Direct Connect Select^® Agreement
Terms and Conditions

1. Definitions.
   1. “American Board of Medical Specialties” or “ABMS” is an Illinois not for profit corporation that is responsible for the creation of standards overseeing physician specialty board certification in partnership with ABMS Member Boards.
   2. “ABMS Data” is all or any data elements in the ABMS Database.
   3. “ABMS Database” is ABMS’ proprietary database that contains ABMS Data regarding the physicians who are certified by ABMS Member Boards.
   4. “ABMS Member Boards” are medical specialty boards that develop educational and professional standards and programs of assessment to certify physicians.
   5. “ABMS Solutions, LLC” or “Solutions” is an ABMS sublicensee and an Official ABMS Display Agent and thus is authorized to designate its products and services as a Primary Source Equivalent and available for Primary Source Verification as such standards are established by recognized accrediting organizations.
   6. “Applicable Law” is all applicable federal, state, and local statutes, regulations, rules, orders, decrees, and ordinances arising out of or related to the products and services provided by Solutions pursuant to this Agreement, including, but not limited to, the Anti-Kickback Statute, Civil Monetary Penalties Law, Exclusion Statute, False Claims Act, Foreign Corrupt Practices Act, and Stark Law.
   7. “Authorized Platform” is the digital platform that is obtained and maintained by Client at Client’s sole cost and expense and that is the exclusive channel for Client’s and Beneficiaries’ access to the ABMS Database.
   8. “Authorized User” is the one and only natural person who is an employee or agent of Client or a Beneficiary and who utilizes DCS for the purpose of enabling Client and or a Beneficiary to access the ABMS Database through the Authorized Platform for Permitted Purposes.
   9. “Authorized User Fee” is the annual fee charged to Client by Solutions for an Authorized User.
   10. “Beneficiary” is an entity—inclusive of its employees and agents and Authorized Users—now or in the future that has a relationship with Client which allows it to access, benefit from, receive, or otherwise use ABMS Data for Permitted Purposes, including, but not limited to, CVOs, health plans, Health Systems, hospitals, law firms, medical facilities, offices, organizations, subsidiaries, surgical centers, or other users related to Client.
   11. “Beneficiary Fee” is the annual fee charged to Client by Solutions for a Beneficiary.
   12. “Claims” are allegations, causes of action, charges, demands, investigations, lawsuits, proceedings, and all other claims of any nature.
   13. “Client” is the sole party to this Agreement—inclusive of its employees and agents and Authorized Users—and does not include Beneficiaries or affiliates, contractors, parent corporations, or subsidiaries of Client.
   14. “Confidential Information” is all non-public, confidential, or proprietary information that is disclosed by a Disclosing Party to a Receiving Party or that a Receiving Party should reasonably understand to be confidential or proprietary information of the Disclosing Party, including, but not limited to, ABMS Data; intellectual property and trade secrets; electronic files, software, and source code; employee and financial information; the existence and terms and conditions of this Agreement, including its provisions regarding pricing and information exchanged regarding Authorized Users of Beneficiaries and Beneficiaries; and any other non-public, confidential, or proprietary information and tangible embodiments of such information, whether in any medium, whether marked “confidential” or “proprietary,” and whether communicated verbally, in writing, graphically, or electronically. Confidential Information does not include information that was known to the Receiving Party or that was in the Receiving Party’s possession prior to receiving Confidential Information from the Disclosing Party; information that is received by the Receiving Party from a third party which, to the Receiving Party’s knowledge, is not under any obligation of confidentiality; information that becomes publicly available through no fault of the Receiving Party; information that was developed by the Receiving Party independently and without reference to or reliance on any Confidential Information; and information that is required to be disclosed by Applicable Law, including, but not limited to, disclosures pursuant to “sunshine laws” or “freedom of information acts” and legal process.
   15. “Credentialing Verification Organization” or “CVO” is a centralized organization, entity, or office that performs credentialing functions on behalf of a Health System, including Primary Source Verification for ABMS board certification.
