Last Updated: August 28, 2026
This Software as a Service Agreement (this “Agreement”), effective as of the date of the execution of the Order Form (as defined below) referencing this Agreement (the “Effective Date”), is by and between OSDental Inc., a Delaware corporation, with an address for notice at 59 Davis Road Millbury MA 01527 (“Company”), and the Customer identified on the Order Form (“Customer”). Company and Customer may be referred to herein collectively as the “Parties” or individually as a “Party.”
1. Definitions
“AI Feature” means any feature, functionality, or component that incorporates, uses, depends on, or employs any AI Technology.
“AI Technology” means any and all machine learning, deep learning, and other artificial intelligence technologies, including statistical learning algorithms, models (including large language models), neural networks, and other AI tools or methodologies, all software implementations of any of the foregoing, and related hardware or equipment, in each case capable of generating various types of content (including text, images, video, audio, or computer code) based on user-supplied prompts.
“Aggregated Statistics” means data and information related to Customer’s use of the Services that is used by Company in an aggregate and anonymized manner, including to compile statistical and performance information related to the provision and operation of the Services.
“Authorized User” means Customer’s employees, consultants, contractors, and agents (i) who are authorized by Customer to access and use the Services under the rights granted to Customer pursuant to this Agreement and (ii) for whom access to the Services has been purchased hereunder.
“Customer Data” means, other than Aggregated Statistics, information, data, and other content, in any form or medium, that is submitted, posted, or otherwise transmitted by or on behalf of Customer or an Authorized User through the Services.
“Documentation” means Company’s user manuals, handbooks, and guides relating to the Services provided by Company to Customer either electronically or in hard copy form/end user documentation relating to the Services.
“Company IP” means the Services, the Documentation, and any and all intellectual property provided to Customer or any Authorized User in connection with the foregoing. For the avoidance of doubt, Company IP includes Aggregated Statistics and any information, data, or other content derived from Company’s monitoring of Customer’s access to or use of the Services, but does not include Customer Data.
“Order Form” means an ordering document signed by Company and Customer that specifically references this Agreement and describes the software-as-a-service offering Customer is subscribing to.
“Services” means the software-as-a-service offering described in Exhibit A.
“Third-Party Products” means any third-party products described in Exhibit A provided with or incorporated into the Services.
2. Access and Use.
Provision of Access.
Subject to and conditioned on Customer’s payment of Fees and compliance with all other terms and conditions of this Agreement, Company hereby grants Customer a non-exclusive, non-transferable (except in compliance with Section 12(g)) right to access and use the Services during the Term, solely for use by Authorized Users in accordance with the terms and conditions herein. Such use is limited to Customer’s internal use. Company shall provide to Customer the necessary passwords and network links or connections to allow Customer to access the Services.
Access to AI Features.
If Customer elected to integrate AI Technology or AI Features on the Order Form, the use of the AI Features are subject to the AI Acceptable Use Policy available at https://osdental.io/legal/ai-acceptable-use-policy as may be updated by the Company from time-to-time.
Documentation License.
Subject to the terms and conditions contained in this Agreement, Company hereby grants to Customer a non-exclusive, non-sublicensable, non-transferable (except in compliance with Section 12(g)) license to use the Documentation during the Term solely for Customer’s internal business purposes in connection with its use of the Services.
Use Restrictions.
Customer shall not use the Services for any purposes beyond the scope of the access granted in this Agreement. Customer shall not at any time, directly or indirectly, and shall not permit any Authorized Users to:
(i) copy, modify, or create derivative works of the Services or Documentation, in whole or in part;
(ii) rent, lease, lend, sell, license, sublicense, assign, distribute, publish, transfer, or otherwise make available the Services or Documentation;
(iii) reverse engineer, disassemble, decompile, decode, adapt, or otherwise attempt to derive or gain access to any software component of the Services, in whole or in part;
(iv) remove any proprietary notices from the Services or Documentation; or
(v) use the Services or Documentation in any manner or for any purpose that infringes, misappropriates, or otherwise violates any intellectual property right or other right of any person, or that violates any applicable law.
Reservation of Rights.
Company reserves all rights not expressly granted to Customer in this Agreement. Except for the limited rights and licenses expressly granted under this Agreement, nothing in this Agreement grants, by implication, waiver, estoppel, or otherwise, to Customer or any third party any intellectual property rights or other right, title, or interest in or to the Company IP.
