Master Service Agreement

This Master Services Agreement (“Agreement”) governs access to, and use of, the Services provided by ImageAssist, Inc. (“ImageAssist”). By clicking “I Agree” or otherwise uses the Services, you agree to be bound by its terms. You are entering into this Agreement on behalf of a company or other legal entity (“Client”), and you represent that you have the authority to bind that entity. If you do not agree to these terms, you nor Client may access or use the services. The effective date of this Agreement is the earlier of (1) the date you first client “I Agree” or (2) you or Client first use the Services (“Effective Date”).

1. Definitions

1. Affiliate.  “Affiliate” means an entity that controls, is controlled by, or is under common control with ImageAssist, where “control” means the direct or beneficial ownership of a majority of the voting securities of the controlled entity.
2. BAA.  “BAA” means the business associate agreement found at https://www.imageassist.com/baa and incorporated herein by reference.
3. Client Data.  “Client Data” means any of Client’s information, documents, or electronic files that are provided to ImageAssist hereunder.
4. Documentation.  “Documentation” means any online or printed user manuals, functional specifications, or system requirements that are made available to Client by ImageAssist, and any derivative works of the foregoing, as they may be updated from time to time by ImageAssist.
5. Error.  “Error” means any reproducible material failure of the System to function in accordance with its Documentation.
6. Go-Live.  “Go-Live” means the earlier of (i) the date that the System is made available to Client for use in a live production environment, or (ii) 120 days following the Effective Date.
7. Order Form. “Order Form” means the online ordering document Client selects containing the pricing and quantity terms, incorporated by this reference.
8. System.  “System” means ImageAssist’s mobile application and hosted software service, including any Updates relating thereto that may be provided hereunder, and any derivative works of the foregoing. ImageAssist may modify the System (or any part thereof) from time to time and is not liable to Client or to any third party for any modification of the System.
9. Services. Services” means the System, implementation services, support services, and any other services and/or related software and proprietary content, including any Add-Ons and Updates relating thereto that may be provided hereunder, and any derivative works of the foregoing.
10. Update.  “Update” means any patch, bug fix, release, version, modification or successor to the Services
11. User.  “User” means an individual employee or independent contractor of Client, who is performing professional services on behalf of Client, and to whom Client has granted access to use the System on Client’s behalf, regardless of whether or not the User actually accesses the System.

