Imprivata Master License and Services Agreement

PLEASE READ THESE CUSTOMER TERMS OF SERVICE CAREFULLY: Prior to acknowledging acceptance, please be sure to carefully read and understand all of the terms, rights, and restrictions described in this Imprivata Master License and Services Agreement (this “Agreement”). This Agreement is a legal agreement between the entity identified in the applicable Order Form as the customer (“Customer”) and Imprivata, Inc. (“Imprivata”) for the Services (as defined below). Customer and Imprivata may be referred to in this Agreement individually as a “party” or jointly as the “parties”. IMPRIVATA PROVIDES THE SERVICES SOLELY ON THE TERMS AND CONDITIONS SET FORTH IN THIS AGREEMENT AND ON THE CONDITION THAT CUSTOMER ACCEPTS AND COMPLIES WITH THEM. BY OPENING, INDICATING ASSENT ELECTRONICALLY, OR DOWNLOADING, INSTALLING, COPYING, OR USING THE SERVICES, THE CUSTOMER AGREES TO ACCEPT THE TERMS AND CONDITIONS OF THIS AGREEMENT AND AGREES THAT THE CUSTOMER IS LEGALLY BOUND BY THESE TERMS. IF CUSTOMER IS A CORPORATION, GOVERNMENTAL ORGANIZATION, OR OTHER LEGAL ENTITY, THEN THE INDIVIDUAL ACCEPTING THESE TERMS HEREBY REPRESENTS AND WARRANTS THAT THEY HAVE THE RIGHT, POWER, AND AUTHORITY TO ENTER INTO THIS AGREEMENT ON BEHALF OF CUSTOMER AND BIND CUSTOMER TO THESE TERMS. IF CUSTOMER DOES NOT AGREE WITH THESE TERMS AND CONDITIONS, DO NOT CONTINUE DOWNLOADING, INSTALLING, COPYING OR USING THE SERVICES.

Definitions

The following terms shall have the following meanings:

“Affiliate” means any legal entity which directly or indirectly controls, is controlled by, or is under common control with a party to this Agreement. For purposes of this definition, “control” means direct or indirect ownership or control of more than 50% of the voting interests of the subject entity. Any legal entity will be considered an Affiliate for only such time as that interest is maintained.

“Appliance” means Imprivata virtual (or otherwise emulated) appliance that uses virtual processors.

“Cloud Service(s)” means the applicable Imprivata web-based applications, cloud features, tools and platforms purchased by Customer as set forth on an Imprivata Order Form (or its equivalent if purchasing through an authorized reseller).

“Confidential Information” means information furnished or made available directly or indirectly by the disclosing party to the receiving party which (i) is marked or clearly indicated to be confidential, proprietary, or with a similar designation; or (ii) a reasonable person would understand the information was confidential or proprietary information. Confidential Information shall not include Personal Data, which shall be governed by the Data Processing Addendum as set forth below, or protected health information, which shall be governed by a Business Associate Agreement as set forth below.

“Customer Data” means information that Customer transmitted, or that was transmitted on Customer’s behalf, to or through the Products, or that Customer stores, or displays within the Products, or that is otherwise used or processed in connection with Customer’s account. For the avoidance of doubt, Customer Data does not include any information reflecting the access or use of the Products and Services by or on behalf of Customer.

“Documentation” means Imprivata’s standard online user guides, documentation, product specifications, and training materials related to use of the applicable Products (excluding marketing materials), as updated from time to time and made available by Imprivata.

“Feedback” means suggestions, ideas, enhancement requests, recommendations or other information provided by Customer or its Users relating to the features, functionality or operation of the Products, Trial Services, or the Professional Services.

“Force Majeure Event” means an act of war, hostility, or sabotage; act of God; electrical, internet, or telecommunication outage that is not caused by the obligated party; government restrictions (including the denial or cancellation of any export or other license); or other event outside the reasonable control of the obligated party.

“Hardware” means Imprivata branded hardware devices purchased by Customer as set forth on an Imprivata Order Form (or its equivalent if purchasing through an authorized reseller) and as further described in the Hardware Product Specific Terms available at https://www.imprivata.com/uk/legal.

“Imprivata Order Form” or “Order Form” means the quote or other supplemental document (as applicable) issued by Imprivata, which specifies the Products, Services, and/or Hardware to be purchased by Customer, and the price associated with each.

“Imprivata Materials” means the Services, Documentation, and Imprivata systems and any and all other information, data, documents, materials, works, and other content, devices, methods, processes, hardware, software, and other technologies and inventions, including any deliverables, technical or functional descriptions, requirements, plans, or reports, that are provided or used by Imprivata in connection with the Services or otherwise comprise or relate to the Services or Imprivata systems. For the avoidance of doubt, Imprivata Materials include any information, data, or other content derived from Imprivata’s monitoring of Customer’s access to or use of the Services, but do not include Customer Data.

“Licensed Capacity” means Customer’s authorized usage limits as specified in the applicable Order Form.

“Managed Services” means the applicable managed services to implement and operate the Products on behalf of Customer purchased under an Imprivata Order Form (or its equivalent if purchasing through an authorized reseller) and as further available at https://www.imprivata.com/uk/legal.

“Non-Clinical User Licenses” means a named individual authorized by you to use the Products purchased (as indicated in the applicable Imprivata Order Form or its equivalent if purchasing through an authorized reseller) to provide services for or on behalf of you but does not provide healthcare to patients and at no time uses the Products to access Customer’s electronic medical record system. A separate license must be purchased for each user who uses the Products, regardless of whether the user is actively using the Products at any given time (i.e. the Products is not licensed on a concurrent user basis).

“On-Premise Software” means (i) the object code version of the applicable Imprivata on-premise proprietary software product, (ii) all modules, interfaces, updates and enhancements, thereto that are provided to you, (iii) any customized features and functions provided by Imprivata pursuant to this Agreement, and (iv) all printed materials and/or online or electronic documentation provided to you, deployed by or on behalf of Customer, as set forth in the Order Form.

“Personal Data” shall have the meaning as defined in the DPA available at https://www.imprivata.com/uk/legal/data-processing-addendum.

“Products” means collectively, the On-Premise Software and Cloud Services as set out in an Order Form.

“Product Specific Terms” means the applicable appendices, supplements and/or product operational terms for specific Products, Services and Hardware sold by Imprivata and indicated by SKU on the applicable Order Form and available at https://www.imprivata.com/uk/legal.

“Professional Services” means any installation, migration or implementation services, and any additional consultancy or professional services purchased under an Imprivata Order Form (or its equivalent if purchasing through an authorized reseller) and as described in a Statement of Work (“SOW”).

“Services” means, collectively, Managed Services, and Professional Services.

“Subscription Term” means the duration of Customer’s subscription to the applicable Products and Managed Services as set forth in the applicable Imprivata Order Form (or its equivalent if purchasing through an authorized reseller).

“Support” means the services that Imprivata provides to maintain and support the Products, which services are further described in at the terms available at https://www.imprivata.com/uk/legal/imprivata-maintenance-and-support.

