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Terms of Service for Ovation Diagnostic (OvDx)

Last updated: April 15, 2019

1. TERMS OF SERVICE

Thank you for using Ovation Diagnostic (OvDx)!

Acceptance. Ovation.io, Inc. (Ovation) owns and operates the websites *.ovation.io and *.labtests.io (collectively, the Site) and the Platform and Ovation Diagnostic (OvDx or the Service, as defined below). Your access to the Site and Platform and all other use of the Service is subject to acceptance without modification of all of the terms and conditions contained herein (Terms of Service). The Terms of Service shall also be deemed to include all other operating rules, conditions, policies and procedures that are referred to below or that may otherwise be published or implemented by Ovation, from time to time, within the Platform (collectively, Policies), including without limitation, the Privacy Policy and Business Associate Agreement.

IF YOU ARE ACCESSING THE PLATFORM AND USING THE SERVICE ON BEHALF OF, FOR THE BENEFIT OF OR UNDER AN ACCOUNT ESTABLISHED BY ANY CUSTOMER, THEN YOU ACKNOWLEDGE AND AGREE THAT: YOU ARE ALSO BOUND BY ALL OTHER TERMS AND CONDITIONS THAT ARE APPLICABLE TO THAT CUSTOMER (WHETHER SET FORTH IN THESE TERMS OF SERVICE OR IN ANY CONTRACT BETWEEN THAT CUSTOMER AND OVATION); AND THAT IT IS YOUR RESPONSIBILITY TO IDENTIFY, UNDERSTAND AND COMPLY WITH ALL SUCH OTHER TERMS AND CONDITIONS.

IF YOU DO NOT AGREE TO ALL OF THESE TERMS OF SERVICE, OR IF YOU ARE NOT ELIGIBLE OR AUTHORIZED TO AGREE TO THESE TERMS OF SERVICE, THEN DO NOT REGISTER FOR, DOWNLOAD, ACCESS OR USE THE SERVICE. DOWNLOADING ANY APP, COMPLETING OUR REGISTRATION PROCESS OR OTHERWISE ACCESSING OR USING THE PLATFORM OR ANY OTHER PART OF THE SERVICE WILL CONSTITUTE ACCEPTANCE OF, AND CREATE A LEGALLY ENFORCEABLE CONTRACT UNDER WHICH YOU AGREE TO BE BOUND BY, ALL OF THE TERMS OF SERVICE, WITHOUT MODIFICATION.

Updates. Ovation reserves the right, at its sole discretion, to update, modify or replace the Terms of Service (including any Policy), in whole or in part, at any time. Ovation will use reasonable efforts to notify you of any material change in advance of the effective date of any change. Change notices may be communicated by postings via the Platform, email or otherwise. In any case, you should periodically check the Policies and other Terms of Service for changes. Continued access or use of the Service following any change to the Terms of Service constitutes your acceptance of those changes. The Terms of Service may not otherwise be amended, as they apply to you, except by a written agreement executed by you and Ovation. Ovation may modify, suspend or terminate the Service (including without limitation, access to the Platform), in whole or in part, at any time. In the event that Ovation suspends or terminates the Service, Ovation will use commercially reasonable efforts to continue to operate the Service in its native form (Native Operational Window) for a reasonable period of time (not to exceed 6 months) in an effort to provide you with time to plan your transition away from the Service.

Eligibility. The Service is intended by Ovation to be made available only to Users who are at least 18 years old or the age of majority in your jurisdiction, whichever age is older. If you do not qualify, then you are prohibited from accessing, registering for, uploading, downloading or using any aspect of the Service. Ovation will not collect personally identifiable information from any person who is actually known to us to be under the age of 13. For the avoidance of doubt, Service Data (as defined below) may include information about individuals under the age of 13. If we become aware that a person under 13 has provided personally identifiable information, Ovation will take steps to remove such information and terminate that individual's account, access and use of the Service. Ovation may refuse to offer or continue offering the Service to any person or entity, and may change its eligibility criteria from time to time.

2. DEFINITIONS

Analytics means statistics, metrics, abstractions, rules, models, collections, combinations and other analyses that are based on or derived from the Service or Service Data (including without limitation, measurements of Service usage and performance), which are developed in a manner that does not disclose the identity of Customer, any User or any individual identified in the Service Data and that does not disclose any Service Data except in a de-identified (in accordance with 45 CFR §164.514(a)-(c)) or aggregated form (combined with other data, results or measurements).

Business Associate means a "business associate," as such term is defined under HIPAA.

Contract means the sales quotation, proposal, order form, sales confirmation or other similar writing provided by Ovation or its authorized distributor (as the case may be) that describes the Service, term and prices being offered to Customer, whichever is most current (or the corresponding invoice, if no such other writing exists).

Covered Entity means a "covered entity," as such term is defined under HIPAA.

Customer means any laboratory, company, or other organization or entity that has entered into an agreement with Ovation to establish an account to use and pay for the Service.

