GENERAL TERMS AND CONDITIONS FOR VENDOR AGREEMENTS FOR THE SUPPLY OF GOODS AND SERVICES TO CURRENT HEALTH
These General Terms and Conditions the (“Terms”) shall govern the relationship between Current Health, Inc. (the “Company”) and suppliers, vendors, contractors, or individuals who furnish goods and/or services to the Company (each, a “Vendor”) and shall be incorporated by reference into and made a part of any service order, work order, scope of work, or other agreement (each, an “Order”) between Current Health and a Vendor that references these Terms unless explicitly stated otherwise in such Order or in another document signed by the Company.
Current Health has developed a platform (the “Platform”) for complex, acute and specialty home-based care episodes that provides in-home monitoring, including continuous wireless monitoring of core patient vitals, as well as AI & automation and services & technology orchestration. Vendor has agreed to provide goods and/or services (collectively, the “Work Product”) to Current Health. The specific Work Product to be provided, pricing, acceptance, delivery schedule, service term, invoicing and payment terms, and other commercial terms will be specified in a Statement of Work (“SOW”) incorporated into the Order. These Terms set forth the general business terms and conditions under which Current Health will conduct business with the Vendor in connection to the Order.
By accepting an Order, commencing performance, or delivering goods or services pursuant to an Order that references these Terms, the Vendor agrees that the Order will be governed by these Terms. The Parties may agree to additional terms and conditions in the Order, but in the event of a conflict between these Terms and other provisions set forth in the Order, these Terms shall control.
“Confidential Information” means any and all information that is of a confidential, proprietary, or trade secret nature that is furnished or disclosed by one Party to the other Party pursuant to the Order. Confidential Information includes, without limitation, all information received from third parties that either Party is obligated to treat as confidential and oral information that is identified by either Party or by a third party as confidential. Confidential Information shall not include information that: (a) is or becomes a part of the public domain through no act or omission of the receiving Party; (b) was in the receiving Party’s lawful possession prior to the disclosure and had not been obtained by the receiving Party either directly or indirectly from the disclosing Party; (c) is lawfully disclosed to the receiving Party by a third party without restriction on disclosure; or (d) is independently developed by the receiving Party without use of or reference to the disclosing Party’s Confidential Information.
“Force Majeure Event” means an event not reasonably foreseeable, beyond a Party’s reasonable control, and occurring without its fault or negligence including, without limitation (a) an act of nature, such as fire, flood, earthquake, storm, tornado, lightning, landslide, sink hole, or outbreak of disease, (b) a service failure caused by third parties, such as a power or utility outage or a labor dispute affecting Vendors or subcontractors, (c) a civil disruption such as war, invasion, insurrection, trade embargo, or activities by terrorists or public enemies, or (d) action by a governmental body that enjoins or prevents performance by a Party.
“Governmental Authority” means a federal, state, or municipal court, legislative body, agency, commission, board, or regulatory or administrative authority or instrumentality.
“Insolvency” means the occurrence of any of the following events, whereby a Party: (i) becomes or is declared insolvent or bankrupt; (ii) is the subject of any proceedings related to its liquidation, insolvency or for the appointment of a receiver or similar officer for it; (iii) makes an assignment for the benefit of all or substantially all of its creditors; or (iv) enters into an agreement for the composition, extension, or readjustment of all or substantially all of its obligations; or (v) the Party’s financial position deteriorates to such an extent that in the terminating Party’s opinion the other Party’s capability to adequately fulfil its obligations under the Order has been placed in jeopardy. For Work Product produced in the United Kingdom, “Insolvency” also includes the following event: a Party applies to court for, or obtains, a moratorium under Part A1 of the Insolvency Act 1986, or takes any other step or action in connection with its entering administration, provisional liquidation or any composition or arrangement with its creditors (other than in relation to a solvent restructuring), being wound up (whether voluntarily or by order of the court, unless for the purpose of a solvent restructuring), having a receiver appointed to any of its assets or ceasing to carry on business or, if the step or action is taken in another jurisdiction, in connection with any analogous procedure in the relevant jurisdiction.
“Intellectual Property Rights” means all intellectual property rights of any kind or nature, anywhere in the world, whether protected, created, or arising under any applicable Law, and all worldwide common law, statutory, and other rights in, arising out of, or associated therewith including, without limitation, patents, trademarks, copyrights, publicity rights, moral rights, database rights, domain names, and trade secrets, regardless of whether such rights are registered or perfected.
