MASTER SERVICES AGREEMENT
GENERAL TERMS AND CONDITIONS
Last Updated: March 12, 2024
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Please read this Master Services Agreement (the “MSA”) carefully. This MSA governs Wrapt’s provision of software and services, and Customer’s (as defined below) use thereof, as set forth in an applicable Order Form (as defined below) executed between Wrapt Software, Inc. (“Wrapt” or “we”) and Customer. TOGETHER, THE MSA AND ANY APPLICABLE ORDER FORM(S) CONSTITUTE THE “AGREEMENT.” THE AGREEMENT IS EFFECTIVE AS OF THE ORDER FORM EFFECTIVE DATE (AS DEFINED AND SET FORTH IN THE INITIAL ORDER FORM) (“EFFECTIVE DATE”).

BY EXECUTING AN ORDER FORM THAT INCORPORATES THIS MSA BY REFERENCE, BY CLICKING ON THE “I ACCEPT” BUTTON AND/OR OTHERWISE USING THE SERVICES, THE INDIVIDUAL OR ENTITY OBTAINING THE RIGHT TO ACCESS SUCH SERVICES (“CUSTOMER” or “YOU”) IS AGREEING TO BE BOUND BY AND IS A PARTY TO THIS AGREEMENT. IF THE INDIVIDUAL SIGNING THE ORDER FORM FOR CUSTOMER IS SIGNING ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, SUCH INDIVIDUAL REPRESENTS THAT HE OR SHE HAS THE AUTHORITY TO BIND THAT COMPANY OR OTHER LEGAL ENTITY.  IF YOU DO NOT AGREE TO BE BOUND BY THESE TERMS AND CONDITIONS, YOU MAY NOT ACCESS OR USE THE SERVICES.
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1.          DEFINITIONS.  The following definitions shall apply to these Terms:
‍1.1       “Access Protocols” means the passwords, access codes, technical specifications, connectivity standards or protocols, or other relevant procedures, as may be necessary to allow Customer or any Authorized Users to access the Wrapt Platform.
‍1.2       “Affiliate(s)” means any legal entity that directly or indirectly is controlled by, controls or is under common control with another person or entity, provided that “control” means ownership as to more than 50% of another legal entity or the power to direct decisions of another legal entity, including the power to direct management and policies of another legal entity, whether by reason of ownership, by contract, or otherwise.
‍1.3       “Authorization” means an express consent and authorization from each Authorized User and from each Client permitting, under all applicable Data Protection Laws, the Personal Data and other Customer Content relating to that Authorized User or Client to be Processed by Wrapt solely as contemplated by this Agreement including, without limitation, to allow Wrapt to exercise the licenses in Section 3 hereof.
‍1.4       “Authorized User” means each of Customer’s employees, agents, and independent contractors who are authorized to access the Wrapt Platform pursuant to Customer’s rights under this Agreement.
‍1.5       “Wrapt Platform” means Wrapt’s proprietary software-as-a-service practice management software.  The Wrapt Platform is intended as a data collection and information management tool only and is not a diagnostic tool.
‍1.6       “Business Associate Agreement” or “BAA” means Wrapt’s business associate agreement setting forth the conditions under which Wrapt may create, receive, maintain or transmit PHI, as described in 45 C.F.R. § 164.504(e) and § 164.314(a).
‍1.7       “Data Protection Laws” means any applicable Laws, regulations, orders, or judgments issued by a governmental authority that govern the privacy, security, confidentiality, protection, processing or transfer of the Personal Data or that govern the rights of Authorized Users, Clients, or other data subjects with regard to that Personal Data. 

‍1.8       “De-identified Data” means data created and derived from Wrapt’s provision of its services under this Agreement that is anonymized and/or aggregated and which does not identify Customer, Client, or any other individual.
‍1.9       “Documentation” means the user’s manuals, if any, in either physical or electronic form, or other documentation provided to Customer with respect to the Wrapt Platform.
‍1.10     “Governmental Authority” means any federal, national, provincial or state or local government, or any political subdivision of any of them, or any agency, court or body exercising executive, legislative, judicial, regulatory or administrative functions.
‍1.11     “Intellectual Property Rights” means any and all intellectual property rights worldwide arising under statutory law, common law or by contract and whether or not perfected, including without limitation, all: (i) trade dress, trademark, and service mark rights; (ii) patents, patent applications and patent rights; (iii) rights associated with works or authorship including copyrights, copyright applications, copyright registrations, mask works rights, mask work applications, mask work registrations; (iv) rights relating to trade secrets and confidential information; (v) any rights analogous to those set forth in this section and any other proprietary rights relating to intellectual property; and (vi) divisionals, continuations, renewals, reissues and extension of the foregoing (as and to the extent applicable) now existing, hereafter filed, used or acquired, and whether registered or unregistered.
‍1.12     “Law(s)” means with respect to any party, in each case to the extent applicable to such party, its property, any of the Platform Services or in connection with this Agreement, any federal, national, provincial, state, county, municipal or local law, ordinance, statute, rule, regulation, code, policy, notice, treaty, judgment, executive order, decree, injunction, permit, issuance or other determination or finding of any Governmental Authority which is legally enforceable by a governmental entity.
