This Master Services and Licensing Agreement (the “Agreement”) is entered into effective as of the effective date of the Statement of Work, License or other similar type of agreement between Baldwin Publishing, Inc. (“Baldwin” or “Contractor”) and Client (“Commencement Date”). Baldwin and Client are collectively the “Parties” and individually the “Party”.
Recitals:
A. Baldwin is in the business of providing the Services which includes licensing the content identified inthe Statement of Work, License or other similar type of agreement between these same Parties that is referred to as “Licensed Content”(collectively the “Services”), and Client desires to engage Baldwin to provide the Services.
THEREFORE, in consideration of the mutual covenants contained herein it is agreed to by the Parties:
Agreement:
1. Services and Rates. Baldwin will provide the Services described in, and at the rates or other compensation set forth in the Statement of Work, License or other similar type of agreement between these same Parties. Baldwin shall devote commercially reasonable efforts and resources, and shall apply the requisite expertise and skill in carrying out the Services.
2. Term and Termination. The term may be extended upon mutual written agreement of the Parties.
3. Non-Exclusive Agreement. This Agreement is not exclusive. Baldwin is free to contract with other parties to provide the Services, and Client is free to contract with other vendors to obtain similar services.
4. No Federal Exclusion. Baldwin represents and warrants that neither it, nor its employees, directors, officers, equity owners, and agents under this Agreement are excluded from participation or are otherwise ineligible to participate in a “federal health care program” (as defined in 42 U.S.C. §1320a-7b(f)) or in any other government payment program. Baldwin will routinely assess the status of its employees, directors, equity owners and agents as required by the U.S. Department of Health and Human Services and shall notify Client in writing within ten (10) days (i) following discovery of any debarment, exclusion, suspension or other event that makes Baldwin ineligible to participate in the federal health care programs or in federal procurement or non-procurement programs; or (ii) after Baldwin or any of its employees, directors, officers, equity owners or agents has been convicted of a criminal offense that falls within the ambit of 42 U.S.C. § 1320a-7(a), even if they have not yet been excluded, debarred, suspended or otherwise declared ineligible. Upon the occurrence of such exclusion, debarment or conviction, whether or not notice is given, Client may immediately terminate this Agreement. Baldwin will be responsible for any and all expenses incurred by Client as a result of Baldwin’s failure to screen or to notify Client of any such occurrence. Baldwin will also be responsible for any and all related expenses directly or indirectly caused by the failure to identify excluded individuals, including reimbursement of Client for any amounts Client is required to repay to any federal health care program because of the involvement of any excluded individual in the provision of the Services.
5. Additional Terms to License of Content. The Parties understand and agree that without first obtaining the express written consent of Baldwin, that Client is prohibited from using the Licensed Content in any other manner, material, media or application whatsoever.
The Parties also understand and agree that the rights granted to Client by Baldwin shall not include the right to:
a. sublicense the Licensed Content, or any portion thereof, on a standalone basis or to incorporate the Licensed Content, or any portion thereof, a second time or in different material, media or application; or
b. alter or modify the Licensed Content, or any portion thereof.
Client further agrees:
- that any and all parts or sections of the Licensed Content, which Baldwin designates and/or codes as “Mandatory Content” shall be included and incorporated in any and all content, media and/or applications in which Client uses the Licensed Content; and
- to incorporate any and all changes, modifications and/or updates to the Licensed Content that Baldwin provides to Client in writing.
Client agrees that Baldwin shall have the right to receive and inspect records and reports of traffic on any Client website on which Client uses, displays and otherwise embeds or embodies the Licensed Content, and further agrees to cooperate with Baldwin in conducting such inspections by providing Baldwin with copies or reproductions of the content to be inspected and/or allowing Baldwin reasonable access to the content to be inspected; provided that such inspections do not unreasonably interfere with Client ’s business, the provision of patient care, or with the use of the media or the Licensed Content.
