This Agreement (“Agreement”) between Carminati Consulting, Inc. (“Carminati Consulting” or “we”) and Customer. (“Customer”) (each a “Party” and collectively “Parties”) is effective as of date listed on Scope of Work (“Effective Date”) and sets forth the understanding between Carminati Consulting, Inc. and Customer for the use of Immuware™ Software as a Service (“SaaS”) Software Platform (“Immuware” or “Software”), services and materials. The Parties are entering into a Statement of Work (“Statement of Work”) (attached as Attachment A to this Agreement and incorporated herein) which outlines the scope of the work to be performed by Carminati Consulting (“Services”) to set up and enable the use of Immuware by Customer. Carminati Consulting, which owns the Software, agrees to license the Software to Customer pursuant to the terms and conditions in this Agreement.

You may not access Immuware if you are a direct competitor of Immuware, except with Carminati Consulting’s prior written consent. 

1. License

  • Subject to the terms and conditions of this Agreement, and during the Term (as defined in the STATEMENT OF WORK), Carminati Consulting will provide Customer with a non-exclusive, non-transferable and revocable license to access and use the Software. Customer may use the Software only for purposes of performing Customer’s internal operations or Customer’s clients’ business operations outsourced to Customer (“Licensed Uses”). In no event will Customer have the right to sub-license the Software to any third party or use the Software for any other purpose beyond the Licensed Uses.
  • Carminati Consulting restricts the Customer’s duplication and use of the Software; it prohibits the Customer from licensing, sublicensing or transferring the Software to a third party (except to a related party) without the permission and continued control of Carminati Consulting. Customer may not use the Software as part of a commercial time-sharing or service-bureau operation or in any other resale capacity.
  • Customer shall be responsible for any and all screening, filtering or other means to comply with applicable Federal, State or local laws and regulations regarding content passing to and from the internet and the Customer.
  • Except for the license rights granted under this Agreement, no other rights to Carminati Consulting or the Software are granted to Customer hereunder, and the Software is and will remain the sole and exclusive property of Carminati Consulting and its licensors, if any, whether the Software is separate or integrated with any other products, services or deliverables.
  • Access is limited to the version of the Software in its production environment. Carminati Consulting may from time to time, at its sole discretion, update the Software and reserves the right to add and/or substitute functionally equivalent features in the event of product unavailability, end-of-life, or changes to software requirements.
  • Carminati Consulting will provide Customer online access to and use of the Software via the Internet by use of an Internet browser. The Software will be hosted on a server that is maintained by Carminati Consulting or its designated third-party supplier or domestic data center. Customer is solely responsible for obtaining and maintaining at its own expense, all equipment needed to access the Software, including but not limited to Internet access and adequate bandwidth.

1.7.2 “Software” means the Immuware software platform developed and licensed by Carminati Consulting and any related updates provided to the Customer. 

1.7.3 “Services” shall mean the work done by Carminati Consulting personnel in support of the Software, including but not limited to installation services, training, consulting, support, telephone support, and such other services as may be defined in an accepted Statement of Work.

2. Ownership 

Carminati Consulting retains all rights in and to the Software, including rights of ownership, trademarks, copyright, and any other associated intellectual property. All existing intellectual property rights in the Software and the associated goodwill inures to the sole benefit of Carminati Consulting.  

3. Compensation

The Parties agree to the cost, compensation, and fee schedule in the Statement of Work. Carminati Consulting will notify Customer in advance of any proposed changes in pricing and fees in future Statements of Work.

4. Term

This Agreement begins on the Effective Date and continues as stated on the Statement of Work unless terminated earlier in accordance with this Agreement. If the Term spans several years and the Statement of Work specifies Annual Fees, then fees are due in each year (“Contract Year”) or as otherwise specified.

5. Termination

5.1 If Customer is dissatisfied because of substantial non-performance of the Software and/or Services, Customer shall give Carminati Consulting detailed written notice of such dissatisfaction. Carminati Consulting shall have thirty (30) days to cure the substantial non-performance after receipt of such notice. If Carminati Consulting fails to cure such substantial non-performance within such thirty (30) day period, Customer may terminate this Agreement and the applicable Statement of Work and Carminati Consulting will refund the total annual License fees paid in the year of termination prorated based on the number of months remaining in the year of termination starting as of the end of the thirty (30) day cure period.  

