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GENXYS SUBSCRIPTION SERVICES AGREEMENT STANDARD TERMS AND CONDITIONS
1. The Agreement
1.1 Components. This Agreement comprises the Cover Page, Part 1 (Financial Terms and Additional Terms) and all Schedules thereto, this Part 2 (Standard Terms and Conditions), Part 3 (Support Services Index) and the Business Associate Agreement. Capitalized terms used but not defined in these Standard Terms and Conditions have the meanings assigned to them elsewhere in this Agreement.
2. Definitions
2.1 In addition to terms defined elsewhere in this Agreement, the following terms have the following meanings:
(a) “Annual Subscription Fee” means the annual subscription fee for the use of the GenXys Platform, as set out in the Financial Terms;
(b) “Aggregated Pharmacogenetic Information and Bio-Physical Information” means Pharmacogenetic Information and Bio-Physical Information that has been stripped of individual name and contact information and de-identified pursuant to 42 CFR §164.514(a) and aggregated with information from other users to minimize the possibility of exposing individual-level information while still providing evidence for scientific research, excluding all Anonymized Data and all Protected Health Information;
( c ) “Anonymized Data” means anonymous, de-personalized, web traffic data, browser requests and other metadata and metrics regarding use of the GenXys Platform that does not reference or identify, and cannot be used to identify, Subscriber or any Authorized Party;
(d) “Authorized Parties” means those individuals authorized by the Subscriber to access and use the GenXys Platform, including the Subscriber’s employees, independent contractors, customers, and patients (including family members of a patient, the physician(s) and other healthcare provider(s) of a patient and other individuals related to a patient or authorized by law to represent a customer/patient);
(e) “Bio-physical Information” means information about an individual, including age, sex at birth, weight, disease conditions, medications, other health-related information, ethnicity and other information that is (i) provided to GenXys by an individual or his or her healthcare professional (i.e., self-reported), or (ii) from an authorized electronic medical record or laboratory;
(f) “Custom Interfaces” means custom interfaces and other digital connections independently developed to connect the GenXys Platform to other Subscriber systems, and excludes Required Interfaces;
(g) “Documentation” means GenXys’ user manual for the GenXys Platform that describes the GenXys Platform and provides information specific to the GenXys Platform, as well as all operating, service and training manuals, with such updates or modifications as may be provided or made available to the Subscriber under this Agreement;
(h) “GenXys Platform” means the online cloud-based software platform comprised of GenXys’ software products known as TreatGxTM and ReviewGxTM providing clinical decision support, together with the related sub-modules described in the Additional Terms, owned by GenXys, including all standard upgrades and updates thereto that GenXys generally implements for all subscribers, but excludes all Required Interfaces, any Custom Interfaces and any custom product enhancements and offerings that are not part of a standard release and that GenXys markets at an additional charge;
(i) “GenXys Research” means scientific research conducted by GenXys with the intent to publish peer-reviewed scientific papers;
(j) “Interfaces” means the Required Interfaces and, if purchased by the Subscriber under this Agreement, Custom Interfaces;
(k) “Pharmacogenetic Information” means information regarding an individual’s genotype (e.g., the As, Ts, Cs and Gs at particular locations in his or her genome) generated through a Test;
(l) “Personal Information” means (i) if the Subscriber is subject to the Personal Information Protection Act (BC), as amended or replaced from time to time, “personal information” as defined in that Act, or (ii) if the Subscriber is subject to the Freedom of Information and Protection of Privacy Act (BC), as amended or replaced from time to time, “personal information” as defined in that Act, or (iii) Subscriber’s protected health information (“PHI”) and electronic protected health information (“ePHI”) (as PHI and ePHI are defined in the Business Associate Agreement);
(m) “Required Interfaces” means the software interfaces required for use of the GenXys Platform, as specified in the Financial Terms, and excludes Custom Interfaces;
(n) “SLA” means the service level agreement for the GenXys Platform, as set out in the Support Services Appendix;
(o) “Subscriber Data” means all data and information created by the Subscriber or received by the Subscriber from third parties, including all Personal Information but excluding all Aggregated Pharmacogenetic Information and Bio-Physical Information and all Anonymized Data;
(p) “Subscription” means a time-based, non-exclusive, non-transferable, non-sublicensable right to access and use the GenXys Platform, the Documentation, the Required Interfaces and, if applicable, Custom Interfaces, subject to the terms and conditions of this Agreement;
(q) “Support Services” means the support services provided in connection with the GenXys Platform, as set out in the Support Services Appendix attached to these Standard Terms and Conditions; and
(r) “Test” means a pharmacogenetic test that identifies certain genetic variants in an individual that may affect how his or her body processes certain medications.
3. Purchase of Subscription, Restrictions and Responsibilities
3.1 Purchase of Subscription. Subject to the terms and conditions of this Agreement, the Subscriber hereby purchases the Subscription from GenXys, and GenXys hereby grants the Subscription to the Subscriber. The Subscriber acknowledges and agrees that it is acquiring a subscription to access and use the GenXys Platform and the Interfaces under this Agreement, not ownership thereof. Title to and copyright in all copies of the GenXys Platform and the Interfaces, including all derivatives, modifications, corrections and customizations thereto, will remain with GenXys or its licensors, as applicable. No license, right, title, or interest in the GenXys Platform or the Interfaces, or any other intellectual property of GenXys or its licensors, is granted to the Subscriber except as expressly granted in this Agreement.
3.2 GenXys Responsibilities. During the Term, GenXys will (a) make the GenXys Platform and the Interfaces, available to the Subscriber in accordance with the Documentation, the SLA and the other terms of this Agreement, (b) not use Subscriber Data, except (i) in connection with the general operation of the GenXys Platform for the Subscriber in accordance with the terms of this Agreement or to prevent or address service or technical problems or to verify service improvements, or (ii) in accordance with the Subscriber’s instructions, (c) not disclose Subscriber Data to anyone other than Authorized Parties in accordance with this Agreement unless otherwise required by law or permitted under the terms of the Business Associate Agreement; and (d) implement internal polices and practices that conform to the privacy and security standards required under the Business Associate Agreement.
3.3 Subscriber Responsibilities. The Subscriber will: (a) have sole responsibility for the accuracy, quality and completeness of all Subscriber Data, (b) use reasonable efforts to prevent unauthorized access to, or use of, the GenXys Platform, and notify GenXys promptly upon becoming aware of any such unauthorized access or use, and (c) purchase and provide any hardware, network capacity or other system components commonly utilized to operate software or identified by GenXys as required to operate the GenXys Platform and Interfaces and not specified in the Financial Terms or Additional Terms as being GenXys’ responsibility.