   16. “Direct Connect Select®” or “DCS” is a proprietary web-based application that ABMS developed and maintains to provide individuals with access to the ABMS Database through the Authorized Platform.
   17. “Disclosing Party” is a party that discloses Confidential Information to a Receiving Party.
   18. “Force Majeure Event” is any circumstance beyond the reasonable control of a party—including, but not limited to, acts of God; strikes or lockouts; acts of war, riots, sabotage, or terrorism; public health emergencies; major technological failures; government regulations; natural disasters; or major utility failures—to the extent that such circumstance renders the party’s performance of its obligations established by this Agreement commercially impracticable, illegal, or impossible as scheduled and planned.
   19. “Health System” is a group of two or more health care providers that are not practicing as individual independent providers and that either (i) are practicing in an ambulatory care center, health care facility, health care organization, hospital, mental health care center, surgery center, or any other health-related entity which grants privileges to physicians to practice medicine, regardless of the payor arrangement; or (ii) are under the administration of a health insurance plan, health maintenance organization, managed services organization, physician-hospital organization, preferred provider organization, point of service plan, private or small group practice or partnership, self-insured plan, third-party administrator, or any other health-related entity, which acts as a direct payor to providers of health care services rendered to insureds, members, or participants of such entity.
   20. “Liabilities” are costs, expenses, fees, fines, judgments, losses, penalties, reasonable attorney’s fees, settlements, and all other liabilities of any nature.
   21. “Permitted Purposes” are the use of DCS by Client, Authorized Users, or Beneficiaries to access the ABMS Database through the Authorized Platform (i) to perform Primary Source Verification and (ii) to conduct internal credentialing services for ABMS board certified physicians and internal business processes related to PSV.
   22. “Primary Source Equivalent” or “PSE” is data that has been obtained from a source other than the original data source yet that may be considered as having been sourced from the original data source, and Solutions’ products and services are recognized as PSE for ABMS board certification because the original data source of ABMS Data is ABMS Member Boards.
   23. “Primary Source Verification” or “PSV” is the process of verifying a physician’s ABMS board certification directly from the original data source or a PSE.
   24. “Query” is any request that uses any one or any combination of data elements, fields, figures, terms, or values to attempt to obtain ABMS Data from the ABMS Database. Queries that produce either “results returned” or “no match” are by definition Queries and count towards the Query Limit. Queries that produce either “insufficient match” or “pending status” are not by definition Queries and do not count towards the Query Limit.
   25. “Query Fee” is the cost charged to Client based on the level or number of Queries purchased by Client.
   26. “Receiving Party” is a party that receives Confidential Information from a Disclosing Party.
2. Products and Services. During the Term, Solutions will (a) grant Client online access to the ABMS Database through the Authorized Platform and DCS, (b) allow Client to retrieve ABMS Data by querying the ABMS Database through Queries, and (c) permit Client to use and store ABMS Data, provided Client exercises these rights exclusively and solely for Permitted Purposes. Solutions owns and reserves all right, title, and interest in and to the products and services described in this Agreement, and no provision in this Agreement shall be deemed to grant any license to Client or to transfer to Client any intellectual property or proprietary rights in such products and services. Client’s right to receive the products and services described in this Agreement and to exercise any other rights granted by this Agreement shall terminate immediately upon the expiration or termination of this Agreement.
3. Total Fee.
   1. Prior to the Effective Date, Client shall submit to Solutions by electronic mail the full name and electronic mail address of its Authorized Users.
   2. Prior to the Effective Date of the initial term, Client shall identify all Beneficiaries by full corporate or organizational name and address, and Solutions shall calculate the initial Total Fee. Upon the full execution of this Agreement, Solutions shall invoice Client by electronic mail for the initial Total Fee, and Client shall pay the initial Total Fee as promptly as possible. Once the initial Total Fee is received in full and posted by Solutions, Solutions shall grant Client access to the ABMS Database through the Authorized Platform and DCS.
   3. During the Term, if Client has not purchased unlimited Queries, Client may purchase additional Queries based on current Query Fee options, and Query Fee options shall not be incorporated into this Agreement. Solutions shall invoice Client by electronic mail for the additional Query Fee, and Client shall pay the Query Fee by the due date on the invoice. All unused Queries at the end of the Term are forfeited.
