US Master Terms & Conditions
- TERMS AND CONDITIONS
1.1. These are the Terms and Conditions for Talking Medicines Inc., a Delaware corporation with its office at 95 Christopher Columbus Drive, 16th Floor, Jersey City, NJ 07302 (“Talking Medicines”) in relation to its data subscription service for structured intelligence on patient experience, known as PatientMetRx® (“Service”).
1.2. These Terms and Conditions together with the Services Confirmation form the agreement between Talking Medicines and the Customer for the Services (“Agreement“).
2.1. Definitions used in the Services Confirmation will have the same meaning when used in these Terms and Conditions.
2.2. The following definitions apply to these Terms and Conditions.
Authorized User: means an employee of the Customer who is authorized by the Customer to use the Services and the Documentation in accordance with the Agreement.
Business Day: any day weekday which is not a Federal or State holiday in New Jersey.
Beta Program: From time to time, we may test features and make them available to Customers for feedback under the Beta Program.
Confidential Information: has the meaning provided in Section 10.1.
Customer: means the customer stated in the Services Confirmation.
Customer Contact: means the Customer Contact listed on the Services Confirmation.
Customer Data: the data inputted by the Authorized Users for the purposes of using the Services or facilitating the Customer’s use of the Services.
Documentation: the documents made available to the Customer by Talking Medicines (including by online means) which sets out a description of the Services and the user instructions for the Services.
Data Protection Legislation: means any applicable Federal, State of foreign legislation or governmental regulations dealing with the privacy and protection of personally-identifiable data or other data as in effect from time to time.
Effective Date: the date of the last signature on the service confirmation, or the date that Talking Medicines makes the Services available to the Customer.
Initial Subscription Term: the initial period of subscription as set out in the Services Confirmation.
Normal Business Hours: 9.00 am to 5.00 pm Eastern Time in the United States, each Business Day.
Renewal Period: the period described in Section 13.1.
Services: the subscription services provided by Talking Medicines to the Customers under this Agreement via www.patientmetrx.com or any other website notified to the Customer by Talking Medicines from time to time.
Services Confirmation: means the service confirmation document setting out the details of the Customer, the Customer Contact and the Services and which together with these Terms and Conditions form the Agreement.
Software: the online software applications provided by Talking Medicines as part of the Services.
Subscription Fees: any subscription fees payable by the Customer to Talking Medicines under this Agreement.
Subscription Term: has the meaning given in Section 13.1 (being the Initial Subscription Term together with any subsequent Renewal Periods).
Trial: means internal evaluation of the Services by the Customer for use in the Customer’s business. The Trial period is for 30 days after initial log-in by Customer. Virus: any thing or device (including any software, code, file or program) which may: prevent, impair or otherwise adversely affect the operation of any computer software, hardware or network, any telecommunications service, equipment or network or any other service or device; prevent, impair or otherwise adversely affect access to or the operation of any programme or data, including the reliability of any programme or data (whether by re-arranging, altering or erasing the programme or data in whole or part or otherwise); or adversely affect the user experience, including without limitation worms, trojan horses, viruses and other similar things or devices.
- AUTHORIZED USERS
3.1. Talking Medicines grants to the Customer from the Effective Date a non-exclusive, non-transferable right to permit the Authorized User or Users to use the Services and the Documentation during the Subscription Term solely for the Customer’s internal business operations.
