Workflow Services by ImageMover Information Exchange Terms and Conditions

Last Updated May 9, 2023

These Health Information Exchange Terms and Conditions (“T&Cs”), collectively with the related ImageMover services agreement and/or order form, form a binding agreement between ImageMoverMD, Inc. (“ImageMover”), maintaining an address at 2858 University Ave #265, Madison, WI 53705, and the person or entity identified on the ImageMover services agreement and/or order form (“Customer”). For purposes of these T&Cs and with respect to the Services specified below, the “Agreement” means the ImageMover services agreement and/or order form and these T&Cs, collectively. These T&Cs will supersede any conflicting terms in the ImageMover services agreement and/or order form unless expressly addressed in a mutually signed document.

IMAGEMOVER PROVIDES THE SERVICES SOLELY ON THE TERMS AND CONDITIONS SET FORTH IN THIS AGREEMENT AND ON THE CONDITION THAT CUSTOMER ACCEPTS AND COMPLIES WITH THEM. BY ACCEPTING PERFORMANCE OF THE SERVICES CUSTOMER (A) ACCEPTS THIS AGREEMENT AND AGREES THAT CUSTOMER IS LEGALLY BOUND BY ITS TERMS; AND (B) REPRESENTS AND WARRANTS THAT: CUSTOMER HAS THE RIGHT, POWER AND AUTHORITY TO ENTER INTO THIS AGREEMENT ON BEHALF OF CUSTOMER AND BIND CUSTOMER TO ITS TERMS. IF CUSTOMER DOES NOT AGREE TO THE TERMS OF THIS AGREEMENT, IMAGEMOVER WILL NOT PROVIDE THE SERVICES.

1. Definitions. The definitions of capitalized terms are set forth in this Section 1, and as elsewhere provided in the Agreement.

“Connected Service” means web, mobile, or other software applications that Customer uses or develops that use or interact with the APIs and other services of ImageMover’s subcontractor (Particle Health, Inc.), and where the primary purpose of such data gathered is explicitly for treatment purposes (as defined under the Health Insurance Portability and Accountability Act of 1996, as amended, and its implementing regulations (collectively “HIPAA”)).

“Customer Data” means Personal Information, other information, data, and other content, in any form or medium, that is provided by Customer or that is generated for Customer in the course of providing the Services.

“ImageMover Systems” means the information technology infrastructure used by or on behalf of ImageMover in performing the Services, including all computers, software, hardware, databases, electronic systems (including database management systems) and networks, whether operated directly by ImageMover or through the use of third-party services.

“Intellectual Property Rights” means any and all registered and unregistered rights granted, applied for, or otherwise now or hereafter in existence under or related to any patent, copyright, trademark, trade secret, database protection, or other intellectual property rights laws, and all similar or equivalent rights or forms of protection, in any part of the world.

“Law” means any statute, law, ordinance, regulation, rule, code, order, constitution, treaty, common law, judgment, decree, or other requirement of any federal, state, province/territory, local, or foreign government or political subdivision thereof, or any arbitrator, court, or tribunal of competent jurisdiction.

“Licensed Software” or “Software” means any software programs authored and developed by ImageMover or third parties and identified and described in the Agreement. Licensed Software may be distributed in combination or aggregation with additional Open-source Components. Any use of the Open-source Components by Customer is governed by, and subject to, the terms and conditions of the applicable Open-source Component license(s). A list of Open-source Components and associated licenses can be found at https://www.imagemovermd.com/foss.

“Losses” means any and all losses, damages, liabilities, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs, or expenses of whatever kind, including reasonable attorneys’ fees and the costs of enforcing any right to indemnification hereunder and the cost of pursuing any insurance provider.

“Open-source Components” means any software component that is subject to any open-source copyright license agreement, including any GNU General Public License or GNU Library or Lesser Public License, or other obligation, restriction or license agreement that substantially conforms to the Open Source Definition as prescribed by the Open Source Initiative or otherwise may require disclosure or licensing to any third party of any source code with which such software component is used or compiled.

“Person” means an individual, corporation, partnership, joint venture, limited liability entity, governmental authority, unincorporated organization, trust, association, or other entity.

“Platform” means the cloud-based platform maintained by ImageMover’s subcontractor (Particle Health, Inc.) for requesting, retrieving, and contributing patient information from health data sharing networks and other third-parties.

