Last Updated: January 10, 2024
MAYO CLINIC PLATFORM ADVISOR NETWORK AGREEMENT
This Mayo Clinic Platform Advisor Network Agreement (this “Agreement”) is entered into between Mayo Foundation for Medical Education and Research (“Mayo”) and you (“Advisor” or “you”) for the provision of services through the Mayo Clinic Platform advisor network in accordance with the following terms and conditions.
BY SELECTING “I ACCEPT” IN THE ADVISOR NETWORK INTAKE FORM, YOU ACKNOWLEDGE
THAT YOU HAVE READ, UNDERSTAND, AND AGREE TO BE BOUND BY ALL TERMS AND
CONDITIONS CONTAINED WITHIN THIS AGREEMENT. If you are using The Network (defined in
Section 2.1) on behalf of your employer, company, or organization (the “Organization”), you represent and warrant that you have the authority to accept this Agreement on behalf of the Organization. If you (and your Organization, if applicable) do not agree to the terms of the Agreement, Mayo is not willing to grant any right to use or access The Network to you. The terms “Advisor”, “Advisor’s” “you,” “your,” etc. refers to both you as an individual user and your Organization (if applicable). When used herein the term “Agreement” includes the body of this Agreement, and any exhibits attached to or included with this Agreement. In the event of any irreconcilable conflict between the following body of this Agreement and/or any other exhibit, the terms set forth in the body of this Agreement will govern.
1. Term. This Agreement shall commence upon Advisor’s first use of The Network and continue in full force until otherwise terminated in accordance with Section 14 (the “Term”).
2. The Network
2.1 Network Participation. Subject to the terms and conditions of this Agreement, Mayo authorizes Advisor to participate with Mayo Clinic Platform’s advisor network (“The Network”) during the Term. The Network provides Advisor with materials, guidance, forums, and processes to allow Advisor to source, be matched with, and be engaged by persons or organizations (each, a “Customer”) seeking experts via The Network to provide certain Advisory Services. For purposes of this Agreement, “Advisory Services” means a discrete set of services defined in the Order Form (defined in Section 4.2) between Advisor and the applicable Customer to provide guidance to Customer in relation to Customer’s models, algorithms, or other health care solutions developed by a Customer.
2.2 Online Portal. Mayo intends to implement an online portal to enhance the communications platform and Customer matching operations of The Network. Mayo will amend this Agreement to address such implementations and Advisor’s use of the online portal at any time during the Term by providing sixty (60) days’ written notice to Advisor. Use of such online portal will be a condition of Advisor’s participation in The Network.
2.3 Support. During the Term, Mayo will provide Advisor with commercially reasonable support in connection with Advisor’s authorized use of The Network during Mayo’s then-current business hours. Mayo will provide Advisor with its then-current contact information for support-related needs from Advisor.
2.4 Advisor Responsibilities. Advisor is responsible for obtaining and maintaining any equipment and ancillary services needed to connect to, access, or otherwise use The Network, including hardware, software, operating systems, networking, web servers, telecommunication and internet connections, and the like. Advisor shall also be responsible for maintaining the security of the foregoing equipment and services and Advisor’s information and files. Advisor is responsible for all uses of Advisor’s information and files with or without Advisor’s knowledge or consent and for
preserving and making adequate backups of its data. Advisor will maintain and enforce administrative, technical, and physical safeguards to reasonably protect the confidentiality, availability, and integrity of Mayo’s and any Customer’s Confidential Information consistent with any law or regulation applicable to performance of the Advisor Services and Advisor’s then-current policies and procedures.