“Law” means, as in effect from time to time, any law, rule, regulation, declaration, decree, directive, statute, or other enactment, order, mandate, direction, or resolution that is applicable to a Party, a Party’s industry, or any of the Work Product and that is issued or enacted by any domestic or foreign, supra-national, national, state, county, municipal, local, territorial, or other government or industry self-regulatory authority, court, commission, board, authority, or agency, anywhere in the world.
“Party(ies)” means Current Health, the Vendor, and any other entity that is a party to the Order.
“Person” means any individual, corporation (including any non-profit corporation), general or limited partnership, limited liability company, joint venture, estate, trust, association, organization, labor union, or other entity or governmental body.
“Underlying Vendor Technology” shall mean Vendor technology, methodologies, works and intellectual property anywhere in the world (including, without limitation, product(s), software tools, hardware designs, algorithms, software (in source and object forms), user interface designs, architecture, class libraries, objects, templates and documentation (both printed and electronic)) that Vendor can clearly establish and demonstrate through written documentation existed (i) prior to the Effective Date or (ii) otherwise arose outside of the scope work performed under the Order and is not in any way related to or derived from any Confidential Information of Current Health.
3.1 Each Party warrants and represents that (a) it has the necessary and actual right and authority to enter into and to perform its obligations under the Order, (b) it has taken all necessary corporate action to authorize the execution, delivery, and performance of the Order, (c) the Order constitutes a valid and binding obligation enforceable against all Parties in accordance with the Terms, and (d) neither the execution of the Order nor the performance of its terms will violate any Law to which any Party is or may be bound.
3.2 Each Party warrants and represents that it shall comply with all applicable Laws including, without limitation, and data privacy and security laws such as the Health Information Portability and Accountability Act (HIPAA) and associated regulations and, where applicable, the E.U. General Data Protection Regulation, the U.K. Data Protection Act 2018, and the U.K. General Data Protection Regulation. If Vendor and/or Vendor’s subcontractors will have access to protected health Information (PHI) and/or personally identifiable information (PII) on Current Health’s Platform, Vendor and all Included subcontractors will execute Current Health’s Subcontractor Business Associate Agreement.
3.3 Vendor Warranties and Representations.
3.3.1 Work Product Warranty for Goods. Vendor warrants to Current Health that for a period commencing on the date of delivery of any item to Current Health and ending on the second anniversary of such delivery (the “Warranty Period”), all Work Product in the form of goods to be provided under the Order (a) will comply with all requirements or performance standards specified the Order including, without limitation, any documentation (e.g., specifications, manuals, user manuals, and other instructions regarding proper use) provided with the Work Product, (b) will be free from manufacturing defects, and (c) will be in merchantable condition and fit and safe for its intended use including, without limitation, not presenting or creating safety issues when used by individuals monitored by Current Health’s Platform. If Current Health reasonably determines that any such Work Product delivered by Vendor fails to meet any of the conditions of (a) – (c) above, Vendor will, at Current Health’s option, either replace all non-conforming goods with conforming goods at no expense to Current Health (including the expense to Current Health of returning or destroying the non-conforming items, if directed by Vendor), or refund to Current Health all amounts received by Vendor for the non-conforming Work Product. The remedies provided in this subsection shall be in addition to all other legal remedies available to Current Health for delivery of non-conforming Work Product including, without limitation, indemnification pursuant to Section 9 below.
3.3.2 Vendor warrants that (a) Vendor is either the owner of, or has the irrevocable right to provide or to perform, the Work Product included in the Order, (b) the Work Product will not violate or infringe rights of third parties including, without limitation, Intellectual Property Rights, (c) the Work Product provided or performed will be produced or undertaken in a professional and workmanlike manner by qualified personnel, in accordance applicable industry standards and using reasonable care, and with adequate supervision, (d) any Current Health data that is accessed, transmitted, or stored in connection with the Work Product will be processed and/or stored in data centers located within the United States, and (e) any Work Product shall not contain any code, programming instruction, or set of instructions that can damage, disable, impair, or interfere with or otherwise adversely affect computer programs, data files, or hardware of Current Health. Vendor shall promptly notify Current Health of any material change in fact or circumstances affecting its compliance with these warranties.