‍1.13     “Personal Data” means any information relating to an identified or identifiable natural person, and all information that is “personal data,” “personal information,” or “personally identifiable information,” under applicable Data Protection Laws.
‍1.15     “Client” means any client of Customer whose Personal Data is submitted to the Wrapt Platform by one or more Authorized Users in connection with this Agreement.
‍1.16     “Platform Services” means the provision of access to the Wrapt Platform to Customer and its Authorized Users.
‍1.17     “Processing” (including “Process”, “Processes”, “Processed”, and other variants of the term) means any operation or set of operations that is performed upon Personal Data, whether or not by automatic means, such as collection, collation, recording, organization, storage, adaptation or alteration, retrieval, consultation, analysis, interpretation, compilation, aggregation, use, disclosure by transmission, dissemination, viewing, copying, deleting, or otherwise making available, alignment or combination, blocking or erasure, or destruction.
‍1.18     “Professional Services” means professional services provided by Wrapt to Customer as described in any statement of work or order form (“SOW”) separately executed.
‍1.19     “Customer Content” means any data (including, without limitation, Personal Data of Patients), content and information provided or submitted by, or on behalf of, Customer or its Authorized Users to or for use with, or in connection with the use or enjoyment of, the Services.
‍1.20     “Customer Materials” means, collectively, (i) Customer Content and (ii) other information, materials, software, information, instructions, data, or other materials provided by or on behalf of Customer or its Authorized Users in connection with Wrapt’s performance hereunder or under any SOW.
‍1.21     “Services” means any services provided by Wrapt to Customer under this Agreement, incluidng Professional Services and Platform Services.
‍1.22     “Updates” means upgrades, updates, bug fixes, or improvements to the Wrapt Platform that Wrapt generally releases to all users of the Wrapt Platform during the term of this Agreement.
‍1.23     “Usage Data” means any data collected by or on behalf of Wrapt relating to usage of the Wrapt Platform, including e.g., device and connection information; crash and error information; browser and operating system information; clickstream data; user conduct, engagement, intent, and interaction information; traffic logs; haptic, and positional data; and tracking information.
‍2.          GRANT OF SAAS ACCESS; INTELLECTUAL PROPERTY RIGHTS AND RESTRICTIONS.
2.1       Wrapt Platform. Subject to the terms and conditions of this Agreement, and payment of the Fees, Wrapt grants to Customer during the term of this Agreement a limited non-exclusive, non-transferable, non-sub-licensable license to access the Wrapt Platform on SaaS basis, solely in accordance with the Documentation, and subject to any restrictions set forth on an SOW.
‍2.2       Documentation. Subject to the terms and conditions of this Agreement, Wrapt grants to Customer during the term of this Agreement a non-exclusive, non-transferable license to download, copy and reproduce the Documentation solely for use in connection with the Wrapt Platform authorized by this Agreement.
‍2.3       Updates.  From time to time, Wrapt may (at Wrapt’s option) release and implement Updates.  Wrapt shall use commercially reasonable efforts to provide prior notice to Customer if such Update is material to Customer’s licensed use of the Wrapt Platform, except to the extent such Update concerns safety or the security of the Wrapt Platform and any data stored thereon, then Wrapt has the right to implement such Update immediately.
‍2.4       Provisioning of Wrapt Platform Only. Customer is responsible for meeting, and ensuring its Authorized Users meet, the then-current hardware, operating system, browser and other technical requirements necessary to properly use and access the Wrapt Platform.  The Platform Services do not include, and Wrapt shall not provide for, any Customer‐side hardware or software, programming, training, hardware or software not set forth in this Agreement. Customer is responsible for having access to the internet and computer systems required to access and use the Platform Services.
‍2.5       Responsibility for Access to Wrapt Platform. Customer shall be responsible for all access, including tracking and terminating, to the Wrapt Platform and/or Platform Services by any individual using Customer’s Access Protocols, including improper, malicious, or harmful access. Customer shall implement Customer’s own security measures in order to safeguard Customer’s Access Protocols and to prevent disclosure of the same to any third party. Customer is not entitled to resell, transfer, assign, or sub-license Customer’s rights under this Agreement to any third party. Customer shall use the Wrapt Platform solely for Customer’s own business purposes. Wrapt may audit Customer to ensure Customer compliance with this clause upon reasonable notice and during normal business hours. Customer shall cooperate with such audit.
‍2.6       Ownership and Proprietary Rights. The Wrapt Platform, Documentation, and any and all Updates, improvements, modifications, bug fixes, and version releases thereto, all Usage Data, and all Intellectual Property Rights therein, and all other generally applicable technologies developed in the course of performing under this Agreement are and remain the exclusive property of Wrapt. Wrapt also would own all improvements, insights, analytics, etc. that Wrapt creates through the exercise of the licenses set out in Section 3 below.