   4. During the Term, if Client desires to add an Authorized User or Beneficiary, Client shall notify Solutions by electronic mail of the new Authorized User or new Beneficiary and shall provide Solutions with the required information for such Authorized User or such Beneficiary. Solutions shall invoice Client by electronic mail for the prorated Authorized User Fee or Beneficiary Fee based on the date the new Authorized User or new Beneficiary became an Authorized User or Beneficiary respectively. Client shall pay the prorated Authorized User Fee or prorated Beneficiary Fee by the due date on the invoice. Client is not entitled to any full or prorated refund of any Authorized User Fee or Beneficiary Fee.
   5. Client may request in writing that Solutions transfer the login credentials from one Authorized User to a new Authorized User at any time during the Term.
   6. If this Agreement is renewed, upon Solutions’ request, Client shall promptly verify all Beneficiaries. Solutions shall calculate the renewal Total Fee. Solutions shall invoice Client by electronic mail for the renewal Total Fee at least 60 days prior to the end of the then current Term, and Client shall pay the renewal Total Fee no later than the last day of the then current Term.
   7. Client is not entitled to any full or prorated refund of the Total Fee.
   8. Client’s right to access the ABMS Database through the Authorized Platform and DCS is contingent upon Client timely and fully paying the initial or renewal Total Fee when due.
4. Authorized Platform.
   1. Client shall establish and maintain an account with Solutions through Client’s Authorized Platform provider.
   2. Client shall be exclusively responsible for configuring, installing, maintaining, managing, and procuring all required access, equipment, networks, software, and other technical requirements arising out of or related to the Authorized Platform.
   3. Client shall implement and maintain data security measures and protocols that are commercially reasonable and consistent with industry standards to protect the ABMS Database from unauthorized access and alteration.
   4. Client shall be responsible for all data entry necessary to query the ABMS Database through the Authorized Platform and DCS and shall ensure that such queries are entered in accordance with the proper data elements.
   5. Client shall not change the Authorized Platform as it relates to DCS as long as the products and services offered through the Authorized Platform remain products and services offered by Client.
5. Support Services. Solutions is responsible for managing Client’s DCS account with Solutions, including, but not limited to, its login credentials and query volumes; maintaining and supporting DCS and the ABMS Database; collaborating with Client to identify and resolve errors that are related to accessing DCS or the ABMS Database, including user connectivity and querying; and responding to issues raised by Client that relate to the results of Queries.
6. Maintenance Services. Solutions shall employ commercially reasonable efforts to provide Client with uninterrupted and unrestricted access to the ABMS Database through the Authorized Platform and DCS. In terms of scheduled maintenance or updates, Solutions will conduct such maintenance or updates outside of business hours with prior notice to Client when feasible. Client acknowledges and agrees that unexpected downtime, outages, or user errors may occur for reasons beyond Solutions’ control and that emergency maintenance may be required at times. Solutions shall ensure that downtime, outages, or user errors are corrected as soon as commercially practicable. Neither ABMS nor Solutions shall be liable for any direct or indirect Liabilities caused by any foreseeable or unforeseeable downtime, outages, or user errors, including, but not limited to, acts or omissions committed by Client or the Authorized Platform provider, connectivity problems with the Authorized Platform that prevent Client or Beneficiaries from accessing the ABMS Database, or the malfunctioning of or system errors in the Authorized Platform. This Section describes all maintenance services provided by Solutions, and no other maintenance services are operationally available.
