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The below describes the terms and conditions by which Phebi UK Ltd. (“Phebi”) provides to Customers its Software, Hosted Services, and Services.

These terms and conditions are in full effect as of the date above and supersede any previous Phebi terms and conditions.

Phebi reserves the right to modify these terms and conditions at any time.

For good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties agree as follows:

1. Definitions

Customer” means any entity whose authorized representative signs a Phebi Order Form that is subsequently signed by an authorized representative of Phebi.

Customer Data” means all information and data submitted to Phebi by Customer or Users to the Software or Services.

De-Identified Data” means de-identified and anonymized sets of Customer Data that have been gathered by Phebi for the purpose of expressing that information in summary form, and does not include any information that could be used to identify, or re-identify, Customer, Users, or Customer’s clients or customers.

Documentation” means the instructions for use (whether in print or electronic form) that relate to the use of the Software or Services and have been provided by Phebi to Customer hereunder.

The “Effective Date” is found on each Phebi Order Form.

“Hosted Services” means the delivery of the Services (including all interfaces, software applications, and web-based portals that are embedded within the Hosted Services), in there most current generally released major versions, to Customer in a software-as-a-service (SaaS) model.

Non-Phebi Application” means a web-based, mobile, offline or other software application functionality that is provided by Customer or a third party and interoperates with the Software or Services.

Phebi Data” means the data or information collected or generated by Phebi in the course of providing the Software or Services excluding Customer Data.

“Phebi Order Form” or “Order” means, as applicable (a) a mutually executed document used to license Software, or purchase Hosted Services or Support Services, or (b) a mutually executed Statement of Work for the purchase of Professional Services.

Phebi Technology” means other technology, software, hardware, products, processes, algorithms, user interfaces, know-how and other trade secrets, techniques, designs, inventions and other tangible or intangible technical material or information used or deployed by Phebi.

Privacy Laws” means any applicable laws relating to data protection, privacy and security and any pertinent local legislation implementing the same, including, without limitation, the European Union’s General Data Protection Regulation (GDPR); the United States’ Health Insurance Portability and Accountability Act of 1996, as supplemented by the Health Information Technology for Economic and Clinical Health Act of 2009, and the implementing regulations at 45 CFR Parts 160 and 164; and any other similar or equivalent laws from which the Services may be accessed in accordance with this Agreement.

Professional Services” means those services defined in a mutually agreed upon Statement of Work, and which may include, but are not limited to, implementation services, integration services, training, and project management.

Services” means the Hosted Services, Support Services and Professional Services that are agreed to in an Order or SOW.

Software” means all of the software that Phebi licenses or otherwise makes available to Customer pursuant to this Agreement, whether the Software is delivered to Customer or made available to the Customer as Hosted Services.

Statement of Work” or “SOW” means an addendum to the Agreement, entered into by both parties, that specifies the Professional Services that Phebi will provide under this Agreement.

Support Services” means the use of reasonable efforts, solely through telephone support and remote electronic access, to correct errors reported by Users, and provide answers to questions from Users related to the use and operation of the Software or Hosted Services.  

Update” means any update to the Software or Hosted Services that Phebi commercially releases to its customers generally during the term of this Agreementand is not an Upgrade.

Upgrade” means any new version or major release of the Software or Hosted Services that adds functionality, features or other enhancements or improvements and is not generally released to Phebi customers without payment of additional fees.

User ID” means the unique User identification name and password for access to and use of the Services, when Phebi makes one available.

Users” means Customer’s employees, contractors or agents, and other people who interact with the Software as deployed by Customer, who are authorized to use the Software or Services and who have, for the Services, been supplied User IDs by Customer or by Phebi based on Customer’s direction.

2. Phebi Responsibilities

2.1 Provision of Services. Phebi shall make the Software and Services available to Customer for Customer’s use pursuant to the terms and conditions set forth in this Agreement including those set forth in each Order or SOW. 

