MEND FREE SERVICES AGREEMENT
Last revised September 23, 2021
This Mend Free Services Agreement (“Agreement”) is effective between the Customer and Mend as of the Effective Date. This Agreement governs the use of the Services by Customer. By causing this Agreement to be executed or otherwise accepted, Customer agrees to be bound by this Agreement. The person executing or accepting this Agreement on behalf of the Customer represents to Mend that it has the legal authority to bind the Customer to this Agreement.
“Agreement” means this Mend Free Services Agreement.
“BAA” means the Business Associate Agreement, if any, entered into by and between Customer and Mend.
“Consumers” shall mean Persons interacting with Customer through the MEND VIP Services for the purpose of obtaining (or inquiring about) professional services provided by Customer.
“Customer Data” means electronic data and information submitted by or for Customer to the Services.
“Effective Date” means the date on which this Agreement is executed or otherwise accepted by both Mend and Customer.
“Intellectual Property Rights” means all trade secrets, patents and patent applications, trademarks (whether registered or unregistered and including any goodwill acquired in such trade marks), service marks, trade names, copyrights, moral rights, database rights, design rights, rights in know-how, rights in Confidential Information, rights in inventions (whether patentable or not) and all other intellectual property and proprietary rights (whether registered or unregistered, any application for the foregoing, and all rights to enforce the foregoing), and all other equivalent or similar rights which may subsist anywhere in the world.
“Malicious Code” means code, files, scripts, agents or programs intended to do harm, including, for example, viruses, worms, time bombs and Trojan horses.
“Mend” means Mend VIP, Inc., a Delaware corporation.
“Mend Technology” means the computer software applications, tools, application programming interfaces (APIs), connectors, programs, networks and equipment that Mend uses to make its services available to its customers.
“Non-Mend Service” means a service, database, process or functionality that is provided by Customer or a third party and interoperates with the Services including, for example, an application programming interface (API).
“PHI” means “protected health information” as defined in 45 CFR 160.103.
“Services” means the Mend Free services made available to Customer by Mend. Services exclude Customer Data.
“User” means an individual who is authorized by Customer to use the Services and to whom Customer (or, when applicable, Mend at Customer’s request) has supplied a user identification and password.
2.1. Services. During the term of this Agreement, Mend will (a) provide the Services or make the Services available to Customer and Customer’s Users pursuant to this Agreement, (b) provide applicable standard support for the Services at no additional charge, (c) use commercially reasonable efforts, using applicable current industry practices, to ensure that the Services do not contain or transmit any Malicious Code, and (d) use commercially reasonable efforts to make the Services available 24 hours a day, 7 days a week, except for planned downtime (of which Mend will give advance notice) and other unavailability caused by circumstances beyond Mend’s reasonable control, including, for example, an act of God, act of government, flood, fire, earthquake, civil unrest, act of terror, strike, Internet service provider failure or delay, or denial of service attack. The Services do not include any computers, devices, internet or mobile data services necessary for use of the Services by Customer, its Users and Consumers.
2.2. Customer Responsibilities. Customer will (a) be responsible for the compliance of its Users with this Agreement, (b) be responsible for the accuracy, quality and legality of the Customer Data, the means by which the Customer obtained the Customer Data and Customer’s use of the Customer Data with the Services, (c) use reasonable efforts to prevent unauthorized access to or use of Services, and provide prompt notice to Mend of any unauthorized access or use, (d) provide all information and notices and obtain all consents required by applicable laws before interacting with any Consumer using the Services, (e) use reasonable efforts and provide sufficient personnel and resources necessary to assist Mend in providing the Services, and (f) use the Services only in accordance with this Agreement, applicable laws and government regulations.
2.4. Enhanced Virtual Waiting Room; In-Application Advertisements. Customer agrees that Mend’s Enhanced Virtual Waiting Room (“EVWR”) will be provided to Consumers who interact with Customer using the Services. Advertising and other content selected by Mend may be displayed in the EVWR. In addition, advertising may be displayed in other portions of the Services intended for the use of Customer’s Users. No advertising will be displayed in any portion of the Services intended for direct interactions between Customer or its Users and Consumers. Mend retains all rights with respect to the placement of any ads within the Services and any revenues associated with such ads. The National Provider Number (NPI) of participating providers will be included in the data reported by Mend to advertisers with respect to ads displayed in the Services.
