Imprivata End User License Agreement for SecureLink Software

This Imprivata End User License Agreement for SecureLink Software (the “Agreement”) is by and between Imprivata, Inc., a Delaware corporation, with its principal place of business at 20 CityPoint, 6th floor, 480 Totten Pond Rd., Waltham, MA 02451 (“Imprivata”), and you (“Company” or “you”). Collectively, Imprivata and Company may be referred to as the “Parties” or in the singular as “Party”. By accessing and using the Software (defined below) you (either you as an individual or, if the Software will be used by an entity, on behalf of that entity) represent and agree that you have the capacity and authority to bind yourself or, if applicable, the applicable entity, to the terms of this Agreement and agree to be bound by the terms of this Agreement. If you do not agree to the terms of this Agreement, you may not access and use the Software. This Agreement is effective as of the date Company accesses the Software (“Effective Date”). Any terms and conditions in a purchase order (or in any similar document) which are in addition to, or conflict or are inconsistent with these terms are hereby rejected and superseded by the terms contained herein. The Software is protected by copyright laws and international copyright treaties, as well as other intellectual property laws and treaties.

Background.

Imprivata provides a software solution for remote computer access and support (the “Software”). This Agreement sets forth the terms pursuant to which Imprivata will license the Software to Company and provide other related services set forth in this Agreement and Imprivata Quote. The term “Imprivata Quote” or “Quote” means the supplemental document issued by Imprivata, which specifies the Software, Services (defined below) and any other software and/or hardware which may be purchased by Company, and the price associated with each.

Software License.

1. Software License. Subject to the timely payment by Company of all applicable fees, Imprivata hereby grants to Company, and Company hereby accepts, a limited, non-exclusive, term-limited, non-transferable, non-sublicensable, worldwide license to install a single instance of the Software and to use and access the Software during the Term (defined below) solely (i) in connection with Company’s normal business operations, (ii) in accordance with the documentation provided with the Software (the “Documentation”), and (iii) subject to any limitations set forth in the Quote. If Company has purchased a business continuity package then, in addition to the single instance, Company may: (i) for High Availability, install up to two additional instances of the Software solely for the purpose of high availability; and (ii) for Disaster Recovery, install one additional instance for the purposes of disaster recovery. If Company has purchased a Sandbox instance of the Software, Company may use one additional instance of the Software for non-production test purposes. If the Software is provided on an Imprivata server then the Software may only be used on the server on which it is provided. Notwithstanding the foregoing, if Company has licensed the Imprivata for Vendors Software (as specified in the Quote), Company may install the portion of the software on Company’s customers’ systems that enables Company to remotely access its customers’ systems, all of which as set forth more fully in the Documentation (the “Gatekeeper Software”). The installation and use of the Gatekeeper Software is subject to the license agreement provided with the Gatekeeper Software.
2. Use by Employees and Contractors. Employees or authorized independent contractors of Company may use the Software provided that all such use shall be solely for the benefit of Company and in accordance with the terms and conditions of this Agreement. Company shall ensure that its employees and any independent contractors comply with the terms and conditions contained in this Agreement. Company shall remain fully liable for all acts and omissions of its employees and independent contractors, as if such acts and omissions had been committed by Company itself. The Software may not be used by Company to facilitate remote access by its employees or contractors to Company’s own systems unless Company has purchased an internal use license. Notwithstanding the foregoing, individuals may use the Software to remotely access Company’s systems for the sole purpose of facilitating remote access by Vendors to Company’s systems.
3. Limitations. Except as otherwise authorized in writing by Imprivata, Company shall not, and shall not permit any other person to, access or use the Software except as expressly permitted by this Agreement. For purposes of clarity and without limiting the generality of the foregoing, Company shall not, except as this Agreement expressly permits: (i) decompile, reverse engineer, decode, or disassemble the Software or otherwise attempt to reduce the Software to a human perceivable form in whole or in part; (ii) decrypt, circumvent, bypass, breach, or disable any security or other technological features or measures of the Software; (iii) access or attempt to access or use the Software for purposes of competitive analysis of the Software, the development, provision, or use of a competing software service or product or any other purpose that is to Imprivata’s detriment or commercial disadvantage; (iv) copy, publish, release, rent, lease, loan, sell, distribute, or transfer the Software or Documentation; (iv) frame or mirror any content forming part of the Software; (v) use or permit the use of the Software for commercial time-sharing arrangements or providing service bureau, data processing, rental, or other services to any third party; (vi) alter, modify, adapt, translate, or create derivative works based upon the Software or Documentation either in whole or in part; (vii) remove any copyright notice or other proprietary rights notices that may appear in or on the Software or Documentation; (viii) perform any security or penetration testing of the Software; (ix) install or run an agent on any Imprivata Software or device; or (x) distribute any virus, trojan horse, or other malicious code via the Software. Company will use the Software and Documentation in compliance with all applicable laws and regulations, and refrain from any unethical conduct or any other conduct that tends to damage the reputation of Imprivata. However, where Company has other rights under statute that make any portion of the foregoing contractual prohibition void, Company agrees to provide Imprivata with reasonably detailed information regarding any intended disassembly or de-compilation. Company may not access the Software if Company is a direct competitor of Imprivata. With any mission-critical activity, the Software should not be Company’s only means of receiving or providing remote support, and Company acknowledges and agrees that it is responsible for taking steps to protect against Software and system failures, including (without limitation) providing back-up remote access methods.
4. Reservation of Rights. The Software provided under this Agreement is licensed, and not sold. Imprivata (and its licensors) retains all title, interest, and ownership rights in and to the Software and Documentation and reserves all rights not expressly granted to Company in this Agreement. If Company provides any suggestions, ideas, enhancement requests, feedback (including identifying potential errors and improvements), recommendations or other information relating to the Software to Imprivata (collectively “Feedback”), then Imprivata may use the Feedback without payment or restriction. The Imprivata name, the Imprivata logo, and the product names associated with the Software are trademarks of Imprivata, and no right or license is granted to use them. Company will not accrue any residual rights to the Imprivata Software or any related technology, including any rights to the underlying intellectual property rights.