“Query” means an initial request for data requested through the Platform or Services using an API of ImageMover’s subcontractor (Particle Health, Inc.).

“Services” means the Health Information Exchange services as further described in these T&Cs.

2. Services – ImageMover Responsibilities.

2.1 Access to Services. ImageMover shall use commercially reasonable efforts to provide access to the Services as set forth in the Agreement, but provides no guarantees or warranties that the Services will be available 24 hours a day, seven days a week, and the Customer acknowledges and agrees that the Services may be inaccessible from time to time for scheduled Service downtime; degradation due to a Force Majeure Event; or other circumstances beyond ImageMover’s reasonable control, including Customer’s misuse of Licensed Software, or use of Licensed Software other than in compliance with the express terms of this Agreement; and any suspension or termination of Customer’s access to or use of Licensed Software as permitted by this Agreement.

2.2 Changes. ImageMover reserves the right, in its sole discretion, to make any changes to Licensed Software or Services that it deems necessary or useful to: (a) maintain or enhance (i) the quality of Licensed Software, (ii) the competitive strength of or market for Licensed Software or (iii) the Services’ cost efficiency or performance; or (b) to comply with applicable Law.

3. Services - Customer Terms.

3.1 Compliance of Customer’s Connected Services. Customer’s Connected Service does not in any way inherit individual consent, government approval, IRB approval, regulatory clearance of any kind, or HIPAA compliance, solely by receiving data from the Platform or the Services.

3.2 Acceptable Use. Customer will not submit any Query about an individual to the Platform or the Services unless Customer has the requisite authority and consent from such individual, to the extent required under applicable law, to obtain the requested data and the Query complies with the terms of this Agreement. Customer will not submit any Query to the Platform or the Services that is false, misleading, or if the purpose of the Query is to interfere with or gain unauthorized access to data, the Platform or the Services, or third-party systems or networks or that does not comply with the Platform Terms of Use. Customer is responsible for ensuring the Connected Service and Customer’s use of personal data complies with all applicable laws, including those governing use of the Connected Service in a health care setting. Customer agrees to comply with, and ensure the Connected Service will comply with, policies, acceptable use requirements, and other restrictions implemented from time to time regarding use of the Platform or the Services.

3.3 Use of Data for Authorized Purposes Only. Customer agrees to use data received via the Services for treatment purposes only, as defined under HIPAA.

3.4 Third Party Data Sources; Pass-Thru Terms. Customer agrees to the terms governing access to terms of use established by third-parties that make their data available to Customer through the Platform (“Data Source(s)”) including, but not limited to the Carequality, eHealth Exchange, and Commonwell health information exchange networks (available here: Carequality Connection Terms, eHealth Exchange: https://ehealthexchange.org/policies/, Commonwell End User License Agreement), as such terms may be modified by such Data Sources from time to time. Customer also agrees that from time to time, ImageMover’s subcontractor (Particle Health) may connect the Platform with additional Data Sources who wish to allow individuals and/or organizations to request data in their possession. Customer agrees that such Data Sources may require requesters to agree to certain terms and conditions, and that access may be denied to any Data Source until Customer has agreed to abide by such terms and conditions. The availability of any given Data Source is not guaranteed. At any time access to Data Sources available through the Platform or Services may be added, replaced, suspended, or removed by providing Customer with prompt, written notice.

3.5 Service Bi-Directionality. Without limiting any of the foregoing, Customer agrees that Customer will support the bi-directional exchange of clinically relevant data with Data Sources using the Services as a condition for requesting data for patients under the treatment purpose of use. In order to support the bi-directional exchange obligations of Data Sources, Customer agrees that Customer and Customer’s Connected Services will: (i) be able to promptly respond to incoming requests for information from other members of Data Source networks before Customer will be allowed to submit Queries in a live, production capacity; (ii) be able to process and respond to requests from other members of Data Source networks for unique, clinically relevant data that Customer generates; (iii) and respond to valid requests from other members of Data Source networks for information at a reasonably equivalent rate to the rate at which Customer submits Queries; and (iv) comply with the then-current version of the Bi-Directionality Policy, available at https://docs.particlehealth.com/docs/bi-directionality-policy, which may be updated from time-to-time in ImageMover or its subcontractor’s sole discretion.. Customer will be promptly notified of any changes to the bi-directionality requirements communicated to ImageMover or its subcontractor by any Data Source and cooperate with Customer in good faith to assist Customer’s continued compliance with this section. Unless otherwise agreed to in writing, and except as otherwise required by a Data Source, responses will only be made to requests for clinical data submitted under the Treatment Use Case. Customer agrees that failure to maintain support for bi-directional exchange in accordance with this Section may be grounds for temporary suspension, or termination of Customer’s participation with certain Data Sources. Customer will be promptly provided with any notice received from a Data Source that a circumstance may exist in which suspension or termination of Customer’s access to that Data Source may be required.

