WHEREAS, Provider provides software to manage and grow a dental practice; and
WHEREAS, Resale Partner provides consulting services that support dental services (“Resale Partner Services”) and desires to provide access to the Services (as defined below) for its clients (the “Resale Partner Clients”) in connection with its provision of the Resale Partner Services, and Provider desires to provide Resale Partner and the Resale Partner Clients access to the Services, subject to the terms and conditions of this Agreement.
NOW, THEREFORE, in consideration of the mutual covenants, terms, and conditions set forth herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties agree as follows:
(a) “Aggregated Statistics” means data and information related to the Authorized Users’ use of the Services that is used by Provider in an aggregate and anonymized manner, including to compile statistical and performance information related to the provision and operation of the Services.
(b) “Authorized Users” means the Resale Partner Clients (i) who are authorized by Resale Partner to access and use the Services in connection with the Resale Partner Services under the rights granted to Resale Partner pursuant to this Agreement and (B) for whom access to the Services has been separately licensed from Provider hereunder but paid for by Resale Partner hereunder.
(c) “Resale Partner 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 Resale Partner or an Authorized User through the Services.
(d) “Documentation” means Provider’s user manuals, handbooks, and guides relating to the Services provided by Provider to Resale Partner either electronically or in hard copy form and the Terms of Service relating to the Services.
(e) “Provider IP” means all the Services, the Documentation, and any and all intellectual property provided to or accessed by any Authorized User in connection with the foregoing. Provider IP includes Aggregated Statistics, but does not include Resale Partner Data.
(f) “Services” means the software-as-a-service offering described in Exhibit A, Section 1.
(g) “Terms of Service” means all terms and conditions of the Dental Intelligence Terms of Service, last updated as of August 19, 2022, as the same may be updated in the ordinary course of Provider’s business from time to time after the Effective Date, available at https://www.dentalintel.com/terms.
(a) Provision of Access. Subject to and conditioned on Resale Partner’s payment of Fees and compliance with all other terms and conditions of this Agreement, Provider hereby grants Resale Partner a non-exclusive, non-transferable (except in compliance with Section 13(g)) right to: (i) offer licenses for the Services to the Resale Partner Clients in connection with its provision of the Resale Partner Services to Resale Partner Clients; (ii) distribute access to the Services to Authorized Users solely for use under the Terms of Service; (iii) use, copy, reproduce, integrate and distribute the Documentation, in whole or in part, solely in support of the use of the Services by Authorized Users; and (iv) access and use the Services itself in connection with the provision of the Resale Partner Services as set forth in this Agreement. Provider shall provide to Resale Partner the necessary passwords and network links or connections to allow the Authorized Users to access the Services and to allow Resale Partner to access the accounts of the Resale Partner Clients.
(b) Documentation License. Subject to the terms and conditions contained in this Agreement, Provider hereby grants to Resale Partner a non-exclusive, non-sublicensable, non-transferable (except in compliance with Section 13(g)) license to use the Documentation during the Term solely for each Authorized User’s internal business purposes in connection with its use of the Services as set forth herein.
(c) Use Restrictions. Neither Resale Partner nor any Authorized User shall use the Services for any purposes beyond the scope of the access granted in this Agreement. Resale Partner shall not at any time, directly or indirectly, and shall not permit any Resale Partner Client 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 to any third party; (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.
(d) Reservation of Rights. Provider reserves all rights not expressly granted to Resale Partner or the Authorized Users 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 any Authorized User or any third party any intellectual property rights or other right, title, or interest in or to the Provider IP.
(e) Suspension. Notwithstanding anything to the contrary in this Agreement, Provider may temporarily suspend any Authorized User’s access to any portion or all of the Services if: (i) Provider reasonably determines that (A) there is a threat or attack on any of the Provider IP; (B) any Authorized User’s use of the Provider IP disrupts or poses a security risk to the Provider IP or to any other customer or vendor of Provider; (C) any Authorized User is using the Provider IP for fraudulent or illegal activities; (D) subject to applicable law, Resale Partner 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) Provider’s provision of the Services to any Authorized User is prohibited by applicable law; (ii) any vendor of Provider has suspended or terminated Provider’s access to or use of any third-party services or products required to enable any Authorized User to access the Services; or (iii) in accordance with Section 4(a) (any such suspension described in subclause (i), (ii), or (iii), a “Service Suspension”). Provider shall use commercially reasonable efforts to provide written notice of any Service Suspension to Resale Partner (if Resale Partner is not the Authorized User whose use of the Services has been suspended) and to provide updates regarding resumption of access to the Services following any Service Suspension. Provider 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. Provider will have no liability for any damage, liabilities, losses (including any loss of data or profits), or any other consequences that any Authorized User may incur as a result of a Service Suspension.