3.3.3 Exclusion from Health Care Programs. Vendor warrants that Vendor is not currently listed by a Federal or State agency as excluded, debarred, suspended, or otherwise ineligible for participation in any Federal or State health care program. Vendor further warrants that Vendor will not employ, contract with, or otherwise use the services of any individual who Vendor knows or should have known, after reasonable inquiry, (a) has been convicted of a criminal offense related to health care, or (b) is currently listed by a Federal or State agency as excluded, debarred, or otherwise ineligible for participation in any Federal or State health care program. Vendor agrees to continue to make reasonable inquiry regarding the status of Vendor’s employees and independent contractors on a regular basis by reviewing lists of parties excluded from participation in Federal health care programs and applicable State exclusion lists. Vendor further agrees that Vendor will immediately notify Current Health in the event that Vendor, or any person in Vendor’s employ, has been excluded, debarred, or has otherwise become ineligible for participation in any Federal or State health care program and, in such event, Current Health may immediately terminate the Order, in whole or in part, or require Vendor to immediately replace the employee or subcontractor. Vendor shall indemnify and defend Current Health against all Claims (as defined in Section 9 below) arising directly or indirectly out of any exclusion. The indemnification terms of this provision shall survive termination or expiration of the Order.
3.3.4 Insurance. Vendor warrants and represents that, prior to the effective date of the Order, and for the duration of the Order, Vendor will procure and maintain the insurance described below. Current Health does not permit self-insurance for compliance with its insurance requirements, although such policies may include a commercially reasonable self-insured retention or deductible. Vendor shall be responsible to review and ensure that Vendor’s subcontractors maintain that is customary and reasonable for their primary business risk and shall be liable for any failure thereof. Such insurance will be in a form and with insurers rated at least A+ by A.M. Best, issued by an insurance company or companies authorized to do business in the United States, and will comply with the following minimum requirements:
(a) Commercial General Liability Insurance for bodily injury and property damage and personal and advertising injury, with a combined single limit not less than $1 million for each occurrence and $3 million in the aggregate;
(b) Errors and Omissions Coverage (including (Cyber) with a minimum limit of $5 million per loss for coverage for claims relating to professional liability, network risks, and privacy breaches; and
(c) Workers’ Compensation and Employer’s Liability Insurance affording coverage in an amount not less than the statutory limits to satisfy the Laws in the jurisdictions where the Work Product is produced;
For all policies, Vendor’s insurance will be primary and non-contributory and be required to respond to and pay claims prior to other coverage maintained by Current Health. Vendor will be responsible for all claims expenses and loss payments within any policy deductible or self-insurance retention. To the extent allowed by law, all policies except for Errors & Omissions will have clauses waiving subrogation and Vendor agrees to waive rights of recovery against Current Health.
During the Term, upon Current Health’s request, Vendor will provide Current Health with a Certificate of Insurance with respect to each of the foregoing. Failure by Vendor to furnish its Certificate of Insurance or failure by Current Health to request any such certificate will not constitute a waiver by Current Health of the insurance requirements.
3.3.5 Risk Assessment. The Order is contingent upon Vendor satisfactorily meeting all requirements of Current Health’s Security and Quality Assessment (the “Assessment”). If Vendor fails to participate in and/or the requirements of the Assessment at any time, Current Health may terminate the Order upon 10 days notice to Vendor and any prepaid amounts for Work Product not provided or performed prior to the termination date will be refunded to Current Health promptly.
Without limiting the foregoing, Vendor shall implement administrative, physical, and technical safeguards necessary to secure its computers, applications, IT infrastructure, premises, and any Current Health data that are no less rigorous than accepted industry practices, including current and ongoing SOC-2 Certification. Vendor agrees, at no additional cost or expense to Current Health, to successfully remediate or, upon Current Health’s prior written approval, provide compensating controls for any security or technical risks that are either identified in an available third-party SOC, ISO 27001, or other recognized risk assessment or are otherwise identified by the Current Health (“Security Risks”). The remediation and controls shall occur within thirty (30) days from the date Vendor is made aware of the specific Security Risk. Current Health may agree in writing to an alternate timeframe if the nature of the Security Risk warrants an alternate timeframe.
