Master Services Agreement

This Master Services Agreement (“MSA”) is made between Think Research Corporation, (“Think Research”) and you as identified in the Registration Form (“Customer”), together referred to as the “Parties” and each individually as a “Party”. This Agreement is effective as of the date you accept the terms and conditions set forth below (“Effective Date”). In the event of conflict between this MSA and the Registration Form, this MSA shall prevail. 

1.     Definitions

1.1.     Agreement means the Master Services Agreement, the Registration Form and any other attached documents, schedules, annexes or other documents that may be included.

1.2.     Affiliate means a separate legal entity that is controlled by, is under common control with, or controls Customer. The term “control” means (a) for commercial entities, ownership of more than fifty percent (50%) of the voting stock or assets of an entity or (b) for non-profit or governmental entities, statutory or other documented legal authority over the general budget and contracting rights of an entity; 

1.3.     Authorized Users means an individual that is authorized by Customer to access the Services;

1.4.     Confidential Information means all trade secrets, know-how, methodologies, designs, source codes, content, business and financial information, personal information, Intellectual Property, and any other information held in confidence by the other Party including but not limited to disclosed to one Party by the other, or incorporated in materials or products provided to one Party by the other and marked or indicated to be confidential;

1.5.     Customer Materials means any materials, content, data documents and information Customer or an Authorized User provides, stores, collects, transmits or receives for use with the Services and any materials Customer or Authorized User directs Think Research to provide, store, collect, use, transmit or receive via the Services(s).  Customer Materials does not include any component of the Services or material provided by or on behalf of Think Research.

1.6.     Documentation means Think Research’s then-current technical and functional documentation for the Services as made generally available by Think Research.

1.7.     Fees means all Think Research fees applicable to the Services;

1.8.     High Risk Activities. means activities where the failure of the Services could lead to death, serious personal injury, or severe environmental or property damage;

1.9.     Intellectual Property or IP means anything protectable by an Intellectual Property Right;

1.10.  Intellectual Property Right(s) means all patent rights, copyrights, trademark rights, rights in trade secrets (if any), design rights, database rights, domain name rights, moral rights, and any other intellectual property rights (registered or unregistered) throughout the world.

1.11.  Personal Information means information about an identifiable individual which includes personal health information and patient contact information in any format but excludes business contact information and de-identified or aggregated information that cannot reasonably be associated with a specific individual.

1.12.  Registration Form means the Virtual Care registration form provided by Think Research that sets out the Customer details, pricing, and any other required information.     

1.13.  Services means the VirtualCare solution provided by Think Research. 

1.14.  Third Party Payor means a third party designated by Customer who pays the Fees on Customer’s behalf;  

1.15.  Term shall have the meaning set forth in Section 4.1.

2.     Usage and Access Rights.

2.1.     Right to Use. Following Customer’s completion of the Registration Form and acceptance of these terms and conditions, Think Research will provide the Services to Customer in accordance with the Agreement. Think Research hereby grants to Customer a limited, non-exclusive, non-transferrable right and license during the Term,  and in accordance with the Documentation, to: (a) use the Services; (b) implement, configure, and permit its Authorized Users to access and use the Services; and (c) access and use the Documentation.

2.2.     Consents. Customer is responsible for obtaining any required consents and notices to permit (a) Customer’s use and receipt of the Services, and (b) to permit Think Research to access, store, use, collect, process and where applicable destroy data provided by Customer (including any Customer Materials, if applicable) under the Agreement.

2.3.     Compliance. Customer will (a) ensure that Customer and its Authorized Users’ use of the Services complies with the Agreement, (b) use commercially reasonable efforts to prevent any unauthorized access or use of the Services, (c) immediately terminate any unauthorized access or use of the Services, and (c) promptly notify Think Research of any unauthorized use of, or access to, the Services of which Customer becomes aware.

