Terms of Use

Terms of Use

Welcome to DrCloudEHR, the website (“Site”) and Web Services of EnSoftek Inc. and its subsidiaries. All references to “EnSoftek”, DrCloudEHR, “we”, “us”, or “our” shall mean EnSoftek and its affiliated companies. All references to “you” or “your” shall refer to Customer, and to any of your Affiliates (defined below) that agree to be bound by this Agreement.

These Terms of Service explain the terms by which you may use our online services, website, mobile applications, and software provided on or in connection with the service and also govern any all communications with us via phone, email, text or otherwise (collectively the “Web Services”). By accessing or using the Web Services through any direct or indirect means, you signify that you have read, understood, and agree to be bound by this Terms of Service Agreement (“Agreement” or “Terms of Service”) and to the collection and use of your information as set forth in the  EnSoftek Privacy Policy, whether or not you are a registered user of our Service. This Agreement applies to all visitors, users, and others who access or use the Web Services (“Customer”).

Please read these terms carefully. If you do not agree to them you must not use the Site or Web Services.

1. Definitions.
   • “Web Services.” DrCloudEHR™ online Electronic Medical Records (EMR) service as may be more particularly described on the applicable Order, and any updates or upgrades to our Web Services that may be generally released by us to all customers from time to time. We reserve the right to update and modify the Web Services from time to time.
   • “Order.” A written purchase order signed by the parties in the form of Exhibit C, “Investment Overview” or any official Change Request or other binding Order Confirmation to be attached to this Agreement.
   • “Affiliate.” Any parent or Subsidiary Corporation, and any corporation or other business entity controlling, controlled by or under common control with you.
   • “Privacy Policy”. Our Privacy Policy that may be accessed as follows http://www.drcloudehr.com/privacy-policy/. We reserve the right to modify our Privacy Policy from time to time in accordance with its terms.
   • “HIPAA Regulations.” The Standards for Privacy of Individually Identifiable Health Information and the Security Standards for the Protection of Electronic Protected Health Information [45 C.F.R. Parts 160 and 164] promulgated by the U.S. Department of Health and Human Services under the Health Insurance Portability and Accountability Act (HIPAA) of 1996, as amended, modified, or renumbered.
   • “HITECH Act.” The Health Information Technology for Economic and Clinical Health (HITECH) Act, Pub.L. 111‐5, Div. A. Title XIII and Title IV of Div. B.) (generally effective February 17, 2010).
   • “ePHI.” The same meaning as the term “electronic protected health information” under the HIPAA Regulations.
   • “Qualified Service Organization/Business Associate Agreement.” The same meaning as “business associate” agreement under the HIPAA Regulations, as modified to comply with the Confidentiality of Patient Records Act (as defined below.)
   • “Changes.” All Changes to this Agreement will be contained in Exhibit D.

2. Web Services.
   • Subject to the terms and conditions hereof, including without limitation our Privacy Policy and the applicable Qualified Service Organization/Business Associate Agreement, we shall provide the nonexclusive, non-transferrable right to use and operate the Web Services to you and your Affiliates during the term of this Agreement in accordance with the applicable Order. The initial Order is attached.
   • The parties agree to execute the Qualified Service Organization/Business Associate Agreement attached as Exhibit A with the understanding that it is the Qualified Service Organization/Business Associate Agreement that is applicable to this Agreement.
   • You will be granted authorized login protocols for the Web Services, and you agree not to use the Web Services in excess of your authorized login protocols. You agree not to access (or attempt to access) the Web Services by any means other than through the login protocols we provide. You agree not to access (or attempt to access) the Web Services through any automated means (including use of scripts or web crawlers), and you agree to comply with the instructions set out in any robots.txt file present on the Web Services.
   • You are not authorized to (i) resell, sublicense, transfer, assign, or distribute the Web Services or content; (ii) modify or make derivative works based upon the Web Services or content; (iii) “frame” or “mirror” the Web Services or content on any other server or Internet‐enabled device, or (iv) reverse engineer, decompile the Web Services or their enabling software for any purpose.
   • You are not authorized to use our Web Services or servers for the propagation, distribution, housing, processing, storing, or otherwise handling in any way lewd, obscene, or pornographic material, or any other material which we deem to be objectionable. The designation of any such materials is entirely at our sole discretion.
   • Nothing in this Agreement will be deemed to convey any title or ownership interest in the DrCloudEHR Web Services or the Third-Party Programs to the Customer. If suggestions made by Customer are incorporated into subsequent versions of the Web Services or if changes are made to the Web Services through the use of provided configuration tools contained in the Web Services are incorporated into subsequent versions of the Web Services, Customer hereby assigns to EnSoftek all rights Customer may have in changes and to any suggestions, concepts, or improvements concerning the Web Services, or other products and services that may result from Customer communication to EnSoftek.
   • Availability of Web Services is subject to our Service Level Agreement attached as Exhibit B.