Client shall take all reasonable steps necessary to insure that no person or entity will have unauthorized access to the Licensed Content. The Parties agree that to the extent the Licensed Content is made accessible on the Internet by Client for Client’s legitimate business purposes hereunder, such Internet access is beyond the scope of Client’s control and will not be considered “unauthorized access” as used in the preceding sentence. Client agrees that Baldwin shall have the right to reasonably inspect the manner and the media in which Client uses, displays and otherwise embeds or embodies the Licensed Content, and further agrees to cooperate with Baldwin in conducting such inspections by providing Baldwin with copies or reproductions of the content to be inspected and/or allowing Baldwin reasonable access to the content to be inspected; provided that such inspections do not unreasonably interfere with Client’s business, the provision of patient care, or with the use of the media or the Licensed Content.
6. Warranties of Baldwin. Baldwin hereby represents and warrants that Baldwin owns and controls one hundred percent (100%) of all rights in and to the Licensed Content or is the authorized representative of such owners and that Baldwin therefore has the right to convey to Client the rights provided herein. Baldwin further represents and warrants that Client’s use of the Licensed Content will not violate or infringe any copyright, patent, trade secret, or other property rights of any other person or entity, and that neither the consent of, nor payment to, any other person or entity is required for Client’s use of the Licensed Content as contemplated hereunder. Baldwin shall be solely responsible for obtaining and paying for any and all consents from any other third parties necessary to convey the rights provided herein.
Baldwin shall use best efforts to ensure that the Licensed Content is available for Client’s use at all times, except when the Licensed Content is not available due to maintenance and/or updating of Baldwin’s website, server and/or the server(s) to which the Baldwin’s website and/or server are connected. Availability is defined as the Licensed Content being available online and accessible via the Internet to Client and those accessing the Licensed Content through Client’s website. In the event the Licensed Content is not available or accessible as set forth above, following notice from Client, Baldwin agrees to promptly make the Licensed Content available to Client on a portable data storage device, at Baldwin’s expense.
Baldwin does not make any express, implied or statutory warranty, except as specifically set forth in this Agreement, and specifically disclaims the implied warranty of merchantability, warranty of fitness for a particular purpose, and any warranty that arises by statute or otherwise in law or from a course of dealing or usage or trade.
7. Mutual Indemnification. Except as set forth in Section 8 (Indemnification by Baldwin), each Party shall indemnify, defend, and save harmless the other for, from and against all actions, liabilities, losses, damages, claims and demands whatsoever, including costs, expenses and attorneys’ fees resulting from or claimed to have resulted from any intentional or negligent acts or omissions of the indemnifying Party or its employees or agents engaged in the work under this Agreement at the time of the event or occurrence upon which such actions, claims or demands are based. Where both Client and Baldwin, including their respective employees or agents, participated in the liability causing event, each Party shall contribute to the common liability a pro rata share based upon its relative degree of fault.
8. Indemnification by Baldwin. Baldwin hereby agrees to defend, indemnify and hold Client harmless against any loss, liability and damage, including costs and expenses, but excluding attorneys’ fees (unless Baldwin fails to assume Baldwin’s obligation to defend and Client is required to do so to protect Client’s interests), arising out of any claims or suits, that arise from any warranty or representation made pursuant to this Agreement; and/or that Client’s use of any or all of the Licensed Content infringe or otherwise violate the rights, in whole or in part, of any third party, provided Client promptly notifies Baldwin in writing of the claim or suit. In the event that Client seeks indemnification under this paragraph, Baldwin shall have the right to either defend or settle any such claim or suit, and Client agrees to cooperate and assist in the defense of any such claim or suit, unless otherwise mutually agreed upon in writing, or unless Baldwin fails to assume Baldwin’s obligation to defend and Client is required to do so to protect Client’s interests. The foregoing indemnity by Baldwin shall not apply to any extraneous or additional material inserted by Client in the Licensed Content.