Suspension.
Notwithstanding anything to the contrary in this Agreement, Company may temporarily suspend Customer’s and any Authorized User’s access to any portion or all of the Services if:
(i) Company reasonably determines that (A) there is a threat or attack on any of the Company IP; (B) Customer’s or any Authorized User’s use of the Company IP disrupts or poses a security risk to the Company IP or to any other customer or vendor of Company; (C) Customer, or any Authorized User, is using the Company IP for fraudulent or illegal activities; (D) subject to applicable law, Customer has ceased to continue its business in the ordinary course, made an assignment for the benefit of creditors or similar disposition of its assets, or become the subject of any bankruptcy, reorganization, liquidation, dissolution, or similar proceeding; or (E) Company’s provision of the Services to Customer or any Authorized User is prohibited by applicable law;
(ii) any vendor of Company has suspended or terminated Company’s access to or use of any third-party services or products required to enable Customer to access the Services; or
(iii) in accordance with Section 5(a)(iii) (any such suspension described in subclause (i), (ii), or (iii), a “Service Suspension”). Company may also suspend access to the Services as reasonably necessary to prevent or mitigate an actual or suspected security incident, unauthorized access, disclosure of Customer Data, or violation of applicable privacy or security laws. Company shall use commercially reasonable efforts to provide written notice of any Service Suspension to Customer and to provide updates regarding resumption of access to the Services following any Service Suspension. Company shall use commercially reasonable efforts to resume providing access to the Services as soon as reasonably possible after the event giving rise to the Service Suspension is cured. Company will have no liability for any damage, liabilities, losses (including any loss of data or profits), or any other consequences that Customer or any Authorized User may incur as a result of a Service Suspension.
Aggregated Statistics.
Notwithstanding anything to the contrary in this Agreement, Company may monitor Customer’s use of the Services and collect and compile Aggregated Statistics. As between Company and Customer, all right, title, and interest in Aggregated Statistics, and all intellectual property rights therein, belong to and are retained solely by Company. Customer acknowledges that Company may compile Aggregated Statistics based on Customer Data input into the Services. Customer agrees that Company may
(i) make Aggregated Statistics publicly available in compliance with applicable law, and
(ii) use Aggregated Statistics to the extent and in the manner permitted under applicable law; provided that such Aggregated Statistics do not identify Customer or Customer’s Confidential Information
3. Customer Responsibilities.
General.
Customer is responsible and liable for all uses of the Services and Documentation resulting from access provided by Customer, directly or indirectly, whether such access or use is permitted by or in violation of this Agreement. Without limiting the generality of the foregoing, Customer is responsible for all acts and omissions of Authorized Users, and any act or omission by an Authorized User that would constitute a breach of this Agreement if taken by Customer will be deemed a breach of this Agreement by Customer. Customer shall use reasonable efforts to make all Authorized Users aware of this Agreement’s provisions as applicable to such Authorized User’s use of the Services and shall cause Authorized Users to comply with such provisions.
Company may from time to time make Third-Party Products available to Customer. For purposes of this Agreement, such Third-Party Products are subject to their own terms and conditions and the applicable flow-through provisions referred to in Exhibit A.
Customer is solely responsible for obtaining all consents, authorizations and permissions necessary for Company to receive, process, store, transmit and otherwise use Customer Data as contemplated by this Agreement and the Business Associate Agreement.
4. Support.
Company will make support available via telephone during business hours (Eastern Standard Time).
5. Fees and Payment.
Fees.
Customer shall pay Company the fees (“Fees”) as set forth in Exhibit A without offset or deduction. Customer shall make all payments hereunder in US dollars on or before the due date set forth in Exhibit A. If Customer fails to make any payment when due, without limiting Company’s other rights and remedies: (i) Company may charge interest on the past due amount at the rate of 1.5% per month calculated daily and compounded monthly or, if lower, the highest rate permitted under applicable law; (ii) Customer shall reimburse Company for all reasonable costs incurred by Company in collecting any late payments or interest, including attorneys’ fees, court costs, and collection agency fees; and (iii) if such failure continues for thirty (30) days or more, Company may suspend Customer’s and its Authorized Users’ access to any portion or all of the Services until such amounts are paid in full.