2.4.     Use Restrictions. Customer will not, and will not allow Authorized Users or others under its control to, (a) copy, modify, create a derivative work of, reverse engineer, decompile, translate, disassemble, or otherwise attempt to extract any of the source code of the Services (except to the extent such restriction is expressly prohibited by applicable law); (b) sell, resell, license, sublicense, transfer, or distribute the Services; (c) use the Services for any purposes other than for its internal business purposes, (d) use the Services to offer outsourcing, data processing, Services bureau, time-sharing or any other Services to third parties, (e) knowingly or negligently access or use the Services in a manner that abuses or disrupts Think Research networks, security systems, or Services, (f) transmit or post on the Services any material that is deemed abusive, harassing, obscene, slanderous, fraudulent, libelous or otherwise objectionable or unlawful, (g) transmit or post on the Services any material that contains software viruses or other harmful or deleterious computer code, files or programs, (h) transmit through or post on the Services any material that violates or infringes upon the rights of a third party, including those pertaining to: contract, intellectual property, privacy, or publicity or (i) access or use the Services (A) in a manner intended to avoid incurring Fees; (B)  in a manner that breaches, or causes the breach of any  applicable laws.

2.5.     Clinical Use. The Customer acknowledges and agrees that the Services are not intended to provide, or be the basis for, or otherwise contribute in any manner to the development of, any treatment decisions for individual patients or groups of patients.  Customer hereby acknowledges and agrees that it must review, contextualize, authorize and approve for its own clinical use, any such Services or Customer Materials.  The Customer shall, and shall ensure that its Authorized Users including but not limited to any health care providers using the Services under this Agreement: (1) apply reasonable clinical judgement when using the Services and/or any results or outputs from such Services; and (2) do not rely exclusively on the Services and/or any results or outputs from such Services when applying such reasonable clinical judgement. The Customer hereby agrees to defend, indemnify and hold harmless Think Research and its Affiliates against any and all liability for any and all claims made in respect of the Services.

2.6.     Services Suspension.  Think Research may suspend Customer’s access to any portion or all of the Services if Think Research reasonably determines that: (a) there is a threat or attack on the Services or other event that may create a risk to the Services, Customer or any other Think Research customer; (b) Customer’s use of the Services or the Customer Materials disrupts or poses a security risk to the Services or any other Think Research customer, may harm the Services or any other Think Research customer, or may subject Think Research or any third party to liability; (c) Customer is using the Services for fraudulent or illegal activities or engaging in prohibited activities; or (d) Customer has failed to pay the applicable fees as set forth in the Payment Section (collectively, “Services Suspensions”). Think Research will use commercially reasonably efforts to provide written notice to Customer of any Services Suspensions and will provide updates regarding resumption of availability of the Services following any Services Suspension. Think Research will have no liability for any damage, liability, losses (including any loss of data or profits) or any other consequences that Customer may incur as a result of any Services Suspensions. 

3.     Fees; Invoicing and Payment Terms.

3.1.     Fees. Fees for the Services are set out in the applicable Registration Form. Except as otherwise allowed in the Agreement, all Fees are non-cancellable and no refund shall be provided during the Term or during the applicable renewal term. Fees do not include applicable taxes.   

3.2.     Payment. Unless otherwise specified in the Registration Form, all payments are due net thirty (30) days from receipt of invoice. Customer is responsible for payment of all Fees as specified in the applicable Registration Form, even if Customer discontinues use of the Services during the Term. All payments shall be made without setoff or deduction for any amount and shall be made in the currency provided for in the applicable Registration Form.

3.3.     Taxes. Fees do not include applicable taxes. Think Research will use reasonable efforts to include all taxes applicable to Customer on the relevant invoice and Customer agrees to pay such taxes to Think Research unless Customer provides a valid tax exemption certificate. Customer is solely responsible for the payment of applicable taxes. 

3.4.     Overdue Payments. Customer’s payment of Fees is deemed overdue if Think Research has not received it by the payment due date. In the event that any amount is overdue, then Think Research may (i) charge Customer interest from such date until the date that payment is made, at a compounded rate of 1.5% per month (19.6% per year), and (ii) suspend the Services or terminate the applicable Registration Form. The Customer shall reimburse Think Research for all reasonable expenses incurred by Think Research to enforce payment.

3.5.     Purchase Orders. If Customer requires a purchase order number on its invoice, Customer will provide a purchase order number in the Registration Form. If Customer does not provide a purchase order number, then (a) Think Research will invoice Customer without a purchase order number, and (b) Customer will pay invoices without a purchase order number referenced. Any terms included on a purchase order are void.

