This Master Services Agreement ("Agreement"), effective as of the last date it is signed by a party below (the "Effective Date"), is entered into by and between the entity identified as Customer above ("Customer") and MediaLab, Inc., a Georgia corporation, with its principal place of business located at 242 South Culver St., Lawrenceville, GA 30046 ("MediaLab"). The parties agree as follows:
1. DEFINITIONS. Capitalized terms used but not defined elsewhere in this Agreement have the meanings set forth below.
1.1 "Blind Data" means any of the following to the extent it has been de-identified so that it does not identify Customer or any individual: (a) data, records, files, content, or information, in any form or format, acquired, collected, received, stored, or maintained by MediaLab from or on behalf of Customer or otherwise in connection with this Agreement or the Services (including Customer Data); or (b) derived therefrom.
1.2 "Customer Data" means data and information submitted by or for Customer or a Designated User to the Services.
1.3 "Designated User" means an individual authorized by Customer to use the Hosted Services and to whom Customer (or, when applicable, MediaLab at Customer's request) has supplied a user identification and password (for Services utilizing authentication).
1.4 "Documentation" means available user guides, documentation, and specifications for the Services, as may be updated by MediaLab from time to time.
1.5 "Hosted Services" means the software services to be provided by MediaLab to Customer over the internet through a web browser or other MediaLab authorized application, as further described and set forth in an Order and this Agreement.
1.6 "Order" means an order specifying the Services to be provided hereunder that is executed by the parties, including any addenda and supplements thereto. The agreed form of Order is attached hereto as Exhibit A.
1.7 "Professional Services" means any consulting services that are described in an Order that are not Hosted Services.
1.8 "Services" means the services ordered by Customer under an Order, and may include Hosted Services and Professional Services. "Services" excludes Customer Data.
2.1 Orders for Services. MediaLab will make the Services available to Customer in accordance with the terms and conditions of this Agreement and any applicable Order. If this Agreement and an Order conflict, this Agreement will govern to the extent of the conflict unless the Order expressly states that it is intended to modify the conflicting terms of this Agreement, in which case the the Order will govern to the extent of the conflict.
2.2 Hosted Services. MediaLab will provide to Customer the Hosted Services specified in an Order. Customer will identify to MediaLab, in the manner specified by MediaLab from time to time, the Designated Users that require access to the Hosted Services. MediaLab will provide standard support for the Hosted Services to Customer at no additional charge (i.e., new releases, upgrades, updates, patches, and bug fixes as they may, from time to time, be developed and made generally available as part of the Services).
2.3 Protection and Use of Customer Data. MediaLab will maintain administrative, physical, and technical safeguards for protection of the security, confidentiality, and integrity of Customer Data, as described in the Documentation. Those safeguards will include measures for preventing access, use, modification, or disclosure of Customer Data by MediaLab personnel except: (a) to provide the Services and prevent or address service or technical problems; (b) as compelled by law in accordance with Section 6.3 (Compelled Disclosure) below; or (c) as Customer expressly permits in writing.
3. DESCRIPTION OF HOSTED SERVICES.
3.1 For each of the following Services, the Customer subscription gives the Customer access to the Services via the Internet for the usage limits shown on this Exhibit A [Customer's paid invoice or quote].
Compliance & Continuing Education Courses: MediaLab will provide online continuing education and compliance courses for clinical laboratory science and an online tracking and reporting application (learning management system) for administering those courses to employees. The menu of included courses will vary, but no fewer than 80 courses will be made available to subscribers. A current list of courses is available on the MediaLab website. MediaLab will notify users at least 15 days prior to the removal of any course, offering the user the ability to save a copy of the course. Access to MediaLab's CourseBuilder is also included. The user may build unlimited courses using the CourseBuilder tool.