“User” means an individual authorized by Customer to use the Products pursuant to a subscription of the applicable Products purchased (as indicated in the applicable Imprivata Order Form or its equivalent if purchasing through an authorized reseller) that has been procured. Users may include, for example, Customer’s and its Affiliates’ employees, consultants, clients, external users, contractors, agents, and third parties with which Customer does business. For clarity, Users used in this Agreement only acquire a right to use the Products via a subscription procured under an Imprivata Order Form and as authorized by Customer, and the quantity of Users licensed to use the Products in an Imprivata Order Form must be in accordance with the terms set forth in any Product Specific Terms as made available on Imprivata’s website.

License and Right to Use and Restrictions

License Grant for On-Premise Software. Subject to the terms and conditions of this Agreement and Customer’s payment of the applicable fees, Imprivata grants to Customer for its direct and internal business purposes a limited, non-transferable, non-sublicensable license to install and use the On-Premise Software in accordance with the Documentation and in the license quantities set out in the applicable Order Form. The applicable Order Form shall specify whether the license is subscription-based (for the duration of the applicable Subscription Term) or perpetual. Perpetual licenses apply only to the version of the On-Premise Software delivered and do not entitle Customer to updates which shall require a current Support subscription as set forth in Section 2.8 (Support).
License Grant for Cloud Services. Subject to the terms and conditions of this Agreement and Customer’s payment of the applicable fees, Imprivata grants Customer, during the Subscription Term, a non-transferable, limited, non-sublicensable license to: (i) access and use the Cloud Services solely for Customer’s internal business purposes; and (ii) provide Users access and use of the Cloud Services solely for the benefit of Customer and the operation of Customer’s business and in compliance with this Agreement. Customer is solely responsible for provisioning Users on the Cloud Services, as applicable, including: (a) methods of authenticating Users; (b) restricting access by User or group; (c) managing administrator privileges; (d) deauthorizing Customer personnel who no longer need access to the Cloud Services; and (e) maintaining security and confidentiality of User credentials. As between Customer and Imprivata, Customer is solely responsible for all activity that occurs under its User accounts. Imprivata reserves the right, in its sole discretion, to make any changes to the Cloud Services and applicable Documentation that it deems necessary or useful to: (a) maintain or enhance: (i) the quality or delivery of Imprivata’s services to its customers; (ii) the competitive strength of or market for Imprivata services; or (iii) the Cloud Services’ cost efficiency or performance; or (b) to comply with applicable law.
Affiliates. Customer may provide access and use of the applicable Products to Customer’s Affiliate’s Users or allow them to receive such applicable Products purchased under an applicable Imprivata Order Form (or its equivalent if purchasing through an authorized reseller); provided that, Customer is responsible for ensuring that each Affiliate’s use of such Products is in full compliance with the terms of the Agreement. By executing an Imprivata Order Form (or its equivalent if purchasing through an authorized reseller) hereunder, an Affiliate agrees to be bound by the terms of this Agreement as if it were an original party hereto. Customer and each Affiliate shall be jointly and severally liable for all claims and liabilities arising under this Agreement related to the Products. Customer acknowledges and agrees that the usage of each Affiliate will be included when measuring usage and subscription compliance (including incremental subscription fees, if applicable).
Customer Responsibilities. Customer will (a) ensure and be responsible for all Users compliance with this Agreement and all Imprivata Order Forms (or its equivalent if purchasing through an authorized reseller), (b) use commercially reasonable efforts to prevent unauthorized access to or use of Products, and notify Imprivata promptly of any such unauthorized access or use, (c) use Products and Services only in accordance with the Documentation and applicable laws and government regulations, (d) be responsible for the Customer systems through which the Products are accessed; (e) be responsible for any security vulnerabilities, and the consequences of such vulnerabilities, arising from Customer Data, including any viruses, Trojan horses, worms or other harmful programming routines contained in Customer Data; (f) be responsible for the accuracy, quality and legality of Customer Data and the means by which Customer acquired Customer Data and provided Customer Data to Imprivata, (g) be responsible for providing all required notices and obtaining all required consent(s) from both individuals and entities for its and its Affiliates’ provision of Customer Data to Imprivata, including for transferring Customer Data from one state, province, country, or locality to another at Customer’s or its Affiliates’ request and any resulting legal effects of such transfers, and (h) comply with terms of service of non-Imprivata applications with which Customer uses Products. For clarity, the Products do not replace the need for Customer to maintain regular back-up procedures with respect to Customer Data. Customer must in a timely manner supply the information, materials, and data Imprivata reasonably requires providing the Products and Services. Imprivata will have no responsibility for delays that result from the failure of Customer to provide such required information, materials, and data or for Customer’s failure to cooperate in the performance of Products and Services as reasonably requested. Customer is responsible for selecting and configuring the Products and Services it deems necessary to obtain the results desired or comply with laws applicable to Customer as determined by Customer. The Products and Services may include recommendations or guidance which must be evaluated by Customer.
License Restrictions. Customer is not granted a license to any intellectual property rights under this Agreement. The Products (including the source code, any modifications, improvements, enhancements or derivatives thereto), and all Documentation and outputs resulting from Services, are and shall remain the property of Imprivata. Except for the licenses granted under this Agreement, Imprivata retains all right, title, and interest in and to the Products, Documentation and Professional Services (including resulting reports or written materials), including all intellectual property rights therein and thereto. The Imprivata Materials are protected by intellectual property laws, are the property of Imprivata or its licensors (if any), and Imprivata retains all ownership rights to them. Customer shall access and use the Imprivata Materials solely for its intended purpose as described in the Documentation. Any other use is strictly prohibited. Customer will not, and will not permit any User or third party to, directly or indirectly (a) make or use any Product or the Documentation available to or for the benefit of any third party (other than Users in accordance with this Agreement), (b) sell, resell, sublicense, distribute, rent or lease any Product or any portion thereof, including the Documentation, or include any Product in a service bureau, time sharing or outsourcing offering; (c) interfere with or disrupt the integrity or performance of any Product or third-party data contained therein, (d) attempt to gain unauthorized access to any Product or its related systems or networks or use the Products in a way that circumvents a contractual, technical, or usage limit, (e) copy, translate, modify or adapt a Product or any part, feature, function or user interface thereof, (f) access any Product in order to build a competitive product or service, (g) decompile, reverse engineer or decode, translate, adapt, query, probe, or disassemble any Product, in whole or in part, nor use any methods to gain access to the source code, object code, underlying structure, ideas, know-how, algorithms, models, prompts, workflows, processes, architecture, design, configuration, security controls, or infrastructure of the Product, in whole or in part, including to observe, characterize, replicate, extract, or approximate the features, functionality, logic, decision-making processes, or behavior of the Product (h) perform any monitoring or evaluation or benchmarking, security, penetration, or other testing on any Product, or any portion thereof, or Imprivata’s performance of the applicable Product, (i) provide timesharing, service bureau, subscription or managed service, hosting, outsourcing, rental or similar services, and (j) use any output, result, response, pattern, behavior, or data generated by or observed from any Product to train, fine-tune, distill, benchmark, validate, or otherwise improve any artificial intelligence model, machine learning model, algorithm, neural network, or similar technology, whether owned by Customer or any third party. The foregoing restrictions apply whether such action or usage is conducted by a human or any artificial intelligence, machine learning, large language model, automated script, bot, crawler, scraper, agent, agentic pipeline, or any other automated or semi-automated means. Customer will use commercially reasonable measures to ensure Customer’s use of the Products do not store or transmit code, files, scripts, agents or programs intended to do harm, including, for example, viruses, worms, time bombs and Trojan horses. Customer shall not provide any competitor of Imprivata (including any employee or contractor of such competitor) with access to or use of the Products, including by read-only access, direct access through a User identification and password information, or otherwise. Customer will ensure that no proprietary notices affixed to or displayed on the On-Premise Software will be removed or modified.
Professional Services. In the event Customer purchases Professional Services to be performed by Imprivata, such Professional Services shall be set forth in the applicable SOW or Order Form detailing the project specification for such services.
Managed Services. In the event Customer purchases Managed Services to be performed by Imprivata, the specifications for such services shall be as set forth in the Managed Services Product Specific Terms or the applicable service level brief, as made available on Imprivata’s website.
Support. Imprivata shall provide Support as further described in the Maintenance and Support Terms. Support is included in the Cloud Services and/or On-Premise Software subscription cost and shall commence on delivery of the Product purchased under the applicable Imprivata Order Form (or its equivalent if purchasing through an authorized reseller) and continue for the duration of the Subscription Term. If Customer elects to purchase Support for any perpetual On-Premise Software, Customer must purchase the same level of Support for all On-Premise Software licensed by Customer. Imprivata will provide Support for any Hardware purchased under the applicable Imprivata Order Form (or its equivalent if purchasing through an authorized reseller) as further described in the Hardware Product Specific Terms.
