereunder.

8.4. Usage Data. Notwithstanding anything to the contrary in this Agreement, Authenticx may collect and use Usage Data to develop, improve, support, and operate its products and services.

9. Representations and Warranties.
9.1. Representations and Warranties. Customer represents and warrants that:

(a) it is duly organized, validly existing, and in good standing (as such concept is applicable) as a corporation or other entity under the Laws of the jurisdiction of its incorporation or other organization;
(b) it has the full right, power, and authority to enter into and perform its obligations and grant the rights, licenses, consents, and authorizations it grants or is required to grant under this Agreement;
(c) the execution of this Agreement by its representative whose signature is set forth at the end of this Agreement has been duly authorized by all necessary corporate or organizational action of such party; and
(d) when executed and delivered by both parties, this Agreement will constitute the legal, valid, and binding obligation of such party, enforceable against such party in accordance with its terms.

9.2. Additional Customer Representations, Warranties, and Covenants. Customer represents, warrants, and covenants to Authenticx that Customer owns or otherwise has and will have the necessary rights and consents in and relating to the Customer Data so that, as received by Authenticx and Processed in accordance with this Agreement, they do not and will not infringe, misappropriate, or otherwise violate any Intellectual Property Rights of any third party or violate any applicable Law.

9.3. DISCLAIMER OF WARRANTIES. EXCEPT FOR THE EXPRESS WARRANTIES SET FORTH IN SECTION 9.1 (Mutual Representations and Warranties) AND ALL SERVICES AND AUTHENTICX MATERIALS ARE PROVIDED “AS IS”. AUTHENTICX SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT, AND ALL WARRANTIES ARISING FROM COURSE OF DEALING, USAGE, OR TRADE PRACTICE. WITHOUT LIMITING THE FOREGOING, AUTHENTICX MAKES NO WARRANTY OF ANY KIND THAT THE SERVICES OR AUTHENTICX MATERIALS, OR ANY PRODUCTS OR RESULTS OF THE USE THEREOF, WILL MEET CUSTOMER’S OR ANY OTHER PERSON’S REQUIREMENTS, OPERATE WITHOUT INTERRUPTION, ACHIEVE ANY INTENDED RESULT, BE COMPATIBLE OR WORK WITH ANY SOFTWARE, SYSTEM, OR OTHER SERVICES, OR BE SECURE, ACCURATE, COMPLETE, FREE OF HARMFUL CODE, OR ERROR FREE. ALL THIRD-PARTY MATERIALS ARE PROVIDED “AS IS” AND ANY REPRESENTATION OR WARRANTY OF OR CONCERNING ANY THIRD-PARTY MATERIALS IS STRICTLY BETWEEN CUSTOMER AND THE THIRD-PARTY OWNER OR DISTRIBUTOR OF THE THIRD-PARTY MATERIALS.

10. Indemnification.
10.1. Customer Indemnification. Customer shall indemnify, defend, and hold harmless Authenticx and its Subcontractors and Affiliates, and each of its and their respective officers, directors, employees, agents, successors, and assigns (each, a “Authenticx Indemnitee”) from and against any and all Losses incurred by such Authenticx Indemnitee resulting from any Action by an unaffiliated third party that arise out of or result from, or are alleged to arise out of or result from:

(a) Customer Data, including any Processing of Customer Data by or on behalf of Authenticx in accordance with this Agreement;
(b) any other materials or information (including any documents, data, specifications, software, content, or technology) provided by or on behalf of Customer or any Authorized User, including Authenticx’s compliance with any specifications or directions provided by or on behalf of Customer or any Authorized User to the extent prepared without any contribution by Authenticx;
(c) allegation of facts that, if true, would constitute Customer’s breach of any of its representations, warranties, covenants, or obligations under this Agreement; or
(d) negligence or more culpable act or omission (including recklessness or willful misconduct) by Customer, any Authorized User, or any third party on behalf of Customer or any Authorized User, in connection with this Agreement.