(f) Aggregated Statistics. Notwithstanding anything to the contrary in this Agreement, Provider may monitor any Authorized User’s use of the Services and collect and compile Aggregated Statistics. As among Provider, Resale Partner and the Authorized Users, all rights, title, and interest in Aggregated Statistics, and all intellectual property rights therein, belong to and are retained solely by Provider. Resale Partner acknowledges that Provider may compile Aggregated Statistics based on Resale Partner Data input into the Services. Resale Partner agrees that Provider 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 Resale Partner or Resale Partner’s Confidential Information.
(a) General. Resale Partner is responsible and liable for all uses of the Services and Documentation by Resale Partner or resulting from access provided by Resale Partner to the Authorized Users, directly or indirectly, whether such access or use is permitted by or in violation of this Agreement. Without limiting the generality of the foregoing, Resale Partner is responsible for all acts and omissions of all Authorized Users, and any act or omission by an Authorized User other than Resale Partner that would constitute a breach of this Agreement if taken by Resale Partner will be deemed a breach of this Agreement by Resale Partner. Resale Partner shall use reasonable efforts to make all other Authorized Users aware of this Agreement’s provisions as applicable to such Authorized User’s use of the Services, and shall cause such Authorized Users to comply with such provisions.
(b) Terms of Service. Resale Partner shall cause each Authorized User or any other persons or entities who utilize the Services in connection with the Resale Partner Services to read and agree to be bound by the Terms of Service. All terms and conditions of the Terms of Service are hereby incorporated by reference in this Agreement as if set forth in full.
(c) Moving a Dental Intelligence Direct Customer under a Partnership Agreement. There are two ways Resale Partner can take on a direct client of Dental Intelligence and move them under this Agreement:
Option 1: Resale Partner can assume all obligations of the client practice’s contract, including but not limited to: responsibility to pay the client practice’s fees according to its payment schedule and ensuring the notice of cancellation is executed within the period defined in Provider’s Terms and Conditions. Upon expiration, Resale Partner can contract for the client Practice under this Agreement.
Option 2: The client practice keeps the contract in force, including but not limited to: all responsibilities under the agreement and expressly including the client practice’s fees in accordance with its payment schedule and ensuring the notice of cancellation is executed within the period defined in Provider’s Terms and Conditions. Upon expiration, Resale Partner can then sign up the client practice under this Agreement.
(d) Snapshots. Snapshots are provided to our partners to close new business with prospective clients (a “Partner Snapshot”). A Partner Snapshot expires within 30 days of delivery of the Partner Snapshot to Resale Partner unless Resale Partner submits an extension request. If an extension request is not submitted, Dental Intelligence may contract with the prospective client directly with no further obligation to Resale Partner with respect to the applicable prospective client.
(a) Fees. Resale Partner shall pay Provider the fees (“Fees”) as set forth in Exhibit A, Section 2, without offset or deduction. Resale Partner shall make all payments hereunder in U.S. dollars on or before the due date set forth in Exhibit A. If Resale Partner fails to make any payment when due, without limiting Provider’s other rights and remedies: (i) Provider 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) Resale Partner shall reimburse Provider for all costs incurred by Provider 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, Provider may suspend Resale Partner’s and the Resale Partner Clients’ access to any portion or all of the Services until such amounts are paid in full.
(b) Taxes. All Fees and other amounts payable by Resale Partner under this Agreement are exclusive of taxes and similar assessments. Resale Partner 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 Resale Partner hereunder, other than any taxes imposed on Provider’s income.
(a) Provider IP. Resale Partner acknowledges that, as between Resale Partner and Provider, Provider owns all rights, title, and interest, including all intellectual property rights, in and to the Provider IP.
(b) Resale Partner Data. Provider acknowledges that, as between Provider and Resale Partner, Resale Partner or the Resale Partner Clients, as applicable, own all rights, title, and interest, including all intellectual property rights, in and to the Resale Partner Data. Resale Partner hereby grants to Provider a non-exclusive, royalty-free, worldwide license to reproduce, distribute, and otherwise use and display the Resale Partner Data and perform all acts with respect to the Resale Partner Data as may be necessary for Provider to provide the Services to Resale Partner, and a non-exclusive, perpetual, irrevocable, royalty-free, worldwide license to reproduce, distribute, modify, and otherwise use and display Resale Partner Data incorporated within the Aggregated Statistics.
