ROCHE DIAGNOSTICS, DIVISION OF HOFFMANN-LA ROCHE LIMITED - ROCHE NAVIFY TUMOR BOARD SOLUTION EVALUATION AGREEMENT
This Roche NAVIFY Tumor Board Solution Evaluation Agreement (““Agreement””) contains the terms and conditions upon which Roche Diagnostics, division of Hoffmann-La Roche Limited (“Roche”) makes available to Client the NAVIFY Tumor Board Solution for Client to evaluate and provide feedback to Roche (for example, feedback on usability and functionality). In this Agreement “Client” means the company or entity that has entered into this Agreement with Roche and is listed on the signature page hereto, and “Roche” means Roche Diagnostics, division of Hoffmann-La Roche Limited, and “party and “parties” means Client and/or Roche, as the context requires. This Agreement will not become effective and binding upon Roche unless and until accepted (“Effective Date”), in writing below, by an authorized representative of Roche in Laval, Québec (Canada).
Terms and Conditions
Roche and Client agree as follows:
1. Definitions
“De-Identified Data” means information (or any portion thereof) that has been the subject of reasonable efforts to de-identify, aggregate and/or anonymize such data with the result that no individual, entity or particular record can be identified such that it is no longer Personal Information or Personal Health Information.
“Evaluation Term” means the ninety (90) day period starting on the Effective Date.
“Privacy Laws” mean all data privacy laws and regulations applicable to the Parties, which may include: the Personal Information Protection and Electronic Documents Act and substantially similar laws of with the Provinces; privacy and freedom of information laws applicable to public bodies and institutions within the Provinces, and health information laws application to trustees/custodians within the Provinces; and all regulations passed pursuant to such laws.
“NAVIFY Tumor Board Solution” means Roche’s cloud-based software-as-a-service solution (SaaS) that aggregates information from disparate sources and provides a platform to visualize contextual patient information in a single application to accommodate the workflow of the specialists on a patient’s clinical team (for example, oncologist, pathologist, radiologist, surgeon, etc.), future versions of which may include clinical decision support functions or applications.
“Personal Information” means information about an identifiable individual or which relates to a natural person and allows that person to be identified, and includes personal health information.
“Territory” means Canada.
2. NAVIFY Tumor Board Solution
2.1. NAVIFY Tumor Board Solution. Subject to the terms and conditions of this Agreement, during the Evaluation Term Roche will provide Client access to the Roche NAVIFY Tumor Board Solution, made available through cloud computing infrastructure selected by Roche and managed using third parties (the “Services”). The data will be stored outside the Territory and will be subject to the laws of the jurisdiction where it is stored and may be subject to access by law enforcement or other authorities in the foreign jurisdiction pursuant to lawful request. Subject to Sections 2.2 and 3 and the other conditions of this Agreement, Roche grants to Client a non-exclusive, revocable, non-transferable, non-assignable, royalty-free license (without the right to sublicense) in the Territory during the Evaluation Term for Client’s employees and contractors (including physicians and other health care providers) (“Authorized Users”) to access and use the Roche NAVIFY Tumor Board Solution, to aggregate and display solely De-Identified Data for purposes of evaluating the Roche NAVIFY Tumor Board Solution. Roche may, from time to time without prior notice to Client, add, delete or change the features or functionality of the Services. Roche owns and retains all right, title and interest in and to the Services.
2.2. Authorized Users and Restrictions. Client will be responsible for all the acts and omissions of all Authorized Users (including without limitation any violation of Sections 2.1 or 3 or this Section 2.2 by an Authorized User) as if they were Client’s own acts or omissions. Each Authorized User will be provided unique authentication credentials, which may only be used by the single Authorized User to whom such credentials have been assigned by or on behalf of Roche. Client is responsible for all use of the Roche NAVIFY Tumor Board Solution by any person using the authentication credentials assigned to Authorized Users, even if unauthorized by Client. Roche may deactivate any authentication credentials at any time for any suspected unauthorized use or any misuse of the Services. Client shall immediately notify Roche upon any loss, use or unauthorized disclosure, or other compromise of an Authorized User’s authentication credentials. Client and all Authorized Users (including Client employees and contractors) shall abide by all applicable laws.