10.2. Mitigation. If any of the Services or Authenticx Materials are, or in Authenticx’s opinion are likely to be, claimed to infringe, misappropriate, or otherwise violate any third-party Intellectual Property Right, or if Customer’s or any Authorized User’s use of the Services or Authenticx Materials is enjoined or threatened to be enjoined, Authenticx may, at its option and sole cost and expense:

(a) obtain the right for Customer to continue to use the Services and Authenticx Materials as contemplated by this Agreement;
(b) modify or replace the Services and Authenticx Materials, in whole or in part, to seek to make the Services and Authenticx Materials (as so modified or replaced) non-infringing, while providing equivalent features and functionality, in which case such modifications or replacements will constitute Services and Authenticx Materials, as applicable, under this Agreement; or
(c) by written notice to Customer, terminate this Agreement and require Customer to immediately cease any use of the Services and Authenticx Materials, and refund Customer for any pre-paid Services.

10.3. Sole Remedy. THIS SECTION 11 SETS FORTH CUSTOMER’S SOLE REMEDIES AND AUTHENTICX’S SOLE LIABILITY AND OBLIGATION FOR ANY ACTUAL, THREATENED, OR ALLEGED CLAIMS THAT THE SERVICES AND AUTHENTICX MATERIALS OR ANY SUBJECT MATTER OF THIS AGREEMENT INFRINGES, MISAPPROPRIATES, OR OTHERWISE VIOLATES ANY INTELLECTUAL PROPERTY RIGHTS OF ANY THIRD PARTY.

11. Limitations of Liability.
11.1. EXCLUSION OF DAMAGES. IN NO EVENT WILL AUTHENTICX OR ANY OF ITS LICENSORS, SERVICE PROVIDERS, OR SUPPLIERS BE LIABLE UNDER OR IN CONNECTION WITH THIS AGREEMENT OR ITS SUBJECT MATTER UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE, FOR ANY: (a) LOSS OF PRODUCTION, USE, BUSINESS, REVENUE, OR PROFIT OR DIMINUTION IN VALUE; (b) IMPAIRMENT, INABILITY TO USE OR LOSS, INTERRUPTION, OR DELAY OF THE SERVICES; (c) LOSS, DAMAGE, CORRUPTION, OR RECOVERY OF DATA, OR BREACH OF DATA OR SYSTEM SECURITY; (d) COST OF REPLACEMENT GOODS OR SERVICES; (e) LOSS OF GOODWILL OR REPUTATION; OR (f) CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, ENHANCED, OR PUNITIVE DAMAGES, REGARDLESS OF WHETHER SUCH PERSONS WERE ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES OR SUCH LOSSES OR DAMAGES WERE OTHERWISE FORESEEABLE, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.

11.2. LIMITATION OF LIABILITY. IN NO EVENT WILL THE AGGREGATE LIABILITY OF AUTHENTICX ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER ARISING UNDER OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, OR ANY OTHER LEGAL OR EQUITABLE THEORY, EXCEED THE TOTAL AMOUNTS PAID TO AUTHENTICX UNDER THIS AGREEMENT IN THE TWELVE (12) MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO THE CLAIM. THE TOTAL AMOUNT OF AGGREGATE LIABILITY PURSUANT TO THIS SECTION 11.2, SHALL INCLUDE BUT NOT BE LIMITED TO ATTORNEYS FEES, COURT COSTS, SETTLEMENTS, JUDGMENTS, AND REIMBRUSEMENT OF COSTS. THE FOREGOING LIMITATIONS APPLY EVEN IF ANY REMEDY FAILS OF ITS ESSENTIAL PURPOSE.

12. Term and Termination.
12.1. Term. This Agreement is effective as of the Effective Date and will remain in effect until terminated in accordance with its terms. Each Order Form will terminate upon expiration of the applicable Subscription Term, unless expressly stated otherwise therein or in this Agreement.