5.2 Either Party may terminate the Agreement if: 

  1. a) the other Party breaches any material term or condition and fails to cure within thirty (30) days of written notice, or 
  2. b) the other party becomes the subject of a petition in bankruptcy or any proceeding relating to insolvency, liquidation or receivership.

5.3 In the event of non-payment by the Customer, Carminati Consulting may, with notice, accelerate and declare all sums due, and to become due under the Statement of Work, immediately payable without further notice or demand. If Customer fails to pay fees when due, then Customer shall also be liable for all fees due during the term of the Statement of Work Agreement. 

5.4 In the event of non-payment by the Customer, Carminati Consulting reserves the right to restrict access to the Services. Customer agrees that such restrictions do not modify the past due amounts due under their Statement of Work. 

5.5 Carminati Consulting reserves the right to suspend support services hereunder (without terminating this Agreement) in the following circumstances if as reasonably determined by Carminati Consulting: (a) Customer’s requests for support are overly excessive or duplicative of prior requests for issues that have already been addressed by Carminati Consulting; (b) Customer’s requests relate to the general use of the Services that are addressed via Carminati Consulting’s training and resources or which a person, using reasonable efforts, can perform after completing the Software training; or (c) Customer is abusive or offensive toward Carminati Consulting’s personnel. If Carminati Consulting suspends the support services hereunder due to any of the foregoing reasons the Parties shall cooperate in good faith to agree upon a way to restore the support services as soon as possible.  

5.6 Upon termination, cancellation or expiration of this Agreement by either Party, Customer shall, without request by Carminati Consulting, immediately return all papers, materials and property of Carminati Consulting held by Customer. In addition, each Party will assist the other in the orderly termination of this Agreement and in the transfer of all property, tangible and intangible, as may be necessary for the orderly, non-disrupted business continuation of each Party.

6. Responsibilities of Parties

6.1 Customer is responsible for any use of the Software, including without limitation for any data, materials and content (including the adequacy and accuracy thereof) uploaded to or transmitted using the Software by its employees or agents. 

6.2 Customer represents and warrants that all data, materials and content (“Customer Data”) it provides for use with the Software is owned by Customer or Customer otherwise has the right to provide such Customer Data to Carminati Consulting for use with the Software. Customer also represents and warrants that any use or transmission of Customer Data does not and shall not violate or infringe the intellectual property, privacy or publicity rights of any third party. 

6.3 The Software provides optional configurable integrations with various external third-party software applications. Carminati Consulting is not responsible for any misconfiguration, data corruption or data loss in any external application resulting from the use of such integrations.

6.4 Customer will be responsible for providing an accurate data file to adhere to the template provided by Carminati Consulting.  Carminati Consulting will be responsible for training Customer on the data import procedures. 

6.5 Carminati Consulting will assign Customer user IDs and passwords that will enable Customer’s users to access the Software. Customer shall take all reasonable precautions to protect against theft, loss or fraudulent use of such Customer’s IDs and passwords, and are solely responsible for any losses arising from a third party’s use of such IDs and passwords, either with or without Customer knowledge. Each user ID is unique to the assigned individual and may not be shared with others, including other personnel of Customer. Customer agrees that Customer will use the Software only for lawful purposes and in accordance with this Agreement. Customer will not reverse engineer, disassemble or decompile the Software or cause or permit the reverse engineering, disassembly or decompilation of the Software.

6.6 Customer represents and warrants that it is not and will not provide the Software to any entity incorporated in or resident in a country subject to economic or trade sanctions by the U.S. State Department and/or OFAC or are listed as a “Specially Designated National,” a “Specially Designated Global Terrorist,” a “Blocked Person,” or similar designation under the OFAC sanctions regime. Any breach of this Section 6.6 shall be deemed a material breach of this Agreement and Carminati Consulting may immediately terminate this Agreement.

7. Confidentiality

7.1 Each Party receiving Confidential Information hereunder (“Recipient”) agrees that: 

  1. a) it will treat all Confidential Information of the other Party with the same degree of care as such Recipient accords to its own Confidential Information, but in no case less than reasonable care; and 
  2. b) it will not use, disseminate, or disclose to third parties any Confidential Information of the disclosing Party (“Discloser”), except for the purpose of providing the Software Services and for any other purpose Discloser may authorize. 