‍2.7       Restrictions. Customer’s use of the Wrapt Platform is limited to the scope of the license granted under this Section 2. Customer is not permitted to otherwise use the Wrapt Platform in any way. The Wrapt Platform and its structure, organization, source code, and Documentation constitute proprietary information and valuable trade secrets of Wrapt. Customer shall not, and shall not permit any third party to: (a) use or access the Wrapt Platform or Documentation other than in accordance with the terms of this Agreement; (b) modify, adapt, alter, translate, or create derivative works from the Wrapt Platform or Documentation; (c) sub-license, distribute, sell, use for service bureau use, lease, rent, loan, or otherwise transfer the Wrapt Platform, access to the Wrapt Platform, or Documentation to any third party; (d) reverse engineer, decompile, disassemble, or otherwise attempt to derive the source code for the Wrapt Platform; (e) disseminate performance-related information relating to the Wrapt Platform; (f) otherwise use, reproduce, display or copy the Wrapt Platform or the Documentation; (g) use the Wrapt Platform to store or Process any protected health information; or (h) use the Wrapt Platform to store or Process any Personal Data regarding natural persons who reside in the European Economic Area or California without having first entered into a data processing agreement with Wrapt.  
‍2.8       No Assignment; No Other Rights. Wrapt retains all rights, title and interests in and to the Wrapt Platform, the Platform Services, along with any improvements, Updates, or derivative works thereof. Nothing in this Agreement assigns or transfers any rights in the Wrapt Platform or the Platform Services to Customer. Wrapt grants and Customer obtains only the rights expressly granted under this Agreement. Any rights not expressly granted to Customer hereunder are expressly reserved by Wrapt.
‍3.          CUSTOMER-GRANTED RIGHTS; CUSTOMER OBLIGATION.
3.1       Grant of Licenses. Customer grants to Wrapt a limited, non-exclusive, transferable, royalty-free and paid up, sub-licensable license: (i) during the term of this Agreement, to receive, transmit, copy, and use Customer Materials to facilitate access to the Wrapt Platform and to perform and provide the Services; (ii) during the term of this Agreement and perpetually thereafter, (A) to use Customer Content to provide and improve Wrapt products and services (including without limitation the Wrapt Platform) and (B) to create and/or use De-identified Data.  Customer acknowledges and agrees that Wrapt shall be the owner of any De-identified Data created by Wrapt and may Process De-identified Data for any purposes permitted under applicable Law, including without limitation creating aggregated data sets, insights, and analytics for clinical and academic research purposes.  For the avoidance of doubt, De-identified Data shall not be the Confidential Information of Customer. Customer hereby transfers and assigns, and shall throughout the term of this Agreement transfer and assign, any rights Customer might otherwise have to any De-identified Data to Wrapt.
‍3.2       Rights in Customer Materials. Subject to the terms and conditions of this Agreement, between Customer and Wrapt, Customer shall retain all rights, title and interests in and to any Customer Materials not granted to Wrapt hereunder.
‍3.3       Customer Feedback. If Customer provides Wrapt with feedback, e.g., reports of defects in the Wrapt Platform, Platform Services or Documentation, or any changes or modifications proposed or suggested by Customer, any Authorized User, or any Customer clients (collectively “Customer Feedback”), Customer Feedback shall be the sole property of Wrapt and Wrapt shall have the right to use such Customer Feedback without any obligation to Customer.
‍4.          FEES AND EXPENSES; PAYMENTS
4.1       Fees. In consideration for the access rights granted to Customer and the Platform Services performed by Wrapt under this Agreement, Customer will pay to Wrapt the fees set out in the applicable SOW (“Annual Fees”). Such Annual Fees will be charged to the payment method specified on the SOW (“Payment Method”), quarterly, in advance.  In the event Customer exceeds the limitations relating to Authorized Users (as set forth on the SOW), Customer agrees to pay any additional per-user-per-month amounts as indicated on the SOW for each such additional Authorized User (as applicable) (“Additional Fees”). Customer hereby agrees to Wrapt’s automatic charging of such Fees to Customer’s Payment Method as described herein and that no further consent is required for such charges. Except as otherwise provided in the SOW, all fees for Professional Services (“Professional Services Fees”) are billed at the end of the month in arrears and payable within thirty (30) days of the date of the invoice.  Annual Fees, Additional Fees, and Professional Services Fees are referred to herein as the “Fees”.  Wrapt will be reimbursed only for expenses that are expressly provided for in an SOW or that have been approved in advance in writing by Customer, provided Wrapt has furnished such documentation for authorized expenses as Customer may reasonably request.  Wrapt reserves the right (in addition to any other rights or remedies Wrapt may have) to discontinue the Wrapt Platform and suspend all Authorized Users’ and Customer’s access to the Platform Services if Wrapt is unable to process any payment amounts to the Payment Method when due and/or Customer has not otherwise paid outstanding Fees for a period exceeding thirty (30) days from the date such Fees were due, until such amounts are paid in full. Customer will maintain complete, accurate and up-to-date Customer billing and contact information at all times.
‍4.2       Third Party Customer. Wrapt uses Stripe as the third party service Customer for payment services (e.g., card acceptance, merchant settlement and related services).  From time to time, Wrapt may use other third parties to provide payment services (together with Stripe, “Payment Processors”).  By selecting certain billing and/or payments features Customer agrees to comply with Stripe’s terms and conditions located at https://stripe.com/privacy, and such other policies of Payment Processors used by Wrapt from time to time, and hereby consents and authorizes Wrapt to share any information and payment instructions provided herein with Payment Processors to the minimum extent required to complete Customer’s transactions hereunder.