12.2. Termination. In addition to any other express termination right set forth elsewhere in this Agreement:

(a) Authenticx may terminate this Agreement, effective on written notice to Customer, if Customer: (i) fails to pay any amount when due hereunder, and such failure continues more than ten (10) days after Authenticx’s delivery of written notice thereof; or (ii) breaches any of its obligations under Section 3.1 or Section 6.4;
(b) Authenticx may terminate this Agreement, effective on written notice to the Customer, if the Customer materially breaches this Agreement, and such breach: (i) is incapable of cure; or (ii) being capable of cure, remains uncured thirty (30) days after Authenticx, the non-breaching party, provides the Customer, breaching party, with written notice of such breach; and
(c) Authenticx may terminate this Agreement, effective immediately upon written notice to the Customer, if the Customer: (i) becomes insolvent or is generally unable to pay, or fails to pay, its debts as they become due; (ii) files, or has filed against it, a petition for voluntary or involuntary bankruptcy or otherwise becomes subject, voluntarily or involuntarily, to any proceeding under any domestic or foreign bankruptcy or insolvency Law; (iii) makes or seeks to make a general assignment for the benefit of its creditors; or (iv) applies for or has appointed a receiver, trustee, custodian, or similar agent appointed by order of any court of competent jurisdiction to take charge of or sell any material portion of its property or business.

12.3. Effect of Termination or Expiration. Upon any expiration or termination of this Agreement, except as expressly otherwise provided in this Agreement:

(a) All rights, licenses, consents, and authorizations granted by either party to the other hereunder will immediately terminate;
(b) Authenticx shall immediately cease all use of any Customer Data or Customer’s Confidential Information and promptly return to Customer, or at Customer’s written request destroy, all documents and tangible materials containing, reflecting, incorporating, or based on Customer Data or Customer’s Confidential Information;
(c) Customer shall immediately cease all use of any Services or Authenticx Materials and (i) promptly return to Authenticx, or at Authenticx’s written request destroy, all documents and tangible materials containing, reflecting, incorporating, or based on Authenticx’s Confidential Information;
(d) Upon written notice to Authenticx, Customer will have up to thirty (30) calendar days from termination or expiration of this Agreement to access the Service solely to the extent necessary to retrieve Customer Data (“Retrieval Right”). If Customer exercises its Retrieval Right, this Agreement and the applicable Order Form shall continue in full force and effect for the duration of the Retrieval Right. Authenticx shall have no further obligation to make Customer Data available after termination of this Agreement and shall thereafter promptly delete Customer Data. After the Retrieval Right period, Customer will have no further access to Customer Data and shall cease use of and access to the Authenticx Services and delete all copies of any Authenticx Confidential Information in its possession.
(e) Authenticx may disable all Customer and Authorized User access to the Authenticx Materials, except as required by the Retrieval Right herein;
(f) if Authenticx terminates this Agreement pursuant to Section 3.1, Section 5.3, Section 6.1 or any applicable provision, all Fees that would have become payable had the Agreement remained in effect until expiration of the Term will become immediately due and payable, and Customer shall pay such Fees, together with all previously-accrued but not yet paid Fees, on receipt of Authenticx’s invoice therefor.

12.4. Surviving Terms. The provisions set forth in the following sections, and any other right or obligation of the parties in this Agreement that, by its nature, should survive termination or expiration of this Agreement, will survive any expiration or termination of this Agreement: Section 6.4 (Confidentiality), Section 9.3 (Disclaimer of Warranties), Section 10 (Indemnification), Section 11 (Limitations of Liability), Section 12.3 (Effect of Termination or Expiration), this Section 12.4 (Surviving Terms), and Section 14 (Miscellaneous).

12.5. Suspension of the Authenticx Services. In addition to any of its other rights or remedies (including, without limitation, any termination rights) set forth in this Agreement, Authenticx reserves the right to suspend provision of the Authenticx Services:

(a) if any Fees are thirty (30) days or more overdue (and are not otherwise subject to Section 6 (Payment Disputes));
(b) if Authenticx deems such suspension necessary as a result of Customer’s breach of Sections 3 (Use Restrictions) or 5 (Customer Obligations);
(c) if Authenticx reasonably determines suspension is necessary to avoid material harm to Authenticx or its other customers, including if the Service is experiencing denial of service attacks, mail flooding, or other attacks or disruptions outside of Authenticx’s control; or
(d) as required by law or at the request of governmental entities.