Histology Continuing Education Courses: MediaLab will provide online continuing education for histology and an online tracking and reporting application (learning management system) for administering those courses to employees. The menu of included courses will vary, but no fewer than 15 histology-specific courses will be made available to subscribers. A current list of courses is available on the MediaLab website. MediaLab will notify users at least 15 days prior to the removal of any course, offering the user the ability to save a copy of the course. Access to MediaLab's CourseBuilder is also included. The user may build unlimited courses using the CourseBuilder tool.
Document Control: MediaLab will provide an online system to manage uploaded documents, including managing approvals, revisions, periodic review, employee signoff, controlled copies, and reporting in compliance with CLIA, CAP, and Joint Commission requirements.
InspectionProof: MediaLab will provide an online system to help users manage uploaded CAP checklists, attach Document Control files, text answers, and other uploaded files to checklist items, and manage inspection preparedness for the laboratory.
POCT Compass: MediaLab will provide an online system to help users create, deliver, and report on competency assessments.
IQE-CAPA: MediaLab will provide an online system for the creation of custom forms to manage quality management and corrective/preventive action processes such as non-conforming events, failed proficiency testing, Customer feedback, and more.
Exam Simulator: MediaLab will provide an online system to help users prepare for laboratory certification exams, following commonly used computer adaptive testing formats from ASCP and AMT.
Histology Exam Simulator: MediaLab will provide an online system to help users prepare for histology certification exams, following commonly used computer adaptive testing formats from ASCP and AMT.
White Blood Cell Simulator: MediaLab will provide an online system to help users practice identification of white blood cells. 25 cases are included.
Advanced White Blood Cell Simulator: MediaLab will provide an online system to help users practice more advanced identification of white blood cells. 12 cases are included.
Premium Support: Premium Support subscribers are assigned to a dedicated MediaLab implementation specialist that will be a primary point of contact for you. Your implementation specialist will get to know your account and be able to answer your specialized configuration, optimization, and best practice questions. Dedicated implementation specialists will meet with key stakeholders to understand the unique needs and scope of the laboratory. The specialists will help outline goals and timelines for module implementation, as well as help identify and define personnel with implementation roles. All MediaLab subscribers receive one free virtual (kickoff) meeting with a MediaLab implementation specialist to help you set up your subscription for your needs. Premium Support users will receive ongoing specialized support through standing virtual meetings to make sure you're getting the most out of your MediaLab subscription. Support issues raised by Premium Support subscribers are prioritized for faster response.
SSO Configuration / Maintenance: MediaLab will collaborate with Customer IT department to integrate MediaLab with Customer institution's existing SAML-based single sign-on process. Customer subscription includes customization of MediaLab to receive Customer institution's login requests via SAML 2.0, technical support for the connection between Customer existing single sign-on process and MediaLab, and troubleshooting of users that are unable to log in. Up to 10 hours of MediaLab developer time are included. More complex integrations or integrations that do not support SAML 2.0 may incur additional charges. Customer subscription includes only authentication functionality and does not include creation or update of user profiles through SAML, SKIM, or any other method.
Document Porting: MediaLab will assist in the process of mass importing documents into MediaLab's Document Control system. Customer must provide the documents that are to be uploaded in Word, PDF, Excel, or PowerPoint format, with each document as a separate file. Customer must complete a document information spreadsheet so that MediaLab can correctly import document names, numbers, version numbers, author names, approval history, periodic review history, and last approval date. MediaLab will place documents into the appropriate manuals based on the document information spreadsheet. MediaLab will assist with configuring sharing and importing of documents between divisions, if applicable. Customer's purchase of this item includes document porting for up to the number of document files shown on Exhibit A.
Corporate Management Features:General: MediaLab will allow Customer to designate one site as a corporate site, which can have an unlimited number of divisions. Divisions share subscriptions with corporate and have access to the same subscriptions and user counts as the corporate site. Divisions can act autonomously from the corporate site, including having their own use lists, group lists, Document Control documents, Compass profiles, InspectionProof inspections, Compliance & CE custom courses, approval processes, workflows, reporting, and more. Reporting for a division is limited to that division, so the division only sees activity relevant to its own users and files. The corporate site has reporting power over all divisions, and corporate administrators can see reports across all divisions, or they can drill down and see reports for a specific division. Customer subscription allows Customer to create unlimited divisions underneath a single corporate division.