3. Payment Terms
   • Invoicing and Payment. Payment of the Implementation and Configuration charge shall be due within ten (10) days of receipt of invoice. Recurring charges for subscription/access shall start no later than the first day of the month for the same month of the Contract Effective Date of this Agreement. Monthly recurring charges are billed at the beginning of the month for which services are rendered and payable with net 10 terms.
   • You will pay all fees specified herein this Agreement or an applicable Order. Except as otherwise noted herein or in an applicable Order, (i) fees are based on services and content subscriptions purchased and not actual usage, (ii) payment obligations are non-cancelable and fees paid are non-refundable, and (iii) quantities purchased cannot be decreased during the relevant subscription term.
   • Late Charges and Collection Costs. In the event that any amounts payable hereunder by Customer to EnSoftek are not paid within thirty (30) days of the due date under section 3.1, then the amount otherwise payable shall bear a late charge from and after the date when such amount was due (without regard to any cure period) at a rate which is equal to the lesser of (i) eighteen percent (18%) per annum or (ii) the maximum amount allowed by applicable law, compounded monthly. In addition, if EnSoftek engages the services of a collection agency, organization, or firm and/or the services of legal counsel to collect any amount payable hereunder, then Customer shall be liable to EnSoftek for, in addition to the amount actually due plus applicable late charges, all costs incurred by EnSoftek in collecting such amounts, including (without limitation) the charges of any and all collection agencies, firms, or organizations; the costs and charges of investigators; and all court costs, attorney’s fees, paralegal fees, and like charges incurred by EnSoftek  in collecting any amounts due hereunder. Services may be suspended pending payment.
   • Suspension of Service and Acceleration. If any amount owed by Customer under this or any other agreement is thirty (30) or more days overdue (or ten (10) or more days overdue in the case of amounts Customer has authorized EnSoftek to charge Customer’s credit card), EnSoftek may without limiting our other rights and remedies, accelerate Customer unpaid obligations under such agreements so that all obligations become immediately due and payable, and suspend services until such amounts are paid in full. Other than for customers paying by credit card or direct debit whose payment has been declined, EnSoftek will give Customer at least 10 days’ prior notice that the account is overdue, before suspending services.
   • Change in Fees. EnSoftek will notify Customer of any change in subscription fees for Services effective thirty (30) days after providing notice; provided, however, that such an increase will not exceed 5% in a twelve (12) month period. Fees for Optional add-ons are subject to change at any time with a thirty (30) day prior notice, effective thirty (30) days from the date notice was sent.

4. • The software and technology used by us to generate and provide the Web Services are protected by law, including, but not limited to, United States copyright law and international treaties. The copyrights and other intellectual property rights in this material are owned by us and/or others. Except for the limited rights granted herein, all other rights are reserved.
   • You will be the co-owner of all intellectual property rights in your patient files. We will make available your data in a common acceptable format when requested.