2.2 Software and Services.  If the Software is licensed or Services are purchased by Customer pursuant to an Order, Phebi grants to Customer a nonexclusive, non-transferable, limited, revocable license and right to access and use, and permit Users to access and use, the Software or the Hosted Services, and other people who interact with the Software to access and use, during the term specified on the applicable Order (the “Service Term”) as further described on the applicable Order. Phebi shall take commercially reasonable steps consistent with industry standards to maintain the security of the Software, Hosted Services and Customer Data.  Phebi shall use commercially reasonable efforts to make the Hosted Services generally available 24 hours a day, seven days a week, but excluding:  (a) any planned downtime (of which Phebi will give at least 48 hours’ notice); (b) downtime caused by circumstances beyond Phebi’s reasonable control, including for example, an act of God, act of government, flood, fire, earthquake, civil unrest, act of terror, strike or other labor problem (other than one involving Phebi employees), internet service provider failure or delay; (c) issues due to Customer’s breach of its obligations under this Agreement or violation of any applicable law; or (d) exclusions specified in Section 8.3.

2.3 Updates and Upgrade. Phebi will make available to Customer, as part of the Software license or Hosted Services purchase, at no additional charge, any Updateto the Software when Phebi makes such Update generally available to other customers. Upgrades are available for an additional cost.

2.4 Support Services.  Phebi will provide Support Services to Customer and its Users as set forth in an Order, and for the fees identified in the Order.  As part of the Support Services, Phebi will work with Customer to resolve any data issues and exceptions related to the Software or Hosted Services.  Support Services do not include on-site support, unless otherwise agreed in a separate SOW, which will include reimbursement for Phebi’s reasonable out-of-pocket expenses for all on-site support.  Phebi may provide and may bill Customer for material telephone and any on-site support spent on issues that are not included in Support Services.  Notwithstanding anything in this Agreement to the contrary, in no event shall Phebi have any support or other obligation hereunder for errors resulting from (a) misuse, accident or neglect by Customer, (b) the unavailability of, or latencies attributable to, the Internet or other public telecommunications infrastructure, or (c) use of the Software or Services or in a manner not specified in the appropriate Documentation.

2.5 Professional Services.  Phebi will provide Professional Services in accordance with the terms of one or more SOWs.  No SOW will be effective unless and until signed by authorized representatives of both parties.

3. Customer Responsibilities

3.1 Cooperation.  Customer shall cooperate with Phebi in the performance of the Software and Services and provide Phebi with all information and assistance reasonably required for Phebi to provide the Software and Services.  Each party shall designate a contact person (and one or more backup contacts) to be primarily responsible for coordination of activities related to the Software and Services.

3.2 Customer Access and User IDs.  Customer will ensure that only Users use the Software or Services, and that they do so in accordance with the terms of this Agreement and the relevant Order or Orders.  Each User will be assigned a unique User identification name and password for access to and use of the Services (“User ID”).  User IDs may not be shared or used by more than one User.  Customer is responsible for the security and confidentiality of User IDs, including any lost, misappropriated or misused User ID information.  In addition, Customer is responsible for all activities (whether lawful or unlawful) that occur under User IDs, and any transactions completed under User IDs will be deemed to have been lawfully completed by Customer or a User.  Customer shall: (a) have sole responsibility for the accuracy, quality, integrity, legality, reliability, and appropriateness of all Customer Data; (b) use commercially reasonable efforts to prevent unauthorized access to, or use of, the Software or Services, and promptly notify Phebi of any unauthorized access or use; and (c) comply with all applicable local, state, provincial and federal laws in using the Software or Services, including, without limitation, the Privacy Laws.  Customer acknowledges and agrees that any breach of this Agreement by its Users or any other employee, agent or contractor of Customer shall be deemed a breach of this Agreement by Customer.  Customer understands that Phebi supports only the then current vendor supported browser versions of Internet Explorer, Google Chrome and Mozilla Firefox.

