SOZO Terms & Conditions
1. General Terms and Conditions.
- These Terms and Conditions, in conjunction with the attached Quotation (together, the “Agreement”) represent the final and complete agreement between ImpediMed, Inc. (“Company”) and the customer identified in the Quotation (“Customer”). This Agreement comprises the entire agreement between the parties, and supersedes all prior or contemporaneous understandings, agreements, negotiations, representations and warranties, and communications, both written and oral. No other terms or conditions in any way modifying or changing the provisions of this Agreement (including any preprinted terms on Customer’s purchase order, regardless whether or when Customer has submitted its purchase order or such terms) shall be binding upon the Company unless made in writing and signed by Company. Fulfillment of Customer’s order does not constitute acceptance of any of Company’s terms and conditions and does not serve to modify or amend this Agreement.
- Notwithstanding the foregoing, this Agreement is not binding on Company until Company receives and accepts a copy of the Quotation signed by Customer. Once Company receives and accepts a copy of the Quotation signed by Customer, the Quotation becomes an “Order” and this Agreement is binding and cannot be cancelled by Customer for any reason. The full purchase price amount set forth in the Order for any hardware and equipment shall be due and payable by Customer to Company upon shipment, and any other charges, including subscription and use fees or service charges shall become due and payable pursuant to the payment schedule set forth herein, unless otherwise agreed to in writing by Company.
Company shall deliver to Customer the products referenced in the Quotation (collectively, the “Products”), subject to availability of Products, which may consist of equipment, hardware, software, and peripherals.
3. Regulatory Restrictions.
Customer hereby represents and warrants that Customer will only use the Products for the indication included on the Product labeling and in accordance with the Product documentation. Customer understands that to the extent the Products have received authorization, accreditation, registration or licensing from any applicable governmental authority or organization (e.g., U.S. Food and Drug Administration, Centers for Medicare & Medicaid Services approved accreditation organization, or comparable non-U.S. body) that such Products have only been approved for the specific indication on the Product labeling and have not been tested for safety and efficacy in any other use. Customer shall not use the Products in any manner requiring any additional authorization. Customer shall defend, indemnify and hold Company harmless for any and all claims arising out of Customer’s use of the Products for any purpose other than as authorized herein.
- The Products will be delivered within a reasonable time after Company receives and accepts a copy of the Quotation signed by Customer, subject to availability of finished Products. Delivery or shipping dates, if any, set forth herein are approximate only. Company will endeavor to meet delivery schedules or shipping dates requested by Customer, but in no event shall Company incur any liability for any loss, damages, or expenses (consequential, special, or otherwise) incurred by Customer as a result of any delay in delivery for any reason.
- Unless otherwise agreed in writing by the parties in the Quotation, Company shall deliver the Products to the shipping address identified in the Quotation (“Ship To Point”) using Company’s standard methods for packaging and shipping such Products. Customer shall be responsible for all loading costs (including freight and insurance costs) and provide equipment and labor reasonably suited for receipt of the Products at the Ship To Point. Company shall not be liable for any delays, loss or damage in transit.
- If for any reason Customer fails to accept delivery of any of the Products on the date fixed pursuant to Company’s notice that the Products have been delivered at the Ship To Point, or if Company is unable to deliver the Products at the Ship To Point on such date because Customer has not provided appropriate instructions, documents, licenses or authorizations: (i) risk of loss to the Products shall pass to Customer; (ii) the Products shall be deemed to have been delivered; and (iii) Company, at its option, may store the Products until Customer picks them up, whereupon Customer shall be liable for all related costs and expenses (including, without limitation, storage and insurance).
- The quantity of any installment of Products as recorded by Company on dispatch from Company’s or its agent’s shipping facilities is conclusive evidence of the quantity received by Customer on delivery unless Customer can provide conclusive evidence proving the contrary.
- Company shall not be liable for any non-delivery of Products (even if caused by Company’s negligence) unless Customer gives written notice to Company of the non-delivery within three (3) days of the date when the Products would in the ordinary course of events have been received.
- Any liability of Company for non-delivery of the Products shall be limited to (in Company’s sole discretion) replacing the Products within a reasonable time or adjusting the invoice respecting such Products to reflect the actual quantity delivered.
6. Shipping Terms.
Unless indicated otherwise, Delivery shall be made EXW (Incoterms 2010), Company’s or its agent’s shipping facilities, and Customer shall be responsible for all freight and insurance costs. If no delivery terms are specified on the Quotation, the method of shipping will be in the sole discretion of Company. Unless directed in writing otherwise by Customer, full invoice value will be declared for all shipments.