Right to Audit, Customer Cooperation, and Monitoring.
1. Customer consents to Imprivata auditing it to ascertain Customer’s compliance with this Agreement and its Licensed Capacity, including the number of Users, and any other applicable metric used in pricing, such audit to be conducted by Imprivata or an independent auditor during Customer’s standard business hours and at Customer’s expense. If the inspection reveals underpayment of any subscription fees, Customer shall, at Imprivata’s sole discretion, promptly pay the deficit to Imprivata. If Customer does not implement analytics around performance and utilization reporting, Customer agrees to provide Imprivata with annual self-certification reports. Such reports must: (a) be signed and certified by an authorized officer of the Customer; (b) include detailed usage metrics for all Products across all environments; and (c) identify peak usage periods and maximum concurrent usage.
2. Customer will promptly cooperate with Imprivata's reasonable investigation of any suspected violation of this Agreement, including by providing relevant information regarding users, credentials, access methods, systems and data flows associated with any reasonably suspected activity. Customer will promptly cease and cause its Users to cease, any activity that Imprivata identifies in its sole discretion as violating this Agreement.
3. Imprivata may monitor use of the Products to detect, investigate, prevent, and address suspected violations of this Agreement, abnormal usage patterns, security threats, misuse, or unauthorized access. If Imprivata reasonably believes that Customer, any User, or any third party using Customer's credentials, systems, or environment has violated or is likely to violate this Agreement, Imprivata may suspend or limit access to the Products, including disable credentials, block traffic, throttle usage, and take other reasonable technical or contractual measures to protect the Products, Imprivata, its customers, and its licensors. Imprivata will use commercially reasonable efforts to tailor any suspension or limitation to the suspected violation where practicable under the circumstances.
High-Risk Activities. The Products are not fault-tolerant and are not developed or intended for use, including evaluation or trial use, in hazardous environments requiring fail-safe performance, including without limitation in the operation of nuclear facilities, aircraft navigation or control systems, air traffic control, direct life support machines or weapons systems, or any other application in which the failure of the Products could lead to death, personal injury, or severe physical or environmental damages (“High-Risk Activities”). Imprivata specifically excludes any express or implied warranty of fitness for High-Risk Activities.
Oracle Disclaimer. Some of the On-Premise Software contains software licensed by Imprivata from Oracle America, Inc. (“Oracle”). As to that software, Oracle is a third party beneficiary of this Agreement and, to the extent permitted by applicable law, Oracle disclaims any liability to you for (a) any damages, whether direct, indirect, incidental, or consequential, and (b) any loss of profits, revenue, data or data use, arising from the use of the Software. Notwithstanding Oracle’s disclaimer, all such software is Software warranted by Imprivata and subject to Imprivata’s indemnity obligations, all as set forth in this Agreement.
Non-Clinical Users. If Customer purchased a Non-Clinical User software license (as indicated in the applicable Imprivata Quote or its equivalent if purchasing through an authorized reseller) the license terms set forth in Section 2 shall apply (as applicable), provided, however, the Products may only be used by an employee, independent contractor, consultant, or outsourced worker of Customer’s that has a need to use the Products to provide services for on behalf of Customer but does not provide healthcare to patients and at no time uses the Products to access Customer’s electronic medical record system.
Artificial Intelligence Features.
1. Definitions.
  1. “AI-Enabled Features” means artificial intelligence, machine learning, or algorithmic modeling capabilities included in Products.
  2. “AI Input” means Customer Data provided by Customer to AI-Enables Features.
  3. “AI Output” means information Customer generates from the Products using AI-Enabled Features and AI Input.
2. General Terms. AI-Enabled Features are identified and described in the Documentation or the applicable Product Specific Terms. Imprivata may update the scope and description of AI-Enabled Features from time to time by updating the Documentation or Product Specific Terms. Imprivata, may, but is not obligated to, provide additional notice of such updates via email or other communication channels.
3. Third-Party AI Providers. AI-Enabled Features may incorporate services, including algorithms, models, or other technology supplied by third-party providers (“AI Providers”). Imprivata will not, and Imprivata will require such AI Providers to not, use Customer Data to train AI Provider models or other third-party artificial intelligence foundation models.
4. Intended Use. AI-Enabled Features are designed to support Customer’s internal security, compliance, and operational monitoring functions by surfacing patterns, anomalies, and analytical summaries for review by qualified Customer personnel. Customer understands and agrees that AI-Enabled Features are decision-support tools and that outputs generated by AI-Enabled Features are informational and do not constitute legal, medical, clinical, regulatory, or employment advice. Customer is solely responsible for evaluating all Outputs and making any decisions, including but not limited to personnel actions, disciplinary measures, clinical determinations, or regulatory filings, based on Customer’s own independent judgment and applicable professional standards.
5. Ownership of AI Inputs and AI Outputs. As between Customer and Imprivata, and to the extent permitted by applicable law, AI Inputs and AI Outputs shall be treated as Customer Data for purposes of this Agreement. This provision does not transfer any rights in the underlying Products or AI-Enabled Features or any of their technology, including models, algorithms, or other Imprivata Materials.
6. Customer Responsibilities for AI-Enabled Features. In addition to Customer’s obligations under Section 2.4, Customer shall: (i) ensure that only appropriately trained and qualified personnel access, interpret, and act upon AI Outputs; (ii) establish and maintain internal policies and procedures governing the use of AI-Enabled Features, including review and validation of AI Outputs prior to taking action; (iii) use AI-Enabled Features in accordance with the Documentation and all applicable laws, including without limitation employment, data privacy, anti-discrimination, and healthcare laws applicable to Customer in the operation of its business; (iv) provide all required notices to, and obtain all required consents from, individuals whose data are included in AI Inputs where required by applicable law; and (v) comply with any applicable terms set forth in Imprivata’s Acceptable Use Policy, as made available on Imprivata’s website and updated from time to time.
7. Prohibited Use. Customer shall not, and shall not permit any User or third party to, use AI-Enabled Features to: (i) make fully automated decisions with medical, legal, or similarly significant effects on individuals without human review; (ii) process data or generate AI Outputs for purposes unrelated to Customer’s authorized use of the applicable Products as described in the Documentation or in violation of applicable law; (iii) circumvent, override, or manipulate the intended operation of AI-Enabled Features, including by injecting adversarial inputs, manipulating training signals, or reverse-engineering model behavior; (iv) use AI Outputs to discriminate against any individual or group on the basis of any characteristic protected by applicable law; (v) use AI Outputs as the sole basis for imposing disciplinary action or terminating employment against any individual; or (vi) mislead any person that AI Output is solely human generated.
8. Limitations and Boundaries. Customer acknowledges and agrees that: (i) AI-Enabled Features generate probabilistic AI Outputs based on available data and may produce results that are inaccurate, incomplete, or require additional context; (ii) the performance of AI-Enabled Features depends in part on the quality, completeness, and accuracy of AI Inputs; (iii) AI-Enabled Features do not guarantee the detection of all relevant patterns, anomalies, or events, and the absence of a flagged result does not constitute confirmation that no issue exists; and (iv) Imprivata may modify, retrain, or update AI-Enabled Features from time to time, which may affect AI Outputs, (v) Customer is solely responsible for the lawfulness, development, content, operation, maintenance, provision, and use of AI Inputs; (vi) due to the nature of machine learning and the technology powering AI-Enabled Features, AI Output may not be unique, AI-Enabled Features may generate the same or similar output to Imprivata or a third party, and AI-Enabled Features may generate the same output for Customer as other Imprivata customers; and (vii) Imprivata may throttle Customer's access to AI-Enabled Features if Customer's usage materially exceeds normal usage patterns and adversely affects the performance of the Products for other Imprivata customers. If throttling does not resolve the issue, Imprivata may suspend Customer’s access to the affected AI-Enabled Features upon reasonable prior written notice to Customer, except where immediate action is necessary to prevent material harm to the Products or other customers, in which case Imprivata will notify Customer as soon as reasonably practicable thereafter. Imprivata will use commercially reasonable efforts to document material changes to AI-Enabled Features in the Documentation.
9. Allocation of Responsibility. As between Imprivata and Customer: (i) Imprivata is responsible for the design, development, and maintenance of AI-Enabled Features in accordance with Imprivata’s applicable internal policies and standards; (ii) Customer is responsible for the configuration, deployment, and use of AI-Enabled Features within Customer’s environment, including the selection of AI Inputs, interpretation of AI Outputs, and any actions taken based on such AI Outputs; and (iii) each party shall comply with applicable laws relating to the development, deployment, or use of AI-Enabled Features as applicable to such party’s role under this Agreement, consistent with Section 22.
10. Reporting AI Concerns. Customer may report concerns regarding the performance, accuracy, or behavior of AI-Enabled Features through Imprivata’s customer support portal at https://community.imprivata.com/ or through such other channel as Imprivata may designate in the Documentation or Product Specific Terms. Imprivata will acknowledge receipt of reported concerns and will use commercially reasonable efforts to investigate and respond in a timely manner consistent with the applicable support terms.