Services; Updates.

1. Services. Imprivata will provide Company with the implementation, training, and support services identified in the Quote (collectively, the “Services”).
2. Updates. Imprivata may update the Software or Documentation from time to time. During the Term, Imprivata will provide Company with all updates to the Software and Documentation that it makes generally commercially available. Company may decide whether to install updates to the Software unless Imprivata expressly notifies Company that a particular update is mandatory. The terms “Software” and “Documentation” shall include all updates provided to Company by Imprivata under this Section 3.2.

Account Information and Data

1. “Company Data” means any data, information or material provided or submitted to the Software by the Company in the course of using the Software. “Resultant Data” means data and information related to Company’s use of the Software that is used by Imprivata in an aggregate and anonymized manner, including to compile statistical and performance information related to the provision and operation of the Software. For the avoidance of doubt, Company Data excludes Resultant Data.
2. Imprivata does not own any Company Data. Company, not Imprivata, shall have sole responsibility for the accuracy, quality, integrity, legality, reliability, appropriateness, and intellectual property ownership or right to use of all Company Data. Company hereby grants to Imprivata a non-exclusive, fully-paid and royalty-free license to reproduce, distribute, perform, display and otherwise use the Company Data as necessary or reasonable to provide the Software and Services to Company as described herein and to collect, compile and use De-identified information collected in the performance of the Software and Services (“Benchmarking Statistics”), for the purpose of analyzing and reporting the effectiveness of and any trends in corporate ethics and compliance programs according to industry, company size, country, geographic region or other relevant classification or for other uses as Imprivata may decide. “De-identified information” means data or information that neither identifies nor provides a reasonable basis to identify a company or an individual, where, without limitation, the following identifiers have been removed: company names and the names of individuals, addresses, account numbers, social security numbers, phone numbers, e-mail address(es) and any other information which could reasonably be anticipated to identify, when taken in the aggregate, a specific company, organization or individual. Company shall have no right to access or use Imprivata’s aggregate Benchmarking Statistics. Company represents and warrants that: (i) Company owns or otherwise has the right to grant the license set forth in this section for the Company Data, and (ii) the Company Data does not violate the privacy rights, publicity rights, copyright rights, or other rights of any person or entity. Imprivata has the right to delete any Company Data in Imprivata’s possession at any time.