7. Title and Risk of Loss.
Risk of Loss passes to Customer upon delivery to the Ship To Point. Title passes to Customer upon payment in full for the Products. As collateral security for the payment of the purchase price of the Products, Customer hereby grants to Company a lien on and security interest in and to all of the right, title and interest of Customer in, to and under the Products, wherever located, and whether now existing or hereafter arising or acquired from time to time, and in all accessions thereto and replacements or modifications thereof, as well as all proceeds (including insurance proceeds) of the foregoing. The security interest granted under this provision constitutes a purchase money security interest under the California Commercial Code.
8. Inspection and Rejection of Nonconforming Products.
- Unless expressly provided otherwise in this Agreement, Customer shall be deemed to have accepted a Product delivered by Company under this Agreement upon five (5) days after delivery of the Product to the Customer.
- If Customer notifies Company on any nonconforming Product within the time frame above, Company shall, in its sole discretion, (i) replace such nonconforming Products with conforming Products at no additional cost to Customer, subject to the availability of Products, or (ii) credit or refund the price for such Nonconforming Products pursuant to the terms set forth herein. If, however, Company determines that the Products are not nonconforming Products, or if Company reasonably determines that any nonconformities are due to Customer’s improper use thereof, Company will not replace such allegedly nonconforming Products, and will not credit or refund the Prices (defined below) for such Products. NO RETURNS FOR NONCONFORMING PRODUCTS ARE ALLOWED IF SUCH PRODUCTS ARE NOT RETURNED TO COMPANY WITHIN THIRTY (30) DAYS FROM THE ORIGINAL SHIPPING DATE.
- THE REMEDIES SET FORTH IN THIS SECTION SHALL BE CUSTOMER’S SOLE AND EXCLUSIVE REMEDY AND COMPANY’S ENTIRE LIABILITY WITH RESPECT TO THE PROVISION OF ANY NONCONFORMING OR ALLEGEDLY NONCONFORMING PRODUCTS. Except as expressly stated otherwise herein, all sales of Products to Customer are made on a one-way basis and Customer has no right to return Products purchased under this Agreement to Company.
- Customer shall purchase the Products from Company at the prices (the “Prices”) set forth in the Quotation. Unless specifically stated to the contrary in the Quotation, quoted Prices and discounts are firm for ninety (90) days from the date of the Quotation. Unless otherwise stated, prices are quoted EXW (Incoterms 2010), Company’s or its agent’s shipping facilities. Unless otherwise stated in the Quotation, if the Prices should be increased by Company before delivery of the Products to a carrier for shipment to Customer, then this Agreement shall be construed as if the increased prices were originally inserted herein, and Customer shall be billed by Company on the basis of such increased prices.
- All Prices are exclusive of all sales, use and excise taxes, and any other similar taxes, duties and charges of any kind imposed by any governmental authority on any amounts payable by Customer. Customer shall be responsible for all such charges, costs and taxes (present or future); provided, that, Customer shall not be responsible for any taxes imposed on, or with respect to, Company’s income, revenues, gross receipts, personnel or real or personal property or other assets.
10. Payment Terms.
- Unless otherwise provided in the Quotation, Company shall invoice Customer upon shipment of a Product to Customer, or periodically for any subscription or usage fees, as applicable. If Company has extended credit to Customer, then Customer shall pay all invoiced amounts due to Company within thirty (30) days from the date of Company’s invoice, otherwise payment is due immediately upon receipt of invoice. Payment may be made by cash with order, wire transfer of immediately available funds, or check in US dollars. Any payment terms other than set forth above will be identified in the Quotation.
- In Company’s sole discretion, Company may charge Customer interest on all late payments at the lesser of the rate of 1.5% per month or the highest rate allowed under applicable law. Customer shall reimburse Company for all costs incurred in collecting any late payments, including, without limitation, attorneys’ fees. In addition to all other remedies available under this Agreement or at law (which Company does not waive by the exercise of any rights hereunder), Company shall be entitled to (i) suspend the delivery of any Products or temporarily disable (onsite or remotely) the Products so that they are not operational, or (ii) enter upon Customer’s premises and remove the Products, if Customer fails to pay any amounts when due hereunder and such failure continues for ten (10) days following written notice thereof.
- Customer shall not withhold payment of any amounts due and payable by reason of any set-off of any claim or dispute with Company, whether relating to Company’s breach, bankruptcy or otherwise.