3.3 Usage Restrictions.  Customer shall not:  (a) license, sublicense, sell, resell, rent, lease, transfer, assign, distribute, time share or otherwise commercially exploit or make the Services available to any third party, other than as contemplated by this Agreement; (b) send to Phebi or cause or permit to be sent to Phebi or store on any computer that is used to access the Services any infringing, obscene, threatening, libelous, or otherwise unlawful or tortuous material, including material harmful to children or that violates third party privacy rights; (c) send to Phebi (or cause to be sent to Phebi) or store on any computer or mobile device that is used to access the Software or Services material containing software viruses, worms, Trojan horses or other harmful computer code, files, scripts, agents or programs; (d) interfere with or disrupt the integrity or performance of the Software or Services or the data contained therein; (e) attempt to gain unauthorized access to the Software or Services or their related Phebi networks; or (f) conceal or remove any title, trademark, copyright, proprietary or restricted rights notice contained in the Phebi Software or the Services associated therewith.  Customer shall not (i) download, reproduce, copy, alter, adapt, modify, improve, enhance, translate, or create derivative works based on the Software, Services or Phebi Technology; or (ii) disassemble, reverse engineer, decompile, or otherwise attempt to reveal the code, trade secrets or know-how underlying the Software, Services or Phebi Technology for any reason, or access the Software, Services or Phebi Technology in order to:  (A) build a competitive product or service, (B) build a product or service using similar features, functions or graphics of the Software or Services, or (C) copy any features, functions or graphics of the Software or Services.

4. Non-Phebi Suppliers

4.1 Use of Non-Phebi Products and Services.  Phebi or third parties may make third-party products or services available to Customer, including, but not limited to, Non-Phebi Applications, implementation services and other consulting services.  Customer’s purchase and use of those products or services, and any exchange of data between Customer and any third-party provider or third-party product or service, unless that third-party provider’s product is one with which Phebi has a current, Phebi-approved integration, is solely between Customer and the third-party supplier.  Phebi does not warrant or support Non-Phebi Applications or other third-party products or services unless expressly provided otherwise in an Order.

4.2 Non-Phebi Applications and Customer Data.  If Customer chooses to use a Non-Phebi Application with the Software or Services, Customer hereby grants Phebi permission to allow the Non-Phebi Application and its supplier to access Customer Data as required for the interoperation of that Non-Phebi Application with the Software or Services.  Phebi is not responsible for any disclosure, modification or deletion of Customer Data resulting from access by any Non-Phebi Application or its supplier.

4.3 Integration with Non-Phebi Applications.  The Software and Services may contain features designed to interoperate with Non-Phebi Applications.  To use those features, Customer may be required to obtain access to Non-Phebi Applications from their suppliers and may be required to grant Phebi access to Customer’s account(s) on the Non-Phebi Applications.  Phebi cannot guarantee the continued availability of those features and may cease providing them without entitling Customer to any refund, credit, or other compensation.

5. Fees and Payment

5.1 Invoicing and Payment.  Phebi will issue invoices for all fees payable under this Agreement, and Customer agrees to pay those fees in accordance with the fee and invoicing schedule set forth in each Order.  Unless otherwise stated in the applicable Order all invoiced fees are due within 30 days of the invoice date.

5.2 Overdue Payments.  Any payment not received from Customer by the due date will accrue late charges at the rate of 1.5% per month of the outstanding balance, or the maximum rate permitted by law, whichever is lower, from the due date until the date paid.

5.3 Suspension of Service.  If Customer’s account is 30 days or more overdue (except with respect to charges then under reasonable and good faith dispute), in addition to any of its other rights or remedies, Phebi reserves the right to suspend Customer’s access to the Services and the provision of Support Services until such amounts are paid in full.

5.4 Taxes.  Unless otherwise stated, Phebi’s fees do not include any local, state, federal or foreign taxes, levies or duties of any nature (“Taxes”).  Customer is responsible for paying all Taxes related to Customer’s access to and/or use of the Services or arising out of or in connection with this Agreement.  If Phebi has the legal obligation to pay or collect Taxes for which Customer is responsible under this section, the appropriate amount shall be invoiced to and paid by Customer unless Customer provides Phebi with a valid tax exemption certificate authorized by the appropriate taxing authority.

