Terms

Vyasa Software License and Services Agreement

THIS SOFTWARE LICENSE AND SERVICES AGREEMENT (“Agreement”) is entered into as of August 24, 2022 (the “Effective Date”) by and between VYASA ANALYTICS, LLC, a limited liability company organized and existing under the laws of the State of Delaware (together with its affiliates and subsidiaries, “Vyasa”), [Client]. a corporation organized and existing under the laws of [Location], (the “Client”). In consideration of the mutual covenants and promises contained in this Agreement, the parties agree as follows:

1. DEFINITIONS.

The following capitalized terms will have the meanings set forth below when used in this Agreement:

1.1Confidential Information” means any and all trade secrets, proprietary or confidential information,  in whatever form, that are owned by a party and/ or reasonably considered by it to be confidential, that a party has disclosed to the other party prior to the Effective Date, or that a party may disclose to the other party on or after the Effective Date.  Notwithstanding the foregoing, the following will not constitute Confidential Information for purposes of this Agreement: (a) information which was already in the receiving party’s possession as a matter of record prior to the Effective Date; (b) information that is independently developed by the receiving party as a matter of record; (c) information that is obtained from a third party who is not prohibited from transmitting the information to the receiving party by a contractual, legal or fiduciary obligation to the disclosing party; and (d) information which is or which becomes generally available to the public other than as a result of disclosure by the receiving party.

1.2Client Data” means data owned by Client and provided by Client to or accessed by Vyasa in connection with this Agreement.

1.3Critical Errors” means an Error, Defect, or Omission that causes the functionality of the Licensed Work to be severely impaired, thereby causing a critical impact on Client’s business operations.

1.4Derivative Work” has the meaning as defined in the Copyright Act, 17 U.S.C. § 101 (2000).

1.5Documentation” means the standard user manual or other documentation, specifications, written instructions or explanatory material related to the installation, operation, use or maintenance of the Software and any subsequent versions thereof, if any, that Client may receive from Vyasa hereunder.

1.6Error, Defect, or Omission” means and includes deviations within the Software, if any, that: (a) prevent such Software from operating in accordance with any applicable specifications, or (b) causes an impact on Client’s business operations, but is not a Significant Error or a Critical Error.

1.7Intellectual Property Rights” means all intellectual property rights protected by law throughout the world, including all copyrights, copyright registrations and applications, trademark rights (including trade dress), trademark registrations and applications, patent rights (including the right to apply therefor), patent applications (including the right to claim priority under applicable international conventions) and all patents issuing thereon, industrial property rights, inventions (whether or not patentable), together with all utility and design, know-how, specifications, trade names, mask-work rights, trade secrets, moral rights, author’s rights, algorithms, rights in packaging, goodwill, and other intellectual and industrial property rights, as may exist now and hereafter come into existence, and all renewals and extensions thereof, regardless of whether any of such rights arise under the laws of the United States or of any other state, country or jurisdiction.

1.8Licensed Work” means the number of instances of Software specified in an applicable SOW, and any related Documentation, collectively. 

1.9Maintenance Services” shall have the meaning set forth in Article 11 (Support & Maintenance) of this Agreement.

1.10Maintenance Services Fee” means the amount stated in the applicable Statement of Work as the consideration to be paid to Vyasa for its rendering of the Maintenance Services, if any. 

1.11Other Errors” means an Error, Defect or Omission that is not a Critical Error or a Significant Error.

1.12Scope of License” means to generate models used for [Client business specific purpose.]

1.13 Significant Error” means an Error, Defect or Omission that has a material impact on Client’s business operation, but is not a Critical Error.

1.14Software” means the computer software programs owned by Vyasa or Vyasa’s licensors and identified in an applicable Statement of Work under the heading “Software” in object code and binary file form, inclusive of any authorized copies thereof.

1.15Statement of Work” or “SOW” means one or more Statements of Work substantially in the form attached hereto at Exhibit A, each of which is signed by both parties.  In the event of a conflict or inconsistency between the provisions of this Agreement and the provisions of any Statement of Work, the provisions of this Agreement shall control, except to the extent the Statement of Work expressly references the conflicting or inconsistent provision of this Agreement and the parties’ intent that such provisions be superseded by the conflicting or inconsistent provision set forth in the applicable Statement of Work.