3.4 Interfaces
(a) The Subscriber acknowledges that the import of data into and the export of data out of certain elements of the GenXys Platform requires an interface between the GenXys Platform and external programs or information systems, whether those programs or information systems are owned by the Subscriber or supplied by GenXys or a third party. The Subscription includes the Required Interfaces and, if specified in the Additional Terms, , the Custom Interfaces.
(b) GenXys warrants that it has obtained all rights necessary from licensors of the Required Interfaces to grant the Subscription. Except for the foregoing sentence, GenXys makes no representation or warranty, and expressly disclaims all implied warranties and conditions with respect to the Required Interfaces. GenXys will not be liable to the Subscriber for any damage, cost, loss, expense or liability suffered or incurred by the Subscriber as a result of its use or inability to use (i) any Required Interface, or (ii) the GenXys Platform, to the extent that damage, cost, loss, expense or liability relates to or results from the Subscriber’s use or inability to use any Required Interface. To the greatest extent possible, GenXys will pass along to the Subscriber the benefit of any warranty provided to GenXys by the licensor of any Required Interface.
(c) To the extent GenXys provides any Custom Interfaces under this Agreement, the Subscriber receives the warranties set out in Section 11.1 of these Standard Terms and Conditions. Except as otherwise expressly provided in this Agreement, (i) GenXys makes no representations or warranties, and expressly disclaims all implied warranties and conditions with respect to any Custom Interface, and (ii) GenXys will not be liable to the Subscriber for any damage, cost, loss, expense or liability suffered or incurred by the Subscriber as a result of its use or inability to use (A) any Custom Interface, or (B) the GenXys Platform, to the extent that damage, cost, loss, expense or liability relates to or results from the Subscriber’s use or inability to use any Custom Interface.
3.5 LabGxTM External User Manual. The LabGxTM software module of the GenXys Platform supports the translation and interpretation of pharmacogenetic results using evidence-based guidelines and incorporates this information into the TreatGxTM and ReviewGxTM clinical decision support software. The GenXys Platform provides clinicians with real-time, multi-factorial medication optimization and personalization options for patients by incorporating relevant drug-gene interactions with other patient characteristics that are essential for precision medicine. The Subscriber acknowledges and, thereby, will follow the implementation workflow provided in the LabGxTM External User Manual provided as part of the Documentation.
3.6 Restrictions. The Subscriber will not: (a) use the GenXys Platform or Interfaces in violation of applicable laws, (b) use the GenXys Platform or Interfaces to send or store infringing, obscene, threatening or otherwise unlawful or tortious material, including material that violates privacy rights, (c) use the GenXys Platform or Interfaces to send or store viruses or malicious code, (d) interfere with or disrupt performance of the GenXys Platform or the data contained therein or any Interface , or (e) attempt to gain access to the GenXys Platform or its related systems or networks in a manner not set out in the Documentation made accessible to the Subscriber.
3.7 Authorized Parties. The Subscriber will enable access to the GenXys Platform and Interfaces for use only by Authorized Parties solely for the internal business purposes of the Subscriber and any of its affiliates or subsidiaries named on the Cover Sheet to this Agreement, in accordance with the Documentation made accessible to the Subscriber and not for the benefit of any third party. The Subscriber will be liable for the acts and omissions of all Authorized Parties and Subscriber affiliates and subsidiaries relating to this Agreement.
3.8 No Extension to Affiliates or Subsidiaries. Except as otherwise set out on the Cover Page to this Agreement, none of the rights granted to the Subscriber under this Agreement extend to or grant the Subscriber the right to sublicense or otherwise grant any rights to, any affiliate or subsidiary of the Subscriber.
3.9 Aggregated Pharmacogenetic Information and Bio-Physical Information. GenXys owns all right, title and interest in and to all Aggregated Pharmacogenetic Information and Bio-Physical Information and GenXys may use any Aggregated Pharmacogenetic Information and Bio-Physical Information (a) for its own internal, statistical analysis, (b) for GenXys Research, (c) to develop and improve the GenXys Platform and or any other product existing or in development, and (d) to create and distribute reports and other materials regarding use of the GenXys Platform. Notwithstanding the foregoing, nothing in this Agreement gives GenXys the right to publicly identify the Subscriber as the source of any Aggregated Pharmacogenetic Information and Bio-Physical Information without the Subscriber’s prior written consent.
3.10 Anonymized Data. GenXys owns all right, title and interest in and to all Anonymized Data and GenXys may use any Anonymized Data in compliance with applicable law (a) for its own internal, statistical analysis, (b) to develop and improve the GenXys Platform and or any other product existing or in development, and (c) to create and distribute reports and other materials regarding use of the GenXys Platform. Notwithstanding the foregoing, nothing in this Agreement gives GenXys the right to publicly identify the Subscriber as the source of any Anonymized Data without the Subscriber’s prior written consent.
3.11 Modifications to GenXys Platform. GenXys may, in its discretion, change the functionality or operation of the GenXys Platform from time to time without notice or liability to the Subscriber or any other person, provided that no such change will materially adversely affect the functionality or operation of the GenXys Platform or an Interface that is relevant to the Subscriber’s actual use of the GenXys Platform or Interfaces.
3.12 Interoperability with Interfaces. To the extent that features and functionality of the GenXys Platform with third party products or services, including Interfaces, those features and functionality are entirely dependent upon the continuing availability of those products and services and any intellectual property rights related thereto. If a third-party licensor ceases to make available any product, service or intellectual property right on which any aspect of the GenXys Platform depends, then GenXys may alter or cease providing that feature or functionality immediately upon notice to the Subscriber. Similarly, GenXys will alter or cease providing a feature or functionality if required to do so by applicable law. In each case, if an alteration or cessation is not acceptable to the Subscriber, then the Subscriber’s sole and exclusive remedy is to terminate this Agreement upon giving written notice to GenXys.
4. Fees and Payment Terms
4.1 Fees. Subscriber will pay all Annual Subscription Fees and Support Fees, and any other costs and fees specified in the Financial Terms, (collectively, “Fees”).
4.2 Invoice and Payment.
(a) The Subscriber will pay the Annual Subscription Fee for the first year of the Initial Term on or before the Effective Date. For each subsequent year during the Initial Term (calculated as being the applicable anniversary date of the Effective Date), GenXys will invoice the Subscriber annually in advance for the Annual Subscription Fee payable in respect of that year.
(b) For each Renewal Term in effect, GenXys will invoice the Subscriber in advance for the applicable Annual Subscription Fee (which amount may include an adjustment made pursuant to Subsection 4.5(a) of these Standard Terms and Conditions) and the Subscriber will pay that amount on or before the first day of that Renewal Term.