11. Confidential Information.
- “Confidential Information” means: (i) any information disclosed (directly or indirectly) by one party (in the context of disclosing information under this Agreement, the “Discloser”) to the other party (in the context of disclosing information under this Agreement, the “Recipient”) pursuant to this Agreement that is in written, graphic, machine readable or other tangible form (including, without limitation, research, product plans, products, services, equipment, customers, markets, software, inventions, processes, designs, drawings, formulations, specifications, product configuration information, marketing and finance documents, prototypes, samples, data sets, and equipment) and is marked “Confidential,” “Proprietary” or in some other manner to indicate its confidential nature; (ii) oral information disclosed (directly or indirectly) by Discloser to Recipient pursuant to this Agreement; provided that such information is designated as confidential at the time of its initial disclosure and reduced to a written summary by Discloser that is marked in a manner to indicate its confidential nature and delivered to Recipient within thirty (30) days after its initial disclosure; and (iii) information otherwise reasonably expected to be treated in a confidential manner under the circumstances of disclosure under this Agreement or by the nature of the information itself. Confidential Information may include information of a third-party that is in the possession of Discloser and is disclosed to Recipient under this Agreement. Confidential Information of Company shall include the Software. Confidential Information of each party shall include the terms of this Agreement.
- Recipient shall not use any Confidential Information of Discloser for any purpose outside of the scope of this Agreement. Recipient shall not disclose any Confidential Information of Discloser to third parties or to Recipient’s employees, except that Recipient may disclose Discloser’s Confidential Information to those employees of Recipient who are required to have such information in order to perform, provide or receive the Products and services under this Agreement. Recipient shall take reasonable measures to protect the secrecy of and avoid disclosure and unauthorized use of the Confidential Information of Discloser. Without limiting the foregoing, Recipient shall take at least those measures that it employs to protect its own confidential information of a similar nature. Recipient shall reproduce Discloser’s proprietary rights notices on any such authorized copies in the same manner in which such notices were set forth in or on the original. Recipient shall promptly notify Discloser of any unauthorized use or disclosure, or suspected unauthorized use or disclosure, of Discloser’s Confidential Information of which Recipient becomes aware.
- The foregoing restrictions pertaining to the Confidential Information shall not apply with respect to any Confidential Information that: (i) was or becomes publicly known through no fault of Recipient; (ii) was known by Recipient before receipt from Discloser, as evidenced by its written records; (iii) becomes known to Recipient without confidential or proprietary restriction from a source other than Discloser that does not owe a duty of confidentiality to Discloser with respect to such Confidential Information; or (iv) is independently developed by Recipient without the use of the Confidential Information. In addition, Recipient may use or disclose Confidential Information to the extent (x) expressly approved by Discloser in writing and (y) Recipient is legally compelled to disclose such Confidential Information, provided, however, prior to any such compelled disclosure Customer shall cooperate fully with Discloser in protecting against any such disclosure and/or obtaining a protective order narrowing the scope of such disclosure and/or use of the Confidential Information.
- Each party acknowledges and agrees that, due to the unique nature of Discloser’s Confidential Information, there can be no adequate remedy at law to compensate Discloser for the breach of this Section; and, therefore, that upon any such breach or threat thereof, Discloser shall be entitled to seek injunctive and other appropriate equitable relief (without the necessity of proving actual damages or of posting a bond), in addition to whatever remedies it may have at law, hereunder, or otherwise.
12. Intellectual Property; Software License.
- To the extent that any Products provided under this Agreement contains software, whether pre-installed, embedded, in read only memory, or found on any other media or other form (“Software”), such Software, as well as any Updates, and accompanying documentation are licensed to Customer, not sold and shall remain the sole and exclusive property of Company or third-party licensors of Company. Company grants Customer a non-exclusive license to use the Software solely as provided in and in connection with the use of the Products and in accordance with any applicable user documentation provided with such Products and subject to the provisions of this Agreement, solely during the License Term. Certain Company’s Products may include third-party hardware and third-party software such as computer operating systems. Licenses to such third-party software are subject to the terms and conditions of any applicable third-party software license agreements. Unless expressly stated otherwise, no license is granted by Company with respect to such third-party software products that may be provided with the Products (if any). Company makes no warranties regarding any third-party hardware or software that may accompany the Products or otherwise and such hardware and software is explicitly included in the definition of Third-Party Products below.