Export Controls and Economic Sanctions

Customer agrees to comply with all applicable export laws and regulations, including but not limited to: (1) the Export Administration Regulations administered by the U.S. Department of Commerce’s Bureau of Industry and Security; and (2) the trade and economic sanctions maintained by the U.S. Department of the Treasury’s Office of Foreign Assets Control. Customer shall be responsible for compliance with such laws and regulations and will obtain any required licenses and other permissions for Hardware and Products ordered pursuant to this Agreement or otherwise received from Imprivata. Without limitation of the foregoing, Customer shall not export, re-export, release, or transfer, whether directly or indirectly, the Services, Hardware, or any part thereof (1) to any country or region subject to comprehensive economic sanctions (i.e., currently Cuba, Iran, North Korea, Syria, and the Crimea Region of Ukraine), including any person or entity in any such country or region and government or government instrumentalities, wherever located, of any such country or region; or (2) to individuals or organizations, including Customer, listed on: the U.S. Department of Commerce’s Denied Persons List, Entity List, or Unverified List; the U.S. Department of the Treasury’s list of Specially Designated Nationals and Blocked Persons or Consolidated Sanctions List; or any other list of parties proscribed by the U.S. Government. Customer shall not export, re-export, release, or transfer the Services, Hardware, or any part thereof, including technical data and services, to any party, if Customer knows or has reason to know that the products, data, or services (1) are intended, entirely or in part, for a “military-intelligence end use” or a “military-intelligence end user” (as those terms are defined under 15 C.F.R. § 744.22) in Burma, Cambodia, China (including Hong Kong), Russia, or Venezuela; or (2) will be used for activities related to: (i) nuclear proliferation; (ii) chemical or biological weapons; or (iii) missile proliferation (including drone/unmanned aerial vehicles capable of 300 km or longer range). Customer agrees to indemnify and hold Imprivata harmless from and against claims, losses, costs, or liability due to its breach of this warranty Upon request from Imprivata, Customer agrees to certify compliance with these terms and provide information sufficient to verify such compliance. Customer shall indemnify and defend Imprivata from and against any loss, cost, damages, or expenses of any kind resulting from any third-party claim (including any government investigation) alleging any failure by Customer, its employees, or agents to act in accordance with this section.

U.S. Government Restricted Rights

The Products and any firmware installed on Hardware is a "commercial item," as that term is defined in 48 C.F.R. 2.101 (Oct. 1995), consisting in part of "commercial computer software" and "commercial computer software documentation," as such terms are used in 48 C.F.R. 12.212 (Sept. 1995). Consistent with 48 C.F.R. 12.212 and 48C.F.R. 227.7202-1 through 227.7202-4 (June 1995), all U.S. Government End Users acquire the Products with only those rights set forth herein. Contractor/Manufacturer is: Imprivata, Inc., 20 CityPoint, 6th floor, 480 Totten Pond Rd., Waltham, MA 02451 U.S.A.