Special for Document Control: Corporate management features for Document Control include the ability to share documents between corporate and divisions, so that all participating institutions stay in sync. Signatures can also be copied between institutions, so a user who's required to sign a document on behalf of multiple locations may need to sign only once.
Special for Compass: Corporate management features for Compass include the ability to share competency profiles with divisions. The division can sync to corporate's competency profile, so all changes made by corporate are automatically reflected in the division's competency assessments, or the division can choose to import and further customize corporate competency assessments, using them as a starting point for further adaptation to the division's specific needs.
4. USE OF SERVICES AND CONTENT.
4.1 Customer Responsibilities. Customer will: (a) be responsible for Designated Users' compliance with this Agreement and for all acts and omissions of Designated Users as if they were Customer's acts or omissions; (b) be responsible for the accuracy, quality, and legality of Customer Data and the means by which Customer acquired Customer Data; (c) use commercially reasonable efforts to prevent unauthorized access to or use of the Services and notify MediaLab promptly of any unauthorized access or use of which Customer becomes aware; (d) use Services only in accordance with this Agreement, any applicable Order, and the Documentation; (e) comply with all Laws applicable to Customer's use of the Services; (f) promptly and fully cooperate with MediaLab and make the necessary personnel and resources available to MediaLab for MediaLab to deliver the Services, as reasonably requested by MediaLab; and (g) use browser software that supports Secure Socket Layer protocol (SSL) to encrypt employee and administrative internet data transmission. "Laws" means laws, regulations, statutes, ordinances, case law, and governmental orders having the effect of law.
4.2 Usage Restrictions. Customer will not: (a) make any Service available to, or use any Service for the benefit of, any person or entity other than Customer or Designated Users; (b) lease, license, sell, sublicense or otherwise transfer its access to or use of the Services, or include any Service in a service bureau or outsourcing offering; (c) use or permit use of any Service in contravention of Section 3.4 (Prohibited Uses); (d) interfere with or disrupt the integrity or performance of any Service; (e) attempt to gain unauthorized access to any Service; (f) permit direct or indirect access to or use of any Service in a way that circumvents a usage limit; (g) copy a Service or any part, feature, function, or user interface thereof; (h) copy any Service except as permitted herein or in an Order or the Documentation; (i) frame or mirror any part of any Service; (j) access any Service in order to build a competitive product or service; or (k) reverse engineer any Service (to the extent this restriction is permitted by law).
4.3 Technical Requirements. Customer will need certain equipment, software, and Internet access to be able to access the Hosted Services. Acquiring, installing, maintaining and operating equipment and Internet access is solely Customer's responsibility. MediaLab neither represents nor warrants that the Hosted Services will be accessible through all web browser releases.
4.4 Prohibited Uses. Customer will not and will not permit others in using the Services to: (a) defame, abuse, harass, stalk, threaten any individual or infringe or otherwise violate the legal rights (such as rights of privacy, publicity and intellectual property) of others or MediaLab; (b) distribute any harmful, inappropriate, profane, vulgar, infringing, obscene, false, fraudulent, tortuous, indecent, unlawful, or otherwise objectionable material or information (including any unsolicited commercial communications); (c) engage in or encourage any conduct that could constitute a criminal offense or give rise to civil liability for MediaLab; (d) misrepresent or in any other way falsely identify Customer's identity or affiliation, including through impersonation or altering any technical information in communications using the Services; (e) transmit or upload any material through the Services that contains viruses, trojan horses, worms, time bombs, cancelbots, or any other programs with the intent or effect of damaging, destroying, disrupting or otherwise impairing MediaLab's, or any other person's or entity's, network, computer system, or other equipment; (f) interfere with or disrupt the Services, networks or servers connected to the MediaLab systems or violate the regulations, policies or procedures of such networks or servers, including unlawful or unauthorized altering any of the information submitted through the Services; (g) attempt to gain unauthorized access to the Services, other MediaLab customers' computer systems or networks using the Services through any means; or (h) interfere with another person's use of the Services. MediaLab has no obligation to monitor Customer's use of the Services. However, MediaLab reserves the right (but has no obligation) at all times to monitor, review, retain and disclose any information as necessary to satisfy or cooperate with any applicable law, regulation, legal process or governmental request.