Fees.

1. Fees. Unless purchasing through an Imprivata authorized reseller, upon execution of the Quote, Company will pay Imprivata the license fees set forth in the Quote for the first Contract Year (as defined below). The fees for each subsequent Contract Year will be calculated in accordance with the Quote. Imprivata may invoice for each Contract Year up to thirty days prior to the start of the Contract Year. Fees are typically determined based on the usage of the Software during the preceding Contract Year. Accordingly, any increase in Company’s use of the Software (e.g., more Concurrent Connections or use by more Vendors, as applicable) will require payment of additional fees for the subsequent Contract Year in accordance with the Quote. Imprivata may update the per-unit pricing for any Contract Year or Renewal by providing Company written notice at least ninety days prior to the end of the then-current Contract Year or Renewal Term. The following terms may be used in the Quote in calculating the applicable fees:
   1. “Average Peak Usage” for any given Contract Year means the number calculated by averaging the peak number of Concurrent Connections during the three highest months of the applicable Contract Year.
   2. “Concurrent Connections” means the total number of simultaneous connections on Company’s installation of the Software at any one time.
   3. “Contract Year” shall mean the first twelve month period immediately following the Effective Date and each subsequent twelve month period thereafter.
   4. “Site” shall mean a single physical location unless otherwise defined in the Quote (or its equivalent if purchasing through an authorized reseller).
   5. A “Vendor” means a single entity using the Software to access Company’s systems.
2. Service Fees. Company will pay any fees for Services provided by Imprivata in accordance with the Quote. Company will reimburse Imprivata for any pre-approved, out-of-pocket expenses incurred by Imprivata in connection with performing any Services at Company’s site.
3. Payment of Fees. (a) Imprivata shall sell to Company and Company shall purchase from Imprivata the Software as set forth in the applicable Imprivata Quote (or its equivalent if purchasing through an authorized reseller). Imprivata will invoice Company as set forth on the Imprivata Quote. Company will pay invoices within 30 days of each invoice date. All purchases are non-cancellable and non-refundable. Imprivata may withhold shipments and cease providing any services until past-due payments are made. Late payments are subject to a charge of the lesser of 1.5% per month or the maximum allowed by law during such time as any payment is late as well as collection costs, including reasonable collection and attorney’s fees. Prices do not include, and Company shall be responsible for, all applicable taxes of any kind due in respect of the transactions contemplated by this Agreement, except taxes on Imprivata's net income.

Term and Termination.

1. Term. The initial term of this Agreement will begin on the Effective Date and continue for the number of Contract Years indicated on the Quote (or its equivalent if purchasing through an authorized reseller) (the “Initial Term”). This Agreement will automatically renew for subsequent one-year periods (each a “Renewal Term”) unless either Party gives the other Party written notice of termination at least sixty days prior to the end of the then-current Term. The Initial Term together with all Renewal Terms are referred to in this Agreement as the “Term.”
2. Termination. Either Party may terminate this Agreement by written notice if the other Party materially breaches this Agreement and fails to cure the breach within thirty days of receiving written notice specifying the breach in reasonable detail.
3. Survival. Sections 2.2, 2.3, 2.4, and 8.4, and Articles 4, 5, 6, 7, 9, 10 and 11 shall survive any termination or expiration of this Agreement, regardless of the cause of termination.

