Terms & Conditions
These Terms & Conditions (these “T&Cs”), are incorporated by reference into the agreement entered into by and between MorgueBoard LLC (“MorgueBoard”) and the customer identified on the applicable Order Forms (the “Customer”) (the “Agreement”).
- Definitions.
“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 the ownership of voting securities, by contract, or otherwise/ownership of more than 50 % of the voting securities of a Person.
“Authorized Affiliate” means the Customer Affiliates, if any, authorized to access and use the Services as set forth in an Order Form.
“Authorized Location” means all Customer locations and any Authorized Affiliate locations set forth in an Order Form.
“Authorized Users” means Customer’s and its Authorized Affiliates’ employees, consultants, contractors, and agents (a) who are authorized by Customer to access and use the Software Service under the rights granted to Customer pursuant to this Agreement; (b) who access and use the Software Service at an Authorized Location; and (c) for whom access to the Software Service has been purchased hereunder.
“Customer Data” means information, data, and other content, in any form or medium, that is received, directly or indirectly, from Customer or an Authorized User by or through the Software Service and includes Protected Health Information supplied by Customer to MorgueBoard. For the avoidance of doubt, Customer Data does not include Statistical Data or any other information reflecting the access or use of the Software Service by or on behalf of Customer or any Authorized User.
“Customer Systems” means the 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.
“Effective Date” has the meaning set forth on the Initial Order Form.
“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 Software Service or MorgueBoard Systems as intended by this Agreement. Harmful Code does not include any device used by MorgueBoard to suspend access to the Software Service pursuant to Section 2.6 (a “MorgueBoard Disabling Device”).
“Initial Order Form” means the initial order form for Services attached hereto which, together with these T&Cs and any Renewal Order Forms, constitutes the Agreement.
“Initial Term” has the meaning set forth on the Initial Order Form.
“Law” means any applicable statute, law, regulation, rule, code or other requirement of any federal, state or local, government or tribunal of competent jurisdiction.
“Maintenance and Support Services” means the technical support and maintenance services provided by MorgueBoard to Customer to support the Software Service.
“MorgueBoard Materials” means the Services, Specifications, Statistical Data, and MorgueBoard 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 MorgueBoard or any Subcontractor in connection with the Services or otherwise comprise or relate to the Services or MorgueBoard Systems. For the avoidance of doubt, the MorgueBoard Materials do not include Customer Data.
“MorgueBoard Systems” means the information technology infrastructure used by or on behalf of MorgueBoard in providing the Software Service, including all computers, software, hardware, databases, electronic systems (including database management systems), and networks, whether operated directly by MorgueBoard or through the use of third-party services.
“Order” means the Initial Order Form or a Renewal Order Form.
“Person” means an individual, corporation, partnership, joint venture, limited liability entity, governmental authority, unincorporated organization, trust, association, or other entity.
“Protected Health Information” or “PHI” has the meaning under the Health Insurance Portability and Accountability Act (HIPAA) and the implementing regulations, as may be amended from time to time.
“Renewal Order Form” means an order form for Services other than the Initial Order Form, which, together with these T&Cs, the Initial Order Form and any other Renewal Order Forms, constitute the Agreement.
“Renewal Term” has the meaning set forth on the Initial Order Form.
“Services” means the Software Service, any configuration services provided by MorgueBoard pursuant to an Order Form, and the Maintenance and Support Services provided by MorgueBoard under this Agreement.
“Software Service” means MorgueBoard’s morgue services and autopsy management software-as-a-service offering.
“Statistical Data” means data and information generated by MorgueBoard in connection with Customer’s use of the Software Service and any information, data, or other content derived from MorgueBoard’s monitoring of Customer’s access to or use of the Software Service, provided such data is de-identified or otherwise anonymized. The Statistical Data is not included in the “Customer Data.”
“Term” has the meaning set forth on the Initial Order Form.
“Third-Party Materials” means materials and information, in any form or medium, including any open-source or other software, documents, data, content, specifications, products, equipment, or components of or relating to the Software Service that are not proprietary to MorgueBoard.
