1. DEFINITIONS

1.1.“Affiliate” of an entity means any person or entity that directly or indirectly, through one or more intermediaries, controls, is controlled by or is under common control with such entity, where “control” means the possession, directly or indirectly, of the power to direct or cause the direction of the management policies of a person or entity, whether through the ownership of voting securities, by contract or otherwise.
1.2.“Agreement”means the Order Form and these Terms, including any, exhibits, or appendices or other attachments thereto.
1.3.“Documentation”means any user instructions, manuals, online support resources, or other materials that are provided by Dosable in connection with the Platform Services.
1.4.“Dosable Technology”means, collectively, the Platform, Documentation, and any other technology, intellectual property, or materials that are included or embodied in the Services to be provided pursuant to the Agreement.
1.5.“Effective Date”means the effective date set forth on the applicable Order Form.
1.6.“Order Form” means the applicable ordering document for Services that references these Terms.
1.7.“Patient”means an individual who is identified by Customer as eligible to access any component of the Platform as a User.
1.8.“Platform” means Dosable’s proprietary software-as-a-service applications made available to Customer pursuant to an Order Form.
1.9.“Platform Services” means the provision of the Platform along with the associated data hosting, maintenance and support services, and other management services required to support Customer’s and Users’ access to and use of the Platform.
1.10.“Product”means the specific technology services that are part of the Platform procured pursuant to an Order Form.
1.11.“Professional Services”means the implementation, development, customization, integration, and training services related to set forth in the applicable Order Form.
1.12.“Services”means the Platform and Platform Services together with the Professional Services.
1.13.“User” means an individual authorized to access and use the Platform and, depending upon the applicable, Product and terms of the Order Form, may include Customer’s employees, contractors, and/or Patients.

2. PLATFORM SERVICES & PROFESSIONAL SERVICES

Platform Scope.The Platform Services are software-as-a-service applications and associated services that enable Customer and, subject to any applicable Terms of Service for a Product, Users to access and use certain products and services made available by Dosable or third parties. The specific Platform Services that will be available to Customer related to the purchased Product(s) are as specifically set forth in the Order Form.
Platform Access.Subject to Customer’s ongoing compliance with the Agreement, Dosable hereby grants to Customer a non-exclusive, non-transferable, non-sublicensable, internal right during the applicable subscription term set forth in the Order Form (“Subscription Term”) to access and use the Platform solely to access and use the Platform Services. Dosable authorizes Customer to use the Platform Services for up to a designated number of Patients, enrollments, or members, or for the Platform Services to be used solely in support of Products identified in the Order Form.
UpdatesDosable may update the Platform Services from time to time during the Term to reflect changes in, among other things, laws, regulations, rules, technology, industry practices, patterns of system use, and availability of third-party integrations or content. Such updates may require Dosable to temporarily suspend access to the Platform Services while such updates are completed, and such temporary suspensions shall not be considered a breach of this Agreement or any Order Form. Subject to the foregoing, Dosable’s updates to the Platform Services or Platform specifications will not materially reduce the level of performance, functionality, security or availability of the Platform Services during the Subscription Term applicable to the Order Form.
Professional ServicesDosable will provide the Professional Services and Platform Services to Customer as set forth on the applicable Order Form. Customer is responsible for all consents, hardware, software, related equipment, and other resources necessary for Customer’s implementation and use of the Platform Services unless otherwise identified in the Order Form as Dosable’s responsibility. Dosable does not provide medical services or pharmacy services.
RestrictionsCustomer shall not, directly or indirectly, and shall not authorize any third party to: (A) decompile, disassemble, reverse engineer, or otherwise attempt to derive the source code, structure, algorithms, or associated know-how of, the Dosable Technology, or reconstruct, or discover, any hidden or non-public elements of the Platform, or results provided in connection with the Platform Services or Professional Services (except to the extent expressly permitted by applicable law); (B) translate, adapt, or modify the Dosable Technology, any results of any Platform Services or Professional Services, or any portion of any of the foregoing; (C) write or develop any program based in whole or in part upon the Platform or Platform Services, or otherwise use the Dosable Technology in any manner for the purpose of developing, distributing or making accessible products or services that compete with any Products; (D) sell, sublicense, transfer, assign, lease, rent, distribute, or grant a security interest in the Dosable Technology or any rights to any of the foregoing; (E) export, sell or distribute any content or portion of the Dosable Technology or use the Dosable Technology for the benefit of any third persons other than a User or a nonUser Patient; (F) transmit unlawful, infringing or harmful data or code, or any data or code that Customer is not authorized to transmit, either to or from the Platform; (G) alter or remove any trademarks or proprietary notices contained in or on the Dosable Technology; (H) circumvent or otherwise interfere with any authentication or security measures of the Dosable Technology or otherwise interfere with or disrupt the integrity or performance of any of the foregoing; or (I) otherwise use the Dosable Technology except as expressly permitted hereunder or under the Order Form. Customer acknowledges that Dosable may, but is under no obligation to, monitor Users’ use of the Platform. Dosable may suspend Customer’s, or any User’s access to the Platform for any period during which Dosable has a reasonable basis for concluding that Customer is, or such User is, in not in compliance with this Section 2.5.
Customer’s Obligations.
(A) Customer Submissions.
Customer understands that it may need to provide certain data, information and cooperation for Dosable to provide the Services (“Customer Submissions”), and agrees that Dosable may use and rely on the Customer Submissions for its provision of Services. All Customer Submissions will be true and correct to best of Customer’s knowledge.
(B) Patient Complaints.
Customer agrees to notify Dosable within three business days after receiving any Patient complaint regarding any Service.
(C) Access to Technology.
Customer is responsible for ensuring, at its own expense, that each User of the Platform who is an administrator or practitioner has access to high-speed internet access and sufficient technology, as may be outlined in the Documentation or otherwise communicated to Customer from time to time.
(D) Compliance with Laws.
Customer agrees to comply with all state and federal laws, rules, regulations, orders, and binding guidance applicable to the Customer’s business. To the extent Customer receives any complaint, audit, investigation, claim, or is subject to any type of interaction with any governmental authority, Customer agrees to promptly notify Dosable of such complaint, audit, investigation, claim, or interaction.
HIPAACustomer represents and warrants that it is not a “Covered Entity” as that term is defined by the Health Insurance Portability and Accountability Act of 1996, as amended, and its implementing regulations (“HIPAA”). Additionally, the parties hereby agree the Dosable is not considered a “Business Associate” or a “Subcontractor” as defined by HIPAA.