Confidentiality.

1. Confidentiality. “Confidential Information” means any confidential or proprietary information of a Party (the “Discloser”) that is disclosed in any manner to the other Party (the “Recipient”) in connection with this Agreement and that at the time of disclosure either (i) is marked as being “Confidential” or “Proprietary,” (ii) is otherwise reasonably identifiable as the confidential or proprietary information of Discloser, or (iii) under the circumstances of disclosure should reasonably be considered as confidential or proprietary information. Imprivata’s “Confidential Information” shall include all features and functionality of the Software and Documentation and the results of any benchmark or other tests of the Software. Recipient shall not disclose Discloser’s Confidential Information to any third party without Discloser’s prior written approval; provided, that, Recipient may disclose the Confidential Information to its employees, contract personnel, subcontractors, officers, directors, shareholders, consultants, agents, attorneys, accountants, or advisors (collectively, “Representatives”) who need to know such information for the purposes of this Agreement, provided that such Representatives shall be informed by Recipient of the confidential nature of the Confidential Information and shall have agreed in writing to terms and conditions as protective of the Confidential Information as those in this Agreement. Recipient shall use the same procedures to protect Discloser’s Confidential Information as it uses to protect its own Confidential Information, but in any event no less than commercially reasonable procedures.
2. Exclusions. The restrictions under Section 7.1 above shall not apply to information that: (i) Recipient independently develops without use of Discloser’s Confidential Information; (ii) was, at the time of disclosure, already known to Recipient without restriction on use or disclosure and was not obtained from Discloser; (iii) is lawfully disclosed to Recipient without restriction on use or disclosure by a third party who is not required to maintain its confidentiality; or (iv) is publicly available through no fault of the Recipient.
3. Ownership of Confidential Information. The Confidential Information of Discloser is and will remain the property of Discloser. Nothing in this Agreement grants or confers any rights to Recipient by license or otherwise in Discloser’s Confidential Information, except as expressly provided in this Agreement.
4. Remedies Upon Breach. Recipient agrees that in the event of a breach or threatened breach of this Agreement, Discloser may have no adequate remedy in money damages and, accordingly, will be entitled to seek an injunction against such breach, in addition to any other legal or equitable remedies available to Discloser.
5. Legally Required Disclosure. If Recipient is legally required to disclose any of Discloser’s Confidential Information, then it may do so provided that Recipient (i) provides prompt written notice to Discloser (to the extent permitted by law), (ii) provides all reasonably requested assistance to Discloser in attempting to limit the scope of the disclosure, and (iii) only discloses Discloser’s Confidential Information to the extent actually required by law.

Warranties and Disclaimers.