4.5 Implementation. MediaLab's Services are designed to be easy-to-use, and implementation can be easily completed by the Customer. Customer is responsible for implementation of MediaLab's Services, including but not limited to adding users, configuring groups and permissions, uploading files / documents, creating assignments, and creating custom courses. MediaLab shall provide Customer with technical support for questions regarding implementation as provided herein. All MediaLab subscribers receive one free virtual (kickoff) meeting with a MediaLab implementation specialist to help you set up your subscription for your needs.
4.6 Support. MediaLab provides implementation assistance and ongoing technical support for Customers by toll-free phone number and e-mail. Support is available Monday through Friday, 10AM to 6PM ET, excluding federal holidays. Support voicemails and e-mails will be returned within 1 business day. MediaLab does not provide on-site support.
5. PROPRIETARY RIGHTS AND LICENSES.
5.1 Reservation. MediaLab and its licensors own all rights, title, and interest in and to the Services and the Documentation, including all intellectual property rights therein. No rights are granted to Customer hereunder other than as expressly set forth in this Agreement. MediaLab reserves the right to discontinue or substantially modify the Services; provided, MediaLab will provide at least 90 days' prior written notice to Customer of such discontinuation or modification.
5.2 Access to Hosted Services. Subject to Customer's compliance with this Agreement and any Orders, MediaLab grants to Customer a non-exclusive, non-transferable, limited license for Designated Users to access and use the Hosted Services and Documentation solely for Customer's internal business purposes.
5.3 Customer Data. Customer owns all its Customer Data, all of which is Customer Confidential Information. Upon Customer's request, made any time before or after expiration or termination of this agreement MediaLab will return all Customer Data to Customer in a mutually agreeable format. "Customer Data" means all data and information owned by Customer, delivered to MediaLab or created by a member of the Customer (including its workforce, volunteers, contractors or an affiliated healthcare provider) in connection with this agreement. MediaLab is required to submit certain data to accrediting organizations, including the American Society of Clinical Laboratory Science ("ASCLS") and Florida's CEBroker system, to maintain MediaLab's continuing education credentials and award continuing education credit to those who have completed courses. Transmitted information includes names, place of employment, course completed, date, and license number (for Florida CEBroker). MediaLab is not responsible for the manner in which ASCLS and Florida CEBroker processes information.
6. FEES AND PAYMENT TERMS.
6.1 Services Fees. For the Services provided under this Agreement, Customer will pay MediaLab the fees in the amounts set forth in the applicable Order. If purchase orders are submitted, Customer will pay all invoices net 30 days from the date of the MediaLab's invoice. All fees paid and expenses reimbursed under this Agreement will be in United States currency.
6.2 Late Payments. If any invoiced amount is not received by MediaLab by the due date, then, MediaLab, at its option, may suspend the Services, in whole or in part.
6.3 Taxes. MediaLab's fees do not include any taxes, levies, duties or similar governmental assessments of any nature, including, for example, value-added, sales, use or withholding taxes, assessable by any jurisdiction whatsoever (collectively, "Taxes"). Customer is responsible for paying all Taxes associated with its purchases hereunder. If MediaLab has the legal obligation to pay or collect Taxes for which Customer is responsible under this section, MediaLab will invoice Customer and Customer will pay that amount unless Customer provides MediaLab with a valid tax exemption certificate authorized by the appropriate taxing authority. For clarity, MediaLab is solely responsible for taxes assessable against it based on its income, property and employees.