3. De-Identified Data Only
3.1. De-Identified Data Only. Client must not, and must not permit any third party to, upload or process any identifiable patient data (including Personal Information as defined herein) using the NAVIFY Tumor Board Solution or any computing infrastructure used in connection with the Services.
4. Termination and Suspension
4.1. Term. The term of this Agreement starts on the Effective Date and continues until the expiration of the Evaluation Term, unless terminated earlier in accordance with the terms and conditions of this Agreement.
4.2. Termination and Suspension. Roche may at its option suspend access to the Services or terminate this Agreement if: (i) Client or an Authorized User or any third party engages in activities that Roche reasonably deems a risk to the security or integrity of Roche, the Services or any data, or that are prohibited pursuant to this Agreement; (ii) Client fails to comply with any of the terms and conditions of this Agreement; or
- in Roche’s reasonable opinion it is required to do so by law. In each case, Roche shall provide prior notice if practicable, and otherwise prompt notice after the fact.
5. Disclaimers
5.1. Disclaimers. THE SERVICES ARE PROVIDED “AS IS” AND WITHOUT ANY EXPRESS OR IMPLIED REPRESENTATIONS OR WARRANTIES OF ANY KIND, INCLUDING ANY REPRESENTATIONS OR WARRANTIES REGARDING ACCURACY, OPERABILITY, USE, TITLE, NON-INFRINGEMENT, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, AND EACH PARTY HEREBY DISCLAIMS ALL SUCH REPRESENTATIONS AND WARRANTIES. WITHOUT LIMITING THE FOREGOING, ROCHE MAKES NO REPRESENTATION OR WARRANTY, EXPRESS OR IMPLIED, THAT THE SERVICES OR THEIR USE WILL BE SECURE, UNINTERRUPTED OR ERROR-FREE. BOTH PARTIES ACKNOWLEDGE THAT THEY HAVE NOT ENTERED INTO THIS AGREEMENT IN RELIANCE UPON ANY WARRANTY OR REPRESENTATION. IN NO EVENT SHALL ROCHE BE DEEMED TO BE ENGAGED, DIRECTLY OR INDIRECTLY, IN THE PRACTICE OF MEDICINE OR THE DISPENSING OF MEDICAL SERVICES, NOR SHALL IT BE RESPONSIBLE OR LIABLE FOR ANY MEDICAL INTERPRETATION, JUDGMENT, OR DECISIONS (DIAGNOSTIC, CLINICAL, OR OTHERWISE) MADE BY OR ON BEHALF OF CLIENT OR AUTHORIZED USERS.
6. LIMITATION OF LIABILITY
6.1. Damages; Aggregate Liability. ROCHE IS NOT LIABLE TO CLIENT ARISING OUT OF OR IN RELATION TO THIS AGREEMENT, INCLUDING WITHOUT LIMITATION FOR ANY DAMAGES OF ANY KIND (INCLUDING WITHOUT LIMITATION ANY DIRECT, INDIRECT,
SPECIAL, PUNITIVE, EXEMPLARY, INCIDENTAL OR CONSEQUENTIAL DAMAGES) OR ANY LOST PROFITS, LOST REVENUES, OR LOST GOODWILL, EVEN IF ROCHE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE FOREGOING LIMITATIONS AND EXCLUSIONS OF LIABILITY IN THIS AGREEMENT APPLY TO ANY LIABILITY HOWEVER ARISING, INCLUDING WHETHER BASED IN CONTRACT, TORT, NEGLIGENCE, OR STRICT LIABILITY.
6.2. Acknowledgment. THE PARTIES ACKNOWLEDGE THAT ROCHE WOULD NOT ENTER INTO THIS AGREEMENT WITHOUT THE FOREGOING LIMITATIONS OF LIABILITY AND DISCLAIMERS.
7. Confidentiality and Data Outside Canada
7.1. Where the Parties have entered into a separate confidentiality or nondisclosure agreement (an “NDA”), such NDA shall govern the exchange of “Confidential Information” (as such term is defined in such NDA) between the Parties under this Agreement, and is incorporated herein by reference.