In addition, if a claim or suit described above is asserted and Client promptly notifies Baldwin in writing of the claim or suit, Baldwin will, at Baldwin’s option and at Baldwin’s sole expense: (i) procure for Client the legal right to continue using the Licensed Content; (ii) replace or modify the Licensed Content to eliminate the infringement or alleged infringement while providing substantial equivalent performance; or (iii) accept return of the Licensed Content, and promptly pay to Client the amount of the fees paid under this Agreement applicable to that portion of the Licensed Content that is subject to a claim or suit as described above. If Baldwin does not exercise any one of the options listed above within a reasonable time, Client has the right, at Client’s option, to terminate this Agreement by giving twenty (20) business days written notice, in which event Baldwin will have no right to cure, and Baldwin will promptly pay to Client the amount of the fees paid under this Agreement applicable to that portion of the Licensed Content that is subject to a claim or suit as described above.
9. Baldwin’s Liability. Baldwin shall not be liable to Client for any delays, interruptions, or failures to provide the Services, including but not limited to, producing and/or distributing the Licensed Content, if such delays, interruptions, or failures are due to causes beyond the reasonable control of Baldwin. Baldwin shall not be liable for any loss or damages to Client or to any other party by reason of the Services or the publication or dissemination of the Licensed Content, or by reason of the content of the Licensed Content, except as otherwise provided under this Agreement and as specifically provided in Sections 6 (Warranties of Baldwin) and 8 (Indemnification by Baldwin) of this Agreement.
In no event, shall Baldwin be liable to Client for any bodily injury, personal injury, wrongful death, loss or damage to revenues, profits, goodwill, or other special, incidental, indirect or consequential damages of any kind, resulting from Baldwin’s performance or failure to perform any service or obligation under this Agreement, or resulting from the furnishing, performance, use or loss of use of any of the Licensed Content or other property of Client, including without limitation any interruption of Client’s business, whether resulting from breach of contract or breach of warranty, even if Baldwin has been advised of the possibility of such damages. No breach by Baldwin of any provision hereof shall give Client the right to any injunctive or other equitable relief. Client’s sole remedy for any breach of any provision hereof being limited to actual proven damages and such other remedies as set forth in Sections 6 (Warranties of Baldwin), 7 (Mutual Indemnification) and 8 (Indemnification by Baldwin) of this Agreement.
Client acknowledges that the limitations on the liability of Baldwin set forth in Sections 6 (Warranties of Baldwin), 8 (Indemnification by Baldwin), 9 (Baldwin’s Liability), 12 (Client’s Liability), 13 (Client’s Remedies), 20 (Confidential Information) and 24 (Cancellation and Termination) herein are integral to the amount of the fees charged to Client under this Agreement, and that were Baldwin to assume any further liability beyond that set forth in Sections 6 (Warranties of Baldwin), 8 (Indemnification by Baldwin), 9 (Baldwin’s Liability), 12 (Client’s Liability), 13 (Client’s Remedies), 20 (Confidential Information) and 24 (Cancellation and Termination) herein, such fees would have been substantially greater.
Except as otherwise set forth in this Agreement, Baldwin shall have a period of thirty (30) days in which to cure to any default hereunder by Baldwin.
10. Baldwin’s Remedies. Notwithstanding anything to the contrary herein, upon the occurrence of any breach or default by Client, Baldwin may pursue any right or remedy available at law or in equity including, without limitation, Baldwin may: (i) terminate this Agreement; (ii) proceed to obtain such equitable relief as Baldwin may deem necessary to enjoin any existing or threatened breach of any provision hereof intended to protect Baldwin’s interest in or the nature of the Licensed Content, without bond; or (iii) take such other actions and seek such further remedies as may be appropriate at law or in equity, all of which shall be deemed cumulative and no one of which shall be deemed an election of remedies.
Any invoice not paid within sixty (60) days shall accrue interest at the statutory rate. In proceeding to collect any unpaid invoice(s), Baldwin shall be entitled to recover all costs of suit, including reasonable attorneys’ fees.
11. Client’s Representations. In addition to any other representations and/or warranties made in this Agreement, Client agrees to notify Baldwin of any allegations of infringements of patent, copyright, trademark or other intellectual property rights in the Licensed Content that comes to Client’s attention.