6. Proprietary Rights

6.1Reservation of Rights. Customer acknowledges that in providing the Software and Services, Phebi utilizes (a) the Phebi name, the Phebi logo, the Phebi domain name, the product and service names associated with the Software and Services, and other trademarks and service marks; (b) certain audio and visual information, documents, software and other works of authorship; and (c) Phebi Technology and that Phebi owns or licenses patent rights, trademark rights, copyrights and other intellectual property rights to the Phebi Technology (collectively, “Phebi IP Rights”).  Other than as expressly set forth in this Agreement, Phebi does not grant or otherwise convey any license or other right in or to the Phebi Technology or Phebi IP Rights to Customer.  Phebi expressly reserves all rights to the Phebi Technology not expressly granted under this Agreement.  There are no implied licenses under this Agreement. 

6.2 Phebi Data.  As between Phebi and Customer, all Phebi Data is owned exclusively by Phebi and shall be considered Confidential Information of Phebi subject to the terms of this Agreement.

6.3 Customer Data.  As between Phebi and Customer, all Customer Data is owned exclusively by Customer and shall be considered Confidential Information of Customer subject to the terms of this Agreement.  However, Customer hereby grants to Phebi a perpetual, royalty-free, fully paid-up, worldwide right and license to access, use, copy, reproduce, display, alter and otherwise modify the Customer Data in order to provide the Services and fulfill its obligations (and exercise its rights) under this Agreement. Customer’s license to the Software and Services includes Customer’s right to access Customer Data which resides in the Software and Services solely for Customer’s business purposes. Customer also has the right to access Customer’s Data to retrieve, update, report on, and otherwise use Customer’s Data. Phebi will not prohibit, block or charge a fee for such access or use, nor will Phebi deploy any type of virus, software trap, or other malicious, disruption or corrupting program code or instructions within the licensed software that would purposely prevent Customer from accessing or using Customer Data. Phebi agrees to cooperate with Customer by providing any documentation for all interfaces and application programming interfaces and any technical support required by Customer to access and use its Customer Data.

6.4 De-Identified Data.  In order to improve the Software and Services, and for other purposes, Phebi collects and compiles De-Identified Data.  Phebi may use De-Identified Data for purposes of aggregating data and preparing reports and statistics regarding use and functioning of the Software and Services by Phebi’s various clients, improving any Phebi Technology, creating new Phebi solutions to serve industry needs, and conducting research and analysis related to the Software and Services, which may be distributed to its customers and potential customers, so long as Phebi maintains the confidentiality of the Customer Data, including any Protected Health Information, and Customer’s identity in accordance with this Agreement.  Phebi will use the Customer Data, including the De-Identified Data Set, in accordance with all applicable laws, including 45 CFR §164.514.   

6.5 License to Use Feedback.  Customer hereby grants to Phebi a worldwide, perpetual, irrevocable, royalty-free, fully-paid up license to use and incorporate into the Software, Services and Phebi Technology any suggestion, enhancement request, recommendation, form design, correction or other feedback provided by Customer or Users.

7. Confidentiality

7.1 Definition of Confidential Information.  As used herein, “Confidential Information” means all confidential and proprietary information of a party (“Disclosing Party”) disclosed to the other party (“Receiving Party”), whether orally or in writing, that is designated as confidential or that reasonably should be understood by Receiving Party to be confidential given the nature of the information and the circumstances of disclosure, including the terms and conditions of this Agreement (including pricing and other terms reflected in all Orders), the Phebi Data; De-Identified Data; the Software, Services and any other Phebi Technology; business and marketing plans; technology and technical information; product designs; business and analytical processes; and pricing models.  Confidential Information shall not include any information that:  (a) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party; (b) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party; (c) was independently developed by the Receiving Party without breach of any obligation owed to the Disclosing Party; or (d) is received from a third party without breach of any obligation owed to the Disclosing Party.  The burden of proving these exceptions to the confidentiality and use provisions of this Agreement resides with the Receiving Party.

7.2 Protection and Non-Disclosure.  Receiving Party agrees to protect the confidentiality of Disclosing Party’s Confidential Information in the same manner that Receiving Party protects the confidentiality of its own proprietary and confidential information, but in no event shall Receiving Party exercise less than reasonable care in protecting Disclosing Party’s Confidential Information.  Receiving Party shall: (a) not disclose or use any of the Disclosing Party’s Confidential Information for any purpose outside the scope of this Agreement; (b) unless otherwise permitted by Disclosing Party in writing, limit access to the Disclosing Party’s Confidential Information to those of Receiving Party’s employees, contractors and agents who need access for purposes consistent with this Agreement and who have signed confidentiality agreements with the Receiving Party containing protections not materially less protective of the Confidential Information than those herein.

