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IMPORTANT – PLEASE READ CAREFULLY

THIS MASTER SERVICES AGREEMENT [the “MSA” or “AGREEMENT”] SHALL BE EFFECTIVE AT 12:01 A.M. EASTERN STANDARD TIME ON JULY 19, 2016, AND MAY BE REFERENCED AS VERSION BVMSA20160719 or BVMSA20160719b.

THIS MSA CONSTITUTES A LEGALLY BINDING CONTRACT BETWEEN BIVARUS, INC., A DELAWARE CORPORATION AND ITS WHOLLY-OWNED SUBSIDIARIES (HEREINAFTER, “BIVARUS,” “WE,” “OUR,” OR “US”) AND ITS CUSTOMERS (HEREINAFTER, “CUSTOMER”, “YOU”, OR “YOUR”), FOR THE PURPOSES OF GOVERNING YOUR PURCHASE AND USE OF THE BIVARUS PLATFORM [AS FURTHER DEFINED BELOW], YOUR PURCHASE OF OUR SERVICES [AS FURTHER DEFINED BELOW], OR YOUR PURCHASE OF BOTH THE BIVARUS PLATFORM AND OUR SERVICES.  IF YOU HAVE BEEN GRANTED A FREE TRIAL TO USE THE BIVARUS PLATFORM, THIS MSA WILL ALSO GOVERN THE TERMS OF THAT FREE TRIAL.

BY EXECUTING AN “ORDER FORM” THAT REFERENCES THIS MSA, YOU AGREE TO THE TERMS HEREOF.  THE INDIVIDUAL SIGNING AN ORDER FORM ON BEHALF OF A CUSTOMER REPRESENTS THAT THEY HAVE THE AUTHORITY TO LEGALLY BIND THE CUSTOMER, AND ITS AFFILIATES, TO THE TERMS AND CONDITIONS CONTAINED IN THE ORDER FORM AND WITHIN THIS MSA.  IF THE INDIVIDUAL SIGNING THE ORDER FORM ON BEHALF OF THE CUSTOMER DOES NOT HAVE AUTHORITY TO LEGALLY BIND THE CUSTOMER, OR IF CUSTOMER DOES NOT AGREE WITH THE TERMS AND CONDITIONS OF EITHER THE ORDER FORM OR THIS MSA, THEN THE CUSTOMER HAS UNTIL 5:00 P.M. EASTERN STANDARD TIME ON THE NINTH CALENDAR DAY FOLLOWING THE DATE OF EXECUTION OF THE ORDER FORM TO RESCIND THE EXECUTION THEREOF BY PROVIDING WRITTEN NOTICE OF RECISSION TO LEGAL@BIVARUS.COM

RECITALS

WHEREAS, Bivarus owns or has the right to certain Inventions, Software, and Intellectual Property (hereinafter collectively the “Bivarus Platform”), as well as expertise in developing and executing programs to effectively and efficiently collect information (hereinafter, “Services”) from consumers of goods and services for the purposes of assessing consumer satisfaction; and,

WHEREAS, utilizing the information gathered within the Bivarus Platform and the information obtained through the provision of the Services, Bivarus can design improvements in the delivery of those goods and services; and,

WHEREAS, the Customer wishes to avail itself of the Bivarus Platform and Services;

NOW, THEREFORE, in consideration of the mutual promises and commitments stated herein, it is agreed by and between Customer and Bivarus as follows:

ARTICLE 1.  DEFINITIONS

As used in this Agreement or in an Order Form, capitalized terms shall have the following meanings:

1.1           Affiliate” means any entity that is either directly or indirectly under the control of either Bivarus or Customer, as the case may be.

1.2           “Business Associate” has the meaning given that term under HIPAA.

1.3           Covered Entity” has the meaning given that term under HIPAA.

1.4           “HIPAA” means the Health Insurance Portability and Accountability Act of 1996, Public Law 104-191 (enacted August 21, 1996), any amendment or replacement thereof and any regulation promulgated thereunder.