3. FEES

3.1.Service FeesCustomer will pay Dosable the fees for the Services and other associated fees as specified in the Order Form (“Fees”). Except as provided in the Order Form, once placed, Order Forms are non-cancelable and the sums paid nonrefundable. Except as provided in an Order Form, Dosable will invoice the Fees as follows: (A) annual or yearly Fees are invoiced annually in advance, (B) monthly Fees are invoiced monthly in advance; (C) one-time or setup Fees are invoiced on the Effective Date and must be paid prior to the commencement of services, (D) Fees for optional additional enrollments, products, members or Patients are invoiced when ordered, but pro-rated to align with the applicable annual license Fees, and (E) Fees for Professional Services not included in the Fees described above are invoiced monthly in arrears. If Customer exceeds the quantity or type of Services ordered, then Customer promptly must purchase and pay Fees for the excess quantity in accordance with the terms of the Order Form.
3.2.Payment TermsCustomer shall pay all invoiced Fees in United States dollars within 7 days after the invoice date, without deduction or offset. The foregoing notwithstanding, any initial set-up fees must be paid in full prior to the commencement of services under any Order Form. If the applicable Fees for Professional Services are not set forth on the Order Form, Dosable’s then prevailing time and materials rates will apply. Interest on unpaid overdue Fees accrues from the due date at the lesser of 1.5% per month or the highest rate allowed by law.
3.3.Expenses Unless otherwise set forth in the Order Form, Customer will reimburse Dosable for its actual and reasonable travel, lodging, meals, related incidental and other out-of-pocket expenses incurred directly in connection with its provision of Professional Services.
3.4.TaxesCustomer is responsible for all federal, state, local, sales, use, value added, excise, or other taxes, fees, or duties arising out of the Agreement or the transactions contemplated by the Agreement (other than taxes based on Dosable’s net income).