7. Restrictions on Use.
   1. Client shall use ABMS Data and DCS exclusively and solely for Permitted Purposes and not for any other purpose.
   2. Except as otherwise permitted by this Agreement, Client affirms that it shall not and that it shall not direct Beneficiaries to (i) knowingly upload harmful code, viruses, or worms to DCS; (ii) commit any malicious act that could disable, impair, overburden, or otherwise interfere with the proper functioning of DCS; (iii) engage in “framing,” “inlining,” “linking,” or “mirroring,” or otherwise simulate the appearance or function of DCS within another website; (iv) commingle ABMS Data with data obtained from non-ABMS databases, unless such commingling is consistent with Permitted Purposes; (v) access the ABMS Database in any manner not expressly granted by this Agreement; (vi) allow any individual who is not authorized under this Agreement to access the ABMS Database, including use by a CVO on behalf of the CVO’s clients; (vii) export ABMS Data from the ABMS Database as batch data; (viii) copy, display, exploit, sublicense, or swap ABMS Data or DCS to or for the benefit of itself or any third party; (ix) aggregate or compile ABMS Data or otherwise use ABMS Data to create a separate and distinct database; (x) bypass any access controls, override any security feature, or use automated methods to access DCS or any other Solutions product or service; (xi) decipher, decompile, disassemble, reverse engineer, or otherwise attempt to derive the source code for DCS; and (xii) otherwise access or use DCS for any impermissible purpose.
   3. Client acknowledges and agrees that Solutions has no responsibility for managing or monitoring the conduct of Authorized Users or Beneficiaries nor assumes any liability flowing from such conduct.
   4. If Client desires to display ABMS Data or any affirmation or attestation related to ABMS board certification, Solutions must approve such display or such affirmation or attestation in writing in advance. Such approval shall not be unreasonably conditioned, delayed, or withheld.
   5. Without waiving any of its rights established by this Agreement, Solutions may suspend the products and services described in this Agreement if Solutions has reasonable cause to believe that Client or a Beneficiary has engaged in conduct that violates this Section, provided that Solutions notifies Client by electronic mail of such suspension at least five business days prior to implementing such suspension. If Solutions continues to believe that Client or a Beneficiary is engaging in conduct that violates this Section following the five-day notice period, Solutions has the right to suspend the products and services described in this Agreement immediately without any credit or refund of the Total Fee to Client and seek all relief as may be available to it by Applicable Law.
   6. Notwithstanding any other provision in this Agreement, Solutions reserves the right to terminate this Agreement immediately with simultaneous written notice to Client if Client or a Beneficiary engages in conduct that violates this Section without any credit or refund of the Total Fee to Client. Solutions may then seek all relief as may be available to it by Applicable Law.
   7. Within 90 days of the expiration or termination of this Agreement, Client—on behalf of itself and all Beneficiaries—shall notify Solutions by electronic mail that Client and all Beneficiaries have deleted and destroyed all ABMS Data within their possession or control to the best of Client’s knowledge—including any archival copies on their systems—except to the extent the retention of ABMS Data is necessary for audit, compliance, or legal purposes.
8. Confidentiality. The Disclosing Party and the Receiving Party may exchange Confidential Information pursuant to this Agreement. The Receiving Party shall limit the disclosure of Confidential Information to the Receiving Party’s representatives who require such Confidential Information in relation to their work, in connection with the performance or purpose of this Agreement, or for audit or legal purposes; and shall require its representatives who are authorized to receive Confidential Information not to disclose Confidential Information to any individual who is not authorized to receive Confidential Information pursuant to this Section. Neither party shall share Confidential Information with any third party or use Confidential Information to benefit any third party without the prior written consent of the Disclosing Party. Confidential Information is provided “AS IS” and “AS AVAILABLE.” Neither party shall be liable in any manner to the other party for any errors, flaws, inaccuracies, or omissions in Confidential Information. No license or any other rights, whether express or implied, in Confidential Information are granted to either party. If a Receiving Party is required by legal process to disclose a Disclosing Party’s Confidential Information, the Receiving Party shall notify the Disclosing Party in writing of such legal process as promptly as possible to provide the Disclosing Party with the opportunity to challenge such legal process or employ any means available to prevent the disclosure of Confidential Information, and shall reasonably cooperate with the Disclosing Party to prevent the disclosure of Confidential Information at no cost or expense to the Receiving Party. A Receiving Party shall delete and destroy all Confidential Information received from a Disclosing Party within 90 days of the expiration or termination of this Agreement, including any archival copies on the Receiving Party’s systems.
