FLINT SERVICES
GENERAL TERMS & CONDITIONS
Last updated: January 29th, 2024
The following General Terms and Conditions (“General Terms”) outline the terms under which Flint Clinical (“Flint”) will provide it Services to Provider. Flint and Provider may be referred to herein individually as a “Party” or collectively as the “Parties.”
Flint hosts and offers its proprietary Services (defined below) on a software-as-a-service basis to deliver streamlined clinical trial management services.
Provider desires to use Flint’s Services as set forth on each Order.
By executing (signing) an Order, Provider is agreeing on behalf of itself and its Affiliated Entities (defined below) to comply with these General Terms, Flint’s Business Associate Agreement (found here [Insert Link]) and the terms outlined in each executed Order, collectively the entire “Agreement” between the Parties. Any reference to Provider in the Agreement refers to Provider and its Affiliated Entities.
1. DEFINITIONS
The following terms used herein are defined as follows. Any capitalized terms not defined herein or elsewhere in this Agreement shall have the meaning ascribed to them under Applicable Law.
“Affiliate Entities” means, with respect to any specified entity (e.g., Provider’s Affiliate Entities), any entity that directly or indirectly controls, is controlled by or is under common control with such specified entity. An entity shall be deemed to control another entity if such first entity has the power, directly or indirectly, to direct or cause the direction of the management or policies of such other entity, whether through ownership of voting securities, by contract, or otherwise. The Parties shall remain liable for each of its Affiliate Entities’ negligence, willful misconduct, or fraud under this Agreement.
“Agreement” means these General Terms, Flint’s Business Associate Agreement and each executed Order between the Parties.
“Applicable Law(s)” means all federal, state, and local laws, ordinances, rules, and regulations that apply to the Parties, the Services or this Agreement, regardless of jurisdiction, including the HIPAA Rules (defined below).
“De-Identified Data” means data or information that does not identify an individual and with respect to which there is no reasonable basis to believe that the data or information can be re-identified or otherwise used to identify an individual. De-identification of personally identifiable health information must be performed via the methods set forth under the HIPAA Rules.
“Documentation” means any proprietary documentation made available to Provider by Flint for use with the Services, including any documentation available online or otherwise, as amended or updated by Flint from time to time in its sole discretion.
“Fees” means the fees for the Services provided in each Order.
“HIPAA Rules” means the Health Insurance Portability and Accountability Act of 1996, Public Law 104-191, as amended, and its related regulations (“HIPAA”), The Privacy, Security, Breach Notification, and Enforcement Rules at 45 C.F.R. Parts 160 and 164, as amended, and their related regulations, and the Health Information and Technology for Economic and Clinical Health Act, Title XIII of Division A and Title IV of Division B of the American Recovery and Reinvestment Act of 2009, Public Law No. 111-005, as amended, and its related regulations (“HITECH”).
“Intellectual Property Rights” shall mean any and all intellectual property rights or similar proprietary rights, including (a) patent rights and utility models, (b) copyrights and database rights (including rights in computer software and electronic platforms), (c) trademarks, trade names, domain names and trade dress and the goodwill associated therewith, (d) trade secrets, (e) mask works, and (f) industrial design rights; in each case, including any registrations of, applications to register, and renewals and extensions of, any of the foregoing in any jurisdiction.
“Malicious Code” means viruses, worms, Trojan horses and other harmful files, scripts, or programs.
“Order(s)” means any quotation or other ordering document (including but not limited to a purchase order), which may contain additional terms and conditions that are specific to any Services to be provided by Flint to Provider which is executed in writing by both Parties.
“Order Term” means the subscription term for the Services set forth on an applicable Order.
“Professional Services” means the Implementation Assistance services, integration, consulting and other related services to be provided by Flint as described in each Order.
“Provider Data” means any data, information or other material provided, uploaded, or submitted by Provider to the Services while using the Services, including identifiable health information (e.g., Protected Health information) provided under the HIPAA Rules.