4. PROPRIETARY RIGHTS

4.1.Dosable Technology.As between Customer and Dosable, Dosable owns and retains all rights, title and interest, including all intellectual property rights, in and to the Dosable Technology, including all technology, software, algorithms, user interfaces, trade secrets, techniques, designs, inventions, works of authorship and other tangible and intangible material and information pertaining thereto or included therein. Dosable will own and retain all right, title and interest, including all intellectual property and proprietary rights, in and to any work product or deliverables created in connection with the Professional Services, and nothing limits or prevents Dosable from developing similar work product or deliverables for other customers. Nothing in the Agreement precludes or restricts Dosable from future use or exploitation of any concepts, ideas, techniques or know how of, or related to, the Dosable Technology or otherwise arising in connection with Dosable’s performance under the Agreement. Other than as expressly set forth in the Agreement, no licenses or other rights in or to the Dosable Technology are granted to Customer and all such rights are hereby expressly reserved. Customer or any User may, from time to time and in their discretion, provide suggestions for changes, modifications or improvements to any Service (collectively, “Feedback”). Customer hereby grants, on its behalf and on behalf of Users, to Dosable a perpetual, irrevocable right to use and fully exploit all Feedback for any lawful purpose without payment or other consideration to Customer.
4.2.Customer Marks.As between Customer and Dosable, Customer owns and retains all rights, title and interest, including all intellectual property rights, in and to the name, logo and other trademarks, service marks and other identifying marks of Customer (the “Customer Marks”). To the extent that the Services provided hereunder are white-labeled and branded as Customer services and programs, Customer hereby grants to Dosable a fully paid, non-exclusive, non-transferrable, non-sublicensable and irrevocable license during the Term to use, copy, display, perform and publish the Customer Marksfor the purposes of branding the Products and Services provided under the Agreement.

5. TERM AND TERMINATION

5.1.Term.The Agreement becomes effective as of the Effective Date and shall remain in effect until the end of the term as specified in the Order Form or on completion of the Services in accordance with the Agreement, unless otherwise terminated earlier by either party in accordance with the terms herein (“Term”).
5.2.Termination.Either party may terminate the Agreement or any outstanding Order Form with 30 days’ prior written notice if the other party is in material breach of the Agreement or the applicable Order Form, and the material breach is not cured within 30 days after written notice reasonably describing the basis for the breach. Either party may terminate this Agreement by providing at least 60 days prior written notice prior to the end of any Term, unless otherwise specified in an Order Form.
5.3.Effect of Termination.Upon the effective date of the termination or expiration of the Agreement for any reason: (A) Customer’s access to the Platform will automatically terminate; and (B) Customer shall immediately return, or at Dosable’s request destroy and certify the destruction of any tangible embodiments of Dosable’s Confidential Information. The following provisions will survive the expiration or termination of the Agreement for any reason: Sections 1, 2.5, 2.7, 3 (with respect to amounts due to either party), 4, 5.3, 6, 8, 9, and 11.