- Software Service and Maintenance and Support Services.
2.1 Access and Use. Subject to and conditioned on Customer’s, Authorized Affiliates’ and their Authorized Users’ compliance with the terms and conditions of this Agreement, including these T&Cs, MorgueBoard hereby grants to Customer (and its Authorized Affiliates as set forth in an Order Form) a non-exclusive, non-sublicensable, non-transferable (except in compliance with Section 13.5), limited right to access and use the Software Service during the Term, solely for use by Authorized Users at Authorized Locations, and in accordance with the terms and conditions herein. Such use is limited to Customer’s internal use only.
2.2 Maintenance and Support Services. MorgueBoard will provide commercially reasonable Maintenance and Support Services during the Term, including making the Software Service available 99.5% of the time (excluding scheduled downtime and events outside MorgueBoard’s reasonable control); and providing help desk support by telephone and e-mail 7:00 a.m. – 5:00 p.m. CST, M-F (excluding holidays).
2.3 Service and System Control. Except as otherwise expressly provided in these T&Cs, as between the parties: (a) MorgueBoard has and will retain exclusive ownership of MorgueBoard Materials and sole control over the operation, provision, maintenance, and management of MorgueBoard 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. Customer will have sole responsibility for all: (i) access to and use of MorgueBoard Materials by any Person by or through the Customer Systems or any other means controlled by Customer or any Authorized User; (ii) information, instructions, or materials provided by Customer or any Authorized User to MorgueBoard or in connection with use of the Software Service; (iii) results obtained from any use of the MorgueBoard Materials; and (iv) conclusions, decisions, or actions taken by Customer of any Authorized User based on use of the MorgueBoard Materials, including but not limiting to rendering medical decisions.
2.4 Changes. MorgueBoard reserves the right, but not the obligation, to make any changes to the MorgueBoard Materials that it deems necessary or useful to: (a) maintain or enhance the quality or delivery of MorgueBoard’s services to its customers, the competitive strength of or market for MorgueBoard’s services, or the cost efficiency or performance of the Software Service; or (b) comply with Laws applicable to MorgueBoard.
2.5 Subcontractors. MorgueBoard may engage third party subcontractors to provide services relating to or in support of the Services (each, a “Subcontractor”).
2.6 Suspension or Termination of the Software Service. MorgueBoard may, directly or indirectly, and by use of any MorgueBoard Disabling Device or any other lawful means, suspend, terminate, or otherwise deny Customer’s, a Customer Affiliate’s, any Authorized User’s, or any other Person’s access to or use of all or any part of the MorgueBoard Materials, without incurring any resulting obligation or liability, if: (a) MorgueBoard receives a judicial or other governmental demand or order, subpoena, or law enforcement request that expressly or by reasonable implication requires MorgueBoard to do so; (b) this Agreement expires or is terminated; (c) MorgueBoard believes, in its reasonable discretion, that: (i) Customer, a Customer Affiliate or any Authorized User has failed to comply with any material term of this Agreement, or accessed or used the Software Service 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 material instruction or requirement of the Specifications; or (ii) Customer, a Customer Affiliate 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 use of the Software Service; or (d) Customer, a Customer Affiliate or any Authorized User utilizes the Software Service in violation of Section 3.1 or otherwise in a manner the jeopardizes the security or operation of the Software Service. This Section 2.6 does not limit any of MorgueBoard’s other rights or remedies, whether at law, in equity, or under this Agreement.
- Use Restrictions.