8. Miscellaneous
8.1. Governing Law. This Agreement is governed by the laws of the province of Quebec and Canada, without regard to conflict of law rules that would apply the laws of a different jurisdiction. The UN Convention on Contracts for the International Sale of Goods and Uniform Computer Information Transactions Act (UCITA) will not apply to this Agreement. The parties may bring any disputes arising out of or related to this Agreement non-exclusively in a court located in Montreal, Quebec and submit to the personal jurisdiction of such courts. Parties expressly waive their rights to a trial by jury.
8.2. Entire Agreement; Amendment. This Agreement supersedes all prior discussions and writings regarding (and constitutes the entire agreement between the parties with respect to) the subject matter of this Agreement. The parties may only amend this Agreement in writing and signed by duly authorized representatives of the parties.
8.3. Assignment. Neither party will assign, delegate or otherwise transfer (whether voluntarily, by operation of law or otherwise) this Agreement, or any of its rights or obligations under this Agreement, without the prior written consent of the other party; provided, however, that Roche may assign this Agreement without Client’s written consent to an affiliate, or to any entity with which Roche merges or consolidates or to which Roche sells all or substantially all of its assets. Any attempted assignment in violation of this Section will be void and without effect.
Subject to the foregoing, this Agreement will benefit and bind the parties' successors and permitted assigns.
8.4. Export Regulation. The SaaS Services and documentation, including any related technical data included with, or contained in, the SaaS Services and documentation, and any products utilizing the SaaS Services and documentation or any such related technical data (collectively, "Regulated Items") may be subject to US and Canadian export and re-export control laws and regulations, including but not limited to the Export Administration Regulations, the International Traffic in Arms Regulations and Canada’s Export and Import Permits Act. Client will not, and will not permit any third parties to, directly or indirectly, export, re-export or release any Regulated Items to any jurisdiction or country to which, or any party to whom, the export, re-export or release of any Regulated Items is prohibited by applicable federal or foreign law, regulation or rule. Client will be responsible for any breach of this Section 8.4 by its, and its successors' and permitted assigns', affiliates (including any Client subsidiary), employees, officers, directors and agents.
8.5. Force Majeure. If Roche is unable to perform any of its obligations under this Agreement because of severe weather, natural disasters, acts of God, riots, wars, theft, governmental action, or other events beyond its reasonable control, then Roche is relieved from performance of such obligations to the extent, and for the duration, that such performance is prevented by such events.
8.6. Counterparts. This Agreement may be executed by the parties hereto in separate counterparts, each of which when so executed and delivered shall be deemed an original, but all such counterparts shall together constitute one and the same Agreement. The parties agree that execution of this Agreement by exchanging facsimile or PDF signatures shall have the same legal force and effect as the exchange of original signatures.
ROCHE DIAGNOSTICS CORPORATION ROCHE NAVIFY TUMOR BOARD SOLUTION EVALUATION AGREEMENT
This Roche NAVIFY Tumor Board Solution Evaluation Agreement (“Agreement”) contains the terms and conditions upon which Roche Diagnostics Corporation (“Roche”) makes available to Client the NAVIFY Tumor Board Solution for Client to evaluate and provide feedback to Roche (for example, feedback on usability and functionality). In this Agreement “Client” means the company or entity that has entered into this Agreement with Roche and is listed on the signature page hereto, and “Roche” means Roche Diagnostics Corporation, and “party and “parties” means Client and/or Roche, as the context requires. This Agreement will not become effective and binding upon Roche unless and until accepted (“Effective Date”), in writing below, by an authorized representative in Indianapolis, IN.
Terms and Conditions
Roche and Client agree as follows:
1. Definitions
“De-Identified Data” means information (or any portion thereof) that (a) has been the subject of reasonable efforts to de-identify, aggregate and/or anonymize such data such that no individual, entity or particular record can be identified, or (b) is individually identifiable health information that has been de-identified in compliance with the de-identification standards set forth in 45 C.F.R. § 164.514(b) such that it is no longer Protected Health Information.