6. CONFIDENTIALITY

6.1.Definition.“Confidential Information” means any information disclosed, directly or indirectly, by or on behalf of one party (“Disclosing Party”) to the other party (“Receiving Party”) pursuant to the Agreement that (A) is designated as “confidential,” in some other manner to indicate its confidential nature; and (B) otherwise should reasonably be expected to be treated in a confidential manner based on the circumstances of its disclosure or the nature of the information itself. Without limiting the foregoing, Dosable Technology is Dosable’s Confidential Information, and the terms (but not the existence) of the Agreement will be kept confidential as each party’s Confidential Information. However, Confidential Information does not include information that: (1) is or becomes generally known and available to the public through no act of the Receiving Party; (2) was already in the Receiving Party’s possession without a duty of confidentiality owed to the Disclosing Party at the time of disclosure by the Disclosing Party, as shown by the Receiving Party’s contemporaneous records; (3) is lawfully obtained by the Receiving Party from a third party who has the express right to make such disclosure; or (4) is independently developed by the Receiving Party without breach of an obligation owed to the Disclosing Party. Customer Data is not Confidential Information and Dosable’s obligations regarding Customer Data are specifically addressed in Section 6.3.
6.2.Use Maintenance.Neither party shall use the Confidential Information of the other party for any purpose except to exercise its rights and perform its obligations under the Agreement. Neither party shall disclose, or permit to be disclosed, either directly or indirectly, any Confidential Information of the other party, except: (A) to its advisors, or prospective investors or purchasers, in each case subject to written obligations of confidentiality, or (B) where the Receiving Party becomes legally compelled to disclose Confidential Information, notwithstanding the Receiving Party’s having given the Disclosing Party prior notice of such legally compelled disclosure and a reasonable opportunity for Disclosing Party to seek a protective order or other confidential treatment for such Confidential information (if permitted by applicable law). Each party will take reasonable measures and care to protect the secrecy of, and avoid disclosure and unauthorized use of the other party’s Confidential Information, and will take at least those measures taken to protect its own similar confidential information, but no less than reasonable measures.
6.3.Customer Data.Any data submitted by Customer to the Platform and any data returned from the Platform to Customer based on the results of such submitted data is “Customer Data”. As between Dosable and Customer, Customer retains all rights, title, and interest in and to the Customer Data. Customer Data does not include any data or other information generated by Dosable through any automated data analysis, processing or other normal operations of the Platform or any Dosable Data (as defined below). Upon expiration or termination of the Agreement, Dosable will delete and erase any Customer Data from the Platform upon Customer’s request. Customer hereby authorizes Dosable to access, use, process and store Customer Data to perform or provide the Services and perform its obligations hereunder.
6.4.Dosable Data.During and after the Term, Dosable may use any Customer Data to operate and improve Dosable’s products and services. Customer represents and warrants to Dosable that it has the legal right and authorization to provide all Customer Data to the Platform for use as set forth in the Agreement. Dosable may de-identify or anonymize Customer Data such that it is no longer considered personally identifiable information (such data, “Dosable Data”). With respect to Dosable Data created in accordance with the above license, Customer hereby grants Dosable a perpetual, worldwide, irrevocable, non-exclusive, sublicensable, royalty-free, right and license to use, copy, and transmit such Dosable Data for internal research, product and service development and improvement purposes.

7. INSURANCE