Taxes.
All Fees and other amounts payable by Customer under this Agreement are exclusive of taxes and similar assessments. Customer is responsible for all sales, use, and excise taxes, and any other similar taxes, duties, and charges of any kind imposed by any federal, state, or local governmental or regulatory authority on any amounts payable by Customer hereunder, other than any taxes imposed on Company’s income.
Auditing Rights and Required Records.
Customer agrees to maintain complete and accurate records in accordance with generally accepted accounting principles during the Term and for a period of one year after the termination or expiration of this Agreement with respect to matters necessary for accurately determining amounts due hereunder.
6. Confidential Information.
For purposes of this Engagement Agreement:
“Receiving Party” means a party that receives or acquires Confidential Information directly or indirectly under this Agreement.
“Disclosing Party” means a party that discloses Confidential Information under this Agreement.
“Confidential Information” means any information that is treated as confidential by a party, including but not limited to all non-public information about its business affairs, products or services, Intellectual Property Rights, trade secrets, third-party confidential information, and other sensitive or proprietary information, whether disclosed orally or in written, electronic, or other form or media, and whether or not marked, designated, or otherwise identified as “confidential”. To the extent Confidential Information includes protected health information (“PHI”), such PHI shall additionally be subject to the terms of the Business Associate Agreement as set forth in Section 12. Confidential Information shall not include information that:
(a) is already known to the Receiving Party 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 Receiving Party;
(c) is developed by the Receiving Party independently of, and without reference to, any Confidential Information of the Disclosing Party; or
(d) is received by the Receiving Party from a third party who is not under any obligation to the Disclosing Party to maintain the confidentiality of such information.
“Intellectual Property Rights” means all (a) patents, patent disclosures, and inventions (whether patentable or not), (b) trademarks, service marks, trade dress, trade names, logos, corporate names, and domain names, together with all of the goodwill associated therewith, (c) copyrights and copyrightable works (including computer programs), [mask works,] and rights in data and databases, (d) trade secrets, know-how, and other confidential information, and (e) all other intellectual property rights, in each case whether registered or unregistered and including all applications for, and renewals or extensions of, such rights, and all similar or equivalent rights or forms of protection in any part of the world.
The Receiving Party agrees:
not to 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, however, that the Receiving Party may disclose the Confidential Information of the Disclosing Party to its and its affiliates, and their 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 nondisclosure obligations at least as restrictive as those set forth in this Section 9;
to use the Confidential Information of the Disclosing Party only for the purposes of performing its obligations under the Agreement or, in the case of Customer, to make use of the Services ; and
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.
If the Receiving Party becomes legally compelled to disclose any Confidential Information, the Receiving Party shall provide:
prompt written notice of such requirement so that the Disclosing Party may seek, at its sole cost and expense, a protective order or other remedy; and
reasonable assistance, at the Disclosing Party’s sole cost and expense, in opposing such disclosure or seeking a protective order or other limitations on disclosure.
If, after providing such notice and assistance as required herein, the Receiving Party remains required by Law to disclose any Confidential Information, the Receiving Party shall disclose no more than that portion of the Confidential Information which, on the advice of the Receiving Party’s legal counsel, the Receiving Party is legally required to disclose [and, upon the Disclosing Party’s request, shall use commercially reasonable efforts to obtain assurances from the applicable court or agency that such Confidential Information will be afforded confidential treatment].
Ownership.
Any disclosed Confidential Information shall be deemed the property of the Disclosing Party. The Recipient will not receive any title, ownership, license, property or other right or interest in any of the Disclosing Party’s Confidential Information, and the Recipient may not copy or reproduce the Disclosing Party’s Confidential Information without the express written permission of the Disclosing Party.
7. Intellectual Property Ownership; Feedback; Restrictive Covenants.
Company IP.
Customer acknowledges that, as between Customer and Company, Company owns all right, title, and interest, including all intellectual property rights, in and to the Company IP and, with respect to Third-Party Products, the applicable third-party providers own all right, title, and interest, including all intellectual property rights, in and to the Third-Party Products.
Customer Data.