3.6 No Resale or Third-Party Use. Customer agrees it will not, under any circumstances, repackage or in any way resell direct access to or use of the Platform or the Services, in whole or in part.

3.7 Responsibility for Credentials. Customer agrees not to share with any third-party and to securely store any credentials provided for Customer to access and use the Platform or the Services.

3.8 Data Disclaimers. Unless otherwise specifically agreed, ImageMover and its subcontractor are not responsible for the accuracy, completeness, quality, integrity, legality, reliability, and appropriateness of the Connected Service, data obtained via the Platform or the Services, as well as the security and integrity of data processed by the Connected Service. Without limiting the foregoing, Customer is responsible for (a) the technical installation and operation of Connected Service; (b) creating and displaying information and content on, through, or within Connected Service; (c) ensuring the Connected Service does not violate or infringe another’s intellectual property rights; (d) ensuring Customer’s use of the Connected Service does not introduce malicious code into any third-party system or the ImageMover’s subcontractor’s API; (e) the privacy and security of data processed by the Connected Service; and (f) Customer’s reliance on data received from the Platform or the Services for any clinical or other purpose. Customer agrees that the Platform and Services deliver data and information from Data Sources that fully determine and control their own response mechanisms and patient matching thresholds, and that there may be variability in the data, information, or responses provided in response to any individual Query.

3.9 Responsibility for Query Construction. When performing queries using the Services, Customer will be given the option to select specific data elements that Customer would like to be returned in response to the Query. Because only a partial data set may be returned in response to any Query, the requested data may be missing key data elements that may be relevant to patient care. Customer agrees that Customer is solely responsible for the construction of any Query (including through the selection of data elements to be queried) and for the responsible use of any data returned by a Query.

3.10 Individual User Identification. Customer must use processes and procedures to identify the specific individual user that Customer will grant access to in the form of credentials. This identification must be made available to ImageMover or its subcontractor upon request.

3.11 Authorized Users. Customer will ensure that its authorized users are aware of and adhere to the terms and conditions of this Agreement. Customer will be responsible for, and control the use by, its authorized users of any Licensed Software and Services, including by removing access of authorized users to any Licensed Software and the Services if Customer has revoked the authorization of such individual or such individual’s relationship with Customer has been suspended or terminated.

3.12 Storage of Customer Data. Unless otherwise agreed to by ImageMover and Customer pursuant to a separate ImageMover Data Hosting Agreement (which, if applicable, is incorporated herein by this reference), ImageMover is not responsible for storing any Customer Data after processing such Customer Data. IMAGEMOVER HAS NO OBLIGATION OR LIABILITY FOR ANY LOSS, ALTERATION, DESTRUCTION, DAMAGE, CORRUPTION, OR RECOVERY OF CUSTOMER DATA.

3.13 Customer Control and Responsibility. Customer has and will retain sole responsibility for: (a) all Customer Data, including its content and use; (b) all information, instructions and materials provided by or on behalf of Customer in connection with the Services; (c) Customer’s information technology infrastructure, including computers, software, databases, electronic systems (including database management systems) and networks, whether operated directly by Customer or through the use of third-party services (“Customer Systems”); and (d) all access to and use of any Licensed Software and Services directly or indirectly by or through the Customer Systems, with or without Customer’s knowledge or consent, including all results obtained from, and all conclusions, decisions and actions based on, such access or use.

3.14 Access and Security. Customer shall employ adequate physical, administrative and technical controls, screening and security procedures and other safeguards necessary to: (a) securely administer the distribution and use of any Licensed Software and reasonably protect against any unauthorized access to or use of any Licensed Software; and (b) control the content and use of Customer Data, including the uploading or other provision of Customer Data for processing by any Licensed Software.

4. Term and Termination.

4.1 Term. Unless terminated earlier under the terms of this Agreement, these T&Cs will be in effect for the term of the Services under this Agreement, or for one (1) year from the effective date of the Agreement, whichever is later (the “Term”).