2. LICENSE GRANTS AND RESTRICTIONS.

2.1 License Grant.  Subject at all times to Client’s timely payment of all applicable Fees provided for herein and compliance with the terms of this Agreement, Vyasa grants to Client a limited, non-exclusive, revocable, terminable, right and license, without a right to sublicense, to use the Licensed Work solely as necessary within the Scope of License.  

2.2 Restrictions.  Except as expressly set forth in this Agreement, Client shall not: 

(i) decompile, disassemble, or otherwise reverse engineer or attempt to reconstruct or discover, in any way, any source code, programming, algorithms, design structure, interoperability interfaces, concepts, construction methods underlying ideas, or file formats of the Licensed Work, for any purpose; 

(ii) remove any identification markings, including but not limited to copyright notices and trademarks, from the Licensed Work; 

(iii) make any modification, enhancement, or Derivative Work of the Licensed Work, or incorporate the Licensed Work, or any portion thereof, into or with any software not provided by Vyasa;

(iv) copy, sell, lease, assign, distribute or transfer in any manner or form, in whole or in part, the Licensed Work or any Derivative Work except as provided expressly under Section 7 (Assignment); or 

(v) use the Licensed Work to develop or distribute any software product that competes in the marketplace with the Software. 

2.3 Permitted Copies of Documentation.  Notwithstanding the foregoing, Client may make copies of the Documentation, containing all legends, trademarks, trade names, copyright notices and other identifications associated with the original, to the extent reasonably necessary to permit access to and use of the Documentation by Client pursuant to the license under Section 2.1.

2.4 Reservation of Rights.  Except as expressly set forth in this Agreement, Client acknowledges and agrees that this Agreement does not grant Client any rights to the Licensed Work, including, but not limited to, any rights to the source code for the Licensed Work. Except as expressly set forth in this Agreement, all right, title and interest in and to the Licensed Work and all Intellectual Property Rights in and to the Licensed Work (including but not limited to all computer codes, animations, logos, images and text therein and any improvements thereto) are the sole and exclusive property of Vyasa.  All rights not expressly granted herein to Client are reserved to Vyasa. Client hereby acknowledges and agrees that all right, title, and interest in and to the Licensed Work (including, without limitation, all patent rights, copyrights, trademarks, service marks, related goodwill, and confidential and proprietary information) and all modifications and, except as set forth in Section 7, improvements thereto (including ideas and know-how) and Derivative Works based thereon, developed by Vyasa are and will remain the property of Vyasa.   

2.5 Excluded from License.  Client acknowledges that Vyasa has, and will from time to time create other computer software programs that may be based upon or related to the Software and that those other programs are not licensed to Client under this Agreement.

2.6 No Other Obligations.  Except as specifically set forth in this Agreement, Client acknowledges and agrees that Vyasa shall not have any responsibility for providing Client with any services, support, product, upgrades or other enhancements for or in connection with, and that Vyasa is under no obligation to create any product upgrades or enhancements to the Licensed Work, except as expressly stated hereunder.

3. FEES AND PAYMENTS.

3.1 Fees.  Client shall pay Vyasa the license fees, and all other fees as set forth in the applicable Statement of Work (the “Fees”).  

3.2 Payment Terms.  All Fees will be invoiced monthly in advance and are due and payable within thirty (30) calendar days of the invoice date.  In the event that a portion of any invoice submitted by Vyasa hereunder is disputed in good faith by Client, then Client shall pay the undisputed amounts as set forth above and the parties shall use good faith efforts to reconcile any disputed amount within thirty (30) days of the date of Client’s receipt of the applicable invoice, following which Client shall promptly remit such reconciled amount, if any, to Vyasa. 

3.3 Exclusions.  The amounts due to Vyasa under this Agreement do not include taxes, duties or similar fees.  If Vyasa is required to pay any sales, use, property, value-added, withholding or other taxes, duties or fees based on the licenses granted under this Agreement or on Client’s use of the Licensed Work, then such taxes, duties or fees will be billed to and paid by Client.  If Client is permitted to declare any such taxes, Client will declare and pay such taxes and Vyasa will not be required to invoice Client.  This Section 3.3 does not apply to and Client shall not be required to pay taxes based on Vyasa’s gross receipts, income or payroll taxes. 

3.4 Past Due Invoices.  All past due amounts of invoices not subject to a good faith dispute will accrue interest at the lesser of: (i) one and one-half percent (1.5%) per month; or (ii) the maximum rate permitted by applicable law.