7.2 For purposes of this Agreement, “Confidential Information” means any information, regardless of form, proprietary to or maintained in confidence by either Party, including, without limitation, Customer Data, personally identifiable information (“PII”), technical data or know-how relating to discoveries, ideas, inventions, software, designs, specifications, processes, systems, diagrams, research, development, business plans, strategies or opportunities, and information related to finances, costs, prices, suppliers, vendors, customers and employees which is disclosed by either party or on its behalf whether directly or indirectly, orally, visually, or in writing, to the other party or any of its employees or agents. 

7.3 The terms and conditions of this Agreement and any order for Carminati Consulting software or services shall be deemed the Confidential Information of both Carminati Consulting and Customer.

7.4 Recipient will have no obligation with respect to any portion of the Confidential Information which: 

  1. a) is now, or hereafter becomes, through no act or failure to act on the part of Recipient, generally known or available to the public; 
  2. b) was acquired by Recipient before receiving such information from Discloser and without restriction as to use or disclosure;
  3. c) is hereafter rightfully furnished to Recipient by a third party, without restriction as to use or disclosure; 
  4. d) is information that was independently developed by Recipient without reference to Confidential Information received hereunder; or 
  5. e) is disclosed with the prior written consent of Discloser. 

7.5 Recipient may disclose Confidential Information pursuant to the requirements of a governmental agency or operation of law, provided that it gives Discloser reasonable advance notice sufficient to contest such requirement of disclosure, unless Recipient is prevented from providing such notice by the government agency or operation of law.

8. Ownership and Use of Data

8.1 During the Term of the Agreement, Customer grants to Carminati Consulting a limited, non-exclusive right to use the Customer Data and to disclose Customer Data to third party service providers including but not limited to, integrated public health and specialized registries solely for Carminati Consulting to operate the Software as expressly designated in any Statement of Work.   

8.2 Customer retains any and all rights it may possess to Customer Data provided by Customer to Carminati Consulting or collected from others by Carminati Consulting on behalf of Customer. Such Customer Data will only be used by Carminati Consulting as reasonably required for providing the Software as contemplated hereunder and in accordance with the Carminati Consulting Cyber Security Policy, and all applicable data privacy laws and regulations (collectively, “Data Privacy Policy and Rules”). Both parties agree to comply with the Data Privacy Policy and Rules. 

8.3 Subject to the terms of this Section, Customer acknowledges and agrees that Carminati Consulting may use all data inputted into or collected by the Software, including but not limited to data related to Software utilization and Customer Data, on a historical, aggregated, de-identified and anonymous basis (collectively, “Aggregate Data”) in compliance with all applicable laws and Carminati Consulting’s Privacy Policy to provide the Software to Customer. Aggregate Data shall not identify Customer as the source of any specific data, pattern or finding, nor shall it include any Sensitive Personal Information entered or stored in the Software or its databases. Carminati Consulting shall maintain appropriate security measures for all Aggregate Data in accordance with the terms and conditions of this Agreement. 

8.4 Carminati Consulting will not disclose or share PII collected in the Software (including any PII included in Customer Data) with any third party (except as required by law, pursuant to a governmental request, in which case Carminati Consulting will provide written notice to Customer prior such disclosure or sharing or for the purposes of providing Customer the Software Services). 

8.5 Immuware is hosted on Microsoft Azure and uses Geo Redundant Storage for the database backups, meaning multiple replicas are kept in a primary region and multiple replicas are kept in a secondary region, hundreds of miles away. The database is backed up every 5-10 minutes and backups are retained for 35 days. Point in Time restores are available for up to 35 days, additional costs may apply for Point in Time restore (database recovery). Additional long term backups can be configured on a schedule if requested by the customer for an additional charge.

8.6 Upon termination of contract, Carminati Consulting will, provided Customer is not in breach of any of its obligations under the Agreement and upon Customer’s payment of the applicable fees, provide access to customers’ data as defined in the Attachment A. The exported data file(s) will be available for (thirty) 30 days, after the (thirty) 30 days, Immuware will permanently destroy customer’s data. To request a different retention period, the Customer can provide written notification (thirty) 30 days prior to termination, additional costs may apply. After such thirty (30)-day period, Carminati Consulting shall have no obligation to maintain or provide any Customer Data and shall thereafter, unless legally prohibited, delete all Customer Data maintained in its production systems.