7.3 Compelled Disclosure.  If Receiving Party is compelled by law to disclose any portion of Disclosing Party’s Confidential Information, it shall provide Disclosing Party with prior notice of the compelled disclosure (to the extent legally permitted) and reasonable assistance, at Disclosing Party’s cost, if the Disclosing Party contests the disclosure.

7.4 Remedies.  If Receiving Party discloses or uses (or threatens to disclose or use) any of Disclosing Party’s Confidential Information in breach of this Section 7, Disclosing Party shall have the right, in addition to any other remedies available to it, to seek injunctive relief to enjoin such acts without the requirement of a bond or other assurance, it being specifically acknowledged by the parties that any other available remedies are inadequate.

7.5 Customer List.  Phebi will have the right to include Customer on Phebi’s list of customers for inclusion on Phebi’s website, sales collateral and other marketing materials.

7.6 Privacy Laws.  Phebi and Customer each agree to comply with the applicable requirements of applicable Privacy Laws.  If required by law, Phebi and Customer further agree to comply with the provisions of the agreed upon and separately executed Business Associate Addendum, which shall constitute an integral part of this Agreement and is hereby incorporated into this Agreement.  In the event of conflict between the Business Associate Addendum and any provision of this Agreement, the terms of the Business Associate Addendum shall control.

8. Warranties and Disclaimers

8.1 Phebi Warranty.  To the extent the Software and Services are agreed in an Order, Phebi warrants that it will provide the (a) Software and Services materially in accordance with the Documentation, including Support Services in accordance with Section 2.4 of this Agreement and (b) Professional Services in a professional manner that materially complies with the requirements set forth in the applicable Statement of Work. If the Software or any Services provided to Customer are not performed in accordance with the foregoing warranties (as applicable), Customer must promptly provide written notice to Phebi describing the deficiency.  For any breach of the foregoing warranties, Phebi shall, as Customer’s sole and exclusive remedy and Phebi’s entire liability, re-perform the deficient Services.  The foregoing warranties do not apply to the extent that the Software, Services or Phebi Technology have been modified by persons other than Phebi employees or persons authorized by Phebi.

8.2 Customer Warranty. Customer warrants that (a) Customer is authorized, and has the right and license, to provide the Non-Phebi Applications and Customer Data to Phebi in accordance with the terms of this Agreement; (b) in connection with Phebi’s provision of Software and Services under this Agreement, Phebi is authorized to access and use such Customer Data and Non-Phebi Applications consistent with the terms of this Agreement.

8.3 Disclaimer.  TO THE EXTENT PERMITTED UNDER APPLICABLE LAW, THE WARRANTIES SET FORTH IN THIS SECTION 8 ARE EXCLUSIVE AND THERE ARE NO OTHER WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, AND PHEBI HEREBY SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING ANY WARRANTY OF NON-INFRINGEMENT, WARRANTIES OF MERCHANTABILITY, SATISFACTORY QUALITY OR FITNESS FOR A PARTICULAR PURPOSE.  PHEBI DOES NOT WARRANT THAT (A) THE SOFTWARE OR SERVICES WILL BE ERROR-FREE, UNINTERRUPTED, SECURE OR VIRUS-FREE OR THAT PHEBI WILL CORRECT ALL ERRORS, (B) THE SOFTWARE OR SERVICES WILL OPERATE IN COMBINATION WITH CUSTOMER DATA OR NON-PHEBI APPLICATIONS, OR WITH ANY OTHER HARDWARE, SOFTWARE, SYSTEMS OR DATA NOT PROVIDED OR APPROVED BY PHEBI, OR (C) THE SOFTWARE OR SERVICES WILL MEET CUSTOMER REQUIREMENTS, SPECIFICATIONS OR EXPECTATIONS. CUSTOMER ACKNOWLEDGES THAT PHEBI DOES NOT CONTROL THE TRANSFER OF DATA OVER COMMUNICATIONS FACILITIES, INCLUDING THE INTERNET, AND THAT THE SERVICES MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF SUCH COMMUNICATIONS FACILITIES.  PHEBI IS NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES, OR OTHER DAMAGE RESULTING FROM THOSE PROBLEMS. PHEBI IS NOT RESPONSIBLE FOR ANY ISSUES RELATED TO THE PERFORMANCE, OPERATION OR SECURITY OF THE SOFTWAERE OR SERVICES THAT ARISE FROM CUSTOMER DATA NON-PHEBI APPLICATIONS OR THIRD PARTY CONTENT. PHEBI IS NOT RESPONSIBLE FOR ANY DECISIONS MADE BY CUSTOMER OR ANY OF CUSTOMER’S CUSTOMERS BASED ON THE RESULTS OF ANALYSIS DONE VIA THE SOFTWARE OR SERVICES.