2. Use of ImageAssist Services

1. Services.  During the Term, ImageAssist shall provide to Client the Services for Client and its Users solely for Client's internal business purposes, subject to the terms of this Agreement and the following restrictions: (i) with respect to the System, compliance with the click-through terms of service found at https://www.imageassist.com/terms-of-service (“Terms of Service”) accepted by Users before using ImageAssist’s mobile application and compliance with any other terms of use displayed on ImageAssist’s website or application, as amended from time to time by ImageAssist; (ii) compliance with all laws applicable to use of the Services, whether now in existence or hereinafter enacted. Client acknowledges and agrees that certain aspects of the Services may be provided by Subcontractors or Affiliates of ImageAssist. Image Assist is responsible for the performance of its Subcontractors and Affiliates hereunder. To the extent Client receives access to third-party products (“Third-Party Products”) as part of the Services, Client shall be subject to and agrees to abide by the pass-through terms and conditions for such Third-Party Products, including changes in Third-Party fees.
2. Use Restrictions.  Except as expressly permitted by this Agreement, Client shall not, directly, indirectly, alone, or with another party, (i) copy, disassemble, reverse engineer, or decompile the System or any software or technology used in connection therewith; (ii) modify, create derivative works based upon, or translate the System; (iii) transfer or otherwise grant any rights in the System in any form to any other party; (iv) permit any competitor of ImageAssist to be a User or to otherwise access the System; (v) use the System or Services or permit any other party to use the System or Services for benchmarking purposes or for purposes of developing or implementing a product or service that competes with the System or Services; or (vi) use the Services in any manner that disrupts ImageAssist’s operations or any other users’ use of the Services, nor shall Client attempt to do any of the foregoing or cause or permit any third party to do or attempt to do any of the foregoing, except as expressly permitted hereunder.
3. Compliance. Client shall be responsible for compliance with all rules, regulations and other requirements of Medicare, Medicaid and any other governmental or commercial payors related to proper billing for Client’s professional services. Client agrees and acknowledges that the System and Services provided hereunder are limited to those expressly set forth herein and, without limiting the foregoing, do not include any billing or compliance related services.
4. Client’s Obligations. Client hereby represents and warrants that (i) Client only transmits Client Data, including health-related information, to ImageAssist for which it has and will maintain, and provide a copy to ImageAssist upon request, a record of all rights, permissions, consents, and/or authorizations necessary, if any, to permit such disclosure and to permit ImageAssist to perform the Services, provide the System, and exercise its rights and perform its obligations set forth in this Agreement, including, but not limited to, those set forth in Section 2(f) (“Consents”); (ii) no Client policies or notices of privacy practices conflict with or limit the ability of ImageAssist to perform its obligations or exercise its rights under this Agreement; (iii) in the event that Client agrees to provide additional privacy protections to information relating to an individual, Client shall notify ImageAssist of such limitations on the date such information is transmitted to ImageAssist or the date on which Client makes such an agreement, whichever is later; and (iv) in the event that an individual revokes or changes a Consent given to Client that may affect ImageAssist’s use or disclosure of information previously transmitted to ImageAssist, Client shall promptly notify ImageAssist of such revocation or change.
5. System Changes. Client shall provide ImageAssist advance prior written notice in the event Client intends to make any modifications in workflow, interfaces, or any related software or hardware of Client that could impact the System or Services.
6. Client Data.  As between the parties, Client owns all rights, title, and interest in the Client Data.  Client Data shall not include Aggregate Information or Client Data or other data that has been de-identified, anonymized, or pseudonymized, as applicable, by ImageAssist, its Affiliates, or its Subcontractors in accordance with applicable law (“De-Identified Data”). Client is solely responsible for ensuring the accuracy and completeness of the Client Data, and ImageAssist shall not be liable for damage or deficiency with respect to Client Data. During the Term, Client hereby grants to ImageAssist a non-exclusive right and license to use, disclose, copy, transmit, modify, and display the Client Data to (i) provide the System or Services and related services to Client hereunder; (ii) to create De-Identified Data; (iii) analyze, test, develop, maintain, refine, train, tune, improve, enhance, optimize, automate, and expand the insights, processes, methods, and tools related to the System and Services and other ImageAssist products and services; and (iv) use and disclose as otherwise set forth in ImageAssist’s Privacy Policy found at https://www.imageassist.com/privacy-policy. Further, during the Term, ImageAssist may monitor Users’ use of the System and gather general, aggregate statistical information about use of the System; provided that such information shall not include any Client Confidential Information or personally identifiable information about Client or any User (“Aggregate Information”). During and after the Term, ImageAssist may use and disclose De-Identified Data and Aggregate Information unless prohibited by applicable law, which may include, but may not be limited to, business purposes, creation of statistical and marketing reports, development of products, training of artificial intelligence, machine learning, or similar tools (“AI”), and creation of benchmarking and usage analysis. The foregoing sentence survives termination or expiration of this Agreement.
7. BAA.  The creation, receipt, maintenance, transmission, use, and disclosure of PHI (as defined by the BAA) by or on behalf of ImageAssist in connection with this Agreement will be governed by the BAA.
8. Users and Security.  Client is solely responsible for maintaining the security of all usernames and passwords granted to it, for the security of its information systems used to access the System, and for its Users’ compliance with the terms of this Agreement.  ImageAssist has the right at any time to terminate or suspend access to any User or to Client if ImageAssist reasonably believes that such termination or suspension is necessary to preserve the safety, security, integrity, or accessibility of the System, the Services, ImageAssist, ImageAssist's other customers, or any individual or patient. Client shall notify ImageAssist promptly in writing of any noncompliance with this Agreement by its Users and shall provide take all steps necessary to resolve such noncompliance.
9. Artificial Intelligence. Client hereby expressly permits ImageAssist to use AI to provide and improve the Services provided to Client under this Agreement.