1. Mutual Representations and Warranties. Each Party represents and warrants that: (i) it has the legal power to enter into this Agreement; (ii) the signatory hereto has the authority to bind the applicable organization; and (iii) when executed and delivered, this Agreement will constitute the legal, valid, and binding obligation of such Party, enforceable in accordance with its terms, subject to bankruptcy, insolvency, moratorium, reorganization, or similar laws affecting the rights of creditors generally and the availability of equitable remedies.
2. Software Warranty. Imprivata represents and warrants that the Software will conform to the Documentation in all material respects during the Term. COMPANY’S EXCLUSIVE REMEDY, AND IMPRIVATA’S ENTIRE LIABILITY, FOR ANY BREACH OF THIS SECTION 8.2 IS LIMITED TO, AT IMPRIVATA’S OPTION, REPAIR OR REPLACEMENT OF ANY MATERIAL, REPRODUCIBLE IMPAIRMENT TO THE FEATURES AND FUNCTIONALITY IN THE SOFTWARE (OR DEFECTIVE PORTION OF THE SOFTWARE), OR REFUNDING THE FEES PAID TO IMPRIVATA FOR THE DEFICIENT SOFTWARE FOR THE THEN-CURRENT CONTRACT YEAR, IN WHICH CASE, COMPANY SHALL IMMEDIATELY RETURN AND CEASE USE OF ALL COPIES OF THE SOFTWARE AND DOCUMENTATION.
3. Service Warranty. Imprivata represents and warrants that the Services will be performed in a professional and workmanlike manner in accordance with generally accepted industry standards. COMPANY’S EXCLUSIVE REMEDY, AND IMPRIVATA’S ENTIRE LIABILITY, FOR ANY BREACH OF THIS SECTION 8.3, OR ANY CLAIM BASED ON THE FAILURE OR UNAVAILABILITY OF THE SERVICES, IS LIMITED TO RE-PERFORMANCE OF THE SERVICES OR, AT IMPRIVATA’S OPTION, REFUNDING THE FEES PAID TO IMPRIVATA FOR THE DEFICIENT SERVICES.
4. DISCLAIMERS. EXCEPT AS OTHERWISE SPECIFICALLY PROVIDED HEREIN AND TO THE MAXIMUM EXTENT PERMITTED BY LAW, IMPRIVATA EXPRESSLY DISCLAIMS ANY AND ALL WARRANTIES, CONDITIONS, REPRESENTATIONS, AND GUARANTEES WITH RESPECT TO THE SOFTWARE, DOCUMENTATION, AND THE SERVICES, WHETHER EXPRESS OR IMPLIED, ARISING BY LAW, USAGE OF TRADE, COURSE OF DEALING, COURSE OF PERFORMANCE, PRIOR ORAL OR WRITTEN STATEMENTS, OR OTHERWISE, INCLUDING ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. WITHOUT LIMITING THE FOREGOING, IMPRIVATA DOES NOT WARRANT (I) THAT THE SOFTWARE, DOCUMENTATION, OR THE SERVICES WILL BE FREE FROM ANY INTERRUPTIONS, DELAYS, INACCURACIES, SERVER DOWN-TIME, ERRORS, OR OMISSIONS, (II) THE PERFORMANCE OR RESULTS COMPANY MAY OBTAIN BY RECEIVING THE SERVICES OR USING THE SOFTWARE OR DOCUMENTATION, OR (III) THE SOFTWARE, DOCUMENTATION, OR THE SERVICES WILL MEET COMPANY’S REQUIREMENTS. NO REPRESENTATION OR OTHER AFFIRMATION OF FACT, INCLUDING STATEMENTS REGARDING CAPACITY, SUITABILITY FOR USE, OR PERFORMANCE OF THE SOFTWARE, DOCUMENTATION, OR ANY SERVICES, NOT CONTAINED IN THIS AGREEMENT SHALL BE DEEMED TO BE A WARRANTY, CONDITION, REPRESENTATION, OR GUARANTY BY IMPRIVATA. COMPANY SHALL BE SOLELY RESPONSIBLE FOR MAINTAINING ALL APPROPRIATE BACKUPS OF ITS FILES AND DATA.

LIMITATIONS OF LIABILITY.