4. WARRANTIES AND DISCLAIMERS.

4.1 Vyasa Software Warranty. Vyasa warrants to Client that, during the Term the Software will: (i) perform materially in accordance with the specifications and other standards established by the Vyasa for the Software; (ii) operate in good working order; and (iii) be free of defects and malfunctions that materially and adversely affect the operations or functions of the Software; provided, however, that Vyasa does not warrant that the Software will be free of errors. If notified in writing by Client during the applicable Warranty Period, that the Software does not conform to any one or more of the foregoing warranties, Client’s sole remedy is that Vyasa will use its reasonable efforts to correct such non-conformance within a reasonable time, not to exceed thirty (30) days.  

4.2 Vyasa Additional Software Warranties.  Vyasa further warrants to Client that: (a) that the Software is owned or lawfully obtained, in whole or in part, by Vyasa; (b) that Vyasa has the right and authority to grant Client the licenses to the Software, as set forth in this Agreement; and (c) Vyasa uses industry standard practices and measures to ensure that neither the Licensed Work nor any medium by which the Licensed Work is delivered to Client contains any virus or any other contaminant or disabling devices including, but not limited to, Trojan horses, time bombs, backdoors, undocumented/unauthorized access, codes, commands or instructions that might reasonably: (i) alter, delete, damage, limit or disable; or (ii) be used to access, alter, delete, damage, limit or disable, in any such case, the Software or Client data. 

4.3 Mutual Warranties.  Each party represents and warrants to the other party that: (i) such party has the full corporate power and authority to execute and deliver this Agreement and to consummate the transactions contemplated hereby and has taken all necessary corporate action to authorize the execution and delivery of this Agreement and (ii) this Agreement is and shall be the legal, valid, and binding obligation of such party and shall be enforceable in accordance with its terms.

4.4 Disclaimer of Warranties.  EXCEPT AS EXPRESSLY PROVIDED IN SECTIONS 4.1, 4.2, and 4.3 OF THIS AGREEMENT, THE LICENSED WORK IS PROVIDED OR MADE AVAILABLE TO CLIENT “AS IS”, WITH ALL FAULTS AND WITHOUT WARRANTY OF ANY KIND, AND VYASA HEREBY DISCLAIMS ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION ANY WARRANTY OF MERCHANTABILITY, QUIET ENJOYMENT, INTEGRATION, INTELLECTUAL PROPERTY, SATISFACTORY QUALITY OR FITNESS FOR A PARTICULAR PURPOSE.  ANY WARRANTIES MADE HEREUNDER ARE MADE ONLY TO CLIENT AND ONLY FOR CLIENT’S BENEFIT, AND VYASA SHALL HAVE NO LIABILITY TO ANY THIRD PARTY WITH RESPECT TO THE LICENSED WORK AS A RESULT OF SUCH WARRANTY. THE FOREGOING WARRANTIES ARE IN LIEU OF ALL OTHER WARRANTIES, EXPRESS OR IMPLIED.

5. LIMITATION OF LIABILITY.

5.1 Limitation of Liability.  Except for liability arising under Article 6 (Indemnity), or a violation of Section 2.2 (Restrictions), Article 7 (Intellectual Property Ownership), Article 8 (Confidential Information), Article 9 (Trademarks), or Section 14.2 (Non-Solicitation), in each case for which there shall be no limitation of liability, neither party (nor any of their representatives) shall be liable hereunder for any special, incidental, punitive, indirect or consequential damages whatsoever, whether such damages arise in contract, tort (including negligence) or otherwise, including but not limited to lost profits or revenues, business interruption, overhead costs, and damages arising out of commitments to subcontractors or personal services contracts, even if the other party has been advised or should have known of the possibility of such damages.

5.2 No Vyasa Liability.  Notwithstanding any provision in this Agreement to the contrary, Vyasa will not be responsible for and will bear no liability for any damages arising from any use of the Licensed Work, or any stoppages, slowdowns, performance problems or other problems that are the result of the Internet or the Client’s internet access providers.