‍4.3       Audit Rights. Customer will keep and maintain, for a period of three (3) years (or longer, as required by applicable laws, rules, and regulations), full and complete records and books of account relating to Customer’s use of the Wrapt Platform.  Wrapt may inspect such records to verify rendered statements.  Any such inspection will be conducted by Wrapt or its designee during regular business hours at Customer’s offices in a manner that does not unreasonably interfere with Customer’s business activities.  Such inspection shall be at Wrapt’s cost and expense; provided, however, if the audit reveals overdue payments in excess of five percent (5%) of the payments owed to date, Customer shall immediately pay all such amounts and shall pay the cost of such audit(s) and for each such audit Wrapt may conduct another audit during the same twelve (12) month period.  Except as set forth above, such audits may be conducted no more than once in any twelve (12) month period.
‍4.4       Taxes. The Fees are exclusive of all applicable sales, use, value-added and other taxes, and all applicable duties, tariffs, assessments, export and import fees, or other similar charges, and Customer will be responsible for payment of all such taxes (other than taxes based on Wrapt’s income), fees, duties, and charges and any related penalties and interest, arising from the payment of the fees, the provision of the Services, or the license of the Wrapt Platform to Customer. Customer will make all payments of Fees to Wrapt free and clear of, and without reduction for, any withholding taxes; any such taxes imposed on payments of Fees to Wrapt will be Customer’s sole responsibility, and Customer will provide Wrapt with official receipts issued by the appropriate taxing authority, or such other evidence as the Wrapt may reasonably request, to establish that such taxes have been paid.
‍4.5       Interest. Any amounts not paid when due will bear interest at the rate of one and one half percent (1.5%) per month, or the maximum legal rate if less, from the due date until paid.
‍5.          CUSTOMER WARRANTIES AND COVENANTS
5.1       Customer Warranties.  Customer is solely responsible for any and all obligations with respect to the accuracy, quality and legality of Customer Content.  Customer will obtain all third party licenses, consents and permissions needed for Wrapt to use the Customer Materials to provide the Services.  Without limiting the foregoing, Customer will be solely responsible for obtaining from third parties all necessary rights for Wrapt to use the Customer Content submitted by or on behalf of Customer for the purposes set forth in this Agreement.  Customer represents and warrants that any Customer Materials will not (a) infringe any copyright, trademark, or patent; (b) misappropriate any trade secret; (c) be deceptive, defamatory, obscene, pornographic or unlawful; (d) contain any viruses, worms or other malicious computer programming codes intended to damage Wrapt ‘s system or data; and (e) otherwise violate the rights of a third party. While Wrapt periodically backs up Customer Content, Wrapt makes no guarantees with respect to the timing or efficiency of any such backups. Customer agrees that any use of the Wrapt Platform contrary to or in violation of the representations and warranties of Customer in this Section 5 constitutes unauthorized and improper use of the Wrapt Platform.  Customer represents and warrants to Wrapt that Customer has the legal right to convey the licenses granted to Wrapt in this Agreement so that the use by Wrapt of any Customer Materials in connection with this Agreement does not violate the Intellectual Property Rights or other rights of a third party, or any Laws.
‍5.2       Authorization. Customer represents, warrants and covenants that it has, and shall throughout the term of this Agreement have a valid legal basis for Wrapt ‘s Processing of Personal Data and, including, to the extent required by Data Protection Laws, an Authorization from each Authorized User and each client of Customer (the “Client”). Upon Wrapt’s reasonable request, Customer shall provide information sufficient to demonstrate the foregoing to Wrapt’s reasonable satisfaction. Customer further represents, warrants and covenants that Wrapt’s Processing of Personal Data as contemplated by this Agreement and/or as instructed by Customer shall not cause Wrapt to be in violation of any Data Protection Laws.
‍5.3       Regulatory Approvals. Customer is solely responsible for obtaining all regulatory approvals for: using the Wrapt Platform for any of Customer’s business purposes, providing Customer Content through the Wrapt Platform and authorizing Wrapt to Process Customer Content as contemplated by this Agreement, in accordance with all applicable Laws.  Wrapt shall provide reasonable assistance to respond to or to assist Customer in responding to any regulatory body inquiry or request for information regarding the Wrapt Platform.
‍5.4       Relationship with Third Parties. Customer acknowledges that Customer controls the relationship with Customer’s Authorized Users and Clients for purposes of this Agreement, and for all aspects of the provision of Customer’s services.  Customer, and not Wrapt, is solely responsible for the Customer Materials or other information or data that is chooses to share with its Clients. Customer will ensure that Customer’s operations and business terms with its Authorized Users and Clients comply with all Laws applicable to the Processing of the Customer Content, and Customer will make legally adequate disclosures of its privacy practices to the extent required by Data Protection Laws. Customer hereby agrees to and shall hold Wrapt harmless from and against any damages, claims, losses, settlements, attorney’s fees, and other expenses related to the Processing of any Customer Content.