4.2 Termination. In addition to any other express termination right set forth elsewhere in this Agreement:

(a) Either party may terminate this Agreement, effective on written notice to the other party, if the other party materially breaches this Agreement, and such breach: (i) is incapable of cure; or (ii) being capable of cure, remains uncured thirty (30) days after the non-breaching party provides the breaching party with written notice of such breach.

(b) Services will terminate upon termination of the Agreement.

4.3 Effect of Expiration or Termination. On the expiration or earlier termination of this Agreement:

(a) All rights, licenses and authorizations granted to Customer hereunder will immediately terminate.

(b) Customer shall immediately cease all use of and other activities with respect to Licensed Software and Services other than those described in this Agreement.

(c) Within fifteen (15) days, Customer shall deliver to ImageMover, or at ImageMover written request destroy, and permanently erase from all devices and systems that Customer directly or indirectly controls, any Licensed Software.

(d) Upon written request from ImageMover, Customer shall certify to ImageMover in a signed written instrument that it has complied with the requirements of this Section.

(e) Any right or obligation of the parties in this Agreement that, by its nature, should survive termination or expiration of this Agreement, will survive any expiration or termination of this Agreement.

5. Representations and Warranties.

5.1 Each of the parties warrants to the other that it has full power and authority to enter into and perform this agreement.

5.2 Customer Representations, Warranties and Covenants. Customer represents, warrants and covenants to ImageMover that Customer owns or otherwise has and will have the necessary rights and consents in and relating to the Customer Data so that, as received by ImageMover and processed in accordance with this Agreement, they do not and will not infringe, misappropriate or otherwise violate any Intellectual Property Rights, or any privacy or other rights of any third party or violate any applicable Law. Customer shall not (and shall not allow any third party to), directly or indirectly: (i) reverse engineer, decompile, disassemble, or otherwise attempt to discover the source code, object code, or underlying structure, ideas, or algorithms of Licensed Software (except to the extent applicable laws specifically prohibit such restriction); (ii) modify, translate, or create derivative works of ImageMover’s or its subcontractors’ intellectual property; (iii) copy, rent, lease, distribute, pledge, assign, or otherwise transfer or encumber rights to ImageMover’s or its subcontractors’ intellectual property; (iv) use the Services for the benefit of a third party; (v) remove or otherwise alter any proprietary notices or labels from ImageMover’s or its subcontractors’ intellectual property or any portion thereof; (vi) use ImageMover’s or its subcontractors’ intellectual property to build an application or product that is competitive with any of ImageMover’s or its subcontractors’ product or service; (vii) interfere or attempt to interfere with the proper working of Licensed Software; or (viii) bypass any measures ImageMover or its subcontractors may use to prevent or restrict access to Licensed Software (or other accounts, computer systems, or networks connected to Licensed Software). Customer (i) shall use Licensed Software and Services in compliance with all applicable Law (including those related to data privacy, international communications, export laws, and the transmission of technical or personal data laws), and (ii) shall not use Services or Licensed Software in a manner that violates any third party intellectual property, contractual, or other proprietary rights.

5.3 ImageMover shall perform the Services with reasonable care and skill and in compliance with all applicable Law.

5.4 EXCEPT AS EXPRESSLY SET FORTH HEREIN, THE SERVICES (INCLUDING ANY LICENSED SOFTWARE) ARE PROVIDED “AS IS” AND “AS AVAILABLE” AND ARE WITHOUT WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY, AND FITNESS FOR A PARTICULAR PURPOSE, AND ANY WARRANTIES IMPLIED BY ANY COURSE OF PERFORMANCE, USAGE OF TRADE, OR COURSE OF DEALING, ALL OF WHICH ARE EXPRESSLY DISCLAIMED

6. Limitations of Liability and Indemnification.

6.1 EXCLUSION OF DAMAGES. IN NO EVENT WILL IMAGEMOVER OR ANY OF ITS LICENSORS, SERVICE PROVIDERS, SUBCONTRACTORS, OR SUPPLIERS BE LIABLE UNDER OR IN CONNECTION WITH THIS AGREEMENT OR ITS SUBJECT MATTER UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE, FOR ANY: (A) LOSS OF PRODUCTION, USE, BUSINESS, REVENUE OR PROFIT, OR DIMINUTION IN VALUE; (B) IMPAIRMENT, INABILITY TO USE, OR LOSS, INTERRUPTION OR DELAY OF THE SERVICES, (C) LOSS, DAMAGE, CORRUPTION, OR RECOVERY OF DATA, OR BREACH OF DATA OR SYSTEM SECURITY, OR (D) CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, ENHANCED, OR PUNITIVE DAMAGES, REGARDLESS OF WHETHER SUCH PERSONS WERE ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES OR SUCH LOSSES OR DAMAGES WERE OTHERWISE FORESEEABLE, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.