5. Term; Termination.
   • This Agreement shall commence on the Effective Date and will remain in full force and effect for 60 months (“Initial Term”) and any subsequent Renewal Terms.
   • At the expiration of the Initial Term, this Agreement will automatically renew for successive twelve (12) month periods (each a “Renewal Term” and collectively with the Initial Term the “Term”) unless either party provides the other party written notice of its intent not to renew this Agreement at least sixty (60) days prior to the expiration of the current term.
   • This Agreement may be terminated prior to the expiration of the Term on written notice: (i) By EnSoftek, if Customer fails to pay any amount due hereunder and such failure continues for 30 days after Customer’s receipt of written notice of nonpayment; (ii) By EnSoftek, if Customer commits a material breach of any material provision of this Agreement and either the breach cannot be cured or, if the breach can be cured it is not cured by Customer within fifteen (15) days after Customer’s receipt of written notice of such breach; (iii) By Customer, if EnSoftek commits a material breach of any warranty set forth in Section 7 and such breach is not cured by EnSoftek in accordance with Section 7.1; (iv) By either party, effective immediately, if the other party files, or has filed against it, a petition for voluntary or involuntary bankruptcy or pursuant to any other insolvency law, makes or seeks to make a general assignment for the benefit of its creditors or applies for, or consents to, the appointment of a trustee, receiver or custodian for a substantial part of its property.
   • Termination of your account includes (i) removal of access to all Web Services, and (ii) deletion of your login protocols. Promptly after the effective date of termination, we will transmit your patient files in a mutually agreeable data format. EnSoftek will make every reasonable effort to provide the data to the Customer but will not be held liable if Customer does not make necessary arrangements for receipt of data within fifteen (15) days of termination
   • The expiration or termination of this Agreement, for any reason, shall not release either party from any liability to the other party, including any payment obligation that has already accrued hereunder.

6. Account‐Related Responsibilities.
   • You are responsible for maintaining the confidentiality of your login protocols, and any additional information that we may provide regarding accessing the Web Services. If you knowingly share your login protocols with another person who is not authorized to use the Web Services, this Agreement is subject to termination for cause. You agree to immediately notify us of any unauthorized use of your login protocols or any other breach of security.

7. Limited Warranty; Disclaimers.
   • We warrant that (i) we will undertake commercially reasonable efforts to maximize uptime for the Web Services, except for routine maintenance, and (ii) the Web Services will be free of material defects and will conform to the descriptions provided in the applicable order (“Limited Warranty”). Your sole and exclusive remedy for breach of this Limited Warranty shall be the prompt correction of material defects and non‐conforming Web Services at our expense. EXCEPT FOR THE FOREGOING LIMITED WARRANTY, WE DISCLAIM ALL WARRANTIES, BOTH EXPRESS AND IMPLIED, INCLUDING IMPLIED WARRANTIES RESPECTING MERCHANTABILITY, TITLE, AND FITNESS FOR A PARTICULAR PURPOSE.
   • We represent and warrant that during the term of this Agreement, we will comply with applicable state and federal laws and regulations, including without limitation, HIPAA, HITECH ACT and Identity Theft protection Act.

8. Consequential Damages Waiver.
   • EXCEPT (i) AS MAY BE PROVIDED IN ANY APPLICABLE QUALIFIED SERVICE ORGANIZATION/BUSINESS ASSOCIATE AGREEMENT OR THE HIPAA REGULATIONS OR THE HITECH ACT OR THE CONFIDENTIALITY OF PATIENT RECORD ACT, OR (ii) FOR OBLIGATIONS REGARDING CONFIDENTIAL INFORMATION EXPRESSLY PROVIDED HEREIN, IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER UNDER ANY THEORY INCLUDING CONTRACT AND TORT (INCLUDING NEGLIGENCE AND STRICT PRODUCTS LIABILITY) FOR ANY INDIRECT, SPECIAL OR INCIDENTAL OR CONSEQUENTIAL DAMAGES, EVEN IF THE PARTY CAUSING SUCH DAMAGES HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