Deliverable means any work product that is delivered to Customer, and which results from Work performed by Ovation.

Feedback means ideas, assessments, suggestions and other feedback related to the function or performance of the Platform, Service and other Ovation IP (including performance and benchmarking results related to the Service).

HIPAA means the Health Insurance Portability and Accountability Act of 1996 and its implementing regulations, including the Standards for the Privacy of Individually Identifiable Health Information (Privacy Rule) (45 CFR Part 160 and Subparts A and E of Part 164) and the Security Standards for the Protection of Electronic Protected Health Information (Security Rule) (45 CFR Part 160 and Subparts A and C of Part 164), and the Health Information Technology for Economic and Clinical Health Act (Title XIII, Subtitle D) and its implementing regulations (HITECH).

Ovation IP means the Site, Platform, Service, Analytics, Deliverables, Ovation Confidential Information, access credentials and all other Service-related documentation, data, know-how and information provided by Ovation.

PHI means electronic and other "protected health information," as such term is defined under HIPAA; provided PHI is understood to mean only the PHI that Ovation creates, receives, maintains or transmits in providing the Service or Work for Customer.

Platform means the technology platform developed and/or used by Ovation in providing the Service (including all related ideas, concepts, inventions, systems, hardware, software, interfaces, dashboards, tools, utilities, content, templates, forms, samples, techniques, methods, processes, algorithms, know-how, trade secrets and other technologies, implementations and information), and all corrections, improvements and extensions thereto.

Results means the charts, graphs, data, messages, reports and similar work products, if any, that are generated by Ovation, which are based on Service Data and displayed, delivered or otherwise made available to Customer or Users as a result of using the Service.

Service means Ovation's application for laboratory, information, and data management (commonly referred to as a laboratory information management system) that is made available under these Terms of Service, as such application may be hosted in a cloud environment, branded and provided on a software-as-a-service basis from time to time by Ovation. Among other things, the Service permits Customer and its Users to organize, track and share scientific, technical and/or clinical data. Ovation may use online hosting services (such as, for example, Amazon Web Services) in connection with providing the Service (including without limitation, for the purposes of processing and storing Service Data).

Service Data means non-public information and data, including, without limitation, PHI, provided by or collected or learned from Customer and Users in connection with their use of the Service (including without limitation, scientific, technical and clinical data, and files and metadata).

Statement of Work means any written work statement that references these Terms of Service and that is acceptable to and executed by Customer and Ovation, and which will include other information related to the Work (as the term is defined in Section 3) (such as, for example, task descriptions, schedules and payments).

Third Party Data means Service Data that is received from another User.

User means each of the named individuals who is specifically identified by Customer for onboarding and use of the Service under Customer's Account.

3. SERVICE

License. So long as the Service is provided to Customer and subject to compliance with all Terms of Service, Ovation will make the Service available to Customer and hereby grants to Customer a nonexclusive right and license: to access and use the Service through a web-based interface; and to permit identified Users to do the same under its Account. The Ovation IP may be used only in unmodified form and solely for research and scientific purposes, clinical sample management and workflow management and Customer's internal business purposes (which may include providing clinical laboratory services to third parties). Customer's and Users' access and use of the Ovation IP shall comply with all other conditions that may be set forth in these Terms of Service or the Contract (such as, for example, restrictions regarding the number or identity of authorized Users, data formats, size limits, time limits or prohibited uses). From time to time, Customer and Users may (at their discretion) provide Feedback to Ovation.

Account. Ovation will provide Customer with access credentials (and/or a mechanism that permits Customer to specify access credentials) as needed to identify, authorize and designate roles for Users who will have rights (as appropriate to their roles) to establish, administer, configure, manage and use the Service through a Customer-specific account (Account). Customer and Users are responsible for maintaining the confidentiality of all Account information (including access credentials). Customer agrees to be liable for all activities under its Account. Customer and Users agree to keep all Account information up-to-date and to notify Ovation immediately of any unauthorized use of their Account. Customer shall promptly notify Ovation of Users who are no longer permitted to access and use the Service under Customer's Account. Customer shall implement and comply with reasonable policies and methods to confirm and verify the actual identity of Users that will be registered to access and use the Service under its Account.

Resources. As between the parties, Customer and Users are responsible for ensuring the accuracy and completeness of Service Data that they provide, and for acquiring all: (a) consents, authorizations, permissions and other rights necessary for Ovation to receive, access, copy, store, process, distribute, transmit, display and use Service Data as provided in these Terms of Service; (b) servers, storage, software, databases, network and communications systems and services needed by Customer and Users to access, manage and use the Service, Service Data and Results; and (c) backup, recovery, network security and maintenance services for Customer's and Users' internal systems (collectively, the Customer Resources).