3.1 Customer Use Restrictions. Customer shall not, and shall not permit any other Person to, access or use the MorgueBoard Materials except as expressly permitted by this Agreement and, in the case of Third-Party Materials, any applicable third-party license agreement. For purposes of clarity and without limiting the generality of the foregoing, Customer shall not: (a) copy, modify, or create derivative works or improvements of the MorgueBoard Materials; (b) rent, lease, lend, sell, sublicense, assign, distribute, publish, transfer, or otherwise make available any part of the MorgueBoard 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 MorgueBoard Materials, in whole or in part; (d) bypass or breach any security device or protection used by the MorgueBoard Materials or access or use the MorgueBoard Materials other than by an Authorized User through the use of his or her own credentials; (e) input, upload, transmit, or otherwise provide to or through the Software Service or MorgueBoard 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 Software Service, MorgueBoard Systems, or MorgueBoard’s provision of services to any third party, in whole or in part; (g) remove, delete, alter, or obscure any disclaimers relating to, or any copyright, trademark, patent, or other intellectual property or proprietary rights notices from, any part of the MorgueBoard Materials, including any copy thereof; (h) access or use the MorgueBoard 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 MorgueBoard Materials for purposes of competitive analysis of the MorgueBoard Materials, the development, provision, or use of a competing software service or product or any other purpose that is to MorgueBoard’s detriment or commercial disadvantage; or (j) otherwise access or use the MorgueBoard Materials beyond the scope of the authorization granted under this Section 3.1 or this Agreement.
3.2 Corrective Action and Notice. If Customer becomes aware of any actual or threatened activity prohibited by Section 3.1, Customer shall, and shall cause its Authorized Users to, immediately: (a) take all measures within their respective control that are necessary to stop the activity or threatened activity and to mitigate its effects; and (b) notify MorgueBoard.
- Customer Obligations.
4.1 Customer Systems and Cooperation. Customer shall at all times during the Term: (a) set up, maintain, and operate in good repair all Customer Systems on or through which the Software Service is accessed or used; (b) provide MorgueBoard personnel (and Subcontractors) with such access to Customer Systems and Customer’s premises as is necessary for MorgueBoard to provide the Software Service; and (c) provide all cooperation and assistance as MorgueBoard reasonably requests to enable MorgueBoard to exercise its rights and perform its obligations under this Agreement. MorgueBoard is not responsible or liable for any delay or failure of performance caused in whole or in part by Customer’s delay or nonperformance.
4.2 Compliance with Laws by Customer. Customer acknowledges and understands that MorgueBoard provides the Software Service to assist Customer in complying with its legal and regulatory requirements applicable to Customer. Customer agrees that it (and not MorgueBoard) will be responsible for (a) how it uses the Software Service to comply with its legal and regulatory requirements and (b) the consequences of any instructions it gives to MorgueBoard.
4.3 Management. Each party shall, throughout the Term, maintain within its organization a manager to serve as such party’s primary point of contact for day-to-day communications, consultation, and decision-making regarding Customer’s use of the Software Service.
- Security and Privacy.
5.1 Information Security. MorgueBoard will employ reasonable technical, security and operational management practices to protect Customer Data.
5.2 Access and Security. Customer shall employ all physical, administrative, and technical controls, screening, and security procedures and other safeguards necessary to: (a) securely administer the distribution and use of all usernames and passwords and protect against any unauthorized access to or use of the Software Service; and (b) control the content and use of Customer Data, including the uploading or other provision of Customer Data for use of the Software Service.
- Fees and Payment.
6.1 Fees. Customer shall pay MorgueBoard the fees set forth on an Order Form (“Fees”) and any applicable taxes as set forth in Section 6.2 in accordance with this Section 6 and the applicable Order Form. Customer shall pay all Fees due for a specific contract year annually in advance. Fees attributable to the first year of the Term shall be paid by Customer within thirty (30) days of the Effective Date, and any Fees attributable to any other year of the Term (whether part of the Initial Term or a Renewal Term) shall be paid by Customer within thirty (30) days of the anniversary of the Effective Date. All amounts payable to MorgueBoard under this Agreement shall be paid by Customer to MorgueBoard in full without any setoff, recoupment, counterclaim, deduction, debit, or withholding for any reason. Customer shall make payments to the address or account specified in the applicable Order Form or such other address or account as MorgueBoard may specify in writing from time to time. MorgueBoard may increase the Fees due under this Agreement if the number of Authorized Locations increases.
6.2 Taxes. All Fees and other amounts payable by Customer under this Agreement are exclusive of taxes, duties 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 MorgueBoard’s net income.