3. Joining The Network
3.1 Qualifications and Requirements. As a condition of Advisor’s use of and access to, and ability to provide Advisory Services to a Customer through The Network, Advisor shall comply with the following requirements:
(a) Conflicts of Interest. Advisor shall not provide Advisory Services to a Customer if such engagement
poses a conflict of interest with the Advisor. To facilitate the matchmaking process, Advisor will disclose to Mayo any potential conflicts of interest, including any financial or other incentives may that impact a Customer’s success. For example, Advisor may have a financial interest in a medical device that could compete with a Customer’s algorithm, and in such case Mayo would take such financial interest into account during the matchmaking process. Advisor will provide a list of conflicts of interest to Mayo during the onboarding process and promptly notify Mayo of any new conflicts of interest that may arise thereafter during the term.
(b) Confidentiality. Advisor shall hold all Customer Content (defined in Section 8.2) as confidential
and apply those protections set forth in Section 9 (Confidentiality) to such Customer Content.
(c) Compliance. Advisor shall comply with the any and all applicable laws, regulations, duties, and
requirements in the course of its performance hereunder and under any Order Form. Advisor shall maintain all government licenses, approvals, permits, and authorizations required by applicable federal, state, or local laws or regulations required to perform Advisor Services; Advisor is financially responsible for all fees, costs and taxes associated with such licenses, approvals, permits, and authorizations.
(d) Insurance. Advisor agrees to maintain appropriate professional liability and general liability
insurance or self-insurance to cover any liability of the party and/or its employees arising out of any acts its employees may perform in connection with this Agreement. If such insurance is written on a claims-made basis, Advisor will obtain, at its expense, an extended reporting endorsement upon termination of this Agreement which provides continuing coverage under such insurance for claims based upon acts or omissions and alleged acts or omissions during the term of this Agreement. Upon request, each party will provide the other party with proof of the insurance or self-insurance required under this Section.
4. Engagement Types. Advisors will provide Advisory Services using one of the following tiered
“Engagement Types”, as determined by The Network:
| Tier 1 | Tier 2 |
|---|---|
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4.1 Matching with a Customer. To solicit guidance from advisors, Customers will submit requests for Advisory Services to The Network (“Requests”). Mayo will analyze Requests and compare with the expertise of available advisors in The Network to match Customers to with an advisor to fulfill the Request. If Advisor is selected as a match for a Request, Advisor may, in its sole discretion, either accept or reject the Request.
4.2 Order Form. For each Request Advisor accepts on The Network, Advisor and the applicable Customer will work with Mayo in good faith to further develop, as needed, the description of Advisory Services, such as the scope, price, and timeline for the applicable Advisory Services, as well as identification of the Engagement Type (each, an “Order Form”). Each Order Form shall be executed by both Advisor and Customer prior to the performance of Advisory Services. Any Order Form is subject to the terms of this Agreement.
4.3 Customer Contracting. Mayo shall prepare, negotiate, execute, and deliver a Customer contract with each Customer to use The Network and its Advisory Services, including the Order Form (the “Customer Contract”). Mayo shall have the sole control to determine the pricing of the Advisory Services in Customer Contracts. Mayo will use commercially reasonable efforts to include a disclaimer of liability and warranties for Advisor in each Customer Contract. Advisor understands, acknowledges, and agrees that Customers are not Mayo’s personnel or agents and that Mayo is not responsible nor liable for the actions of the Customers except as set forth in this Section. Each Customer contract shall (i) bind the Customer to terms and conditions consistent with the terms applicable to Mayo herein; and (ii) names Advisory as a third party beneficiary to such Customer Contract; and (iii) with respect to the Advisory Services, includes a disclaimer of warranties substantially similar to Section 7.4 and a limitation of liability substantially similar to Section 12. Contingent upon Mayo’s compliance with the foregoing, Mayo shall not be liable for a Customer’s compliance with the Customer contract authorized in this subsection, and Advisor’s exclusive remedy will be to pursue the Customer directly as third party beneficiary under the Customer Contract.