Company acknowledges that, as between Company and Customer, Customer owns all right, title, and interest, including all intellectual property rights, in and to the Customer Data. Customer hereby grants to Company a non-exclusive, royalty-free, worldwide license to reproduce, distribute, and otherwise use and display the Customer Data and perform all acts with respect to the Customer Data as may be necessary for Company to provide the Services to Customer, and a non-exclusive, perpetual, irrevocable, royalty-free, worldwide license to reproduce, distribute, modify, and otherwise use and display Customer Data incorporated within the Aggregated Statistics.
Feedback.
If Customer or any of its employees or contractors sends or transmits any communications or materials to Company by mail, email, telephone, or otherwise, suggesting or recommending changes to the Company IP, including without limitation, new features or functionality relating thereto, or any comments, questions, suggestions, or the like (“Feedback”), Company is free to use such Feedback irrespective of any other obligation or limitation between the Parties governing such Feedback. Customer hereby assigns to Company on Customer’s behalf, and on behalf of its employees, contractors, and/or agents, all right, title, and interest in, and Company is free to use, without any attribution or compensation to any party, any ideas, know-how, concepts, techniques, or other intellectual property rights contained in the Feedback, for any purpose whatsoever, although Company is not required to use any Feedback.
Non-Solicitation. During the Term and for 24 months after, Customer shall not, and shall not assist any other person to, directly or indirectly, recruit or solicit (other than by general advertisement not directed specifically to any person or persons) for employment or engagement as an independent contractor any person then or within the prior 24 months employed or engaged by Company or any affiliate. In the event of a violation of this Section, Company will be entitled to liquidated damages equal to the compensation paid by Company to the applicable employee or contractor during the prior 12 months.
8. Warranty Disclaimer.
The Provider IP is Provided “as is” and Provider Hereby Disclaims All Warranties, Whether Express, Implied, Statutory, or Otherwise. Provider Specifically Disclaims All Implied Warranties of Merchantability, Fitness for a Particular Purpose, Title, and Non-infringement, and All Warranties Arising From Course of Dealing, Usage, or Trade Practice. Provider Makes No Warranty of Any Kind That the Provider IP, or Any Products or Results of the Use Thereof, Will Meet Customer’s or Any Other Person’s Requirements, Operate Without Interruption, Achieve Any Intended Result, Be Compatible or Work With Any Software, System, or Other Services, or Be Secure, Accurate, Complete, Free of Harmful Code, or Error Free.
9. Indemnification.
Company Indemnification.
Company shall indemnify, defend, and hold harmless Customer from and against any and all losses, damages, liabilities, costs (including reasonable attorneys’ fees) (“Losses”) incurred by Customer resulting from any third-party claim, suit, action, or proceeding (“Third-Party Claim”) that the Services, or any use of the Services in accordance with this Agreement, infringes or misappropriates such third party’s US intellectual property rights, provided that Customer promptly notifies Company in writing of such Third-Party Claim, cooperates with Company, and allows Company sole authority to control the defense and settlement of such Third-Party Claim.
If a Third Party-Claim is made or appears possible, Customer agrees to permit Company, at Company’s sole discretion, to (A) modify or replace the Services, or component or part thereof, to make it non-infringing, or (B) obtain the right for Customer to continue use. If Company determines that neither alternative is reasonably available, Company may terminate this Agreement, in its entirety or with respect to the affected component or part, effective immediately on written notice to Customer.
This Section 9(a) will not apply to the extent that the alleged infringement arises from: (A) use of the Services in combination with data, software, hardware, equipment, or technology not provided by Company or authorized by Company in writing; (B) modifications to the Services not made by Company; or (C) Customer Data[; or (D) Third-Party Products].
Customer Indemnification.
Customer shall indemnify, hold harmless, and, at Company’s option, defend Company from and against any Losses resulting from any Third-Party Claim that the Customer Data, or any use of the Customer Data in accordance with this Agreement, infringes or misappropriates such third party’s US intellectual property rights and any Third-Party Claims based on Customer’s or any Authorized User’s (i) negligence or willful misconduct; (ii) use of the Services in a manner not authorized by this Agreement; (iii) use of the Services in combination with data, software, hardware, equipment, or technology not provided by Company or authorized by Company in writing; or (iv) modifications to the Services not made by Company, provided that Customer may not settle any Third-Party Claim against Company unless Company consents to such settlement, and further provided that Company will have the right, at its option, to defend itself against any such Third-Party Claim or to participate in the defense thereof by counsel of its own choice.