6.3 Late Payment. If Customer fails to make any payment when due then, in addition to all other remedies that may be available: (a) MorgueBoard 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 Laws; (b) Customer shall reimburse MorgueBoard for all reasonable costs incurred by MorgueBoard in collecting any late payments or interest, including reasonable attorneys’ fees, court costs, and collection agency fees; and (c) if such failure on the part of Customer continues for fifteen (15) days following written notice thereof, MorgueBoard may suspend provision of the Services until all past due amounts and interest thereon have been paid, without incurring any obligation or liability
- 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 this Section 7.1, “Confidential Information” means information consisting of or relating to the Disclosing Party’s technology, trade secrets, know-how, business operations, plans, strategies, customers, and pricing, and information, and other materials that are clearly marked “CONFIDENTIAL” or “PROPRIETARY” by the Disclosing Party at the time of disclosure, or, if orally disclosed, is identified as confidential at the time of disclosure to the Receiving Party or would be reasonably deemed confidential or proprietary given the circumstances surrounding its disclosure. Without limiting the foregoing, all MorgueBoard Materials and the financial terms and existence and contents of this Agreement are the Confidential Information of MorgueBoard. The confidentiality obligations of the parties shall not apply to information that: (a) was rightfully known to the Receiving Party without restriction on use or disclosure prior to such information being disclosed or made available to the Receiving Party in connection with this Agreement; (b) was or becomes generally known by the public other than by the Receiving Party’s 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 or access to or use of any Confidential Information. If the Receiving Party is compelled by subpoena or applicable Law to disclose any Confidential Information, then, the Receiving Party shall: (y) 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; and (z) 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 the Receiving Party remains required to disclose any Confidential Information, the Receiving Party shall disclose only that portion of the Confidential Information that the Receiving Party is legally required to disclose and, on the Disclosing Party’s request, shall use commercially reasonable efforts to obtain assurances that such Confidential Information will be afforded confidential treatment.
7.2 Protection of Confidential Information. The Receiving Party shall: (a) only access or use Confidential Information as necessary to exercise its rights or perform its obligations in accordance with this Agreement; (b) not disclose or permit access to Confidential Information other than to its employees, agents and contractors who have a need to know such Confidential Information for purposes of the Receiving Party’s exercise of its rights or performance of its obligations under this Agreement and have been informed of the confidential nature of the Confidential Information; (c) safeguard the Confidential Information from unauthorized use, access, or disclosure using at least the degree of care it uses to protect its own sensitive information and in no event less than a reasonable degree of care; and (d) promptly notify the Disclosing Party of any unauthorized use or disclosure of Confidential Information and cooperate with Disclosing Party to prevent further unauthorized use or disclosure.
7.3 Business Associate Agreement. The parties acknowledge and agree that PHI may be exchanged between the parties under this Agreement. Provision and protection of any such PHI shall be subject to the Business Associate Agreement attached hereto in Exhibit A.
- Intellectual Property Rights.
8.1 MorgueBoard Materials. Subject to the licenses and rights granted in this Agreement, all right, title, and interest in and to MorgueBoard Materials, including all intellectual property rights therein, are and will remain exclusively with MorgueBoard and, if applicable, 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 such Third-Party Materials. Customer has no right, license, or authorization with respect to any of MorgueBoard Materials except as expressly set forth in this Agreement. All other rights in and to MorgueBoard Materials are expressly reserved by MorgueBoard.
8.2 Customer Data. Customer hereby grants all access and usage rights and permissions in or relating to Customer Data as are necessary for MorgueBoard (and its Subcontractors) to exercise its rights and perform its obligations in this Agreement. Subject to the license granted herein, as between Customer and MorgueBoard, Customer is and will remain the sole and exclusive owner of all right, title, and interest in and to the Customer Data, including all intellectual property rights relating thereto.
8.3 Feedback. Customer hereby grants to MorgueBoard a royalty-free, worldwide, transferable, sub-licensable, irrevocable, perpetual license to use or incorporate into the MorgueBoard Materials all suggestions, enhancement requests, recommendations or other feedback provided by Customer and Customer personnel relating to the operation, functionality or improvements to the MorgueBoard Materials.