- Customer shall not copy, modify, or disassemble, or permit others to copy, modify, or disassemble, the Software, nor may Customer modify, adapt, translate, reverse assemble, decompile, or otherwise attempt to derive source code from the Software. Customer shall not transfer possession of the Software except as part of, or with, the Products, and each such transfer shall be subject to the restrictions contained herein. Customer may not sublicense, rent, loan, assign or otherwise transfer the Software or documentation, and Customer shall retain on all copies of the Software and documentation all copyright and other proprietary notices or legends appearing therein or thereon. Customer shall not use the Software with any peripheral equipment or devices, other than the Products.
- The Software may be subject to other usage limits, including, quantities of users or patients, as provided in the Quotation. Unless otherwise set forth herein, (i) the Software may not be accessed by more than that number of users or patients set forth in the Quotation, (ii) password may not be shared with any other individual, and (iii) identifications may be reassigned to a new employee replacing one who no longer is designated by Customer to use the Software.
- The license to the Software provided to Customer hereunder shall commence on the date of this Agreement and continue for a period of one (1) year, unless earlier terminated as provided herein, and shall automatically renew for successive one (1) year periods unless either party notifies the other of its intention not to renew prior to ninety (90) days before the end of the then-current term (the “License Term”). Customer shall immediately discontinue use of the Software upon any termination of this license or Agreement. This license shall terminate upon any termination of the Agreement.
- All patents, trademarks, copyrights or other intellectual property rights embodied in the Products, including without limitation the Software and all Updates and derivative works, are owned by Company and its licensors. Company and its licensors retain all right, title and interest in such intellectual property rights. Except as expressly set forth herein, no license rights or ownership in or to any of the foregoing is granted or transferred hereunder, either directly or by implication. ALL RIGHTS RESERVED.
- If Customer is the United States Government or any agency thereof, each of the components of the Software and user documentation are a “commercial item,” and “computer software” as those terms are defined at 48 C.F.R. 2.101, consisting of “commercial computer software” and “commercial computer software documentation,” as such terms are used in 48 C.F.R. 12.212. Consistent with 48 C.F.R. 12.212 and 48 C.F.R. 227.7202-1 through 227.7202-4, all United States government Customers acquire only those rights in the Software and user documentation that are specified in this Agreement.
13. Support and Maintenance.
- During the License Term, Company shall provide Customer with email customer support and telephone customer support for the Software during Company’s normal business hours of 8:00am to 6:00pm, Pacific Time, Monday through Friday, in each event excluding Company holidays, in order to provide trouble shooting and for Customer to report Errors. Customer shall report all Errors in the Software to Company in sufficient detail, with sufficient explanation of the circumstances under which the Error occurred or is occurring. Company shall use commercially reasonable efforts to correct any Error in the Software reported by Customer with an Update in the next generally released Software Update. For purposes hereof, an “Error” means the failure of the Software to conform in any material respect with the Software documentation.
- During the License Term, Company will provide Updates to the Software as such Updates are generally released by Company to its other customers. For purposes hereof, “Updates” means the object code forms of any modifications, error corrections, bug fixes, new releases, or other updates of or to the Software and documentation that may be provided or otherwise made available hereunder by Company to Customer during the License Term. To the extent any Updates include new functionality, including, without limitation any new versions allowing the Software and Products to be used for one or more new indications, Customer may be required to pay additional fees for use of such functionality, as determined by Company in its sole discretion.
14. Installation; Customer Obligations.
- Unless otherwise agreed to in writing in the Quotation, Customer is responsible for proper installation of the Products and any necessary equipment, software or hardware. Customer is responsible for ensuring that its hardware and software conform with Company minimum hardware and software requirements as made available to Customer. Customer shall strictly abide by any Company installation procedures provided with the Products or otherwise provided to Customer by Company. Company reserves the right to update such procedures from time to time.
- Customer shall provide and maintain a suitable, safe and hazard free location and environment in material compliance with any written requirements provided by Company, Customer shall also use all Products and timely perform all Company recommended routine maintenance and operator adjustments to Products using qualified personnel and in accordance with applicable user documentation.
- Customer is also responsible for providing and maintaining connectivity to the Products (broadband internet connection, or other secure remote access reasonably requested by Company) to permit Company to exercise its rights under this Agreement. Customer is solely responsible for ensuring that Customer’s network is adequate for the proper operation and performance of the Products and that it otherwise meets Company network configuration requirements (including requirements for preparation of Customers site, remote interconnections and Internet protocol address assignments) provided by Company to Customer. Customer shall provide Company prompt and un-encumbered access to the Products, network cabling and communication equipment as necessary in the event Company agrees to provide any on-site services.