4.1 Goods. Title of goods provided by Vendor to Current Health pursuant to the Order shall pass to Current Health upon delivery of such goods to the receiving location designated by Current Health. All goods will be delivered by Vendor DDP to the designated location.
4.2 Services. All services deliverables (including, without limitation, all ideas, software, plans, and other written materials) developed, generated, or produced by Vendor in connection with the Order shall be Current Health’s sole and exclusive property, and considered a “work made for hire” (as defined in Section 101 of the Copyright Revision Act of 1976, as amended), as applicable. To the extent any Work Product is not considered property of Current Health, Vendor assigns to Current Health all rights, title and interest, in and to such Work Product including all intellectual property rights therein (including without limitation, patent rights, copyrights, trade secret rights, moral rights under the Copyright, Designs and Patent Act 1988, etc.) arising from performance of the Order; provided, however, that such assignment does not include any Underlying Vendor Technology. Subject to the terms and conditions of the Order, to the extent (if at all) any Underlying Vendor Technology is incorporated into any Work Product, Vendor grants to Current Health a non-exclusive, royalty-free, worldwide, right and license to fully exploit the Underlying Vendor Technology and to make derivative works of the same to the extent necessary to receive the full benefit of the Work Product. Vendor shall further assist Current Health from time to time to further evidence, record, and perfect assignments, licenses, waivers, ratifications, and consents and to perfect, maintain, enforce, and defend any rights assigned.
4.3 Third Party Materials. Except as may be expressly specified in the Order, Vendor is solely responsible for any payments to third parties for any information or materials to which third parties have any rights, whether by patent, copyright, trade secret, or otherwise.
(a) Goods. Where the Work Product consist in whole or in part of goods, If any such goods are found at any time to be defective in material or workmanship, or otherwise not in conformity with the requirements of the Order, including any applicable drawings and specifications, then in addition to such other rights, remedies, and choices as Current Health may have under the Order and otherwise in equity or at law, at its option and sole discretion, Current Health may: (a) reject and return such products at Vendor’s expense, (b) require Vendor to replace the non-conforming goods with products that conform to the specifications of the Order, or c) upon notice to Vendor, take such actions as may be required to cure all defects and/or bring the products into conformity with all the requirements of the Order, in which event all costs and expenses thereby incurred by Current Health shall be reimbursed by Vendor. For any product for which it is unreasonable to identify a defect within the normal period of acceptance, Vendor acknowledges Current Health’s right to reject for subsequently-discovered latent defects under these same terms.
(b) Services. Where the Work Product consists in whole or in part of services or deliverables (e.g., software-as-a-service offerings, professional services, or software, apps, or other deliverables), the Work Product will not be deemed accepted until Current Health Acceptance and no fees will be due until Current Health Acceptance. No fees for Software maintenance or SaaS subscription will accrue before Current Health Acceptance, and no period preceding Current Health Acceptance will be counted against the time covered by any maintenance or subscription period. As used in these Terms, “Current Health Acceptance” means written notice of acceptance of the Work Product from Current Health or forty-five (45) days after Vendor has completed and notified Current Health in writing of (as applicable) full installation, implementation, and/or customization of the Work Product, if Current Health has not first given written notice of rejection. Unless an Order specifically provides to the contrary, Current Health will be the sole judge of whether the Work Product is accepted; provided, however, that Current Health will not unreasonably refuse acceptance. For the avoidance of doubt, Current Health will not be required to pay any amounts for unaccepted Work Product.
6.1 Taxes. Unless otherwise specified in the Order, all pricing set forth in the Order is inclusive of sales tax, use tax, value-added tax, excise tax, tariffs, fees, surcharges or other transaction taxes, fees, or charges for the Work Product (collectively, “Taxes”) imposed by any Governmental Authority. All taxes imposed directly on Vendor including, without limitation, all unemployment, social security and other payroll taxes shall be the responsibility of Vendor, and Current Health shall have no obligation to Vendor with respect thereto. Vendor undertakes to pay all required withholdings for payroll and other taxes (including, for U.K. Vendors, employee and employer National Insurance Contributions for all personnel).
Vendor shall separately enumerate and timely invoice all valid Taxes attributable to Current Health. If Vendor does not invoice Current Health within 60 days of the original invoice for the Work Product to which such Taxes relate, Vendor forfeits its right to seek reimbursement for such Taxes from Current Health.