9. Warranties; Indemnification

9.1 Carminati Consulting represents and warrants that: (i) the Services shall be performed in a competent, professional, workman-like manner, in accordance with current industry standards; (ii) Carminati Consulting’s employees or contractors who provide Services shall be qualified to perform the tasks and functions which they are assigned; (iii) the Software shall perform in all material respects in accordance with the applicable specifications, user guides and documentation provided to Customer by Carminati Consulting and the media on which the Software resides will be free from defects in materials and workmanship under normal use. In the event of a breach of any of these warranties, in addition to any other remedies that may exist in law or in equity, Customer may require re-performance of the applicable Services at Carminati Consulting’s expense.


9.3 Both parties will indemnify, defend, and hold each other, its officers, directors, employees, agents, and contractors, harmless from and against any and all liabilities, damages, costs, and expenses (including reasonable attorneys’ fees) (“Losses”) incurred by any of such parties in connection with any third-party action, claim, or proceeding (each, a “Claim”) arising from: (i) breach of the indemnifying party’s (or its employees, agents, or contractors) representations and warranties hereunder; (ii) gross negligence or willful misconduct of either party, its employees, agents or contractors; or (iii) infringement, misappropriation or violation of any third party intellectual property rights caused by the Software and/or the Services and/or either party’s use thereof.

9.4 In the event that Carminati Consulting reasonably determines that the Software is likely to be the subject of a Claim of infringement, violation, or misappropriation of third-party rights, Carminati Consulting will have the right, at its own expense, to: (a) procure for Customer the right to continue to use the Software as provided in this Agreement; (b) replace the infringing components of the Software with other components with equivalent functionality; or (c) suitably modify the Software so that it is non-infringing and functionally equivalent. If none of the foregoing options are available to Carminati Consulting on commercially reasonable terms, Carminati Consulting may terminate this Agreement and provide a pro-rata refund to Customer of the unused portion of the fees prepaid by Customer.

10. Limitation of Liability

10.1 SOFTWARE – Carminati Consulting warrants that, during the Term, the Software will perform in all material respects in accordance with the accompanying user guides, and the media on which the Software Product resides will be free from defects in materials and workmanship under normal use. 

10.2 Each party’s liability to the other party, its affiliates, registered agents, assignees, registrants or any third party claims, for claims seeking indemnity, or for any recoverable losses, damages, or litigation and reasonable attorneys’ fees or costs arising under this agreement shall be limited to the amount of actual direct damages, not to exceed (in the aggregate for all claims) the total annual amount paid under the statement of work agreement during its then-current contract year at the time of the incident giving rise to liability. If no fee is paid to Carminati Consulting, carminati consulting does not retain any liability.

10.3 In no event will Carminati Consulting or the software or any person or entity involved in the creation, manufacture or distribution of any software, services or other materials provided under this agreement be liable or indemnify the Customer for any claims, damages or compensations suffered by the Customer for: 

  1. a) any damages caused by Customer’s failure or that of Customer’s clients, invitees, employees, agents, affiliates or suppliers to perform their responsibilities under this agreement; 
  2. b) any claims or demands of third parties; 
  3. c) any lost profits, loss of business, business interruption, cost of cover, lost savings or other consequential, special, incidental, indirect, exemplary or punitive damages; 
  4. d) losses or damages of any and every nature, resulting from the inability to access the Software or Services, or inability to transmit or receive information

whether or not caused by the fault or negligence of Carminati Consulting or whether alleged as a breach of contract or tortious conduct, including negligence, even if the Customer has been advised of the possibility of such damages. 

10.4 Carminati Consulting shall not be bound by any representations or statements on the part of its employees or agents whether oral or in writing including those made in catalogs and other promotional material.

10.5 These limitations of liability will survive and apply notwithstanding insurance coverage or the failure of any limited or exclusive remedy for breach of warranty set forth in this Agreement.