5.5       Customer Security. Customer and its Authorized Users will have access to the Customer Content and will be responsible for all changes to and/or deletions of Customer Content and the security of all passwords and other Access Protocols required in order the access the Wrapt Platform. Customer will have the ability to export Customer Content out of the Wrapt Platform. Customer will have the sole responsibility for the accuracy, quality, integrity, legality, reliability, and appropriateness of all Customer Content.  Customer shall implement and maintain appropriate technical, physical, organizational and administrative security measures, procedures, practices and other safeguards to protect against unauthorized access to the Wrapt Platform. Customer shall promptly inform Wrapt of any actual or suspected security incident involving the Wrapt Platform. Customer shall reasonably cooperate with any of Wrapt’s investigations into Platform Service outages, security problems, and suspected breaches of the Agreement. NEITHER WRAPT NOR ANY OF ITS EMPLOYEES, AGENTS, REPRESENTATIVES, SERVICE SUPPLIERS OR LICENSORS WILL BE LIABLE FOR UNAUTHORIZED ACCESS (I.E., HACKING) INTO THE WRAPT PLATFORM OR THE PLATFORM SERVICES THROUGH CUSTOMER’S EQUIPMENT, OR USING CUSTOMER’S ACCESS CREDENTIALS, OR FOR UNAUTHORIZED ACCESS TO DATA FILES, PROGRAMS, PROCEDURES OR INFORMATION THEREON, UNLESS AND ONLY TO THE EXTENT THAT THIS DISCLAIMER IS PROHIBITED BY APPLICABLE LAW.
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‍6.          PROFESSIONAL SERVICES. Where the parties have agreed to Wrapt’s provision of Professional Services, the details of such Professional Services will be set out in a mutually executed SOW.  The SOW will include: (a) a description of the Professional Services; (b) the schedule for the performance of the Professional Services; and (c) any additional Professional Services Fees applicable for the performance of the Professional Services. Each SOW, as applicable, will incorporate the terms and conditions of this Agreement.
‍7.          WRAPT WARRANTIES AND DISCLAIMERS
7.1       Express Limited Warranty.  Wrapt represents and warrants only that it will provide the Services and perform its other obligations under this Agreement in a professional and workmanlike manner substantially consistent with general industry standards, as expected from similarly situated service providers. Provided that Customer notifies Wrapt in writing of the breach within thirty (30) days following performance of the defective Services, specifying the breach in reasonable detail, Wrapt will, as Customer’s sole and exclusive remedy, for any breach of the foregoing, re-perform the Services which gave rise to the breach or, at Wrapt’s option, refund the Fees paid by Customer for the Services which gave rise to the breach.
‍7.2       THE LIMITED WARRANTY SET FORTH IN SECTION 7.1 IS MADE FOR THE BENEFIT OF Customer ONLY. EXCEPT AS EXPRESSLY PROVIDED IN SECTION 7.1, AND TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE SERVICES AND DOCUMENTATION ARE PROVIDED “AS IS,” AND WRAPT  MAKES NO (AND HEREBY DISCLAIMS ALL) OTHER WARRANTIES, REPRESENTATIONS, OR CONDITIONS, WHETHER WRITTEN, ORAL, EXPRESS, IMPLIED OR STATUTORY, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF SATISFACTORY QUALITY, COURSE OF DEALING, TRADE USAGE OR PRACTICE, SYSTEM INTEGRATION, DATA ACCURACY, MERCHANTABILITY, TITLE, NON-INFRINGEMENT, OR FITNESS FOR A PARTICULAR PURPOSE. WRAPT DOES NOT WARRANT THAT ALL ERRORS CAN BE CORRECTED, OR THAT OPERATION OF THE WRAPT PLATFORM WILL BE UNINTERRUPTED OR ERROR-FREE.

‍8.          CONFIDENTIALITY
8.1       Confidential Information. “Confidential Information” means any nonpublic information of a party (the “Disclosing Party”), whether disclosed orally or in written or digital media, that is identified as “confidential” or with a similar legend at the time of such disclosure or that the receiving party (the “Receiving Party”) knows or should have known is the confidential or proprietary information of the Disclosing Party. The Platform Services, Documentation, and all enhancements and improvements thereto will be considered Confidential Information of Wrapt.
‍8.2       Protection of Confidential Information. The Receiving Party agrees that it will not use or disclose to any third party any Confidential Information of the Disclosing Party, except as expressly permitted under this Agreement. The Receiving Party will limit access to the Confidential Information to Authorized Users (with respect to Customer) or to those employees who have a need to know, who have confidentiality obligations no less restrictive than those set forth herein, and who have been informed of the confidential nature of such information (with respect to Wrapt). In addition, the Receiving Party will protect the Disclosing Party’s Confidential Information from unauthorized use, access, or disclosure in the same manner that it protects its own proprietary information of a similar nature, but in no event with less than reasonable care. At the Disclosing Party’s request or upon termination or expiration of this Agreement, the Receiving Party will return to the Disclosing Party or destroy (or permanently erase in the case of electronic files) all copies of the Confidential Information that the Receiving Party does not have a continuing right to use under this Agreement, and the Receiving Party will, upon request, certify to the Disclosing Party its compliance with this sentence.