1.5           Individual” has the meaning given that term under HIPAA.

1.6           Intellectual  Property  refers to any invention, software,  trade secrets, analytical tools and/or creative knowledge, including any refinements, modifications and/or betterments thereto, made available by Bivarus for use by Customer, its agents, employees, contractors and/or invitees and guests under this Agreement or an Order Form or developed in connection with this Agreement or Order Form, unless developed by Customer or developed by Bivarus for the sole use and benefit of the Customer pursuant to a separate written Software Development Agreement.

1.7           “Item Bank” refers to individual questions or sets of questions administered by the Bivarus Platform.  Unless otherwise stated in this Agreement, all Item Banks are owned by Bivarus, unless developed by Customer or developed by Bivarus for the sole use and benefit of the Customer pursuant to a separate written Software Development Agreement.

1.8           Invention” refers to any Intellectual Property covered by patent protection or included within a pending application for patent protection in the United States or elsewhere in the world made available by Bivarus for use by Customer, its agents, employees, contractors and/or invitees and guests under this Agreement, unless developed by Customer or developed by Bivarus for the sole use and benefit of the Customer pursuant to a separate written Software Development Agreement.

1.9           Subscription” refers to the limited rights to use the Intellectual Property, Invention, Software, and Bivarus Platform granted by Bivarus, to Customer, its agents, employees, contractors and/or invitees and guests under this Agreement or by an Order Form executed pursuant to this Agreement.

1.10        “Privacy Requirements” refers to requirements specified by HIPAA for the protection of Protected Health Information.

1.11         “Privacy Rule” refers to the Standards for Privacy of Individually Identifiable Health Information specified by HIPAA.

1.12        Protected Health Information” has the meaning given that term in HIPAA.

1.13        Required by Law” has the meaning given that term in 45 CFR 164.103.

1.14        Secretary” refers to the Secretary of the Department of Health and Human Services or the designee thereof.

1.15        “Services” or “Products” refers to the provision of various consulting and advisory services, including, but not limited to: (i) providing a plan for gathering data; and, (ii) designing surveys to meet Customer specifications and proper surveying protocols; and, (iii) monitoring the data for significance; and, (iv) modifying survey participation guidelines in order to ensure that the data sought by the Customer is collected, analyzed and reported in a manner that achieves the goals identified by and between Bivarus and the Customer.

1.16        Bivarus Platform refers to the software platform and associated know-how provided by Bivarus for use by Customer, its agents, employees, contractors and/or invitees under this Agreement or pursuant to an Order Form to facilitate the collection and analysis of information from recipients of goods or services.

1.17        “Order Form” or “Work Order” refers to the written document, signed by an authorized signatory of Customer and Bivarus, which in conjunction with this Agreement obligates Bivarus to provide the Bivarus Platform or Services to the Customer.

1.18        “Work Product” refers to all Customer and/or Customer patient information and data obtained and/or collected with the assistance of Bivarus, its Affiliate, employee, vendor or agent.

1.19        “Software” refers to software made available by Bivarus for use by Customer, its agents, employees, contractors and/or invitees and guests under this Agreement or in relation to an Order Form.

1.20        “Bivarus Intellectual Property” means the Bivarus Platform, inventions, Software, and Intellectual Property and all Services and items licensed or provided by Bivarus under this Agreement for use by Customer, its agents, employees, contractors and/or invitees and guests under this Agreement or in relation to an Order Form.

1.21        Other Definitional provisions.

(i)     “Herein”, “hereunder” and words of similar import refer to this Agreement in its entirety.  Section references are to this Agreement unless otherwise specified.  The meaning of defined terms includes both the singular and plural forms.  The term “including” is not limiting and means “including without limitation.”  References to a gender includes the masculine and feminine.

(ii)    References to statutes or regulations include all statutory and regulatory provisions consolidating, amending, replacing or implementing the statute or regulation.