4.4 Performance of Advisory Services. Advisor shall provide Advisory Services in accordance with this
Agreement and the applicable Order Form. Advisor shall perform Advisory Services in accordance with the timelines and objectives described in such Order Form. Advisor will devote such time and effort as may be needed to perform the Advisory Services, the performance of which may not be subcontracted.. Advisor represents and warrants that any Advisory Services performed by Advisor pursuant to this Agreement shall be performed on a professional basis, consistent with the best commercially reasonable practices in the industry and in a diligent, workmanlike, and expeditious manner. Performance of Advisory Services is the sole responsibility of Advisor, and Mayo has no obligation to perform or oversee any Advisory Services or monitor the relationships between Advisor and Customers. Without limiting the generality of the foregoing, Mayo may, but is not obligated, to facilitate dispute resolution between Advisor and Customers and otherwise provide service and support to Advisor in connection with its use of The Network upon request if Advisor is unable to resolve any inquiries, issues, or disputes directly with the applicable Customer.
5. Advisor Compensation and Payment Terms.
5.1 Compensation. Advisor will be paid on an hourly basis for Advisory Services provided hereunder shall be set forth in the Order Form (the “Advisor Compensation”).
5.2 Payment. Mayo will remit Advisor Compensation payments within sixty (60) days of completion of the applicable Advisory Services, including delivery of all deliverables to the Customer, in accordance and compliance with the applicable Order Form.
5.3 Taxes. Each party shall be responsible for (and remit as prescribed by the laws of any duly constituted taxing authority with jurisdiction) any sales, use, transaction privilege, gross receipts, cash collections, value added, excise, goods and services, transfer or similar taxes, duties, customs, tariffs, imposts or any surcharges or escheat requirements (collectively, the "Taxes"), imposed upon that party by the laws of such jurisdiction in effect at the time Services are provided or goods are transferred. Mayo shall collect or withhold income or other taxes from payments to Advisor to the extent that such taxes are required by any duly constituted taxing authority and in no event shall Mayo be required to "gross up" or increase any payment to Advisor for such taxes. Mayo shall not be responsible for: (i) any taxes based upon the assets, capital, equity, gross receipts, net income or taxable margin of Advisor; (ii) any penalties or interest resulting from Advisor's failure to timely pay or remit any Taxes attributable to the Advisory Services or goods or, if such Taxes are imposed by law upon Mayo and remitted through Advisor, to timely notify Mayo of such Taxes; (iii) the employer's share of any employment related taxes of whatever sort (including federal, state and provincial social security taxes and federal, state and provincial unemployment taxes for all employees engaged by Advisor providing the Advisory Services); or (iv) any other taxes or charges applicable to Advisor's actions. In the event, Mayo does not collect or withhold tax from Advisor, and is subsequently audited by any tax authority, liability of Advisor will be
limited to the tax assessment, with no reimbursement for penalty or interest charges. Unless otherwise noted in this agreement, fees/prices are net of all taxes, excluding however, taxes based on Mayo's net income that may be imposed in connection with this Agreement or any Order Form.
6. Advisory Services Restrictions. The Network’s Advisory Services will not include and therefore Advisor is prohibited from providing under any Order Form, any medical advice, legal advice, or representations in any way regarding any legal or medical issues, including any compliance obligations or steps necessary to comply with applicable law. Advisor agrees that the Advisory Services will not require or otherwise involve access to Protected Health Information (“PHI”), as that term is defined in the Health Insurance Portability and Accountability Act of 1996 (“HIPAA”), and Advisor will refrain from requesting PHI from Customers.
7. Representations and Warranties
7.1 Mutual Warranty. Both parties warrant as follows: (i) they have sufficient rights to enter into and perform this Agreement; (ii) they shall use commercially reasonable efforts to prevent the transmission of viruses and other malware to the other party’s systems; (iii) they will comply with all laws applicable to them in the performance of this Agreement; and (iv) they are not listed on the U.S. Treasury Department's list of Specially Designated Nationals or the U.S. Department of Commerce Denied Person’s List or Entity List, or located in a U.S. embargoed country.