13. Miscellaneous.
13.1. Relationship of the Parties. The relationship between the parties is that of independent contractors. Nothing contained in this Agreement shall be construed as creating any agency, partnership, joint venture, or other form of joint enterprise, employment, or fiduciary relationship between the parties, and neither party shall have authority to contract for or bind the other party in any manner whatsoever.

13.2. Notices. Any notice, request, consent, claim, demand, waiver, or other communications under this Agreement have legal effect only if in writing and addressed to a party at the address set forth in the Preamble (or to such other address or such other person that such party may designate from time to time in accordance with this Section 14.4). Notices sent in accordance with this Section 14.4 will be deemed effectively given: (a) when received, if delivered by hand, with signed confirmation of receipt; (b) when received, if sent by a nationally recognized overnight courier, signature required; (c) when sent, if by facsimile or email, (in each case, with confirmation of transmission), if sent during the addressee’s normal business hours, and on the next business day, if sent after the addressee’s normal business hours; and (d) on the fifth day after the date mailed by certified or registered mail, return receipt requested, postage prepaid.

13.3. Interpretation. For purposes of this Agreement: (a) the words “include,” “includes,” and “including” are deemed to be followed by the words “without limitation”; (b) the word “or” is not exclusive; (c) the words “herein,” “hereof,” “hereby,” “hereto,” and “hereunder” refer to this Agreement as a whole; (d) words denoting the singular have a comparable meaning when used in the plural, and vice-versa; and (e) words denoting any gender include all genders. Unless the context otherwise requires, references in this Agreement: (x) to sections, exhibits, schedules, attachments, and appendices mean the sections of, and exhibits, schedules, attachments, and appendices attached to, this Agreement; (y) to an agreement, instrument, or other document means such agreement, instrument, or other document as amended, supplemented, and modified from time to time to the extent permitted by the provisions thereof; and (z) to a statute means such statute as amended from time to time and includes any successor legislation thereto and any regulations promulgated thereunder. The parties intend this Agreement to be construed without regard to any presumption or rule requiring construction or interpretation against the party drafting an instrument or causing any instrument to be drafted. The exhibits, schedules, attachments, and appendices referred to herein are an integral part of this Agreement to the same extent as if they were set forth verbatim herein. In the event of any conflict in the terms and conditions contained in the Statement of Work and this Agreement, this Agreement shall control.

13.4. Headings. The headings in this Agreement are for reference only and do not affect the interpretation of this Agreement.

13.5. Entire Agreement. This Agreement, together with any other documents incorporated herein by reference, constitutes the sole and entire agreement of the parties with respect to the subject matter of this Agreement and supersedes all prior and contemporaneous understandings, agreements, representations, and warranties, both written and oral, with respect to such subject matter. In the event of any inconsistency between the statements made in the body of this Agreement, the related exhibits, schedules, attachments, and appendices and any other documents incorporated herein by reference, the following order of precedence governs: (a) first, this Agreement, excluding its exhibits, schedules, attachments, and appendices; (b) second, the exhibits, schedules, attachments, and appendices to this Agreement as of the Effective Date; and (c) third, any other documents incorporated herein by reference.

13.6. Assignment. Customer shall not assign or otherwise transfer any of its rights, or delegate or otherwise transfer any of its obligations or performance under this Agreement, in each case whether voluntarily, involuntarily, by operation of law, or otherwise, without Authenticx’s prior written consent. No assignment, delegation, or transfer will relieve Customer of any of its obligations or performance under this Agreement. Any purported assignment, delegation, or transfer in violation of this Section 13.6 is void. This Agreement is binding upon and inures to the benefit of the parties hereto and their respective successors and permitted assigns.