6. INDEMNITY.

6.1 Vyasa Indemnification Obligation.  Vyasa shall indemnify, hold harmless and defend Client and its representatives against any final award of costs (including, but not limited to, court costs and reasonable attorney’s fees) and damages arising out of or in connection with any third party claims, demands, actions, suits or proceedings (“Loss”)  arising out of: (1) Vyasa’s gross negligence or willful misconduct; (2) breach by Vyasa of applicable laws; (3) infringement of any U.S. registered trademark or copyright, or misappropriation of trade secrets of any third party, relating directly to the Software and/or Documentation; or (4) for death or personal injury caused by the gross negligence or willful misconduct of Vyasa arising out of the performance of the Maintenance Services; provided, however, that: (a) Client promptly notifies Vyasa in writing no later than thirty (30) days after Client’s notice of any potential claim; (b) Client permits Vyasa sole rights to defend, compromise or settle the claim; and (c) Client gives Vyasa all necessary information, reasonable assistance (at Vyasa’s expense), and authority to enable Vyasa to do so.  Vyasa shall not agree to any settlement of an infringement claim that would require any payments by Client, without Client’s prior written consent, which consent shall not unreasonably be withheld or delayed.

6.2 Obligations in Event of Infringement.  If the Software or any portion of the Software becomes, or in Vyasa’s opinion is likely to become subject to any claim of infringement, Vyasa will either (a) procure for Client the right to continue exercising its rights under this Agreement with respect to the Software; or (b) replace or modify the Software to make it non-infringing, or if neither (a) or (b) are, in Vyasa’s reasonable discretion, commercially feasible, terminate the licenses to the corresponding Software granted under this Agreement and refund to Client license any unearned fees paid to Vyasa.

6.3 Exclusions from Vyasa’s Indemnification Obligation.  Notwithstanding the foregoing, Vyasa will have no liability for any Loss based on or arising out of a third party claim of infringement to the extent such third party claim is based upon or arising out of Client’s: (a) use of a superseded and no longer supported or Client-altered release of the Software and/or Documentation if the infringement would have been avoided by the use of a supported release of the Software and/or Documentation that Vyasa provided to Client and that has not been altered by Client; or (b) use of the Software and/or Documentation which has been modified pursuant to either Client’s specific request or Client’s individual modifications or enhancements to the Software; (c) use of the Software and/or Documentation: (i) other than in accordance with the terms and conditions set forth in this Agreement; (ii) other than under normal use as set forth in the Documentation; or (iii) in combination with other software or equipment not provided by Vyasa if such infringement would not have occurred without such use or combination; or (d) continuing the allegedly infringing activity after notice.

6.4 Client Indemnification Obligation.  Client shall indemnify, hold harmless and defend Vyasa and its representatives against any Loss  arising out of: (1) Client’s gross negligence or willful misconduct; (2) any breach by Client of applicable laws; (3) any infringement or claim of infringement of any copyright, trademark, trade secret or legally protected proprietary right of any third party, relating to the Client Data; or (4) for death, personal injury, or property damage caused by the negligence or willful misconduct of Client; provided that: (a) Vyasa promptly notifies Client in writing no later than thirty (30) days after Vyasa’s notice of any potential claim; (b) Vyasa permits Client to defend, compromise or settle the claim; and (c) Vyasa gives Client all necessary information, reasonable assistance (at Client’s expense), and authority to enable Client to do so.  Client shall defend or settle, at its expense, any claim, action, suit or demand against Vyasa and/or its representatives, for which Client is responsible hereunder.  Client shall not agree to any settlement of an infringement claim, if such settlement would require any payments by Vyasa or if such settlement includes any admissions by Vyasa that will materially affect Vyasa’s rights to its Software or Documentation, or of Vyasa’s Intellectual Property Rights therein, without Vyasa’s prior written consent, which consent shall not unreasonably be withheld or delayed.

6.5 Exclusions from Client’s Indemnification Obligation.  Notwithstanding the foregoing, Client will have no liability for any Loss based on or arising out of a third party claim of infringement to the extent such third party claim is based upon or arising out of Vyasa’s use of the Client Data other than in accordance with the terms and conditions set forth in this Agreement.

6.6 Entire Liability.  Notwithstanding any provision in this Agreement to the contrary, this Article 6 (Indemnity) states the entire liability of either party with respect to infringements of any copyrights, patents, trademarks, trade secrets or any other proprietary rights. 