3. Implementation and Support Services

1. Implementation.  Client shall allocate sufficient resources for a complete implementation of the System.  The parties shall mutually agree on a complete implementation schedule (the “Implementation Schedule”) within 30 days of the Effective Date.  ImageAssist may commence billing in accordance with the Implementation Schedule irrespective of Client’s or its Users’ actual access to the System.
2. Implementation Coordinator. Client shall provide ImageAssist with all support reasonably requested by ImageAssist to facilitate the implementation of the System for Client, including access to the facilities and computer systems of Client, access to appropriate staff and resources, and participation by appropriate personnel (including Users, as appropriate) in meetings, training sessions, and other activities related to such implementation. Client shall designate one of its employees to serve as an implementation coordinator and be ImageAssist’s primary contact during the implementation process. This implementation coordinator shall receive initial training from ImageAssist and shall support and assist ImageAssist throughout the implementation process, including subsequent training of Client personnel.
3. Availability and Error Correction.  ImageAssist shall use commercially reasonable efforts to correct all Errors or to provide a reasonable workaround as soon as is possible using its reasonable efforts during ImageAssist’s normal business hours.  ImageAssist shall use commercially reasonable efforts to make the System available for access by Users on a 24/7/365 basis, except for Force Majeure Events and except for maintenance times.  Client shall provide such access, information, and support as ImageAssist may reasonably require in the process of resolving any Error.  This paragraph provides Client’s sole and exclusive remedy for any downtime or Errors in the System.
4. Support.  ImageAssist shall provide Client with training, support, maintenance, enhancements and customizations to the System that are made generally available to its other customers. ImageAssist’s support hours are Monday through Friday, 7:30 a.m.-5:00 p.m., Central Time, excluding holidays.
5. Support Exclusions.  ImageAssist is not obligated to correct any Errors or provide any other support to the extent such Errors or need for support was created in whole or in part by:

1. Client’s negligence or willful misconduct, including any unauthorized modifications of the System or its operating environment;
2. any failure or defect of Client’s or a third party’s equipment, software, facilities, third party applications, or internet connectivity (or other causes outside of ImageAssist's or its managed services provider's point of presence); or
3. Client’s use of the System other than in accordance with the Documentation.

6. Updates, Add-Ons, and Additional Services. ImageAssist shall deliver to Client any Updates of the System at no charge unless the Update includes additional services or features related to the Services that may be purchased separately as an upgrade (each, an “Add-On”) for which additional charges apply. Any Add-Ons and other additional services, such as implementation or integration services (e.g., supporting a change in practice management system or integration with an EMR) requested by the Client will incur additional fees as specified by ImageAssist. Additional Users may be added upon request. Implementation fee pricing and monthly software subscription fee pricing for additional Users will mirror the pricing provided in the applicable Services Order. Billing for additional Users will begin in the month they are first active and will increase the minimum monthly subscription fee through the duration of the contract period.

4. Fees and Payment Terms

1. Fees.  Client shall pay ImageAssist the fees set forth in each Order Form. Unless otherwise expressly set forth in an Order Form or statement of work, System fees will commence on Go-Live, recurring fees are due monthly commencing as of the Effective Date, and one-time fees are due on the Effective Date.
2. Payment Terms.  ImageAssist shall invoice Client in advance for all recurring charges, which invoices will also include all non-recurring charges and expenses incurred since the previous invoice. Client shall pay all ImageAssist invoices within 30 days of the invoice date.  Except as expressly provided in this Agreement, all payments made by Client to ImageAssist hereunder are non-refundable.
3. Fee Disputes.  If Client reasonably and in good faith disputes any fees, Client must provide ImageAssist with written notices of such dispute within 90 days of the applicable invoice date, after which all such amounts will be deemed final and accepted by Client. Client must cooperate in good faith with ImageAssist to resolve the dispute and pay all undisputed fees when due.
4. Delinquent Payments. If Client is delinquent in payment of any portion of an invoice that it has not disputed in good faith, ImageAssist may, in addition to other remedies it may have, including termination, suspend access to the System. Client shall pay late fees on delinquent amounts at the rate of 1½% per month (or, if lower, the maximum amount permitted by law) that a payment is overdue. If ImageAssist takes any legal action to collect on delinquent amounts, Client shall reimburse ImageAssist for its costs incurred in pursuing such action, including but not limited to legal fees and court costs.
5. Taxes.  Client shall pay or shall reimburse ImageAssist for all sales taxes and other taxes, however characterized by the taxing authority, based upon the fees or other charges under this agreement or otherwise incurred on account of Client’s use of the System, Services, or any related services, except for any taxes based upon ImageAssist's net income or gross receipts or for any franchise or excise taxes owed by ImageAssist.  If Client is a tax-exempt organization, then, upon ImageAssist's receipt of proof of such status, ImageAssist shall not charge Client for any taxes from which Client is exempt.
6. Fee Increases. After the Initial Term, the fees hereunder will increase on each contract anniversary by the lesser of 3% or the increase in the Consumer Price Index for the same period (Consumer Price Index for All Urban Consumers, U.S. City Average). In addition, ImageAssist may implement other fee changes by providing Client at least thirty (30) days’ prior notice (which may be delivered by email or through the System). Any such changes will take effect at the beginning of the Renewal Term following the then-current Initial Term or Renewal Term. If Client does not wish to accept the new fees, Client may elect not to renew or may terminate the affected Services as permitted herein. Continued use of the Services after the effective date of a fee change constitutes acceptance of the new fees.