9. Intellectual Property. Client acknowledges and agrees that ABMS owns all intellectual property and proprietary rights in the ABMS Database and DCS. No provision in this Agreement grants to Client any right, title, or interest in or to the ABMS Database or DCS. Client further acknowledges and agrees that ABMS owns all intellectual property and proprietary rights in any ABMS Data embedded in any Client work product and that Client shall include legally sufficient attributions and copyright notices identifying ABMS as the source of ABMS Data in any such work product. The parties shall agree in writing on such legally sufficient attributions and copyright notices before any Client work product is created using ABMS Data. Client shall employ all commercially reasonable measures to safeguard ABMS Data and DCS from infringement, misappropriation, misuse, theft, or unauthorized access.
10. Data Incidents. Without limiting any of Client’s obligations in this Agreement, in the event Client knows or reasonably believes that an unauthorized actor has accessed, disclosed, or used the Authorized Platform, DCS, or the ABMS Database, the parties shall proceed as follows: (a) Client shall exercise commercially reasonable efforts immediately to terminate the unauthorized actor’s actions, preserve all forensic evidence related to the actual or potential data incident, and begin an investigation into the actual or potential data incident; (b) Client shall notify Solutions of the actual or potential data incident as soon as reasonably practicable and no later than within 48 hours of learning of the actual or potential data incident; (c) after initially notifying Solutions, on a daily basis, Client shall provide Solutions with an update by electronic mail that is as detailed as possible regarding the investigation, includes a description of any accessed or affected ABMS Data, contains a description of the facts regarding the actual or potential data incident, and responds to any reasonable questions posed by Solutions; (d) at the conclusion of the investigation, upon request, Client shall submit to Solutions by electronic email a full and complete report regarding the findings and conclusions of the investigation; (e) based on the investigation, if warranted, Client shall implement commercially reasonable measures to remedy the circumstances that caused the data incident and to prohibit possible future data incidents; and (f) each party will reasonably cooperate with the other party in facilitating the investigation, responding to any Claims, and complying with Applicable Law.
11. Termination. Without prejudice to either party’s rights to recover relief under Applicable Law, this Agreement may be terminated as follows:
    1. By Client, at any time, following 60 days’ prior written notice to Solutions, without any credit or refund of the Total Fee;
    2. By either party, following 30 days’ prior written notice to the other party of a material breach of this Agreement with an explanation of the nature of the breach, provided that the other party does not cure the material breach within the 30-day notice period;
    3. By Solutions, immediately, with simultaneous written notice to Client, if permissible under Section 7 (Restrictions on Use) of these Terms and Conditions;
    4. By either party, following 10 days’ prior written notice to the other party, if permissible under Section 16 (Force Majeure) of these Terms and Conditions;
    5. By either party, immediately, with simultaneous written notice to the other party, if permissible under Section 17 (Assignment) of these Terms and Conditions;
    6. By either party, immediately, with simultaneous written notice to the other party, if permissible under Section 18 (Publicity) of these Terms and Conditions;
    7. By either party, immediately, with simultaneous written notice to the other party, in the event the other party (i) becomes insolvent, (ii) files for bankruptcy or makes an assignment for the benefit of creditors, or (iii) is subject to bankruptcy or similar insolvency proceedings that are not dismissed within a period of 60 days;
    8. By Solutions, following 90 days’ prior written notice to Client, if the commercial production of DCS or the ABMS Database is discontinued for any reason;
    9. By either party, in accordance with the termination procedure established by Applicable Law, for any reason permitted or required by Applicable Law; or
    10. By either party, in accordance with the applicable termination procedure, for any reason otherwise permitted by this Agreement.