12. Client’s Liability. Client agrees that any unauthorized use, reproduction, or transfer of the Licensed Content or disclosure of confidential or proprietary information concerning the Licensed Content by Client shall diminish substantially the value to Baldwin of the Licensed Content. If Client breaches any of such obligations, Client further agrees that Baldwin shall be entitled to obtain equitable relief to protect its interests therein and that remedies other than equitable relief may be inadequate to protect Baldwin fully in such circumstances.
In proceeding to collect any unpaid sums under this Agreement, such sums shall accrue interest at the statutory rate per annum.
13. Client’s Remedies. Notwithstanding anything to the contrary herein, Client’s sole and exclusive remedy for any breach or default under this Agreement, shall be the rejection of the Services, including but not limited to the Licensed Content and/or a refund of any amounts actually paid by Client to Baldwin for the cancelled portion of the Agreement, i.e. the amount of any sums actually paid to Baldwin which shall be prorated for the cancelled portion of the Agreement.
The foregoing remedies shall in no way limit Client’s right to indemnification as set forth herein.
14. Insurance. Baldwin shall maintain insurance coverage during the term of this Agreement, provided by an insurer with a minimum A rating from A.M. Best, and shall provide Client with thirty (30) days’ advance written notice of termination or substantial coverage change. Coverage shall include at least one million dollars ($1,000,000) per occurrence and two million dollars ($2,000,000) aggregate general liability, and business auto, and at least one million dollars ($1,000,000) per occurrence and one million dollars ($1,000,000) aggregate professional liability. All policies shall stipulate that the insurance shall be primary insurance, that any self-insurance carried by Client shall not be contributory insurance, and shall name Client as an additional named insured. Baldwin must waive, and require Baldwin’s insurers to waive, any and all recovery rights to which any insurer of Baldwin may have against Client by virtue of the payment of any loss under any insurance.
15. Independent Contractor. Baldwin shall at all times be deemed to be an independent contractor of Client. Baldwin’s employees shall not be regarded as employees or agents of Client for the payment of any employer taxes such as Federal Insurance Contributions Act (FICA), unemployment, and worker’s compensation; and Client shall not be responsible for such taxes or any fringe benefits for Baldwin’s employees. Further, the employees of Baldwin shall not be regarded as employees of Client with respect to any intentional or negligent activity in which they may be involved or for any other purpose. This Agreement does not constitute and shall not be construed as constituting a partnership or joint venture between Baldwin and Client. Neither Party shall have the right to obligate or bind the other Party in any manner whatsoever, nor shall anything contained herein give, nor shall it be construed to give any rights of any kind to any third persons.
16. Subcontractors and Third-Party Hosts. The Parties shall be permitted to utilize subcontractors to assist them in the performance of the Services herein; provided such subcontractors have executed a written agreement with the Party utilizing the subcontractor which obligates any such subcontractor to protect Confidential Information and to grant ownership of proprietary rights to the Party utilizing the subcontractor to the same extent as is required of the Party utilizing the subcontractor by this Agreement and its terms. Further, the Party utilizing the subcontractor agrees to be fully responsible for all acts and omissions of any subcontractor used by the Party and permitted under this Agreement and its terms.
The subcontractor requirements of this Section 16, including the consent requirements, shall also apply to any third parties Baldwin may desire to utilize to host the Licensed Content. Baldwin shall ensure that Baldwin has the right to inspect the security and privacy policies and procedures of each subcontractor, as well as each subcontractor’s physical facilities where the Licensed Content is to be hosted. Baldwin represents and warrants that any subcontractor utilized by Baldwin shall be contractually obligated to Baldwin to keep Client’s Confidential Information confidential in the manner required under this Agreement and its terms.
Baldwin shall not subcontract any grant of this Agreement to any party that is on the Specialty Designated Nationals and Blocked Persons List available at http://www.ustreas.gov/offices/enforcement/ofac/ maintained by the U.S. Treasury Department’s Office of Foreign Assets Control or to any party who is located in or has its principal place of business in a country subject to economic sanctions maintained by the U.S. Treasury Department’s Office of Foreign Asset Controls.
The Parties have and/or will communicate all necessary terms and obligations to subcontractors, if any, who will be performing work under this Agreement so that the subcontractor may appropriately carry out its obligations under the grant and terms of this Agreement.