5. Term and Termination

1. Term.  The term of this Agreement shall commence on the Effective Date and continue for two years (“Initial Term”). Thereafter, this Agreement will automatically renew for successive one year periods unless either party provides written notice of non-renewal to the other party at least 60 days prior to the expiration of the then current term (each a “Renewal Term”). “Term” means the Initial Term and each Renewal Term.
2. Termination for Cause.  Either party can terminate this Agreement for cause upon written notice to the other party:

1. if the other party has committed any material breach of its obligations under this Agreement and has failed to cure such breach within 30 days of written notice by the non-breaching party specifying in reasonable detail the nature of the breach (or, if such breach is not reasonably curable within 30 days, has failed to begin and continue to work diligently and in good faith to cure such breach); or
2. upon the institution of bankruptcy or state law insolvency proceedings against the other party if such proceedings are not dismissed within 30 days of commencement.

3. Obligations on Termination.  Upon termination or expiration of this Agreement for any reason, Client shall discontinue any and all use of the System, Services and Confidential Information of ImageAssist. ImageAssist may immediately deactivate the affected System and Services and, following a reasonable period, ImageAssist may delete Client’s account and data.

6. Confidentiality

1. Definition of Confidential Information.  “Confidential Information” means any and all tangible and intangible information (whether written or otherwise recorded or oral) of a party that:  (i) derives independent economic value, actual or potential, from not being generally known to, and not being readily ascertainable by proper means by, other persons who can obtain economic value from its disclosure or use and is the subject of efforts that are reasonable under the circumstances to maintain its secrecy; or (ii) the disclosing party designates as confidential or, given the nature of the information or the circumstances surrounding its disclosure, reasonably should be considered as confidential.  Confidential Information includes, without limitation: (1) nonpublic information relating to a party’s technology, customers, business plans, promotional and marketing activities, finances and other business affairs; (2) third-party information that a party is obligated to keep confidential; (3) the material terms and conditions of this agreement; and (4) any nonpublic information relating to any activities conducted hereunder.  Any information regarding APIs for the System is Confidential Information of ImageAssist.
2. Exclusions.  Notwithstanding the above, the term “Confidential Information” does not include any information that is either:

1. readily discernible from publicly available products or literature;
2. approved for disclosure by prior written permission of an executive officer of the disclosing party; or
3. protected health information, as defined under HIPAA (because such information is subject to the provisions of the BAA).