2.5. Restrictions. Customer will not, and will not permit any of its Users to, (a) make any of the Services available to, or use any Services for the benefit of, anyone other than Customer, its Users and Consumers with whom Customer and its Users interact using the Services for the purposes of providing healthcare services, (b) sell, resell, license, sublicense, distribute, make available, rent or lease any of the Services, or include any of the Services in a service bureau or outsourcing offering, (c) use the Services to store or transmit infringing, libelous, or otherwise unlawful or tortious material, or to store or transmit material in violation of third-party privacy rights, (d) use the Services to collect, store or transmit PHI unless a BAA has been executed and is in effect between Mend and Customer, (e) use the Services to store or transmit Malicious Code, (f) use the Services in violation of applicable law, (g) use the Services for marketing or advertising purposes, (h) interfere with or disrupt the integrity or performance of the Services, (i) attempt to gain unauthorized access to the Services or its related systems or networks, (j) modify, copy, or create derivative works based on the Services or any part, feature, function or user interface thereof, (k) frame or mirror any part of the Services, other than framing on Customer’s own intranets or otherwise for Customer’s own internal purposes, (l) disassemble, reverse engineer, or decompile the Services, or (m) permit any of its Users, or knowingly invite any Consumers, to access or use the Services from any location outside the United States.
2.6. Modifications to Services. The Services may be modified by Mend from time to time as it deems necessary to address changes in technology and the needs of its customers, provided that any such modification will not degrade the functionality of the Services in any material manner, unless required by applicable law. Mend will notify Customer in advance of any material changes.
2.7. Non-Mend Services. If Customer uses or authorizes Mend to use a Non-Mend Service with the Services, Customer grants Mend permission to allow the Non-Mend Service and its provider to access Customer Data as required for the interoperation of such Non-Mend Service with the Services. Mend is not responsible for any disclosure, modification or deletion of Customer Data resulting from such access by such Non-Mend Service or its provider. Except to the extent expressly provided otherwise in a Service Order, Customer’s purchase or use of any Non-Mend Service is solely between Customer and the provider of the Non-Mend Service, subject to any terms and conditions specified with respect to the Non-Mend Service, and Mend neither makes any warranty nor provides any support with respect to any Non-Mend Service. If Customer uses or authorizes Mend to use a Non-Mend Service with the Services, Customer grants Mend permission to allow the Non-Mend Service and its provider to access Customer Data as required for the interoperation of such Non-Mend Service with the Services. Mend is not responsible for any disclosure, modification or deletion of Customer Data resulting from such access by such Non-Mend Service or its provider. Except to the extent expressly provided otherwise in a Service Order, Customer’s purchase or use of any Non-Mend Service is solely between Customer and the provider of the Non-Mend Service, subject to any terms and conditions specified with respect to the Non-Mend Service, and Mend neither makes any warranty nor provides any support with respect to any Non-Mend Service. The Services may contain features designed to interoperate with Non-Mend Services. Use of such features may require Customer to obtain access to such Non-Mend Services from their providers, and to provide access to such Customer’s account(s) on such Non-Mend Services to Mend. Mend cannot guarantee the continued availability of such Service features, and may cease providing them without entitling Customer to any refund, credit, or other compensation, if, for example and without limitation, the provider of a Non-Mend Service ceases to make the Non-Mend Service available for interoperation with the corresponding Mend Service features in a manner acceptable to Mend.
3. Proprietary Rights and Licenses
3.1 Limited License to Use Services. Subject to the terms and conditions of this Agreement, Mend hereby grants to Customer a non-exclusive, non-transferable, limited, royalty-free license, without right to sub-license, terminable in accordance with the terms of this Agreement, to access and use, and to permit its Users to access and use, the Services, solely for Customer’s operations in its ordinary course of business.
3.2. Limited License to Use Customer Data. Customer hereby grants to Mend a non-exclusive, non-transferable, limited, royalty-free license, without right to sub-license (except to its sub-processors, as required for the provision of the Services), to use the Customer Data, solely as necessary to perform the Services and as otherwise may be agreed in writing by Customer.