Sole Remedy.
This 9 sets forth customer’s sole remedies and provider’s sole liability and obligation for any actual, threatened, or alleged claims that the services infringe, misappropriate, or otherwise violate any intellectual property rights of any third party. In no event will provider’s liability under this section 9 exceed one times the total amounts paid and amounts accrued but not yet paid to provider under this agreement in the twelve month period preceding the event giving rise to the claim.
10. Limitations of Liability.
Company Indemnification.
In no event will provider be liable under or in connection with this agreement under any legal or equitable theory, including breach of contract, tort (including negligence), strict liability, and otherwise, for any: (a) consequential, incidental, indirect, exemplary, special, enhanced, or punitive damages; (b) increased costs, diminution in value or lost business, production, revenues, or profits; (c) loss of goodwill or reputation; (d) use, inability to use, loss, interruption, delay, or recovery of any data, or breach of data or system security; or (e) cost of replacement goods or services, in each case regardless of whether provider was advised of the possibility of such losses or damages or such losses or damages were otherwise foreseeable. In no event will provider’s aggregate liability arising out of or related to this agreement under any legal or equitable theory, including breach of contract, tort (including negligence), strict liability, and otherwise exceed one times the total amounts paid and amounts accrued but not yet paid to provider under this agreement in the twelve month period preceding the event giving rise to the claim.
11. Term and Termination.
Term.
This Agreement shall commence on the Effective Date (provided that fees shall be payable as set forth on Exhibit A, and shall continue on a month-to-month basis until terminated by either with at least thirty (30) days’ notice prior the expiration of the then current term (the “Term”). Notwithstanding the foregoing, if Customer selects Services with an annual term set forth in the Order Form, the Term of this Agreement shall be for one (1) year with respect to such Services and shall renew for additional one (1) year terms until terminated by either party with at least thirty (30) days’ notice prior the expiration of the then current term.
Termination.
In addition to any other express termination right set forth in this Agreement:
Company may terminate this Agreement, effective on written notice to Customer, if Customer: (A) fails to pay any amount when due hereunder, and such failure continues more than thirty (30) days after the due date of such payment; or (B) breaches any of its obligations under Section 2(c) or 6;
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: (A) is incapable of cure; or (B) being capable of cure, remains uncured 30 days after the non-breaching Party provides the breaching Party with written notice of such breach; or
either Party may terminate this Agreement, effective immediately upon written notice to the other Party, if the other Party: (A) becomes insolvent or is generally unable to pay, or fails to pay, its debts as they become due; (B) files or has filed against it a petition for voluntary or involuntary bankruptcy or otherwise becomes subject, voluntarily or involuntarily, to any proceeding under any domestic or foreign bankruptcy or insolvency law; (C) makes or seeks to make a general assignment for the benefit of its creditors; or (D) applies for or has appointed a receiver, trustee, custodian, or similar agent appointed by order of any court of competent jurisdiction to take charge of or sell any material portion of its property or business.
Effect of Expiration or Termination.
Upon expiration or earlier termination of this Agreement, Customer shall immediately discontinue use of the Company IP and, without limiting Customer’s obligations under 6, Customer shall delete, destroy, or return all copies of the Company IP and certify in writing to the Company that the Company IP has been deleted or destroyed. No expiration or termination will affect Customer’s obligation to pay all Fees that may have become due before such expiration or termination or entitle Customer to any refund. Any return, retention, deletion or destruction of Customer Data, including PHI, shall be governed by the Business Associate Agreement and any record retention requirements.
Survival.
This Section 11(d) and 1, 5, 6, 7, 8(b), 9, 10, and 12 survive any termination or expiration of this Agreement. No other provisions of this Agreement survive the expiration or earlier termination of this Agreement.
12. Miscellaneous.
Entire Agreement.