“Provider’s System(s)” means Provider’s internal website(s), systems, servers, laboratory information system(s) (“LIS”), electronic medical record systems, scanners, and other equipment and software used in the conduct of its business.
“Services” means the products, services and/or software specified in each Order;
“Taxes” means any sales, use, excise, services, consumption, and other taxes or duties and analogous taxes, but does not include any personal property taxes on property Flint owns or leases or taxes based on its net income or gross receipts.
“Usage Data” means statistics and data relating to a Provider’s or User’s activity, including the browsing or accessing of the Services, or the uploading and use of any other information collected from or about or otherwise regarding a User, whether in individual or aggregate form.
“Users” means employees or agents of Provider or Provider’s Affiliated Entities who are authorized by Provider to use the Services.
2. ORDERS
Upon mutual execution, each Order shall be incorporated into and form a part of the Agreement.
3. PROVIDER LICENSE;USE RESTRICTIONS; USERS
3.1 Provider License. Subject to Provider’s payment of the applicable Fees on an Order and compliance with: 1) the terms and conditions set forth in these General Terms, Flint’s Business Associate Agreement, and any Documentation Flint provides to Provider, 2) any limitations and restrictions set forth on an Order, and 3) Applicable Law, Flint hereby grants to Provider during the relevant Order Term, a limited, non-exclusive, revocable, non-sublicensable, non-transferable right and license to access and use the Services for the internal business purposes of Provider and in connection with Provider’s treatment of his or her Patients or research interests, but in no event for the benefit of any other person or entity. Flint may terminate any or all rights granted to Provider under this Section 3 at any time if Flint believes that Provider has or is violating any terms or conditions of the Agreement.
3.2 Use Restrictions. Except as expressly set forth in the Agreement, Provider shall not (and shall not permit any third-party including its Users 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 the Services; (ii) modify, translate, or create derivative works based on the Services; (iii) copy, rent, lease, distribute, pledge, assign, or otherwise transfer or encumber rights to the Services; (iv) use the Services for the benefit of a third-party (other than Provider or its Users); (v) remove or otherwise alter any copyright or proprietary notices or labels from the Services or any portion thereof; (vi) use the Services to build an application or product that is competitive with any Flint products or services; (vii) use the Services for any purpose other than its intended purpose; (viii) interfere or attempt to interfere with the proper working of the Services or any activities conducted on the Services; (ix) bypass any measures Flint may use to prevent or restrict access to the Services (or other accounts, computer systems or networks connected to the Services); (x) “crawl,” “scrape,” or “spider” any page, data, or portion thereof (or any information, data or content made available through the Services), whether through use of manual or automated means; (xi) publish or disclose to third parties any evaluation of the Services without Flint's prior written consent; (xii) use the Services for any commercial purpose, or for any public display or distribution (commercial or non-commercial) without prior written permission from Flint; (xiii) introduce Malicious Code to the Services; or (xiv) use the Services in a manner that violates Applicable Law.
Provider is responsible for all of Provider’s activity and its Users’ activity in connection with the Services, including but not limited to uploading Provider Data onto the Services. Provider: (i) shall use the Services in compliance with Applicable Law, and (ii) shall not use the Services in a manner that violates any third-party Intellectual Property, contractual or other proprietary rights. The license granted under this Section 3 shall automatically terminate if Provider or its Users violate any of these use restrictions.
3.3 Users. Provider shall, upon written request, provide to Flint an accurate current count of the number of Users with access to the Services. Logins by multiple users under the same or a single username is prohibited. Provider shall not make the Services available to anyone other than its Users and shall be responsible and liable for any use of the Services not authorized under the Agreement. Provider agrees that any usage by such Users is in accordance with the terms and conditions of the Agreement and that Provider is responsible for ensuring that any usage by such Users is in accordance with the terms and conditions of the Agreement.