9. Indemnification

9.1 Indemnification by Phebi. Phebi shall defend, indemnify and hold Customer harmless against any loss or damage (including reasonable attorneys’ fees) incurred in connection with any claim, demand, suit, or proceeding made or brought against Customer by a third party (a) alleging that Customer’s use of the Software Services (including the Phebi Technology) as contemplated hereunder infringes the intellectual property rights of a third party, or (b) relating to the gross negligence or willful misconduct of Phebi.  Phebi’s obligation shall not extend to a claim based on any alleged infringement arising from any:  (i) third party component of the Software, Services, or Phebi Technology, (ii) additions, changes or modifications to the Software or Services by or on behalf of Customer, (iii) incorporation of the Software or Services (or any component thereof) into, or combination of the Software or Services (or component thereof) with, any other product, technology, service or process, or (iv) use of the Software or Services (or any component thereof) other than as permitted by this Agreement.  Should the Software or Services (or any component thereof) become, or in Phebi’s opinion be likely to become, the subject of any such suit or action for infringement or if Customer is enjoined from using the Software or Services, Phebi shall, at Phebi’s option and expense, procure for Customer the right to continue using the Software or Services (or component thereof), or replace or modify such Software or Services (or component thereof), so that it becomes non-infringing.  If in Phebi’s reasonable judgment, such procurement, replacement or modification is not commercially feasible, Phebi may terminate this Agreement without further liability or obligation to Customer.  If Phebi terminates this Agreement under this Section 9.1, Phebi will promptly refund to Customer any prepaid fees for unused Software or Services.  This Section 9.1 states Phebi’s sole and entire liability and Customer’s sole and exclusive remedy in respect of infringement claims relating to the Software or Services.

9.2 Indemnification by Customer.  Customer shall defend, indemnify and hold Phebi harmless against any loss or damage (including reasonable attorneys’ fees) incurred in connection with any claim made or brought against Phebi by a third party arising out of or relating to: (a) Customer’s or its Users’ use of the Software or Services; (b) any violation of applicable law by Customer or its Users; (c) Customer’s or its Users’ gross negligence or willful misconduct; or (d) allegations that the Customer Data infringes the intellectual property rights of, or otherwise harmed, a third party.

9.3 Indemnification Procedure.  In the event either party seeks indemnification under this Agreement (the “Indemnified Party”) from the other party (the “Indemnifying Party”), the Indemnified Party shall: (a) promptly give written notice of the claim to the Indemnifying Party; (b) grant the Indemnifying Party sole control of the defense and settlement of the claim (provided that the Indemnifying Party may not settle any claim unless the settlement unconditionally releases the Indemnified Party of all liability or with the consent of the Indemnified Party); and (c) provides to the Indemnifying Party, at the Indemnifying Party’s cost, all reasonable assistance.