(iii)   Captions and section headings are for convenience only and shall not affect the construction of this Agreement.

ARTICLE 2.  SOFTWARE SUBSCRIPTION, SERVICES AND PRODUCTS

2.1           Software Subscription.  Bivarus grants a non-exclusive limited software subscription authorizing Customer to utilize Bivarus Intellectual Property for the purposes and Subscription Period (as defined below) set forth in an applicable Order Form.    From time to time the Parties may modify the scope of the Subscription to be provided by Bivarus by entering into one or more additional Order Forms.  The initial Order Form, any additional Order Forms or any written modifications shall be subject to the terms and conditions of this Agreement.  In the event of any ambiguity or inconsistency between this Agreement and an Order Form, unless there is an explicit statement in the Order Form that a provision therein is to control, the terms of this Agreement shall be controlling. Customer agrees that its purchases hereunder are neither contingent on the delivery of any future functionality or features nor dependent on any oral or written public comments made by us regarding future functionality or features.

2.2           Services and Products.  In connection with the Customer’s utilization of the Bivarus Intellectual Property, the Customer and Bivarus may agree that Bivarus will provide Services and/or Products as further described within an addendum hereto or within a written Order Form signed by both Parties.

ARTICLE 3.  RESPONSIBILITIES BETWEEN THE PARTIES

3.1           Responsibilities of Bivarus.  Bivarus may provide the Bivarus Intellectual Property and/or Services as specified in an applicable Order Form, within the time periods therein provided.  The Parties agree that Bivarus may modify the Bivarus Platform and the related Inventions, Software and Intellectual Property during the term of the Agreement provided such modification does not conflict with the obligations of the Parties hereunder and the deliverables to be provided to Customer under this Agreement or under any Order Form.

3.2           Responsibilities of Both Parties.  The Parties agree to work together in good faith regarding the provision of services under this Agreement.

ARTICLE 4.  SPECIAL OBLIGATIONS UNDER HIPAA

4.1           Applicability of HIPAA.  The Parties have agreed to execute the Business Associate Agreement attached hereto and incorporated by reference herein, to the extent such may be applicable to this Agreement and any Order Forms.  As applicable, all Customer patient information and survey responses received by Bivarus shall be subject to the Business Associate Agreement.

ARTICLE 5.  FEES AND PAYMENT SCHEDULE

5.1           As Specified in Order Form.  Customer shall pay to Bivarus the fees specified in an applicable Order Form in accordance with the payment schedule set forth therein.  Where a payment schedule is not specified, payment on all undisputed invoices is due within thirty (30) days of receipt of an invoice sent by Bivarus.

5.2           Late Payment.  In the event that Customer is in default in the payment of an undisputed invoice issued in conjunction with any Order Form, and if the Customer fails to cure the default on or before the expiration of a fifteen (15) day period commencing upon Customer’s receipt of written notice of default, then the payment owed shall be automatically subject to interest penalties at an annual rate equal to the higher of: (a) eight percent (8.0%); or, (b) the maximum rate of interest allowed by law.  In order for an invoice to be considered as properly “Disputed” by Customer, the Customer must, within fifteen (15) days of receipt of the invoice, provide Bivarus with a written document stating with specificity the valid reason(s) that the Customer is disputing the invoice.

ARTICLE 6.  TERM AND TERMINATION

6.1           Term of Agreement.  This Agreement commences on the subscription start date, the date Customer starts using the Bivarus Platform, or the date Bivarus begins to perform the Services or provides the Products, and shall continue through the end of the Subscription Period.