3.2. In relation to Authorized Users, the Customer undertakes that:
3.2.1. the maximum number of Authorized Users that it authorizes to access and use the Services and the Documentation shall not exceed the number set out in the Services Confirmation or otherwise agreed in writing with Talking Medicines;
3.2.2. each Authorized User shall keep a secure password for his or her use of the Services and Documentation and that each Authorized User shall keep any password provided to him or her confidential; it will not allow any Authorized User account to be used by more than one Authorized User unless it has been reassigned in its entirety to another Authorized User with prior consent from Talking Medicines, in which case the prior Authorized User shall no longer have any right to access or use the Services and/or Documentation;
3.2.3. it shall provide an up-to-date list of current Authorized Users to Talking Medicines within 5 Business Days of Talking Medicines’ written request at any time or times;
3.2.4. it shall permit Talking Medicines to audit the Services in order to establish the name and password of each Authorized User. Such audit may be conducted no more than once per quarter, at Talking Medicines’ expense, and this right shall be exercised with reasonable prior notice, in such a manner as not to substantially interfere with the Customer’s normal conduct of business;
3.2.5. if any of the audits referred to in Section 3.2.4 reveal that any password has been provided to any individual who is not an Authorized User, then without prejudice to Talking Medicines’ other rights, the Customer shall promptly disable such passwords and Talking Medicines shall not issue any new passwords to any such individual; and
3.2.6. if any of the audits referred to in Section 3.2.4 reveal that the Customer has underpaid Subscription Fees to Talking Medicines, then without prejudice to Talking Medicines’ other rights, Talking Medicines reserves the right to charge the Customer an amount equal to such underpayment, which amount shall be payable in accordance with Section 9.
3.3. The Customer shall not access, store, distribute or transmit any Viruses, or any material in its use of the Services that:
3.3.1. is unlawful, harmful, threatening, defamatory, obscene, infringing, harassing or racially discriminatory;
3.3.2. facilitates illegal activity; or
3.3.3. in a manner that is otherwise illegal or causes damage or injury to any person or property; and Talking Medicines reserves the right, without liability or prejudice to its other rights under this Agreement, to disable the Customer’s access to all or any portion of the Services.
3.4. The Customer shall not (except to the extent expressly permitted under this Agreement), attempt to copy, modify, duplicate, create derivative works from, frame, mirror, republish, download, display, transmit, or distribute all or any portion of the Software and/or Documentation (as applicable) in any form or media or by any means; or
3.4.1. attempt to reverse compile, disassemble, reverse engineer or otherwise reduce to human-perceivable form all or any part of the Software; or
3.4.2. access all or any part of the Services and Documentation in order to build a product or service which competes with the Services and/or the Documentation; or
3.4.3. use the Services and/or Documentation to provide services to third parties; or
3.4.4. subject to Section 15.4, license, sell, rent, lease, transfer, assign, distribute, display, disclose, or otherwise commercially exploit, or otherwise make the Services and/or Documentation available to any third party, or
3.4.5. attempt to obtain, or assist third parties in obtaining, access to the Services and/or Documentation, other than as provided under this Section 3.
3.5. The Customer shall keep all password and log-in details used in the relation to the Services secure and shall use all reasonable means to prevent any unauthorized access to, or use of, the Services and/or the Documentation and, in the event of any such unauthorized access or use, promptly notify Talking Medicines.
3.6. The rights provided under this Section 3 are granted to the Customer only and shall not be considered granted to any subsidiary or holding company of the Customer.
4.1. Talking Medicines shall, during the Subscription Term, provide the Services and make the Documentation available to the Customer on and subject to the terms of this Agreement.
4.2. Talking Medicines shall use commercially reasonable efforts to make the Services available 24 hours a day, seven days a week, except for:
4.2.1. planned maintenance carried out during the maintenance windows set by Talking Medicines; and
4.2.2. unscheduled maintenance performed outside Normal Business Hours, provided that Talking Medicines has used reasonable efforts to give the Customer at least 6 Normal Business Hours’ notice in advance.
4.3. Talking Medicines will, as part of the Services and at no additional cost to the Customer, provide the Customer with Talking Medicines’ standard customer support services during Normal Business Hours.