- Representations and Warranties.
9.1 Mutual Representations and Warranties. Each party represents and warrants to the other party that: (a) it is duly organized, validly existing, and in good standing 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) 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 MorgueBoard that Customer owns or otherwise has and will have obtained the necessary rights and consents in and relating to the Customer Data (including MorgueBoard’s use of all PHI) so that, as received by MorgueBoard and used and processed in accordance with this Agreement, such use does not and will not infringe, misappropriate, or otherwise violate any rights of any third party or any applicable Law.
9.3 DISCLAIMER OF WARRANTIES. EXCEPT FOR THE EXPRESS WARRANTIES SET FORTH IN THIS SECTION 9, THE SOFTWARE SERVICE, ALL RELATED SERVICES AND MORGUEBOARD MATERIALS ARE PROVIDED “AS IS.” MORGUEBOARD 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, MORGUEBOARD MAKES NO WARRANTY OF ANY KIND THAT THE SOFTWARE SERVICE, ANY RELATED SERVICES OR MORGUEBOARD MATERIALS, OR ANY REPORTS OR RESULTS ARISING FROM THE USE THEREOF, WILL MEET CUSTOMER’S REQUIREMENTS, OPERATE WITHOUT INTERRUPTION, ACHIEVE ANY INTENDED RESULT, BE COMPATIBLE OR WORK WITH ANY SOFTWARE, SYSTEM, OR OTHER SERVICES INCLUDING CUSTOMER’S SYSTEMS, OR BE SECURE, ACCURATE, COMPLETE, FREE OF HARMFUL CODE, OR ERROR FREE. CUSTOMER ACKNOWLEDGES AND AGREES THAT THE SOFTWARE SERVICE IS AN INFORMATION MANAGEMENT TOOL ONLY AND THAT IT CONTEMPLATES AND REQUIRES THE INVOLVEMENT OF MEDICAL PROFESSIONALS IN CONNECTION WITH ITS USE. CUSTOMER FURTHER ACKNOWLEDGES AND AGREES THAT MORGUEBOARD HAS NOT REPRESENTED THAT THE SOFTWARE SERVICE HAS THE ABILITY TO PERFORM ANY TASKS THAT CONSTITUTE THE PRACTICE OF MEDICINE OR OF OTHER PROFESSIONAL OR ACADEMIC DISCIPLINES. IF THIRD-PARTY MATERIALS ARE PROVIDED TO CUSTOMER, 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 SUCH THIRD-PARTY MATERIALS.
- Indemnification.
10.1 MorgueBoard Indemnification. MorgueBoard shall indemnify, defend, and hold harmless Customer and each of its respective officers, directors, employees, agents, successors, and assigns (each, a “Customer Indemnitee”) from and against any and all damages, judgments, awards, penalties, fines, costs, or expenses (including reasonable attorneys’ fees) incurred by such Customer Indemnitee resulting from any claim, action, cause of action, demand, proceeding or lawsuit (“Action”) by a third party that the MorgueBoard Materials, when used in accordance with this Agreement and as provided by MorgueBoard, infringes or misappropriates such third party’s trademarks or copyrights registered in the United States. The foregoing obligation does not apply to the extent that the alleged infringement arises from: (a) Third-Party Materials, (b) Customer Data, (including PHI) supplied by Customer; (c) access to or use of the MorgueBoard Materials in combination with any Customer Materials or hardware or service not provided by MorgueBoard; (d) modification of the MorgueBoard Materials other than by MorgueBoard; or (e) use of the MorgueBoard Materials by Customer Indemnitee outside the scope of the rights granted under this Agreement or otherwise in violation of this Agreement.
10.2 Customer Indemnification. Customer shall indemnify, defend, and hold harmless MorgueBoard and its Subcontractors and Affiliates, and each of its and their respective officers, directors, employees, agents, successors, and assigns (each, an “MorgueBoard Indemnitee”) from and against any and all damages, judgments, awards, penalties, fines, costs, or expenses (including reasonable attorneys’ fees) incurred by such MorgueBoard Indemnitee resulting from any Action by a third party arising out of or resulting from, or are alleged to arise out of or result from: (a) Customer’s use of the Services; (b) Customer’s breach of this Agreement; or (c) MorgueBoard’s use of the Customer Data or any other materials or information (including any PHI, documents, data, specifications, software, content, or technology).