Payment and Shipping

Payment. Imprivata will invoice Customer for all fees set forth on any Order Forms (or its equivalent if purchasing through an authorized reseller). Customer will pay invoices within 30 days of each invoice date. All payment obligations are non-cancellable and non-refundable except as explicitly set forth otherwise in this Agreement.
Payment Dispute. If there is a reasonable, good-faith dispute as to any of the fees owed to Imprivata by Customer in any invoice, then Customer may withhold disputed fees provided that Customer: (i) pay any undisputed fees contained in said invoice; (ii) deliver written notice of fees disputed to Imprivata within thirty (30) days of the invoice date, and (iii) enter into good faith negotiations to resolve the remaining dispute. In the event the parties are unable to resolve such dispute within ninety (90) days of entering into negotiations, then Imprivata may suspend the Products and Services or terminate this Agreement upon fifteen (15) days advanced written notice thereafter. This paragraph shall not apply to any other dispute between the parties.
Suspension of Service. If any undisputed fees owed by Customer under this Agreement are thirty (30) or more days overdue, Imprivata may, without limiting its other rights and remedies, (a) make late payments 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; and/or (b) suspend the Products and Services to Customer until such fees are paid in full.
Taxes. Imprivata’s fees do not include any taxes, levies, duties or similar governmental assessments of any nature, including, for example, value-added, sales, hosting, use or withholding taxes, assessable by any jurisdiction whatsoever (collectively, “Taxes”). Customer is responsible for paying all Taxes associated with Customer’s purchases hereunder. If Imprivata has the legal obligation to pay or collect Taxes for which Customer is responsible under this section, Imprivata will invoice Customer and Customer will pay that fee unless Customer provides Imprivata with a valid tax exemption certificate authorized by the appropriate taxing authority. For clarity, Imprivata is solely responsible for taxes assessable against Imprivata based on its income, property and employees.
Shipping. All shipments are Incoterms 2010: FCA, Seller's Factory. Third party authentication devices are Non-Cancelable/Non-Returnable. Customer shall bear all costs of transportation, shipping, and insurance. Risk of loss and title (except for software) passes to you upon delivery to the carrier. Customer represents and warrants to Imprivata that it will not export or import the Products and Services or any portion thereof or any Imprivata confidential information or related technical data in violation of applicable laws or regulations, including without limitation US export restriction laws and regulations relating to sales to nationals or residents of foreign nations.

Term and Termination

Term. This Agreement commences on the execution or acceptance by Customer of the first Order Form (or its equivalent if purchasing through an authorized reseller) and, unless terminated as set forth below, shall continue until the expiration or termination of the last existing Subscription Term. The length of such Subscription Terms shall be specified in the applicable Imprivata Order Form (or its equivalent if purchasing through an authorized reseller).
Termination for Cause. Either party may terminate this Agreement, applicable SOW and/or applicable Imprivata Order Form by written notice if the other party: (i) commits a material breach of this Agreement and fails to cure such breach within thirty (30) days after receiving written notice specifying such breach in reasonable detail; or (ii) becomes insolvent, commences dissolution proceedings or ceases to operate in the ordinary course of business. In addition, Imprivata may terminate this Agreement or any Imprivata Order Form immediately if Customer breaches Section 2.5 (License Restrictions).
Effect of Expiration or Termination. Upon expiration or termination of this Agreement, SOW or Imprivata Order Form, by either party, all Products and Services obtained by Customer, under this Agreement, SOW and/or Imprivata Order Form (as applicable) shall terminate, and Customer shall cease using the applicable Products and Imprivata will cease providing Managed Services and Professional Services. Upon any such expiration or termination, Customer shall promptly remit to Imprivata all unpaid fees due, or to become due, under this Agreement, SOW and/or Imprivata Order Form (as applicable). In addition to those provisions which by their nature are intended to survive any expiration or termination of this Agreement or any individual Imprivata Order Form, Section 8 (Confidentiality) and Section 11 (Limitation of Liability) shall specifically survive such expiration or termination.

Data

Customer Data. Customer grants Imprivata and its Affiliates a license to use, host, copy, transmit, and display Customer Data during the term of this Agreement solely as necessary or useful for Imprivata to provide, update, and enable functionality of the Products and Services. Imprivata agrees that all uses of Customer Data shall be in accordance with applicable law and is for Imprivata’s internal business purposes only, subject to the confidentiality obligations set forth herein. Imprivata does not sell, as such is defined in certain applicable laws, Customer Data to any third party. Subject to the limited licenses granted herein, Imprivata acquires no right, title or interest from Customer or its licensors under this Agreement in or to Customer Data.
Biometric Information. Customer agrees that as between Customer and Imprivata, Customer is the party that captures, enrolls, or otherwise collects the biometric information processed in connection with the Agreement, and Customer represents and warrants that it complies, and will comply, with all laws, rules, regulations, and orders applicable to the processing of such information under the Agreement, including all applicable biometric and privacy laws and regulations. Customer represents and warrants that it will provide all required notices and obtain all required consent(s) and/or written release(s) from any individuals from whom biometric information is collected in connection with Customer’s use of the Products. Certain Products may have consent workflows enabled to fulfill any separate and distinct duty Imprivata may have. Such prompts and collection of consent shall not be understood, interpreted, or construed to relieve Customer of its own duties. Customer agrees to indemnify and hold Imprivata harmless from and against any and all third-party claims, demands, actions, threatened actions, governmental enforcement proceedings, costs (including reasonable attorneys’ fees) liabilities, fines, penalties, and other loss arising or resulting from Customer’s breach or alleged breach of the warranties in this Section 7.3. Any such indemnification obligations shall be in accordance with the procedures set forth in Section 10. For the purpose of this Section 7.3, “biometric information” means information defined as biometric information under applicable laws, including without limitation, a retina or iris scan, fingerprint, voiceprint, or scan of hand or face geometry.
Protection of Personal Data. To the extent that Imprivata processes Personal Data in connection with the Products and Services, the parties agree to comply with the Data Processing Addendum (“DPA”) found at https://www.imprivata.com/uk/legal/data-processing-addendum, which is incorporated herein by reference, unless the parties have executed a DPA, in which case such agreement shall govern. The DPA describes how Imprivata will handle Personal Data on Customer’s behalf in connection with the Products and Services provided under this Agreement. For the sake of clarity, the EU-U.S. Data Privacy Framework, UK Extension to the EU-U.S. DPF, and Swiss-U.S. DPF (collectively, the “DPF”) shall govern third country data transfers. In the event that the DPF does not apply, reliance shall shift to the DPA, inclusive of the Standard Contractual Clauses.
Regional Data Hosting. Imprivata may store Customer Data in any geographical region or country where Imprivata locates its operations (e.g., North America or Europe) as part of its provision of Products and Services to Customer.
Transfers of Customer Data for Support. Imprivata and its Affiliates may utilize personnel (including subcontractors) to meet its obligations under this Agreement related to the Products and Services, including but not limited to troubleshooting, support, or engineering resources. Customer acknowledges that Customer Data (if provided by the Customer in screenshots and/or log files) could be accessed and viewed by non-U.S. based personnel in the provision of such support. Imprivata shall ensure that any such personnel abide by the terms of this Agreement. Notwithstanding the foregoing, Customer shall not share with or transfer to Imprivata (e.g., via use of the Products, or through screen-sharing or transmitting screenshots in the course of support and maintenance) Special Categories of Data or Sensitive Data (as such are defined in the DPA) or other data that imposes specific data security or data protection obligations on Imprivata in addition to or different from those specified in the Documentation or which are not already provided as part of the Products without Imprivata’s prior written consent.
Business Associate Agreement. To the extent applicable to the Products and Services provided to Customer, Imprivata agrees to comply with the requirements of the Health Insurance Portability and Accountability Act of 1996 (PL 104-91), the HITECH Act provisions of the American Recovery and Reinvestment Act of 2009 (PL 111-5) and regulations enacted by the United States Department of Health and Human Services at 45 C.F.R. Parts 160 – 164 solely as it relates to the performance of Imprivata’s obligations hereunder. The parties agree to comply with the provisions of the Business Associate Agreement found at https://www.imprivata.com/uk/legal/business-associate-agreement, which is incorporated herein by reference, unless the parties have executed a Business Associate Agreement, in which case such agreement shall govern. In the event of conflict between the Business Associate Agreement and any provision of this Agreement, the terms of the Business Associate Agreement shall control.
Feedback. Imprivata shall have a royalty-free, worldwide, transferable, sublicensable, irrevocable, perpetual license to use, disclose or incorporate any Feedback into its products, services, features, functionalities, and technologies. Imprivata shall have no obligation to use Feedback, and Customer shall have no obligation to provide Feedback.