5.1. As between the parties the Customer shall own all rights in the Customer Data.
5.2. Talking Medicines shall follow its archiving procedures for Customer Data as set out in its then-current policy, which may be amended by Talking Medicines in its sole discretion from time to time. In the event of any loss or damage to Customer Data, the Customer’s sole and exclusive remedy against Talking Medicines shall be for Talking Medicines to use reasonable commercial efforts to restore the lost or damaged Customer Data from the latest back-up of such Customer Data maintained by Talking Medicines in accordance with its then-current archiving procedure. Talking Medicines shall not be responsible for any loss, destruction, alteration or disclosure of Customer Data caused by any third party (except those third parties sub-contracted by Talking Medicines to perform services related to Customer Data maintenance and back-up for which Talking Medicines shall remain fully liable).
- CUSTOMER OBLIGATIONS
6.1. The Customer shall provide Talking Medicines with such information and assistance as Talking Medicines may reasonably request in relation to this Agreement.
6.2. The Customer shall comply with all applicable laws and governmental regulations with respect to its activities under this Agreement and shall carry out all other Customer responsibilities set out in this Agreement in a timely manner.
6.3. The Customer shall ensure that the Authorized Users use the Services and the Documentation in accordance with the terms of this Agreement and shall be responsible for any Authorized User’s breach of this Agreement.
6.4. The Customer shall obtain and shall maintain all necessary licences, consents, and permissions necessary to enable it to receive the Services from Talking Medicines.
6.5. The Customer shall ensure that its network and systems comply with any relevant specifications provided by Talking Medicines from time to time and be solely responsible for procuring and maintaining its network and internet connections.
- TALKING MEDICINES OBLIGATIONS
7.1. Talking Medicines undertakes that the Services will be performed substantially in accordance with the Documentation and with reasonable skill and care.
7.2. The undertaking at Section 7.1 shall not apply to the extent of any non-conformance which is caused by use of the Services contrary to Talking Medicines’ instructions, or modification or alteration of the Services by any party other than Talking Medicines or Talking Medicines’ duly authorized contractors or agents. If the Services do not conform with this undertaking, Talking Medicines will, at its expense, use reasonable commercial efforts to correct any such non-conformance promptly, or provide the Customer with an alternative means of accomplishing the desired performance. Such correction or substitution constitutes the Customer’s sole and exclusive remedy for any breach of the undertaking set out in Section 7.1. Notwithstanding this, Talking Medicines:
7.2.1. does not warrant that the Customer’s use of the Services will be uninterrupted or error-free; or that the Services, Documentation and/or the information obtained by the Customer through the Services will meet the Customer’s requirements; and
7.2.2. is not responsible for any delays, delivery failures, or any other loss or damage resulting from the transfer of data over communications networks and facilities, including the internet, and the Customer acknowledges that the Services and Documentation may be subject to limitations, delays and other problems inherent in the use of such communications facilities.
7.3. This Agreement shall not prevent Talking Medicines from entering into similar agreements with third parties, or from independently developing, using, selling or licensing documentation, products and/or services which are similar to those provided under this Agreement.
7.4. Talking Medicines warrants that it has and will maintain all necessary licences, consents, and permissions necessary for the performance of its obligations under this Agreement.
- RIGHTS IN THE SERVICES
8.1. All intellectual property rights in the Services are owned by or validly licensed to Talking Medicines.
8.2. Software and Documentation provided in relation to the Services are provided solely in relation to the Customer’s use of the Services in accordance with this Agreement and are not provided, or to be used, for any other purpose.
9.1. The Customer shall pay the Subscription Fees to Talking Medicines for the Services in accordance with this Section 9.
9.2. The Customer shall provide to Talking Medicines valid, up-to-date and complete credit card details or approved purchase order information acceptable to Talking Medicines and any other relevant valid, up-to-date and complete contact and billing details.
9.3. If the Customer provides:
9.3.1. its credit card details to Talking Medicines, the Customer hereby authorizes Talking Medicines to bill such credit card on or after the Effective Date for Subscription Fees payable;
9.3.2. its approved purchase order information, Talking Medicines shall invoice the Customer on or after the Effective Date and the Customer shall pay each invoice issued by Talking Medicines within 30 days after the date of such invoice.