11. Sensitive Personal Information

11.1 Notwithstanding any provision to the contrary in this Agreement, Customer acknowledges and agrees that use of the Software may result in transmission, entry, processing or storage of Sensitive Personal Information (as defined below) and therefore Customer shall be responsible for any such use of the Software by its employees, agents or subcontractors.

11.2 “Sensitive Personal Information” shall be defined as: 

  1. a) social security numbers; 
  2. b) passport numbers or other government issued id numbers, date of birth and/or gender, except solely to the extent required by applicable regulations of the Department of Homeland Security or other government regulatory body; 
  3. c) health or medical information, including, but not limited to, protected health information (“PHI”) as defined in the Health Insurance Portability and Accountability Act; and
  4. d) other information which a reasonable person would recognize as being highly sensitive, including but not limited to, financial account numbers, credit card numbers, and debit card numbers, with or without any required security code, access code, personal identification number or password, that would permit access to a financial account (but excluding, for avoidance of doubt, contact information such as name, mailing address, email address, and phone number). 

11.3 Safeguards to Protect Sensitive Personal Information. Carminati Consulting agrees not to use or disclose Sensitive Personal Information other than as permitted or required by this Agreement or as required by the applicable laws. 

11.4 Mitigation. Carminati Consulting agrees to mitigate, to the extent practicable, any damages or harmful effect that are known to Carminati Consulting due (whether directly or indirectly) to a use or disclosure of Sensitive Personal Information by Carminati Consulting in violation of the requirements of this Agreement.

11.5 Report Violation. Carminati Consulting agrees to report to Customer any use or disclosure of Sensitive Personal Information not permitted by this Agreement of which it becomes aware, including any such use or disclosure by any subcontractor of Carminati Consulting.

11.6 Apply Same Restrictions to Subcontractors. Carminati Consulting agrees to ensure that any subcontractor or third party service provider that creates, receives, maintains, or transmits Sensitive Personal Information, on behalf of Carminati Consulting, agrees to the same restrictions, conditions, and requirements that apply to Carminati Consulting with respect to such information.

11.7 Restrict Use or Disclosure of Sensitive Personal Information for Sale, Marketing or Fundraising. Carminati Consulting will not use or disclose Sensitive Personal Information for sale, marketing or fundraising.

11.8 Obligations of Customer Regarding Sensitive Personal Information. To the extent that it may substantially impact Carminati Consulting’s use or disclosure of Sensitive Personal Information, Customer agrees to inform Carminati Consulting in writing of: any limitation in its Notice of Privacy Practices or Policies, any changes to or revocation of authorization with respect to Sensitive Personal Information or any restriction to a use or disclosure agreed to by Customer with respect to Sensitive Personal Information.

12. Non-solicitation

Customer agrees that its organization and affiliates, will not attempt to hire, or assist in hiring anyone currently employed by Carminati Consulting, except insofar as such recruitment results from a general solicitation of employment not specifically directed towards employees or subcontractors Carminati Consulting. Customer further agrees that should such a situation occur; Carminati Consulting would be caused irreparable harm and be entitled to injunctive relief.

13. Proprietary Rights

13.1 Customer acknowledges that Carminati Consulting, the Software or its licensors retain all copyright, trademark, trade secret, patent and other proprietary and intellectual property rights to the Software, and any or all modifications to the Software, related documentation and marketing materials regardless of: 

  1. a) whether such intellectual property notices appear on the materials; or 
  2. b) whether such intellectual property notices have been filed with governmental agencies. 

13.2 Nothing in this Agreement will directly or indirectly be construed to assign or grant Customer any right of ownership, title or interest in the Software, or any intellectual property rights relating thereto. 

13.3 Customer agrees that it shall not disclose to anyone any proprietary or confidential or sensitive personal information which Customer may receive through the Software or Software Services which may have access to on the Software, and that Customer will not use any such information to compete against Carminati Consulting or the Software or reverse engineer our product offerings. No competitors or obvious future competitors are permitted access to the Software or Services, and any such access by third parties is unauthorized. 

13.4 Customer agrees that it will not copy, record, publish, compile, reproduce, republish, use or resell for any competing commercial purpose any information found in the Software or which Customer receives through our Services. 