3.3. Reservation of Rights. No rights or licenses are granted except as expressly set forth herein. Without limiting the foregoing, subject to the limited rights expressly granted in this Section 3, all right, title and interest (including all related Intellectual Property Rights) in and to (a) the Services and the Mend Technology is retained by Mend, and (b) the Customer Data is retained by Customer.
3.4 Feedback. Customer grants Mend a worldwide, perpetual, irrevocable, royalty-free license to use and incorporate into the Services and the Mend Technology any suggestion, enhancement request, recommendation, correction or other feedback provided by Customer or its Users relating to the Services or the Mend Technology. This Section 3.4 shall survive the termination of this Agreement.
3.5 Federal Government Use. If the Services or the Mend Technology are made available to a federal government end user, for ultimate federal government end use, technical data and software rights related to the Services include only those rights customarily provided to the public as specified in this Agreement.
4. No Fees; Taxes
4.1. No Fees. Subject to the terms and conditions set forth in this Agreement, Mend will make the Services available to Customer without charge.
4.2 Taxes. Customer is responsible for paying all any taxes, levies, duties or similar governmental assessments of any nature, including, for example, value-added, sales, use or withholding taxes, assessable by any jurisdiction whatsoever (collectively, “Taxes”) associated with Customer’s use of Services, excluding any taxes based upon Mend’s personal property ownership or net income. If Mend has the legal obligation to pay or collect Taxes for which Customer is responsible under this Section 4.2, Mend will invoice Customer for, and Customer will promptly pay, the amount of such Taxes unless Customer provides Mend with a valid tax exemption certificate authorized by the appropriate taxing authority.
5.1. Definition of Confidential Information. “Confidential Information” means all information disclosed by a party (“Disclosing Party”) to the other party (“Receiving Party”), whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure. Customer’s Confidential Information includes its Customer Data. Mend Confidential Information includes the Services. The Confidential Information of each party includes the terms and conditions of this Agreement as well as business and marketing plans, technology and technical information, product plans and designs, and business processes disclosed by such party. However, Confidential Information does not include any information that (a) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party, (b) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party, (c) is received from a third party without breach of any obligation owed to the Disclosing Party, or (d) was independently developed by the Receiving Party.
5.2. Obligations. The Receiving Party will use the same degree of care that it uses to protect the confidentiality of its own confidential information of like kind (but not less than reasonable care) (i) not to use any Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement and (ii) except as otherwise authorized by the Disclosing Party in writing, to limit access to Confidential Information of the Disclosing Party to those of its employees and contractors who need that access for purposes consistent with this Agreement and who have signed confidentiality agreements with the Receiving Party containing protections not less protective of the Confidential Information than those herein.
5.3. Exceptions. The Receiving Party may disclose Confidential Information of the Disclosing Party to the extent compelled by law to do so, provided the Receiving Party gives the Disclosing Party prior notice of the compelled disclosure (to the extent legally permitted) and reasonable assistance, at the Disclosing Party’s cost, if the Disclosing Party wishes to contest the disclosure.
5.4. Equitable Relief. The parties recognize and agree that there is no adequate remedy at law for breach of the provisions of the confidentiality obligations set forth in this Section 5, that such a breach would irreparably harm the Disclosing Party and that the Disclosing Party is entitled to seek equitable relief (including, without limitation, an injunction) with respect to any such breach or potential breach in addition to any other remedies available to it at law or in equity.
6. Customer Data
6.1. Data Protection. Mend will maintain administrative, physical, and technical safeguards for protection of the security, confidentiality and integrity of the Customer Data. Those safeguards will include, but will not be limited to, measures for preventing access, use, modification or disclosure of Customer Data by Mend personnel except (a) to provide the Services and prevent or address service or technical problems, (b) as compelled by applicable law, or (c) as Customer expressly permits in writing. Customer acknowledges and agrees that it is commercially reasonable for Mend to rely upon the security processes and measures utilized by Mend’s cloud infrastructure providers.
6.2. Data Breach Notification. Mend will notify Customer of unauthorized access to, or unauthorized use, loss or disclosure of Customer Data within custody and control (a “Security Breach”) within five (5) business days of Mend’s confirmation of the nature and extent of the same or when required by applicable law, whichever is earlier. Each party will reasonably cooperate with the other with respect to the investigation and resolution of any Security Breach. Except to the extent required otherwise by applicable law, Customer will have approval rights on notifying its Users and any third party regulatory authority of the Security Breach.