9.4. If Talking Medicines has not received payment within 30 days after the due date, and without prejudice to any other rights and remedies of Talking Medicines:
9.4.1. Talking Medicines may, without liability to the Customer, disable the Customer’s password, account and access to all or part of the Services and Talking Medicines shall be under no obligation to provide any or all of the Services while the invoice(s) concerned remain unpaid; and
9.4.2. interest shall accrue on such due amounts at an annual rate equal to the lesser of (i) one and one-half percent per month, or (ii) the highest contract interest rate permitted by applicable law, commencing on the due date and continuing until fully paid, whether before or after judgment.
9.5. All amounts and fees stated or referred to in this Agreement shall be payable in U.S. Dollars, are non-cancellable and non-refundable. Customer shall be 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 entity on any amounts payable by Customer hereunder; and to the extent Talking Medicines is required to pay any such sales, use, excise, or other taxes or other duties or charges, Customer shall reimburse Talking Medicines in connection with its payment of fees and expenses as set forth in this Section 9. Notwithstanding the previous sentence, in no event shall Customer pay or be responsible for any taxes imposed on, or regarding, Talking Medicine’s income, personnel or real or personal property or other assets.
9.6. Talking Medicines shall be entitled to increase the Subscription Fees upon 7 days’ prior notice to the Customer, but not more than once during any 12-month period during the Agreement.
9.7. Notwithstanding Section 9.6, Talking Medicines shall be entitled to increase the Subscription Fees in the event that the Customer switches to a higher subscription package for the Services.
9.8 The Customer may be given an opportunity to Trial the Services at the discretion of Talking Medicines.
9.8.1 Talking Medicines grants to the Customer a non-exclusive, non-transferable right to permit the Users to use the Services, the Content and the Documentation during the Trial Period solely for the purposes of the Trial.
9.8.2 The Trial, and the Agreement, may be terminated at any time with immediate effect by Talking Medicines giving written notice to the Customer.
9.9 The Customer may be given an opportunity to participate in the Beta Program at the discretion of Talking Medicines.
9.9.1 As the Beta Program is still in a testing phase, it is possible that the Beta Program could contain errors. In addition to the Terms and Conditions, the Customer agrees that the Beta Program is provided “AS IS” and “AS AVAILABLE.” The Customer understands and agrees that Talking Medicines may change, withdraw, terminate the Customer’s access to, testing of and/or use of, or discontinue the Beta Program (or any portion thereof) at any time and in Talking Medicines’ sole discretion, with or without notice to the Customer. The content that the Customer views may not appear in the full product offering after the term of the Beta Program.
During the term of the Beta Program, the Customer will use commercially reasonable efforts to provide suggestions, comments or ideas and report issues or problems related to the Customer’s use of the Beta Program (collectively, “feedback”) to Talking Medicines in a timely basis or as otherwise agreed between the parties in writing. The Customer agrees not to disclose feedback to any third party and hereby assign to Talking Medicines all right, title and interest in and to any feedback, without any right to compensation or other obligation from us. The Customer agrees that Talking Medicines own all legal rights, title, and interest in and to the Beta Program, including all intellectual property rights, and except for the license provided herein, no other rights or permissions are granted.
9.9.2 The Beta Program, and the Agreement, may be terminated at any time with immediate effect by Talking Medicines giving written notice to the Customer.
10.1. Each party (“Receiving Party”) shall keep in strict confidence any information that is proprietary or confidential and is either clearly labelled as such or which a reasonable person would recognize as confidential, including without limitation all technical or commercial know-how, specifications, inventions, processes or initiatives which are of a confidential nature and have been disclosed to the Receiving Party by the other party (“Disclosing Party”), its employees, agents or subcontractors, and any other confidential information concerning the Disclosing Party’s business or its products or its services which the Receiving Party may obtain (collectively, all of the foregoing, the “Confidential Information”).