1. LIMITATION OF LIABILITY. EXCEPTING ONLY IN THE EVENT OF A BREACH BY YOU OF SECTION 2 (“SOFTWARE LICENSE”) OR A BREACH BY EITHER PARTY OF SECTION 7 (“CONFIDENTIALITY”), NEITHER PARTY IS LIABLE FOR INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, EXEMPLARY OR PUNITIVE DAMAGES OR LOST PROFITS, FORESEEABLE OR UNFORESEEABLE, OF ANY KIND (INCLUDING, WITHOUT LIMITATION, LOSS OF GOODWILL, LOST OR DAMAGED DATA OR SOFTWARE, LOSS OF USE OF PRODUCTS, OR DOWNTIME) ARISING FROM THE SALE, DELIVERY OR USE OF THE APPLIANCES, PERFORMANCE OF ANY SERVICES OR ANY OTHER ACT, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IMPRIVATA'S MAXIMUM LIABILITY TO YOU, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR OTHERWISE, WILL NOT EXCEED THE FEES PAID AND PAYABLE BY YOU DURING THE PRECEDING TWELVE MONTH PERIOD. MONETARY DAMAGES AS LIMITED BY THIS SECTION SHALL SERVE AS YOUR SOLE AND EXCLUSIVE REMEDY FOR ANY CLAIM UNDER THIS AGREEMENT FOR WHICH AN EXCLUSIVE REMEDY IS NOT PROVIDED, AND AS YOUR SOLE AND EXCLUSIVE ALTERNATIVE REMEDY SHOULD ANY EXCLUSIVE REMEDY HEREUNDER BE FOUND TO FAIL OF ITS ESSENTIAL PURPOSE. NO LIMITATION AS TO DAMAGES FOR PERSONAL INJURY IS HEREBY INTENDED. 
   
   THE DISCLAIMER OF WARRANTIES AND LIMITATIONS OF LIABILITY CONTAINED IN THIS AGREEMENT ARE FUNDAMENTAL PARTS OF THE BASIS OF IMPRIVATA’S BARGAIN HEREUNDER, AND COMPANY ACKNOWLEDGES THAT SUCH PROVISIONS REPRESENT A REASONABLE ALLOCATION OF RISK.
2. Jurisdictions Preventing Limitation or Exclusion of Warranty or Liability. Since some states do not allow certain limitations or exclusions of warranties or liability, some or all of the limitations and exclusions set forth in Sections 8.4 and 9.1 above may be held unenforceable as applied to Company. In such cases, Imprivata’s liability shall be limited to the greatest extent permitted under applicable law.

Indemnification

1. Claims Related to the Software. Provided that Company complies with the procedures set forth in Section 10.5 and subject to Section 10.2, Imprivata will, at Imprivata’s expense, defend and/or settle any claim, suit or proceeding brought by a third party against Company or Company’s officers, directors, employees, and affiliates (collectively, “Company Parties”) alleging that the Software, as provided by Imprivata, infringes any copyright, trademark, trade secret or patent protectable under U.S. law that is issued as of the date of this Agreement. In addition, Imprivata will pay any judgment awarded against Company or any settlement amount agreed to by Imprivata and, subject to Section 10.5, any authorized expenses incurred by Company all in relation to the indemnified claim. This indemnity shall be the Company’s exclusive remedy with respect to any claim of infringement.
2. Exclusions. Imprivata will have no obligation under Section 10.1 with respect to any claim of infringement arising out of or based upon: (i) Company Data used with the Software or otherwise, (ii) use of the Software in any manner other than as expressly authorized and contemplated in this Agreement and the Documentation, (iii) the combination of the Software with any other software, hardware, material, or processes, or (iv) Company otherwise causing the Software to become infringing.
3. Injunction. If Imprivata reasonably believes that a claim of infringement relating to the Software may arise, Imprivata may, without limiting Imprivata’s indemnity obligations hereunder, procure the right for Company to continue to use the Software or modify the Software in a functionally equivalent manner so as to avoid such claim of infringement. If the foregoing options are not available on commercially reasonable terms and conditions, Imprivata may immediately terminate the Agreement and refund to Company a prorated amount of prepaid fees for access to the Software actually paid by Company for the remainder of the then-current Contract Year.
4. Claims Related to Company Data. Provided that Imprivata complies with the procedures set forth in Section 10.5, Company will, at Company’s expense, defend and/or settle any claim, suit or proceeding brought by a third party against Imprivata or Imprivata’s officers, directors, employees, and affiliates (collectively, “Imprivata Parties”) and arising out of or related to Company Data or any breaches of Section 2.3. In addition, Company will pay any judgment awarded against Imprivata or any settlement amount agreed to by Company and, subject to Section 10.5, any authorized expenses incurred by Imprivata all in relation to the indemnified claim.
5. Procedure. If one Party (the “Indemnitee”) receives any notice of a claim or other allegation with respect to which the other Party (the “Indemnitor”) has an obligation of indemnity hereunder, then the Indemnitee will, within 15 days of receipt of such notice, give the Indemnitor written notice of such claim or allegation setting forth in reasonable detail the facts and circumstances surrounding the claim. The Indemnitee will not make any payment or incur any costs or expenses with respect to such claim, except as requested by the Indemnitor or as necessary to comply with this procedure. The Indemnitee will not make any admission of liability or take any other action that limits the ability of the Indemnitor to defend the claim. The Indemnitor shall immediately assume the full control of the defense or settlement of such claim or allegation, including the selection and employment of counsel, and shall pay all authorized costs and expenses of such defense. The Indemnitee will fully cooperate, at the expense of the Indemnitor, in the defense or settlement of the claim. The Indemnitee shall have the right, at its own expense, to employ separate counsel and participate in the defense or settlement of the claim. The Indemnitor shall have no liability for costs or expenses incurred by the Indemnitee, except to the extent authorized by the Indemnitor or pursuant to this procedure.