‍8.3       Exceptions. The confidentiality obligations set forth in Section 8.2 will not apply to any information that (a) is at the time of disclosure or becomes generally available to the public through no fault of the Receiving Party; (b) is lawfully provided to the Receiving Party by a third party free of any confidentiality duties or obligations; (c) was already known to the Receiving Party at the time of disclosure free of any confidentiality duties or obligations; or (d) the Receiving Party can demonstrate, by clear and convincing evidence, was independently developed by employees and contractors of the Receiving Party who had no access to the Confidential Information. In addition, the Receiving Party may disclose Confidential Information to the extent that such disclosure is necessary for the Receiving Party to enforce its rights under this Agreement or is required by law or by the order of a court or similar judicial or administrative body, provided that (to the extent legally permissible) the Receiving Party promptly notifies the Disclosing Party in writing of such required disclosure and cooperates with the Disclosing Party if the Disclosing Party seeks an appropriate protective order.
‍9.          INDEMNIFICATION.
‍9.1       Customer.  Customer shall defend and indemnify Wrapt , its Affiliates, and their respective officers, directors, employees, and agents (“Wrapt Indemnified Parties”) from and against all claims, actions, or suits (whether by a third party or Governmental Authority), and related losses, expenses, damages, judgments, costs and other liabilities (including reasonable attorneys’ fees) (“Claims”) incurred by or assessed against any of the Wrapt Indemnified Parties, arising from or relating to (i) Customer’s failure to secure the rights and/or consents from third parties as necessary for Wrapt ‘s Processing of any Customer Content provided by Customer under this Agreement, (ii) allegations that any possession, transmission, storage, reproduction, or other use of any Customer Materials violates any Laws or rights of any third parties, or infringes or misappropriates any Intellectual Property Rights of any third party, (iii) allegations that any device, product, or services sold or offered by Customer causes any personal injury (including death) or property damage to any third party (including any Claims for product liability or strict liability) or violates any Laws; or (iv) the breach of any subsection of Section 5 by Customer.
‍9.2       Wrapt.  Wrapt shall defend and indemnify Customer from and against any Claims brought against Customer, its Affiliates, and their respective officers, directors, employees, and agents (“Customer Indemnified Parties”), but solely to the extent that the Claim is based upon an allegation that the permitted use of the Wrapt Platform, standing alone and not in combination with any technology provided by any third party or by or on behalf of Customer, infringes or misappropriates any Intellectual Property Rights of any third party.  The foregoing obligation does not apply to the extent of any Claims arising out of or relating to any: (i) access to or use of the Wrapt Platform in combination with any hardware, system, software, network or other materials or service not provided by Wrapt or explicitly described in the Documentation; (ii) failure to timely implement any modifications, upgrades, replacements or enhancements to the Wrapt Platform made available by Wrapt  to Customer; or (iii) Claims for which Customer owes an indemnification obligation to Wrapt.
‍9.3       Conditions to Indemnity.  The foregoing obligations are expressly conditioned on the indemnified party: (i) notifying the indemnifying party promptly in writing of such action; (ii) giving the indemnifying party sole control of the defense thereof and any related settlement negotiations; and (iii) cooperating and, at the indemnifying party’s request and expense, assisting in such defense. Neither the party seeking indemnification, nor the alleged indemnifying party shall offer to settle or otherwise compromise such claim or action without the other party’s prior written consent (which shall not be unreasonably withheld).  
‍9.4       Claims Related to Infringement of Intellectual Property Rights.  If the Wrapt Platform becomes, or in Wrapt’s opinion is likely to become, the subject of an infringement Claim, Wrapt may, at its option and expense, (A) procure for Customer the right to continue using the Wrapt Platform; (B) replace or modify the Wrapt Platform so that it becomes non-infringing; or (C) accept cancellation of all licenses covering the Wrapt Platform that is the subject of such Claim upon written notice to Customer. THIS SECTION STATES WRAPT ‘S ENTIRE LIABILITY AND CUSTOMER’S SOLE AND EXCLUSIVE REMEDY FOR INFRINGEMENT CLAIMS OR ACTIONS BASED ON THE Wrapt Platform.
‍10.       LIMITATIONS ON LIABILITY.
10.1     IN NO EVENT SHALL WRAPT, REGARDLESS OF LEGAL THEORY, BE LIABLE FOR ANY INDIRECT, INCIDENTAL, OR CONSEQUENTIAL DAMAGES, INCLUDING BUT NOT LIMITED TO ANY LOSS OF REVENUE, LOSS OF PROFIT, LOSS OF ANTICIPATED SAVINGS, OR ANY OTHER ECONOMICAL ADVANTAGE, ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, ANY PLATFORM SERVICES, OR OTHERWISE IN CONNECTION WITH THIS AGREEMENT.
10.2     IN NO EVENT SHALL WRAPT, REGARDLESS OF LEGAL THEORY, BE LIABLE FOR THE COST OF ANY REPLACEMENT SERVICES (I.E., “COST OF COVER”). IN NO EVENT SHALL WRAPT’S LIABILITY FOR SERVICES, REGARDLESS OF LEGAL THEORY, EXCEED, FOR ALL CLAIMS IN THE AGGREGATE, AN AMOUNT EQUAL TO THE FEES PAID BY CUSTOMER TO WRAPT UNDER THE APPLICABLE SOW DURING THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE DATE GIVING RISE TO LIABILITY.