(c) To the extent there is an increase in the Annual Subscription Fee pursuant to Subsection 4.5(b) of these Standard Terms and Conditions, then GenXys will invoice the Subscriber for the balance owing for the remainder for the then-current payment year, and the adjusted Annual Subscription Fee will apply for the remainder of the Initial Term or Renewal Term, as the case may be.
(d) The Subscriber will pay each invoice by the payment date for that invoice specified in that invoice. If no payment date for a particular invoice is specified therein , then the Subscriber will pay that invoice within 30 days after the date of that invoice.
(e) Unless a different method is specified in the Financial Terms, the Subscriber will make all payments by electronic funds transfer or direct bank deposit to a bank account specified by GenXys.
4.3 Billing Information. The Subscriber is responsible for providing complete and accurate billing and contact information to GenXys and notifying GenXys of any changes to that information.
4.4 Travel Costs Extra. Except as otherwise expressly set out in the Financial Terms or Additional Terms, the Fees do not include travel expenses and the Subscriber will pay all costs of agreed-upon travel (if any). If the Subscriber requires GenXys to comply with the Subscriber’s travel policy, then the Subscriber must provide a copy of that policy to GenXys in advance of requesting travel by GenXys personnel and, upon receipt, GenXys will comply with that policy except as otherwise agreed by the parties.
4.5 Price Adjustment.
(a) Subject to any adjustment pursuant to the Financial Terms or Additional Terms, the Annual Subscription Fees are fixed for the Initial Term. In addition to any adjustment pursuant to the Financial Terms or Additional Terms, following the end of the Initial Term, the Annual Subscription Fees are subject to periodic price adjustments. Such price adjustments will not occur more frequently than once every calendar year and will take effect following delivery of notice to the Subscriber not less than 120 days before the effective date of the adjustment.
(b) If the Subscriber adds additional locations or facilities to the scope of this Agreement, then additional costs may apply. Any such costs will be set out in an amendment to the Financial Terms that will become effective upon approval by both parties.
5. Term and Termination
5.1 No Termination Without Cause. During the Term, neither party has the right to terminate this Agreement without cause.
5.2 Termination by GenXys. GenXys may, in its sole discretion, immediately terminate this Agreement, suspend the Subscriber’s ability to access the GenXys Platform (in whole or in part) or suspend performance of any Services, if: (a) the Subscriber breaches its conditions of confidentiality or protection of Confidential Information set out in Article 6, (b) the Subscriber breaches its obligations under Sections 3.6, or 3.7, (c) the Subscriber commits a material breach of any other terms of this Agreement, including the failure to pay any amount under this Agreement when due for reasons other than relating to a reasonable and good faith dispute, and that breach has not been remedied to the satisfaction of GenXys, acting reasonably, within 30 days after notice to the Subscriber requiring that the Subscriber remedy that breach, or (d) the Subscriber is insolvent, becomes subject to proceedings concerning its bankruptcy, receivership, insolvency or the like, or if a receiver is appointed for all or substantially all of the Subscriber’s assets.
5.3 Termination by Subscriber for Cause. In addition to specific termination rights of the Subscriber elsewhere in this Agreement, the Subscriber may, in its sole discretion, immediately terminate this Agreement, if: (a) GenXys breaches its conditions of confidentiality or protection of Confidential Information set out in Article 6, (b) GenXys commits a material breach of any other terms of this Agreement and that breach has not been remedied to the satisfaction of the Subscriber, acting reasonably, within 30 days after notice to GenXys requiring that GenXys remedy that breach, or (c) GenXys is insolvent, becomes subject to proceedings concerning its bankruptcy, receivership, insolvency or the like, or if a receiver is appointed for all or substantially all of GenXys’ assets (each, an “Insolvency Event”) and that Insolvency Event prevents GenXys from performing its material obligations under this Agreement.
5.4 Obligations on Termination. Within 30 days of the termination of this Agreement for any reason: (a) the Subscriber must pay to GenXys any unpaid amounts owing for the period up to the effective date of termination); except in the case of any termination based on GenXys breach of this agreement, in which case GenXys will refund to Subscriber any pre-paid, but unused fees (b) the Subscriber must cause the return of all GenXys Confidential Information to GenXys, or, at the option of GenXys, destroy that information and have an officer or director of the Subscriber certify to GenXys that such Confidential Information has been destroyed; and (c) GenXys must cause the return of all Subscriber Confidential Information to the Subscriber, or, at the option of the Subscriber, destroy that information and have an officer or director of GenXys certify to the Subscriber that such Confidential Information has been destroyed.
5.5 Retrieval of Subscriber Data. Upon written request by the Subscriber made during the term of this Agreement or within 30 days after expiration or termination of this Agreement, GenXys will make Subscriber Data available to the Subscriber through the GenXys Platform on a limited basis, solely for purposes of the Subscriber retrieving Subscriber Data for a period of up to 60 days after such expiry or termination. Subject to GenXys’ obligations under the Business Associate Agreement and applicable law, after that 60-day period, GenXys will have no obligation to maintain or provide any Subscriber Data and will thereafter delete all Subscriber Data, except that GenXys will not be required to remove copies of Subscriber Data from its backup media and servers until such time as the next backup copy is scheduled (and any such copies of Subscriber Data so retained will continue to be held, secured, and used in compliance with the terms of this Agreement, even if the Agreement has been terminated or expired).
5.6 Certain Obligations Survive. No termination of this Agreement will relieve either party from any obligation or liability that has accrued under this Agreement prior to the date of termination, or from the performance of its obligations under this Agreement to the effective date of termination.
5.7 Certain Provisions Survive. In addition to those provisions of this Agreement that are expressly stated to survive termination, the following provisions of these Standard Terms and Conditions will survive any termination of this Agreement: Articles 1, 6 (for the duration provided in 6.5), 8, 13 and 17 and Sections 5.4, 5.5, 5.6, 5.7, 11.3, 11.4 or 11.5. In addition, the provisions of Articles 2 and 18 will survive as necessary to interpret the other surviving Sections and Subsections.
6. Confidential Information
6.1 Definition. In this Agreement, “Confidential Information” means all confidential information disclosed by a party (“Disclosing Party”) to the other party (“Receiving Party”), whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure. GenXys’ Confidential Information includes the GenXys Platform, the Documentation and the terms of this Agreement, and Confidential Information of each party includes its business and marketing plans, technology and technical information, product plans and designs, and business processes disclosed by such party. However, Confidential Information does not include any information that (a) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party; (b) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party; (c) is received from a third party without breach of any obligation owed to the Disclosing Party; or (d) was independently developed by the Receiving Party.