Sharing Service Data. Using the Service, Users may share Service Data with other Users, and other Users may share Third Party Data. Ovation does not review the substance of Service Data, Third Party Data or communications via the Service and does not control the use of Service Data that has been shared with other Users. Authentication of the true identity of Internet users is difficult, and so Ovation cannot and does not confirm that any User is the person or entity who they claim to be. Accordingly, Ovation makes no representation or warranty, and assumes no liability, regarding the accuracy, quality, integrity, legality, reliability or appropriateness of any Third Party Data. Customer and its Users agree to assume all risk and liability arising from (a) sharing their own Service Data (including any further distribution or use for an unintended purpose) and (b) using Third Party Data (including all results that are generated using Third Party Data).

Support Services. Using commercially reasonable efforts, Ovation will: assist Customer to access, configure, verify and commence User operation of the Service under its Account; provide ongoing technical support for the Service (telephone, email or web-based), in accordance with its standard practices during normal business hours; and endeavor to analyze and resolve material errors. Ovation has no obligation to operate or support any version of the Service other than the then current version. Ovation may charge Customer in accordance with its then current policies for support services that result from problems, errors or inquiries related to the Service Data or Customer Resources.

Additional Services. From time to time, Customer may request and Ovation may agree to provide certain additional implementation, integration, data analysis, development, training or other professional services related to the Service (Work). Ovation agrees to undertake and use commercially reasonable efforts to complete the Work as described in the corresponding Statement of Work. Ovation grants Customer a nonexclusive, nontransferable right and license (without right to sublicense) to use the resulting Deliverables solely in conjunction with authorized use of the Service, subject to the terms of these Terms of Service and other rights or restrictions set forth in the Statement of Work.

Third Party Services. Certain applications, platforms and services provided by third parties (collectively, Third Party Services) may be accessed from the Service. Third Party Services are not operated or controlled by Ovation, and Ovation shall not be responsible for the availability, accuracy or any other aspect of the content or function of Third Party Services. Additional or different terms and conditions (including without limitation, privacy and security practices) apply to the use of Third Party Services, and Customer and each User hereby agrees to comply with such terms and conditions when using Third Party Services.

Compliance. If the Service is being used in connection with Customer's provision of clinical laboratory Services, then Customer, Users and Ovation agree to comply with all federal, state and local laws, regulations and rules (including without limitation, HIPAA, the Physician Self-Referral Law (42 USC 1395nn), the federal Medicare/Medicaid Anti-Kickback Law and regulations promulgated thereunder). Without limiting the generality of the foregoing, it is neither a purpose nor requirement of these Terms of Service, the Contract or any other agreement between the parties to offer or receive any remuneration or benefit of any nature, to solicit, require, induce or encourage the referral of any patient, payment of which may be made in whole or in part by Medicare or Medicaid. No payment made or received under these Terms of Service is in return for the referral of patients or in return for the purchasing, leasing, ordering or arranging for or recommending the purchasing, leasing or ordering of any good, service, item or product for which payment may be made in whole or in part under Medicare or Medicaid.

Service Data Processing. Ovation may de-identify Service Data such that any resulting information does not disclose any individually identifiable information, except in a de-identified, including de-identified PHI, (in accordance 45 CFR § 164.514(a)-(c)) or aggregated form (combined with other data, results or measurements) (Converted Data). Ovation shall then deliver such Converted Data to Customer, and Customer shall own all rights, title, and interest in and to the Converted Data that Ovation delivers, subject to the license granted to Ovation under Section 6.

4. PAYMENTS

Fees. Customer shall pay Ovation the fees described in the Contract and each Statement of Work, in the amounts and at the times set forth therein, and as otherwise stated in these Terms of Service. Fees may be specified as being payable in advance or in arrears; fees may be fixed, contingent or variable (e.g., depending on usage factors or per sample charges); and fees may be specified on a recurring basis (e.g., subscription fees and/or usage fees, which may be payable monthly, quarterly or annually) or non-recurring basis (e.g., one-time activation fees).

Recurring Fees. Recurring fees (e.g., subscription fees and/or usage fees) must be paid by an automatic payment method (credit card or ACH bank transfer). Generally, recurring fees will be billed monthly, in arrears. Customer will receive notice (by email) of all recurring fees (whether from Ovation or from a partner of Ovation) for current billing period by the third business day of the following month. If Customer does not dispute the charges within 15 calendar days, then Ovation will process the automatic payment. Customer hereby accepts all credit card charges that comply with these Terms of Service.

Payment Terms. Unless specified otherwise, all amounts due hereunder shall be paid in full (without deduction, set-off or counterclaim) within 30 days after invoice in US dollars at Ovation's address or to an account specified by Ovation. Past due amounts shall bear a late payment charge, until paid, at the rate of 1.0% per month or the maximum amount permitted by law, whichever is less. If any payment is past due, Ovation shall have the right to take whatever action it deems appropriate (including without limitation, disabling the Account, suspending User access to the Service, requiring payment in advance or terminating the Contract pursuant to Section 10). Customer agrees to reimburse Ovation for all costs (including attorneys' fees) incurred in collecting late payments.