7. NON-DISCLOSURE AND CONFIDENTIALITY.
7.1 Definition of Confidential Information. "Confidential Information" means information disclosed by a party to the other party that is designated as confidential or that reasonably should be considered confidential given the nature of the information and the circumstances of disclosure. Confidential Information of Customer includes Customer Data; Confidential Information of MediaLab includes the Services and Documentation; and Confidential Information of each party includes the terms and conditions of this Agreement and all Orders (including pricing), as well as information pertaining to business operations and strategies, and information pertaining to customers, pricing, and marketing; "Disclosing Party" refers to the party disclosing Confidential Information hereunder, whether such disclosure is directly from Disclosing Party or through Disclosing Party's employees or agents; and "Recipient" refers to the party receiving any Confidential Information hereunder, whether such disclosure is received directly or through Recipient's employees or agents. Confidential Information does not include information that: (a) is already known to the Recipient without restriction on use or disclosure prior to receipt of such information from the Disclosing Party; (b) is or becomes generally known by the public other than by breach of this Agreement by, or other wrongful act of, the Recipient; (c) is developed by the Recipient independently of, and without reference to, any Confidential Information of the Disclosing Party; or (d) is received by the Recipient from a third party who is not under any obligation to the Disclosing Party to maintain the confidentiality of such information.
7.2 Requirement of Confidentiality. The Recipient agrees that it will use the same degree of care it uses to protect the confidentiality of its own confidential information of like kind (but not less than reasonable care) to: (a) not disclose or otherwise make available Confidential Information of the Disclosing Party to any third party without the prior written consent of the Disclosing Party, provided that the Recipient may disclose the Confidential Information of the Disclosing Party to its, and its affiliates', officers, employees, consultants and legal advisors who have a "need to know," who have been apprised of this restriction and who are themselves bound by written nondisclosure obligations at least as restrictive as those set forth in this Section 6; and (b) use the Confidential Information of the Disclosing Party only for the purposes of performing its obligations or as otherwise authorized under this Agreement. The Recipient will promptly notify the Disclosing Party in the event it becomes aware of any loss or disclosure of any of the Confidential Information of Disclosing Party. The obligations in this Section 6 will survive termination and continue for so long as the applicable information constitutes Confidential Information.
8. REPRESENTATIONS, WARRANTIES, AND DISCLAIMERS.
8.1 Mutual Representations. Each party represents and warrants that it has the legal power and authority to enter into this Agreement.
8.2 Independent Contractor Status. The relationship between Customer and MediaLab is one of an independent contractor and not as an employee, agent, partner of, or joint venturer with Customer. MediaLab shall assume exclusive responsibility for the payment of wages to its employees for services performed by them to Customer. MediaLab may not assign or subcontract any part of its duties, obligations, or rights without the prior written consent of Customer. Customer may assign this Agreement to any of its affiliated entities upon written notice to MediaLab.
8.3 Limited MediaLab Warranty. MediaLab represents and warrants that: (i) it will provide the Services in a manner consistent with general industry standards reasonably applicable to the provision of Services and that the Hosted Services will perform substantially in accordance with the Documentation under normal use and circumstances; and (ii) MediaLab, its employees and subcontractors, are not debarred, excluded, suspended or otherwise ineligible to participate in a federal healthcare program, nor have they been convicted of any healthcare-related crime for the products and services provided under this Agreement (an "Excluded Provider"). MediaLab shall promptly notify Customer if it becomes aware that MediaLab or any of its employees or subcontractors providing Services hereunder have become an Excluded Provider, whereupon Customer may terminate this Agreement effective immediately by express written notice to MediaLab.
8.4 Non-Infringement Warranty. MediaLab warrants to Customer that the Services will not infringe on patents, copyrights, trademarks, trade secrets, or other intellectual property rights of any person or entity. In the event of a breach of MediaLab's warranty under this Section, Customer's exclusive remedy, and MediaLab's entire liability, will be pursuant to the "Indemnification" Section below.