6.2 Obligation of Confidentiality. Except as otherwise permitted in writing by the Disclosing Party, the Receiving Party (a) must use the same degree of care (but in no event less than reasonable care) that it uses to protect the confidentiality of its own confidential information of like kind, (b) must not use any Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement; and (c) must limit access to Confidential Information of the Disclosing Party to those of its employees, contractors and agents who need such access for purposes consistent with this Agreement and who have signed confidentiality agreements with the Receiving Party containing protections no less stringent than those in this Article.
6.3 Exceptions. The Receiving Party may disclose Confidential Information of the Disclosing Party if it is compelled by law to do so, provided the Receiving Party gives the Disclosing Party prior notice of such compelled disclosure (to the extent legally permitted) and reasonable assistance, at the Disclosing Party’s cost, if the Disclosing Party wishes to contest the disclosure.
6.4 Compliance with Business Associate Agreement. The parties obligations with respect to Confidential Information are subject to compliance with their respective rights and obligations under the Business Associate Agreement.
6.5 Confidentiality Period. With respect to Confidential Information of the Disclosing Party disclosed to the Receiving Party prior to termination of this Agreement, and subject to longer periods set out in the Business Associate Agreement, the provisions of this Article will survive any termination of this Agreement (a) indefinitely with respect to Confidential Information that is a trade secret or Subscriber Data, and (b) for a period of 5 years with respect to all other Confidential Information.
7. Subscriber Data
7.1 Patient Consent. Except as provided for in Section 9.1, the Subscriber will obtain the prior documented consent of any individual to the collection, use and disclosure of that individual’s data, including personal information and personal health information, that is contained in or forms part of any Subscriber Data provided to GenXys. Except as otherwise expressly stated in this Agreement, the Subscriber is solely responsible for compliance with all data privacy, data protection and data security laws applicable to the Subscriber Data.
7.2 Use by GenXys. The Subscriber acknowledges and agrees that the provision of the Subscription and Services to the Subscriber may require the use of Subscriber Data and that GenXys is permitted to use Subscriber Data in connection with the Subscription and the provision of Services to the Subscriber. GenXys agrees that its right to use Subscriber Data will terminate concurrently with the termination or expiration of this Agreement.
7.3 Protection and Security. During the Term GenXys will maintain and comply with a formal security program that is designed to: (a) ensure the security and integrity of Subscriber Data; (b) protect against threats or hazards to the security or integrity of Subscriber Data; and (c) prevent unauthorized access to Subscriber Data.
7.4 Security Breach. Subject to the requirements of the Business Associate Agreement, if either party becomes aware of a security breach relating to the GenXys Platform (“Security Breach”), then that party must so inform the other promptly, but in no event later than 48 hours (or any shorter period as may be required by applicable law), unless legally prohibited from doing so. Additionally, each party must reasonably assist the other party in mitigating any potential damage.
7.5 Remediation of Certain Unauthorized Disclosures. If there is any unauthorized disclosure of or access to Personal Information caused by GenXys’ breach of its security obligations under this Agreement or its obligations under the Business Associate Agreement, then GenXys’ responsibilities and liability will be as set out in the Business Associate Agreement, and in no event will the Subscriber be entitled to double recovery of any loss, liability or damages resulting from any such unauthorized disclosure.
8. Proprietary Rights
8.1 GenXys Platform and Documentation. The GenXys Platform and the Documentation, including all new releases, modifications, updates or enhancements to the GenXys Platform and the Documentation; and all intellectual property rights related thereto, are and will be, as between GenXys and the Subscriber, the property of GenXys. All rights in the GenXys Platform and Documentation not expressly granted in this Agreement are reserved by GenXys and/or its licensors, as applicable.
8.2 Interfaces. As between GenXys and the Subscriber, all Interfaces are and will remain the property of the applicable licensor. All rights in the Interfaces not expressly granted to the Subscriber under this Agreement will remain with the applicable licensor.
8.3 Aggregated Pharmacogenetic Information and Bio-Physical Information. As between GenXys and the Subscriber, GenXys will own all right, title and interest in and to all Aggregated Pharmacogenetic Information and Bio-Physical Information.
8.4 Subscriber Data. As between GenXys and the Subscriber, the Subscriber will retain ownership of all Subscriber Data.
8.5 Feedback. The Subscriber may offer, or may be asked to provide, suggestions, ideas, recommendations, bug fixes, corrections or other feedback (“Feedback”) regarding the GenXys Platform, Documentation, or Interfaces, though the Subscriber is under no obligation to provide Feedback. The Subscriber agrees that if it provides Feedback, then GenXys is free to reproduce, make, use, create derivative works of, publicly perform, display, import, transmit, distribute, license, sell, offer to sell or otherwise dispose of that Feedback without payment of compensation and without any other obligation to the Subscriber.
9. GenXys Research
9.1 Use of Information. GenXys will have the right to use Pharmacogenetic Information and Bio-Physical Information for GenXys Research, provided that GenXys will only use Pharmacogenetic Information and Bio-Physical Information from patients who have given written consent to GenXys.
9.2 Right to Disclose Information. GenXys will have the right to disclose Aggregated Pharmacogenetic Information and Bio-Physical Information and/or outcome data to its third-party research partners. 10.
Access and Acceptance
10.1 Access and Acceptance Test. Following the Effective Date, GenXys will grant access to the GenXys Platform to the Subscriber and the Subscriber will have a period of 30 days to test the GenXys Platform to determine whether it functions substantially in accordance with the Documentation.
10.2 Acceptance Date. Acceptance (“Acceptance”) of the GenXys Platform will occur on the earliest to occur of the following:
(a) The Subscriber’s execution of an acceptance form (“Acceptance Form”);
(b) first commercial use of the GenXys Platform by the Subscriber or an Authorized Party;
(c ) 30 days after the date that GenXys provides the Subscriber with full access to the GenXys Platform, unless during that period the Subscriber provides GenXys a Deficiency List (defined below), in which case acceptance will occur on the earlier of the Subscriber’s execution of an Acceptance Form and 14 days after the date that GenXys resolves the Software Error(s) identified in that Deficiency List; and
(d) 6 months after the date GenXys provides the Subscriber with full access to the GenXys Platform.
10.3 Deficiency List. If the Subscriber determines that the GenXys Platform contains a Severity Level 1 or Severity Level 2 Software Error (as defined in the Support Services Appendix), then before the end of the acceptance test period it must deliver to GenXys a list (a “Deficiency List”) specifying the nature of the Software Error(s). GenXys will work with the Subscriber to resolve the Software Error(s) identified in a Deficiency List.