6.2           Subscription Period.  Your subscription commences on the start date specified in the applicable Order Form and continues for the period identified in such Order Form (the “Subscription Period”), provided that if no period is identified in the Order Form, then the Subscription Period shall be for a period of twelve (12) months from the commencement date.  Except as otherwise specified in the applicable Order Form, the Subscription Period automatically renews unless either Party gives the other Party written notice of non-renewal at least sixty (60) days before the end of the then-current Subscription Period.  The fees during any renewal term shall be the same as that during the prior Subscription Period unless Bivarus has given Customer written notice of a pricing increase at least sixty (60) days before the end of such prior term, in which case the pricing increase shall be effective upon renewal and thereafter.

6.3           Termination. This Agreement will terminate in accordance with Section 6.2, or at the time that the Bivarus has completed the provision of Services and/or Products, whichever occurs later in time.  Termination of this Agreement will not operate to terminate any incomplete Order Form and the terms and conditions of this Agreement will continue in full force and effect to the extent necessary to give effect to any incomplete Order Form in effect at the time of termination of this Agreement and until such time as the applicable Order Form expires at the end of the then-current Subscription Period until such time that Bivarus has completed the provision of Services and/or Products, or until such time as this Agreement is terminated as set forth below.  Except as otherwise provided in this Agreement, you may not terminate an Order Form for a Software Subscription before the end of the then-current Subscription Period.  Either Party may terminate the Order Form if the other Party materially breaches the terms of this Agreement or the Order Form that is the subject of a termination, and such breach (if capable of being cured) is not cured within thirty (30) days after written notice of the breach is given (or such additional cure time period as agreed by the non-breaching Party, which approval will not be unreasonably withheld and shall be for the minimum extent necessary to effect a cure if the breaching Party is diligently working on a cure).  Termination shall not relieve Customer of its obligation to pay Bivarus for work already completed as to which no breach applies.  The termination of an individual Order Form will not terminate any other Order Form or this Agreement unless otherwise specified in the written notice of termination.

6.4           Survivability. Expiration or termination of this Agreement does not affect obligations of the parties, which extend beyond this Agreement including but not limited to obligations of confidentiality and specific obligations under HIPAA.

ARTICLE 7.   INVENTIONS AND INTELLECTUAL PROPERTY

7.1           Exclusive Ownership by Bivarus.  In the discharge of its responsibilities Bivarus will utilize, and will grant to Customer the right to utilize, Bivarus Intellectual Property.  By virtue of this Agreement and/or Order Forms hereunder, Customer does not acquire any ownership rights to or in Bivarus Intellectual Property and in addition, Customer will not use such items except as such rights are granted to it in an Order Form.  The information and data collected on behalf of and provided to Customer is a work for hire and Work Product that belongs exclusively to Customer.  Any changes or modifications to Bivarus Intellectual Property, apart from Work Product, belongs exclusively to Bivarus.

7.2           Bivarus’ Rights to Utilize Modifications.  In the event Bivarus makes modifications to Bivarus Intellectual Property, the Bivarus Platform, or Bivarus Item Banks based on a request or suggestion from Customer, the modification belongs solely to Bivarus unless the modification was made at the sole expense of the Customer pursuant to a separate written Software Development Agreement.

7.3           Representations and Warranties of Bivarus.  Bivarus makes the following representations and warranties that are made to the best of its knowledge, except as otherwise disclosed in writing:

(a)    Ownership.  Bivarus represents and warrants that it owns or otherwise controls, all right, title and interest in and to Bivarus Intellectual Property and has all necessary power, licenses, clearances and other authorizations to grant to Customer the License Rights and other privileges granted pursuant to this Agreement and any Order Form as contemplated herein.

(b)    Authority.  Bivarus represents and warrants that it has all requisite ownership, authority, and legal rights to consummate the Order Forms as contemplated by this Agreement.

7.4           General Representations and Warranties.  Each Party represents and warrant to the other as follows, to the best of their knowledge:

(a)    Power and Authorization.  It has all requisite power and authority (corporate and otherwise) to enter into this Agreement, and had duly authorized by all necessary action the execution and delivery of this Agreement by the officer or individual whose name is signed on its behalf below.