10.3 Indemnification Procedure. Each party shall promptly notify the other party in writing of any Action for which such party believes it is entitled to be indemnified pursuant to Section 10.1 or Section 10.2, as the case may be. The party seeking indemnification (the “Indemnitee”) shall cooperate with the other party (the “Indemnitor”) at the Indemnitor’s sole cost and expense. The Indemnitor shall promptly assume control of the defense of the Action and shall employ counsel of its choice to handle and defend the same, at the Indemnitor’s sole cost and expense. The Indemnitee may participate in and observe the proceedings at its own cost and expense with counsel of its own choosing. The Indemnitor shall not settle any Action on any terms or in any manner that adversely affects the rights of any Indemnitee without the Indemnitee’s prior written consent, which shall not be unreasonably withheld or delayed. If the Indemnitor fails or refuses to assume control of the defense of such Action, the Indemnitee shall have the right, but no obligation, to defend against such Action, including settling such Action after giving notice to the Indemnitor, in each case in such manner and on such terms as the Indemnitee may deem appropriate. The Indemnitee’s failure to perform any obligations under this Section 10.3 will not relieve the Indemnitor of its obligations under this Section 10, except to the extent that the Indemnitor can demonstrate that it has been materially prejudiced as a result of such failure.
10.4 Remedy for Customer’s IP Claims. If any portion of the MorgueBoard Materials are, or in MorgueBoard’s opinion are likely to be, claimed to infringe, misappropriate, or otherwise violate any third-party intellectual property right, or if Customer’s use of the MorgueBoard Materials is enjoined or threatened to be enjoined, MorgueBoard may: (a) obtain the right for Customer to continue to use the MorgueBoard Materials materially as contemplated by this Agreement; (b) modify or replace the MorgueBoard Materials, in whole or in part, to seek to make the MorgueBoard Materials (as so modified or replaced) non-infringing, while providing materially equivalent features and functionality, in which case such modifications or replacements will constitute the MorgueBoard Materials, as applicable, under this Agreement; or (c) by written notice to Customer, terminate this Agreement with respect to all or part of the MorgueBoard Materials, and require Customer to immediately cease any use of such MorgueBoard Materials (or any specified part or feature thereof), subject to Customer’s compliance with its post-termination obligations set forth in Section 12.3 and Customer will be entitled to a pro rata refund of any applicable prepaid and unused Fees for the applicable Services.
10.5 Sole Remedy. THIS SECTION 10 SETS FORTH CUSTOMER’S SOLE AND EXCLUSIVE REMEDIES AND MORGUEBOARD’S SOLE LIABILITY AND OBLIGATION FOR ANY ACTUAL, THREATENED, OR ALLEGED CLAIMS THAT THE MORGUEBOARD MATERIALS OR ANY SUBJECT MATTER OF THIS AGREEMENT INFRINGES, MISAPPROPRIATES, OR OTHERWISE VIOLATES ANY INTELLECTUAL PROPERTY RIGHTS OF ANY THIRD PARTY.
- Limitations of Liability.
11.1 EXCLUSION OF DAMAGES. IN NO EVENT WILL MORGUEBOARD 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 SOFTWARE SERVICE; (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 CAP ON MONETARY LIABILITY. IN NO EVENT WILL MORGUEBOARD AND ITS LICENSORS, SUBCONTRACTORS, SERVICE PROVIDERS, AND SUPPLIERS’ AGGREGATE LIABILITY 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 AMOUNT PAID TO MORGUEBOARD UNDER THIS AGREEMENT IN THE TWELVE (12) MONTHS PRECEDING THE EVENT GIVING RISE TO THE CLAIM. THE FOREGOING LIMITATIONS APPLY EVEN IF ANY REMEDY FAILS OF ITS ESSENTIAL PURPOSE.
- Term and Termination.