7. INTELLECTUAL PROPERTY OWNERSHIP.

7.1 Vyasa Intellectual Property Rights.  Client acknowledges and agrees that, as between Client and Vyasa, Vyasa is the owner of all Intellectual Property Rights associated with the Licensed Work and, except as otherwise set forth in this Agreement, Vyasa does not grant any rights to or ownership of the Licensed Work to Client.  Client further acknowledges that Vyasa retains all right, title and interest in the Licensed Work and, except as set forth in this Section 7.1, in all improvements, enhancements, modifications and Derivative Works of the Licensed Work including all rights to patent, copyright, trade secret and, attributable to Vyasa efforts, whether such efforts are independent or in conjunction with Client.

a. Client Intellectual Property Rights.  Vyasa acknowledges that ownership of and title in and to all Intellectual Property Rights owned by Client as of the Effective Date or that may be created by Client thereafter, including but not limited to all Intellectual Property Rights associated with Covered Data (hereinafter “Client IP”), will remain with Client. Vyasa shall not use the Client IP for any purpose other than as explicitly set forth in this Agreement. 

b. Client Data. Any Client Data, including any derivatives thereof, that is standardized, altered, or otherwise improved under this Agreement by algorithms, natural language processing, neural networks, or similar processing provided under this Agreement is and shall be owned by Client.   

7.2 IP Notices.  Client agrees that all trademark and intellectual property notices for the Licensed Work will be preserved unmodified.  Client hereby acknowledges and agrees that the Licensed Work and Derivative Works constitute and contain valuable proprietary products and trade secrets of Vyasa, embodying substantial creative efforts and confidential information, ideas, and expressions.  Client further agrees to take commercially reasonable steps to ensure that unauthorized persons will not have access to any of the Licensed Work and that all authorized persons having access will refrain from any disclosure, duplication or reproduction of the Licensed Work except to the extent permitted under this Agreement.

7.3 Prohibited Activities. Client agrees not to challenge, directly or indirectly, any right or interest of Vyasa in the Licensed Work or Derivative Work nor the validity or enforceability of Vyasa’s rights in the Licensed Work under applicable law.  Client agrees to not directly or indirectly register, apply for registration or attempt to acquire any legal protection for, or any proprietary rights in, Licensed Work or Derivative Work or to take any other action which may adversely affect Vyasa’s rights or interest in the Licensed Work or Derivative Work in any jurisdiction.

7.4 Notification.  Client agrees to notify Vyasa promptly and in writing of all circumstances, of which Client is aware, surrounding the unauthorized possession or use of the Licensed Work by any person or entity.  Client agrees to cooperate fully with Vyasa, at Vyasa’s expense, in any litigation relating to or arising from such unauthorized possession or use.

8. CONFIDENTIAL INFORMATION.

8.1 Confidentiality Obligations.  Each party understands that the other party may disclose Confidential Information in the course of exercising its rights or performing its obligations under this Agreement.  As between the parties, the Confidential Information of each party will remain its sole property.  Each party will hold the Confidential Information of the other party in strict confidence and protect such Confidential Information from disclosure using the same care it uses to protect its own confidential information of like importance, but not less than reasonable care.  Neither party will use the other party’s Confidential Information other than for the exercise of such party’s rights or performance of such party’s obligations hereunder.  The party employing or engaging persons having access to the Confidential Information of the other party is responsible and liable for their compliance with such confidentiality obligations.  Notwithstanding the foregoing, if a party receiving Confidential Information becomes, under lawful process, subject to a demand for discovery or disclosure of such information, it will give the owner of the Confidential Information notice of the demand prior to furnishing the requested information and will, upon the request of and at the expense of the owner of the Confidential Information, cooperate with such party in seeking reasonable arrangements to protect the confidential nature of such information.  

8.2 Legal Recourse.  Both parties acknowledge that, in the event of a breach of its obligations under Section 8.1, and without affecting its other rights at law or equity, the non-breaching party may bring a legal action (including an injunction, restraining order or specific performance) to enjoin any such breach of Section 8.1 without the need to obtain a bond or other security, and may recover from the breaching party reasonable attorneys’ fees and costs in addition to other appropriate relief.

9. TRADEMARKS.

9.1 No Rights to Trademarks.  Each party acknowledges the other party’s ownership of their respective trademarks and service marks (e.g., Vyasa’s Software names).  Except as set forth in this Agreement, each party further acknowledges that it acquires no interest in such trademarks and service marks by virtue of this Agreement or the performance by it of its duties and obligations under this Agreement.  Client agrees not to use the name “Vyasa” or any of the Software names or marks (or any confusingly similar name or symbol), in whole or in part, as part of its business or trade name. 