3.4 User Information. Users shall be required to provide certain information to access the Services, which may include each User’s name, contact information, selection of a username, password or pass phrase, registration details or other information. It is a condition of use of the Services that all the information provided by a User is correct, complete, and is updated as changes occur. Username and password information shall be treated by Provider and each User as Confidential Information of Flint. Users must not disclose such information to any other person or entity. User accounts are personal and shall not be provided to any other person or organization or published or otherwise made known to a third-party. Provider and all Users shall notify Flint immediately of any unauthorized access to or use of a username or password or any other breach of security.
4. IMPLEMENTATION SERVICES
Upon payment of the applicable Fees set forth in each Order, Flint agrees to use commercially reasonable efforts to provide standard implementation assistance for the Services, only if, and to the extent such assistance is set forth on such Order (“Implementation Assistance”). If Flint provides Implementation Assistance in excess of any agreed-upon hours estimated on an Order, or if Flint otherwise provides additional services beyond those agreed to in an Order, Provider will pay Flint’s then-current hourly rates for the excess time for Implementation Assistance or additional consultation services agreed to in the applicable Order.
5. SUPPORT SERVICES
Flint will provide support and uptime for the Services in accordance with the support package selected by Provider on the applicable Order (if any).
6. SERVICE UPDATES
From time to time, Flint may provide upgrades, patches, enhancements, or fixes for the Services to its customers, generally without additional charge (“Updates”), and such Updates will become part of the Services and subject to the Agreement; provided that Flint shall have no obligation under the Agreement, or otherwise, to provide any such Updates. Provider understands that Flint may cease supporting old versions or releases of the Services at any time and in its sole discretion. However, if Flint chooses to cease supporting old versions or releases of the Services, Flint will use commercially reasonable efforts to notify Provider of any such changes at least thirty (30) days prior to ceasing such support.
7. OWNERSHIP AND INTELLECTUAL PROPERTY RIGHTS; FEEDBACK
7.1 Ownership and Intellectual Property Rights: As between the Parties, Flint retains all right, title, and interest in and to the Services, and all software, products, works, and all Intellectual Property Rights and moral rights related thereto or created, used, or provided by Flint for the purposes of the Agreement, including any copies and derivative works of the foregoing. Any software which is distributed or otherwise provided to Provider hereunder (including without limitation any software identified on an Order) shall be deemed a part of the “Services” and subject to all the terms and conditions of the Agreement. No rights or licenses are granted except as expressly and unambiguously set forth in the Agreement.
Nothing in the Agreement will impair Flint’s right to develop, acquire, license, market, promote or distribute products, software or technologies that perform the same or similar functions as, or otherwise compete with any products, software or technologies that Provider may develop, produce, market, or distribute.
7.2 Feedback: Provider may from time to time provide suggestions, comments, testimonials, or other feedback to Flint with respect to the Services (“Feedback”). Provider hereby grants to Flint a nonexclusive, worldwide, perpetual, irrevocable, transferable, sublicensable, royalty-free, fully paid-up license to use and exploit the Feedback for any purpose.
8. FEES; PAYMENT
Provider shall pay Flint the fees for the Services as set forth in each Order (the “Fees”). Unless otherwise specified in an Order, all Fees shall be invoiced monthly in advance and all invoices issued under this Agreement are payable in U.S. dollars within thirty (30) days from the date of invoice. Past due invoices are subject to interest on any outstanding balance of the lesser of 1.5% per month or the maximum amount permitted by law. Provider shall be responsible for all Taxes associated with the Services (excluding Taxes based on Flint’s net income). All Fees paid are non-refundable and are not subject to setoff. Flint reserves the right to change the Fees or applicable charges and to institute new charges and Fees at any time, upon thirty (30) days prior notice to Provider (which may be sent by electronic mail (Email)). If Provider believes that Flint has billed Provider incorrectly, Provider must contact Flint no later than 60 days after the closing date on the first billing statement in which the error or problem appeared, in order to receive an adjustment or credit. Inquiries should be directed to Flint at: finance@flintclinical.com.