6.3. Data Export, Retention and Destruction. Customer may export or delete Customer Data from the Services at any time during the term of this Agreement, using the existing features and functionality of the Services. Customer is solely responsible for its data retention obligations with respect to Customer Data. If and to the extent Customer cannot export or delete Customer Data stored on Mend’s systems using the then existing features and functionality of the Services, Mend will, upon Customer’s written request, make the Customer Data available for export by Customer or destroy the Customer Data. Except as otherwise required by applicable law, Mend will have no obligation to maintain or provide any Customer Data more than thirty (30) days after the end of the term of this Agreement.
6.4. Anonymized Data. Mend may use usage history and statistics (collectively, “Statistical Data”) with respect to the use of the Services by Customer, its Users and Consumers for Mend’s internal analytical purposes, including the improvement and enhancement of the Services and Mend’s other offerings. Mend may make information derived from its analysis of Statistical Data publicly available, provided that the information does not include any Statistical Data that has not been aggregated and anonymized. For the purposes of this Agreement, aggregated and anonymized Statistical Data means Statistical Data that (i) has been aggregated with other data, and (ii) does not contain PHI or other information that identifies Customer or its Users. For the sake of clarity, aggregated and anonymized data is not Confidential Information of Customer. This Section 6.4 shall survive the termination of this Agreement.
7. Term; Termination
7.1. Term of Agreement. This Agreement begins on the Effective Date and continues until terminated pursuant to this Section 7.
7.2. Termination. A party may terminate this Agreement (a) for convenience upon 30 days written notice to the other party, or (b) immediately if the other party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors.
7.3. Effect of Termination. Upon termination of this Agreement for any reason, Customer and its Users will cease all use of the Services and, except as provided in Section 11.2 (Survival), all rights and obligations of the parties hereunder will automatically cease. Notwithstanding the foregoing, termination will not affect or prejudice any right or remedy that a party possesses with respect to any breach of this Agreement occurring on or before the date of termination.
7.4. Suspension. Mend may suspend Customer’s or any User’s right to access or use any portion of the Services if Mend determines that Customer’s or Users’ use of the Services (i) poses a security risk to the Services, Mend or any third party, (ii) may adversely impact the Services, or the networks or data of any other Mend customer, business partner or service provider, (iii) does not comply with this Agreement or applicable law, or (iv) may subject Mend or any third party to liability.
8. Representation and Warranties; Disclaimers
8.1. Mend. Mend represents and warrants that (a) it has the full power and authority to enter into this Agreement, to perform its obligations under this Agreement, and to grant the licenses and rights granted to Customer in this Agreement; (b) this Agreement is the legal, valid, and binding obligation of Mend, enforceable against it in accordance with the terms hereof, except to the extent such enforceability may be limited by bankruptcy, reorganization, insolvency or similar laws of general applicability governing the enforcement of the rights of creditors or by the general principles of equity (regardless of whether considered in a proceeding at law or in equity); (c) it will comply with all applicable laws relating to its performance and/or obligations under this Agreement; (d) this Agreement does not conflict with any other contract or obligation to which it is a party or by which it is bound, and (e) it will use its commercially reasonable efforts to perform the Services in a timely, professional and workmanlike manner.
8.2. Customer. Customer represents and warrants that (a) it has the full power and authority to enter into this Agreement and to carry out its obligations under this Agreement; (b) this Agreement is the legal, valid, and binding obligation of Customer, enforceable against it in accordance with the terms hereof, except to the extent such enforceability may be limited by bankruptcy, reorganization, insolvency or similar laws of general applicability governing the enforcement of the rights of creditors or by the general principles of equity (regardless of whether considered in a proceeding at law or in equity); (c) this Agreement does not conflict with any other contract or obligation to which it is a party or by which it is bound; and (d) it will comply with all applicable laws relating to its performance and/or obligations under this Agreement.
8.3. Remedies. If the Services fail to conform to the warranty set forth in Section 8.1 and Customer provides written notice of the non-conformance to Mend during the term of this Agreement, then, as Customer’s exclusive remedy and Mend’s sole obligation, with respect to such failure, Mend will correct the failure or, if Mend is unable to correct the failure within 30 days of receipt of such written notice from Customer, Customer may terminate this Agreement.