Taxes. All payments required by these Terms of Service are exclusive of federal, state, local and foreign taxes, duties, tariffs, levies, withholdings and similar assessments (including without limitation, sales taxes, use taxes and value added taxes), and Customer agrees to bear and be responsible for the payment of all such charges, excluding taxes based upon Ovation's net income. All amounts due hereunder shall be grossed-up for any withholding taxes imposed by any foreign government. If Customer claims exemption from any tax, then it shall furnish Ovation with a valid tax exemption certificate issued by or acceptable to the applicable taxing jurisdiction or entity.

5. CONFIDENTIALITY

Scope. The term Confidential Information means all trade secrets, know-how, inventions, software and other financial, business, scientific, clinical or technical information and data disclosed by or for a party in connection with using or providing the Service. The restrictions on use and disclosure of Confidential Information will not apply to any information or data that the receiving party can demonstrate is (a) rightfully furnished to it without restriction by a third party, (b) generally available to the public without breach of these Terms of Service or (c) independently developed by it without reliance on such information or data. For clarity, all Service Data will be treated as Customer's or User's Confidential Information, and all Feedback, Ovation IP and pricing information will be treated as Ovation's Confidential Information.

Confidentiality. Except for the specific rights granted by these Terms of Service, and except for disclosures that are necessary to comply with any legal, regulatory, law enforcement or similar requirement or investigation, the receiving party shall not access, reproduce, use or disclose any of the other party's Confidential Information without its written consent, and shall use reasonable care to protect the other's Confidential Information from unauthorized access, use and disclosure (including by ensuring that its personnel who access any Confidential Information have a need to know for the permitted purpose and are bound by written obligations that are at least as protective as these Terms of Service). Each party shall be responsible for any breach of confidentiality by its personnel (including Users, in the case of Customer). Promptly after any termination (or at the disclosing party's request at any other time), the receiving party shall, unless otherwise agreed, return all of the other's tangible Confidential Information, erase Confidential Information from any storage media and destroy information, records and materials developed therefrom (except Confidential Information stored in accordance with automated backup procedures in the ordinary course of business). Each party may disclose only the general nature, but not the specific terms, of any Contract without the prior consent of the other party; provided, Customer or Ovation may provide a copy of the Contract or otherwise disclose its terms in connection with any legal or regulatory requirement, audit, financing transaction or due diligence inquiry.

PHI. If and only if (a) Customer is a Covered Entity, (b) Customer notifies Ovation in writing that all or any part of the Service Data constitutes PHI and (c) Ovation qualifies as a Business Associate of Customer as a result of the Service and/or Work provided hereunder, then the terms and conditions in the Business Associate Agreement shall apply as of the date all such conditions are met (BAA Effective Date). Otherwise, the Business Associate Agreement shall not have any force or effect.

Compelled Disclosures. These restrictions will not prevent either party from complying with any law, regulation, court order, demand by law enforcement or other legal requirement or investigation that purports to compel disclosure of any Service Data or other Confidential Information. The receiving party will promptly notify the disclosing party upon learning of any such legal requirement, and cooperate with the disclosing party in the exercise of its right to protect the confidentiality of the Confidential Information before any tribunal or governmental agency.

6. PROPRIETARY RIGHTS

Customer and Users. Customer and each User hereby grants Ovation a nonexclusive, royalty-free, worldwide right and license: to access, copy, store, process, distribute, transmit, display and use their Service Data to generate Results and otherwise to provide the Service to Customer and all Users under Customer's Account; to copy, store, process and use Service Data to develop, improve, extend and test the Platform and Service; to design, develop, distribute, commercialize and use Analytics in a manner that does not disclose the identity of Customer, any User or any individual identified in the Service Data. Customer and each User hereby grants and agrees to grant an irrevocable, perpetual, worldwide, royalty-free, right and license: (i) to freely access, copy, store, process, distribute, transmit, display Converted Data; (ii) use and disclose Converted Data for Ovation's business purposes; (iii) to copy, store, process and use Converted Data to develop, improve, extend and test the Platform and Service; and (iv) to copy, store, process and use Converted Data to design, develop, distribute, commercialize and use Analytics. Ovation's rights and license to use the Converted Data shall be exclusive, except that Customer may use the Converted Data solely for its internal business purposes. Customer and each applicable User hereby grants to Ovation all necessary permissions (including without limitation, any permission required under HIPAA) for Ovation to engage and work with trusted third parties to provide the Service, and Customer and each applicable User hereby agrees to secure any necessary third party permissions and individual authorizations. Except for the foregoing, no other right, license or option is granted, no other use is permitted and Customer or the applicable User (as the case may be) owns and retains all rights, title and interests (including without limitation, patent rights, copyright rights, trade secret rights and trademark rights) in and to the Results, Service Data, and Converted Data. Unless and only to the extent expressly agreed otherwise by Ovation and Customer in writing, Customer shall not be entitled to any revenue, royalties, or other compensation for Ovation's own use or disclosure of Converted Data. For the avoidance of doubt, Analytics shall not be understood to be the same as or overlap with Converted Data, as Ovation owns and retains all rights, title and interests (including without limitation, patent rights, copyright rights, trade secret rights and trademark rights) in and to the Analytics, and Customer owns and retains all rights, title and interests to Converted Data.