7.1.Dosable shall, at its own expense, obtain and maintain commercial general liability with insurance limits of $1,000,000 per occurrence and $2,000,000 in the aggregate. The Customer shall maintain security insurance (one or more types) covering liability arising out of or related to theft, dissemination, and/or use of Confidential Information, including Confidential Information stored and/or transmitted in electronic form, in amounts not less than $5,000,000 per occurrence and $5,000,000 annual aggregate.

8. INDEMNIFICATION

8.1.By DosableDosable shall: (A) defend, or at its option settle, any claim by a third party (a “Claim”) brought against Customer to the extent it alleges that the Customer’s (or a User’s) authorized use of the Platform during the Term infringes any third-party’s U.S. patent, copyright, or trademark, or misappropriates a trade secret of any third party; and (B) pay any damages awarded in a final judgment (or amounts agreed in a monetary settlement) in any such Claim defended by Dosable; provided that Customer provides Dosable with (1) prompt written notice of, (2) sole control over the defense and settlement of, and (3) all information and assistance reasonably requested by Dosable in connection with the defense or settlement of, any such Claim. If any Claim is brought or threatened, Dosable may, at its sole option and expense: (a) procure for Customer the right to continue to use the Platform; (b) modify the Platform to make it non-infringing; (c) replace the affected aspect of the Platform with non-infringing technology having substantially similar capabilities; or (d) if none of the foregoing is commercially practicable, terminate the Agreement with notice to Customer and no further liability. However, Dosable has no obligation to indemnify Customer to the extent any Claim arises in connection with: (i) any use of the Platform in combination with software, products or services not provided by Dosable to the extent that the Platform would not be infringing but for such combination or modification; (ii) Customer’s failure to use the Platform in accordance with the Agreement; or (iii) for any claims related to Customer Data. THIS SECTION 8.1 STATES THE ENTIRE LIABILITY OF DOSABLE, AND THE EXCLUSIVE REMEDY OF CUSTOMER, WITH RESPECT TO ANY ACTUAL OR ALLEGED INFRINGEMENT OF ANY INTELLECTUAL PROPERTY RIGHTS BY DOSABLE OR THE DOSABLE TECHNOLOGY.
8.2.By CustomerCustomer agrees to defend, indemnify and hold Dosable and its Affiliates harmless from any Claim by or on behalf of any third party (including Users) that is brought against Dosable to the extent the Claim: (A) arises for any reason whatsoever, out of Customer’s use or operation of the Platform or use of any Service (other than a Claim for which Dosable is required to indemnify Customer in accordance with Section 8.1); (B) results from Customer’s or any of its Affiliates’ gross negligence or willful misconduct; (C) results from any breach of a representation or warranty of Customer under the Agreement; (D) results from Customer’s failure to meet its obligations under Section 2.6, (E) results from any service provided by the Customer to the Customer’s clients, patients, or users, or (F) results from any violation of law by the Customer. To the extent applicable, Customer will obtain Dosable’s prior written consent to any settlement which is not exclusively a monetary settlement or any judgment in which Customer agrees to any finding of fault of Dosable or defect in the Platform or which would otherwise affect Dosable’s rights. Dosable will promptly notify Customer in writing of any claim subject to this indemnification, promptly provide Customer with the information reasonably required for the defense of the same, and grant to Customer exclusive control over its defense and settlement, provided that Dosable’s failure to promptly notify the Customer will in no way diminish Dosable’s right to indemnification hereunder except to the extent Customer is materially prejudiced by such failure. Customer shall defend or, at its option, settle, any Claim brought against Dosable by a third party. Customer will pay all damages finally awarded against Dosable (or the amount of any settlement entered into or approved in writing by Customer) with respect to any Claim. Dosable shall provide Customer with: (1) prompt written notice of; (2) sole control over the defense and settlement of; and (3) all information and assistance reasonably requested by Customer in connection with the defense or settlement of, any such Claim.