(c) Feedback. If Resale Partner, any other Authorized User or any of their employees or contractors sends or transmits any communications or materials to Provider by mail, email, telephone, or otherwise, suggesting or recommending changes to the Provider IP, including without limitation, new features or functionality relating thereto, or any comments, questions, suggestions, or the like (“Feedback”), Provider is free to use such Feedback irrespective of any other obligation or limitation between the Parties governing such Feedback. Resale Partner hereby assigns to Provider on Resale Partner’s behalf, and on behalf of any other Authorized User and its employees, contractors and/or agents, all right, title, and interest in, and Provider 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 Provider is not required to use any Feedback.
(a) Neither Party nor their respective employees, officers, owners, or contractors, will at any time, during the Term or after termination of this Agreement, (i) retain or use for the benefit, purposes or account of itself or any other individual or entity; or (ii) disclose, divulge, reveal, communicate, share, transfer or provide access to any third party (other than such Party’s professional advisers who are bound by confidentiality obligations or otherwise in performance of such Party’s duties under this Agreement), any non-public, proprietary or confidential information, including without limitation any trade secrets, know-how, research and development, software, databases, inventions, processes, formulae, technology, designs and other intellectual property, information concerning finances, investments, profits, pricing, costs, products, services, vendors, customers, clients, partners, investors, personnel, compensation, recruiting, training, advertising, sales, marketing, promotions, government and regulatory activities and approvals concerning the past, current or future business, activities and operations of the other Party, its affiliated companies or subsidiaries and/or any third party that has disclosed or provided any of same to the Party on a confidential basis (“Confidential Information”) without the prior written authorization of the Party that originally disclosed the Confidential Information.
(b) For avoidance of doubt, and without limiting the foregoing, all information related to pricing of the Services, including but not limited to, price lists, price quotes, price discounts, invoices, or the actual price paid by any party for the Services hereunder, shall constitute Confidential Information.
(c) Confidential Information shall not include any information that is (i) generally known to the industry or the public other than as a result of the receiving Party’s breach of this Section 7; (ii) made legitimately available to such Party by a third party without breach of any confidentiality obligation of which such Party has knowledge; or (iii) required by law to be disclosed; provided that with respect to this clause (iii) such Party shall give prompt written notice to the disclosing Party of such requirement, disclose no more information than is so required, and reasonably cooperate with any attempts by the disclosing Party to obtain a protective order or similar treatment.
(d) Upon termination of this Agreement, the Parties shall (i) cease and not thereafter commence use of any Confidential Information or intellectual property (including without limitation, any patent, invention, copyright, trade secret, trademark, trade name, logo, domain name or other source indicator) owned or used by the other Party and/or its subsidiaries; and (ii) immediately destroy, delete, or return to the other Party, at such Party’s option, all originals and copies in any form or medium (including memoranda, books, papers, plans, computer files, letters and other data) in the Party’s possession or control (including any of the foregoing stored or located in the Party’s office, home, laptop or other computer, whether or not the Party’s property) that contain Confidential Information, except that a Party may retain only those portions of any personal notes, notebooks and diaries that do not contain any Confidential Information.
(a) Resale Partner acknowledges and recognizes the highly competitive nature of the Services, and the commercially sensitive information Resale Partner has access to as a result of this Agreement. As a result, during the Term of this Agreement, and for a period of one (1) year following the date this Agreement is terminated, or any such longer period as may be agreed to between Resale Partner and Provider (the “Restricted Period”), Resale Partner will not directly or indirectly:
(i) Develop or operate any service that is similar to and competes with the Services anywhere in North America, which prohibition includes, for the avoidance of doubt, being employed with or by, or rendering any services to, any individual or entity that provides a product that competes with the Services; or
(ii) Own or acquire a direct or indirect financial interest in, or otherwise become actively involved with, any individual or entity that is engaged in providing services that are similar to and compete with the Services, directly or indirectly, as an individual, partner, shareholder, officer, director, principal, agent, trustee or consultant. However, Resale Partner may, directly or indirectly own, solely as an investment, securities of any entity engaged in providing services that are similar to and compete with the Services, unless Resale Partner is a controlling person of, or a member of a group which controls the entity or owns five percent (5%) or more of any class of securities of such entity. Notwithstanding the foregoing, nothing in this Section 8(a) shall prohibit Resale Partner from purchasing or owning less than five percent (5%) of the publicly traded securities of any entity, provided that such ownership represents a passive investment, and that Resale Partner is not a controlling person of, or a member of a group that controls, such entity.