7.2 Advisor Warranty. Advisor further represents and warrants that Advisor does comply, and shall continue to comply during the Term, with the requirements set forth in Section 4.
7.3 Mayo Warranty. Mayo further represents and warrants that during the Term, The Network will substantially conform to its description herein. In the event of a breach of the warranty in this Section, Mayo’s sole and exclusive liability and Advisor’s sole and exclusive remedy will be for Mayo to, in its sole discretion, to use commercially reasonable efforts to correct the non-conformance or terminate this Agreement and issue a prorated refund of any pre-paid, unused recurring fees for the non-conforming aspect of The Network.
7.4 Disclaimer of Warranties. EXCEPT FOR THE LIMITED WARRANTIES IN THIS SECTION, THE NETWORK IS PROVIDED “AS IS,” WITH ALL FAULTS, AND WITHOUT WARRANTIES OF ANY KIND. EXCEPT FOR THE LIMITED WARRANTIES IN THIS SECTION, MAYO EXPRESSLY DISCLAIMS ALL OTHER WARRANTIES, EXPRESS AND IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, QUIET ENJOYMENT, QUALITY OF INFORMATION, TITLE/NON-INFRINGEMENT, AND FITNESS FOR A PARTICULAR PURPOSE. MAYO DOES NOT WARRANT THAT THE OPERATION OF THE NETWORK WILL BE UNINTERRUPTED OR ERROR-FREE OR THAT DEFECTS IN THE NETWORK WILL OR CAN BE CORRECTED. NO ORAL OR WRITTEN INFORMATION, MARKETING OR PROMOTIONAL MATERIALS, OR ADVICE GIVEN BY MAYO OR MAYO’S AUTHORIZED REPRESENTATIVES WILL CREATE ANY OTHER WARRANTIES OR IN ANY WAY INCREASE THE SCOPE OF MAYO’S OBLIGATIONS UNDER THIS AGREEMENT.
8. Intellectual Property
8.1 Background Intellectual Property. Nothing in this Agreement will be deemed or considered to grant to a party a license (whether express or implied) of any intellectual property rights or proprietary rights owned or licensed by the other party, or otherwise grant or transfer any rights therein to such party. Without limiting the above, all intellectual property rights that are owned or controlled by a party at the commencement of this Agreement will remain under the ownership or control of such party throughout the Term of this Agreement and thereafter.
8.2 Customer Intellectual Property. As between Customer and Advisor, any content, algorithms, models, programming, data, information, materials, and other intellectual property provided by a Customer to Advisor or accessed by or transmitted to Advisor (“Customer Content”) in rendering or otherwise in connection with the Advisory Services is and shall remain the sole and exclusive property and proprietary information of Customer, including all applicable rights to patents, copyrights, trademarks, trade secrets, derivative works, or other proprietary property rights thereto. Additionally, all right, title, and interest in and to any and all Customer intellectual property, including, but not limited to, data and information relating to Customer’s business shall remain the property of Customer, whether or not accessed by or supplied to Advisory. Customer owns all Customer Content and nothing in this Agreement shall be deemed to transfer such ownership to Advisor in any manner. By signing an Order Form, Customers grants Advisor the nonexclusive, terminable at-will, paid-up right to use the Customer Content solely as necessary to perform its obligations under this Agreement or any Order Form.
8.3 Intellectual Property Resulting from Advisory Services. All deliverables or other work product prepared for or submitted to Mayo or a Customer, as applicable, by Advisory under this Agreement shall belong exclusively to Mayo or the respective Customer and shall be deemed to be “Work Made for Hire.” To the extent such work product is not deemed to be “Work Made for Hire,” Advisor hereby assigns all proprietary rights, including copyright, in such work product to Mayo or the respective Customer without further compensation. All ideas, concepts, information, written materials or other Customer Content disclosed to Advisor by Mayo are and shall remain the sole and exclusive property and proprietary information of Mayo or respective Customer, and are disclosed in confidence by Mayo or Customer in reliance on Advisor’s agreement to maintain them in confidence and not to use or disclose them to any third party other than a permitted subcontractor or agent of Advisor, except in furtherance of Mayo’s or Customer’s business.