10.2. The Receiving Party shall restrict disclosure of such Confidential Information to such of its employees, agents or subcontractors as need to know it for the purpose of discharging the Receiving Party’s obligations under the Agreement, and shall ensure that such employees, agents or subcontractors are subject to obligations of confidentiality corresponding to those which bind the Receiving Party. This Section 10 shall survive termination of the Agreement for a period of five years, or, for Confidential Information that constitute trade secrets, for as long as such Confidential Information qualifies as trade secrets under applicable law.
10.3. Notwithstanding the terms of Section 10.1 and 10.2 above, Talking Medicines shall be entitled to reference the Customer as being a customer of Talking Medicines in relation to its marketing activities.
11.1. The Customer shall defend, indemnify and hold harmless Talking Medicines against claims, actions, proceedings, losses, damages, expenses and costs (including without limitation court costs and reasonable legal fees) (a “Claim”) arising out of or in connection with the Customer’s use of the Services and/or Documentation, provided that:
11.1.1. the Customer is given prompt notice of any such claim;
11.1.2. Talking Medicines provides reasonable co-operation to the Customer in the defense and settlement of such claim, at the Customer’s expense; and
11.1.3. the Customer is given sole authority to defend or settle the claim, provided that no settlement of any such Claim involving injunctive or mandatory relief affecting Talking Medicines may be entered into without the express written consent of Talking Medicines.
11.2. Subject to Section 12, Talking Medicines shall defend the Customer, and if applicable, its officers, directors and employees against any claim that the Services or Documentation infringes a valid and unexpired claim under any United States patent effective as of the Effective Date, copyright, trade mark, database right or right of confidentiality, and shall indemnify the Customer for any amounts awarded against the Customer in judgment or settlement of such claims, provided that:
11.2.1. Talking Medicines is given prompt notice of any such claim;
11.2.2. the Customer provides reasonable co-operation to Talking Medicines in the defense and settlement of such claim, at Talking Medicines’ expense; and
11.2.3. Talking Medicines is given sole authority to defend or settle the claim.
11.3. In the defense or settlement of any claim, Talking Medicines may procure the right for the Customer to continue using the Services, replace or modify the Services so that they become non-infringing or, if such remedies are not reasonably available, terminate this Agreement on 2 Business Days’ notice to the Customer without any additional liability or obligation to pay liquidated damages or other additional costs to the Customer other than the refund of prepaid subscription fees, if any, applicable to the period subsequent to such termination.
11.4. In no event shall Talking Medicines, its employees, agents and sub-contractors be liable to the Customer to the extent that the alleged infringement is based on:
11.4.1. a modification of the Services or Documentation by anyone other than Talking Medicines; or
11.4.2. the Customer’s use of the Services or Documentation in a manner contrary to the instructions given to the Customer by Talking Medicines; or
11.4.3. the Customer’s use of the Services or Documentation after notice of the alleged or actual infringement from Talking Medicines or any appropriate authority.
11.5. The foregoing and Section 12.4 state the Customer’s sole and exclusive rights and remedies, and Talking Medicines’ entire obligations and liability, for infringement of any patent, copyright, trademark, database right or right of confidentiality. IN NO EVENT SHALL TALKING MEDICINES BE LIABLE FOR INCIDENTAL, CONSEQUENTIAL, PUNITIVE OR SPECIAL DAMAGES, INCLUDING WITHOUT LIMITATION LOSS OF PROFITS.
- LIMITATION OF LIABILITY
12.1. IN NO EVENT SHALL SERVICE PROVIDER BE LIABLE TO CUSTOMER OR TO ANY THIRD PARTY FOR ANY LOSS OF USE, REVENUE, OR PROFIT [OR LOSS OF DATA OR DIMINUTION IN VALUE], OR FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, OR PUNITIVE DAMAGES WHETHER ARISING OUT OF BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, REGARDLESS OF WHETHER SUCH DAMAGE WAS FORESEEABLE AND WHETHER OR NOT SERVICE PROVIDER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.