3.6.     Third Party Payments. Customer may, by written notice to Think Research, designate a Third-Party Payor to pay the fees on Customer’s behalf. Customer will be responsible for any related charges assessed by a Third-Party Payor. When a Third-Party Payor is designated by Customer to pay fees under the Agreement, Think Research will send its standard notices regarding fees to such Third-Party Payor but all payments due under the Agreement will remain Customer’s ultimate responsibility. Customer will indemnify and hold Think Research harmless from and against any costs or penalties assessed against Think Research by any taxing authority and for any out-of-pocket expenses, including reasonable attorney fees, Think Research incurs out of or related to a Third-Party Payor’s acts or omissions under this Section. 

4.     Term and Termination.

4.1.     Term. The initial term of a Registration Form is the period of time that begins on the Effective Date and, unless terminated sooner as provided herein, will continue until the end of the Term as specified in the Registration Form. Unless otherwise stated in the Registration Form, at the conclusion of the Term, this Agreement will automatically renew for successive one (1) year periods (each such period being a “Renewal Term”). Both dates as specified on the Registration Form or any applicable Renewal Term shall collectively be referred to as the “Term”. The term of this MSA and this Agreement shall continue as long as the Registration Form remains valid and in effect. 

4.2.     Termination for Cause. If either Party commits a material breach under this Agreement, then the other Party may terminate this Agreement in its entirety by giving the defaulting Party written notice of termination, unless the material breach is cured within thirty (30) days after the defaulting Party receives notice thereof. Think Research may terminate the Agreement immediately for any violation by Customer of Think Research’s or Think Research’s licensors Intellectual Property Rights. Either Party may terminate this Agreement in its entirety upon written notice if the other Party becomes the subject of a petition in bankruptcy or any proceeding related to its insolvency, receivership or liquidation, in any jurisdiction, that is not dismissed within sixty (60) days of its commencement, or an assignment for the benefit of creditors.

4.3.     Post-Termination Obligations. If this Agreement expires or is terminated for any reason: (a) Customer will pay to Think Research any amounts that have accrued and remain unpaid as of the effective date of the expiration or termination; (b) any and all liabilities of either Party to the other Party that have accrued before the effective date of the expiration or termination will survive; (c) licenses and use rights granted to Customer with respect to the Services and Intellectual Property will immediately terminate; (d) Think Research’s obligation to provide any further Services to Customer under this Agreement will immediately terminate, and (e) the Parties’ rights and obligations under Sections 3.3, 4.3, 7, 9.3 and 11 through 13 will survive.

5.     Intellectual Property. Except as expressly described in the Agreement, the Agreement does not grant either Party any rights, implied or otherwise, to the other’s content or Intellectual Property.

5.1.     Customer Materials. Customer Materials processed using the Services is and will remain, as between Customer and Think Research, owned by Customer. Customer hereby grants to Think Research the non-exclusive right to use, collect, process, transmit, store and/or disclose the Customer Materials in order to (a) provide the Services to Customer, (b), to verify Customer’s compliance with the restrictions set forth in Section 2.4 (Use Restrictions), (c) to comply with any request of a governmental or regulatory body (including subpoenas or court orders) or as otherwise required by law, and (d) as otherwise set forth in this Agreement.   

5.2.     Think Research Services. Think Research, its Affiliates, or its licensors own all right, title, and interest in and to any and all Intellectual Property and any and all other rights in and to the Services and Documentation, any improvements, design contributions, or derivative works thereto, and any knowledge or processes related thereto and/or provided hereunder. 

5.3.     Third-Party Services or Materials. Customer may choose to obtain products or Services that are provided or supported by third parties (“Third-Party Services”) for use with the Services. Think Research assumes no responsibility for, and specifically disclaims any and all liability or obligation with respect to, any Third-Party Services that are provided pursuant to the terms of the applicable third-party license or separate agreement between the licensor of the Third-Party Services and Customer. Customer may choose to access or use materials that are provided by third parties (“Third-Party Materials”) for use with the Services. Notwithstanding anything to the contrary under this Agreement and irrespective of any modifications, improvements, enhancements, additions, or derivations provided by Think Research, Third-Party Materials are provided “AS IS” and for Customer’s convenience only. 

5.4.     Feedback. At its option, Customer may provide feedback and suggestions about the Services to Think Research (“Feedback”). If Customer provides Feedback, then Think Research and its Affiliates may use that Feedback without restriction and without obligation to Customer.