11. Limited Warranty; Exclusions
11.1 GenXys Platform and Interfaces. GenXys warrants to the Subscriber that (a) following Acceptance, the GenXys Platform and Interfaces will operate substantially in accordance with the technical specifications contained in the Documentation, and (b) the Documentation describes the material functions and features of the GenXys Platform in reasonable detail to enable the Subscriber to utilize them substantially in the manner described in the Documentation, and (c) GenXys is not aware of any claim of intellectual property infringement relating to the GenXys Platform or any Interface. The foregoing warranty in clauses (a) and (b) is conditioned upon the Subscriber’s use of the GenXys Platform and Interfaces substantially in accordance with the Documentation and instructions from GenXys, and the absence of any misuse, damage, alteration or modification of or to the GenXys Platform or Interfaces. To the extent that the GenXys Platform or an Interface fails to meet the foregoing warranty in clauses (a) and (b) as a result of a Software Error, then GenXys’ sole obligation and the Subscriber’s sole remedy for that failure will be as set out in the Support Services Appendix.
11.2 Support Services. GenXys warrants to the Subscriber that it will perform the Support Services using qualified personnel and in a professional manner. In the event of a Software Error (as defined in the Support Services Appendix), GenXys’ sole obligation to the Subscriber is to provide the corrective services set out in the Support Services Appendix. In all other cases, GenXys’ sole obligation and the Subscriber’s sole remedy for any breach of the warranty set out in this Section is for GenXys to promptly and at its own expense re-perform the applicable Support Services as warranted.
11.3 Exclusion of Other Warranties. EXCEPT AS EXPRESSLY SET OUT IN THIS AGREEMENT, GENXYS AND ITS LICENSORS MAKE, AND THE SUBSCRIBER RECEIVES, NO WARRANTIES, REPRESENTATIONS OR CONDITIONS, EXPRESS, IMPLIED OR STATUTORY, REGARDING OR RELATING TO THE GENXYS PLATFORM, THE INTERFACES, THE DOCUMENTATION OR ANY OTHER MATERIALS SUPPLIED TO THE SUBSCRIBER IN CONNECTION THEREWITH. GENXYS DOES NOT WARRANT THAT THE GENXYS PLATFORM WILL BE CAPABLE OF ACHIEVING ANY PARTICULAR RESULT IN THE SUBSCRIBER’S BUSINESS OR OPERATIONS, OR THAT THEGENXYS PLATFORM OR INTERFACES WILL BE ERROR FREE OR WILL PERFORM IN AN UNINTERRUPTED MANNER. GENXYS AND ITS LICENSORS SPECIFICALLY DISCLAIM, AND THE SUBSCRIBER WAIVES, ALL IMPLIED WARRANTIES AND CONDITIONS OF MERCHANTABILITY, MERCHANTABLE QUALITY, DURABILITY, NON-INFRINGEMENT, FITNESS FOR A PARTICULAR PURPOSE (EVEN IF GENXYS HAS BEEN INFORMED OF THAT PURPOSE) AND ANY OTHER WARRANTIES ARISING BY STATUTE OR OTHERWISE IN LAW, OR FROM A COURSE OF DEALING OR USAGE OF TRADE, WITH RESPECT TO THE GENXYS PLATFORM, THE INTERFACES, THE DOCUMENTATION OR ANY OTHER MATERIALS SUPPLIED TO THE SUBSCRIBER IN CONNECTION THEREWITH AND WITH RESPECT TO THE USE OF ANY OF THE FOREGOING.
11.4 Exclusion – Clinical Use. GENXYS MAKES, AND THE SUBSCRIBER RECEIVES, NO REPRESENTATION OR WARRANTY, EXPRESS OR IMPLIED, REGARDING THE ACCURACY, SUITABILITY, RELIABILITY, COMPLETENESS, RELEVANCE, TIMELINESS OR AVAILABILITY REGARDING THE CLINICAL USE OF THE GENXYS PLATFORM USED BY THE SUBSCRIBER IN TREATING OR ADVISING PATIENTS OR PERFORMING ANY MEDICAL PROCEDURE. THE SUBSCRIBER ACKNOWLEDGES THAT THE GENXYS PLATFORM IS A TOOL TO ASSIST THE SUBSCRIBER IN PROVIDING HEALTH CARE SERVICES AND ARE NOT INTENDED TO BE A SUBSTITUTE FOR MEDICAL ADVICE, MEDICAL CARE, DIAGNOSIS OR TREATMENT OBTAINED FROM A PHYSICIAN OR OTHER PROFESSIONAL HEALTHCARE PROVIDER. THE SUBSCRIBER ASSUMES ALL RISKS ASSOCIATED WITH THE CLINICAL USE OF THE GENXYS PLATFORM.
11.5 Exclusion – Compatibility with Third Party Systems. EXCEPT AS SPECIFICALLY STATED IN THIS AGREEMENT OR THE DOCUMENTATION, GENXYS AND ITS LICENSORS MAKE, AND SUBSCRIBER RECEIVES, NO REPRESENTATION OR WARRANTY REGARDING THE COMPATIBILITY OF THE GENXYS PLATFORM WITH SOFTWARE OR HARDWARE NOT SUPPLIED BY GENXYS. ANY WARRANTY OR LIABILITY IS EXCLUDED WHERE THE WARRANTY CLAIM ARISES OUT OF (A) ACCIDENT, THEFT, MISUSE, OR NEGLECT BY THE SUBSCRIBER, (B) USE OF THE GENXYS PLATFORM OUTSIDE OF NORMAL OPERATING CONDITIONS, SPECIFICATIONS, OR ENVIRONMENT OR IN A MANNER NOT CONSISTENT WITH THE DOCUMENTATION, (C) LACK OF ROUTINE CARE OR MAINTENANCE AS INDICATED IN ANY DOCUMENTATION, OR MAINTENANCE BY AN UNAUTHORIZED THIRD PARTY SERVICE PROVIDER, (D) FAILURE TO USE OR TAKE ANY PROPER PRECAUTIONS UNDER THE CIRCUMSTANCES, (E) USER MODIFICATION OF ANY GENXYS PLATFORM OTHER THAN BY OR AT THE INSTRUCTION OF GENXYS OR CONSISTENT WITH THE DOCUMENTATION, AND (F) DEFECTS PROBLEMS, OR FAILURES CREATED BY THIRD PARTY PRODUCTS (EXCEPT REQUIRED INTERFACES) OR THEIR INTERFACE WITH THE GENXYS PLATFORM. GENXYS WILL USE REASONABLE EFFORTS TO ASSIST THE SUBSCRIBER WITH THE USE OF THE GENXYS PLATFORM WITH THIRD PARTY PRODUCTS AT GENXYS’ THEN-CURRENT RATES FOR SUCH WORK, SUBJECT TO THE AVAILABILITY OF GENXYS PERSONNEL.