6.2 Invoices and Payment. Unless otherwise specified in the Order, each Vendor invoice to Current Health for the Work Product shall include: (a) (b) the Order under which the invoice is issued, (b) the Work Product covered by the invoice, and (c) the total amount due. Current Health will pay the undisputed portion of such invoices 60 days after receipt of Vendor’s invoice (the “Payment Date”). On or before a Payment Date, Current Health may provide written notice to Current Health that Customer disputes all or part of an invoice. The Parties will then endeavor to resolve the dispute expeditiously and Current Health will pay the amount, if any, that the Parties agree to be due. In the event of a good faith dispute with regard to an item appearing on an invoice, Current Health’s withholding of such payment will not constitute a breach of the Order, nor will it be grounds for Vendor to suspend its provision or performance of the Work Product. In no event will Vendor have any right to charge Current Health interest. ;ate fees, or penalties for any delinquent payments.
6.3 Expenses. Current Health will not be responsible for any expenses incurred by Vendor unless reimbursement for such expenses is specifically authorized in the Order.
8.1 Vendor understands and agrees that Current Health does not exercise behavioral or financial control over Vendor and that the delivery and use of the Work Product does not constitute a joint undertaking between Current Health and Vendor to furnish a service or services to any other party. The Parties are independent parties and shall not be deemed or construed, by virtue of the Order, to be the employee, representative, partner, or joint venturer of the other.
8.2 Current Health and Vendor each acknowledge that the Order is non-exclusive and that each Party may offer or purchase products like or similar to the Work Product from other parties.
9.1 By virtue of the Order, each Party may have access to Confidential Information of the other Party. The Parties agree not to make each other’s Confidential Information available in any form to any third party or to use such Confidential Information for any purpose other than in the performance of the Order. Each Party agrees to take all reasonable steps to ensure that Confidential Information of the other Party is not disclosed or distributed by its employees, contractors, or agents in violation of the terms of the Order.
9.2 Each Party agrees to notify the other immediately and in writing of all circumstances surrounding any unauthorized possession or use of the other’s Confidential Information by any Person. The Parties agree to cooperate fully in any litigation relating to or arising from such unauthorized possession or use of Current Health Confidential Information or Vendor Confidential Information.
9.3 If a Party is legally compelled (by court order, by law, or at the request of a federal or state agency to the extent that such disclosure is relevant to the exercise of the agency’s statutory or regulatory authority) to disclose any Confidential Information of the other Party in a manner not otherwise permitted by the Order, such Party will provide prompt notice of such request (unless legally precluded from doing so) to the other Party so that the other Party may seek a protective order or other appropriate remedy.
9.4 Each Party acknowledges and agrees that, due to the unique nature of Confidential Information, there can be no adequate remedy at law for breach of this Section and that such breach would cause irreparable harm to the non-breaching Party and, therefore, the non-breaching Party shall be 8entitled to seek injunctive relief, with no requirement of posting a bond, in addition to whatever remedies it might have at Law or under the Order. Solely for purposes of enforcement of Current Health’s rights under this Section, Vendor consents to personal jurisdiction in the federal and state courts in the State of Delaware for such injunctive relief.
9.5 Return of Materials. On request and/or on termination of the Order for any reason, Vendor will (a) return or destroy any and all records or copies of records relating to Current Health or its business, according to Current Health’s instructions or relevant industry best practices if no instructions are provided, (b) destroy, delete and render unrecoverable Current Health data as may be specified by Current Health from Vendor’s systems and direct any Vendor personnel to do the same, as applicable, (c) return to Current Health all tangible items removed from Company premises by Vendor or by Vendor personnel, as applicable. Upon Current Health’s request, Vendor will certify in writing that all Current Health Confidential Information has been so returned or destroyed.