This Agreement, together with the Order Form and any other documents incorporated herein by reference and all related Exhibits, including, without limitation, Company’s Business Associate Agreement available at https://osdental.io/legal/business-agreement, Company’s Privacy Policy available at https://osdental.io/legal/privacy-policy, Company’s Terms and Conditions available at https://osdental.io/legal/terms-and-conditions, and, if applicable, Company’s AI Acceptable Use Policy available at https://osdental.io/legal/ai-acceptable-use-policy, as each may be updated from time to time, and which are specifically incorporated 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, and representations and warranties, both written and oral, with respect to such subject matter. In the event of any inconsistency between the statements made in the body of this Agreement, the related Exhibits, and any other documents incorporated herein by reference, the following order of precedence governs:
(i) first, this Agreement, excluding its Exhibits;
(ii) second, the Exhibits to this Agreement as of the Effective Date; and
(iii) third, any other documents incorporated herein by reference. Notwithstanding anything to the contrary in this Agreement, to the extent Customer Data contains PHI, the Parties’ rights and obligations regarding such PHI shall be governed by the Business Associate Agreement. In the event of any conflict between this Agreement and the Business Associate Agreement with respect to PHI, the Business Associate Agreement shall control.
Notices.
All notices, requests, consents, claims, demands, waivers, and other communications hereunder (each, a “Notice”) must be in writing and addressed to the Parties at the addresses set forth on the first page of this Agreement (or to such other address that may be designated by the Party giving Notice from time to time in accordance with this Section). All Notices must be delivered by personal delivery, nationally recognized overnight courier (with all fees pre-paid), facsimile or email (with confirmation of transmission), or certified or registered mail (in each case, return receipt requested, postage pre-paid). Except as otherwise provided in this Agreement, a Notice is effective only:
(i) upon receipt by the receiving Party; and
(ii) if the Party giving the Notice has complied with the requirements of this Section.
Force Majeure.
In no event shall either Party be liable to the other Party, or be deemed to have breached this Agreement, for any failure or delay in performing its obligations under this Agreement (except for any obligations to make payments), if and to the extent such failure or delay is caused by any circumstances beyond such Party’s reasonable control, including but not limited to acts of God, flood, fire, earthquake, explosion, war, terrorism, invasion, riot or other civil unrest, strikes, labor stoppages or slowdowns or other industrial disturbances, or passage of law or any action taken by a governmental or public authority, including imposing an embargo.
Amendment and Modification; Waiver.
This agreement may be updated, amended, restated, or otherwise modified from time to time by Company in Company’s sole discretion. All changes are effective immediately when we post them, and apply to all access to and use of the Services thereafter. However, any changes to the dispute resolution provisions set out in Section 12(f) and (g) (Governing Law and Arbitration) will not apply to any disputes for which the parties have actual notice on or before the date the change is posted on our website. Except as otherwise set forth in this Agreement,
(i) 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, and
(ii) no single or partial exercise of any right, remedy, power, or privilege hereunder will preclude any other or further exercise thereof or the exercise of any other right, remedy, power, or privilege.
Severability.
If any provision of this Agreement is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability will 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 shall negotiate in good faith to modify this Agreement so as to effect their original intent 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.
Governing Law.
This Agreement, the rights of the parties and all Actions arising in whole or in part under or in connection herewith, will be governed by and construed in accordance with the domestic substantive laws of the Commonwealth of Massachusetts, without giving effect to any choice or conflict of law provision or rule that would cause the application of the laws of any other jurisdiction.
Arbitration.