9. Indemnity; Liability Cap.
   • “Loss” or “Losses” means (a) all reasonable attorney fees paid or payable by an Indemnitee (as defined in Section 9.2 below) in defense of any claim subject to indemnification under this Section 8, whether prior to, at trial or any other proceeding and in any appeal or other post judgment proceeding; and (b) all sums paid or payable to any other person, including all direct losses and damages (except as disclaimed in this Agreement), injuries (including personal injury, sickness and death), interest, costs, fines, taxes, premiums, assessments, penalties, expenses, attorney fees (whether incurred prior to, at trial or any other proceeding and in any appeal or other post judgment proceedings) and other liabilities of any kind or nature.
   • Indemnification Obligations. Each party (the “Indemnitor”) will indemnify, defend, and hold harmless the other party, its Affiliates, and their respective officers, directors, shareholders, employees and agents (jointly and severally, the “Indemnitees”) from and against all Losses asserted directly or indirectly by any other person for any actual or alleged: (a) infringement of any trademark, patent, copyright, right of privacy, publicity, name or likeness, or any other intellectual property right of that other person, or misappropriation or unauthorized use or disclosure of any trade secret of another person, by the Indemnitor or any Web Services, goods or services provided by the Indemnitor; (b) defect in the Web Services, goods or services provided by the Indemnitor; (c) negligent act or omission by the Indemnitor; (d) breach of any representation, warranty or covenant in this Agreement, any Order or elsewhere by the Indemnitor; (e) intentional misconduct by the Indemnitor; (f) violation of any applicable law by the Indemnitor; and (g) claim that any of the Indemnitor’s employees, principals, contractors or subcontractors are employees of an Indemnitee; in each case, whether arising from or in connection with a demand, action, regulatory action, lawsuit, proceeding (including proceedings under the US Bankruptcy Code), judgment, settlement, appeal or other post judgment proceeding and whether asserted in contract, tort, strict liability or otherwise.
   • Exceptions. The indemnification obligations described above will not apply to a Loss to the extent that Loss was caused by: (a) the Indemnitees’ negligent acts or omissions; (b) the Indemnitees’ breach of any representation, warranty or covenant in this Agreement or elsewhere; (c) the Indemnitees’ intentional misconduct; (d) the Indemnitees’ violation of any applicable law; (e) the Indemnitor’s compliance with specifications or detailed instructions submitted by an Indemnitee, but only if the Loss would not have arisen but for that compliance; (f) the Indemnitees’ modification of the Web Services, goods or services provided by the Indemnitor without the Indemnitor’s consent (other than those modifications contemplated by the Parties); (g) the Indemnitees’ use of Web Services, goods or services provided by the Indemnitor in combination with software, goods or services that were not provided or recommended by the Indemnitor or contemplated by the parties, except that this exception will apply only if (i) there are other commercially reasonable non‐infringing alternative uses for the Web Services, goods or services provided by the Indemnitor; and (ii) the Loss would not have arisen but for that combination; or (h) the Indemnitees’ use of any Licensed Web Services, goods or services after the Indemnitor has furnished to the Indemnitees, at no additional cost, a non-infringing version of the Web Services, goods and services that provide the same or greater functionality and performance as the original Web Services, goods and services.
   • The Indemnitor’s duty to indemnify the Indemnitees under this Section 9 is subject to the Indemnitees’ compliance with each of the following conditions:
     • Notice. The Indemnitees promptly notify the Indemnitor of the Loss (except that the Indemnitees’ failure to promptly notify the Indemnitor of a Loss will not limit, impair or otherwise affect the Indemnitees’ rights under this Section 8 unless the Indemnitor is prejudiced by that failure, and then only to the extent of the prejudice); and
     • Authority. The Indemnitees give the Indemnitor full and complete authority (including settlement authority) and reasonable assistance (including reasonable access to information in the Indemnitees’ possession) for that defense. However, the Indemnitor’s rights under this subsection are contingent on its agreement that it will not settle any claim without the Indemnitees’ prior written consent unless that settlement includes a full and final release of all claims against the Indemnitees and does not impose any obligations on the Indemnitees.
   • Liability Cap. Except (i) as may be provided in any applicable QUALIFIED SERVICE ORGANIZATION/BUSINESS ASSOCIATE AGREEMENT OR THE HIPAA REGULATIONS OR THE HITECH ACT OR THE CONFIDENTIALITY OF PATIENT RECORD ACT, or (ii) for obligations regarding confidential information expressly provided herein, our aggregate liability, if any, including liability arising out of contract, negligence, strict liability in tort or warranty, or otherwise, shall not exceed the total of monthly fees payable by you for the six (6) periods immediately preceding the claim for such liability.