For avoidance of doubt, this Agreement is not exclusive as between Provider and Resale Partner, and Resale Partner may use another provider of dental service analytics that provides services that compete with the Services during the Term or the Restricted Period, provided that Resale Partner complies with all requirements of this Agreement.
(b) During the Restricted Period, Resale Partner shall not encourage, cause or influence, by direct solicitation or any other direct or indirect means, any individual or entity that is a client of Provider at any time during the Term of this Agreement, including any end user of the Services, to transfer or otherwise divert away from Provider all, or any portion, of the services performed by Provider for that particular client. For avoidance of doubt, and without limiting the generality of the preceding sentence, during the Restricted Period, Resale Partner shall not and shall cause any company affiliated with Resale Partner to not solicit or encourage any client of Provider to cease to receive the Services.
(c) During the Restricted Period, Provider shall not encourage, cause or influence, by direct solicitation or any other direct or indirect means, any individual or entity that is a Resale Partner Client at any time during the term of this Agreement, including any end user of the Services, to transfer or otherwise divert away from Resale Partner all, or any portion of, any services provided by Resale Partner that do not support, or relate to, the Services.
(d) During the Restricted Period, neither Party shall directly or indirectly influence or attempt to influence any employee, sales representative, contractor or agent of the other Party to terminate his/her employment or other involvement with the other Party or to work for or on behalf of any competitor or potential competitor of the other Party, including without limitation, the Party or any other entity controlled or organized or to be controlled or organized by the Party or in which the Party is or will become an officer, a director or agent.
(e) Resale Partner acknowledges that Provider would not have any adequate remedy at law for the breach or threatened breach of any one or more of the covenants set forth in this Section 8 and agrees that in the event of any such breach or threatened breach, Provider may in addition to the other remedies which may be available to it may file a suit in equity to enjoin Resale Partner from the breach or threatened breach of such covenants. In addition to any other remedy that may be available to Provider for a violation of this Agreement, Resale Partner and Provider agree that if Resale Partner violates the terms of Section 8(b), Provider shall have the option to require that Resale Partner pay liquidated damages to Provider equal to two (2) times the gross amount billed to the diverted client by Provider during the twelve (12) month period prior to the client taking its business away from Provider. In addition to any other remedy that may be available to Resale Partner for a violation of this Agreement, Resale Partner and Provider agree that if Provider violates the terms of Section 8(c), Resale Partner shall have the option to require that Provider pay liquidated damages to Resale Partner equal to two (2) times the gross amount billed to the diverted client by Resale Partner during the twelve (12) month period prior to the client taking its business away from Resale Partner.
10. INDEMNIFICATION.
(a) Provider Indemnification.
(i) Provider shall indemnify, defend, and hold harmless Resale Partner and any other Authorized User from and against any and all losses, damages, liabilities, costs (including reasonable attorneys’ fees) (“Losses”) incurred by Resale Partner or such other Authorized User 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 U.S. intellectual property rights, provided that Resale Partner and/or Authorized User promptly notifies Provider in writing of the claim, cooperates with Provider, and allows Provider sole authority to control the defense and settlement of such claim.
(ii) If such a claim is made or appears possible, Resale Partner agrees to permit Provider, at Provider’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 Resale Partner to continue use. If Provider determines that neither alternative is reasonably available, Provider may terminate this Agreement, in its entirety or with respect to the affected component or part, effective immediately on written notice to Resale Partner.
(iii) This Section 10(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 Provider or authorized by Provider in writing; (B) modifications to the Services not made by Provider; or (C) Resale Partner Data.
(b) Resale Partner Indemnification. Resale Partner shall indemnify, hold harmless, and, at Provider’s option, defend Provider from and against any Losses resulting from any Third-Party Claim that the Resale Partner Data, or any use of the Resale Partner Data in accordance with this Agreement, infringes or misappropriates such third party’s U.S. intellectual property rights and any Third-Party Claims based on Resale Partner’s or any Authorized User’s (i) compliance with applicable laws; (ii) negligence or willful misconduct; (iii) use of the Services in a manner not authorized by this Agreement; (iv) use of the Services in combination with data, software, hardware, equipment or technology not provided by Provider or authorized by Provider in writing; or (v) modifications to the Services not made by Provider, provided that Resale Partner may not settle any Third-Party Claim against Provider unless Provider consents to such settlement, and further provided that Provider 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.