13.5 To the best of Carminati Consulting’s knowledge, all material published by Carminati Consulting on its web pages and other media properties, are done in full agreement with the original copyright owners (be that Carminati Consulting or another party). If Customer comes across a situation where Customer suspects that this may not be the case, in accordance with the Digital Millennium Copyright Act (DMCA), we ask that Customer contact:

Carminati Consulting, Inc.
RE: Immuware
P.O Box 735182
Chicago, IL 60673-5182
(312) 884-9054

Customer understands and agrees that any third party data, content, materials or software (“Third Party Content”) which may be published on Immuware or any other Carminati Consulting Sites or otherwise made available by Carminati Consulting may be subject to third party licenses, that such licenses may be altered or revoked at any time by the applicable third party licensor, and that removal or alteration of Third Party Content shall not constitute a breach of this Agreement. In addition, to the extent Carminati Consulting provides access to integrated third party systems through the Services (“Third Party Add-On”) hereunder (as expressly designated in a Statement of Work) and such Third Party Add-On becomes unavailable to Customer due to termination or revocation by such third party prior to the expiration or termination of the Statement of Work, then Carminati Consulting may terminate Customer’s access to the Third Party Add-On upon notice and such termination shall not constitute a termination or a breach of this Agreement or any Statement of Work. Access to Third Party Content (including Third Party Add-Ons) may require Customer to execute a separate third party service agreement (“Third Party Service Agreement”), and Customer understands and agrees that Carminati Consulting shall not incur any liability or have any responsibility with respect to performance or any other aspect of a Third Party Service Agreement.

14. Assignment

Except for assignment to a Party’s affiliate (any entity which directly or indirectly controls, is controlled by, or is under common control with such party), or in the case of a merger, acquisition or sale of all or substantially all assets not involving a direct competitor of the other Party, neither Party may assign or otherwise transfer any right or obligation set forth in the Agreement without the other Party’s prior written consent, not to be unreasonably withheld or delayed. Notwithstanding the foregoing, Carminati Consulting may subcontract the provision of Services in whole or in part to a Carminati Consulting affiliate. This Agreement will be binding upon the Parties’ respective successors and permitted assigns.

15. Entire Agreement; Severability; Waiver

This Agreement, together with all attachments and Statements of Work, supersedes any prior agreement or understanding between the Parties whether oral or written in relation to its subject matter. This Agreement may only be modified by a written amendment signed by authorized representatives of each Party. Any additional or conflicting terms contained in any Customer purchase order, proposal, quote or other document shall be deemed to be rejected by Carminati Consulting without need of further notice of objection, even if such document is acknowledged or accepted by Carminati Consulting and regardless of any statement to the contrary which may be contained therein, and shall be of no effect or in any way binding upon Carminati Consulting. The provisions of this Agreement shall be deemed severable, and the unenforceability of any one or more provisions shall not affect the enforceability of any other provisions. Carminati Consulting’s failure to exercise or enforce any right, power or remedy under this Agreement shall not operate as a waiver thereof.

16. Force Majeure

Carminati Consulting will not be in default or otherwise liable for any delay in or failure of its performance under this Agreement if such delay or failure arises by any reason beyond its reasonable control, including any act of God, criminal acts, Distributed Denial of Service, or any acts of the common enemy, the elements, earthquakes, floods, fires, epidemics, riots, criminals, failures or delays in transportation or communications, or any act or failure to act by Customer, its employees, agents, or contractors. The Parties will promptly inform and consult with each other as to any of the above causes that, in their judgment, may or could be the cause of a substantial delay in the performance of this Agreement. Carminati Consulting is not liable for excusable delay.

17. No Third Party Beneficiaries

This Agreement is not intended to, and does not confer any rights, benefits or remedies upon any person other than the Parties.

18. Press Releases; Customer List

Customer agrees that Carminati Consulting may use Customer’s name and logo to identify Customer as one of the Software’s Customers on Carminati Consulting or Immuware websites for the purposes of advertising and promoting the Software, without limitation as a part of a general list of the Software’s customers, marketing, training or investment materials. Additionally, Customer agrees that Carminati Consulting may issue a press release identifying Customer as a Software Customer, subject to Customer’s prior approval which will not be unreasonably withheld or delayed.

19. Governing Law

This Agreement shall be governed by the laws of the State of Illinois, without regard to any conflicts of law principles.