10.1 Indemnification Obligation. Vendor shall indemnify, defend, and hold Current Health, its agents and employees and its Affiliates, and their respective agents and employees (collectively, the “Indemnitees”), harmless from and against any and all losses, damages, liabilities, claims, demands, costs, expenses (including, without limitation, reasonable attorneys’ fees and defense costs), and other charges suffered or incurred by an Indemnitee, including any amounts agreed to in a settlement, as a result of or in connection with any demand or any civil, criminal, administrative, or investigative claim, action, or proceeding (including arbitration) asserted, alleged, commenced, or threatened against an Indemnitee (collectively, “Claims”), arising out of or relating to Vendor’s performance under the Order including, without limitation: (a) a breach of Vendor’s obligations under the Order (including, without limitation, Vendor’s warranties and representations), (b) the negligence or willful misconduct of Vendor in performance of the Order, (c) product liability relating to the Work Product, (d) a breach of confidentiality, damage, misuse, loss, corruption or breach of any Current Health Confidential Information, (e) Vendor’s breach of obligations owed to third parties relating to performance of the Order including, without limitation, failure to promptly pay sums due to third parties, or (f) a claim that the use by Current Health of the Work Product violates, misappropriates, or infringes upon any Intellectual Property Rights of any person or entity. In the event that any of the Work Product is determined by Current Health to be infringing, Vendor shall, at its own expense, promptly modify or replace the same so that it is not infringing, provided that the replacements and modifications shall be of substantially the same quality and shall perform substantially the same as the replaced items.
10.2 Indemnification Procedures. Current Health agrees to give Vendor prompt written notice of any Claim for which indemnification is sought under this Section. Failure to give such notice shall not abrogate or diminish Vendor’s obligations under this Section to the extent such failure does not materially prejudice Vendor’s ability to defend the Claim. In any Claim for which indemnification is sought, Vendor will have the right to select legal counsel to represent the Indemnitee(s) (subject to the approval of Current Health, which shall not be unreasonably withheld) and to otherwise control the defense of such Claim. If Vendor elects to control the defense of such Claim, the Indemnitee(s) will at all times have the right to fully participate in the defense at their own expense. If Vendor, within a reasonable time after receipt of such notice, should fail to use reasonable efforts to defend the Indemnitee(s), the Indemnitee(s) will have the right, but not the obligation, to undertake the defense of and to compromise or settle the Claim on behalf of and at the risk of Vendor. Vendor may not (a) consent to the entry of any judgment or enter into any settlement that provides for injunctive or other non-monetary relief affecting an Indemnitee without the prior written consent of Current Health, or (b) consent to the entry of any judgment or enter into any settlement without the prior written consent of Current Health unless such judgment or settlement provides for the unconditional and full release of the Indemnitee(s) in respect of such Claim and does not diminish any of Current Health’s rights under the Order or result in additional fees or charges to Current Health.
11.1 Termination for Cause. If either Party materially breaches a material provision of the Order, the other Party may terminate the Order immediately effective as of such notice unless the breach is cured within 30 days of receiving written notice of the breach.
11.2 Termination for Convenience. Current Health may terminate the Order at any time, for any or no reason, upon 20 days written notice to Vendor.
11.3 Termination for Financial Insecurity. Either Party may terminate the Order immediately upon notice for the other Party’s Insolvency.
11.4 Effect of Termination. Upon termination of the Order by Current Health, Vendor shall promptly refund all prepaid fees by Current Health to Vendor applicable to Work Product to be provided or performed after the termination date.
11.5 Not Exclusive Remedy. Termination is not an exclusive remedy and the exercise by either Party of any remedy under the Order will be without prejudice to any other remedies it may have under the Order, by law, or otherwise.
12.1 Vendor agrees not to make any public statement, disclosure, or reference to the Order of to its engagement by Current Health without the prior written approval by Current Health.
12.2 Nothing in the Order shall grant either Party any ownership interest, license, or other right to any trade names, trademarks, or service marks of the other Party.
14.1 All disputes arising out of or in connection with the Order that cannot be resolved through good faith negotiation between the Parties shall be resolved through binding arbitration under the Commercial Arbitration Rules of the American Arbitration Association; provided, however, that Current Health reserves the right to seek equitable relief in any court of competent jurisdiction against threatened violations of Current Health’s Intellectual Property Rights. The Parties shall endeavor to select a mutually acceptable arbitrator knowledgeable about issues relating to the subject matter of the Order. If the Parties are unable to agree to such a selection, each Party will select an arbitrator and those arbitrators in turn shall select a third arbitrator. The arbitration will take place at a location mutually agreed by the Parties. This agreement to arbitrate shall be specifically enforceable by either Party.