8.4 Feedback. Advisor may provide suggestions, comments, or other feedback (collectively, “Feedback”) to Mayo with respect to its products and services. Feedback is voluntary and Mayo is not required to hold it in confidence. Mayo may use Feedback for any purpose without obligation of any kind. Mayo may use any technical information it derives from providing its products and services relating to problem resolution, troubleshooting, product functionality, enhancements, and fixes, for its knowledge base. To the extent a license is required under Advisor’s intellectual property rights to make use of the Feedback, Advisor grants Mayo an irrevocable, non-exclusive, perpetual, fully- paid-up, royalty-free license to use the Feedback in connection with Mayo’s business, including the enhancement of Mayo’s products and services.
8.5 Usage Data. Mayo shall have the right to collect, analyze, and aggregate data and other information relating to the provision, use, and performance of various aspects of The Network and related systems and technologies (including information concerning Advisor Data and data derived therefrom), and Mayo may (i) use such information and data to improve and enhance The Network and for other development, diagnostic, and corrective purposes in connection with The Network and other Mayo Clinic Platform offerings, and (ii) disclose such data solely in aggregated or other de-identified form in connection with its business, provided such data does not include (directly or by inference) any information identifying Advisor or any identifiable individual. No rights or licenses are granted by either Party except as expressly set forth herein.
9. Confidentiality
9.1 Confidential Information. For purposes of this Agreement, “Confidential Information” means all information or material (i) which gives a party some competitive business advantage or an opportunity of obtaining some competitive business advantage, or the disclosure of which could be detrimental to the interests of a party; and (ii) which (A) is marked “Confidential,” “Restricted,” or “Proprietary Information” or other similar marking, (B) is known by the parties to be considered confidential and proprietary, or (C) from all the relevant circumstances should reasonably be assumed to be confidential and proprietary. For the avoidance of doubt, Mayo’s Confidential Information includes but is not limited to all Mayo Data, Customer Content, and the terms of this Agreement. During the course of this Agreement, each party may disclose to the other certain Confidential Information. Notwithstanding the foregoing, Confidential Information does not include information that: (a) is or becomes publicly available through no breach by the receiving party; (b) was previously known to the receiving party prior to the date of disclosure, as evidenced by contemporaneous written records; (c) was acquired from a third party without any breach of any obligation of confidentiality; or (d) was independently developed by a party hereto without reference to Confidential Information of the other party.
9.2 Protection of Confidential Information. Except as expressly provided in this Agreement, the receiving party will not use or disclose any Confidential Information of the disclosing party without the disclosing party's prior written consent, except: (i) disclosure to and subsequent uses by the receiving party's employees and those of its legal affiliates, attorneys, contractors, and accountants (“Representatives”) on a need-to-know basis, provided that such Representatives have executed written agreements restricting use or disclosure of such Confidential Information that are at least as restrictive as the receiving party's obligations under this Section; and (ii) as required to be disclosed pursuant to a subpoena or other similar order of any court or government agency, provided, however, that the receiving party will promptly inform the disclosing party in writing and provide a copy thereof (unless notice is precluded by the applicable process), and will only disclose that Confidential Information necessary to comply with such subpoena or order. Subject to the foregoing nondisclosure and non-use obligations, the receiving party agrees to use at least the same care and precaution in protecting such Confidential Information as the receiving party uses to protect the receiving party's own Confidential Information and trade secrets, and in no event less than reasonable care. Each party acknowledges that due to the unique nature of the other party's Confidential Information, the disclosing party will not have an adequate remedy in money or damages in the event of any unauthorized use or disclosure of its Confidential Information. In addition to any other remedies that may be available in law, in equity or otherwise, the disclosing party will be entitled to seek injunctive relief to prevent such unauthorized use or disclosure. For the avoidance of doubt, the confidentiality obligations and restrictions contained herein do not apply to the extent Advisor provides any data or information that Advisor uploads to The Network. Each party’s Confidential Information shall remain the sole and exclusive property of that party.