(b)    No Conflict.  Its execution and delivery of this Agreement and the performance of its obligations hereunder do not and will not conflict with or result in a breach of or a default under its organizational instruments or any other agreement, instrument, order, law or regulation applicable to it or by which it may be bound.

(c)    Enforceability.  This Agreement has been duly and validly executed and delivered by it and constitutes its valid and legally binding obligation, enforcement in accordance with its terms, except as enforcement may be limited by bankruptcy, insolvency or other laws of general application relating to or affecting the enforcement of creditors’ rights and except as enforcement is subject to general equitable principles.

ARTICLE 8.   CONFIDENTIAL INFORMATION

8.1           Limitations on Disclosure and Use.  Each Party shall (and shall cause its officers and employees and agents to (i) hold all Confidential Information (as defined herein) of the other Party disclosed to or otherwise obtained by it in the strictest confidence and (ii) use Confidential Information solely for the purposes expressly contemplated by this Agreement and Order Forms thereunder.  Neither Party may disclose Confidential Information of the other Party to any third party without first obtaining the express written permission of the other Party, and each Party shall limit disclosure of Confidential Information of the other Party to its officers, employees or agents on a need-to-know basis for purposes of fulfilling its obligations under and achieving the purposes of this Agreement, provided that such persons are bound by obligations of confidentiality at least as restrictive as those set forth in this Agreement.

8.2           Confidential Information.  For purposes of this Agreement, “Confidential Information” shall mean this Agreement, and all nonpublic proprietary information of each Party, whether or not written or otherwise fixed in any form or medium, regardless of the media on which contained and whether or not patentable or copyrightable, which is designated as (or which, by its nature, is inherently) confidential, including, without limitation, Intellectual Property, the Bivarus Platform and all associated methodologies, trade secrets, technical specifications, Work Product, Customer patient lists or Customer patient information or survey responses, business information, marketing programs, plans and strategies, financial information, memoranda, work papers, notes, reports and sales information.  For purposes of this Agreement, Confidential Information shall not be deemed to include information that: (i) is or becomes within the public domain through no act of the receiving Party in breach of this Agreement; (ii) was lawfully in the possession of the receiving Party without any restriction on disclosure prior to its disclosure hereunder; (iii) is lawfully received from another source who, upon reasonable inquiry, represented to the recipient that they are not bound by a confidentiality obligation to the disclosing Party; or, (iv) is disclosed with the authorization of Disclosing Party; or, (v) is used in connection with defense or prosecution of a claim or lawsuit against the disclosing Party; or, (vi) is ordered to be publicly released by a court or a governing agency.

8.3           Protection.  The Parties agree to take commercially reasonable measures to maintain the confidentiality of the Confidential Information.

8.4           Legally Required Disclosures.  If any Confidential Information is required to be disclosed by order of any court of competent jurisdiction or other governmental authority, the Party under such order shall, if permitted, timely inform the other Party of all such proceedings so that the other Party may attempt by appropriate legal means to limit such disclosure in such case, the Party under such order shall use its best efforts to limit the disclosure and maintain confidentiality to the maximum extent possible.

8.5           Effect of Termination.  Promptly after the termination of this Agreement, each Party shall return to the other all Confidential Information of the other Party in its possession and provide a written verification of such return.  Each Party may retain one copy of such information that will continue to be treated as Confidential Information following termination.  Each Party’s confidentiality obligations with respect to the Confidential Information of the other shall survive the termination or expiration of this Agreement for any reason.

8.6           Injunction.  The Parties acknowledge that any breach of the obligations under this Section will result in immediate irreparable and continuing injury to the non-breaching Party for which there is not adequate remedy at law.  Accordingly, without limiting any other remedy at law or equity, in the event of any such breach (or threatened breach), the non-breaching Party shall be entitled to seek from any court of competent jurisdiction, preliminary and permanent injunctive relief, without bond, with respect to such breach.  Such right shall be cumulative and in addition to any other remedies at law or in equity (including monetary damages) which the non-breaching Party may have upon any such breach.