3. Use of Confidential Information.  Each party shall only use Confidential Information furnished to it hereunder in furtherance of the activities contemplated by this Agreement, and it shall not disclose the Confidential Information to any other persons without the disclosing party’s express written authorization. Notwithstanding the foregoing, ImageAssist may use, disclose, and grant access to Client’s Confidential Information to third parties engaged in a use permitted under this Agreement (“Subcontractors”), which includes, but may not be limited to, the provision of the System and Services; provided, however, ImageAssist shall enter into appropriate written agreements with Subcontractors that require protection of the Confidential Information in a manner at least as protective as set forth herein.
4. Required Disclosures.  A receiving party may disclose Confidential Information of the disclosing party as required to comply with binding orders of governmental entities that have jurisdiction over it or as otherwise required by law, provided that the receiving party (i) gives the disclosing party reasonable written notice to allow it to seek a protective order or other appropriate remedy (except to the extent compliance with the foregoing would cause the receiving party to violate a court order or other legal requirement), (ii) discloses only such information as is required by the governmental entity or otherwise required by law, and (iii) and uses its best efforts to obtain confidential treatment for any Confidential Information so disclosed.
5. Return of Information.  If a disclosing party so requests at any time, the receiving party shall return promptly all copies, extracts, or other reproductions in whole or in part of the Confidential Information in its possession.
6. Survival.  The parties hereto covenant and agree that this Section 6 will survive the expiration, termination, or cancellation of this agreement for a period of three years, except for Confidential Information constituting a trade secret, with respect to which this Section will survive the expiration, termination, or cancellation of this agreement for so long as such Confidential Information remains a trade secret.

7. Indemnification

1. Indemnification.  Each party shall indemnify the other, the other’s affiliates, and all of their stockholders, officers, directors, agents, and employees (each, an “Indemnified Party”) at all times from and after the Effective Date against any liability, loss, damages (including punitive damages), claim, settlement payment, cost and expense, interest, award, judgment, diminution in value, fine, fee, and penalty, or other charge, including reasonable legal expenses, arising out of or relating to any claim by an unaffiliated third party (i) alleging that the use in accordance with this Agreement of the System (in the case of ImageAssist) or the Client Data (in the case of Client) infringes or misappropriates any intellectual property or privacy rights of the unaffiliated third party, or (ii) that arises or is alleged to have arisen solely out of the gross negligence or intentional misconduct of the indemnifying party (each a “Third Party Claim”).  Notwithstanding the foregoing, if the System becomes the subject of such a claim of infringement then ImageAssist may, at its option: (1) procure for Client the right to use the System free of any liability for infringement; (2) replace or modify the System to make it non-infringing but with reasonably comparable functionality; or (3) if ImageAssist determines that the previous two options are not available on a commercially reasonable basis, grant to Client a credit for the unused portion of any prepaid fees and refund any deposits paid by Client for the affected System.  The foregoing obligations do not apply, and ImageAssist has no liability, with respect to portions or components of the System or related services (A) not supplied by ImageAssist, (B) made in whole or in part in accordance with Client specifications, (C) that are modified after delivery by Client, (D) combined with third party or Client products, processes or materials where the alleged infringement relates to such combination, (E) where Client continues allegedly infringing activity after being notified thereof or after being informed of modifications that would have avoided the alleged infringement, or (F) where Client’s use of the System is not strictly in accordance with this Agreement and any applicable Documentation.  
2. Indemnification Process.  The Indemnified Party shall promptly notify the indemnifying party in writing of any Third Party Claim, stating the nature and basis of the Third Party Claim, to the extent known. The indemnifying party shall have sole control over the defense and settlement of any Third Party Claim. The indemnifying party shall not settle any such Third Party Claim without the written consent of the Indemnified Party, except for a complete settlement requiring only the payment of money damages to be paid by the indemnifying party.