10. Security. Mayo will maintain and enforce safety and physical security procedures with respect to The Network that are (i) at least equal to industry standards for substantially similar services, and (ii) which provide reasonably appropriate technical and organizational safeguards against accidental or unlawful destruction, loss, alteration, or unauthorized disclosure of or access to information or systems.
11. Indemnification. Advisor will defend and indemnify Mayo and hold it harmless from any and all claims, losses, deficiencies, damages, liabilities, costs, expenses fines, sanctions, or penalties, (including but not limited to reasonable attorneys’ fees) incurred by Mayo, including those imposed by any regulator, as a result of any claim by a third party arising from (i) Advisor’s use of The Network in breach of this Agreement(ii) Advisor’s breach of its representations or warranties made under this Agreement; (iii) any claim by a third party that any Advisor deliverables or other work product provided or created in connection with Advisory Services infringes the intellectual property rights of any person, or (iv) the Excluded Claims. Mayo shall provide Advisor with all reasonable assistance (as Advisor’s sole expense) in connection with the defense of any such claim, and Advisor shall have authority to control the defense of any such claim, provided that Advisor shall not settle any matter that would incur liability for Mayo or require Mayo to make any admission of liability without Mayo’s prior written consent.
12. Disclaimer of Consequential Damages; Limitation of Liability. NEITHER MAYO NOR ITS VENDORS
AND LICENSORS WILL HAVE ANY LIABILITY TO ADVISOR OR ANY THIRD PARTY FOR ANY LOSS OF PROFITS, SALES, BUSINESS, DATA, OR OTHER INCIDENTAL, CONSEQUENTIAL, OR SPECIAL LOSS OR DAMAGE, INCLUDING EXEMPLARY AND PUNITIVE DAMAGES, OF ANY KIND OR NATURE RESULTING FROM OR ARISING OUT OF THIS AGREEMENT OR USE OF THE NETWORK. THE TOTAL LIABILITY OF MAYO AND ITS VENDORS AND LICENSORS TO ADVISOR OR ANY THIRD PARTY ARISING OUT OF THIS AGREEMENT AND USE OF THE NETWORK FOR ANY AND ALL CLAIMS OR TYPES OF DAMAGES WILL NOT EXCEED THE AGGREGATE FEES PAID OR PAYABLE TO ADVISOR BY MAYO HEREUNDER IN THE ORDER FORM GIVING RISE TO LIABILITY. The disclaimer and limitation of damages set forth in this Section shall not apply to damages caused by a party’s (i) breach of confidentiality, (ii) gross negligence or wilful misconduct, or (iii) infringement of the other party’s intellectual property rights. The allocations of liability in this Section represent the agreed, bargained-for understanding of the parties and Mayo’s compensation hereunder reflects such allocations. The limitation of liability and types of damages stated in this Agreement are intended by the parties to apply regardless of the form of lawsuit or claim a party may bring, whether in tort, contract, statute or otherwise, and regardless of whether any limited remedy provided for in this Agreement fails of its essential purpose. No action arising out of this Agreement may be brought by either party more than two (2) years after such cause of action accrues, except that an action for nonpayment may be brought within two (2) years of the date of the last payment under this Agreement.