8.5 Performance Warranty. MediaLab represents and warrants that the Services (i) shall materially conform to the user guides, operating manuals, technical information and responses prepared by MediaLab to any request for information or request for proposal issued by Customer, and specifications, whether in print or machine readable media, and all materials supplied by MediaLab or its agents to Customer or otherwise made generally available regarding the Services ("Documentation"), and that the Documentation as of the Effective Date represents the minimum functionality and performance characteristics of the Services; and (ii) shall not contain any computer virus or other illicit code, and that MediaLab shall promptly notify Customer of any security vulnerabilities in the Services and cooperate with Customer in remediating the effects of any such vulnerabilities.
8.6 Service Availability. MediaLab monitors its servers 24/7/365 for critical issues using several internal and external monitoring tools. We guarantee a 99.5% uptime (no more than 3.6 hours of downtime per month) from 7am to 11pm Eastern Time Monday through Friday, and 99% uptime (no more than 7.2 hours of downtime per month), from 11pm to 7am Eastern Time Monday through Friday and all day Saturday and Sunday, as measured from the first day to the last day of each calendar month.
8.7 Disclaimer. OTHER THAN AS EXPRESSLY SET FORTH IN THIS SECTION 7, MEDIALAB DISCLAIMS ALL WARRANTIES, CONDITIONS, OR REPRESENTATIONS TO CUSTOMER REGARDING THIS AGREEMENT AND THE SERVICES, WHETHER ORAL OR WRITTEN, EXPRESS, IMPLIED, OR STATUTORY. WITHOUT LIMITING THE FOREGOING, ANY IMPLIED WARRANTY OR CONDITION OF MERCHANTABILITY, THE IMPLIED WARRANTY AGAINST INFRINGEMENT, THE IMPLIED WARRANTY OR CONDITION OF FITNESS FOR A PARTICULAR PURPOSE, AND THOSE ARISING FROM A COURSE OF DEALING OR USAGE OF TRADE ARE EXPRESSLY EXCLUDED AND DISCLAIMED BY MEDIALAB. NO WARRANTY IS MADE THAT USE OF THE SERVICES WILL BE ERROR FREE OR UNINTERRUPTED, THAT ANY ERRORS OR DEFECTS IN THE SERVICES WILL BE CORRECTED, OR THAT THE SERVICES FUNCTIONALITY WILL MEET CUSTOMER'S REQUIREMENTS. MEDIALAB DISCLAIMS ALL LIABILITY AND INDEMNIFICATION OBLIGATIONS FOR ANY HARM OR DAMAGES CAUSED BY ANY THIRD-PARTY HOSTING MEDIALAB.
9. LIMITATION OF LIABILITY.
9.1 Exclusion of Damages. EXCEPT AS OTHERWISE PROVIDED IN SECTION 8.3, IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER OR TO ANY THIRD PARTY FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL OR PUNITIVE DAMAGES, INCLUDING LOSS OF USE, REVENUE, PROFIT, OR DATA, WHETHER ARISING OUT OF BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, REGARDLESS OF WHETHER SUCH DAMAGE WAS FORESEEABLE AND WHETHER OR NOT SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
9.2 Liability Cap. EXCEPT AS OTHERWISE PROVIDED IN SECTION 8.3, IN NO EVENT WILL EITHER PARTY'S LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER ARISING OUT OF OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, EXCEED THE AGGREGATE AMOUNTS PAID OR PAYABLE TO MEDIALAB PURSUANT TO THIS AGREEMENT DURING THE TWELVE (12) MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO THE CLAIM.
9.3 Exceptions. The exclusions and limitations in Section 8.1 and Section 8.2 will not apply to: (a) damages or other liabilities arising out of or relating to a party's failure to comply with its obligations under Section 6 (Non-Disclosure and Confidentiality); or (b) a party's obligations under Section 9 (Indemnification).