General Provisions.

1. Relationship of the Parties; Third Party Beneficiaries. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary, or employment relationship between the parties. There are no third-party beneficiaries to this Agreement.
2. Force Majeure. Neither Party is responsible for delays or failures to perform its responsibilities under this Agreement (other than payment of money due) due to causes beyond its reasonable control, including: acts of God; acts of government; flood; fire; earthquakes; tornadoes; civil unrest; acts of terror; strikes or other labor problems; computer, telecommunications, internet service provider, or hosting facility failures or delays involving hardware, software, or power systems; pandemic or disease; denial of service attacks; or power failures.
3. Attorney’s Fees. The prevailing Party in disputes concerning this Agreement shall be entitled to the costs of collections and enforcement, including but not limited to reasonable attorney’s fees, court costs and all necessary expenses. Notwithstanding anything in this Agreement to the contrary, in the event of Company’s bankruptcy or insolvency, Imprivata will be entitled to recover from Company Imprivata’s costs and expenses, including, without limitation, reasonable attorneys’ fees and costs, that Imprivata incurs enforcing and/or otherwise protecting Imprivata’s rights and remedies under this Agreement or amendments and modifications thereto.
4. Company Trademarks. Company agrees that Imprivata can list Company on Imprivata’s website as a customer of Imprivata and hereby grants Imprivata a limited, non-exclusive license to copy and display Company’s logo or trademark on Imprivata’s website in connection with its customer list. Imprivata will provide samples of use upon request and will modify the use as reasonably requested by Company.
5. Notices. Any notices or other communications required to be given in writing under this Agreement (“Notices”) shall be in writing and addressed to the parties at the addresses set forth on the first page of this Agreement (or to such other address that may be designated by the receiving party from time to time in accordance with this section). Notices must be delivered by personal or courier delivery (with all fees prepaid), or certified or registered mail (in each case, return receipt requested, postage prepaid). Except as otherwise provided in this Agreement, a Notice is effective only upon receipt by the receiving party.
6. Waiver and Cumulative Remedies. No failure or delay by either Party in exercising any right under this Agreement shall constitute a waiver of that right. Other than as expressly stated herein, the remedies provided are in addition to, and not exclusive of, any other remedies available at law or in equity.
7. Invalidity. If any provision of this Agreement is determined to be illegal or unenforceable, then the provision will be deemed to be restated to reflect as nearly as possible the original intentions of the parties in a manner that complies with applicable law. The remainder of this Agreement, if capable of substantial performance, will remain in full force and effect.
8. Assignment. Neither Party may assign this Agreement or any of its rights or obligations hereunder, whether by operation of law or otherwise, without the prior written consent of the other Party, which shall not be unreasonably withheld. Notwithstanding the foregoing, Imprivata may assign this Agreement in its entirety, without the consent of Company, in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of Imprivata’s assets. Any attempt by a Party to affect an assignment in breach of this Section 11.8 shall be void. Subject to the foregoing, this Agreement shall be binding upon and inure to the benefit of the parties, their respective successors, and permitted assigns.