Ovation. Except for the limited rights and licenses expressly granted hereunder, no other right, license or option is granted, no other use is permitted and (as between the parties) Ovation owns and retains all rights, title and interests (including without limitation, patent rights, copyright rights, trade secret rights and trademark rights) in and to the Ovation IP. Customer agrees that Ovation is free to use the Feedback, and all generalized knowledge, expertise know-how and technologies related to or acquired in providing the Service, in any manner for all purposes (including developing new or improved products and services).

Restrictions. Customer and Users shall not, directly or indirectly (a) use any of Ovation's Confidential Information to create any software, platform, service or documentation that is similar to any of the Ovation IP, (b) attempt to access any Platform component or to disassemble, decompile, reverse engineer or use any other means to discover any source code or underlying organization, structures, ideas or algorithms within the Platform (except and only to the extent these restrictions are expressly prohibited by applicable statutory law) or to circumvent any technological measure that controls access thereto, (c) encumber, sublicense, distribute, transfer, rent, lease, lend, access or use any Ovation IP in any time-share, service bureau or similar arrangement, (d) copy, adapt, combine, create derivative works of, translate, localize, port or otherwise modify any Ovation IP, (e) use or allow the transmission, transfer, export, re-export or other transfer of any product, technology or information it obtains or learns using the Service (or any direct product thereof) in violation of any export control or other laws and regulations of the United States or any other relevant jurisdiction or (f) permit any third party to do any of the foregoing.

Third Party Software. The Platform may interface, inter-operate, link or be delivered with or include software or other technology (In-Licensed Code) that is licensed from and owned by third parties (In-Licensors), the use of which may be subject to additional or different terms set forth in the applicable open source or proprietary license (In-License). Customer and each User unconditionally agrees that the In-Licensors (a) make no representation or warranty concerning the In-Licensed Code or Ovation IP, (b) have no obligation or liability as a result of these Terms of Service and (c) are intended third party beneficiaries of these Terms of Service in respect of their respective In-Licensed Code. Upon specific written request received prior to the third anniversary of Acceptance, Ovation will make available the source code for In-Licensed Code, but only if doing so is required by the applicable In-License.

7. LIMITED WARRANTIES AND DISCLAIMERS

Customer and Users. Customer and each User warrants to Ovation that the access, transfer, collection, processing, distribution and use of Service Data and Converted Data as described in these Terms of Service complies with and will not violate applicable laws, regulations, rules or proprietary rights (including without limitation, professional and scientific standards, copyrights and rights regarding privacy, publicity and defamation). Customer and each User warrants to Ovation that the Service Data it provides is accurate and complete and that Customer and each User has obtained all consents, authorizations, permissions and other rights necessary for Ovation to receive, access, copy, store, process, distribute, transmit, display and use Service Data and Converted Data as provided in these Terms of Service.

Ovation. Ovation warrants to Customer that all Work will be provided in a professional manner and that it will use commercially reasonable efforts to maintain the Service available to Users at all times, subject to downtimes for scheduled maintenance, upgrades, repairs, security issues and emergency outages. Ovation will not be responsible for any delay, degradation or failure in the Service resulting from or attributable to (a) unusually high usage volumes, (b) failures in Customer Resources or any third party's services, networks or systems, (c) Customer's or any User's or third party's negligence, acts or omissions, (d) any force majeure or other cause beyond Ovation's reasonable control or (e) unauthorized access to the Service, breach of firewalls or other hacking.

Disclaimers. EXCEPT AS EXPRESSLY SPECIFIED HEREIN, THE RESULTS, WORK, SERVICE AND OTHER OVATION IP ARE PROVIDED "AS IS" AND "AS AVAILABLE", WITHOUT REPRESENTATION OR WARRANTY OF ANY KIND. FOR CLARITY, OVATION AND ITS LICENSORS DO NOT WARRANT THAT: (A) ANY INFORMATION WILL BE TIMELY, ACCURATE, RELIABLE OR CORRECT; (B) THE WORK, SERVICE OR OTHER OVATION IP OR RESULTS WILL BE ERROR-FREE, UNINTERRUPTED, SECURE OR AVAILABLE AT ANY PARTICULAR TIME OR PLACE; (C) ANY DEFECTS OR ERRORS WILL BE CORRECTED; OR (D) THE WORK, SERVICE OR OTHER OVATION IP OR RESULTS WILL MEET CUSTOMER'S OR ANY USER'S REQUIREMENTS OR THAT ANY OUTCOME CAN BE ACHIEVED. TO THE FULLEST EXTENT PERMITTED BY LAW, OVATION HEREBY DISCLAIMS (FOR ITSELF AND ITS LICENSORS) ALL OTHER REPRESENTATIONS AND WARRANTIES, WHETHER EXPRESS OR IMPLIED, ORAL OR WRITTEN, WITH RESPECT TO THE RESULTS, WORK, SERVICE AND OTHER OVATION IP, INCLUDING WITHOUT LIMITATION, ALL IMPLIED WARRANTIES OF TITLE, NON-INFRINGEMENT, QUIET ENJOYMENT, ACCURACY, INTEGRATION, MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE AND ALL WARRANTIES ARISING FROM ANY COURSE OF DEALING, COURSE OF PERFORMANCE OR USAGE OF TRADE.