6.     Security and Customer Materials

6.1.     Security. Think Research will use commercially reasonable security measures in providing the Services. Think Research has implemented and will maintain appropriate technical and organizational measures to preserve the security, integrity, and confidentiality of Customer Materials and personal data and to protect against unauthorized or unlawful disclosure or corruption of or access to personal data. 

6.2.     Data Usage. Customer agrees that Think Research may de-identify any data or information including but not limited to any personal health information and other aggregate and non-aggregate information that has been uploaded, inputted or otherwise generated into or from the Services (collectively defined as “De-Identified Information”), and may use the De-Identified Information to generate usage data, statistics, product fixes, upgrades, development (including new product development), and share or transmit such data as Think Research deems necessary or is otherwise required to provide the Services provided it is pursuant to  applicable laws. Notwithstanding anything in the foregoing, provided Customer has obtained the required informed consent pursuant to any applicable law, Think Research may use, share or transmit Customer Materials including but not limited to Personal Information, for the purposes of supporting a publicly or privately funded healthcare program or project.

7.     Confidentiality. Each Party acknowledges that it may have access to certain Confidential Information of the other Party. The receiving Party (“Recipient”) will use the disclosing Party’s (“Discloser”) Confidential Information received in connection with the Agreement only in conjunction with the performance of its obligations under this Agreement. Recipient will not disclose Discloser’s Confidential Information received in connection with this Agreement to any third party unless Discloser gives Recipient written authorization to do so. This restriction does not apply to information that is: (a)  generally available to the public; (b) released by Discloser without restriction; (c) independently developed or acquired by Recipient; (d) known to the Recipient prior to receipt from Discloser; or (e) revealed pursuant to a court order or as required by applicable law, provided that Recipient uses commercially reasonable efforts to promptly notify Discloser of such requirement prior to compliance in order to permit Discloser to seek protection against disclosure. Recipient’s obligations of confidentiality hereunder with respect to each item of Discloser’s Confidential Information will continue for a period of five (5) years from the date of initial disclosure or as required by applicable law. For the purposes of this Section, Think Research Affiliates, if applicable and subcontractors will not be deemed “third parties”. 

7.1.     Privacy & Personal Information. Think Research may act for or on behalf of the Customer in respect of the collection, use or disclosure of Personal Information for the purposes of the Customer and not Think Research’s own purposes.  Unless otherwise stipulated in this Agreement or as may be agreed to between the Parties in an applicable Registration Form, Think Research will not disclose Personal Information to any person other than to the Customer or the Customer’s Authorized Users. Think Research will direct all requests for Personal Information, other than those requests made by Authorized Users, to the Customer.  Notwithstanding the foregoing, in order to deliver certain Services, Think Research may transmit Personal Information or data between Customer and another customer, or between Customer and a patient as part of the intended use of the Services.

8.     Technical Support. During the Term, Think Research will use reasonable efforts to help Customer solve specific problems with use of the Services. Customer agrees it shall provide level I basic troubleshooting support to its Authorized Users. Customer may obtain additional support Services from Think Research by executing a separate written agreement between the Parties. Think Research’s technical support obligations are subject to Customer’s establishing technical contacts with knowledge about the Services and Customer use of the Services who are qualified to provide Think Research with information necessary to Think Research to diagnose and remedy any problems. Customer acknowledges it may not be possible for Think Research to solve all problems or correct all errors in the Services. Think Research may from time to time, make available new releases, updates, and corrective code with respect to the Services. Such modifications are subject to the terms of this Agreement.

9.     Representations and Warranties. Each Party represents and warrants that it has full power and authority to enter into the Agreement.

9.1.     Warranties by Think Research. Think Research warrants that the Services when used as authorized under this Agreement, (i) it has the right to grant to Customer the subscription to use the Services; and (ii) that each commercially available release of the Services will perform materially in accordance with the applicable specifications of the Services. As Customer’s exclusive remedy for breach of these warranties, Think Research, at its option, will: (a) repair the Services; (b) replace the Services; or (c) terminate the Services and provide a pro-rated refund of any unused pre-paid Fees provided by Customer.   