8.7           Bivarus Intellectual Property.  Customer will only use Bivarus Intellectual Property as authorized under this Agreement and any applicable Order Forms or as authorized by law.

8.8           Preeminence of HIPAA.  To the extent that anything in this Agreement is inconsistent with the Business Associate Agreement between the parties or a requirement of HIPAA the Business Associate Agreement and the requirements of HIPAA shall control.

ARTICLE 9.  USE OF DATA BY BIVARUS

9.1           Bivarus’s Right to Utilization of Data.  Subject to the terms and conditions of this Agreement, Bivarus may, solely for benchmarking and product development purposes, collect, aggregate and otherwise make use of patient responses obtained under this Agreement or pursuant to an Order Form provided that such use: (i) is in aggregate form and not identified or identifiable with any specific patient or with Customer; (ii) is in compliance with all applicable federal and state laws, including without limitation HIPAA; and, (iii) does not include Customer proprietary business, and/or confidential information. Bivarus shall provide Customer, at no cost to Customer, any benchmarking information which is typically offered to Bivarus customers as a standard offering within the Bivarus Platform.

ARTICLE 10.  LIMITATIONS ON LIABILITY, INJUNCTIVE RELIEF

10.1        Damages.  EXCEPT AS IS PROVIDED IN SECTIONS 10.2 AND 10.3 BELOW, IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR SPECIAL CONSEQUENTIAL, INCIDENTAL, INDIRECT, PUNITIVE, OR EXEMPLARY DAMAGES, HOWEVER CAUSED, WHETHER BASED ON BREACH OF WARRANTY, CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY, LOSS OF DATA, LOSS OF USE OR OTHERWISE, EVEN IF THE OFFENDING PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

10.2        Injunctive Relief.  The Parties may seek equitable and/or legal relief where legally authorized based on a default under this Agreement.  The right to obtain relief pursuant to this Section 10.2 shall survive termination of the Agreement for the statutory period of limitations.

10.3        Indemnification.  Bivarus and Customer agree to indemnify and hold harmless the other, their officers, directors, employees and agents, from and against any and all claims, losses or damages (including reasonable attorney’s fees and court costs) resulting from or arising out of the offending Party’s breach of this Agreement or of an Order Form or failure to comply with any applicable laws, rules or regulations, providing that such losses do not result from the wrongful actions of the Party claiming a right to be indemnified.

In addition to the foregoing, Bivarus shall defend, indemnify and hold harmless Customer, its affiliates and their respective officers, directors, shareholders, employees, agents, successors and assigns from and against any and all liabilities loss, damage, cost or expense (including court costs and reasonable attorney’s fees) which directly or indirectly arise in connection with or result from (i) the infringement of the proprietary rights of any third party as a consequence of Customer’s use of Bivarus Intellectual Property, including without limitation, the Bivarus Platform, Software and Inventions, and (ii) exercise of any of Customer’s rights as authorized by this Agreement and/or any Order Form, and (iii) breach of any of Bivarus representations, warranties, covenants, obligations, agreements or duties under this Agreement, and (iv) acts and/or omissions of Bivarus, its employees, agents and/or contractors in the performance of services as contemplated under this Agreement.

10.4        Insurance.  Bivarus will keep and maintain at its sole cost and expense: general liability insurance and professional liability insurance, each with a minimum limit of One Million Dollars ($1,000,000) per occurrence and an annual aggregate limit of Three Million Dollars ($3,000,000).  This policy shall not be canceled, reduced or modified except after thirty (30) days written notice to Customer.  If Bivarus fails to obtain or maintain the insurance coverage provided herein, Customer may terminate this Agreement and/or Customer may, in its discretion procure and maintain such coverage at the expense of Bivarus.