8. INDEMNIFICATION

Customer. Customer agrees to defend Ovation against any demand, suit, action or other claim by any third party (including any User under its Account) that is related to any Service Data provided by Customer or Users or any breach of Customer's or any User's obligations or warranties under these Terms of Service, and to indemnify Ovation for liabilities (as specified in settlements or judgment awards) that result from such claims.

Ovation. Ovation agrees to defend Customer and Users (Customer Indemnitees) against any demand, suit, action or other claim by any third party that the Service or any Deliverable misappropriates or infringes its intellectual property rights, and to indemnify Customer Indemnitees for liabilities (as specified in settlements or judgment awards) that result from such claims. If the Service or any Deliverable becomes or, in Ovation's opinion, is likely to become the subject of an injunction or other claim preventing its use as contemplated herein, Ovation may, at its option and expense (a) obtain the rights needed to continue providing the Service or using the Deliverable, or (b) replace or modify the Service or Deliverable without substantially compromising its principal functions. If (a) and (b) are not reasonably available, then Ovation may (c) upon written notice to Customer, terminate Customer's Account and stop providing the Service to Users, and refund to Customer any prepaid fees, pro-rated for the remainder of the prepaid period. The foregoing states the entire liability of Ovation, and Customer's and each User's exclusive remedy, with respect to any actual or alleged violation of intellectual property or proprietary rights by the Ovation IP or Work, any part thereof or their use or operation.

Exclusions. Ovation shall have no liability or obligation hereunder with respect to any claim attributable to (a) any use of the Ovation IP by Customer or any User not strictly in accord with these Terms of Service, or in an application or environment or on a platform or with devices for which it was not designed or contemplated or (b) alterations, combinations or enhancements of the Ovation IP not created by Ovation.

Conditions. The indemnifying party's obligations hereunder are conditioned on (a) the party seeking indemnification providing prompt written notice thereof and reasonable cooperation, information, and assistance in connection therewith and (b) the indemnifying party having sole control and authority to defend, settle or compromise such claim. The indemnified party may participate in the defense at its sole cost and expense. The indemnifying party will not enter into any settlement (other than for payment of money subject to its indemnity) that adversely affects the indemnified party's rights or interests without its prior written approval, not to be unreasonably withheld. The indemnifying party shall not be responsible for any settlement it does not approve in writing.

9. LIMITATION OF LIABILITY

EXCEPT TO THE EXTENT THAT ANY EXCLUSION OR LIMITATION OF LIABILITY IS VOID, PROHIBITED OR UNENFORCEABLE BY APPLICABLE LAW, AND EXCEPT FOR LIABILITIES TO THIRD PARTIES PURSUANT TO SECTION 8 (INDEMNIFICATION): IN NO EVENT SHALL OVATION (OR ITS LICENSORS), CUSTOMER OR ANY USER BE LIABLE CONCERNING THE SUBJECT MATTER OF THE CONTRACT OR THESE TERMS OF SERVICE, REGARDLESS OF THE FORM OF ANY CLAIM OR ACTION (WHETHER IN CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHERWISE), FOR ANY (A) LOSS OF DATA, LOSS OR INTERRUPTION OF USE, OR COST TO PROCURE SUBSTITUTE TECHNOLOGIES, GOODS OR SERVICES OR (B) INDIRECT, PUNITIVE, INCIDENTAL, RELIANCE, SPECIAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES, INCLUDING WITHOUT LIMITATION, LOSS OF BUSINESS, REVENUES, PROFITS OR GOODWILL; AND OVATION (AND ITS LICENSORS) SHALL NOT BE LIABLE TO CUSTOMER OR ANY USER FOR AGGREGATE DAMAGES IN EXCESS OF THE FEES IT, HE OR SHE (AS THE CASE MAY BE) PAID TO OVATION DURING THE PRIOR 12 MONTHS OR US$25.00, WHICHEVER IS GREATER; EVEN IF IT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THESE LIMITATIONS ARE INDEPENDENT FROM ALL OTHER PROVISIONS OF THESE TERMS OF SERVICE AND SHALL APPLY NOTWITHSTANDING THE FAILURE OF ANY REMEDY PROVIDED HEREIN.

FOR USERS ONLY: SOME STATES AND OTHER JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATIONS AND EXCLUSIONS MAY NOT APPLY TO YOU.