6.2 CAP ON MONETARY LIABILITY. IN NO EVENT WILL THE COLLECTIVE AGGREGATE LIABILITY OF IMAGEMOVER AND ITS AFFILIATES, LICENSORS, SERVICE PROVIDERS, SUBCONTRACTORS, AND SUPPLIERS UNDER OR IN CONNECTION WITH THIS AGREEMENT OR ITS SUBJECT MATTER, UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE, EXCEED THE AGGREGATE AMOUNTS OF FEES PAID PURSUANT TO THE ORDER FORM IN THE THREE (3) MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO THE CLAIM. THE FOREGOING LIMITATION APPLIES NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.

6.3 IN NO EVENT WILL IMAGEMOVER BE LIABLE TO CUSTOMER OR ANY THIRD PARTY FOR, AND CUSTOMER AGREES TO HOLD IMAGEMOVER HARMLESS FROM, ANY DAMAGES THAT RESULT FROM CUSTOMER’S USE OF SERVICES.

6.4 Customer Indemnification. Customer shall indemnify, defend and hold harmless ImageMover and its subcontractors and affiliates, and each of its and their respective officers, directors, employees, agents, successors and assigns (each, an “ImageMover Indemnitee”) from and against any and all Losses incurred by such ImageMover Indemnitee in connection with any action by a third party that arise out of or relate to any:

(a) Customer Data, including any processing of Customer Data by or on behalf of ImageMover in accordance with this Agreement;

(b) any other materials or information (including any documents, data, specifications, software, content or technology) provided by or on behalf of Customer, including ImageMover’s compliance with any specifications or directions provided by or on behalf of Customer to the extent prepared without any contribution by ImageMover;

(c) allegation of facts that, if true, would constitute Customer’s breach of any of its representations, warranties, covenants or obligations under this Agreement; or

(d) negligence or more culpable act or omission (including recklessness or willful misconduct) by Customer, or any third party on behalf of Customer, in connection with this Agreement.

6.5 ImageMover Mitigation. If any Licensed Software or Services are, or in ImageMover’s opinion are likely to be, claimed to infringe, misappropriate, or otherwise violate any third-party Intellectual Property Right, or if Customer’s use of Licensed Software or Services or ImageMover Materials is enjoined or threatened to be enjoined, ImageMover may, at its option and sole cost and expense:

(a) obtain the right for Customer to continue to use Licensed Software and Services as contemplated by this Agreement;

(b) modify or replace Licensed Software and Services, in whole or in part, to seek to make Licensed Software and Services (as so modified or replaced) non-infringing, while providing materially equivalent features and functionality, in which case such modifications or replacements will constitute Licensed Software and Services, as applicable, under this Agreement; or

(c) by written notice to Customer, terminate this Agreement and require Customer to immediately cease any use of Licensed Software or Services.

6.6 ANY CLAIM ARISING OUT OF OR RELATING TO THIS AGREEMENT MUST BE BROUGHT WITHIN ONE (1) YEAR OF THE FIRST EVENT OR OCCURRENCE GIVING RISE TO THE CLAIM.

7. Intellectual Property.

7.1 License Grant. Subject to the terms and conditions of this Agreement, and payment of all applicable license fees under the Order Form, ImageMover grants to Customer a limited, nonexclusive, nontransferable, license (“License”) to use Licensed Software, together with any documentation for the Service, solely for the internal purposes of the Customer during the Term.

7.2 Reservation of Rights. All right, title and interest in and to any Licensed Software used in the Services, including all Intellectual Property Rights therein, are and will remain with ImageMover. Customer has no right, license, or authorization with respect to any of Licensed Software except as expressly set forth in these T&Cs or an applicable third-party license. All other rights in and to Licensed Software are expressly reserved by ImageMover.