13. Termination; Suspension
13.1 Termination. Each party shall have the right to terminate this Agreement: (i) on the thirtieth (30th) day after such party gives the other written notice of a breach by the other of any material term or condition of this Agreement, unless the breach is cured before that day; (ii) with or without cause, upon thirty (30) days prior written notice; and (iii) upon written notice, immediately, if (a) a receiver is appointed for the other party or its property; (b) the other party becomes insolvent or unable to pay its debts as they mature in the ordinary course of business or makes a general assignment for the benefit of its creditors; or (c) any proceedings (whether voluntary or involuntary) are commenced against the other party under any bankruptcy or similar law and such proceedings are not vacated or set aside within sixty (60) days from the date of commencement thereof. In addition, Mayo may terminate this Agreement if it ceases to generally provide The Network. The exercise of the right to terminate this Agreement will be in addition to any other right and remedy provided in this Agreement or existing at law or equity that is not otherwise excluded or limited under this Agreement. Upon termination of this Agreement for any reason, (1) Advisor’s access to and use of The Network will cease as of the effective date of termination; (2) any Order Forms executed pursuant to it will be automatically terminated, and (3) subject to resolution of any disputes related to Customers, The Network, or Advisor performance, Mayo will pay to Advisor all fees due to Advisor, in accordance with this Agreement, earned hereunder through the effective date of termination. For clarity, in the event this Agreement is terminated with active Order Form(s) in effect, Advisory shall be entitled to only that prorata amount of compensation earned prior to and including the date of termination and shall not be entitled to any continuation of compensation following such termination.
13.2 Suspension. Mayo may, in its sole discretion, immediately suspend or terminate Advisor’s or any Customer’s access to The Network at any time for any. Advisor agrees to promptly suspend Advisory Services to a Customer at the request of Mayo. Mayo will use reasonable efforts to provide Advisor with notice prior to or promptly following any suspension. Mayo may promptly restore access to The Network as soon as the event giving rise to suspension has been resolved. This Section will not be construed as imposing any obligation or duty on Mayo to monitor use of The Network.
13.3 Survivability. All provisions of this Agreement relating to confidentiality, non-disclosure, intellectual property, disclaimers, limitation of liability, indemnification, payment, use of name, and any other provisions which must survive in order to give effect to their meaning, will survive the termination of this Agreement.
14. General
14.1 Affiliates, Subcontractors, and Advisors. Some or all aspects of The Network, including support, may be provided by Mayo’s affiliates, agents, subcontractors, and information system vendors. The rights and obligations of Mayo may be, in whole or in part, exercised or fulfilled by the foregoing entities.
14.2 Independent Contractor. Mayo, its personnel, agents, subcontractors and independent contractors are not employees or agents of Advisor and are acting as independent contractors with respect to Advisor. Neither party is, nor will be considered to be, an agent, distributor, partner, joint venturer or representative of the other party for any purpose, and neither party will have the authority to act on behalf of, or in the name of, or to bind the other party in any manner whatsoever.
14.3 Assignment. Advisor may not assign its rights or delegate its duties under this Agreement either in whole or in part without the prior written consent of Mayo. Except as provided above, this Agreement will apply to, inure to the benefit of, and be binding upon the parties hereto and their permitted successors and assigns.
14.4 Force Majeure. Neither party to this Agreement will be liable for delays or failures in performance under this Agreement (other than the payment obligations or breach of confidentiality requirements) resulting from acts or events beyond the reasonable control of such party, including acts of war, terrorism, acts of God, earthquake, flood, epidemic, pandemic, embargo, riot, sabotage or dispute, governmental act or failure of the Internet, power failure, energy interruption or shortages, other utility interruption, and telecommunications interruption provided that the delayed party: (i) gives the other party prompt notice of such cause; and (ii) uses its reasonable commercial efforts to promptly correct such failure or delay in performance.
14.5 Anti-Corruption Compliance. Advisor shall obey all applicable laws or regulations in Advisor’s applicable jurisdictions and shall also obey the U.S. Foreign Corrupt Practices Act (“FCPA”) (15 USC §§ 78dd-1, et seq.) and any similar applicable anti-bribery provisions, laws or regulations. Each party shall reasonably assist the other party to assure such compliance at all times during the term of this Agreement. Advisor’s failure to adhere to the requirements of this Section shall be grounds for Mayo to terminate this Agreement immediately for cause.