12.1 Term. The Term of the Agreement, including the Initial Term and any Renewal Terms, is set forth on the Initial Order Form and any Renewal Order Forms.
12.2 Termination. In addition to any other express termination right set forth elsewhere in this Agreement: (a) either party may terminate this Agreement, effective on written notice to the other party, if the other party materially breaches this Agreement, and such breach remains uncured thirty (30) days after the non-breaching party provides the breaching party with written notice of such breach; and (b) either party may terminate this Agreement, effective immediately upon written notice to the other party, if the other party: (w) becomes insolvent or is generally unable to pay, or fails to pay, its debts as they become due; (x) 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; (y) makes or seeks to make a general assignment for the benefit of its creditors; or (z) 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) Customer shall immediately cease all use of the MorgueBoard Materials and promptly return or destroy all of MorgueBoard’s Confidential Information; (c) MorgueBoard shall immediately cease all use of the Customer Data and promptly destroy all of the Customer Data and Customer’s Confidential Information; (d) all Fees that would have become payable had the Agreement remained in effect will become immediately due and payable. Notwithstanding the foregoing, MorgueBoard may, but does not have an obligation to, retain Customer Data in its backups, archives, and disaster recovery systems until such Customer Data is deleted in the ordinary course or for so long as required by applicable Law. Such Customer Data will remain subject to the protections in Section 9.
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 3.1, Section 7, Section 9.3, Section 10, Section 11, Section 12.3, this Section 12.4, and Section 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 Public Announcements. MorgueBoard reserves the right to use Customer’s name in any publicity or marketing materials.
13.3 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’s address set forth on the applicable Order Form (or to such other address or such other person that such party may designate from time to time in accordance with this Section 13.3). Notices sent in accordance with this Section 13.3 will be deemed effectively given: (a) when received, if delivered by hand, with signed confirmation of receipt; or (b) when received, if sent by a nationally recognized overnight courier, signature required. Notwithstanding the foregoing, notices during the normal course of the relationship may be sent to the email address provided above.
13.4 Headings. The headings in this Agreement are for reference only and do not affect the interpretation of this Agreement.
13.5 Assignment. Customer may not assign or otherwise transfer any of its rights, or delegate or otherwise transfer any of its obligations or performance under this Agreement, without the other party’s prior written consent; provided, however, that either party may, without obtaining such consent, assign this Agreement to any Affiliate or to any Person in connection with any sale or other transfer of all or substantially all of such party’s business or assets. No assignment, delegation, or transfer will relieve a party of any of its obligations or performance under this Agreement. Any purported assignment, delegation, or transfer in violation of this Section 13.5 is void. This Agreement is binding upon and inures to the benefit of the parties hereto and their respective successors and permitted assigns.
13.6 Force Majeure. In no event will MorgueBoard 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 MorgueBoard’s reasonable control (a “Force Majeure Event”), including acts of God, flood, fire, earthquake or explosion, war, terrorism, invasion, riot or other civil unrest, embargoes or blockades in effect on or after the date of this Agreement, national or regional emergency, strikes, labor stoppages or slowdowns or other industrial disturbances, passage of Law or any action taken by a governmental or public authority, including imposing an embargo, export or import restriction, quota, or other restriction or prohibition or any complete or partial government shutdown, or national or regional shortage of adequate power or telecommunications or transportation. Either party may terminate this Agreement if a Force Majeure Event continues substantially uninterrupted for a period of thirty (30) days or more.
13.7 No Third-Party Beneficiaries. This Agreement is for the sole benefit of the parties hereto and their respective successors, permitted assigns, licensors and service providers 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.
13.8 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.
13.9 Severability. If any term or provision of this Agreement is deemed 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.
13.10 Governing Law. This Agreement is governed by and construed in accordance with the internal laws of the State of Illinois, 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 Illinois.
13.11 Equitable Relief. The parties acknowledge and agree that a breach or threatened breach by such party of any of its obligations under Section 7 would cause the other party irreparable harm for which monetary damages would not be an adequate remedy and that, in the event of such breach or threatened breach, the other party will be entitled to 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.