9. Governing Law; Venue. This Agreement and the rights and obligations of the parties will be governed by and construed in accordance with the laws of the Commonwealth of Massachusetts in the United States. The United Nations Convention on Contracts for the International Sale of Goods and the Uniform Computer Information Transactions Act (UCITA) as adopted by any state are specifically excluded from application hereunder.
10. Case Study. Company agrees to reasonably cooperate with Imprivata to serve as a reference account upon request and to allow a case study to be developed about Company’s experience (e.g. in video or text form), which Imprivata may publish or otherwise use for marketing purposes.
11. Entire Agreement; Amendment. This Agreement, including the Quote, constitutes the entire agreement between the parties with respect to the subject matter set forth herein, and supersedes all prior and contemporaneous agreements, proposals, or representations, written or oral, concerning its subject matter. No terms, provisions, or conditions of any purchase order, acknowledgement, check, or other business form that Company may use in connection with the acquisition or licensing of the Service or Software will have any effect on the rights, duties, or obligations of the parties under this Agreement, regardless of any failure of Imprivata to object to such terms, provisions, or conditions. The Quote and this Agreement shall be read together as a single agreement so as to give effect to all terms in both documents to the extent possible. To the extent there is a direct conflict between this Agreement and the Imprivata Quote, the Imprivata Quote shall control. As used in this Agreement, the terms “including,” “include,” and “includes” are not limiting and shall be deemed to be followed by the phrase “without limitation.” Use of the terms “hereunder,” “herein,” “hereby,” and similar terms refer to this Agreement. No modification, amendment, or waiver of any provision of this Agreement shall be effective unless in writing and signed by both parties hereto.
12. Export. Company agrees to comply with all U.S. export and re-export control laws and regulations and the U.S. economic sanctions, including the Export Administration Regulations (“EAR”) administered by the U.S. Department of Commerce, the laws and regulations administered by the U.S. Department of the Treasury’s Office of Foreign Assets Control, and the International Traffic in Arms Regulations (“ITAR”) administered by the U.S. Department of State, and not cause Imprivata to violate the same. Notwithstanding anything contained in this Agreement to the contrary, Company shall not export or import, directly or indirectly, the Software or information pertaining thereto to or from any country (such as Cuba, Iran, North Korea, Sudan, or Syria), to which such export or import is restricted or prohibited or as to which such government or any agency thereof requires a license or other governmental approval at the time of export or import without first obtaining such license or approval. Furthermore, Company agrees to cooperate as requested by Imprivata to ensure compliance with any such export or import restrictions. Company agrees to hold harmless and defend, to the fullest extent permitted by law, at Imprivata’s option, Imprivata and its successors and assigns from and against any fines, penalties, judgments, settlements, and reasonable documented costs, including attorney’s fees, that may arise as a result of a failure to comply with this Section 11.11 by Company’s agents, officers, directors or employees.
13. Governmental Use. If Company is a branch or agency of the United States Government or a contractor thereto, then the following provision applies. The Software and Documentation are comprised of “commercial computer software” and “commercial computer software documentation” as such terms are used in 48 C.F.R. 12.212 (Sept. 1995) and are provided to the Government (i) for acquisition by or on behalf of civilian agencies, consistent with the policies set forth in 48 C.F.R. 12.212; or (ii) for acquisition on behalf of the Department of Defense consistent with the policies set for the in 48 C.F.R. 227.7202-1 (Aug. 1995) and 227.7202-3 (Aug. 1995).