12.2. IN NO EVENT SHALL SERVICE PROVIDER’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER ARISING OUT OF OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, EXCEED [[TWO (2)/[OTHER NUMBER]] TIMES] THE AGGREGATE AMOUNTS PAID OR PAYABLE TO SERVICE PROVIDER [PURSUANT TO THIS AGREEMENT/PURSUANT TO THE APPLICABLE STATEMENT OF WORK/IN THE [NUMBER] [YEAR/MONTH] PERIOD PRECEDING THE EVENT GIVING RISE TO THE CLAIM].
12.3. Except as expressly and specifically provided in this Agreement, the Customer assumes sole responsibility for its use of the Services and all information obtained from such use, and for conclusions drawn from such use. Use of the Services does not guarantee the Customer any improvement in its business efficiencies.
12.4. The Customer assumes sole responsibility for its use of the Services and all information obtained from such use, and for conclusions drawn from such use. Use of the Services does not guarantee the Customer any improvement in its business efficiencies;
12.5. NOTWITHSTANDING ANYTHING TO THE CONTRARY SET FORTH IN THIS AGREEMENT, TALKING MEDICINES HEREBY DISCLAIMS ANY WARRANTY OF MERCHANTABILITY OR FITNESS. THERE ARE NO WARRANTIES OTHER THAN THOSE EXPRESSLY SET FORTH IN THIS AGREEMENT.
12.6. Except in the case of fraud or fraudulent misrepresentation, Talking Medicines’ total aggregate liability arising under the Agreement or otherwise relating to the Services shall be limited to the total Subscription Fees paid during the 12-month period preceding the date on which the claim arose.
- TERM AND TERMINATION
13.1. The Agreement shall, unless otherwise terminated under the remaining provisions of this Section 13, commence on the Effective Date and continue for the Initial Subscription Term and, thereafter, this Agreement shall be automatically renewed for successive periods of one year (each a “Renewal Period”), unless:
13.1.1. either party notifies the other party of termination, in writing, at least one month before the end of the Initial Subscription Term or any Renewal Period, in which case this Agreement shall terminate upon the expiry of the application Initial Subscription Term or Renewal Period, as applicable; or
13.1.2. otherwise terminated in accordance with the provisions of this Agreement, and the Initial Subscription Term together with any subsequent Renewal Periods shall constitute the “Subscription Term.”
13.2. Without prejudice to any other rights or remedies to which the parties may be entitled, either party may terminate this Agreement without liability to the other if the other party:
13.2.1. Commits a material breach of any of the terms of this Agreement and (if such a breach is remediable) fails to remedy that breach within 30 days of that party being notified in writing of the breach; or
13.2.2. Becomes insolvent or admits its inability to pay its debts generally as they become due.
13.2.3. Becomes subject, voluntarily or involuntarily, to any proceeding under any domestic or foreign bankruptcy or insolvency law, which is not fully stayed within seven business days or is not dismissed or vacated within 45 days after filing.
13.2.4 Is dissolved or liquidated or takes any corporate action for such purpose.
13.2.5 Makes a general assignment for the benefit of creditors.
13.2.6 Has 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.
13.3. On termination of this Agreement for any reason:
13.3.1. all licences granted under this Agreement shall immediately terminate;
13.3.2. each party shall return and make no further use of any equipment, property, Documentation and other items (and all copies of them) belonging to the other party; and
13.3.3. the accrued rights of the parties as at termination, or the continuation after termination of any provision expressly stated to survive or implicitly surviving termination, shall not be affected or prejudiced.
- DISPUTE RESOLUTION
14.1 In the event the parties are unable to resolve a dispute between them arising out of or relating to the Agreement the parties will attempt to settle it by mediation in Jersey City, New Jersey or such other city in which Talking Medicines shall then have its headquarters using such procedures as they shall agree.