9.2 Right to use Client Name.  Upon receiving prior and specific written consent of the Client in each instance of use, Vyasa may use Client’s name as a reference or publicize Client as a retained or former client of Vyasa in any proposal sent to third parties or in any other promotional materials, news releases, advertisement or disclosures.  In addition to any other remedies available to Client, Client will be entitled to injunctive relief for any breach or threatened breach of this Section 9.2 by Vyasa.

10. EXPORT.

10.1 Client agrees that it will not, directly or indirectly, export or re-export, or knowingly permit the export or re-export of, the Licensed Work, or any technical information about the Software or Documentation to any country for which the United States Export Administration Act, any regulation thereunder, or any similar United States law or regulation, requires an export license or other United States government approval, unless the appropriate export license or approval has been obtained.

11. SUPPORT & MAINTENANCE.

11.1 Maintenance Services: Vyasa does not warrant that the Software will operate error-free.  During the term of any Software license granted herein, Vyasa shall provide maintenance services for the Licensed Work as specified herein (“Maintenance Services”).  In connection with its rendering of the Maintenance Services, Vyasa shall: (a) maintain the Software so that it operates in conformity with all applicable specifications; (b) promptly provide Client with all modifications, refinements, corrections, and enhancements that Vyasa incorporates into and makes a part of Software and does not separately price or market; (c) provide customer support through e-mail between the hours of 9am-5pm CST, Monday – Friday (excluding US federal holidays) to answer questions Client may have regarding use of the Software and to assist Client in use of the Software; (d) provide a program fix or work-around for reported problems for Critical Errors and Significant Errors promptly and included in a future release of the Software for all Other Errors; and (e) provide an error or defect reporting service by which Client can be assured that any Errors, Defects, or Omissions made known to Vyasa thereby will be promptly investigated. If a given error or defect cannot be rectified in an agreed upon time frame fallback to the most recent previous stable instance of the system will be performed. 

11.2 Maintenance Services Fee: The Maintenance Services Fee, if applicable, shall be memorialized in the applicable Statement of Work.

11.3 Maintenance Standards, Discontinuance: Vyasa represents and warrants that it shall perform the Maintenance Services in a professional, workmanlike manner, consistent with generally accepted industry standards.  Subject to Client’s payment of the applicable Maintenance Services Fee, if any, Vyasa shall not discontinue or fail to perform its Maintenance Services, as specified in Section 11.1 (Maintenance Services), during the term of any Software licenses granted herein.

11.4 Correction At Client’s Facilities: Vyasa may provide such Maintenance Services at its selected office; provided, however, that if no reasonable resolution can be made to correct Errors, Defects, or Omissions in the Software in Vyasa’s facilities, then upon request by Client, Vyasa will make such correction, at no cost to Client for time and expenses (except for reasonable travel and living expenses), in Client’s facilities.  Client will provide reasonable access to the designated facility and reasonable user support to assist in correcting any such Errors, Defects or Omissions.

12. TERM AND TERMINATION.

12.1 Term. The term of this Agreement shall commence on the Effective Date and, unless earlier terminated in accordance with this Article 12, shall extend for an initial term of three (3) years thereafter (“Initial Term”), and shall automatically renew for successive twelve (12) month periods (“Renewal Term”) subject to Vyasa’s then-prevailing terms and conditions, unless either party provides written notice of non-renewal to the other party at least sixty (60) days prior to the expiration of the then-current Renewal Term. 

12.2 Termination by Either Party.  Either party may terminate this Agreement at any time in the event that the other party is declared or acknowledges that it is insolvent or otherwise unable to pay its debts as they become due or upon the filing of any proceeding (whether voluntary or involuntary) for bankruptcy, insolvency or relief from creditors of such other party.

12.3 Termination for Material Breach.  Either party may, at its option, terminate this Agreement for a material breach of the provisions set forth in Articles 2 through 11 by the other party after giving the other party written notice, specifically identifying the breach on which termination is based, and providing such other party thirty (30) days to cure such breach (except for a breach based upon non-payment of any sums due by Client for which Client will have ten (10) days to cure such breach).  If the breach is not cured within the applicable time period, this Agreement will terminate without further action by the non-breaching party.