“Evaluation Term” means the ninety (90) day period starting on the Effective Date.
“HIPAA” means the Health Insurance Portability and Accountability Act of 1996, as amended by the Health Information Technology for Economic and Clinical Health Act of 2009 (“HITECH”) and their implementing regulations.
“NAVIFY Tumor Board Solution” means Roche’s cloud-based software-as-a-service solution that aggregates information from disparate sources and provides a platform to visualize contextual patient information in a single application to accommodate the workflow of the specialists on a patient’s clinical team (for example, oncologist, pathologist, radiologist, surgeon, etc.), future versions of which may include clinical decision support functions or applications.
“Protected Health Information” has the meaning set forth under HIPAA at 45 C.F.R. §160.103.
“Territory” means the United States of America.
2. NAVIFY Tumor Board Solution
2.1. NAVIFY Tumor Board Solution. Subject to the terms and conditions of this Agreement, during the Evaluation Term Roche will provide Client access to the Roche NAVIFY Tumor Board Solution, made available through cloud computing infrastructure selected by Roche and managed using third parties (the “Services”). Subject to Sections 2.2 and 3 and the other conditions of this Agreement, Roche grants to Client a non-exclusive, revocable, non-transferable, non-assignable, royalty-free license (without the right to sublicense) in the Territory during the Evaluation Term for Client’s employees and contractors (including physicians and other health care providers) (“Authorized Users”) to access and use the Roche NAVIFY Tumor Board Solution, to aggregate and display solely De-Identified Data for purposes of evaluating the Roche NAVIFY Tumor Board Solution. Roche may, from time to time without prior notice to Client, add, delete or change the features or functionality of the Services. Roche owns and retains all right, title and interest in and to the Services.
2.2. Authorized Users and Restrictions. Client will be responsible for all the acts and omissions of all Authorized Users (including without limitation any violation of Sections 2.1 or 3 or this Section 2.2 by an Authorized User) as if they were Client’s own acts or omissions. Each Authorized User will be provided unique authentication credentials, which may only be used by the single Authorized User to whom such credentials
U.S. EVALUATION (DE-IDENTIFIED DATA) TEMPLATE
have been assigned by or on behalf of Roche. Client is responsible for all use of the Roche NAVIFY Tumor Board Solution by any person using the authentication credentials assigned to Authorized Users, even if unauthorized by Client. Roche may deactivate any authentication credentials at any time for any suspected unauthorized use or any misuse of the Services. Client shall immediately notify Roche upon any loss, use or unauthorized disclosure, or other compromise of an Authorized User’s authentication credentials. Client and all Authorized Users (including Client employees and contractors) shall abide by all applicable laws.
3. De-Identified Data Only
3.1. De-Identified Data Only. Client must not, and must not permit any third party to, upload or process any identifiable patient data (including Protected Health Information) using the NAVIFY Tumor Board Solution or any computing infrastructure used in connection with the Services.
4. Termination and Suspension
4.1. Term. The term of this Agreement starts on the Effective Date and continues until the expiration of the Evaluation Term, unless terminated earlier in accordance with the terms and conditions of this Agreement.
4.2. Termination and Suspension. Roche may at its option suspend access to the Services or terminate this Agreement if: (i) Client or an Authorized User or any third party engages in activities that Roche reasonably deems a risk to the security or integrity of Roche, the Services or any data, or that are prohibited pursuant to this Agreement; (ii) Client fails to comply with any of the terms and conditions of this Agreement; or
- in Roche’s reasonable opinion it is required to do so by law. In each case, Roche shall provide prior notice if practicable, and otherwise prompt notice after the fact.