9. DISCLAIMER; LIMITATION OF LIABILITY

9.1.DisclaimerEXCEPT AS EXPRESSLY SET FORTH IN THE AGREEMENT, DOSABLE HEREBY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING ANY AND ALL WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, LOSS OF DATA, ACCURACY OF RESULTS, SECURITY, OR OTHERWISE ARISING FROM A COURSE OF DEALING OR RELIANCE. DOSABLE DOES NOT WARRANT THAT THE PLATFORM WILL BE ERROR-FREE, UNINTERRUPTED, OR COMPATIBLE WITH ANY PARTICULAR DEVICE, THAT ANY DATA PROVIDED BY OR THROUGH THE PLATFORM WILL BE ACCURATE, OR THAT ITS SECURITY MEASURES WILL BE SUFFICIENT TO PREVENT THIRD PARTY ACCESS TO CUSTOMER DATA OR CUSTOMER’S DEVICES. DOSABLE SPECIFICALLY DISCLAIMS ALL RESPONSIBILITY FOR ANY THIRD-PARTY SOFTWARE, PRODUCTS, OR SERVICES PROVIDED WITH THE PLATFORM AND THE AVAILABILITY OR CUSTOMER’S USE OF ANY DATA OR INFORMATION STORED ON OR PROVIDED TO THE PLATFORM. DOSABLE DOES NOT PROVIDE ANY MEDICAL ADVICE, LEGAL ADVICE, OR REPRESENTATIONS IN ANY WAY REGARDING ANY LEGAL OR MEDICAL ISSUES ASSOCIATED WITH GOODS, OR SERVICES OFFERED BY, OR ON BEHALF OF CUSTOMER, INCLUDING BUT NOT LIMITED TO ANY COMPLIANCE OBLIGATIONS OR STEPS NECESSARY TO COMPLY WITH ANY STATE OR FEDERAL LAWS AND REGULATIONS. CUSTOMER SHOULD SEEK LEGAL COUNSEL REGARDING ANY LEGAL AND COMPLIANCE ISSUES, AND SHOULD NOT RELY ON ANY MATERIALS OR CONTENT ASSOCIATED WITH THE SERVICES IN DETERMINING CUSTOMER’S COMPLIANCE OBLIGATIONS UNDER LAW. CUSTOMER AND DOSABLE AGREE THAT DOSABLE IS NOT PROVIDING, TO CUSTOMER OR ANYONE ELSE, MEDICAL OR OTHER HEALTHCARE ADVICE OR LEGAL ADVICE. THE PLATFORM AND THE SERVICES ARE NOT MEANT TO SUBSTITUTE OR MODIFY ANY HEALTHCARE PRACTITIONER’S PROFESSIONAL JUDGMENT IN ANY WAY.
9.2.Limitation of Liability. IN NO EVENT WILL EITHER PARTY BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, EXEMPLARY, PUNITIVE, OR CONSEQUENTIAL DAMAGES (INCLUDING, WITHOUT LIMITATION, LOSS OF BUSINESS, REVENUE, PROFITS, GOODWILL, DATA, OR ECONOMIC ADVANTAGE, AND COSTS OF SUBSTITUTE GOODS OR SERVICES) ARISING OUT OF OR RELATING TO THE AGREEMENT, HOWEVER CAUSED, AND BASED ON ANY THEORY OF LIABILITY, WHETHER FOR BREACH OF CONTRACT, BREACH OF WARRANTY, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY, OR OTHERWISE, EVEN IF THE OTHER PARTY IS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. EXCEPT FOR CUSTOMER’S PAYMENT OBLIGATIONS, DOSABLE’S TOTAL LIABILITY ARISING OUT OF OR RELATED TO THE AGREEMENT WILL NOT EXCEED THE TOTAL FEES PAID BY CUSTOMER TO DOSABLE HEREUNDER DURING THE 6-MONTH PERIOD PRIOR TO THE DATE THE CLAIM AROSE. THESE LIMITATIONS SHALL APPLY NOTWITHSTANDING ANY FAILURE OF THE ESSENTIAL PURPOSE OF ANY LIMITED OR EXCLUSIVE REMEDY.