14.2 If the dispute is not settled by mediation within 10 days of commencement of the mediation or within such further period as the parties may agree in writing, either party may notify the other party of its election to resolve such dispute by binding arbitration. Such arbitration shall be conducted in Jersey City, New Jersey or in such other city as Talking Medicines may then have its headquarters office before a single arbitrator with at least ten years’ experience dealing with business disputes. Such arbitration shall be conducted under the rules of the International Institute for Conflict Prevention & Resolution and judgment upon any arbitration award may be entered in any court of competent jurisdiction.
14.3 Notwithstanding the previous provisions of this Sections 14.1 and 14.2, each party to this Agreement acknowledges and agrees that (a) a breach or threatened breach by such party of any of its obligations under Section 10 would give rise to irreparable harm to the other party for which monetary damages would not be an adequate remedy and (b) if a breach or a threatened breach by such party of any such obligations occurs, the other party hereto will, in addition to any and all other rights and remedies that may be available to such party at law, at equity, or otherwise in respect of such breach, be entitled to equitable relief, including a temporary restraining order, an injunction, specific performance and any other relief that may be available from a court of competent jurisdiction, without any requirement to (i) post a bond or other security, or (ii) prove actual damages or that monetary damages will not afford an adequate remedy. Each party to this Agreement agrees that such party shall not oppose or otherwise challenge the appropriateness of equitable relief or the entry by a court of competent jurisdiction of an order granting equitable relief, in either case, consistent with the terms of this Section 14.
15.1. If Talking Medicines choose to waive any particular right it has under the Agreement on any particular occasion this does not prevent it from exercising that right on another occasion.
15.2. If any part of the Agreement is held by a court of law (or similar forum) to be invalid or unenforceable, this shall not affect the validity or enforceability of the rest of the Agreement.
15.3. Talking Medicines shall have no liability to the Customer under this Agreement if it is prevented from or delayed in performing its obligations under this Agreement, or from carrying on its business, by acts, events, omissions or accidents beyond its reasonable control, including without limitation severe acts of nature, floods, fires, earthquakes, hurricanes, war, acts of terrorism, labor shortages, strikes, epidemics and acts of governmental authorities.
15.4. The Customer is not entitled to transfer or assign its rights and obligations under the Agreement to anyone else without Talking Medicines’ prior written consent.
15.5. The relationship between the parties is that of independent contractors. Nothing in the Agreement is intended to, or shall operate to, create a partnership between the parties, or to authorize either party to act as agent for the other, and neither party shall have authority to act in the name or on behalf of or otherwise to bind the other in any way (including the making of any representation or warranty, the assumption of any obligation or liability and the exercise of any right or power).
15.6. All notices required or permitted under the Agreement will be in writing, sent or delivered to the address of the party set forth in this Agreement or to such other address as a party may specify for the delivery of notices. Any notice shall be deemed to have been duly received:
15.6.1. if delivered personally, when delivered to such address;
15.6.2. if sent by certified mail, postage prepaid, on the third business day after transmittal; or
15.6.3. if delivered by nationally recognized express delivery service, on the date and at the time that the courier’s delivery receipt is signed.
15.7. This Agreement constitutes the complete and exclusive understanding and agreement between Customer and Talking Medicines regarding its subject matter and supersedes all prior or other agreements or understandings, written or oral, relating to its subject matter (including without limitation any proposal Talking Medicines may have issued to the Customer). Each party acknowledges that, in entering into the Agreement it does not rely on any statement, representation, assurance or warranty (whether it was made negligently or innocently) of any person (whether a party to the Agreement or not) other than as expressly set out in the Agreement.
- LAW AND JURISDICTION
16.1 This Agreement shall be governed by and construed in accordance with the laws of the State of New Jersey, exclusive of any conflicts of law rules of New Jersey or any other jurisdiction.
16.2 Each Party consents to the exclusive personal jurisdiction of the Federal and State courts located in New Jersey for any action or proceeding for the enforcement of any arbitral award under Section 14.2 and for any other action or proceeding not subject to Section 14.2 and arising from or related to this Agreement and any transactions contemplated hereby.