5. Disclaimers
5.1. Disclaimers. THE SERVICES ARE PROVIDED “AS IS” AND WITHOUT ANY EXPRESS OR IMPLIED REPRESENTATIONS OR WARRANTIES OF ANY KIND, INCLUDING ANY REPRESENTATIONS OR WARRANTIES REGARDING ACCURACY, OPERABILITY, USE, TITLE, NON-INFRINGEMENT, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, AND EACH PARTY HEREBY DISCLAIMS ALL SUCH REPRESENTATIONS AND WARRANTIES. WITHOUT LIMITING THE FOREGOING, ROCHE MAKES NO REPRESENTATION OR WARRANTY, EXPRESS OR IMPLIED, THAT THE SERVICES OR THEIR USE WILL BE SECURE, UNINTERRUPTED OR ERROR-FREE. BOTH PARTIES ACKNOWLEDGE THAT THEY HAVE NOT ENTERED INTO THIS AGREEMENT IN RELIANCE UPON ANY WARRANTY OR REPRESENTATION. IN NO EVENT SHALL ROCHE BE DEEMED TO BE ENGAGED, DIRECTLY OR INDIRECTLY, IN THE PRACTICE OF MEDICINE OR THE DISPENSING OF MEDICAL SERVICES, NOR SHALL IT BE RESPONSIBLE OR LIABLE FOR ANY MEDICAL INTERPRETATION, JUDGMENT, OR DECISIONS (DIAGNOSTIC, CLINICAL, OR OTHERWISE) MADE BY OR ON BEHALF OF CLIENT OR AUTHORIZED USERS.
6. LIMITATION OF LIABILITY
6.1. Damages; Aggregate Liability. ROCHE IS NOT LIABLE TO CLIENT ARISING OUT OF OR IN RELATION TO THIS AGREEMENT, INCLUDING WITHOUT LIMITATION FOR ANY DAMAGES OF ANY KIND (INCLUDING WITHOUT LIMITATION ANY DIRECT, INDIRECT,
SPECIAL, PUNITIVE, EXEMPLARY, INCIDENTAL OR CONSEQUENTIAL DAMAGES) OR ANY LOST PROFITS, LOST REVENUES, OR LOST GOODWILL, EVEN IF ROCHE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE FOREGOING LIMITATIONS AND EXCLUSIONS OF LIABILITY IN THIS AGREEMENT APPLY TO ANY LIABILITY HOWEVER ARISING, INCLUDING WHETHER BASED IN CONTRACT, TORT, NEGLIGENCE, OR STRICT LIABILITY.
6.2. Acknowledgment. THE PARTIES ACKNOWLEDGE THAT ROCHE WOULD NOT ENTER INTO THIS AGREEMENT WITHOUT THE FOREGOING LIMITATIONS OF LIABILITY AND DISCLAIMERS.
7. Confidentiality
7.1. Where the Parties have entered into a separate confidentiality or nondisclosure agreement (an “NDA”), such NDA shall govern the exchange of “Confidential Information” (as such term is defined in such NDA) between the Parties under this Agreement, and is incorporated herein by reference.
8. Miscellaneous
8.1. Governing Law. This Agreement is governed by the laws of the State of Indiana, without regard to conflict of law rules that would apply the laws of a different jurisdiction. The UN Convention on Contracts for the International Sale of Goods and Uniform Computer Information Transactions Act (UCITA) will not apply to this Agreement. The parties may bring any disputes arising out of or related to this Agreement non-exclusively in a court located in Marion County, Indiana and submit to the personal jurisdiction of such courts. Parties expressly waive their rights to a trial by jury.
8.2. Entire Agreement; Amendment. This Agreement supersedes all prior discussions and writings regarding (and constitutes the entire agreement between the parties with respect to) the subject matter of this Agreement. The parties may only amend this Agreement in writing and signed by duly authorized representatives of the parties.
8.3. Assignment. Neither party will assign, delegate or otherwise transfer (whether voluntarily, by operation of law or otherwise) this Agreement, or any of its rights or obligations under this Agreement, without the prior written consent of the other party; provided, however, that Roche may assign this Agreement without Client’s written consent to an affiliate, or to any entity with which Roche merges or consolidates or to which Roche sells all or substantially all of its assets. Any attempted assignment in violation of this Section will be void and without effect.
Subject to the foregoing, this Agreement will benefit and bind the parties' successors and permitted assigns.