12. Indemnification
12.1 Indemnity by GenXys. GenXys will defend, at its expense, any third party claim brought against the Subscriber that the design of the GenXys Platform made available under the Subscription and used by the Subscriber in a production environment infringes any valid United States copyright or patent (“IP Claim”), and will pay the amount of any direct damages imposed on the Subscriber in any final judgment (or settlement to which GenXys consents) in connection therewith, together with any related litigation costs and reasonable attorneys’ fees of the Subscriber arising out of an IP Claim. GenXys’ obligations under this Section are conditioned upon the Subscriber promptly notifying GenXys of the IP Claim and permitting GenXys to answer, defend and settle the IP Claim. At GenXys’ reasonable request and expense, the Subscriber will provide such information and assistance necessary for the defence of the IP Claim. The Subscriber may, at its expense, participate in the defence with separate counsel. GenXys will not settle any IP Claim without the Subscriber’s prior written consent where settlement would result in an admission of liability or wrongdoing on the part of the Subscriber or the imposition of equitable relief on the Subscriber. GenXys will not publicize any settlement without the Subscriber’s prior written consent.
12.2 Equitable Relief. If the Subscriber’s use of the GenXys Platform in a production environment is enjoined as a result of any IP Claim, or in GenXys’ opinion, the GenXys Platform is likely to become subject to an IP Claim, then GenXys may, at its expense and sole option, (a) modify the GenXys Platform so that it becomes non-infringing but without materially degrading its functionality; (b) procure for the Subscriber the right to continue to use the GenXys Platform in accordance with the Subscription; (c) substitute for the infringing GenXys Platform another product having a functionality equivalent to the GenXys Platform. If it is commercially unreasonable for GenXys to undertake one of options (a), (b), or (c), above, Subscriber may terminate this Agreement and receive a refund of any pre-paid but unused Fees.
12.3 Indemnification by Subscriber. Notwithstanding Sections 12.1 and 12.2, GenXys has no liability for, and the Subscriber will defend, indemnify and hold harmless GenXys from: (a) settlements and their related costs and expenses where the Subscriber settles an IP Claim without GenXys’ prior written consent; (b) any and all loss, liability or damage, including reasonable legal fees and related costs and expenses, relating to any third-party IP Claim that could not be made but for (i) use of the GenXys Platform in a manner not authorized by GenXys; (ii) modification to the GenXys Platform other than by or at the instruction of GenXys; (iii) combination of the GenXys Platform with any other equipment, including any hardware, software, processes or materials, not furnished or specified by GenXys; or (iv) compliance by GenXys with the Subscriber’s designs, specifications or instructions; and (c) any and all loss, liability or damage, including reasonable legal fees and related costs and expenses, relating to or arising, directly or indirectly, (i) from any breach of Section 7.1 by the Subscriber or any Authorized Party, or (ii) out of the clinical use of the GenXys Platform.
12.4 Entire Obligation. This Article states GenXys’ entire liability for any third party claim based upon or related to any alleged infringement of any intellectual property rights.
12.5 Insurance. GenXys shall obtain and maintain the following minimum insurance coverage: (a) Commercial General Liability insurance in the minimum amounts $1,000,000 per occurrence and $2,000,000 in the aggregate; (b) Errors and Omissions insurance in the minimum amount of $1,000,000; and (c) Cyber Liability insurance in the amount of $1,000,000. All insurance shall be on an occurrence basis or on a claim made basis.
13. Limitations / Exclusions of Liability
13.1 Exclusion of Damages. EXCLUDING (a) EACH PARTY’S OBLIGATIONS UNDER THE BUSINESS ASSOCIATE AGREEMENT, (b) EACH PARTY’S LIABLITY FOR BREACH OF ITS OBLIGATIONS UNDER ARTICLE 7 (BUT SUBJECT TO THE LIMITATIONS SET OUT IN THAT ARTCLE), (c) EACH PARTY’S BREACH OF ITS CONDITIONS OF CONFIDENTIALITY OR PROTECTION OF CONFIDENTIAL INFORMATION SET OUT IN ARTICLE 6, (d) THE NON-PAYMENT OF FEES AND TAXES UNDER THIS AGREEMENT, (e) THE SUBSCRIBER’S BREACH OF ITS OBLIGATIONS UNDER SECTIONS 3.6 OR 3.7, (f) THE SUBSCRIBER’S OBLIGATIONS UNDER SECTION 12.3, (g) GENXYS’ OBLIGATIONS UNDER SECTION 12.1, AND (h) DAMAGES ARISING FROM A PARTY’S WILLFUL MISCONDUCT OR GROSS NEGLIGENCE, IN NO EVENT WILL EITHER PARTY BE LIABLE UNDER CONTRACT (INCLUDING FUNDAMENTAL BREACH), TORT (INCLUDING NEGLIGENCE) OR OTHERWISE FOR ANY INCIDENTAL, CONSEQUENTIAL, INDIRECT, PUNITIVE OR SPECIAL LOSSES OR DAMAGES OR FOR ANY LOSSES OR DAMAGES RESULTING FROM LOSS OF BUSINESS, LOSS OF PROFITS, LOSS OF USE, LOSS OF OR DAMAGE TO DATA, COST OF SUBSTITUTE GOODS, OR DAMAGES FOR PURE ECONOMIC LOSS, HOWEVER CAUSED, WHETHER FORESEEABLE OR NOT, EVEN IF THAT PARTY IS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE SUBSCRIBER WILL NOT ASSERT THAT ITS PAYMENT OBLIGATIONS UNDER THIS AGREEMENT ARE EXCLUDED AS GENXYS’ LOST PROFITS.
13.2 Limitation on Liability – General. SUBJECT TO GENXYS’ OBLIGATIONS UNDER THE BUSINESS ASSOCIATE AGREEMENT AND TO SECTIONS 13.3 AND 13.4 AND EXCEPT FOR GENXYS’ LIABILITY RESULTING FROM A BREACH OF ITS CONDITIONS OF CONFIDENTIALITY OR PROTECTION OF CONFIDENTIAL INFORMATION SET OUT IN ARTICLE 6 (BUT SUBJECT TO THE LIMITATIONS SET OUT IN SECTION 7.5), IN NO EVENT WILL THE TOTAL LIABILITY OF GENXYS ITS SUPPLIERS OR LICENSORS FOR ANY LOSS OR DAMAGES RELATING TO THIS AGREEMENT EXCEED, IN THE AGGREGATE FOR ALL CLAIMS, THE FEES ACTUALLY PAID BY THE SUBSCRIBER UNDER THIS AGREEMENT IN THE 12 MONTH PERIOD IMMEDIATELY PRECEDING THE DATE ON WHICH THE LIABILITY AROSE (OR, FOR ANY LIABILITY ARISING BEFORE THE FIRST ANNIVERSARY OF THE EFFECTIVE DATE, THE AMOUNT PAID OR PAYABLE FOR THE 12 MONTH PERIOD).