(c) Sole Remedy. THIS SECTION 10 SETS FORTH RESALE PARTNER’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.
(a) Term.
(i) Initial Term. The initial term of this Agreement begins on the Effective Date and, unless terminated earlier pursuant to this Agreement’s express provisions, will continue in effect until one (1) year from such date (the “Initial Term”).
(ii) Automatic Renewal. The term of this Agreement shall automatically renew for a subsequent one-year period (each, a “Renewal Term”) provided Resale Partner does not give Provider written notice of its intention not to renew at least sixty (60) days before the expiration of the Initial Term or a Renewal Term. Each Renewal Term, Resale Partner agrees, your Subscription Service Fees will be charged at our then-current partner tier rates. This rate applies to all current and new license activations.
(b) Termination. In addition to any other express termination right set forth in this Agreement:
(i) Provider may terminate this Agreement, effective immediately on written notice to Resale Partner, if Resale Partner: (A) fails to pay any amount when due hereunder, and such failure continues more than five (5) days after Provider’s delivery of written notice thereof; or (B) breaches any of its obligations under Sections 2(c), 6, 7 or 8;
(ii) 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 thirty (30) days after the non-breaching Party provides the breaching Party with written notice of such breach; and
(iii) 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.
(c) Effect of Expiration or Termination. Upon expiration or earlier termination of this Agreement, each Authorized User shall immediately discontinue use of the Provider IP and, without limiting Resale Partner’s obligations under Section 5, Resale Partner shall delete, destroy, or return all copies of the Provider IP and certify in writing to the Provider that the Provider IP has been deleted or destroyed. No expiration or termination will affect Resale Partner’s obligation to pay all Fees that may have become due before such expiration or termination, or entitle Resale Partner to any refund.
(d) Survival. This Section 12(d) and Sections 1, 4, 6, 7, 8, 10(b), 11, and 13 shall survive any termination or expiration of this Agreement. No other provisions of this Agreement survive the expiration or earlier termination of this Agreement.
(a) Entire Agreement. This Agreement, together with any other documents incorporated herein by reference and all related Exhibits, 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.
(b) 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 13(b)). All Notices must be delivered by personal delivery, nationally recognized overnight courier (with all fees pre-paid), 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 13(b).
(c) 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.
(d) Amendment and Modification; Waiver. No amendment to or modification of this Agreement is effective unless it is in writing and signed by an authorized representative of each Party. No waiver by any Party of any of the provisions hereof will be effective unless explicitly set forth in writing and signed by the Party so waiving. Except as otherwise set forth in this Agreement, (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.
(e) 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 affect 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.
(f) Governing Law; Submission to Jurisdiction. This Agreement is governed by and construed in accordance with the internal laws of the State of Utah without giving effect to any choice or conflict of law provision or rule that would require or permit the application of the laws of any jurisdiction other than those of the State of Utah. Any legal suit, action, or proceeding arising out of or related to this Agreement or the licenses granted hereunder will be instituted exclusively in the federal courts of the United States or the courts of the State of Utah in each case located in or for Utah County, State of Utah, and each Party irrevocably submits to the jurisdiction of such courts in any such suit, action, or proceeding.
(g) Assignment. Resale Partner 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 Provider, except that Resale Partner may without the consent of but with written notice thereof within five (5) days after closing of a transaction with a non-competitor of Provider assign this Agreement to (i) an entity that directly or indirectly, through one or more intermediaries, owns more than 50% of the outstanding voting securities of Resale Partner, or (ii) an entity that directly or indirectly through one or more intermediaries, is controlled by Resale Partner, in each case where the term “control” means possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of an entity, whether through ownership of voting securities, by contract interest or otherwise. 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.
(h) Equitable Relief. Each Party acknowledges and agrees that a breach or threatened breach by such Party of any of its obligations under Section 7 or, in the case of Resale Partner, Sections 2(c) or 8, 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.
(i) 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. This Agreement may be executed by delivery of an electronic or facsimile signature, each of which will be deemed to be an original signature.