8.4. Disclaimer of Implied Warranties. THE WARRANTIES SET FORTH IN SECTION 8.1 AND 8.3 ARE LIMITED WARRANTIES AND ARE THE ONLY WARRANTIES MADE BY MEND AND CUSTOMER, HEREUNDER, RESPECTIVELY. EACH OF MEND AND CUSTOMER EXPRESSLY DISCLAIMS, AND THE OTHER PARTY HEREBY EXPRESSLY WAIVES, ALL OTHER WARRANTIES OR REPRESENTATIONS WITH RESPECT TO THE SUBJECT MATTER OF THIS AGREEMENT, INCLUDING THE SERVICES, EXPRESS OR IMPLIED, INCLUDING WARRANTIES OF MERCHANTABILITY, TITLE, NON-INFRINGEMENT, FITNESS FOR A PARTICULAR PURPOSE, ERROR-FREE OPERATION, UNINTERRUPTED ACCESS, INTEROPERABILITY OF THE SERVICES WITH ANY THIRD PARTY SERVICE, THAT THE SERVICES ARE SECURE, OR THAT THE SERVICES WILL BE AVAILABLE CONSTANTLY AND IN AN UNINTERRUPTED MANNER AND ANY OTHER IMPLIED WARRANTY ARISING FROM COURSE OF DEALING OR COURSE OF PERFORMANCE.
9.1. By Mend. Mend will indemnify, defend and hold harmless Customer and its officers, directors and employees from and against claim, demand, suit or proceeding made or brought against Customer by a third party alleging that the Services infringe or misappropriate such third party’s Intellectual Property Rights, provided Mend is promptly notified of any and all such claims, demands, suits or proceedings and given reasonable assistance and the opportunity to assume sole control over defense and settlement. The foregoing obligations do not apply with respect to any infringement resulting from the modification of the Services or combination of the Services with software, hardware, data, or processes not provided by Mend, the continued use of the Services by Customer after being notified of the infringement or after being informed of modifications that would have avoided the infringement, or Customer’s use of the Services in violation of this Agreement.
9.2. By Customer. Customer will indemnify, defend and hold harmless Mend and its officers, directors and employees from and against claim, demand, suit or proceeding made or brought against Mend by a third party alleging that any Customer Data infringes or misappropriates such third party’s Intellectual Property Rights, provided Mend is promptly notified of any and all such claims, demands, suits or proceedings and given reasonable assistance and the opportunity to assume sole control over defense and settlement.
9.3. Mitigation. If, due to a claim of infringement, the Services are held by a court of competent jurisdiction to be or are believed by Mend to be infringing, Mend may, at its option and expense (a) replace or modify the Services to be non-infringing provided that such modification or replacement contains substantially similar features and functionality, (b) obtain for Customer a license to continue using the Services, or (c) if neither of the foregoing is commercially practicable, terminate this Agreement and Customer’s rights hereunder.
9.4. Exclusive Remedy. This Section 9 states the indemnifying party’s sole liability to, and the indemnified party’s exclusive remedy against, the other party for any type of claim described in this Section 9.
10. Limitation of Liability
10.1. EXCLUSION OF CERTAIN CLAIMS. IN NO EVENT WILL MEND HAVE ANY LIABILITY FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, COST OF COVER, PUNITIVE OR EXEMPLARY DAMAGES, HOWEVER CAUSED AND ON ANY THEORY OF LIABILITY, ARISING OUT OF THIS AGREEMENT OR THE SERVICES, INCLUDING LOSS OF BUSINESS, REVENUE OR ANTICIPATED PROFITS, EVEN IF MEND HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
10.2. LIMITATION OF LIABILITY. IN NO EVENT WILL MEND’S AGGREGATE LIABILITY UNDER THIS AGREEMENT EXCEED THE SUM OF $500.
10.3. Exceptions. The foregoing disclaimers in this Section 10 shall not apply to the extent prohibited by law.
11. General Provisions
11.1 Entire Agreement. This Agreement constitutes the entire agreement and understanding between the parties with respect to the subject matter hereof and supersedes all prior or contemporaneous written, electronic or oral communications, representations, agreements or understandings between the parties with respect thereto. This Agreement may not be modified or amended except by a written instrument executed by both parties. Any additional, supplementary or conflicting terms supplied by either party (whether in hard copy or electronic form), including those contained or referenced in any invoice, purchase order or policies, are expressly rejected by each party.