10. Reciprocal Disclosure of Confidential Information and ePHI.
    • We anticipate that each of us may disclose confidential information to the other. Accordingly, we desire to establish in this Section terms governing the use and protection of certain information one party (“Owner”) may disclose to the other party (“Recipient”). The Owner retains sole and exclusive ownership of its Confidential Information (defined below).
    • For purposes hereof, “Confidential Information” means the terms and conditions hereof, and other information of an Owner (i) which relates to Web Services, including non‐public and confidential business models and plans, and technical information and data of Owner or its customers or suppliers, (ii) which includes or relates to patient files or patient records, or (iii) which, although not related to the Web Services, is nevertheless disclosed hereunder, and which, in any case, is disclosed by an Owner to Recipient in document or other tangible form bearing an appropriate legend indicating its confidential or proprietary nature, or which, if initially disclosed orally or visually is identified as confidential at the time of disclosure and a written summary hereof, also marked with such a legend, is provided to Recipient within fifteen (15) days of the initial disclosure.
    • Recipient may use Confidential Information of Owner only for the purposes of this Agreement and shall protect such Confidential Information from disclosure to others, using the same degree of care used to protect its own proprietary information of like importance, but in any case using no less than a reasonable degree of care. Recipient may disclose Confidential Information received hereunder only as reasonably required to perform its obligations under this Agreement and only to its employees who have a need to know for such purposes and who are bound by signed, written agreements to protect the received Confidential Information from unauthorized use and disclosure. The restrictions of this Agreement on use and disclosure of Confidential Information shall not apply to information that: (i) is in the possession or control of Recipient at the time of its disclosure hereunder; (ii) is, or becomes publicly known, through no wrongful act of Recipient; (iii) is received by Recipient from a third party free to disclose it without obligation to Owner; or (iv) is independently developed by Recipient without reference to Confidential Information.
    • Recipient may also receive personally identifiable information, individually identifiable health information or ePHI (together referred to as “Customer’s Individually Identifiable Confidential Information” or “CII Confidential Information”) in connection with the Web Services. Recipient shall comply with all duties and obligations imposed by the applicable Qualified Service Organization/Business Associate Agreement under the HIPAA Regulations, the HITECH ACT, the Confidentiality of Patient Records Act, and any other federal or state regulations governing the disclosure of personally identifiable information, individually identifiable health information or ePHI transmitted to Recipient in connection with the Web Services. Any breach of the applicable Qualified Service Organization/Business Associate Agreement by Recipient, or any violation by Recipient of the HIPAA Regulations, the HITECH ACT, the Patient Records Act, or the Oregon Identity Theft Protection Act will be a material breach of this Agreement.
    • Notwithstanding anything to the contrary contained herein, an Owner may request Recipient in writing to return or destroy the Owner’s Confidential Information, and the Recipient agrees to comply promptly, and in the case of destruction, to certify in writing that the destruction has been completed.

11. Export Control.
    • We provide Web Services and use software and technology that may be subject to United States export controls administered by the U.S. Department of Commerce, the United States Department of Treasury Office of Foreign Assets Control, and other U.S. agencies and the export control regulations of Switzerland and the European Union. You acknowledge and agree to comply with applicable export controls.