14.2 Except as provided in Section 15.9 (Severability), the arbitrator(s) shall not have the authority, power, or right to alter, change, amend, modify, add, or subtract from any provision of the Award or to award punitive damages. The award rendered by the arbitrator(s) shall state the reasons for the award and shall be final and binding on the Parties. Judgment may be entered on such award in any court having jurisdiction.
15.1 Entire Agreement; Amendment. The Order constitutes the entire agreement between the Parties and supersedes and cancels any prior agreements, representations, warranties, or communications, whether oral or written, between the Parties relating to the subject matter of the Order. Any and all blanks in the Order, or in any schedule or exhibit to the Order, will be filled in as required in order to consummate the transactions contemplated by the Parties. The Order may only be modified, changed, waived, discharged, or terminated by an agreement in writing signed by the Party against whom or which the enforcement of such modification, change, waiver, discharge, or termination is sought.
15.2 Waiver. Any failure on the part of a Party to comply with any of its obligations, agreements, or responsibilities under the Order may be waived by the other Party to whom such compliance is owed. No waiver of any provision of the Order shall be deemed, or shall constitute, a waiver of any other provision, whether or not similar, nor shall any waiver constitute a waiver of any failure other than that waived.
15.3 Assignment. Neither Party may assign or otherwise transfer any of its rights, duties, or obligations under the Order to any Person without the prior written consent of the other Party, except to an entity it controls, is controlled by, or is under common control with, or to a successor entity (or an entity that purchases substantially all of its assets).
15.4 No Third-Party Beneficiaries. In entering into the Order, the Parties do not intend to create third-party beneficiary rights in anyone not a party to the Order.
15.5 Force Majeure. Neither Party shall have liability to the other as a result of a Force Majeure Event. Neither Party shall be liable, nor shall any credit or other remedy be extended, for any failure or delay in performance under the Order where such failure or delay is proximately caused by a Force Majeure Event; provided, however, that the nonperforming Party uses commercially reasonable efforts to avoid or remove such causes of nonperformance and restores performance as soon as such causes are removed.
15.7 Further Assurances. Each Party covenants that (a) it will comply in all material respects with any applicable laws in the performance of the Order, and (b) at any time, and from time to time during the duration of the Order, it will execute such additional instruments and take such actions as may be reasonably requested by the other Party to confirm or perfect or otherwise to carry out the intent and purposes of the Order.
15.8 Notice. All notifications, consents, reports, requests, demands, and other communications required or permitted to be given under the Order shall be in writing and shall be deemed given when mailed (with return receipt requested), emailed (receipt for which is confirmed), or sent via a recognized overnight courier service, to the Parties’ addresses specified in the SOW or pursuant to such other instructions as may be designated in writing by the Party to receive such notice.
15.9 Severability. Any term or provision of the Order that is held to be invalid, void, or unenforceable in any situation in any jurisdiction shall not affect the validity or enforceability of the remaining terms and provisions of the Order or the validity or enforceability of the offending term or provision in any other situation or in any other jurisdiction. If any term or provision of the Order is declared invalid, void, or unenforceable, the Parties agree that the arbitral tribunal, court, or other authority making such determination shall have the power to reduce the scope, duration, or applicability of the term or provision, to delete specific words or phrases, or to replace any invalid, void, or unenforceable term or provision with a term or provision that is valid and enforceable and that comes closest to expressing the intention of the invalid or unenforceable term or provision. If the economic or legal substance of the transactions contemplated by the Order is affected in any manner adverse to any Party as a result thereof, the Parties agree to negotiate in good faith such modifications as are appropriate to ensure that the burdens and benefits of each Party under such modified Order are reasonably comparable to the burdens and benefits originally contemplated.
15.10 Governing Law. The Order shall be governed by and construed in accordance with the internal laws of the State of Delaware applicable to contracts made and to be performed entirely with such State, without regard to the conflict of laws principles of such State.
15.11 Counterparts. The Order may be executed in one or more separate counterparts, each of which shall be considered an original, and all of which together will constitute one and the same instrument. Counterparts may be delivered by electronic means, including any electronic signature complying with the Electronic Signatures in Global and National Commerce (E-Sign) Act, 15 U.S.C. § 7001 et seq., the Uniform Electronic Transactions Act, or other applicable Law.