8. Disclaimers and Limitations

1. No Medical Advice.  CLIENT AGREES THAT IMAGEASSIST AND THE SYSTEM AND SERVICES DO NOT PROVIDE MEDICAL SERVICES AND ARE NOT ENGAGED IN THE PRACTICE OF MEDICINE, AND THAT NEITHER CLIENT'S NOR ANY OTHER HEALTHCARE PROVIDER'S USE OF THE SYSTEM NOR ANY RELATED SERVICES ABSOLVES THE CLIENT OR ANY OTHER HEALTHCARE PROVIDER OF THEIR OBLIGATION TO EXERCISE INDEPENDENT MEDICAL JUDGMENT IN RENDERING HEALTH CARE SERVICES TO PATIENTS. CLIENT ACKNOWLEDGES THAT THE PROFESSIONAL DUTY TO THE PATIENT IN PROVIDING HEALTHCARE SERVICES LIES SOLELY WITH THE HEALTHCARE PROFESSIONAL PROVIDING THE SYSTEM, AND IMAGEASSIST IS IN NO WAY LIABLE OR RESPONSIBLE FOR ANY MEDICAL OUTCOMES.
2. Disclaimer of Warranties.  OTHER THAN AS EXPRESSLY SET FORTH IN THIS AGREEMENT, IMAGEASSIST, ITS AFFILIATES, AND SUBCONTRACTORS MAKE NO, AND HEREBY DISCLAIM ANY, REPRESENTATIONS OR WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, WITH RESPECT TO THE SYSTEM AND SERVICES, FUNCTIONALITY, PERFORMANCE OR RESULTS OF USE OF THE SYSTEM AND SERVICES. WITHOUT LIMITING THE FOREGOING, EXCEPT AS SPECIFICALLY SET FORTH HEREIN, IMAGEASSIST DISCLAIMS ANY WARRANTY THAT THE SYSTEM AND SERVICES PROVIDED BY IMAGEASSIST ARE OR WILL BE ACCURATE, ERROR-FREE OR UNINTERRUPTED. IMAGEASSIST MAKES NO, AND HEREBY DISCLAIMS ANY, IMPLIED WARRANTIES, INCLUDING WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY, OF FITNESS FOR ANY PARTICULAR PURPOSE OR ARISING BY USAGE OF TRADE, COURSE OF DEALING OR COURSE OF PERFORMANCE.
3. Disclaimer of Consequential Damages.  IMAGEASSIST, ITS AFFILIATES AND SUBCONTRACTORS HAVE NO LIABILITY WITH RESPECT TO THE SYSTEM, THE SERVICES, OR ITS OTHER OBLIGATIONS UNDER THIS AGREEMENT OR OTHERWISE FOR CONSEQUENTIAL, EXEMPLARY, SPECIAL, INCIDENTAL, OR PUNITIVE DAMAGES (INCLUDING WITHOUT LIMITATION LOSS OF PROFITS AND THE COST OF COVER) EVEN IF IMAGEASSIST HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
4. Limitations of Remedies and Liability.  IMAGEASSIST’S AND ITS AFFILIATES’ AND SUBCONTRACTORS’ TOTAL LIABILITY TO CLIENT FOR ANY REASON AND UPON ANY CAUSE OF ACTION INCLUDING WITHOUT LIMITATION, BREACH OF CONTRACT, NEGLIGENCE, STRICT LIABILITY, MISREPRESENTATIONS, AND OTHER TORTS, IS LIMITED TO ALL FEES PAID TO IMAGEASSIST BY THE CLIENT OR CUSTOMER, WHICHEVER APPLICABLE, DURING THE THREE MONTH PERIOD IMMEDIATELY PRECEDING THE EVENTS GIVING RISE TO THE LIABILITY.