14.6 Inducement of Referrals. The parties acknowledge and agree that the fees and compensation to be paid by Mayo to Advisor pursuant to this Agreement have not been and will not be determined in a manner that takes into account the volume or value of any patient referrals. The parties to this Agreement specifically intend to comply with all applicable laws, rules and regulations, including the federal anti-kickback statute (42 U.S.C. 1320a-7b), the related safe harbor regulations and the Limitation on Certain Physician Referrals, also referred to as the “Stark Law” (42 U.S.C. 1395 (n)). Accordingly, no part of any consideration paid hereunder is a prohibited payment for the recommending or arranging for the referral of business or the ordering of items or services; nor are the payments intended to induce illegal referrals of business.
14.7 Governing Law; Venue; Severability. This Agreement will be governed by and construed in accordance with the laws of the State of Minnesota, without regard to its conflict of law provisions. The parties waive any objections against and agrees to submit to the exclusive personal jurisdiction of the state and federal courts located in Minnesota. The parties waive any objections or defenses it may have based upon an inconvenient forum. If any term of this Agreement is found to be unenforceable or invalid for any reason, all other terms will remain in full force and effect.
14.8 Use of Name. Advisor shall not use the names or trademarks of a Customer or Mayo or any of Mayo's affiliated entities in any news release, advertising, publicity, endorsement, promotion, or commercial communication unless Mayo has provided prior written consent for the particular use contemplated.
14.9 No Waivers. The waiver or failure of either party to exercise any right in any respect provided for herein will not be deemed to be a waiver of any further right hereunder.
14.10 Entire Agreement; Construction; Modifications. This Agreement constitutes the entire understanding between the parties related to the subject matter of this Agreement which understanding supersedes and merges all prior understandings and all other proposals, letters, agreements, oral or written. The parties further agree that there are no other inducements, warranties, representations or agreements regarding the matters herein between the parties except as expressly set forth in this Agreement. As used herein, the term “including” will mean “including, without limitation”; the term “includes” as used herein will mean “includes, without limitation”; and terms appearing in the singular will include the plural and terms appearing in the plural will include the singular. This Agreement may not be modified, amended or altered in any manner except by a written agreement signed by both parties, and any attempt at oral modification will be void and of no effect.
14.11 Notices. All notices under this Agreement will be in writing (including by email) and will be deemed to have been duly given when received, including when receipt is electronically confirmed. All notices under this Agreement to Mayo at the following email address: mcpadvisornetwork@mayo.edu. Notices to Advisor may be posted electronically to The Network or sent to Advisor at the email and/or mailing address that Mayo has on file. Mayo may change its address for notification purposes by notice to Advisor; Advisor may change its address to notification purposes by updating its account profile in The Network.
14.12 Headings; Counterparts. The headings contained in this Agreement are for purposes of convenience only and will not affect the meaning or interpretation of this Agreement. This Agreement may be executed in two or more original or electronic counterparts, each of which will be deemed an original, but all of which together will constitute one and the same instrument.
14.13 Electronic Acceptance. This Agreement and related documents may be accepted in electronic form (e.g., by an electronic acceptance or digital signature or other means of demonstrating assent) and Advisor’s acceptance will be deemed binding between the parties. Advisor acknowledges and agrees it will not contest the validity or enforceability of this Agreement and related documents, including under any applicable statute of frauds, because they were accepted and/or signed in electronic form. Advisor further acknowledges and agrees that it will not contest the validity or enforceability of a signed electronically transmitted copy of this Agreement and related documents on the basis that it lacks an original handwritten signature. Electronically transmitted signatures shall be considered valid signatures as of the date hereof. Computer maintained records of a party when produced in hard copy form shall constitute business records and shall have the same validity as any other generally recognized business records.