9.2.     Warranties by Customer. Customer warrants that (a) it has the right to grant Think Research the right to use the Customer Materials; (b) it has obtained from the provider(s) of the Customer Materials the right for Think Research to access, collect, use, disclose and transmit the Customer Materials in accordance with the Agreement including but not limited to any data in relation to Personal Information;  (c) Customer’s use of the Customer Materials complies with all applicable license terms, terms of use and other usage terms as set forth by the providers of such materials; and (d) the publication, transmission and receipt of all Customer Materials complies with all applicable local, state, national, and international laws and regulations, including, without limitation, laws relating to trademarks, copyrights, and privacy. 

9.3.     DISCLAIMER. EXCEPT AS EXPRESSLY PROVIDED FOR IN THE AGREEMENT, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, THINK RESEARCH (A) DOES NOT MAKE ANY WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, INCLUDING WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR USE, NONINFRINGEMENT, OR ERROR-FREE OR UNINTERRUPTED USE OF THE SERVICES OR SOFTWARE,AND (B) MAKES NO REPRESENTATION ABOUT CONTENT OR INFORMATION ACCESSIBLE THROUGH THE SERVICES. THE SERVICES ARE NOT INTENDED TO BE USED FOR HIGH RISK ACTIVITIES. ANY USE OF THE SERVICES FOR HIGH RISK ACTIVITIES BY CUSTOMER OR ITS AUTHORIZED USERS WILL BE AT CUSTOMER’S OWN RISK, AND CUSTOMER WILL BE SOLELY LIABLE FOR THE RESULTS OF ANY FAILURE OF THE SERVICES WHEN USED FOR HIGH RISK ACTIVITIES. WITHOUT LIMITING THE GENERALITY OF THE FOREGING, THINK RESEARCH DOES NOT WARRANT OR REPRESENT (A) THAT CUSTOMER’S USE OF THE SERVICES WILL RESULT IN CUSTOMER’S COMPLIANCE, FUFILLMENT OR CONFORMITY WITH THE LAWS, RULES, REGULATIONS, REQUIREMENTS OR GUIDELINES OF ANY GOVERMENTAL AGENCY, OR (B) THAT THE SERVICES IS COMPLIANT WITH ANY LAWS OR REGULATIONS THAT IMPOSE SPECIFIC DATA SECURITY OBLIGATIONS WITH RESPECT TO THE STORAGE OR PROCESSING OF INFORMATION. 

10.  Indemnification.

10.1.     Indemnification by Think Research. If a third party makes a claim against Customer for (a) copyright, patent, trade secret or other intellectual property rights violation relating to Customer’s use of the Services; or (b) bodily injury, death or damage to tangible property, excluding loss of or damage to software or data, arising solely from actions which Think Research is legally responsible, Customer agrees to promptly notify Think Research in writing of any such claim, to allow Think Research to control the litigation or settlement of any such claim and to cooperate with Think Research in the investigation, defense and settlement thereof. In return, Think Research will indemnify Customer by paying for costs and attorney fees’ Customer incurs at Think Research’s direction and any judgment finally awarded against Customer or settlement approved by Think Research. Customer may participate in the defense at Customer’s own expense.  

10.2.     Indemnification by Customer. If a third party makes a claim against Think Research arising from or related to (a) the Customer Materials or (b) a violation by Customer of its obligations as set forth in Section 2,  Think Research agrees to promptly notify Customer in writing of any such claim, to allow Customer to control the litigation or settlement of any such claim and to cooperate with Customer in the investigation, defense and settlement thereof. In return, Customer will indemnify Think Research by paying for costs and attorney fees’ Think Research incurs at Customer’s direction and any judgment finally awarded against Think Research or settlement approved by Customer. Think Research may participate in the defense at Customer’s own expense.  

10.3.     Indemnification Exclusions. Sections 10.1 (Indemnification by Think Research) and 10.2 (Customer Indemnification Obligations) will not apply to the extent the underlying allegation arises from  (a) the indemnified party’s breach of the Agreement, (b) a combination of the Think Research Services with other software or materials not provided by Think Research under the Agreement, unless the combination is required by the Agreement, (c) a claim is based on Customer’s specifications, or (d) Customer’s modification to the Services.