17. Retention and Inspection of Records. All records related to this arrangement shall be kept on file by Baldwin for a period of four (4) years from the date the record is made. Upon reasonable prior notice, Baldwin shall give Client, or its authorized representative, the ability to inspect, examine, and audit, during normal business hours, Baldwin’s business records as are relevant to this Agreement. The cost of such inspection, examination, and audit shall be at the sole expense of Client, and such inspection, examination, and audit shall be conducted where the records are normally maintained.
18. Ownership and Intellectual Property Rights. The Parties agree that the Licensed Content, and any and all rights, interest, and title, including copyrights, trademarks (registered and/or designated) and trade names therein, are and shall remain the property of Baldwin, subject to the License granted hereunder. The Parties further agree that, notwithstanding the foregoing, Client shall have the right to possession of any and all tangible copies, images and reproductions thereof made by Client pursuant to this Agreement, during the Term hereof, provided Client’s use of all such copies and reproductions is limited to the grant described above. Upon expiration or termination of this Agreement, all rights and licenses to the Licensed Content and related copyrights, trademarks (registered and/or designated) and trade names shall cease and desist, and Client shall discontinue all use of the Licensed Content. Client agrees to delete and remove the Licensed Content, as well as references to the Licensed Content, from Client’s websites, and all other materials and media in which the Licensed Content were used, and to return to Baldwin or destroy all copies, images and reproductions of the Licensed Content, regardless of the form in which they exist, at Client’s expense, and to provide written certification of such to Baldwin.
Each Party will retain ownership of its own images and marks. Neither Party shall use the other Party’s name or mark other than in connection with the publications and services provided under this Agreement. Each Party represents and warrants to the other that it has the full right, power and authority to perform its obligations hereunder (including the ownership rights for any intellectual property used in performance of this Agreement).
19. Copyright Notice and Trademark Notice on Licensed Content. All materials and media which contain copies, images and reproductions of the Licensed Content and/or in which the Licensed Content were used or embodied pursuant to this Agreement shall contain or be accompanied by a copyright notice (for each Health eCooking® recipe and recipe photograph and Cook eKitchen™ recipe and recipe photograph) and trademark and trade name notice (for the name and mark Health eCooking® , Cook eKitchen™ and “Baldwin Publishing”) in the name of Baldwin, and a credit referencing Baldwin as the copyright, trademark and trade name owner of the foregoing.
All trademarks and trade names of each Party are and will remain the exclusive property of such Party. Neither Party will acquire any right to the trademarks or trade name of the other Party. Except as expressly stated herein, neither Party may: (i) publicize this Agreement or its subject matter, (ii) state that any product or service has been approved or endorsed by the other Party or its affiliates; or (iii) use the name, trade name, trademark or symbol of the other Party in connection with any advertising or promotional materials or activities, or in other written, electronic, magnetic or laser media communications with or materials or products provided to third parties. Provided, however, that Baldwin may use Client’s name to identify Client as one of Baldwin’s customers, and that such use of the Client’s name shall be non-exclusive, royalty-free and non-transferable.
20. Confidential Information. In the course of performance of this Agreement, information may be exchanged between the Parties and/or the Parties may acquire knowledge or information about the other Party. The Parties agree that all such information and/or knowledge is proprietary and confidential (“Confidential Information”), including without limitation, all information disclosed at any time, before, after or at the time of the execution of this Agreement between the Parties relating to the Licensed Content, all other intellectual and intangible property rights of the respective Parties hereto, and any other information which has been or shall be disclosed between the Parties relating to the their respective businesses, customers, products, marketing and sales plans, financial status, product development plans, strategies and the like. Client acknowledges that the foregoing, including without limitation the Licensed Content, constitute proprietary and confidential information of Baldwin, whether or not any portion thereof is or may be the subject of a valid copyright, trademark or trade name. Each Party agrees to protect and hold all such Confidential Information in strict confidence, and not to disclose any such information to third parties or use any such information for its own benefit. No Party will be liable under this Agreement for any disclosure of Confidential Information: (i) to such Party’s counsel or other advisors; (ii) to a court, arbitration panel or other similar body, in the event such Party has a bona fide dispute with the other Party regarding this Agreement; and/or (iii) if compelled by law to make such disclosure.