8.4. Export Regulation. The SaaS Services and documentation, including any related technical data included with, or contained in, the SaaS Services and documentation, and any products utilizing the SaaS Services and documentation or any such related technical data (collectively, "Regulated Items") may be subject to US export control laws and regulations, including the Export Administration Regulations and the International Traffic in Arms Regulations. Client will not, and will not permit any third parties to, directly or indirectly, export, re-export or release any Regulated Items to any jurisdiction or country to which, or any party to whom, the export, re-export or release of any Regulated Items is prohibited by applicable federal or foreign law, regulation or rule. Client will be responsible for any breach of this Section 8.4 by its, and its successors' and permitted assigns', affiliates (including any Client subsidiary), employees, officers, directors and agents.
8.5. Force Majeure. If Roche is unable to perform any of its obligations under this Agreement because of severe weather, natural disasters, acts of God, riots, wars, theft, governmental action, or other events beyond its reasonable control, then Roche is relieved from performance of such obligations to the extent, and for the duration, that such performance is prevented by such events.
8.6. Counterparts. This Agreement may be executed by the parties hereto in separate counterparts, each of which when so executed and delivered shall be deemed an original, but all such counterparts shall together constitute one and the same Agreement. The parties agree that execution of this Agreement by exchanging facsimile or PDF signatures shall have the same legal force and effect as the exchange of original signatures.
MOLECULARMATCH END USER LICENSE AGREEMENT (EULA)
MolecularMatch End User License Agreement (EULA) MOLECULARMATCH, INC.
TERMS AND CONDITIONS
IMPORTANT: PLEASE READ BEFORE USING OR OTHERWISE ACCESSING THE MOLECU- LARMATCH, INC. ("MOLECULARMATCH") SERVICE ("SERVICE"). BY USING THE SERVICE, LICENSEE IS UNCONDITIONALLY CONSENTING TO BE BOUND BY AND IS BECOMING A PARTY TO THIS LICENSE AGREEMENT ("AGREEMENT") WITH MOLECULARMATCH.
1. SERVICE LICENSE GRANT.
Subject to the terms of this Agreement, MolecularMatch hereby grants Licensee a non-sublicensable, non-transferable, nonexclusive license to, during the term, internally use the Service ("Service") only for receiving Clinical Trials, Therapeutics and Publications (“Data”) and only in accordance with any MolecularMatch-provided documentation that accompanies it. Licensee may use the Data for its own purposes including to benefit third parties, such as patients (“Licensee Subjects”). If Licensee is provided with, or creates, any passwords or other access credentials it will not allow any third party to use such passwords/credentials.
2. LICENSE RESTRICTIONS.
Except as expressly and unambiguously permitted by this Agreement, Licensee shall not, nor permit anyone else to, directly or indirectly: (i) sell, license, sub-license, copy, modify, distribute or otherwise transfer in whole or in part the Service; (ii) reverse engineer, disassemble, decompile or otherwise attempt to discover the source code or structure, sequence and organization of the Service (except where the foregoing is expressly prohibited by applicable local law, and then only to the extent so prohibited); (iii) rent, lease, or use the Service for timesharing or service bureau purposes, provide, disclose, divulge or make available to, or permit use of the Service in whole or in part by or for, any third party without MolecularMatch’s prior written consent; or (iv) use the Services to help develop any competitive products or services. To the extent the Service is being provided pursuant to an evaluation agreement with MolecularMatch, the Service will only be used for internal evaluation purposes (including, the Data will only be used for Licensee’s own internal reference and not disclosed to any third party). Licensee shall maintain and not remove or obscure any proprietary notices on the Service. As between the parties, title, ownership rights, and intellectual property rights in and to the Service, and any copies or portions thereof, shall remain in MolecularMatch. Licensee understands that MolecularMatch may modify or discontinue offering the Service at any time. Licensee is not granted any rights to any trademarks or service marks of MolecularMatch. MolecularMatch retains all rights not expressly granted to you in this Agreement. This Agreement does not give Licensee any rights not expressly granted herein.
3. CONFIDENTIALITY.
All information disclosed by MolecularMatch to Licensee that Mo- lecularMatch identifies as confidential, or that Licensee should otherwise reasonably under- stand to be confidential, shall be MolecularMatch’s “Confidential Information”. Confidential Information will not be disclosed to any third party or used for any purpose other than for the purposes of this Agreement. The foregoing restrictions will not apply to the Data or any other information that is generally available to the public without the fault of Licensee.