9. General

1. Press Release; Promotional Materials.  The parties shall agree upon a mutually acceptable press release announcing the execution of this agreement. In addition, ImageAssist may include Client’s name from time to time on its website and identify Client as a case study and reference site, and in other marketing materials.
2. Non-Solicitation.  During the Term of this Agreement and for one year thereafter, Client shall not, directly or indirectly, solicit or offer employment to ImageAssist’s current or former officers, members, employees, third-party contractors, or associates, without ImageAssist’s prior express written consent, except that former employees that have been out of the employment of ImageAssist for more than six months would then be eligible for hire.
3. Force Majeure.  “Force Majeure Event” means any act or event that (i) prevents a party (the “Nonperforming Party”) from performing its obligations or satisfying a condition to the other party’s (the “Performing Party”) obligations under this Agreement, (ii) is beyond the reasonable control of and not the fault of the Nonperforming Party, and (iii) the Nonperforming Party has not, through commercially reasonable efforts, been able to avoid or overcome.  “Force Majeure Event” does not include economic hardship, changes in market conditions, and insufficiency of funds.  If a Force Majeure Event occurs, the Nonperforming Party is excused from the performance thereby prevented and from satisfying any conditions precedent to the other party’s performance that cannot be satisfied, in each case to the extent limited or prevented by the Force Majeure Event.  When the Nonperforming Party is able to resume its performance or satisfy the conditions precedent to the other party’s obligations, the Nonperforming Party shall immediately resume performance under this Agreement.  The relief offered by this paragraph is the exclusive remedy available to the Performing Party with respect to a Force Majeure Event.
4. Assignment.  Neither party shall assign any of its rights under this Agreement, except with the prior written consent of the other party.  The preceding sentence applies to all assignments of rights, whether they are voluntary or involuntary, by operation of law or any other manner. Notwithstanding the foregoing, either party may assign this Agreement to an affiliated company, or to the acquiring party in connection with a sale of all or substantially all of its assets, a merger, a share exchange, or any other transaction pursuant to which the party is undergoing a change in control. Any purported assignment of rights in violation of this paragraph is void.
5. Governing Law.  The laws of the State of Tennessee (without giving effect to its conflict of laws principles) govern all matters arising out of or relating to this Agreement and the transactions it contemplates, including, without limitation, its interpretation, construction, performance, and enforcement. Any claims or actions regarding or arising out of this Agreement must be brought exclusively in a state or federal court of competent jurisdiction sitting in Nashville, Tennessee, and each party to this Agreement submits to the jurisdiction of such courts for the purposes of all legal actions and proceedings arising out of or relating to this Agreement. THE PARTIES HEREBY WAIVE ANY RIGHT THEY MAY HAVE UNDER ANY APPLICABLE LAW TO A TRIAL BY JURY WITH RESPECT TO ANY SUIT OR LEGAL ACTION CONCERNING OR ARISING OUT OF THE INTERPRETATION, CONSTRUCTION, VALIDITY, ENFORCEMENT OR PERFORMANCE OF THIS AGREEMENT OR ANY OTHER AGREEMENT OR INSTRUMENT EXECUTED IN CONNECTION WITH THIS AGREEMENT.
6. Notices.  Client giving or making any notice, request, demand or other communication (each, a “Notice”) pursuant to this Agreement must give the Notice in writing and use one of the following methods of delivery, each of which for purposes of this Agreement is a writing: personal delivery, registered or certified U.S. Mail (in each case, return receipt requested and postage prepaid), or nationally recognized overnight courier (with all fees prepaid). ImageAssist may provide Notices to Client by posting on the System. Notices to ImageAssist shall be addressed to:

ImageAssist Inc, Attn: Dr. Golinko,

1211 Medical Center Dr,

Nashville, TN 37232, United States

Except as provided elsewhere in this agreement, a Notice is effective only if the party giving the Notice has complied with this paragraph.

7. Entire Agreement.  The main body of this Agreement, all exhibits attached hereto, and all Order Forms constitute the final agreement between the parties. In the event of any conflicts between the parts of this Agreement, the order of precedence is (i) the BAA, (ii) the main body of this Agreement, (iii) any other exhibits to this agreement, (iv) Order Forms, and (v) Terms of Service except to the extent that the conflicting document expressly states its intention to override a specific provision of the controlling document.  It is the complete and exclusive expression of the parties’ agreement on the matters contained in this Agreement. All prior and contemporaneous negotiations and agreements between the parties on the matters contained in this Agreement are expressly merged into and superseded by this Agreement. The provisions of this Agreement cannot be explained, supplemented or qualified through evidence of trade usage or a prior course of dealings. In entering into this Agreement, neither party has relied upon any statement, representation, warranty or Agreement of any other party except for those expressly contained in this Agreement.
8. Waivers.  The parties can waive a provision of this Agreement only by a writing executed by the party or parties against whom the waiver is sought to be enforced. No failure or delay in exercising any right or remedy, or in requiring the satisfaction of any condition under this Agreement, and no act, omission or course of dealing between the parties, operates as a waiver or estoppel of any right, remedy or condition. A waiver made in writing on one occasion is effective only in that instance and only for the purpose stated. A waiver once given is not to be construed as a waiver on any future occasion or against any other person.
9. Amendments.  The parties can amend this Agreement only by a written agreement of the parties that identifies itself as an amendment to this Agreement.
10. Survival of Certain Provisions.  Each party hereto covenants and agrees that the provisions in Sections 2(b), 8, and 9 in addition to any other provision that, by its terms, is intended to survive the expiration or termination of this Agreement, shall survive the expiration or termination of this Agreement.