13.7. Force Majeure. In no event will Authenticx be liable or responsible to Customer, or be deemed to have defaulted under or breached this Agreement, for any failure or delay in fulfilling or performing any term of this Agreement, when and to the extent such failure or delay is caused by any circumstances beyond Authenticx’s reasonable control (a “Force Majeure Event”), including (i) acts of God; (ii) flood, fire, earthquake, epidemics, pandemics, restrictive quarantine, or explosion; (iii) war, invasion, hostilities (whether war is declared or not), terrorist threats or acts, riot or other civil unrest; (iv) government order, law, or actions; (v) embargoes or blockades in effect on or after the date of this Agreement; and (vi) national or regional emergency. In the event of any failure or delay caused by a Force Majeure Event, Authenticx shall give prompt written notice to Customer stating the period of time the occurrence is expected to continue and use commercially reasonable efforts to end the failure or delay and minimize the effects of such Force Majeure Event.

13.8. No Third-Party Beneficiaries. This Agreement is for the sole benefit of the parties hereto and their respective successors and permitted assigns and nothing herein, express or implied, is intended to or shall confer upon any other Person any legal or equitable right, benefit, or remedy of any nature whatsoever under or by reason of this Agreement.

13.9. Amendment and Modification; Waiver. No amendment to or modification of this Agreement is effective unless it is in writing and signed by each party. No waiver by any party of any of the provisions hereof shall be effective unless explicitly set forth in writing and signed by the party so waiving. Except as otherwise set forth in this Agreement, no failure to exercise, or delay in exercising, any rights, remedy, power, or privilege arising from this Agreement will operate or be construed as a waiver thereof; nor shall any single or partial exercise of any right, remedy, power, or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power, or privilege.

13.10. Severability. If any term or provision of this Agreement is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction. Upon such determination that any term or other provision is invalid, illegal, or unenforceable, the parties hereto shall negotiate in good faith to modify this Agreement so as to effect the original intent of the parties as closely as possible in a mutually acceptable manner in order that the transactions contemplated hereby be consummated as originally contemplated to the greatest extent possible.

13.11. Governing Law; Submission to Jurisdiction. This Agreement is governed by and construed in accordance with the internal laws of the State of Indiana without giving effect to any choice or conflict of law provision or rule that would require or permit the application of the laws of any jurisdiction other than those of the State of Indiana. Any legal suit, action, or proceeding arising out of this Agreement or the licenses granted hereunder will be instituted exclusively in the federal courts of the United States or the courts of the State of Indiana in each case located in the city of Indianapolis and County of Marion, and each party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action, or proceeding. Service of process, summons, notice, or other document by mail to such party’s address set forth herein shall be effective service of process for any suit, action, or other proceeding brought in any such court.

13.12. Dispute Resolution. Each party agrees that before it seeks any form of legal relief (except for a provisional remedy as explicitly set forth below) it shall provide written notice to the other party of the specific issue(s) in dispute (and reference the relevant provisions of the contract between the parties which are allegedly being breached). Within thirty (30) days after such notice, knowledgeable executives of the parties shall hold at least one meeting (in person or by video- or tele-conference) for the purpose of attempting in good faith, to resolve the dispute. The parties agree to maintain the confidential nature of all disputes and disagreements between them, including, but not limited to, informal negotiations, mediation or arbitration, except as may be necessary to prepare for or conduct these dispute resolution procedures or unless otherwise required by law or judicial decision. The dispute resolution procedures in this section shall not apply to claims subject to indemnification under Section 10 (Indemnification) or prior to a party seeking a provisional remedy related to claims of misappropriation or ownership of intellectual property, trade secrets or Confidential Information.

13.13. Equitable Relief. Customer acknowledges and agrees that a breach or threatened breach by Customer of any of its obligations in Section 3.1 or Section 5, would cause Authenticx irreparable harm for which monetary damages may not be an adequate remedy and that, in the event of such breach or threatened breach, the other party will be entitled to seek equitable relief, including a restraining order, an injunction, specific performance, and any other relief that may be available from any court, without any requirement to post a bond or other security, or to prove actual damages or that monetary damages are not an adequate remedy. Such remedies are not exclusive and are in addition to all other remedies that may be available at law, in equity, or otherwise.

13.14. Counterparts. This Agreement may be executed in counterparts, each of which is deemed an original, but all of which together are deemed to be one and the same agreement. A signed copy of this Agreement delivered by facsimile, email, or other means of electronic transmission is deemed to have the same legal effect as delivery of an original signed copy of this Agreement.