13.3 Limitation on Liability – Confidentiality and Security Breach. GENXYS’ TOTAL AGGREGATE LIABILITY TOR ANY BREACH OF ITS OBLIGATIONS UNDER ARTICLE 6 OR ARTICLE 7, WILL NOT EXCEED TWO TIMES THE TOTAL FEES ACTUALLY PAID BY THE SUBSCRIBER UNDER THIS AGREEMENT IN THE 12 MONTH PERIOD IMMEDIATELY PRECEDING THE DATE ON WHICH THE LIABILITY AROSE (OR, FOR ANY LIABILITY ARISING BEFORE THE FIRST ANNIVERSARY OF THE EFFECTIVE DATE, THE AMOUNT PAID OR PAYABLE FOR THE 12 MONTH PERIOD) , LESS THE AMOUNT OF ANY REFUND THEREOF PAID TO THE SUBSCRIBER.
13.4 Interfaces. FOR ALL INTERFACES, GENXYS’ LIABILITY IS LIMITED TO THE PORTION OF THE ACTUAL AMOUNT PAID TO GENXYS BY THE SUBSCRIBER (LESS THE AMOUNT OF ANY REFUND THEREOF PAID TO THE SUBSCRIBER) FOR THAT INTERFACE, AS SET OUT IN THE APPLICABLE QUOTATION (OR, IF NOT SET OUT SEPARATELY, AS REASONABLY ALLOCATED BY GENXYS). OTHERWISE, SUBJECT TO ANY LIMITATIONS IN THIS AGREEMENT OR IN THE INTERFACE LICENSOR’S OTHER LICENSE TERMS AND CONDITIONS APPLICABLE TO THE SUBSCRIBER, (a) THE SUBSCRIBER’S EXCLUSIVE RECOURSE AND REMEDIES WILL BE TO THE INTERFACE LICENSOR AND GENXYS WILL NOT HAVE ANY OTHER LIABILITY; (b) THE LIABILITY OF THE INTERFACE LICENSOR WILL BE LIMITED TO THE GROSS RECEIPTS OF THAT LICENSOR ON ACCOUNT OF THAT INTERFACE; AND (c) THE SUBSCRIBER WILL, UPON REQUEST FROM TIME TO TIME OF GENXYS, EXECUTE AND DELIVER A RELEASE IN FAVOUR OF GENXYS AND THE INTERFACE LICENSOR OF ANY AND ALL OTHER LIABILITY. THESE LIMITATIONS OF LIABILITY ARE IN ADDITION TO THE OTHER LIMITATIONS OF LIABILITY SET OUT IN THIS AGREEMENT.
13.5 Application. THE LIMITATIONS IN THIS ARTICLE APPLY NOTWITHSTANDING THE FAILURE OF THE ESSENTIAL PURPOSE OF ANY LIMITED REMEDY. EACH PARTY ACKNOWLEDGES THAT THE LIMITATIONS OF LIABILITY IN THIS AGREEMENT ARE MATERIAL PARTS OF THE BARGAIN BETWEEN THE PARTIES AND THAT PRICES FOR THE SUBSCRIPTION AND SERVICES WOULD BE HIGHER WITHOUT THEM. THE SUBSCRIBER ACKNOWLEDGES THAT GENXYS’ LICENSORS AND SUPPLIERS ARE INTENDED BENEFICIARIES OF THE LIMITATIONS SET OUT IN THIS AGREEMENT.
14. Force Majeure
14.1 Definition. Except for payment obligations, neither party will be responsible for any delay or failure in performance of its obligations under this Agreement to the extent such delay or failure is caused by (i) a natural disaster, fire, flood, storm, epidemic, pandemic or power failure, (ii) a war (declared or undeclared), insurrection or act of terrorism or piracy, (iii) a strike (including illegal work stoppage or slowdown) or lockout, (iv) internet or telecommunications failure, or (v) any other cause beyond the control and without the fault or negligence of the affected party (each, a “Force Majeure Event”). If a Force Majeure Event affecting a party continues for a period of more than 30 days, then the other party will have the right to terminate this Agreement as of the date specified in written notice of termination to the affected party.
14.2 No Liability. A party that is prevented from performing its obligations under this Agreement as a result of a Force Majeure Event (the “Affected Party”) is not liable to the other party for any failure or delay in the performance of the Affected Party’s obligations under this Agreement resulting from that Force Majeure Event and any time periods for the performance of those obligations are automatically extended for the duration of that Force Majeure Event, provided that the Affected Party complies with the requirements of Section 14.3.
14.3 Notice. The Affected Party must promptly notify the other party in writing upon the occurrence of a Force Majeure Event and make all reasonable efforts to prevent, control or limit the effect of that Force Majeure Event so as to resume compliance with the Affected Party’s obligations under this Agreement as soon as reasonably possible.
15. Government Rights
15.1 The GenXys Platform and related materials under this Agreement are commercial computer software as that term is described in 48 C.F.R. 252.227-7014(a) – Rights in non-commercial computer software and non-commercial computer software documentation (1). If acquired by or on behalf of a civilian agency, the U.S. Government acquires this commercial computer software and/or commercial computer software documentation subject to the terms of the Agreement as specified in 48 C.F.R. 12.212 (Computer Software) and 12.211 (Technical Data) of the Federal Acquisition Regulations (“FAR”) and its successors. If acquired by or on behalf of any agency within the Department of Defence (“DOD”), the U.S. Government acquires this commercial computer software and / or commercial computer software documentation subject to the terms of the Agreement as specified in 48 C.F.R. 227.7202 3 – Rights in commercial software or commercial computer software documentation of the DOD FAR Supplement (“DFAR”) and its successors.
16. Publicity
16.1 The Subscriber agrees that GenXys has the right to use the Subscriber’s name and logo in its customer-related promotional materials (including, without limitation, on any websites owned or controlled by GenXys), and to indicate that the Subscriber is a customer of GenXys. GenXys will seek the Subscriber’s prior written consent for any other promotional uses of the Subscriber’s name and logo, such consent not to be unreasonably withheld, conditioned, or delayed.