4. SERVICE LEVELS.
MolecularMatch will provide Licensee with the service levels set forth in this Section 4. The Service shall be at minimum “Available” (meaning the Service operates without any substantial defect or error) to Licensee ninety-eight percent (98%) of the time in any calendar month (excluding Permitted Downtime). Downtime is calculated monthly on a minute-by-minute basis. As such, “Monthly Uptime Percentage” means total number of minutes in a calendar month minus the number of minutes of downtime that have occurred in a calendar month, divided by total number of minutes in a calendar month. “Permitted Down- time” means the number of minutes in the month during which the Service is not Available as a result of (i) planned maintenance, (ii) unavailability of content from sources used to provide the MolecularMatch Services outside of MolecularMatch’s control or (iii) interruptions that are outside of MolecularMatch’s reasonable control. Any performance issues in connection with the Services shall be communicated via Roche Molecular Systems, Inc. or any of its respective affiliates (hereinafter “Roche”) according to the agreement between Licensee and Roche. Roche will clarify any such performance issue with MolecularMatch and MolecularMatch shall use commercially reasonable efforts to resolve any performance issue.The service levels do not apply to any performance issues that are: (i) caused by factors out- side of MolecularMatch's reasonable control; (ii) that resulted from any actions or inactions of Licensee or any third parties; or (iii) that resulted from any Licensee equipment and/or third party equipment.MolecularMatch Service system status and performance can be viewed at: https://status.molecularmatch.com.
5. FEES; PAYMENT TERMS.
Any fees payable by Licensee with respect to the Services will be paid directly to Roche,
6. LIMITED WARRANTY.
MolecularMatch warrants to Licensee only that it will use commercially reasonable efforts to make the Service available on a 24/7 basis in accordance with the service level specified in Section 4 (subject to downtime for scheduled maintenance, emergency maintenance and matters beyond MolecularMatch’s reasonable control). Licensee's exclusive remedy, and MolecularMatch's sole liability, will be to repair or replace unavailability in the Service. Notwithstanding the foregoing, there is no warranty to the extent the Service is provided on an evaluation basis.
7. WARRANTY DISCLAIMER.
EXCEPT AS EXPRESSLY SET FORTH IN SECTION 6, MOLECULARMATCH AND ITS SUPPLIERS PROVIDE THE SERVICE "AS IS" AND WITHOUT WARRANTY OF ANY KIND, AND HEREBY DISCLAIM ALL EXPRESS OR IMPLIED WARRANTIES WITH RESPECT TO THE SERVICE, THE DATA AND ANY OTHER SUBJECT MATTER OF THIS AGREEMENT, INCLUDING, WITHOUT LIMITATION, THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. LICENSEE ACKNOWLEDGES THAT THE DATA IS OB- TAINED FROM THIRD PARTY SOURCES (SUCH AS PUBLICLY AVAILABLE SOURCES) AND, THERE- FORE, MOLECULARMATCH MAKES NO WARRANTIES AS TO ITS ACCURACY OR THE BENEFITS OR RESULTS THAT MAY COME FROM UTILIZING THE DATA. THIS DISCLAIMER OF WARRANTY CONSTITUTES AN ESSENTIAL PART OF THIS AGREEMENT. SOME STATES DO NOT ALLOW LIMI- TATIONS ON HOW LONG AN IMPLIED WARRANTY LASTS SO THE FOREGOING LIMITATIONS MAY NOT APPLY TO LICENSEE.