12. Registration Data.
    • Registration is required for you to establish an account at the Web Services. You agree (i) to provide certain current, complete, and accurate information about you as prompted to do so by our online registration form (“Registration Data”), and (ii) to maintain and update such Registration Data as required to keep such information current, complete and accurate. You warrant that your Registration Data is and will continue to be accurate and current, and that you are authorized to provide such Registration Data. You authorize us to verify your Registration Data at any time. If any Registration Data that you provide is untrue, inaccurate, not current or incomplete, we retain the right, in its sole discretion, to suspend or terminate rights to use your account. Solely to enable us to use information you supply us internally, so that we are not violating any rights you might have in that information, you grant to us a nonexclusive license to (i) convert such information into digital format such that it can be read, utilized and displayed by our computers or any other technology currently in existence or hereafter developed capable of utilizing digital information, and (ii) combine the information with other content provided by us in each case by any method or means or in any medium whether now known or hereafter devised. The Registration Data will not be provided to any third parties and will be protected from unauthorized disclosure to third parties ad provided in Section 13.2 below.

13. • We reserve the right to monitor your access and use of the Web Services without notification to you.

14. Information Security; Security Notice.
    • Customer shall be solely responsible for acquiring and maintaining technology and procedures for maintaining the security of Customer’s link to the Internet.
    • As part of the Web Services, we shall implement and maintain commercially reasonable and appropriate information security procedures with respect to any of Customer’s Individually Identifiable Confidential Information, or pursuant to this Agreement, consistent with prevailing industry standards to protect data from unauthorized access by physical and electronic intrusion, and that comply with applicable privacy rights, applicable law and business guidance issued by any federal or state regulatory agency to protect personally identifiable information, individually identifiable health information or ePHI. Without limiting any other provision in this Agreement, EnSoftek will not allow any other of its customers to view any information or data of Customer, its patients, employees, suppliers, licensors or licensees.
    • Unless resulting from the failure of EnSoftek and its affiliate companies to perform the obligations specified in Section 10 and Section 14.2 above, the parties agree that we shall not be held responsible or liable for situations (i) where data or transmissions are accessed by third parties through illegal or illicit means, or (ii) where the data or transmissions are accessed through the exploitation of security gaps, weaknesses, or flaws unknown to us at the time and should not have reasonably been known to us in EnSoftek’s risk assessment.
    • We will (a) promptly report to you any unauthorized access to your data promptly upon discovery by us, and we will use diligent efforts to promptly remedy any breach of security that permitted such unauthorized access. In the event notification to persons included in your data is required, you shall be solely responsible for any and all such notifications at your expense.