- Company shall defend any action brought against Customer to the extent it is based on a third-party claim that use by Customer of the Software as furnished hereunder, which use is in accordance with the terms and conditions of this Agreement, directly infringes any valid United States patent, copyright, or trade secret. Company shall pay any liabilities, costs, damages, and expenses (including reasonable attorney’s fees) finally awarded against Customer in such action that are attributable to such claim, provided: (a) Customer notifies Company in writing of any such claim within thirty (30) days of learning of such claim; (b) Company has sole control of the defense and all related settlement negotiations; and (c) Customer cooperates with Company, at Company’s expense, in defending or settling such claim (provided that Company shall not enter into any settlement or other compromise that materially adversely affects Customer without Customer’s written approval, not to be unreasonably withheld, delayed, or conditioned). Should the Software become, or be likely to become in Company’s opinion, the subject of any claim of infringement, Company may, at its option: (i) procure for Customer the right to continue using the potentially infringing materials; (ii) replace or modify the potentially infringing materials to make them non-infringing; or (iii) terminate this Agreement and refund to Customer a pro-rated portion of any unused license fees paid hereunder.
- Company shall have no liability for any claim based upon: (i) the use, operation, or combination of the Software with non-Company programs, data, equipment, or documentation, other than Products, if liability would have been avoided but for such use, operation, or combination; (ii) use of other than the then-current, unaltered version of the Software; (iii) Customer’s or its agents’ or employees’ activities after Company has notified Customer that Company believes such activities may result in infringement; (iv) any modifications to the Software that are not specifically authorized in writing by Company; (v) any Third-Party Products; (vi) any Customer data; or (vii) Customer’s breach or alleged breach of this Agreement. The foregoing states the entire liability of Company and the exclusive remedy of Customer with respect to infringement of any intellectual property or other rights, whether under theory of warranty, indemnity, or otherwise.
16. Limited Warranty.
- Subject to the exceptions and upon the conditions set forth herein, Company warrants that for a period of twelve (12) months after the date of purchase of a Product, the Product will be free from material defects in material and workmanship (“Warranty Period”). Customer acknowledges that the Products are subject to use and safety guidelines and instructions for use contained in the accompanying instructions for use or other user manual and documentation. Customer agrees to use the Products solely in accordance with the documents and instructions for use and documentation accompanying the Product. Company shall not be liable for a breach of the warranty set forth in this Section unless Customer follows Company’s warranty return procedures communicated to Customer in connection with this Agreement, and Company also verifies that the Products are defective and that the defect developed under normal and proper use. Moreover, Company shall not be liable for a breach of the warranty set forth in this Section if: (i) Customer makes any further use of such Product after giving such notice; (ii) the defect arises because Customer failed to follow Company’s oral or written instructions as to the storage, installation, commissioning, handling, use, care or maintenance of the Product; (iii) Customer alters or repairs such Product without the prior written consent of Company; (iv) repairs or modifications are made by persons other than Company’s own service personnel, or an authorized representative’s personnel, unless such repairs are made with the written consent of Company in accordance with procedures outlined by Company; or (v) the defect is caused, in whole or in part, by normal wear and tear, accident, abuse, improper voltage, other improper use or use not in accordance with our specifications or instructions, and/or any other improper care or handling.
- EXCEPT FOR THE WARRANTY SET FORTH HEREIN, COMPANY MAKES NO WARRANTY WHATSOEVER WITH RESPECT TO THE PRODUCTS (INCLUDING ANY SOFTWARE), INCLUDING ANY (A) WARRANTY OF MERCHANTABILITY; (B) WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE; (C) WARRANTY OF TITLE; OR (D) WARRANTY AGAINST INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS OF A THIRD-PARTY; WHETHER EXPRESS OR IMPLIED BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE OR OTHERWISE.