10.4.     Remedies. 

10.4.1.     By Think Research. If Think Research reasonably believes the Services might infringe a third party’s Intellectual Property Rights, then Think Research may, at its sole option and expense, (i) procure the right for Customer to continue using the Services, (ii) modify the Services to make them non-infringing without materially reducing their functionality, or (iii) replace the Services with a non-infringing, functionally equivalent alternative. If Think Research does not believe the remedies in this Section are commercially reasonable, then Think Research may suspend or terminate the impacted Services.

10.4.2.      By Customer. If Customer reasonably believes that the Customer Materials might infringe a third party’s Intellectual Property Rights, then Customer may, at its sole option and expense, (i) procure the right for Think Research to continue using the Customer Materials, (ii) modify the Customer Materials to make them non-infringing, or  (iii) terminate the Think Research license to use the Customer Materials and, if applicable, remove the Customer Materials from the Services. Think Research agrees to abide by Customer’s decision and, if appropriate use a different version of the Customer Materials or stop using the Customer Materials. 

11.  Limitation of Liability.

11.1.     Exclusion of Damages. EXCEPT FOR THE PARTIES’ OBLIGATIONS UNDER SECTION 10 (INDEMNIFICATION), UNDER NO CIRCUMSTANCES, AND REGARDLESS OF THE NATURE OF THE CLAIM, SHALL EITHER PARTY (OR THEIR RESPECTIVE AFFILIATES) BE LIABLE TO THE OTHER PARTY FOR LOSS OF PROFITS, SALES OR BUSINESS, LOSS OF ANTICIPATED SAVINGS, LOSS OF USE OR CORRUPTION OF SOFTWARE, DATA OR INFORMATION, WORK STOPPAGE OR ANY CONSEQUENTIAL, INCIDENTAL, SPECIAL, COVER, PUNITIVE, OR EXEMPLARY DAMAGES ARISING OUT OF OR RELATED TO THE TRANSACTIONS CONTEMPLATED UNDER THIS AGREEMENT, EVEN IF APPRISED OF THE LIKELIHOOD OF SUCH LOSSES.

11.2.     Limitation of Liability. EXCEPT FOR: (A) THE PARTIES’ OBLIGATIONS UNDER SECTION 10 (INDEMNIFICATION);  AND (B) THINK RESEARCH’S RIGHT TO COLLECT UNPAID FEES DUE HEREUNDER, TO THE EXTENT PERMITTED BY LAW, THE TOTAL, CUMULATIVE LIABILITY OF EACH PARTY (OR THEIR RESPECTIVE AFFILIATES) ARISING OUT OF OR RELATED TO THIS AGREEMENT OR THE SERVICES PROVIDED HEREUNDER WHETHER BASED ON CONTRACT, TORT (INCLUDING NEGLIGENCE), BREACH OF STATUTORY DUTY, OR ANY OTHER LEGAL OR EQUITABLE THEORY, SHALL BE LIMITED TO THE AMOUNTS PAID BY CUSTOMER FOR THE SERVICES(S) GIVING RISE TO THE CLAIM DURING THE TWELVE (12) MONTH PERIOD PRECEDING THE FIRST EVENT GIVING RISE TO LIABILITY. THE EXISTENCE OF MORE THAN ONE CLAIM SHALL NOT ENLARGE THIS CUMULATIVE LIMIT.  SOM EJURISDICTIONS DO NOT ALLOW LIMITATIONS OF LIABILITY OR EXCLUSIONS FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES SO CERTAIN PROVISIONS OF THIS SECTION MANY NOT APPLY TO CUSTOMER; HOWEVER, THEY APPLY TO THE GREATEST EXTENT PERMITTED BY APPLICABLE LAW.

12.  Governing Law and Venue. The Parties agree to the following country-specific provisions for governing law and venue for all claims and disputes arising out of or relating to this Agreement.  This Agreement will be interpreted, construed, and enforced in all respects in accordance with the following laws based on the address of the Customer reflected on the Registration Form.

12.1.     United Kingdom, Switzerland, Member State of the European Economic Area, or a Member State of Cooperation Council for the Arab States of the Gulf. This Agreement and any disputes or claims arising out of or in connection with it or its subject matter or formation (including without limitation non-contractual disputes or claims) are governed by and construed in accordance with the law of the Republic of Ireland. Each Party irrevocably agrees that the courts of the Republic of Ireland shall have exclusive jurisdiction to settle any dispute or claim arising out of or in connection with this Agreement or its subject matter or formation (including non-contractual disputes or claims). The provisions of the U.N. Convention on Contracts for the International Sale of Goods are expressly excluded and do not apply to this Agreement.