9. CONFIDENTIAL INFORMATION
“Confidential Information” means any and all non-public technical and non-technical information disclosed by one party (the “Disclosing Party”) to the other party (the “Receiving Party”) in any form or medium, whether oral, written, graphical or electronic, pursuant to the Agreement, that is marked confidential and proprietary, or that the Disclosing Party identifies as confidential and proprietary, or that by the nature of the circumstances surrounding the disclosure or receipt of the information ought to be treated as confidential and proprietary information, including but not limited to: (i) techniques, sketches, drawings, models, inventions (whether or not patented or patentable), know-how, processes, apparatus, formulae, equipment, algorithms, software programs, software source documents, APIs, and other creative works (whether or not copyrighted or copyrightable); (ii) information concerning research, data, Patient Data, experimental work, development, design details and specifications, engineering, financial information, procurement requirements, purchasing, manufacturing, customer lists, business forecasts, sales and marketing plans and information; (iii) proprietary or confidential information of any third-party who may disclose such information to Disclosing Party or Receiving Party in the course of Disclosing Party’s business; and (iv) the terms of the Agreement. Confidential Information of Flint shall include its products and Services. Confidential Information also includes all summaries and abstracts of Confidential Information.
Confidential Information does not include information that:
i. Is in the public domain at the time of disclosure, or thereafter becomes part of the public domain other than by a breach of the Agreement by the Receiving Party;
ii. Was within the Receiving Party’s possession, as shown by written records, prior to it being furnished by or on behalf of Disclosing Party;
iii. Becomes available to the Receiving Party on a non-confidential basis from a source other than the Disclosing Party, provided that the source had the legal right to disclose such information; or
iv. Is independently developed by or on behalf of the Receiving Party without the knowledge, aid, application or use of the Confidential Information of the Disclosing Party and such independent development can be properly demonstrated by the Receiving Party.
Each Party agrees to use the other Party’s Confidential Information only as necessary to perform their obligations under this Agreement and to maintain the confidentiality of the other party’s Confidential Information using at least the same degree of care in safeguarding the other’s Confidential Information as it uses in safeguarding its own Confidential Information, subject to a minimum standard of reasonable diligence and protection to prevent any unauthorized copying, use, distribution, installation or transfer of possession of such information. Confidential Information will be disseminated only to those employees, officers, contractors and directors who have a need to know such information for the purpose of the business relationship and who are informed of and bound by the obligations of this section.
Notwithstanding the foregoing restrictions on disclosure of Confidential Information, the Receiving Party may disclose Confidential Information: (i) in response to a valid order of a court or any governmental agency or regulatory body, or (ii) as otherwise required by law; provided that, unless otherwise barred by legal or regulatory order, the Receiving Party promptly notifies the Disclosing Party of such pending order or requirement and lends the Disclosing Party all reasonable assistance, so that the Disclosing Party may seek a protective order or other appropriate remedy; and provided further that in the event that no such protective order or other remedy is obtained, the Receiving Party will furnish only that portion of the Confidential Information which it is legally required to furnish in order to comply.
10. PROVIDER DATA AND DATA USE RIGHTS
10.1 Provider Data. Provider shall retain all right, title and interest in and to the Provider Data. Provider, not Flint, shall have sole responsibility for the accuracy, quality, integrity, legality, reliability, appropriateness, and ownership or right to the use of all Provider Data. Provider and its Users shall be responsible for obtaining any consents, authorizations, and other rights necessary to transfer, collect, submit, use, and process Provider Data in connection with the Services. Provider represents and warrants that it will ensure that its collection, provision, and use of information via the Services complies with all Applicable Laws and the Agreement and will not violate the rights of any third-party when used in accordance with the Agreement.