10. Limitation of Liability

TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL THE AGGREGATE LIABILITY OF EITHER PARTY (TOGETHER WITH ALL OF ITS AFFILIATES) ARISING OUT OF OR RELATED TO THIS AGREEMENT EXCEED AN AMOUNT EQUAL TO THE FEES PAID BY CUSTOMER TO PHEBI ANY THEN CURRENT ORDERS OR SOWS HEREUNDER DURING THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO LIABILITY.  TOTHE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, NEITHER PARTY IS LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES (INCLUDING, BUT NOT LIMITED TO DAMAGES FOR LOSS OF BUSINESS, LOSS OF DATA, LOSS OF PROFITS OR THE LIKE) ARISING UNDER THIS AGREEMENT, OR RELATED TO THE SERVICES, WHETHER BASED ON BREACH OF CONTRACT, BREACH OF WARRANTY, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR OTHERWISE, EVEN IF A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND EVEN IF A REMEDY SET FORTH HEREIN IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE.  THE LIMITATIONS OF DAMAGES SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN PHEBI AND CUSTOMER.  However, the limitations and exclusions in this Section 10 do not apply to either Party’s indemnification or confidentiality obligations, or to Customer’s obligations to pay fees and expenses when due and payable.

11. Term and Termination

11.1 Term of Agreement.  The term of this Agreement commences on the Effective Date and will continue until all Orders have expired or been terminated (the “Term”).  This Agreement shall terminate automatically 90 days after the completion of the delivery of all Services under all Orders, including as a result of the non-renewal of an Order.

11.2 Phebi Termination Right.  If Customer uses the Software or Services in a manner not permitted by this Agreement or in violation of any applicable law, then Phebi shall have the right to immediately terminate this Agreement by written notice to Customer, and pursue any other rights and remedies allowed at law or in equity. 

11.3Mutual Termination Right.  Either party may terminate this Agreement for cause if (a) the other party breaches this Agreement and the breach is not cured within 90 days after receipt of written notice of the breach, or (b) if the other party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors.

11.4 Effect of Termination or Expiration. If this Agreement is terminated by either Party in accordance with Section 11.3, Phebi will refund Customer any prepaid fees covering the remainder of the Term after the effective date of termination.  If this Agreement is terminated by Phebi in accordance with Section 11.2 or Section 11.3, Customer shall pay any fees accrued, payable, or earned to Phebi for the remainder of the Term for all Orders or SOWs.  In no event will termination relieve Customer of its obligation to pay any fees payable to Phebi for the period prior to the effective date of termination.  Upon termination or expirationof this Agreement, all access rights granted by Phebi in this Agreement will immediately terminate, and Phebi will promptly cease providing the Software and Services.

11.5 Customer Data Portability and Deletion.  Phebi will maintain Customer Data for at least 30 days following the end of the Term (“Retention Period”).  Upon Customer’s request, if made during the Retention Period, Phebi will make the Customer Data available to Customer in a mutually agreed upon format.  Following the Retention Period, Phebi will have no obligation to maintain or provide any Customer Data, and Phebi reserves the right to delete or destroy all copies of Customer Data in Phebi’s possession, unless legally prohibited.

11.6Surviving Provisions.  The following provisions shall survive the termination or expiration of this Agreement for any reason and shall remain in effect after any such termination or expiration: Sections 1, 5 (to the extent any fees remain payable), 6, 7, 8.3, 9, 10, 11.4, 11.5, 11.6, and 12.

12. General Provisions

12.1 Nonexclusive.  Nothing expressed or implied in this Agreement shall be deemed to restrict Phebi’s right or ability, whether during the term of this Agreement or at any time thereafter, to: (a) directly or indirectly sell, license, use, promote, market, exploit, develop or otherwise deal in any product or service of any kind in any location; or (b) enter into any business arrangement of whatever nature or description with any entity in any location.

12.2Relationship of the Parties.  This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary, or employment relationship between the parties.   Nothing herein shall cause either party to be deemed an advisor or fiduciary of the other party.  Neither party shall take any action or permit any action to be taken on its behalf which purports to be done in the name of or on behalf of the other party and shall have no power or authority to bind the other party or to assume or create any obligation or responsibility, express or implied, on the other party’s behalf or in its name, nor shall such party represent to any one that it has such power or authority.