21. Conflict of Interest. Baldwin represents and warrants that, to the best of its knowledge, it is not aware of any information bearing on the existence of any actual or potential conflict of interest where any Client employee or any physician who is a member of the medical staff of any Client facility has a financial interest in Baldwin or in the Services that (i) may compromise or bias the judgment or objectivity; (ii) appear to compromise that person’s objectivity in the performance of his/her responsibilities in respect to this Agreement; or (iii) creates an excess benefit for such person. Baldwin agrees that if it identifies any such actual or potential conflict of interest then Baldwin will immediately make a full disclosure in writing to Client. Upon discovery of any such actual or potential conflict of interest after the execution of this Agreement, Client may terminate this Agreement immediately if it deems such termination necessary and appropriate. If Baldwin was aware of an actual or potential conflict of interest prior to the execution of this Agreement, or discovers an actual or potential conflict after execution and does not disclose it or misrepresents relevant information to Client, Client may terminate this Agreement for breach and may also pursue other remedies for breach of contract.
22. No Inducement of Referrals. This Agreement is not intended to induce Baldwin to refer patients to Client.
23. Assignment. This Agreement may not be assigned by either Party without the prior written consent of the other Party, such consent not to be unreasonably delayed or withheld. If consent to an assignment is obtained, this Agreement will be binding on the successors and assigns of the Parties to this Agreement. Notwithstanding any provision of this Agreement to the contrary, the Parties shall have the right to assign or otherwise transfer their interest under this Agreement to any related entity. For the purposes of this section, a related entity shall be deemed to include a parent, subsidiary, any entity that acquires all or substantially all of the Party’s assets or operations relating to this Agreement, and the surviving entity of any merger or consolidation involving the Parties. Any assignment to a related entity shall not require the consent or approval of the other Party in order to be effective, however, the assigning Party shall provide written notice to the non-assigning Party within thirty (30) days of any such assignment. If such assignment will have a substantial adverse effect on the non-assigning Party’s business operations or the non-assigning Party’s rights or obligations under this Agreement then the non-assigning Party, in the non-assigning Party’s discretion may terminate this Agreement with such notice as is reasonable under the circumstances.
24. Cancellation and Termination. In the event that the other Party commits a material breach of any provision of this Agreement, either Party may terminate this Agreement by providing the other Party with thirty (30) days prior written notice. Said notice must specify the nature of the material breach, the effective date of termination, and that the breaching Party shall have thirty (30) days after the receipt of such notice to cure said material breach. Should the breaching Party fail to cure said material breach within the thirty (30) day notice period, this Agreement shall automatically terminate upon the effective date set forth in the notice of termination.
Each Party may cancel all or part of the Services hereunder if the provision thereof (a) becomes the subject of a claim of infringement of any third party’s rights, or (b) depends upon an agreement between Baldwin and a third party, and that agreement is terminated, or is adjudicated to be illegal or contrary to any applicable law or public policy. Should Client elect to cancel all or part of the Services hereunder by reason of subparagraph (a) and/or (b) above, Baldwin shall have thirty (30) days to cure following receipt of notice of Client’s intent to cancel all or part of the Services hereunder. If this section applies, Baldwin’s maximum liability shall be the greater of the amount of prepaid consideration applicable to the cancelled portion of the Agreement or the insurance limits herein. In the event of a cancellation of this Agreement, in whole or in part, notwithstanding any other provision herein to the contrary, Baldwin shall refund that amount of prepaid consideration applicable to the cancelled portion of the Agreement, and Baldwin shall be relieved of any further liability except for any liability which extends beyond termination or expiration of the Agreement.
This Agreement may be terminated immediately by either Party in the event: (i) an order for relief in any bankruptcy or reorganization proceeding is entered against the other Party; (ii) a receiver is appointed for all or substantially all of the assets of the other Party; (iii) the other Party is dissolved or liquidated other than in connection with a sale of all or substantially all of its assets; (iv) the other Party completely discontinues its business other than in connection with a sale of all or substantially all of its assets; or (v) the other Party attempts to assign this Agreement in contravention hereof.