Flint’s obligations regarding the privacy, security and integrity of the Services and the Provider Data are set forth in Flint’s Business Associate Agreement. Flint is not responsible to Provider or Provider’s Users or patients for unauthorized access to, or unauthorized disclosure of, Provider Data or the unauthorized use of the Services unless such access is due to Provider’s own gross negligence or willful misconduct. Provider is responsible for the use of the Services by any person or User to whom Provider has given access to the Services, even if Provider did not authorize such use.
10.2 Usage Data. Notwithstanding anything else in the Agreement or otherwise, Flint may create, disclose, monitor, store or use Usage Data for any purpose, and Flint retains all Intellectual Property Rights in such Usage Data.
10.3 Licenses to Use Provider Data. Provider hereby grants to Flint a worldwide, non-exclusive, fully paid up, royalty-free license to reproduce, distribute, display and/or create derivative works of Provider Data for the following purposes: (i) to perform and provide the Services; (ii) to analyze, maintain, develop and improve Flint’s products, software and Services, and/or to develop new Flint products, software or services; (iii) to compile and use Usage Data as provided above; and (iv) for research purposes. Notwithstanding the foregoing, Provider hereby also grants to Flint a worldwide, non-exclusive, fully paid up, royalty-free, perpetual, non-revocable license to de-identify Provider Data and to use De-identified Provider Data, including any Usage Data, for any purpose related to Flint’s Services.
10.4 Data Retention. Within ninety (90) days after the termination or expiration of the Agreement, Flint will delete or destroy all Provider Data. However, Flint may store or maintain Provider Data if required by Applicable Law, or the internal policies of Flint to maintain business records, for disaster recovery and business continuity purposes, or as otherwise permitted pursuant to the Agreement. Notwithstanding anything contained herein, for avoidance of doubt, Flint may de-identify or anonymize the Provider Data and use such data for any legal and valid purpose at any time related t o Flint’s Services, including after the termination or expiration of the Agreement pursuant to the license provided by Provider to Flint hereinabove.
11. Term; Termination
11.1 Term. The Agreement shall commence upon the Effective Date of the first Order executed by the Parties and shall continue for three (3) years from the Effective Date of the first Order (the “Initial Term”). After the Initial Term, the Agreement shall automatically renew in successive one (1) year Renewal Terms, unless either Party provides ninety (90) days written notice before the expiration of the then given Term of its intention not to renew the Agreement at the end of that Term.
Any Order still in effect as of the expiration the Agreement shall remain in effect until its expiration date, unless the Agreement is terminated early for Breach as outlined in Section 11.2 below.
11.2 Termination for Breach. In the event of a material breach of the Agreement by either Party, the non-breaching party may terminate the Agreement and any valid Order’s by providing written notice to the breaching party, unless the breaching party is able to cure such breach within thirty (30) days of receipt of such notice.
11.3 Suspension. Without limiting the foregoing, Flint may suspend or limit Provider’s access to or use of the Services if: (i) Provider’s account is more than sixty (60) days past due, or (ii) Provider’s or its Users’ use of the Services results in (or is reasonably likely to result in) damage to or material degradation of the Services which interferes with Flint’s ability to provide access to the Services to other customers; provided that in the case of subsection (ii) Flint shall reinstate Provider’s and its Users’ use of or access to the Services, as applicable, if Provider remediates the issue within ten (10) days of receipt of notice from Flint describing the nature of the damage or degradation.
11.4 Survival Rights. Early termination of the Agreement or any license to the Services shall not limit either Party from pursuing other remedies available to it, including but not limited to injunctive relief, nor shall such termination relieve Provider of its obligation to pay all Fees that have accrued or are otherwise owed by Provider. All provisions of the Agreement which by their nature should survive termination shall survive termination, including, without limitation, accrued payment obligations, ownership provisions, data use provisions, warranties, disclaimers, indemnity and limitations of liability.
If the Agreement terminates in the middle of a monthly billing cycle, Provider shall be responsible for the fees solely for the portion of the monthly billing cycle through the termination date.