12. Scope and Disclaimer of Representations and Warranties. Each party represents and warrants to the other party as follows: (a) it has the full authority and power to enter into the Agreement and perform its obligations established by the Agreement; (b) its performance of its obligations established by the Agreement will not breach any separate agreement or obligation by which it is already bound; (c) it is and shall remain in compliance with Applicable Law in connection with its performance of its obligations established by the Agreement; and (d) its performance of its obligations established by the Agreement will materially conform to the description of those obligations in the Agreement. Solutions further represents and warrants (a) that its obligations established by the Agreement do not involve the creation, maintenance, receipt, or transmission of “protected health information” as defined by the Health Insurance Portability and Accountability Act (HIPAA); and (b) that it is not a “business associate” as defined by HIPAA and the regulations promulgated under such statute. EXCEPT AS PROVIDED IN THE PRECEDING SENTENCES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, SOLUTIONS EXPRESSLY DISCLAIMS ALL REPRESENTATIONS AND WARRANTIES, WHETHER EXPRESS OR IMPLIED AND WHETHER STATUTORY OR ARISING OUT OF THE COMMON LAW, INCLUDING, BUT NOT LIMITED TO, THE WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, ANY WARRANTY OF NON-INFRINGEMENT OR TITLE, ANY WARRANTY THAT SOLUTIONS’ PRODUCTS AND SERVICES WILL NOT RESULT IN A LOSS OF DATA OR PROFITS, AND ANY WARRANTY THAT DCS WILL OPERATE AND THAT ABMS DATA IS ERROR-FREE AND MAY BE ACCESSED OR RETRIEVED WITHOUT INTERRUPTION.
13. Indemnification. To the fullest extent permitted by Applicable Law, one party (Indemnitor) shall defend, hold harmless, and indemnify the other party; the other party’s past, present, and future parent corporation; the other party’s past, present, and future affiliates and subsidiaries; and all past, present, and future members, managers, directors, officers, volunteers, employees, agents, respective successors, and permitted assigns of the other party, the other party’s parent corporation, and the other party’s affiliates and subsidiaries (collectively referred to as the “Indemnitee”) from and against all Liabilities incurred as a result of all Claims by a third party arising out of or related to any negligent act or omission by the Indemnitor in the exercise of its rights or performance of its obligations established by this Agreement or any breach by the Indemnitor of this Agreement. Upon receipt of a Claim covered by this Section, the Indemnitee shall notify the Indemnitor in writing as soon as practicable and no later than within 10 business days of receipt of the Claim. The Indemnitee’s failure to provide timely notice of the Claim shall not relieve the Indemnitor of its indemnity obligation. The Indemnitor shall have sole control of the selection of counsel and the overall defense or settlement of the Claim at its own cost and expense, subject to the consent requirement below. The Indemnitee shall provide reasonable assistance in such defense or settlement. Prior to entering into any settlement of the Claim, the Indemnitor shall obtain the prior written consent of the Indemnitee, and such consent shall not be unreasonably conditioned, delayed, or withheld.
14. Limitation of Liability. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, CLIENT DISCHARGES, RELEASES, AND WAIVES ALL CLAIMS AGAINST PAST, PRESENT, AND FUTURE ABMS MEMBER BOARDS AND SOLUTIONS’ INDEMNITEES ARISING OUT OF OR RELATED TO ANY INCOMPLETE OR INCORRECT DATA FROM THE ABMS DATABASE OBTAINED BY CLIENT THROUGH THE AUTHORIZED PLATFORM AND DCS. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, WITH RESPECT TO ALL OTHER CLAIMS, REGARDLESS OF WHETHER THE CLAIM IS STATUTORY OR ARISES OUT OF THE COMMON LAW OR WHETHER A PARTY WAS ADVISED OF THE POSSIBILITY OF DAMAGES, NEITHER PARTY’S LIABILITY TO THE OTHER PARTY SHALL INCLUDE ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, PUNITIVE, OR SPECIAL DAMAGES OF ANY KIND; ANY DAMAGES FOR LOSS OF BUSINESS ADVANTAGE, BUSINESS OPPORTUNITY, GOODWILL, PROFITS, OR USE; ANY DAMAGES FOR BUSINESS INTERRUPTION OR COMPUTER FAILURE OR MALFUNCTION; ANY DAMAGES FOR LOSS OF CONTENT OR DATA; AND THE COST TO COVER. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, NEITHER PARTY’S LIABILITY TO THE OTHER PARTY SHALL EXCEED THE TOTAL FEE FOR THE TERM IN WHICH THE CLAIM AROSE.