Upon termination of this Agreement, each Party shall promptly return to the other all confidential and business-sensitive information in tangible form which is then in possession or control of such Party. After termination, Client will no longer have any license to use the Licensed Content.
25. Waiver. No failure on the part of any Party hereto to exercise, and no delay in exercising any right, power, or remedy hereunder shall operate as a waiver thereof, nor shall any single or partial exercise of any right, power, or remedy hereunder preclude any further or other exercise thereof the exercise of any other right, power, or remedy.
26. Enforceability. If any term of this Agreement is found to be unenforceable or contrary to law, it shall be modified to the least extent necessary to make it enforceable, and the remaining portions of this Agreement will remain in full force and effect and shall be enforced to the fullest extent permitted by law.
27. Force Majeure. Neither Party shall be liable for any delay in performance or any failure in performance caused in whole or in part by reason of force majeure, which shall be deemed to include the occurrence of any event beyond the control of the Parties, including, without limitation, war (whether an actual declaration thereof is made or not), sabotage, insurrection, riot and other acts of civil disobedience, action of a public enemy, laws, regulations or acts of any national, state or local government (or any agency, subdivision or instrumentality thereof), judicial action, accident, fire, explosion, flood, storm or act of God.
28. Physician Ownership. Baldwin expressly represents and warrants that one of the following provisions applies : (i) no physician, no physician organization and no member of any physician’s immediate family owns or holds an ownership or financial interest in Baldwin, including any affiliated or related entity or person, that is not the subject of an exception or “safe harbor” under applicable law, such as the exception for publicly-traded securities under 42 C.F.R. §411.356(a); or (ii) that Baldwin is a publicly traded company and is the subject of an exception under 42 C.F.R. § 411.356(a)(1) and (a)(2); or (iii) one or more physicians or a member of a physician’s immediate family own or have a financial relationship with Baldwin, and this Agreement is the subject of an arms-length negotiation and is for fair market value compensation, is not tied to or based on an expectation by Client that Baldwin or Baldwin’s physician owners shall refer patients to Client, and that the volume or value of referrals by any physician is not a part of the consideration for this Agreement.
29. Consultation with Legal Counsel. Each Party signing this Agreement acknowledges by signing that it has consulted its legal counsel to review this Agreement or had the opportunity to do so, and that it is signing this Agreement only after such consultation and opportunity.
30. Rule of Construction. Each Party and its legal counsel have reviewed and revised this Agreement, or had the opportunity to do so. The Parties therefore agree that the rule of construction that any ambiguities are to be resolved against the drafting Party must not be employed to interpret this Agreement or its amendments.
31. Corporate Authority. Each Party represents and warrants that the individual executing this Agreement on behalf of such Party is duly authorized to execute and deliver this Agreement on behalf of such corporation, person, firm, partnership or other entity and that this Agreement is binding upon such entity in accordance with its terms.
32. Counterparts. This Agreement may be executed in any number of counterparts, each of which shall be deemed an original and all of which shall constitute one and the same instrument. Signatures submitted via facsimile or electronic signature shall have the same force and effect as originals.
33. Entire Agreement. This Agreement, including the Statement of Work, License or other similar type of agreement between these same Parties constitute the entire agreement between the Parties, and supersedes all prior agreements, proposals, negotiations, representations or communications relating to the subject matter. This Agreement may be modified only by a written instrument executed by both Parties.
34. Governing Law and Forum. This Agreement shall be governed by the internal substantive law of the Commonwealth of Pennsylvania, and the construction and meaning of the terms and provisions of the Agreement shall also be interpreted in accordance with the laws of the Commonwealth of Pennsylvania without regard to principles of conflict and/or choice of law provisions thereof. Any disputes relating hereto shall be adjudicated in the state or federal courts of the Commonwealth of Pennsylvania and both parties hereby consent to the jurisdiction of said courts for purposes of any litigation arising hereunder.
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