11.5 Effect of Expiration or Termination. Upon expiration or early termination of the Agreement, Provider and its Users shall: (i) cease using the Services and related Confidential Information of Flint, and (ii) certify to Flint within thirty (30) days after termination that Provider has destroyed, or has returned to Flint, the Confidential Information of Flint, and all copies thereof, whether or not modified or merged into other materials. Any use of the Services after expiration or termination is a violation of the Agreement and constitutes an unlawful violation of Flint’s copyright in the Services under Applicable Law.
12. INDEMNIFICATION
12.1 Flint Indemnity. Flint shall, subject to the terms and conditions set forth in the Agreement, (i) defend Provider and its Affiliated Entities from and against any and all third-party claims, actions, suits, demands, or proceeding brought against Provider (a “Claim”) to the extent the Claim alleges that Provider’s use of the Services in accordance with the terms of the Agreement infringes any copyright or patent issued as of the Effective Date, and (ii) indemnify and hold harmless Provider against any damages awarded to the third-party bringing the Claim or any settlement amount approved by Flint in writing and paid to the third-party bringing the Claim in order to settle the Claim. Flint’s obligations under this Section 12.1 are conditioned upon: (i) Flint being promptly notified in writing of such Claim, (ii) Flint having the exclusive right to control the defense and/or settlement of the Claim, and (iii) Provider providing all reasonable assistance (at Flint’s request and expense) in the defense of the Claim. In no event shall Provider settle any Claim without Flint’s prior written approval. Provider may, at its own expense, engage separate counsel to advise Provider regarding a Claim and to participate in the defense of the Claim, subject to Flint’s right to control the defense and settlement.
Mitigation. In the event of any such third-party Claim or threat thereof, Flint, at its sole option and expense, may (i) procure for Provider the right to continue to use the allegedly infringing Services, or (ii) replace or modify the Services with functionally equivalent software and/or Services. If, in Flint’s opinion, neither subpart (i) nor (ii) of this paragraph is commercially reasonable or practical, Flint may terminate the Agreement with respect to the allegedly infringing Services upon thirty (30) days written notice to Provider. In the event of such termination, Flint shall refund to Provider any portion of Fees paid to Flint by Provider for use of the allegedly infringing Services following the date of such termination.
Exclusions. Notwithstanding anything to the contrary in the Agreement, Flint shall have no obligations to Provider pursuant to this Section 12.1 (Flint Indemnity) with respect to any infringement or alleged infringement resulting or arising from: (i) any modifications to the Services made by any person or entity other than Flint that is not previously approved by Flint; (ii) any use of the Services by Provider or its Users beyond the scope of the express rights and licenses granted in the Agreement; (iii) any use of the Services in combination with another service, software, hardware or data; (iv) Flints’ compliance with Provider’s request for changes to the Services; or (v) Provider’s breach of Applicable Law or the Agreement.
THE FOREGOING STATES FLINT’S ENTIRE LIABILITY WITH RESPECT TO THE INFRINGEMENT OF ANY INTELLECTUAL PROPERTY OR PROPRIETARY RIGHTS BY THE SERVICES OR OTHERWISE, AND PROVIDER HEREBY EXPRESSLY WAIVES ANY OTHER LIABILITIES OR OBLIGATIONS OF FLINT WITH RESPECT THERETO.
12.2 Provider’s Indemnity. Provider shall indemnify and hold harmless, and at Flint’s request defend, Flint and its Affiliate Entities, licensors, successors and assigns (and its and their officers, directors, employees, contractors, representatives and agents) from and against any and all claims, suits, demands, losses, liabilities, damages, settlements, expenses and costs (including, without limitation, attorneys’ fees and court costs) which arise out of or relate to any third-party claim or threat thereof that is due to: (i) the Provider Data or Provider’s use of the Services infringes, misappropriates or violates any third-party’s Intellectual Property Rights or violates any Applicable Law, including with respect to the use and disclosure of Protected Health Information; (ii) Provider’s or its Users’ breach or alleged breach of the Agreement; or (iii) Provider’s or its Users’ negligence, willful misconduct or fraud. Flint shall notify Provider promptly of any claim or liability for which indemnification is sought, provided, however, that the failure to give such notice shall not relieve Provider of its obligations hereunder except to the extent that Provider was actually and materially prejudiced by such failure. Provider may not settle any claim for which indemnification is sought under this Section 12.2 without the prior written approval of Flint, which approval shall not be unreasonably withheld or delayed.