Confidentiality

Each party agrees that it will take reasonable steps, at least substantially equivalent to the steps it takes to protect its own proprietary information, to (i) prevent use of the other party’s Confidential Information for any purpose other than to carry out its rights and obligations hereunder, and (ii) prevent the disclosure of the other party’s Confidential Information other than to its employees or contractors who must have access to such Confidential Information for such party to exercise its rights and perform its obligations hereunder and who each agree to be bound by agreements with a duty of confidentiality no less protective of confidential information than provided herein, and each party shall be responsible to ensure that its employees and consultants comply with the restrictions set forth herein. The parties’ obligations set forth in this section shall not apply with respect to any portion of the Confidential Information that: (i) was in the public domain at the time it was communicated to the receiving party; (ii) entered the public domain through no fault of the receiving party; (iii) is rightfully received by the receiving party from a third party without a duty of confidentiality; (iv) is independently developed by the receiving party without use of the Confidential Information; or (v) consists of generalized ideas, concepts, know-how or techniques in intangible form that is incidentally retained in the unaided memories of persons who have had authorized access to Confidential Information (provided that this exception shall not be construed to grant to either party a license to the other party’s copyrights or patents beyond those otherwise granted in this Agreement). If the receiving party is legally required to disclose any of the disclosing party’s Confidential Information, then it may do so provided that the receiving party (i) provides prompt written notice to the disclosing party (to the extent permitted by law), (ii) provides all reasonably requested assistance in attempting to limit the scope of the disclosure, and (iii) only discloses Confidential Information to the extent actually required by law.

Warranties and Disclaimers

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.
Limited Warranty and Remedy for Cloud Services. Imprivata represents and warrants that the Cloud Services during the Subscription Term: (i) will conform substantially to the applicable Documentation; and (ii) the overall functionality and security of the Cloud Services will not materially decrease in the applicable Documentation. This warranty is a limited warranty. It does not apply to: (a) Cloud Services and other products identified in their product description as being sold or licensed "as-is" or (b) Cloud Services and other products identified as "beta" or "pre-release" or the like; all of which are supplied on an "as-is" basis without any warranty of any kind. Imprivata will have no obligation hereunder if the alleged defect is due to (x) causes not within Imprivata’s reasonable control, including accident, alteration, abuse, or misuse or (y) use of the Cloud Services other than in accordance with the Documentation. IMPRIVATA’S SOLE LIABILITY, AND CUSTOMER’S SOLE AND EXCLUSIVE REMEDY, FOR ANY BREACH OF THE FOREGOING CLOUD SERVICES WARRANTY IS THAT IMPRIVATA SHALL, AT ITS OPTION, REPAIR OR REPLACE THE CLOUD SERVICES SO THAT IT CONFORMS TO THE LIMITED WARRANTY SET FORTH ABOVE OR TERMINATE THIS AGREEMENT AND, REFUND TO CUSTOMER THE PRICE PAID FOR THE REMAINDER OF THE THEN-CURRENT SUBSCRIPTION TERM.
Limited Warranty for On-Premise Software. Imprivata represents and warrants that the On-Premise Software will conform substantially to Imprivata’s Documentation for sixty (60) days following the delivery of the On-Premise Software. This warranty is a limited warranty. It does not apply to: (a) On-Premise Software and other products identified in their product description as being sold or licensed "as-is" or (b) On-Premise Software and other products identified as "beta" or "pre-release" or the like; all of which are supplied on an "as-is" basis without any warranty of any kind. Imprivata will have no obligation hereunder if the alleged defect is due to (x) causes not within Imprivata’s reasonable control, including accident, alteration, abuse, or misuse or (y) use of the On-Premise Software other than in accordance with the Documentation. IMPRIVATA’S SOLE LIABILITY, AND CUSTOMER’S SOLE AND EXCLUSIVE REMEDY, FOR ANY BREACH OF THE FOREGOING ON-PREMISE SOFTWARE WARRANTY IS THAT IMPRIVATA SHALL, AT ITS OPTION, REPAIR OR REPLACE ANY MATERIAL, REPRODUCIBLE IMPAIRMENT TO THE FEATURES AND FUNCTIONALITY OF THE ON-PREMISE SOFTWARE (OR DEFECTIVE PORTION OF THE ON-PREMISE SOFTWARE) SO THAT IT CONFORMS TO THE LIMITED WARRANTY SET FORTH ABOVE OR TERMINATE THIS AGREEMENT AND, REFUND TO CUSTOMER THE PRICE PAID FOR THE REMAINDER OF THE THEN-CURRENT SUBSCRIPTION TERM. IN WHICH CASE, CUSTOMER SHALL IMMEDIATELY RETURN AND CEASE ALL COPIES OF THE SOFTWARE AND DOCUMENTATION.
Limited Warranty for Services. Imprivata represents and warrants that the Services will be performed in a good, professional and workmanlike manner consistent with generally accepted industry standards. This warranty is a limited warranty. For any breach of the foregoing warranty, Imprivata’s sole liability, and CUSTOMER’S sole and exclusive remedy shall be for Imprivata to re-perform such Services, OR AT IMPRIVATA’S OPTION, REFUNDING THE FEES PAID TO IMPRIVATA FOR THE DEFICIENT SERVICES. Customer must notify Imprivata in writing of any such breach within thirty (30) days after the performance of the applicable Services.
DISCLAIMERS. EXCEPT AS OTHERWISE SPECFICALLY PROVIDED HEREIN AND TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IMPRIVATA MAKES NO REPRESENTATIONS OR WARRANTIES OTHER THAN THOSE SPECIFIED IN THIS SECTION 9 AND ALL OTHER REPRESENTATIONS OR WARRANTIES (EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE) ARE EXPRESSLY DISCLAIMED, INCLUDING THOSE WARRANTIES AS TO QUALITY, CONDITION, ACCURACY OR COMPLETENESS OF RESPONSES, RESULTS, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NONINFRINGEMENT. WITHOUT LIMITING THE FOREGOING, IMPRIVATA DOES NOT WARRANT (I) THAT THE PRODUCTS, SERVICES OR THE DOCUMENTATION WILL BE FREE FROM ANY INTERRUPTIONS, DELAYS, INACCURACIES, SERVER DOWN-TIME, ERRORS, OR OMISSIONS, (II) THE PERFORMANCE OR RESULTS CUSTOMER MAY OBTAIN BY RECEIVING THE PRODUCTS OR SERVICES OR USING THE DOCUMENTATION, (III) THE PRODUCTS, SERVICES OR DOCUMENTATION WILL MEET CUSTOMER’S REQUIREMENTS, OR (IV) USE OF THE PRODUCTS OR SERVICES OTHER THAN AS PERMITTED IN THIS AGREEMENT OR THE DOCUMENTATION. THE PRODUCTS AND SERVICES ARE A MONITORING AND/OR ADMINISTRATIVE TOOL DESIGNED TO ENABLE CUSTOMER IN THE MANAGEMENT OF CUSTOMER’S BUSINESS OPERATIONS. IMPRIVATA DOES NOT PROVIDE LEGAL, SECURITY, OR MEDICAL ADVICE AND DISCLAIMS RESPONSIBILITY FOR ANY PRODUCTS OR SERVICES CUSTOMER INTERPRETS AS SUCH. NO REPRESENTATION OR OTHER AFFIRMATION OF FACT, INCLUDING STATEMENTS REGARDING CAPACITY, SUITABILITY FOR USE, OR PERFORMANCE OF THE PRODUCTS, SERVICES OR DOCUMENTATION NOT CONTAINED IN THIS AGREEMENT, OR RECOMMENDATIONS MADE AS PART OF OR IN CONNECTION WITH THE PRODUCTS AND SERVICES, SHALL BE DEEMED TO BE A WARRANTY, CONDITION, REPRESENTATION, OR GUARANTEE BY IMPRIVATA. Customer will have sole responsibility for the adequate protection and backup of Customer’s data and/or equipment. Imprivata is not responsible for restoring lost data or damage to Customer Data that results from Customer’s actions. THIS LIMITED WARRANTY GIVES CUSTOMER SPECIFIC RIGHTS. CUSTOMER UNDERSTANDS AND AGREES THAT ANY MATERIAL AND/OR DATA OBTAINED THROUGH THE USE OF ANY AI-ENABLED FEATURE IS DONE AT ITS SOLE RISK. CUSTOMER SHOULD NOT RELY ON FACTUAL ASSERTIONS IN AI OUTPUT WITHOUT INDEPENDENTLY FACT-CHECKING ITS ACCURACY. AI OUTPUT THAT APPEARS ACCURATE BECAUSE OF ITS DETAIL OF SPECIFICITY MAY STILL CONTAIN MATERIAL INACCURACIES. AI-ENABLED FEATURES CANNOT DYNAMICALLY RETRIEVE INFORMATION, AND AI OUTPUT MAY NOT ACCOUNT FOR EVENTS OR CHANGES TO UNDERLYING FACTS OCCURRING AFTER THE AI MODEL WAS TRAINED. CUSTOMER MAY HAVE OTHER RIGHTS THAT VARY FROM STATE TO STATE, AND COUNTRY TO COUNTRY.