7.3 Consent to Use Customer Data. Customer hereby irrevocably grants all such rights and permissions in or relating to Customer Data to ImageMover and its subcontractors as are necessary or useful to perform the Services.

7.4 De-identified Data. ImageMover, on its own or through its subcontractors, has the right to de-identify data in accordance with applicable law and owns all de-identified data. Customer acknowledges and agrees that ImageMover has the right to use the de-identified data for any and all purposes, including sharing or distributing such de-identified data with third parties.

8. Miscellaneous.

8.1 Relationship of the Parties. The relationship between the parties is that of independent contractors. Nothing contained in this Agreement shall be construed as creating any agency, partnership, joint venture, or other form of joint enterprise, employment or fiduciary relationship between the parties, and neither party shall have authority to contract for or bind the other party in any manner whatsoever.

8.2 Notice. Any notice or other communication given to a party under or in connection with this Agreement must be in writing and delivered to such party’s address set forth on the services agreement and/or order form or as otherwise amended in writing or, if a contact email address is provided, by email. Delivery shall be effective upon delivery by professional courier or five (5) days after mailing by certified mail.

8.3 Entire Agreement. This Agreement, together with any other documents incorporated into this Agreement by reference, constitutes the sole and entire agreement of the parties with respect to the subject matter of this Agreement and supersedes all prior and contemporaneous understandings, agreements, representations, and warranties, both written and oral, with respect to such subject matter.

8.4 Assignment. This Agreement may be assigned by either party to an affiliate or successor in interest to such party’s business; any other assignment requires written consent of the other party. No delegation or other transfer will relieve Customer of any of its obligations or performance under this Agreement. Any purported assignment, delegation or transfer in violation of this Agreement. This Agreement is binding upon and inures to the benefit of the parties hereto and their respective permitted successors and assigns.

8.5 Amendment and Modification; Waiver. ImageMover has the right to revise these T&Cs at its sole discretion by posting an updated version of the T&Cs on its website; any other amendment to this Agreement requires written agreement by both parties. No waiver by any party of any of the provisions of this Agreement shall 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 shall operate or be construed as a waiver thereof; nor shall 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.

8.5 Severability. If any provision of this Agreement is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction. Upon such determination that any term or other provision is invalid, illegal, or unenforceable, the parties hereto shall negotiate in good faith to modify this Agreement so as to effect the original intent of the parties as closely as possible in a mutually acceptable manner in order that the transactions contemplated hereby be consummated as originally contemplated to the greatest extent possible.

8.6 Governing Law; Submission to Jurisdiction. This Agreement is governed by and construed in accordance with the internal laws of the State of New York without giving effect to any choice or conflict of law provision or rule that would require or permit the application of the laws of any jurisdiction other than those of the State of New York. Any legal suit, action or proceeding arising out of or related to this Agreement or any licenses granted hereunder shall be instituted exclusively in the federal courts of the United States or the courts of the State of New York, and each party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action, or proceeding. Service of process, summons, notice or other document by mail to such party’s address set forth on the order form and/or services agreement shall be effective service of process for any suit, action or other proceeding brought in any such court.

8.7 No Breach or Default – Force Majeure. In no event will ImageMover or its affiliates, licensors, service providers, or suppliers be liable or responsible to Customer, or be deemed to have defaulted under or breached this Agreement, for any failure or delay in fulfilling or performing any term of this Agreement, when and to the extent such failure or delay is caused by any circumstances beyond ImageMover’s or its affiliates’, licensors’, service providers’, or suppliers’ reasonable control (a “Force Majeure Event”), including acts of God, flood, fire, earthquake or explosion, war, terrorism, invasion, riot or other civil unrest, embargoes or blockades in effect on or after the date of this Agreement, national or regional emergency, strikes, labor stoppages or slowdowns, or other industrial disturbances, passage of Law or any action taken by a governmental or public authority, including imposing an embargo, export or import restriction, quota, or other restriction or prohibition or any complete or partial government shutdown, or national or regional shortage of adequate power or telecommunications or transportation. Either party may terminate this Agreement if a Force Majeure Event continues substantially uninterrupted for a period of thirty (30) days or more.

8.8 Language of Agreement. The Parties have agreed that this contract and all related documents be drafted in English. Les parties aux présentes ont demandé et convenu que le présent contrat et tout document y afférent soient rédigés en anglais.