8. LIMITATION OF LIABILITY.
TO THE EXTENT NOT PROHIBITED BY LAW, IN NO EVENT SHALL MOLECULARMATCH (OR ITS LICENSORS OR OTHER PROVIDERS) BE LIABLE WITH RE- SPECT TO THE SERVICE, THE DATA OR ANY SUBJECT MATTER OF THIS AGREEMENT UNDER CONTRACT, TORT, STRICT LIABILITY, NEGLIGENCE OR ANY OTHER LEGAL THEORY FOR (I) ANY INCIDENTAL, SPECIAL, INDIRECT OR CONSEQUENTIAL DAMAGES, LOST PROFITS, LOSS OF DATA, BUSINESS INTERRUPTION, HOWEVER CAUSED, EVEN IF MOLECULARMATCH HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, (II) ANY AMOUNT IN EXCESS, IN THE AGGREGATE, OF THE AMOUNTS PAID BY LICENSEE FOR THE SERVICE IN THE PRECEDING SIX (6) MONTHS (OR, IF NO AMOUNTS HAVE BEEN PAID, SUCH AMOUNT SHALL BE US$1,000.00), (III) THE COST OF SUBSTITUTE SERVICES OR DATA OR (IV) MATTERS BEYOND ITS REASONABLE CONTROL. LICENSEE ACKNOWLEDGES THAT THE DATA IS OBTAINED FROM THIRD PARTY SOURCES (SUCH AS PUBLICLY AVAILABLE SOURCES) AND, THEREFORE, MOLECULARMATCH SHALL HAVE NO LIABILITY WITH RESPECT TO ITS ACCURACY OR THE BENEFITS OR RESULTS THAT MAY COME FROM UTILIZING THE DATA. THE FOREGOING LIMITATIONS WILL APPLY EVEN IF THE ABOVE STATED REMEDY FAILS OF ITS ESSENTIAL PURPOSE. SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OF LIABILITY FOR PERSONAL INJURY, OR OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THIS ABOVE LIMITATION MAY NOT APPLY TO LICENSEE.
9. TERM AND TERMINATION.
This Agreement will survive for the term agreed to by Licensee and Roche during the procurement process (such as an annual, subscription-based term). Upon termination of this Agreement for any reason, Licensee shall promptly return to MolecularMatch all Confidential Information, and shall, if requested by MolecularMatch, so certify to MolecularMatch that such actions have occurred. Sections 2, 3, 6, 7, 8, 9 and 10, as well as all outstanding payment obligations to Roche, shall survive termination of this Agreement.
10. MISCELLANEOUS.
This Agreement represents the complete agreement concerning the Service between the parties, to the exclusion of any pre-printed or contrary terms of any Licensee purchase order (or similar document), and supersedes all prior agreements and representations between them; provided, however, that if there is already a mutually signed agreement between MolecularMatch and Licensee (not including any Licensee purchase order or similar document) covering Licensee's license to use the Service, then the express terms of that signed agreement will govern to the extent they are expressly contrary to this Agreement. This Agreement may be amended only by a writing executed by both parties. If any provision of this Agreement is held to be unenforceable for any reason, such provision shall be reformed only to the extent necessary to make it enforceable. The failure of MolecularMatch to act with respect to a breach of this Agreement by Licensee or others does not constitute a waiver and shall not limit MolecularMatch's rights with respect to such breach or any subsequent breaches. This Agreement is personal to Licensee and may not be assigned or transferred for any reason whatsoever without MolecularMatch's consent and any action or conduct in violation of the foregoing shall be void and without effect. MolecularMatch expressly reserves the right to assign this Agreement and to delegate any of its obligations hereunder. This Agreement shall be governed by and construed under Texas law as such law applies to agreements between Texas residents entered into and to be performed within Texas, without regard to the Uniform Computer Information Transactions Act or the United Nations Convention for the International Sale of Goods. Without limiting MolecularMatch's right to seek injunctive or other equitable relief in court, either party may elect (by written notice given prior filing a complaint or, in the case of the defendant, prior to answering a complaint) to resolve a dispute by binding arbitration in the English language in Houston, Texas under the Rules and Procedures of the Judicial Arbitration and Mediation Service, Inc. (“JAMS”); the decision of the arbitrator will be enforceable in any court. To the extent JAMS Streamlined Rules are available they will be used. The party prevailing in any dispute under this Agreement shall be entitled to its costs and legal fees. Subject to the foregoing arbitration provision, all disputes will be subject to the sole and exclusive jurisdiction of the state and Federal courts located in Houston, Texas.