12.2.     For all other locations. This Agreement and any disputes or claims arising out of or in connection with it or its subject matter or formation (including without limitation non-contractual disputes or claims) are governed by and construed in accordance with the laws of the province of Ontario and the laws of Canada applicable therein and will be litigated exclusively in the courts of Ontario located in Toronto, Ontario; the Parties consent to personal jurisdiction in those courts. The provisions of the U.N. Convention on Contracts for the International Sale of Goods are expressly excluded and do not apply to this Agreement.

13.  General Terms.

13.1.     Headers. Headings and captions used in the Agreement are for reference purposes only and will not have any effect on the interpretation of the Agreement.

13.2.     Notices. Any notice required or permitted to be given in accordance with this Agreement will be effective only if it is in writing and sent using: (a) personally delivered; (b) by electronic mail; or (c) sent by registered mail or prepaid courier, to the appropriate Party at the address set forth on the Registration Form, with a copy, in the case of Think Research, to legal@thinkresearch.com.  Either Party may change its address for receipt of notice by notice to the other Party through a notice provided in accordance with this Section 13.2. Notices are deemed given upon receipt (i) if personally delivered, on the day of such delivery if such day is any Monday to Friday, other than a statutory holiday observed by Think Research (a “Business Day”) and such delivery was made prior to 5:00 p.m. and otherwise on the next Business Day following such day of delivery; or (ii) if by registered mail or prepaid courier on the second Business Day following the day on which it is mailed; or (iii) if by electronic mail, on the day the sender receives confirmation of receipt by return electronic mail from the recipient, if such day is a Business Day and if such confirmation was received prior to 5:00 p.m. and otherwise, on the next Business Day following the day such confirmation was received.  

13.3.     Assignment. Neither Party may assign the Agreement without the written consent of the other, except to an Affiliate where (a) the assignee has agreed in writing to be bound by the terms of the Agreement, (b) the assigning Party remains liable for obligations under the Agreement if the assignee defaults on them, and (c) the assigning Party has notified the other party of the assignment. Any other attempt to assign is void. If a Party experiences a change of control other than an internal restructuring or reorganization, then (a) that Party will give written notice to the other Party within 30 days after the change of control and (b) the other Party may immediately terminate the Agreement any time within 30 days after it receives that written notice.

13.4.     Force Majeure. Except for the obligation to make payments, neither Party will be liable for failure or delay in performance of its obligations to the extent caused by circumstances beyond its reasonable control, including but not limited to acts of God, natural disasters, terrorism, riots, war, restrictions of law, regulations, orders or governmental directives; labour disputes, fiber-optic cable cuts, interruption or failure of telecommunication lines or digital transmission links, internet failures or delays, cyber-attacks on information or information systems.

13.5.     Subcontracting. Think Research may subcontract obligations under the Agreement but will remain liable to Customer for any subcontracted obligations. 

13.6.     No Agency. The Agreement does not create any agency, partnership, or joint venture between the parties.

13.7.     No Waiver. Neither Party will be treated as having waived any rights by not exercising (or delaying the exercise of) any rights under the Agreement.

13.8.     Severability. If any part of the Agreement is invalid, illegal, or unenforceable, the rest of the Agreement will remain in effect.

13.9.     No Third-Party Beneficiaries. The Agreement does not confer any rights or benefits to any third party unless it expressly states that it does.

13.10.  Equitable Relief. Nothing in the Agreement will limit either Party’s ability to seek equitable relief.

13.11.  Amendments. Except as specifically described otherwise in the Agreement, any amendment to the Agreement must be in writing, expressly state that it is amending the Agreement, and be signed by both parties.

13.12. Entire Agreement. The Agreement states all terms agreed between the Parties and supersedes any prior or contemporaneous agreement, understandings, representations and commitments between the Parties whether written or oral, which may be related to such matters in any way including, but not limited to, those in any marketing materials or proposals provided by Think Research to Customer.  Additional or different terms on current or future purchasing documents of Customer or any third Party are expressly objected and rejected.