Indemnification

Indemnification by Imprivata. Imprivata will defend Customer from and against third party claims (and will pay any resulting judgements awarded by a court of final jurisdiction or settlements entered into in accordance with Section 10.3 below) arising solely from a claim that the Products as provided by Imprivata infringe any United States or European Union patent or any copyright rights (in or of countries that are signatories to the Berne Convention) of a third party. Notwithstanding anything to the contrary herein, Imprivata shall have no obligation to indemnify Customer for infringement claims arising in whole or in part from: (1) designs, processes, specifications or modifications originated or requested by Customer; (2) the combination of the Products or any part thereof with other equipment, software, process, or products not supplied by Imprivata if such infringement or misappropriation would not have occurred but for such combination; (3) Customer’s failure to install an update, where same would have avoided such claim; or (4) Customer’s use of the Imprivata Materials in violation of Section 2.5. Customer will indemnify and hold Imprivata harmless from and against claims that are the subject of clauses (1)-(3). In the event that the use or sale of any of the Products is enjoined or, in Imprivata’s judgment may become subject to a claim of infringement, Imprivata may: (i) procure for Customer the right to continue to use the Products, (ii) replace the infringing portion with a materially functionally equivalent product or modify it to address any potential infringement, or (iii) remove Customer’s access to the Products and reimburse Customer for any prepaid fees for the remainder of the applicable Subscription Term on a pro-rata basis. THIS SECTION STATES IMPRIVATA’S ENTIRE LIABILITY TO CUSTOMER AND CUSTOMER’S SOLE REMEDY FOR ANY INFRINGEMENT CLAIMS CONCERNING THE PRODUCTS.
Indemnification by Customer. Customer will defend Imprivata against any claim, demand, suit or proceeding made or brought against Imprivata by a third party (a) alleging Customer’s unauthorized use of the Products or Services infringes or misappropriates such third party’s intellectual property rights, or (b) alleging that Customer Data or Customer’s use of Customer Data with the Products or Services violates applicable law or regulation (each a “Claim Against Imprivata”), and will indemnify Imprivata from any damages, attorney fees and costs finally awarded against Imprivata as a result of, or for any fees paid by Imprivata under a court-approved settlement of, a Claim Against Imprivata. Customer’s obligation is subject to Imprivata’s compliance with the procedures set forth in Section 10.3.
Indemnification Procedure. If a party (the “Indemnified Party”) becomes aware of any matter for which it has a right to indemnity under this Agreement (each an “Action”), the Indemnified Party will promptly notify the other Party (the “Indemnifying Party”) in writing of such Action, provided however, that the failure to promptly notify shall not affect the obligations of the Indemnifying Party except to the extent that such failure actually prejudiced the Indemnifying Party. The Indemnified party will grant sole control over the defense and settlement of the Action to the Indemnifying Party (and its insurer, if applicable), and cooperate in the defense of such Action at the Indemnifying Party’s expense as reasonably requested. The Indemnifying Party has no obligation to indemnify the Indemnified Party in connection with any settlement made without the Indemnifying Party’s prior written consent. The Indemnified Party shall be permitted to monitor the defense of any such Action with counsel of its choosing at its sole cost and expense.

Limitation of Liability

EXCEPTING ONLY IN THE EVENT OF A BREACH BY CUSTOMER OF SECTION 2 (“LICENSE AND RIGHT TO USE AND RESTRICTIONS”) OR A BREACH BY EITHER PARTY OF SECTION 8 (“CONFIDENTIALITY”), IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR ANY INDIRECT, INCIDENTAL, PUNITIVE, CONSEQUENTIAL, EXEMPLARY, SPECIAL, LOSS OF DATA, OR LOST PROFITS DAMAGES OF ANY KIND (INCLUDING ANY LOST REVENUE, PROFITS, SAVINGS, BUSINESS OPPORTUNITIES, USE, OR GOODWILL) HOWEVER ARISING, REGARDLESS OF WHETHER SUCH DAMAGES ARE FORESEEABLE AND WHETHER EITHER PARTY HAS BEEN ADVISED OF THE POSSIBILITY OR LIKELIHOOD OF SUCH DAMAGES. IN NO EVENT SHALL THE AGGREGATE LIABILITY OF IMPRIVATA EXCEED THE FEES PAID AND PAYABLE BY CUSTOMER UNDER THE AGREEMENT DURING THE PRECEDING TWELVE-MONTH PERIOD FOR THE APPLICABLE PRODUCTS GIVING RISE TO THE LIABILITY CLAIM(S). MONETARY DAMAGES AS LIMITED BY THIS SECTION SHALL SERVE AS CUSTOMER’S SOLE AND EXCLUSIVE REMEDY FOR ANY CLAIM ARISING UNDER OR RELATING TO THIS AGREEMENT OR THE SUBJECT MATTER OF THIS AGREEMENT FOR WHICH AN EXCLUSIVE REMEDY IS NOT PROVIDED, AND AS CUSTOMER’S SOLE AND EXCLUSIVE ALTERNATIVE REMEDY SHOULD ANY EXCLUSIVE REMEDY HEREUNDER BE FOUND TO FAIL OF ITS ESSENTIAL PURPOSE.