13. DISCLAIMERS
EXCEPT AS EXPRESSLY SET FORTH HEREIN, THE SERVICES 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.
Flint does not offer medical advice or diagnoses or engage in the practice of medicine. The Services are not intended to be a substitute for professional medical advice, diagnosis, or treatment and are offered for informational and communicative purposes only. The Services are not intended to be, and must not be taken to be, the practice of medicine, nursing, pharmacy or other healthcare advice by Flint. The Services should never be used as a substitute for medical care.
The Services are not meant to diagnose or treat any conditions or substitute for a medical professional. Reliance on any information provided by Flint or in connection with the Services is solely at Provider’s own risk. Provider is solely responsible for any decisions or actions that it takes based on the information and materials available through the Services.
The Services are not medical devices and are not intended to be used as medical devices. Furthermore, the Services and the products are neither regulated nor approved by the U.S. Food and Drug Administration and are not designed to detect or prevent causes of any medical condition. The Services and content are not a substitute for medical care or adult supervision.
14. LIMITATION OF LIABILITY
EXCEPT FOR THE PARTIES’ INDEMNIFICATION OBLIGATIONS, IN NO EVENT SHALL EITHER PARTY, NOR ITS DIRECTORS, EMPLOYEES, AGENTS, PARTNERS, SUPPLIERS OR CONTENT PROVIDERS, BE LIABLE UNDER CONTRACT, TORT, STRICT LIABILITY, NEGLIGENCE OR ANY OTHER LEGAL OR EQUITABLE THEORY WITH RESPECT TO THE SUBJECT MATTER OF THE AGREEMENT (I) FOR ANY LOST PROFITS, DATA LOSS, COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, OR SPECIAL, INDIRECT, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES OF ANY KIND WHATSOEVER, SUBSTITUTE GOODS OR SERVICES (HOWEVER ARISING), (II) FOR ANY MALICIOUS CODE, OR THE LIKE (REGARDLESS OF THE SOURCE OF ORIGINATION), OR (III) FOR ANY DIRECT DAMAGES IN EXCESS OF (IN THE AGGREGATE) THE FEES PAID (OR PAYABLE) BY PROVIDER TO FLINT HEREUNDER IN THE TWELVE (12) MONTHS PRIOR TO THE EVENT GIVING RISE TO A CLAIM HEREUNDER.
THE FOREGOING LIMITATIONS SHALL NOT APPLY TO ANY CLAIMS THAT ARISE DUE TO PROVIDER’S OR ITS USERS’: (I) BREACH OF THE AGREEMENT, OR (II) NEGLIGENCE, WILLFUL MISCONDUCT OR FRAUD.
15. THIRD-PARTY MATERIALS
Provider acknowledges and agrees that: (i) the Services may incorporate certain information, data and materials received from Flint’s third-party licensors and data vendors (“Third-Party Materials”); (ii) Third-Party Materials may only be used in conjunction with the Services; and (iii) Provider’s use of the Third-Party Materials shall be subject to (and Provider agrees it is bound by) any additional terms and conditions applicable to the use of such Third-Party Materials, as they may be provided and/or modified from time to time by Flint and/or its third-party licensors and data vendors. Flint cannot and does not guarantee that the Services will incorporate (or continue to incorporate) any particular Third-Party Materials.