10.1 MediaLab Indemnification. MediaLab will defend Customer and its officers, directors, employees, agents, successors and permitted assigns against any claim, suit, action or proceeding brought by a third party alleging that Customer's receipt or use of the Services in accordance with this Agreement infringes any intellectual property right or misappropriates any trade secret of that third party (each, a "Claim Against Customer"), and will pay all settlements entered into and damages awarded against Customer as a result of a Claim Against Customer; provided, however, that MediaLab will have no obligations under this Section 9.1 with respect to claims to the extent arising out of: (a) any instruction, information, designs, specifications or other materials provided by Customer to MediaLab; (b) use of the Services in combination with any materials or equipment not supplied to Customer or specified by MediaLab in writing; (c) any modifications or changes made to the Services by or on behalf of any person or entity other than MediaLab; (d) the use of any version of the Hosted Services other than the most current release made available by MediaLab; (e) Customer Data; or (f) Customer's breach of this Agreement, the Documentation, or the applicable Order(s). If a Service, or any part thereof, becomes, or in the opinion of MediaLab may become, the subject of a claim of infringement or misappropriation, MediaLab may, at its option: (x) obtain a license for Customer's continued use of that Service in accordance with this Agreement; (y) replace or modify the Services so that they are no longer claimed to infringe or misappropriate; or (z) terminate this Agreement and refund to Customer any portion of the fees prepaid by Customer for the infringing Service.
10.2 Customer Indemnification. Customer will defend MediaLab and its officers, directors, employees, agents, affiliates, successors and permitted assigns against any claim, suit, action or proceeding brought by a third party: (a) alleging that any information or materials provided by Customer (including Customer Data), or MediaLab's receipt or use thereof, infringes any intellectual property right or misappropriates any trade secret of that third party; (b) arising from Customer's use of the Services in breach of this Agreement, the Documentation, or an Order; (c) arising from Customer's failure to comply with applicable law; or (d) arising from a dispute between Customer and any client of Customer (each of (a) – (d), a "Claim Against MediaLab") and will pay all settlements entered into and damages awarded against MediaLab as a result of a Claim Against MediaLab.
10.3 Indemnification Procedures. The party seeking indemnification hereunder will promptly notify the indemnifying party in writing of a claim for which it seeks indemnification hereunder and cooperate with the indemnifying party at the indemnifying party's sole cost and expense. The indemnifying party will immediately take control of the defense and investigation of the claim and will employ counsel of its choice to handle and defend the same, at the indemnifying party's sole cost and expense. The indemnifying party will not settle any claim hereunder in a manner that adversely affects the rights of the indemnified party without the indemnified party's prior written consent, which will not be unreasonably withheld or delayed. The indemnified party's failure to perform any obligations under this Section 9.3 will not relieve the indemnifying party of its obligations under this Section 9 except to the extent that the indemnifying party can demonstrate that it has been materially prejudiced as a result of such failure. The indemnified party may participate in and observe the proceedings at its own cost and expense.
11. TERM AND TERMINATION.
11.1 Term. This Agreement will commence on the Effective Date and will continue for a period of time indicated on Customer's paid invoice year(s) (the "Initial Term") unless earlier terminated in accordance with this Agreement. The term of each Order will be specified in the applicable Order.
11.2 Termination. Without prejudice to any other remedies and in addition to any other termination rights herein, this Agreement may be terminated as provided below:
(a) By either party if the other party commits a material breach of this Agreement and such breach remains uncured 30 days after written notice of such breach is delivered to such other party, with a material breach including Customer's failure to pay, when due, any fees due to MediaLab; or
(b) By either party if the other party makes an assignment for the benefit of creditors, or commences or has commenced against it any proceeding in bankruptcy, insolvency, or reorganization pursuant to bankruptcy laws, laws of debtor's moratorium or similar Laws.
12.1 Governing Law. This Agreement will be governed by and construed in accordance with the internal Laws of the State of Georgia without giving effect to any choice or conflict of law provision or rule.