10. TERM AND TERMINATION

Term. Unless as otherwise specified in the Contract, Customer's and its Users' ability to access the Platform and use the Service shall commence on the date of Customer's acceptance of the proposal for OvDx in the Contract and continue in effect on a month-to-month basis after the Go Live date (as the term is defined in the Contract). Unless as otherwise specified in the Contract, the Contract (subject to these Terms of Service) will be extended automatically on a month-to-month basis until terminated by Customer or Ovation. Unless as otherwise specified in the Contract, Customer or Ovation may terminate the Contract by giving at least 30 days prior written notice (email being sufficient) to the other. Users may discontinue their use of the Service at any time upon giving written notice to Customer.

Termination. The Contract may be earlier terminated by either party if the other party breaches any material provision of these Terms of Service and fails to cure such breach within 30 days (10 days in the case of payment issues) after receiving written notice of such breach from the non-breaching party.

Effects of Termination. Upon any expiration or termination of the Contract, all rights, obligations and licenses of the parties shall cease, except that the following shall survive: all obligations that accrued prior to the effective date of termination (including payment obligations); all remedies for any breach of these Terms of Service; and the provisions of Sections 4 (Payments), 5 (Confidentiality), 6 (Proprietary Rights), 7 (Limited Warranties and Disclaimers), 8 (Indemnification), 9 (Limitation of Liability), 11 (General Provisions) and this Section 10. Ovation has no obligation to retain any Service Data after any expiration or termination, except that Ovation will transmit a copy of the Service Data to Customer and/or applicable User if requested in writing within 30 days after the effective date of termination.

11. GENERAL PROVISIONS

Entire Agreement. These Terms of Service (including then current Policies), together with the Contract and, if any, all Statements of Work, constitute the entire agreement, and supersede all prior negotiations, understandings or agreements (oral or written), among the parties regarding the subject matter hereof (and all past dealing or industry custom). Any additional, different or inconsistent terms on any related purchase order, even if signed by the parties hereafter, shall have no effect under these Terms of Service. In the event of any conflict or inconsistency between the terms set forth in these Terms of Service and the Contract, the terms in the Contract shall control as between Ovation and Customer. Except as expressly provided herein, no change, consent or waiver under these Terms of Service will be effective unless in writing and signed by the party against which enforcement is sought. The failure of any party to enforce its rights under these Terms of Service at any time, for any period will not be construed as a waiver of such rights, and the exercise of one right or remedy will not be deemed a waiver of any other right or remedy. If any provision of these Terms of Service is determined to be illegal or unenforceable, that provision will be limited or eliminated to the minimum extent necessary so that these Terms of Service will otherwise remain in full force and effect and enforceable. These Terms of Service are in English only, which language shall be controlling in all respects. No version of these Terms of Service in another language shall be binding or of any effect.

Governing Law. The parties' rights and obligations under the Contract and these Terms of Service shall be governed by and construed in accordance with the laws of the Commonwealth of Massachusetts, USA, without regard to its conflicts of law provisions. In the event of any conflict between US and foreign laws, regulations and rules, US laws, regulations and rules shall govern. Neither the United Nations Convention on Contracts for the International Sale of Goods nor the implementation of the Computer Information Transactions Act in any jurisdiction shall apply to these Terms of Service.

Dispute Resolution. A printed version of these Terms of Service (and any Policy) and of any notice given in electronic form shall be admissible in judicial or administrative proceedings based upon or relating to the Service, Contract or these Terms of Service (including any Policy) to the same extent and subject to the same conditions as other business documents and records originally generated and maintained in printed form. Customer, Users and Ovation agree that any claim or cause of action arising out of or related to the Service, Contract or these Terms of Service (including any Policy) must be commenced within 1 year after the claim or cause of action arose. Otherwise, such claim or cause of action is permanently barred.

Except that either party may seek an injunction or other equitable relief from any court of competent jurisdiction (as described below), all disputes between the parties arising out of or in relation to or in connection with the Service, Contract or these Terms of Service (including any Policy) shall be settled by binding arbitration in accordance with the JAMS streamlined arbitration rules and procedures then in force, by one neutral arbitrator appointed in accordance with the rules. The arbitration shall take place in Boston, Massachusetts, USA. The proceedings shall be in English, all evidence shall be in English (or translated into English) and the governing law shall be as set forth herein. The arbitrator's decision shall be in writing and shall comply with all terms and conditions in the applicable version of these Terms of Service and the Contract. The decision and award rendered shall be final and binding on all parties. The parties acknowledge and agree that the Terms of Service and any award rendered pursuant hereto shall be governed by the UN Convention on the Recognition and Enforcement of Foreign Arbitral Awards. Judgment on the award may be entered in any court of competent jurisdiction.