12.3Subcontractors.  Phebi reserves the right to perform all or any of its obligations under this Agreement through subcontractors.  Phebi will be responsible to Customer for the work performed by subcontractors to the same extent that Phebi would be if it were Phebi’s own work.  All other provisions of this Agreement shall apply to the work of the subcontractor in the same manner and to the same extent as if the work were performed by Phebi hereunder.  Phebi may provide the subcontractor with a copy of those sections of this Agreement with which the subcontractor must comply.  If the subcontractor needs access to Customer’s Confidential Information to perform the subcontracted services, Phebi may provide such access if the subcontractor first agrees in writing to comply with the confidentiality provisions of this Agreement applicable to such Confidential Information.

12.4 No Benefit to Others.  The representations, warranties, covenants, and agreements contained in this Agreement are for the sole benefit of the parties and their respective successors and permitted assigns, and they are not to be construed as conferring any rights on any other persons.

12.5 Notices. All notices under this Agreement shall be in writing and shall be delivered to the addresses provided by the parties on the signature page of this Agreement.  Notice shall be deemed to have been given: (a) upon personal delivery; or (b) on the second business day after mailing provided the sender obtains a delivery receipt. 

12.6 Waiver and Cumulative Remedies.  No failure or delay by either party in exercising any right under this Agreement shall constitute a waiver of that right.  Other than as expressly stated herein, the remedies provided herein are in addition to, and not exclusive of, any other remedies of a party at law or in equity.

12.7 Severability.  If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law or otherwise void, the provision shall be modified by the court and interpreted so as best to accomplish the objectives of the original provision to the fullest extent permitted by law, and the remaining provisions of this Agreement shall remain in effect.

12.8 Assignment.  Neither party may assign any of its rights or obligations hereunder, whether by operation of law or otherwise, without the prior express written consent of the other party.  Notwithstanding the foregoing either party may assign this Agreement together with all rights and obligations hereunder, without consent of the other party, in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets not involving a direct competitor of the other party.  Any attempt by a party to assign its rights or obligations under this Agreement in breach of this section shall be void and of no effect and shall entitle the non-assigning party to terminate this Agreement for cause.  Subject to the foregoing, this Agreement shall bind and inure to the benefit of the parties, their respective successors and permitted assigns.

12.9 Governing Law.  This Agreement shall be governed exclusively by, and construed exclusively in accordance with the laws of England and Wales without regard to any conflicts of law provisions.

12.10 Venue.  The state and federal courts located in England and Wales shall have jurisdiction to adjudicate any dispute arising out of or relating to this Agreement.  Each party hereby consents to the jurisdiction of such courts and waives any right it may otherwise have to challenge the appropriateness of such forums, whether on the basis of the doctrine of forum non convenes or otherwise.

12.11 Export Control Laws.  Each party shall comply with all United States and foreign import and/or export control laws or regulations applicable to its performance under this Agreement.  Customer acknowledges and agrees that the Phebi Software is subject to restrictions and controls imposed by the Export Administration Act and the Export Administration Regulations (the “Acts”).  Customer agrees and certifies that the Phebi Software is not being and will not be downloaded or otherwise exported or re-exported, directly or indirectly outside the United States and will not be used for any purpose prohibited by the Acts.

12.12 Force Majeure.  Except for obligations to make payment, neither party shall be liable for any failure to perform or delay in performing any obligation under this Agreement if such failure or delay is due to fire, flood, earthquake, strike, war (declared or undeclared), embargo, blockade, legal prohibition, governmental action, riot, insurrection, damage, destruction, component or materials shortage or any other cause beyond the reasonable control of such party.

12.13 Counterparts.  This Agreement may be executed in counterparts, which taken together shall form one legal instrument.

12.14 Entire Agreement.  This Agreement, including all Orders executed hereunder, constitute the entire agreement between the parties as to its subject matter, and supersede all previous and contemporaneous agreements, proposals or representations, written or oral, concerning the subject matter of this Agreement.  No modification, amendment, or waiver of any provision of this Agreement shall be effective unless in writing and signed by both parties.  In the event of any conflict between the provisions in this Agreement and any Order executed hereunder, the terms of the Order shall prevail to the extent of any inconsistency.  To the extent this Agreement conflicts with any End User License Agreement agreed to by any User, this Agreement shall prevail to the extent of any such inconsistency.

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