15. Insurance. During the Term and for a reasonable period following the expiration or termination of the Agreement, each party shall purchase and maintain insurance coverage at its own cost and expense that sufficiently covers in accordance with commercially reasonable standards any and all Liabilities which may arise out of or relate to its obligations established by the Agreement.
16. Force Majeure. Neither party shall be considered in violation of the Agreement or otherwise liable for any default, delay, or failure to perform its obligations established by the Agreement if the default, delay, or failure is the result of a Force Majeure Event. If a Force Majeure Event partially or fully impacts a party’s performance, the party shall provide the other party with prompt written notice of such impact. If the Force Majeure Event continues unabated for over 30 days, either party may terminate the Agreement without liability.
17. Assignment. This Agreement may not be merged, sold, transferred, or otherwise assigned by either party without the prior written consent of the other party, except that this Agreement may be assigned to a party’s wholly-owned affiliate or subsidiary without the other party’s prior written consent. If a party assigns the Agreement when consent is not required, the party shall notify the other party in writing within five days of the assignment. This Agreement shall be binding upon and inure to the benefit of the parties and their permitted assigns and respective agents, heirs, representatives, and successors. Any purported assignment in violation of this Section shall be canceled, and the non-assigning party may terminate this Agreement immediately upon such purported assignment.
18. Publicity. Neither party shall use the intellectual property of the other party or ABMS Member Boards; the trademarks or trade names of the other party, the other party’s parent corporation, the other party’s affiliates or subsidiaries, or ABMS Member Boards; or the names of any lndemnitee in any advertising, press releases, promotional materials, publicity, or other media—whether audio, electronic, print, or verbal—without the other party’s prior written consent. The parties acknowledge and agree that this Section contains essential terms and conditions of this Agreement and that any breach of these essential terms and conditions shall entitle the non-breaching party to terminate this Agreement immediately without liability.
19. Third-Party Beneficiary. ABMS is a third-party beneficiary of the Agreement. ABMS is entitled to the rights and benefits in the Agreement and may enforce the provisions of the Agreement as if it were a party to the Agreement.
20. No Agency. Client acknowledges and agrees that Solutions does not function as an agent for or on behalf of ABMS Member Boards, and ABMS Member Boards shall have no direct or indirect liability under this Agreement jointly or severally.
21. Notices. Any notices regarding this Agreement shall be sent by electronic mail, provided no bounce message is received or any other message indicating a problem with delivery, to the signatories of this Agreement. If a party desires to change its recipient of notices, the party shall notify the other party of its designated recipient by electronic mail.
22. Independent Contractors. The parties to this Agreement are independent contractors and have no express or implied authority to obligate each other in any manner. The relationship created by this Agreement shall not be construed as an agency, employment, joint venture, partnership, or any relationship other than a relationship between independent contractors.
23. Applicable Law. The parties shall comply with Applicable Law in the exercise of their rights and performance of their obligations granted or required pursuant to this Agreement.
24. Waiver. Waiver by either party of the partial or full breach of any provision of the Agreement shall not be construed or operate as a waiver of any subsequent breach. The failure to enforce one or more provisions of the Agreement shall not constitute a partial or full waiver of such provisions or either party’s right to enforce such provisions of the Agreement.
25. Severability. If a court of competent jurisdiction holds that any provision of this Agreement is illegal, invalid, or unenforceable, such provision shall be considered excised from this Agreement, and all other provisions of this Agreement shall remain in full force and effect.
26. Entire Agreement. This Agreement and all Addenda constitute the entire agreement between the parties regarding this subject matter and supersede all other agreements either verbal or written with respect to such subject matter. All prior negotiations and understandings between the parties are merged into this Agreement. Any new or amended terms or conditions to this Agreement shall be documented in a separate written instrument executed by both parties.
27. Survival. Any provision in this Agreement that would reasonably be expected to survive the expiration or termination of this Agreement shall survive the expiration or termination of this Agreement.