ANY ARBITRATION UNDER THESE TERMS OF SERVICE WILL TAKE PLACE ONLY ON AN INDIVIDUAL BASIS; CLASS ARBITRATIONS AND CLASS ACTIONS ARE NOT PERMITTED. CUSTOMER, USERS AND OVATION UNDERSTAND AND AGREE THAT BY ENTERING INTO THE CONTRACT AND THESE TERMS OF SERVICE, EACH PARTY IS WAIVING THE RIGHT TO TRIAL BY JURY AND TO PARTICIPATE IN A CLASS ACTION.

Use of the Service is not authorized in any jurisdiction that does not give effect to all provisions of the Terms of Service, including without limitation, this section.

International Use. Ovation makes no representation or warranty that the Service is appropriate or legally available for use in locations outside the United States, and accessing and using the Service is prohibited from places where doing so would be illegal. Accessing or using the Service from other locations may be done at Customer's or applicable User's own initiative and Customer or such User shall be liable for compliance with all local laws. Customer each User hereby expressly consents to Ovation's processing of Service Data in accordance with these Terms of Service. Customer and each User understands and agrees that Service Data may be stored and processed in (or transferred from) the country where it was collected and the United States, and that United States laws regarding the collection, storage, processing and onward transfer of information may be less stringent than the laws where Customer is located. Customer and each User agrees that each person who accesses or uses the Service through its Account or his/her credentials (and each person whose information is included in Service Data) has given express consent to the collection, storage, processing, transfer, distribution, display and use of his or her personal data as provided herein.

Remedies. Except as expressly specified otherwise herein, each right and remedy in these Terms of Service are in addition to any other right or remedy, at law or in equity. Each party agrees that, in the event of any breach or threatened breach of Section 5 or 6, the non-breaching party will suffer irreparable damage for which it will have no adequate remedy at law. Accordingly, the non-breaching party shall be entitled to injunctive and other equitable remedies to prevent or restrain such breach or threatened breach, without the necessity of proving actual damages or posting any bond.

Notices. All notices under these Terms of Service will be in writing, in English and delivered to the parties at their respective addresses stated herein or in the Contract (or, in the case of Users, as provided during registration), or at such other address designated by written notice. Notices will be deemed to have been duly given and effective: when receipt is electronically confirmed, if transmitted by facsimile or email; or when received, if personally delivered or sent by overnight courier or certified or registered mail, return receipt requested.

Notices to Ovation should be sent to the following address:

Ovation.io, Inc.
Attn: CEO
32 Pearl Street
Cambridge, MA 02139 USA
legal@ovation.io

Publicity. Customer hereby consents to inclusion of its name and logo in customer lists and presentation materials that may be published and distributed as part of Ovation's marketing and promotional efforts. From time to time upon request, Customer agrees to provide Ovation with reasonable cooperation and assistance in connection with other marketing efforts (such as, for example, by acting as a reference, issuing press releases and providing written or videotaped customer testimonials and case studies, with statements attributed to a named employee of Customer). Except for the foregoing or as required by any applicable law or regulation, neither Customer, User nor Ovation may issue any press release or other public announcement concerning the arrangements under these Terms of Service, or use the other party's names, trademarks or logos, without the applicable other party's prior written consent, not to be unreasonably delayed, conditioned or withheld.

Assignment. These Terms of Service and the performance contemplated hereunder are personal to each User and Users shall not have the right or ability to subcontract, delegate, assign or otherwise transfer any rights or obligations under this Agreement without the prior written consent of Customer and Ovation. The Contract, these Terms of Service and the rights and obligations therein and herein may not be assigned, in whole or in part, by Customer or Ovation without the other's prior written consent, not to be unreasonably withheld. However, without consent, Ovation may subcontract performance of all or any part of the Service or Work, and Ovation and Customer may assign these Terms of Service together with the Contract (but not separately), and all of its rights and obligations hereunder and thereunder, to any of its affiliates or to any successor to all or substantially all of its business which concerns the Contract (whether by sale of assets or equity, merger, consolidation, reorganization or otherwise). The Contract and these Terms of Service shall be binding upon, and inure to the benefit of, the successors, representatives and permitted assigns of the parties.

Force Majeure. No party shall be liable for any delay or failure in performing its obligations hereunder that arises out of any cause, condition or circumstance beyond its reasonable control.

Independent Contractors. The parties shall be independent contractors under the Contract and these Terms of Service (including under the BAA and other Policies), and nothing herein will constitute either party as the employer, employee, agent or representative of the other party, or both parties as joint venturers or partners for any purpose; provided, the foregoing is not intended to modify or limit any prior employment or other arrangement between Customer and any of the Users.

Government. Products within the Ovation IP are commercial products, developed solely at private expense and proprietary to Ovation.io, Inc. and its licensors. If Customer is an agency, department or other entity of the United States Government or if any User is accessing and using the Service on behalf of or for the benefit of any such entity, then the use, duplication, reproduction, modification, release, disclosure or transfer of Ovation IP is restricted in accordance with FAR 12.212 for civilian agencies and DFAR 227.7202 for military agencies. The Platform is "commercial computer software", the documentation is "commercial computer software documentation", and their use is further restricted in accordance with these Terms of Service.