Definitions

“Access Credentials” means any username, identification number, password, license or security key, security token, PIN, or other security code, method, technology, or device, used alone or in combination, to verify an individual’s identity and authorization to access and use the Services.
“Action” means any claim, action, cause of action, demand, lawsuit, arbitration, inquiry, audit, notice of violation, proceeding, litigation, citation, summons, subpoena, or investigation of any nature, civil, criminal, administrative, regulatory, or other, whether at law, in equity, or otherwise.
“Affiliate” of a Person means any other Person that directly or indirectly, through one or more intermediaries, controls, is controlled by, or is under common control with, such Person. The term “control” (including the terms “controlled by” and “under common control with”) means the direct or indirect power to direct or cause the direction of the management and policies of a Person, whether through ownership of more than 50% of the voting securities of a Person.
“Authorized Users” or “User” means Customer’s employees, consultants, contractors, and agents (a) who are authorized by Customer to access and use the Services under the rights granted to Customer pursuant to this Agreement; and (b) for whom access to the Services has been purchased hereunder.
“BAA” means a business associate agreement governing the parties’ respective obligations with respect to any HIPAA Data uploaded by Customer to the Service in accordance with the terms of this Agreement.
“Change Order” means a change order or amendment to an SOW that is agreed to and signed in writing by both parties with respect to any Services to be performed hereunder.
“Customer Data” means information, data, and other content, in any form or medium, that is collected, downloaded, or otherwise received, directly or indirectly, from Customer or an Authorized User by or through the Services. For the avoidance of doubt, Customer Data does not include Resultant Data or any other information reflecting the access or use of the Services by or on behalf of Customer or any Authorized User.
“Customer Systems” means Customer’s information technology infrastructure, including computers, software, hardware, databases, electronic systems (including database management systems), and networks, whether operated directly by Customer or through the use of third-party services.
“Data Protection Claims” means any claims arising from a party’s breach of Data Privacy Addendum, Security Addendum, or Section 7 (Confidentiality), where such breach results in the unauthorized disclosure of Customer Data, or breach of Section 5 (Customer Obligations).
“Deliverables” means the guides, presentations or other deliverables that Authenticx provides to Customer in connection with Technical Services. For clarity, Authenticx may use analytical tools, editing tools, presentation tools, and similar tools to develop Deliverables. The term “Deliverables” does not include such tools.
“DPA” means the Customer Data Processing Addendum.
“Documentation” means any manuals, instructions, or other documents or materials that Authenticx provides or makes available to Customer in any form or medium and which describe the functionality, components, features, or requirements of the Services or Authenticx Materials, including any aspect of the installation, configuration, integration, operation, use, support, or maintenance thereof.
“Excluded Claims” means obligations and claims based on: (a) a party’s breach of its obligations in Section 7 (Confidentiality) (but excluding obligations and claims relating to Customer Data); (b) either party’s express obligations under Section 10 (Indemnification); and/or (c) liability which, by law, cannot be limited (e.g., tort claims for gross negligence and intentional misconduct).
“Feedback” means any suggestions, enhancement requests, recommendations, corrections, or other feedback provided by Customer or by any users of the Authenticx Services relating to Authenticx’s products or services.
“Fees” means the fees payable by Customer to Authenticx for the applicable Authenticx Services. For Technical Services, the applicable Fees are as set forth in the relevant SOW, and “Fees” also includes travel, lodging, meal and other expenses incurred in the course of providing Technical Services, but only if the applicable SOW specifies that expenses are reimbursable.
“Harmful Code” means any software, hardware, or other technology, device, or means, including any virus, worm, malware, or other malicious computer code, the purpose or effect of which is to (a) permit unauthorized access to, or to destroy, disrupt, disable, distort, or otherwise harm or impede in any manner any (i) computer, software, firmware, hardware, system, or network; or (ii) any application or function of any of the foregoing or the security, integrity, confidentiality, or use of any data Processed thereby; or (b) prevent Customer or any Authorized User from accessing or using the Services or Authenticx Systems as intended by this Agreement.
“HIPAA” means the Health Insurance Portability and Accountability Act, as amended and supplemented.