12.4 Survival.  Articles 1, 5, 6, 8, 10, and 14, and Sections 2.2, 2.4, 2.5, 2.6, 3.1, 3.4, 4.4, 7.1, 7.2, 7.3, 9.1, 12.4, 12.5, and 12.6 shall survive expiration or termination of this Agreement, for any reason.

12.5 Effect of Termination.  Upon expiration or termination of this Agreement for any reason: (a) Client will immediately pay to Vyasa all outstanding fees, charges, payment and expenses due under this Agreement and not disputed up through the effective date of such termination; and (b) any support or maintenance obligation relating to the applicable Software will immediately terminate. Expiration or termination of this Agreement for any reason will not relieve Client from any obligation to pay Vyasa any undisputed amount that has accrued or become payable prior to the termination date. In the event of material breach by Client, Client will pay fees associated with all work, maintenance, or licenses up to the material breach date.

12.6 Transfer of Client Data, Confidential Information.  Following expiration or termination of this Agreement for any reason: (i) Vyasa shall transfer all Client Data and Client Confidential Information then in its possession to Client; and (ii) Client shall transfer all Vyasa Confidential Information then in its possession to Vyasa.  

13. DATA PROTECTION. 

13.1 During the term of this Agreement, and only to the extent required for its services hereunder, Vyasa will maintain a security program in conformance with Data Protection Laws and Regulations and with any applicable industry standards in order to ensure the security, confidentiality and integrity of Client Data and to prevent its unauthorized use or access. The parties acknowledge and agree that Vyasa will have no access to Client Data, e.g., that the Software will not have remote access to Client Data. For clarity, where Vyasa does not process Personal Data on behalf of Client, the security program in the preceding sentence is limited to training of Vyasa personnel providing Professional Services hereunder. 

13.2 Without limitation of any other obligations of Vyasa in this Agreement, (i) if Vyasa believes that there has been an unauthorized disclosure of Client Data, Vyasa shall promptly notify Client; (ii) each party will provide all reasonable assistance to the other party to remediate or mitigate any actual or potential resulting damage from any unauthorized disclosure; and (iii) Vyasa will notify Client of any Security Incident without undue delay and at least within five (5) business days of becoming aware of such Security Incident.   For purposes of this Agreement, “Security Incident” means any Personal Data Breach (as defined in applicable Data Protection Laws and Regulations) or other incident affecting Client Data that has resulted or is likely to result in: (a) any violation of Data Protection Laws and Regulations or of the Agreement; or (b) any accidental, unauthorized or unlawful destruction, loss, alteration, disclosure of, access to or encryption of (x) Personal Data; or (y) any other Client Data processed by the Vyasa, where such incident is likely to harm Client’s or Client’s customer’s business, clients, employees, systems or reputation. 

13.3 No Subprocessor Relationship. The parties document their common understanding that Vyasa is not a processor (as defined in the General Data Protection Regulation (Regulation (EU) 2016/679) (the “GDPR”)) to Client. Each party shall comply with its obligations under the applicable Data Protection Laws and Regulations.

14. GENERAL PROVISIONS.

14.1 Relationship of the Parties.  This Agreement does not create any relationship of association, partnership, joint venture or agency between the parties.  Neither party will have any right or authority to assume, create or incur any liability or obligation of any kind against or in the name of the other party.

14.2 Non-Solicitation.  During the period commencing on the Effective Date and ending one (1) year following the effective date of expiration or termination of this Agreement, for any reason, neither party shall, directly or indirectly, solicit for employment (or encourage to leave the employment of the other party), on behalf of itself or any other person or entity any current or former employee who performed any work in connection with or related to any services or the receipt of any services hereunder. The prohibition in this section 14.2 does not preclude general public solicitations for employment that are not targeted at the other party’s employees. 

14.3 Entire Agreement.  This Agreement sets forth the entire agreement and understanding between the parties with respect to the subject matter in this Agreement.  This Agreement merges all previous discussions and negotiations between the parties and supersedes and replaces any and every other agreement, which may have existed between Vyasa and Client with respect to the contents of this Agreement.

14.4 Administrative Procedures.  Client and Vyasa will develop appropriate administrative procedures for coordinating with each other.

14.5 Modifications in Writing.  Except to the extent and in the manner specified in this Agreement, any modification or amendment of any provision of this Agreement must be in writing and bear the signature of the duly authorized representative of each party.