ARTICLE 11.   SERVICE INTERRUPTIONS, AVAILABILITY

11.1        Service Interruptions.  Bivarus will comply with the generally accepted industry standards of care in executing its responsibilities and services under this Agreement, including without limitation, to maintain the continuous operability of the information collection network.

11.2        Service Availability and Subscription Extension.  During the term of the Agreement, Bivarus shall use all reasonable commercial efforts to ensure that the Bivarus Platform is available 99.9% of the time in any calendar month, or unavailable no more than forty-five (45) minutes per calendar month. If, in any calendar month, the Bivarus Platform is unavailable to Customer for a period in excess of 45 minutes, Bivarus, at no additional charge to Customer, will extend the subscription period for the affected service one (1) day for each sixty minutes of such excess unavailability.  To qualify for any such extension Customer must notify Bivarus of the service interruption and provide a full description of the service interruption, including logs if applicable. Subscription extensions are not available if: 1) the service unavailability was attributable to factors outside of Bivarus’ reasonable control; 2) the service unavailability was attributable to actions or inactions by Customer, its employees or agents, including malicious internet activities or violations of this Agreement; 3) the service unavailability was attributable to actions of third parties not under the control or supervision of Bivarus; 4) the service unavailability was attributable to the incompatibility of the Customer data feed with Bivarus procedures as specified in the Bivarus Client API; or 5) the service unavailability was associated with scheduled maintenance activities as to which Customer was provided at least three (3) days prior notice provided, however, there can be no more than twenty (20) hours of scheduled maintenance that results in service unavailability per calendar year.

ARTICLE 12.  MISCELLANEOUS

12.1        Binding Agreement.  This Agreement is binding upon and shall inure to the benefit of Customer and Bivarus and to their authorized Successors and Assigns.

12.2        Entire Understanding of the Parties.  This Agreement and any Order Form that is made subject to this Agreement, contains the entire understanding between the Parties and supersedes any prior understandings and agreements between them concerning the subject matter herein.  The Parties may modify any of the provisions contained in this Agreement but only by an instrument in writing duly executed by each of the Parties.

12.3        Independent Contractor Relationship.  The relationship of Bivarus to Customer is that of an independent Contractor and, except to the extent that explicit authorization is provided in an applicable Order Form, neither Party shall make any representation, contract, or commitment on behalf of the other unless specifically requested to do so in writing.

12.4        Non-Exclusive Relationship.  Customer recognizes that its relationship with Bivarus is non-exclusive and Customer agrees that Bivarus is free to convey or to provide identical or similar rights or Services to others, including rights to the Invention, Software and/or other Intellectual Property, as long as such action does not conflict with the terms of this Agreement or any Order Form or the rights of Customer thereunder.  In addition, nothing in this Agreement shall be interpreted to authorize Bivarus to disclose any Customer patient data or any Customer information to any third party.

12.5        Compliance with Applicable Laws.  In exercising rights and discharging obligations each Party agrees to comply with the requirements of all applicable laws, regulations, rules and orders of any governmental body including HIPAA.

12.6        Applicable Law and Jurisdiction.  The exclusive venue location is the State of North Carolina for any dispute under this Agreement without giving effect to the principles of conflict of laws.  Prior to undertaking any legal action, however, a Party shall first provide thirty (30) days written notice to the other Party specifying any grievance and the basis of any claim and within fifteen (15) days of such notice the Parties shall meet and conduct good faith negotiation in an effort to resolve the dispute.  A request for judicial relief, except for equitable relief, shall not be filed during the pendency of good faith negotiations.  Notwithstanding the foregoing a Party may at any time seek injunctive or interlocutory relief to which it may be entitled.

12.7        No Implied Waivers.  No failure or delay in exercising or enforcing any right under this Agreement will operate as a waiver of or impair any such right.  No waiver will have effect unless agreed to in writing by the waiving Party.  No waiver of any breach or default shall be deemed a waiver of any subsequent or similar breach or default.