11.2. No Waiver. Neither any failure nor any delay by any party in exercising any right, power or privilege under this Agreement will operate as a waiver of such right, power or privilege, and no single or partial exercise of any such right, power or privilege will preclude any other or further exercise of such right, power or privilege or the exercise of any other right, power or privilege. A party may waive a breach of this Agreement by the other party only by a writing executed by the party or parties against whom the waiver is sought to be enforced. A waiver once given is not to be construed as a waiver with respect to any future occasion.
11.3. Assignment. This Agreement is not assignable, transferable or sublicensable by Customer except with Mend’s prior written consent. Subject to the foregoing, this Agreement and any rights, interests or benefits will be fully binding upon, inure to the benefit of and be enforceable by the parties hereto and their respective successors and permitted assigns. Any attempted assignment in violation of the provisions of this Section 11.3 will be void.
11.4. Severability. If any provision of this Agreement is held invalid or unenforceable by any court of competent jurisdiction, the other provisions of this Agreement will remain in full force and effect. Any provision of this Agreement held invalid or unenforceable only in part or degree will remain in full force and effect to the extent not held invalid or unenforceable.
11.5. Relationship of Parties. No agency, partnership, joint venture, or employment is created as a result of this Agreement and neither party has any authority of any kind to bind the other in any respect whatsoever.
11.6. Publicity. Mend may identify Customer as one of its customers and use Customer’s logo for such purposes, subject to any trademark usage requirements specified by Customer.
11.7. No Third Party Beneficiaries. This Agreement is made for the benefit of Mend and Customer and not for the benefit of any other third parties.
11.8. Governing Law; Venue; Litigation Costs. This Agreement will be governed by the laws of the State of Florida without regard to conflicts-of-laws principles. Any legal proceeding arising out of or relating to this Agreement may be brought in the state or federal courts situated in Orange County, Florida and each of the parties irrevocably submits to the exclusive jurisdiction of each such court in any such proceeding and waives any objection it may now or hereafter have to venue or to convenience of forum. In the event of legal proceedings in connection with the enforcement or interpretation of this Agreement, the prevailing party will be entitled to recover from the other party all of its costs and expenses incurred in connection with such proceedings, including reasonable attorneys’ fees, through the date of final collection.
11.9. Notices. All notices under this Agreement will be in writing and will be deemed to have been duly given (a) when received, if personally delivered; (b) when receipt is electronically confirmed, if transmitted by facsimile or e-mail; (c) the day after it is sent, if sent for next day delivery by recognized overnight delivery service; and (d) upon receipt, if sent by certified or registered mail, return receipt requested. All notices will be given (x) to Mend using the contact information set forth below, (y) to Customer using the contact information furnished when it established its Mend account, and (z) to either party using such other contact information as may be designated by such party by giving written notice to the other party pursuant to this Section 11.9.
Mend VIP, Inc.
Attention: Legal Department
4767 New Broad Street
Orlando, FL 32814
Fax: (407) 907-6754
11.10. Force Majeure. Neither party will be liable for failure to perform its obligations hereunder, except the obligation to make payment, to the extent that such failure is the result of strikes, riots, fires, explosions, acts of God, war, governmental action, labor conditions, or any other cause beyond the reasonable control of such party. If such failure continues for a period of more than 30 days, either party may terminate this Agreement without liability.
11.11. Electronic Signatures; Counterparts. Signatures and other express indications of agreement sent by electronic means (facsimile or scanned and sent via e-mail or signed by electronic signature service where legally permitted) will be deemed original signatures. This Agreement may be signed in multiple counterparts, each of which will be deemed an original and which will together constitute one agreement
11.12. Survival. All provisions of this Agreement which by their nature should survive termination will survive termination, including, without limitation, provisions respecting accrued rights to payment, acknowledgements and reservations of proprietary rights, confidentiality obligations, warranty disclaimers, and limitations of liability.