Customer List

Only with Customer’s prior written consent, Customer agrees that Imprivata may include Customer’s name and logo on its customer lists, including in on-line on its website and any printed materials. Customer acknowledges and agrees that Imprivata does not certify or endorse and has no obligation to certify any of Customer’s products or services.

Force Majeure

Neither party is responsible for any delays or failure in performance (except for payment of fees owed) to the extent that such failure is due to a Force Majeure Event. Both parties will use reasonable efforts to mitigate the effect of a Force Majeure Event. This section does not excuse either party’s obligation to take reasonable steps to follow its normal disaster recovery procedures.

Governing Law

This Agreement shall be governed by and construed in accordance with the laws of the Commonwealth of Massachusetts, without regard for principles of conflict of laws. Each party hereby consents and submits to the jurisdiction and forum of the state and federal courts in the Commonwealth of Massachusetts in all questions and controversies arising out of or relating to this Agreement or its subject matter. 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.

Equitable Relief

The parties agree that, because of the proprietary nature of their respective Confidential Information, legal remedies due to a party’s breach of its obligations under this Agreement may be inadequate and that in the event of a breach or threatened breach, a party may be entitled to seek equitable relief, including injunctive relief, without the posting of any bond, in addition to all other remedies provided under this Agreement or available at law.

Assignment

This Agreement is binding upon and inures to the benefit of the parties, their successors and permitted assigns. Neither party may assign or transfer its rights hereunder without the other party’s prior written consent, provided that Imprivata may assign this Agreement in connection with a merger, corporate reorganization, consolidation, or the sale of all or substantially all of its assets or equity, or the sale, transfer, or other disposition of a business unit, product line, or division to which this Agreement relates.

Entire Agreement

This Agreement, together with any Imprivata Order(s) and any additional terms incorporated by reference, constitute the entire agreement between the parties pertaining to the subject matter hereof, and supersedes all prior and contemporaneous agreements, representations and understandings, whether written or oral with respect to such subject matter. Imprivata shall not be subject to any provisions of any pre-printed purchase order, or any of Customer’s policies, regulations, rules, or the like, including those set forth in any of Customer’s sponsored registration system (collectively, “Policies”), even if such Policies require affirmative acknowledgement from a Imprivata representative. In the event of any conflict or inconsistency among the following documents, the descending order of precedence shall be: (a) the applicable Order Form between Imprivata and Customer, (b) this Agreement, and (c) the Documentation. No modification, amendment or waiver of any provision of this Agreement will be effective unless in writing and signed or accepted by the parties hereto, except as expressly set forth herein; however, Imprivata may update the Documentation as otherwise posted on Imprivata’s website. For clarity, all URL terms referenced herein include any updates made thereto and posted on such website or on a successor website designated by Imprivata. Any failure to enforce any provision of this Agreement shall not constitute a waiver thereof or of any other provision. The parties hereby consent to the use of electronic signatures in connection with the execution of this Agreement, any Order Form, or any other document to be delivered in connection herewith and agree that such electronic signatures shall be legally binding with the same force and effect as delivery of an original executed copy.

Severability

If any provision of this Agreement or the application thereof to any party or circumstances shall, to any extent, now or hereafter be or become invalid or unenforceable, the remainder of this Agreement shall not be affected thereby, and every other provision of this Agreement shall be valid and enforceable to the fullest extent permitted by law. Section headings used in this Agreement are intended for convenience only and shall not affect the interpretation or construction of this Agreement.

Independent Contractors

The parties are independent contractors. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between the parties. There are no third-party beneficiaries under this Agreement.

Product Specific Terms

Certain Products are subject to certain additional terms located in Order Form Supplements and/or certain product specific terms contained within Product Specific Terms, as available on Imprivata’s website.

Future Products

Imprivata may from time to time, prior to or during the term of this Agreement, disclose to Customer information related to planned future products, features or enhancements on its product roadmap. Imprivata’s development efforts and plans are subject to change at any time, without notice; Imprivata provides no assurances that Imprivata will introduce any such future products, features or enhancements. Customer acknowledges and agrees that its current purchasing decisions are not made based on the reliance on any such future timeframes or prospective roadmap features shared with Customer.

Evaluation, Trial or Beta Products

If Imprivata may offer certain Products to Customer for evaluation, trial or beta purposes (“Trial Services”), Customer may use such access solely for the purpose of evaluating the Products to determine whether to purchase a license or subscription. In such event, Imprivata grants to Customer a nonexclusive, limited, royalty-free, nontransferable right to use the Trial Services solely for Customer’s internal evaluation purposes during the period designated by Imprivata on the Order Form (or if not designated, 30 days). Notwithstanding any other provision contained herein, such Trial Services are provided to Customer “as is” without indemnification, support, service level agreement, or warranty of any kind, express or implied. Imprivata assumes no liability arising out of or in connection with Customer’s use of such Trial Services and shall not be liable for any direct, indirect, special, incidental, consequential, or punitive damages of any kind, except with respect to losses that cannot be legally limited or excluded under law, related to Customer’s use of the Trial Services. Except to the extent the terms in this section conflict with the terms set forth in this Agreement, all other terms of this Agreement shall apply to the Trial Services. Customer may not use Trial Services for any other purposes, including but not limited to competitive analysis, commercial, professional, product development, or for-profit purposes. Imprivata may terminate Customer’s access to the Trial Services upon written notice at any time for any reason and without liability of any kind.

Applicable Laws

Imprivata shall comply with all applicable laws to the extent that such laws by their terms are expressly applicable to Imprivata’s delivery of the Products and/or Services under this Agreement as it pertains in the operation of its business and in its role as a software and services provider under this Agreement. Customer shall comply with all applicable laws to the extent that such laws by their terms, are expressly applicable to Customer’s use and receipt of the Products and/or Services under this Agreement and impose obligations upon Customer with respect to the Products and/or Services provided under this Agreement. Customer is solely responsible for determining whether the Products and/or Services enable Customer to comply with laws applicable to Customer.

No Waiver

The failure of either party at any time to require performance by the other party of any provision of this Agreement shall in no way affect that party’s right to enforce such provisions, nor shall the waiver by either party of any breach of any provision of this Agreement be taken or held to be a waiver of any further breach of the same provision.

Counterparts

This Agreement may be executed in one or more counterparts, each of which shall be deemed to be a duplicate original, but all of which, taken together, shall be deemed to constitute a single instrument. This Agreement may be executed by facsimile or by electronic transmission of a pdf file.

Notice

Except as may be otherwise set forth herein, all notices, requests, demands and other communications hereunder will be in writing (email acceptable) and will be deemed to have been duly given: (i) on the next day if delivered personally or electronically to such party; (ii) on the date three (3) days after mailing if mailed by registered or certified mail; or (iii) on the next day if delivered by courier. All notices to Imprivata shall be sent to the following address: Imprivata, Inc., Attn: Legal Department, 20 CityPoint 480 Totten Pond Road, 6th Floor, Waltham, MA 02451 or dept.legal@IMPRIVATA.com. Customer may designate in writing the relevant contact to which all notices shall be addressed.