15. • We may give notice to you by means of (i) a general notice in your account information, (ii) by electronic mail to your e‐mail address on record in your Registration Data, or (iii) by written communication sent by first class mail or pre‐paid post to your address on record in your Registration Data. Such notice shall be deemed to have been given upon the expiration of forty eight (48) hours after mailing or posting (if sent by first class mail or pre‐paid post) or twelve (12) hours after sending (if sent by email). You may give notice to us (such notice shall be deemed given when received) at any time by any of the following: (a) by letter sent by confirmed facsimile to us at the following fax number, (503) 626‐1769; or (b) by letter delivered by nationally recognized overnight delivery service or first class postage prepaid mail as follows: 735 SW 158^th Avenue, Suite 140 Beaverton, OR 97006, in either case, addressed to the attention of “President of the Company”. Notices will not be effective unless sent in accordance with the above requirements.
    • Applicable Laws and Venue. This Agreement and the Legal Relations between the Parties shall be governed by and construed in accordance with the laws of the State of Oregon without regard to principles of Conflicts of Laws otherwise applicable to such determinations, jurisdiction and venue with respect to any disputes arising hereunder shall be proper only in Multnomah County, Oregon, USA.
    • If any provision of this Agreement is declared invalid or unenforceable, such provision shall be deemed modified to the extent necessary and possible to render it valid and enforceable. In any event, the unenforceability or invalidity of any provision shall not affect any other provision of this Agreement, and this Agreement shall continue in full force and effect, and be construed and enforced, as if such provision had not been included, or had been modified as above provided, as the case may be.
    • Force Majeure. We shall not be liable for damages for any delay or failure of delivery arising out of causes beyond our reasonable control and without our fault or negligence, including, but not limited to, Acts of God, acts of civil or military authority, fires, riots, wars, internet disruptions, hacker attacks, communication failure, and embargoes. Provided the affected party immediately notifies the other party and takes reasonable and expedient action to resume operations.
    • Further Assurances. Each party shall, on the reasonable request and at the sole cost and expense of the other party, take, execute, acknowledge and deliver all such further acts, documents and instruments necessary to give full effect to this Agreement.
    • Relationship of the Parties. Nothing contained in this Agreement shall be construed as creating any agency, partnership, or other form of joint enterprise between the parties. The relationship between the parties shall at all times be that of independent contractors. Neither party shall have authority to contract for or bind the other in any manner whatsoever.
    • Neither party shall use the other party’s trademarks, service marks, trade names, logos, symbols or brand names, or otherwise issue or release any announcement, statement, press release or other publicity or marketing materials relating to the existence or subject matter of this Agreement, or the relationship between the parties, in each case, without the prior written consent of the other party.
    • Entire Agreement. This Agreement, together with all exhibits attached hereto, constitutes the sole and entire agreement of the parties with respect to the subject matter contained herein, and supersedes all prior and contemporaneous understandings, agreements, representations and warranties, both written and oral, with respect to such subject matter. This Agreement may only be amended, modified or supplemented by an agreement in writing signed by each party hereto. In the event of a conflict between the terms, provisions and conditions contained in the body of this Agreement and the terms, provisions and conditions contained in the Exhibits to this Agreement, the term, provisions and conditions contained in the body of this Agreement shall prevail.  In no event shall the provisions of any purchase order or any associated documentation used by Customer, constitute a binding agreement between the parties or serve to modify the provisions of this Agreement, regardless of any failure of EnSoftek to object to any purchase order or associated documentation.
    • The Customer shall not assign any of its rights or delegate any of its obligations hereunder without the prior written consent of EnSoftek. Any purported assignment or delegation in violation of this Section shall be null and void.  No assignment or delegation shall relieve Customer of any of its obligations hereunder.
    • No waiver by any party of any of the provisions hereof shall be effective unless explicitly set forth in writing and signed by the party so waiving. No waiver by any party shall operate or be construed as a waiver in respect of any failure, breach or default not expressly identified by such written waiver, whether of a similar or different character, and whether occurring before or after that waiver. No failure to exercise, or delay in exercising, any right, remedy, power or privilege arising from this Agreement shall operate or be construed as a waiver thereof; nor shall any single or partial exercise of any right, remedy, power or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power or privilege.
    • Those clauses the survival of which is necessary for the interpretation or enforcement of this Agreement shall continue in full force and effect in accordance with their terms notwithstanding the expiration or termination hereof, such clauses to include, without limitation, the following: Warranty Disclaimers, Limitation of Liability, Confidential Information, Information Security, Security Notice, Notices, Arbitration, Applicable Law, Jurisdiction and Venue, Severability, Force Majeure, and Miscellaneous.
    • United Nations Convention of Contracts. The application the United Nations Convention of Contracts for the International Sale of Goods is expressly excluded.
    • The headings in this Agreement are for reference only and shall not affect the interpretation of this Agreement.
    • This Agreement may be executed in counterparts, each of which shall be deemed an original, but all of which together shall be deemed to be one and the same agreement. A signed copy of this Agreement delivered by facsimile, e-mail or other means of electronic transmission (to which a signed PDF copy is attached) shall be deemed to have the same legal effect as delivery of an original signed copy of this Agreement.