“HIPAA Data” means any patient, medical or other protected health information regulated by HIPAA or any similar federal or state laws, rules or regulations.
“Intellectual Property Rights” means any and all registered and unregistered rights granted, applied for, or otherwise now or hereafter in existence under or related to any patent, copyright, trademark, trade secret, database protection, or other intellectual property rights laws, and all similar or equivalent rights or forms of protection, in any part of the world.
“Law” means any statute, law, ordinance, regulation, rule, code, order, constitution, treaty, common law, judgment, decree, or other requirement of any federal, state, local, or foreign government or political subdivision thereof, or any arbitrator, court, or tribunal of competent jurisdiction.
“Losses” means any and all losses, damages, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs, or expenses of whatever kind, including reasonable attorneys’ fees and the costs of enforcing any right to indemnification hereunder and the cost of pursuing any insurance providers.
“Managed Services” means the professional services offering described in the Statement of Work.
“Authenticx Materials” means the Services, Specifications, Documentation, and Authenticx Systems and any and all other information, data, documents, materials, works, and other content, devices, methods, processes, hardware, software, and other technologies and inventions, including any deliverables, technical or functional descriptions, requirements, plans, or reports, that are provided or used by Authenticx or any Subcontractor in connection with the Services or otherwise comprise or relate to the Services or Authenticx Systems. For the avoidance of doubt, Authenticx Materials include Resultant Data and any information, data, or other content derived from Authenticx’s monitoring of Customer’s access to or use of the Services, but do not include Customer Data.
“Order Form” means the Authenticx ordering document (and/or SOW, if applicable) governed by this Agreement that is signed by Authenticx and Customer and specifies the Authenticx Services procured by Customer.
“Person” means an individual, corporation, partnership, joint venture, limited liability entity, governmental authority, unincorporated organization, trust, association, or other entity.
“Authenticx Personnel” means all individuals involved in the performance of Services as employees, agents, or independent contractors of Authenticx or any Subcontractor.
“Process” means to take any action or perform any operation or set of operations that the Software Services are capable of taking or performing on any data, information, or other content, including to collect, receive, input, upload, download, record, reproduce, store, organize, compile, combine, log, catalog, cross-reference, manage, maintain, copy, adapt, alter, translate, or make other derivative works or improvements, process, retrieve, output, consult, use, perform, display, disseminate, transmit, submit, post, transfer, disclose, or otherwise provide or make available, or block, erase, or destroy. “Processing” and “Processed” have correlative meanings.
“Representatives” means, with respect to a party, that party’s and its Affiliates’ employees, officers, directors, agents, and legal advisors.
“Retrieval Right” is defined in Section 12.3 (Effect of Termination; Customer Data Retrieval).
“Security Addendum” means the Authenticx Security Addendum.
“Service” or “Services” means the Software Services, the Managed Services, and Technical Services collectively, made generally available and ordered by or for Customer as set forth in an Order Form.
“Software Services” means the Authenticx Platform software-as-a-service offering described in the Statement of Work.
“Statement of Work” or “SOW” means the statement of work, scope of work or other project which describes the Software Services and Technical Services purchased hereunder.
“Subscription Term” means the period of time during which Customer is authorized to access the relevant Authenticx Service(s), as specified in the applicable Order Form.
“Support Policy” means the Authenticx Support Policy and Service Level Agreement.
“Authenticx Systems” means the information technology infrastructure used by or on behalf of Authenticx in performing the Services, including all computers, software, hardware, databases, electronic systems (including database management systems), and networks, whether operated directly by Authenticx or through the use of third-party services.
“Technical Services” means the consulting, configuration or other professional services provided by Authenticx to Customer under an Order Form or SOW.
“Third-Party Materials” means materials and information, in any form or medium, including any software, documents, data, content, specifications, products, equipment, or components of or relating to the Services that are not proprietary to Authenticx.
“Usage Data” means usage and operations data in connection with the Customer’s use of the Service, including query logs and metadata (e.g., data of evaluation).

Last Updated February 15, 2024