16. PUBLICITY
Provider hereby grants to Flint the rights to use Provider’s name, logos or trademarks in promotional and marketing materials, or in any other publicity made by Flint that relates to Flint’s products, services or software.
17. GENERAL PROVISIONS
17.1 Force Majeure. Except for payment obligations, In no event will either Party be liable or responsible to the other Party, or be deemed to have defaulted under or breached the Agreement, for any failure or delay in fulfilling or performing any term of the Agreement when and to the extent such failure or delay is reasonable in light of the existence of circumstances beyond such Party's reasonable control (a "Force Majeure Event"), including acts of God, quarantine or other necessary measures taken in response to the COVID-19 or any other public health emergency or pandemic, flood, fire, earthquake or explosion, war, terrorism, invasion, riot or other civil unrest, embargoes or blockades in effect on or after the date of the Agreement, national or regional emergency, strikes, labor stoppages or slowdowns or other industrial disturbances, passage of law, regulations, 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, including any regional slowdown or interruptions to Internet service. Either Party may terminate the Agreement if a Force Majeure Event affecting the other Party continues substantially uninterrupted for a period of thirty (30) days or more.
In the event of any failure or delay caused by a Force Majeure Event, the affected Party shall give prompt written notice to the other Party stating the period of time the occurrence is expected to continue and use commercially reasonable efforts to end the failure or delay and minimize the effects of such Force Majeure Event.
17.2 Relationship of the Parties. The relationship between the Parties created under the Agreement is one of independent contractors and neither Party shall have the power or authority to bind or obligate the other except as expressly set forth in the Agreement. The Agreement does not create a partnership, franchise, joint venture, agency, fiduciary, or employment relationship between the Parties.
17.3 Assignment. Neither Party may assign any of its rights or obligations hereunder, whether by operation of law or otherwise, without the prior written consent of the other Party (not to be unreasonably withheld, conditioned or delayed). Notwithstanding the foregoing, either Party may assign the Agreement in its entirety, without consent of the other Party, in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets. Any attempt by a Party to assign its rights or obligations under the Agreement in breach of this Section 17.3 shall be void and have no binding effect. Subject to the foregoing, the Agreement shall bind and inure to the benefit of the Parties, their respective successors and permitted assigns.
17.4 Governing Law. The Agreement shall be governed exclusively by the laws of the State of New York, without regard to its conflicts of laws rules. All disputes arising out of or in connection with the Agreement or its validity shall be finally settled by a court of competent jurisdiction in New York, New York, and the Parties expressly agree to the jurisdiction thereof.
17.5 Miscellaneous. The Agreement constitutes the entire agreement between the Parties and supersedes all prior and contemporaneous agreements, proposals or representations, written or oral, concerning its subject matter. No modification, amendment, or waiver of any provision of the Agreement shall be effective unless in writing and signed by both Parties. To the extent there is a conflict or inconsistency between the provisions in the General Terms, Flint’s Business Associate Agreement or any executed Order, the terms in the General Terms shall prevail unless expressly stated otherwise in Flint’s Business Associate Agreement or the executed Order(s). Any provision of the Agreement which is prohibited and unenforceable in any jurisdiction shall be replaced with a valid provision that is closer to the scope and intent of the invalid provision and shall not affect the validity of the remaining provisions hereof. All notices under the Agreement shall be in writing and shall be deemed to have been duly given when received, if personally delivered or sent by certified or registered mail, return receipt requested; two days after receipt, if transmitted by facsimile or e-mail; or the day after it is sent, if sent for next day delivery by recognized overnight delivery service. Notices must be sent to the contacts for each Party set forth on an applicable Order. Either Party may update its address set forth in an Order by giving notice in accordance with this section. The failure of either Party to act with respect to a breach of the Agreement by the other Party shall not constitute a waiver and shall not limit such Party’s rights with respect to such breach or any subsequent breaches. All Orders may be executed in two counterparts with the exact same contents, which taken together shall form one legal instrument. The Parties deem electronic signatures to be valid.