Except as set forth in Section 12(h) below, in the event that any dispute shall arise among the Parties hereto as to any matter covered by this Agreement or any of the agreements referenced in Section12(a), such dispute shall be solely resolved by the agreement of the Parties, or if they are unable to agree within twenty (20) days of the date such dispute arises, same shall be settled, by final and binding arbitration. Any claim for arbitration will be timely only if brought within the time in which an administrative charge or complaint must have been filed or, if any administrative charge is not involved, within the time set by the appropriate statute of limitations. The Parties agree to utilize a single arbitrator mutually agreed upon by the Parties who the Parties agree shall be a retired federal or state judge of the Commonwealth of Massachusetts. Such arbitration shall be exclusively conducted at the office of either the arbitrator or at the office of Company’s counsel. If the Parties are unable to mutually agree upon an acceptable arbitrator, then the matter shall be submitted to the American Arbitration Association who shall appoint a single arbitrator. Such arbitration shall be governed by the laws of the Commonwealth of Massachusetts. The arbitrator will handle the arbitration in an expedited manner and provide each Party with a reasonable opportunity for pre-hearing discovery of information relevant to the claims and defenses raised in the arbitration and shall otherwise ensure fairness and due process in the arbitration process and hearings. For issues involving pre-hearing discovery, procedures before and during the hearing and admissibility of evidence and other evidentiary matters that are not addressed, the arbitrator shall be guided, but not controlled by, the Massachusetts Rules of Civil Procedure and the Massachusetts Rules of Evidence. In seeking such guidance from these Rules, the arbitrator shall balance the need for fairness and due process against the purposes of arbitration to provide a quicker, less costly and less cumbersome process than the courts for the resolution of disputes. Any award rendered by the arbitrator shall be final, binding upon the Parties, and shall not be subject to appeal. As soon as reasonably practicable, but not later than thirty (30) days after the hearing is completed, the arbitrator shall arrive at a final decision, which shall be reduced to writing, signed by the arbitrator and mailed to each of the parties and their legal counsel. An action to enforce or vacate any arbitration award will be adjudicated in a Massachusetts court of law. The fees and expenses of the arbitrator shall be borne equally by the parties to the arbitration, unless some other allocation of these expenses is agreed-to or is part of the arbitrator’s award. Each Party shall pay such Party’s own fees and costs relating to any arbitration proceedings, including attorney fees. The Parties, their attorneys, accountants, tax and investment advisors, experts, expert and lay witnesses, and any and all other individuals who the Parties involve in this arbitration process shall for all time maintain the confidentiality of all aspects of the arbitration; provided, that such confidentiality obligation shall not prohibit disclosures required by applicable Legal Requirements or court order (in which case the disclosing party shall, to the extent legally permitted, provide the other party with reasonable prior notice and an opportunity to seek a protective order). Each Party shall be responsible for advising all the other individuals which each Party involves in the arbitration of this obligation to maintain this confidentiality.
Specific Performance.
Notwithstanding Section 12(g) above, each of the parties acknowledges and agrees that the other parties would be damaged irreparably in the event any of the provisions of this Agreement are not performed in accordance with their specific terms or otherwise are breached or violated. Accordingly, each of the parties agrees that, without posting bond or other undertaking, the other parties will be entitled to seek an injunction or injunctions to prevent breaches or violations of the provisions of this Agreement and to enforce specifically this Agreement and the terms and provisions hereof in any Action instituted in any court of the United States or any state thereof having jurisdiction over the parties and the matter in addition to any other remedy to which it may be entitled, at law or in equity. Each party further agrees that, in the event of any action for specific performance in respect of such breach or violation, it will not assert that the defense that a remedy at law would be adequate.
Waiver of jury trial
Each party to this agreement hereby acknowledges that by agreeing to mandatory arbitration, in accordance with section 12(g), such party is giving up its right to pursue the resolution of any dispute with any other party hereto through a lawsuit in a court of law other than with respect to section 12(g), and specifically, such party is giving up its right to have any such dispute decided by a jury.
Assignment.
Customer may not assign any of its rights or delegate any of its obligations hereunder, in each case whether voluntarily, involuntarily, by operation of law or otherwise, without the prior written consent of Company, which consent shall not be unreasonably withheld, conditioned, or delayed. Any purported assignment or delegation in violation of this Section will be null and void. No assignment or delegation will relieve the assigning or delegating Party of any of its obligations hereunder. This Agreement is binding upon and inures to the benefit of the Parties and their respective permitted successors and assigns.
Export Regulation.
Customer shall comply with all applicable federal laws, regulations, and rules, and complete all required undertakings (including obtaining any necessary export license or other governmental approval), that prohibit or restrict the export or re-export of the Services or any Customer Data outside the US.
Equitable Relief.
Each Party acknowledges and agrees that a breach or threatened breach by such Party of any of its obligations under 6 or, in the case of Customer, Section 2(c), would cause the other Party irreparable harm for which monetary damages would not be an adequate remedy and agrees that, in the event of such breach or threatened breach, the other Party will be entitled to equitable relief, including a restraining order, an injunction, specific performance, and any other relief that may be available from any court, without any requirement to post a bond or other security, or to prove actual damages or that monetary damages are not an adequate remedy. Such remedies are not exclusive and are in addition to all other remedies that may be available at law, in equity, or otherwise.
Counterparts.
This Agreement may be executed in counterparts, each of which is deemed an original, but all of which together are deemed to be one and the same agreement.