10. REPRESENTATIONS AND WARRANTIES

10.1.GeneralEach party represents and warrants that as of the Effective Date: (A) it is an entity duly organized and validly existing under the laws of its state or jurisdiction of organization, and it has full corporate or limited liability company power and authority to enter into the Agreement and to carry out the provisions hereof; (B) entering into the Agreement by such party: (1) does not conflict with, or contravene or constitute any default under, any agreement, instrument or understanding, oral or written, to which it is a party; and (2) does not violate any judgment, injunction, order or decree of any governmental authority having jurisdiction over it.
10.2.No Debarment Each party represents that neither it nor its employees have been convicted of a criminal offense related to health care, and neither such party nor its employees are currently listed by a federal or state agency as debarred, excluded or otherwise ineligible for participation in federally or state funded health care programs, and is not at the time of execution of the Agreement, proposed for debarment, exclusion, or other ineligibility for participation in federally or state funded health care programs. A party shall notify the other party promptly, in writing, of any change in this status during the Term. In such event regarding a Dosable employee, Dosable shall discontinue the use of the excluded employee within seven days of first learning of the exclusion, in which case such exclusion shall not entitle Customer to claim a breach of the Agreement.

11. GENERAL PROVISIONS

11.1.Assignment.Neither party may assign the Agreement or any of its rights or obligations under the Agreement without the prior written consent of the other party, except that Dosable may assign the Agreement without the consent of Customer as part of a corporate reorganization, or upon a change of control, consolidation, merger, sale of all or substantially all of its business or assets related to the Agreement, or a similar transaction or series of transactions. Subject to the foregoing, the Agreement will be binding upon and inure to the benefit of the parties and their respective successors and permitted assigns.
11.2.Force Majeure.Neither party will be liable for any failure or delay in its performance under the Agreement due to any cause beyond its reasonable control, including without limitation an act of war, terrorism, act of God, earthquake, flood, embargo, riot, sabotage, pandemic, labor shortage or dispute, governmental act or failure or degradation of the Internet. The delayed party shall give the other party notice of such cause and shall use its commercially reasonable efforts to correct such failure or delay in performance.
11.3.Modifications.Dosable may modify these Terms from time to time with prior written notice to Dosable customers.
11.4.Publicity.Dosable may use Customer’s Marks as a reference for marketing or promotional purposes on Dosable’s website and in other communication with existing or potential Dosable customers, subject to any written trademark policies Customer may provide Dosable in writing, with reasonable advance notice.
11.5.Referral of Patients; Government Investigations.The parties agree that no part of the Agreement should or may be construed to induce or encourage the referral of patients or the purchase of health care services or supplies except in compliance with applicable law. No payment under the Agreement is in exchange for the referral of patients, if any, or in exchange for purchasing, leasing or ordering services from Customer, Dosable, or any Affiliate of either party. Customer will inform Dosable, within seven business days, if Customer becomes aware that Customer is subject to a federal or state government audit or investigation.
11.6.Precedence.In the event of any inconsistency between these Terms or any Order Form, the following order of precedence applies (with items with a lower number controlling in the event of a conflict with items with a higher number): (1) the Order Form, and (2) these Terms.
11.7.Governing Law.The Agreement shall be governed by and construed under the laws of the State of New York without reference to conflict of laws principles. The application of the United Nations Convention of Contracts for the International Sale of Goods is expressly excluded. Subject first to Section 11.7, if a lawsuit or court proceeding is permitted under the Agreement, the parties will be subject to the exclusive jurisdiction of the state and federal courts located in the State of New York, and the parties hereby agree and consent to the exclusive jurisdiction and venue of such courts.
11.8.Arbitration.The parties agree to resolve all disputes arising under or in connection with the Agreement through binding arbitration. A party who intends to seek arbitration must first send a written notice of the dispute to the other party. The parties will use good faith efforts to resolve the dispute directly, but if the parties do not reach an agreement to do so within 30 days after the notice is received, either party may commence an arbitration proceeding. The arbitration will be conducted in accordance with the applicable rules of the American Arbitration Association (“AAA”). The arbitration will be conducted in English in the state of New York. If the parties do not agree on an arbitrator, the arbitrator will be selected in accordance with the applicable rules of the AAA for the appointment of an arbitrator. The selection of an arbitrator under the rules of the AAA will be final and binding on the parties. The arbitrator must be independent of the parties. The arbitrator’s decision will be final and binding on both parties, and the arbitrator must issue a reasoned written decision sufficient to explain the essential findings and conclusions on which the decision and award, if any, are based. The costs and expenses of the arbitration will be shared equally by both parties; however, if the arbitrator finds that either the substance of the claim or the relief sought in arbitration is frivolous or brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)), then the payment of all Fees will be governed by the AAA Rules. Notwithstanding the foregoing, this Section 11.7 will not prohibit either party from: (A) bringing an individual action in small claims court; (B) seeking injunctive or other equitable relief in a court of competent jurisdiction; (C) pursuing an enforcement action through the applicable federal, state, or local agency if that action is available; or (D) filing suit in a court of law to address an intellectual property infringement or misappropriation claim. If this Section 11.7 is found to be unenforceable, the parties agree that the exclusive jurisdiction and venue described in Section 11.6 will govern any action arising out of or related to the Agreement.
11.9.Miscellaneous.The Agreement is the sole agreement of the parties concerning the subject matter hereof, and supersedes all prior agreements and understandings with respect to said subject matter. Customer may not subcontract or delegate any rights or obligations granted to it under the Agreement to any third parties, including its consultants or contractors, without the prior written consent of Dosable. Customer agrees that it is solely responsible for any liability arising out of its approved consultants’ and contractors’ authorized access and use of the Dosable Technology. No terms of any purchase order, acknowledgement, or other form provided by Customer will modify the Agreement, regardless of any failure by Dosable to object to such terms. Any ambiguity in the Agreement shall be interpreted without regard to which party drafted the Agreement. There are no third party beneficiaries to the Agreement. The Agreement may only be amended by a writing signed by both parties. The Agreement may be executed in counterparts. Any required notice shall be given in writing by customary means with receipt confirmed at the address of each party set forth in the Order Form, or to such other address as either party may substitute by written notice to the other. Notices will be deemed to have been given at the time of actual delivery in person, one day after delivery to an overnight courier service, or three days after deposit in certified mail. The relationship between the parties shall be that of independent contractors. Dosable may use subcontractors or otherwise delegate aspects of its performance under the Agreement; provided that Dosable is responsible hereunder for any such subcontractor’s performance. Waiver of any term of the Agreement or forbearance to enforce any term by either party shall not constitute a waiver as to any subsequent breach or failure of the same term or a waiver of any other term of the Agreement. Any provision found to be unlawful, unenforceable or void shall be severed from the remainder of the Agreement and the remainder of the Agreement will continue in full force and effect without said provision. The parties agree to comply with all applicable export control laws and regulations related to their performance of the Agreement.