10.3     Basis of the Bargain. The parties agree that the limitations of liability set forth in this Section will survive and continue in full force and effect despite any failure of consideration or of an exclusive remedy. The parties acknowledge that the prices have been set and the Agreement entered into in reliance upon these limitations of liability and that all such limitations form an essential basis of the bargain between the parties.
‍11.       TERM AND TERMINATION. The term of this Agreement (“Term”) commences on the Effective Date and continues until terminated as provided in this Agreement.  The term of each SOW is set forth on the applicable SOW. Following the expiration of the initial term of each SOW, the SOW shall be automatically renewed for separate but successive one-year terms unless either party provides written notice to the other party that it does not intend to renew this Agreement thirty (30) days or more prior to the end of any renewal term.  The parties may terminate an SOW or the Agreement as set out below:
‍11.1     Termination for Breach. Either party may terminate any SOW or this Agreement for breach if (i) the other party defaults in any payment to the terminating party and such default continues without a cure for a period of thirty (30) days after the delivery of written notice thereof by the terminating party to the other party, or (ii) if the other party defaults in the performance of any other material term or condition of an SOW or this Agreement and such default continues uncured for a period of thirty (30) days after the delivery of written notice thereof by the terminating party to the other party. In case such breach is not capable of being remedied, termination may occur upon written notification.
‍11.2     Termination for Convenience. Either party may terminate this Agreement upon ninety (90) days’ prior written notice in the event there are no outstanding SOWs under this Agreement.
‍11.3     Suspension of Services. Except to the extent prohibited by Data Protection Laws, Wrapt may suspend access to the Wrapt Platform in case of: (i) any outstanding invoice not being paid within thirty (30) days from the invoice date; (ii) Wrapt becoming aware of what it deems a credible claim that Customer’s use of the Wrapt Platform violates any applicable Laws, rules or regulations or infringes upon third party rights; (iii) Customer’s interference with the normal operation of the Platform Services; (iv) Wrapt  deciding that suspension of access to the Wrapt Platform Services is needed to protect the integrity of the Wrapt Platform or the Customer Content; or (v) in any event where Wrapt  is entitled to terminate this Agreement for cause. In each case of suspension as per above, Wrapt  shall give Customer an advance twelve (12) hours’ notice, unless Wrapt  reasonably determines that giving a shorter or no notice is necessary to protect the interests of Wrapt, of Customer, or of any third party.
‍11.4     Effect of Expiration or Termination; Survival. Following termination of this Agreement, Customer’s access rights to Wrapt Platform shall lapse and Wrapt shall no longer be required to provide access to the Wrapt Platform; provided, however, Wrapt agrees to provide Customer with limited continued access to the Wrapt Platform for thirty (30) days solely for the purposes of exporting Customer Content. In the event of termination or suspension of access to the Wrapt Platform, except as required by Law in each jurisdiction, Wrapt shall have no obligation to maintain any Customer Content. If requested by Customer, upon expiration or termination, Wrapt shall transfer Customer Content at a fee to be agreed upon by the parties. Further, expiration or termination of this Agreement under any of the foregoing provisions shall not affect the amounts due under this Agreement by either party that exist as of the date of expiration or termination. Notwithstanding termination or expiration of this Agreement, the following Sections shall survive: 2.6 through 2.9, 3.1(ii), 3.2, 3.3, 7.2, 8, 9.1, 10, 11.4, and 12.
‍12.       MISCELLANEOUS
12.1     Controlling Law; Disputes Resolution; Waiver of Jury Trial.a. This Agreement shall be governed by and interpreted in accordance with the laws of the State of Delaware exclusive of conflict or choice-of-law rules.  The parties specifically agree that the 1980 United Nations Convention on Contracts for the International Sale of Goods, as may be amended from time to time, does not apply to this Agreement. The parties hereby consent to the personal and exclusive jurisdiction and venue of the Federal and state courts located in Philadelphia, Pennsylvania. b. Notwithstanding the foregoing, except with respect to enforcing claims for injunctive or equitable relief, the parties shall submit any dispute, claim or controversy arising from or related in any way to this Agreement or the interpretation, application, breach, termination or validity hereof, or any other aspect of the relationship between Wrapt and Customer or their respective Affiliates, including without limitation any claim of inducement of this Agreement by fraud and a determination of the scope or applicability of this agreement to arbitrate, for resolution by binding arbitration in accordance with the Comprehensive Arbitration Rules & Procedures of JAMS. The arbitration is to be held at the JAMS location nearest to Wrapt’s headquarters and conducted in the English language. The parties shall maintain the confidential nature of the arbitration proceeding and any award, including the hearing, except as may be necessary to prepare for or conduct the arbitration hearing on the merits, or except as may be necessary in connection with a court application for a preliminary remedy, a judicial challenge to an award or its enforcement, or unless otherwise required by law or judicial decision. The arbitrator has the authority to award compensatory damages only and not the authority to award any punitive, exemplary, or multiple damages, and the parties waive any right to recover any such damages. Judgment on any award in arbitration may be entered in any court of competent jurisdiction. Notwithstanding the above, each party has recourse to any court of competent jurisdiction to enforce claims for injunctive and other equitable relief. c. IN THE EVENT OF ANY DISPUTE BETWEEN THE PARTIES, WHETHER IT RESULTS IN PROCEEDINGS IN ANY COURT IN ANY JURISDICTION OR IN ARBITRATION, THE PARTIES HEREBY KNOWINGLY AND VOLUNTARILY, AND HAVING HAD AN OPPORTUNITY TO CONSULT WITH COUNSEL, WAIVE ALL RIGHTS TO TRIAL BY JURY, AND AGREE THAT ANY AND ALL MATTERS SHALL BE DECIDED BY A JUDGE OR ARBITRATOR WITHOUT A JURY TO THE FULLEST EXTENT PERMISSIBLE UNDER APPLICABLE LAW. To the extent applicable, in the event of any lawsuit between the parties arising out of or related to this Agreement, the parties agree to prepare and to timely file in the applicable court a mutual consent to waive any statutory or other requirements for a trial by jury.