14.6 No Waiver of Rights.  The failure of either party to exercise any right granted under this Agreement, or to require the performance by the other party of any provision of this Agreement, or the waiver by either party of any breach of this Agreement, will not prevent a subsequent exercise or enforcement of such provisions or be deemed a waiver of any subsequent breach of the same or any other provision of this Agreement.

14.7 Assignment.  Neither Client nor Vyasa may sell, assign or transfer any of its rights, duties or obligations under this Agreement without the prior written consent of the other party, which consent shall not unreasonably be withheld or delayed, except that either party (the “Assigning Party”) may assign or transfer this Agreement, by operation of law or otherwise, without the written consent of other party (the “Non-Assigning Party”) to a corporation or other business entity succeeding to all or substantially all the assets and business of the business or operating unit of the Assigning Party to which this Agreement relates by merger or purchase; provided, however, that such corporation or other business entity expressly assumes all of the terms and conditions of this Agreement. This Agreement shall be binding upon the successors and assigns of Client and Vyasa. 

14.8 No Third-Party Beneficiary.  The parties agree that no person or entity that is not a party to this Agreement will be deemed to be a third-party beneficiary or entitled to any rights under this Agreement.

14.9 Notices.  All notices, requests, reports, submissions and other communications permitted or required to be given under this Agreement will be deemed to have been duly given if such notice or communication is in writing and sent by personal delivery or by airmail (e.g., USPS or FedEx) facsimile transmission, email or other commercial means of rapid delivery, postage or costs of transmission and delivery prepaid, until such time as either party gives the other party not less than ten (10) days prior written notice of a change of address in accordance with the provisions of this Agreement, as follows:  

a. To Vyasa:  email: [email protected], with a copy to:  [email protected] and [email protected]; mailing address:  29 Green Street, Newburyport, MA  01950;

b. To Client:  email: [to be completed by Client] mailing address: [to be completed by Client]

14.10 Severability.  If any provision of this Agreement is determined by a court of competent jurisdiction to be in violation of any applicable law or otherwise invalid or unenforceable, such provision will to such extent as it is determined to be illegal, invalid or unenforceable under such law be deemed null and void, but this Agreement will otherwise remain in full force and effect.  Furthermore, it is the intention of the parties that in lieu of such illegal, invalid, or unenforceable provision, there automatically be added as a part of this Agreement a provision as similar in terms to such illegal, invalid, or unenforceable provision as may be possible and be legal, valid, and enforceable.

14.11 Publicity.  Neither party may publicize or disclose to any third party any of the terms or provisions of this Agreement, or the discussions relating to any of the contents of this Agreement, without the prior written consent of a duly authorized officer of the other party, except as required by law.

14.12 Governing Law, Jurisdiction & Venue.  This Agreement is performable in the Commonwealth of Massachusetts.  Any disputes or proceedings related or arising out of this Agreement will be governed by and construed in accordance with the substantive laws of the Commonwealth of Massachusetts, without giving effect to its rules regarding conflicts of law.  The sole and official language of this Agreement is English.  The parties agree that the exclusive venue for any action arising under this Agreement will be in the state or federal courts located in Boston, Massachusetts, USA.

14.13 Independent Contractor Status.  Vyasa acknowledges and agrees that it is an independent contractor and its personnel are not Client’s agents or employees for federal tax purposes or any other purposes whatsoever, and are not entitled to any Client employee benefits. Vyasa assumes sole and full responsibility for the acts of its personnel and Vyasa and its personnel have no authority to make commitments or enter into contracts on behalf of, bind or otherwise obligate Client in any manner whatsoever. Vyasa, and not Client, is solely responsible for the compensation of personnel assigned to perform services hereunder, and payment of worker’s compensation, disability and other similar benefits, unemployment and other similar insurance and for withholding income and other taxes and social security.

14.14 No Discrimination.  Vyasa acknowledges that it will not discriminate in hiring and employment practices on the grounds of race, religion, age, nationality, social or ethnic origin, sexual orientation, gender, gender identity or expression, marital status, pregnancy, political affiliation, or disability.

14.15 Executable in Counterparts.  This Agreement may be executed in two (2) or more counterparts, each of which will be considered an original, but all of which together will constitute one and the same instrument.  The exchange of a fully executed Agreement (in counterparts or otherwise) by fax will be sufficient to bind the parties to the terms and conditions of this Agreement