12.8        Invalidity to be Narrowly Construed.  If any portion of this Agreement is held to be illegal or ineffective, the remaining portions shall remain in force and effect to the fullest extent possible to give effect to the intent of the Parties.  If any term or provision of this Agreement is in conflict with any applicable statue or rule of law, the term or provision shall be modified to the minimum extent necessary to conform with the requirements of such statute or rule of law.  Any ambiguous term or provision shall be construed as necessary to give effect to the intent of the Parties to the extent possible.

12.9        Notices.  Except as otherwise specified in this Agreement, all notices, permissions and approvals hereunder shall be in writing and shall be deemed to have been given upon: (i) personal delivery, (ii) the second business day after mailing, (iii) the second business day after sending by confirmed facsimile, or (iv) the first business day after sending by confirmed email (provided email shall not be sufficient for notices of termination or an indemnifiable claim).  Notices to Customer shall be sent to the physical address or email address to which Bivarus has issued the invoice dated nearest in time to the notice.

12.10     Debarment. The Parties represent that neither Party has been excluded, debarred, suspended or otherwise ineligible to participate in any state or federal program (including Medicare or Medicaid), has been convicted of any criminal offense related to the delivery of health care services under any state or federal program, and each Party agrees to notify the other Party immediately if a Party or any employee or agent of a Party materially involved in the provision of the Services becomes a sanctioned provider under state or federal program.

12.11     Section 1861(v)(1)(l) of the Social Security Act. To the extent required by Section 1861(v)(1)(l) of the Social Security Act and until the expiration of four (4) years after the furnishing of Services pursuant to this Agreement, the Parties shall make available upon written request of the Secretary of Health and Human Services or the United States Comptroller General or any of their duly authorized representatives, this Agreement, and any books, documents and records of the Parties that are necessary to certify the nature and extent of costs incurred by the Parties under this Agreement.

12.12     Assignment. Neither Party may assign any of its rights or obligations hereunder, whether by operation of law or otherwise, without the prior written consent of the other Party (not to be unreasonably withheld).  Notwithstanding the foregoing, we may assign this Agreement in its entirety (including all Order Forms), without your consent to our Affiliate or a successor-in-interest pursuant to a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets.  Subject to the foregoing, this Agreement shall bind and inure to the benefit of the parties, their respective successors and permitted assigns.

12.13     No Third-Party Beneficiaries. There are no third-party beneficiaries to this Agreement.

12.14     Force Majeure. Neither Party shall be liable for any delay or failure in performance due to extraordinary circumstances, because of acts of God or because of any law, order, regulation, directive, action or request of any governmental authority including of any court.

12.15     Entire Agreement. This Agreement, including all exhibits and addenda hereto and all Order Forms, constitutes the entire agreement between the parties and supersedes all prior and contemporaneous agreements, proposals or representations, written or oral, concerning its subject matter.  No modification, amendment, or waiver of any provision of this Agreement shall be effective unless in writing and either signed or accepted electronically by the Party against whom the modification, amendment or waiver is to be asserted.  However, to the extent of any conflict or inconsistency between the provisions in the body of this Agreement and any exhibit or addendum hereto or any Order Form, the terms this Agreement shall prevail.  Notwithstanding any language to the contrary therein, no terms or conditions stated in your purchase order or other order documentation (excluding Order Forms) shall be incorporated into or form any part of this Agreement, and all such terms or conditions shall be null and void.

12.16     Implementation, Onboarding and Delivery of Product and Services.  All delivery of Products and Services are to be provided by Bivarus remotely, unless a Work Order expressly details that provision of Products and Services are to be provided at a Customer location.  For those instances where a Work Order does expressly specify that Products or Services are to be provided by Bivarus at a Customer location, all travel-related expenses (including meals, airfare, ground travel and lodging) shall be separately billed back to the Customer unless there is a written agreement signed by both Parties that specifies otherwise.

(Reference No. BVMSA20160719; BVMSA20160719b)