12.2 Delay in Performance. If MediaLab's performance of its obligations under this Agreement is prevented or delayed by any act or omission of Customer or its agents, subcontractors, consultants or employees, MediaLab shall not be deemed in breach of its obligations under this Agreement or otherwise liable for any costs, charges or losses sustained or incurred by Customer, in each case, to the extent arising directly or indirectly from such prevention or delay, and MediaLab's obligation to perform will be extended by the same number of days as Customer's contingent action is delayed.
12.3 Conflicting Terms in Customer Purchase Orders. Notwithstanding the content of any Customer purchase order or any other document or record generated by Customer (other than an executed Order), whether in writing or electronic, relating to the subject matter of this Agreement, the terms of this Agreement will govern and any conflicting, inconsistent, or additional terms contained in such documents will be null and void.
12.4 Notice. All communications required or otherwise provided under this Agreement will be in writing and will be deemed given when delivered (a) by hand, (b) by registered or certified mail, postage prepaid, return receipt requested; or (c) by a nationally recognized overnight courier service; to the address set forth for the applicable party on the first page of this Agreement, as may be amended by the party by written notice to the other party in accordance with this Section 11.4.
12.5 Assignment. Neither party may assign, transfer or delegate any or all of its rights or obligations under this Agreement without the prior written consent of the other party, which consent will not be unreasonably withheld or delayed; provided that upon prior written notice to the other party, either party may assign this Agreement, in whole, to an affiliate of that party or to a successor of all or substantially all of the assets of that party through merger, reorganization, consolidation or acquisition. No assignment will relieve the assigning party of any of its obligations hereunder. If a party makes any attempted assignment, transfer or other conveyance in violation of the foregoing, the attempted assignment, transfer, or other conveyance will be null and void, and the other party will have the right to terminate this Agreement immediately upon written notice. This Agreement will be binding upon and inure to the benefit of the parties hereto and their respective successors and permitted assigns.
12.6 Interpretation. For purposes of this Agreement, (a) the words "include," "includes" and "including" will be deemed to be followed by the words "without limitation"; (b) the word "or" is not exclusive; and (c) the words "herein," "hereof," "hereby," "hereto" and "hereunder" refer to this Agreement as a whole. Should any provision of this Agreement require judicial interpretation, the parties agree that the court interpreting or construing the same may not apply a presumption that the terms of this Agreement will be more strictly construed against one party than against another.
12.7 Severability. In case any one or more of the provisions of this Agreement is held by a court of competent jurisdiction to be invalid, illegal or unenforceable in any respect, the validity, legality and enforceability of the remaining provisions contained herein will not in any way be affected or impaired thereby.
12.8 Attorneys' Fees. In the event that any action, suit, or other legal or administrative proceeding is instituted or commenced by either party hereto against the other party arising out of or related to this Agreement, the prevailing party will be entitled to recover its reasonable attorneys' fees and court costs from the non-prevailing party.
12.9 Entire Agreement. This Agreement, including the schedules and exhibits hereto and Orders entered hereunder, constitutes the entire agreement between the parties concerning the subject matter hereof and supersedes all written or oral prior agreements or understandings with respect thereto.
12.10 Amendment; Waiver. This Agreement may only be amended, modified or supplemented by an agreement in writing signed by each party hereto. No waiver by any party of any of the provisions hereof will be effective unless explicitly set forth in writing and signed by the party so waiving. Except as otherwise set forth in this Agreement, no failure to exercise, or delay in exercising, any rights, remedy, power or privilege arising from this Agreement will operate or be construed as a waiver thereof; nor will any single or partial exercise of any right, remedy, power or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power or privilege.
12.11 Force Majeure. Neither party will be liable for delay or failure in performing any of its obligations due to causes beyond its reasonable control, including an act of nature, war, natural disaster, governmental regulations, terrorism, communication or utility failures or casualties or the failures or acts of third parties.
12.12 Change in Law. Either party may terminate this Agreement upon written notice to the other party if a party determines that any part of this Agreement is contrary to law or that complying with the terms of this Agreement may expose it to state or federal sanctions, criminal activity, or civil penalty, or jeopardizes its tax-exempt status.