17. Governing Law / Dispute Resolution
17.1 Governing Law. The governing law of the substance of this Agreement will be the commercial law of the Province of British Columbia, Canada, without reference to its conflicts of laws provisions, and the United Nations Convention for the International Sale of Goods and all implementing legislation will not apply. The procedural law will be the law of the place where arbitration is conducted.
17.2 Disputes
(a) Disputes: All disputes, controversies and claims between the parties arising under, out of, in connection with, or in relation to this Agreement, the subject matter of this Agreement or any related matter (each a “Dispute”) will be resolved in accordance with this Section 17.2 unless the parties expressly agree in writing otherwise.
(b) Negotiation: Either party may give a notice (a “Dispute Notice”) to the other party requiring the parties to attempt to resolve a Dispute through negotiation, and the parties will then cause their respective authorized senior representatives to meet (by conference or video call) on a mutually acceptable date and time within seven days after the date on which the Dispute Notice is delivered to discuss and attempt to resolve the Dispute. If a Dispute is not fully and finally resolved within 15 days after the date on which the applicable Dispute Notice is delivered, then either party may refer the Dispute to arbitration pursuant to Subsection 17.2(c). All communications (oral and written) made in the course of negotiations regarding a Dispute pursuant to this Subsection will be deemed “without prejudice” and will not be admissible into evidence in arbitration or any other legal proceeding unless the communication is in writing and is expressly identified as being made “with prejudice”.
(c ) Arbitration: Subject to Subsections 17.2(b) and 17.2(d), each Dispute will be referred to and finally resolved by confidential binding arbitration administered by ICDR Canada in accordance with its Canadian Arbitration Rules. The number of arbitrators will be one. The place of arbitration will be Vancouver, British Columbia. The language of the arbitration will be the English language. If ICDR Canada is not operative, then the arbitration will proceed ad hoc and be governed by the Arbitration Act (BC). Any award rendered in an arbitration is final and binding, and judgment on the award may be entered in any court having jurisdiction for the enforcement of the award.
(d) Litigation: Notwithstanding Subsections 17.2(b) and 17.2(c), either Party may seek preliminary or temporary injunctive relief and other remedies from the Supreme Court of British Columbia sitting in Vancouver, British Columbia to avoid irreparable harm or to preserve the status quo (including remedies to protect and preserve intellectual property rights), and the parties hereby irrevocably submit and attorn to the original and exclusive jurisdiction of that court in respect of all of those matters and any other matter that is not properly subject to arbitration pursuant to Subsection 17.2(c). ALL CLAIMS AGAINST GENXYS MUST BE BROUGHT IN THE SUBSCRIBER’S OWN CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. THE SUBSCRIBER AGREES THAT, BY USING THE SERVICES, THE SUBSCRIBER AND GENXYS ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN A CLASS ACTION.
17.3 Limitation Period. No claim, regardless of form, arising out of, or in any way connected with this Agreement may be brought by the Subscriber more than one year after the cause of action has accrued or the performance of the service giving rise to that claim has been completed or terminated, whichever is earlier.
18. General Provisions
18.1 Further Assurances. The parties will execute such further assurances and other documents and instruments and do such further and other things as may be necessary to implement and carry out the intent of this Agreement.
18.2 Notices. All notices under this Agreement must be in writing and will be deemed given: (a) when delivered personally; (b) 5 days after being sent by registered or certified mail, return receipt requested; (c) one day after deposit with a pre-paid commercial overnight carrier specifying next day delivery; or (d) by electronic mail if sent to GenXys and receipt is acknowledged by the receiving party. All notices to a party will be sent to the address for that party set out on the Cover Page to this Agreement or to any subsequent address that either party gives to the other in accordance with this Section.
18.3 Enurement. This Agreement will enure to the benefit of and be binding upon the parties and their respective successors and assigns.
18.4 Severability. If any provision of this Agreement is held to be unenforceable, then the remaining provisions will continue in full force and effect. The parties will in good faith negotiate a mutually acceptable and enforceable substitute for the unenforceable provision, which substitute will be as consistent as possible with the original intent of the parties.
18.5 Modification and Waiver. This Agreement may not be modified except by a writing signed by authorized representatives of both parties. A waiver by either party of its rights under this Agreement is not binding unless in writing and signed by an authorized representative of the party waiving its rights. The non-enforcement or waiver of any provision on one occasion will not constitute a waiver of such provision on any other occasions unless expressly agreed in writing. No use of trade or other regular practice or method of dealing between the parties will be used to modify, interpret or supplement the terms of this Agreement.
18.6 Mutual Negotiation. The parties understand and agree that the terms of this Agreement have been mutually negotiated, prepared and drafted, and that if at any time the parties desire or are required to interpret or construe any such term or condition or any agreement or instrument subject to this Agreement, then no consideration will be given to the issue of which party actually prepared, drafted or requested any term of this Agreement.
18.7 Currency. Unless otherwise specified in the Financial Terms, all dollar amounts referred to in this Agreement are in US dollars.
18.8 Entire Agreement. This Agreement, and the agreements and instruments referred to in this Agreement, constitute the entire agreement between the parties with respect to the subject-matter hereof and thereof and supersede all prior negotiations, proposals and agreements, whether oral or written, with respect to the subject-matter hereof and thereof.
18.9 Headings and Number. The division of this Agreement into Articles, Sections and Subsections, and the headings of those Articles, Sections and Subsections, are for reference only and will not limit or control the meaning or interpretation of this Agreement. Words importing the singular number only include the plural and vice-versa, and words importing one gender only include all genders.
18.10 Assignment. Neither party has the right to assign its rights or delegate its obligations under this Agreement without the prior written consent of the other party, and any attempted assignment without such consent will be void. Notwithstanding the foregoing, (a) either party has the right to assign this Agreement in its entirety in connection with (i) a merger transaction, (ii) the purchase of substantially all of the assets used by that party in its business to which this Agreement relates, or (iii) a transfer between that party and its subsidiary or affiliate, provided that the assigning party gives written notice of that assignment to the other party promptly following the effective date of that assignment and the assignee agrees in writing with the non-assigning party to be subject to and bound by the terms of this Agreement, and (b) the Subscriber agrees that GenXys has the right to engage one or more third parties to provide Hosting Services on its behalf under this Agreement (but GenXys shall remain responsible for such third parties’ compliance with this Agreement).
18.11 Counterpart and Electronic Means. This Agreement may be executed by electronic means and in counterpart and such counterparts together will constitute a single instrument. Execution and delivery of an executed counterpart of this Agreement by any electronic means capable of producing a printed copy will be equally effective as delivery of a manually executed counterpart.