‍12.2     Export. Customer agrees not to export, reexport, or transfer, directly or indirectly, any U.S. technical data acquired from Wrapt, or any products utilizing such data, in violation of the United States export laws or regulations.
‍12.3     Severability. If any provision of this Agreement is, for any reason, held to be invalid or unenforceable, the other provisions of this Agreement will remain enforceable and the invalid or unenforceable provision will be deemed modified so that it is valid and enforceable to the maximum extent permitted by law.
‍12.4     Waiver. Any waiver or failure to enforce any provision of this Agreement on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion.
‍12.5     Assignment. Neither party will assign or otherwise transfer this Agreement, or its rights and obligations herein, without obtaining the prior written consent of the other party, and any attempted assignment, subcontract, delegation, or transfer in violation of the foregoing will be null and void; provided, however, that either party may assign this Agreement in connection with a merger, acquisition, reorganization or sale of all or substantially all of its assets, or other operation of law, without any consent of the other party. The terms of this Agreement will be binding upon the parties and their respective successors and permitted assigns.
‍12.6     Subcontracting. Customer acknowledges that Wrapt uses and may use the services of third party subcontractors, including but not limited to third‐party datacenters, hosting services Customers, technology service Customers and marketing Customers, and Customer consents to the corresponding subcontracting of Wrapt’s obligations under this Agreement. Wrapt shall be responsible for any act or omission by said third party subcontractors which, if performed or omitted by Wrapt, would constitute a breach of Wrapt’s obligations under this Agreement.
‍12.7     Compliance with Law. Customer will always comply with all international and domestic laws, ordinances, regulations, and statutes that are applicable to its purchase and use of the Services and Documentation.
‍12.8     Force Majeure. Any delay in the performance of any duties or obligations of either party (except the payment of Fees owed) will not be considered a breach of this Agreement if such delay is caused by a labor dispute, shortage of materials, fire, earthquake, flood, or any other event beyond the control of such party, provided that such party uses reasonable efforts, under the circumstances, to notify the other party of the cause of such delay and to resume performance as soon as possible.
‍12.9     Independent Contractors. Customer’s relationship to Wrapt is that of an independent contractor, and neither party is an agent or partner of the other. Customer will not have, and will not represent to any third party that it has, any authority to act on behalf of Wrapt.
‍12.10  Non-Exclusive. The parties expressly acknowledge that this Agreement does not create an exclusive relationship between the parties. Customer is free to engage others to perform services of the same or similar nature to those provided by Wrapt, and Wrapt is entitled to offer and provide services to others, solicit other clients and otherwise advertise the services and software offered by Wrapt.
‍12.11  Notices. All notices required or permitted under this agreement must be delivered in writing, if to Wrapt, by emailing info@getWrapt.com and if to Customer by emailing the Customer Point of Contact email address listed on the Cover Page, provided, however, that with respect to any notices relating to breaches of this agreement or termination, a copy of such notice will also be sent in writing to the other party at the address listed on the Cover Page by courier, by certified or registered mail (postage prepaid and return receipt requested), or by a nationally-recognized express mail service. Each party may change its email address and/or address for receipt of notice by giving notice of such change to the other party.
‍12.12  Counterparts. This Agreement may be executed in one or more counterparts, each of which will be deemed an original and all of which will be taken together and deemed to be one instrument.
‍12.13  Entire Agreement. This Agreement is the final, complete and exclusive agreement of the parties with respect to the subject matters hereof and supersedes and merges all prior discussions between the parties with respect to such subject matters. No modification of or amendment to this Agreement, or any waiver of any rights under this Agreement, will be effective unless in writing and signed by an authorized signatory of Customer and the Wrapt.
‍12.14 Precedence. In the event of a conflict the order of precedence shall be: (1) this Agreement, unless and to the extent an Order Form or SOW states that it specifically takes precedence over a contrary term in the body of the Agreement (and such statement shall apply only to the SOW in which it appears); (2) SOW; (3) other documents signed by the parties.