- Products manufactured by a third-party and third-party software (“Third-Party Products”) may constitute, contain, be contained in, incorporated into, attached to or packaged together with, the Products. Third-Party Products are not covered by the warranty in this Section. For the avoidance of doubt, COMPANY MAKES NO REPRESENTATIONS OR WARRANTIES WITH RESPECT TO ANY THIRD-PARTY PRODUCT, INCLUDING ANY (A) WARRANTY OF MERCHANTABILITY; (B) WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE; (C) WARRANTY OF TITLE; (D) WARRANTY THAT THE PRODUCTS ARE FDA APPROVED, OR OTHERWISE APPROVED, SCIENTIFIC OR MEDICAL DEVICES; (E) WARRANTY THAT THE PRODUCTS HAVE BEEN TESTED FOR SAFETY OR EFFICACY; OR (F) WARRANTY AGAINST INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS OF A THIRD-PARTY; WHETHER EXPRESS OR IMPLIED BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE OR OTHERWISE. Notwithstanding the foregoing, in the event of the failure of any Third-Party Products, Company will assist (within reason and at Company’s sole discretion) Customer (at Customer’s sole expense) in obtaining, from the respective third-party, any (if any) adjustment that is available under such third-party’s warranty.
- NO RETURNS WILL BE ACCEPTED AFTER THE WARRANTY PERIOD HAS EXPIRED. After the Warranty Period has expired, Company may, in its sole discretion, repair nonconforming Products at current industry-standard rates for parts (“Part”), labor and transport. Company warrants that for a period of twelve (12) months after the shipment of a replacement or new Part, the Part will be free from material defects in material and workmanship, subject to the restrictions and limitations described in this Section. Subject to the requirements above, with respect to any such Product during the Warranty Period, Company shall, in its sole discretion, either: (i) repair or replace such Product (or the defective part), using new or refurbished Products or Parts; or (ii) credit or refund the price of such Product at the pro rata contract rate, provided that, if Company so requests, Customer shall, at Customer’s expense, return such Product to Company. All warranty, diagnostic, and repair services are provided without any obligation of confidentiality or non-disclosure on the part of Company, its employees or agents. Therefore, before delivering any Product to Company, Customer should back up or store any related data or information and purge the Product of any information that could be considered confidential, including information related to the identity of a patient or “Protected Health Information,” as that term is defined in 45 C.F.R. § 160.103.
- THE REMEDIES SET FORTH HEREIN SHALL BE CUSTOMER’S SOLE AND EXCLUSIVE REMEDY AND COMPANY’S ENTIRE LIABILITY FOR ANY BREACH OF THE LIMITED WARRANTY SET FORTH IN THIS SECTION. Representations and warranties made by any person, including representatives of Company, which are inconsistent or in conflict with the terms of this warranty, as set forth above, shall not be binding upon Company.
17. Limitation of Liability.
IN NO EVENT SHALL COMPANY BE LIABLE FOR ANY CONSEQUENTIAL, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, OR PUNITIVE DAMAGES, LOST PROFITS OR REVENUES OR DIMINUTION IN VALUE, LOSS OF INFORMATION OR DATA, OR PERSONAL INJURY OR DEATH ARISING IN ANY WAY OUT OF THE MANUFACTURE, SALE, USE, OR INABILITY TO USE ANY PRODUCTS, OR ARISING OUT OF OR RELATING TO ANY BREACH OF THESE TERMS, WHETHER OR NOT THE POSSIBILITY OF SUCH DAMAGES HAS BEEN DISCLOSED IN ADVANCE BY CUSTOMER OR COULD HAVE BEEN REASONABLY FORESEEN BY CUSTOMER, REGARDLESS OF THE LEGAL OR EQUITABLE THEORY (CONTRACT, TORT OR OTHERWISE) UPON WHICH THE CLAIM IS BASED, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE. TO THE MAXIMUM EXTENT PERMITTED BY LAW, IN NO EVENT SHALL COMPANY’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER ARISING OUT OF OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, OR OTHERWISE, EXCEED THE TOTAL OF THE AMOUNTS PAID TO COMPANY FOR THE PRODUCTS OR SERVICES PROVIDED HEREUNDER.
18. De-Identified Data; Data Access.
- The parties hereto expressly acknowledge and agree that Company shall at no time have access to, nor attempt to access, the protected health information (as such term is defined under 45 CFR § 160.103) of Customer and that Company is not acting as a business associate (as such term is defined under 45 CFR § 160.103) of Customer, or any other person or entity, in connection with any data obtained from an Company product by Customer, or any other person or entity. Therefore, Company is not required to comply with the Health Insurance Portability and Accountability Act of 1996 (“HIPAA”), the HIPAA implementing regulations at 45 C.F.R. parts 160, 162 and 164, and the Health Information Technology for Economic and Clinical Health Act, found in Title XIII of the American Recovery and Reinvestment Act of 2009, Public Law 111-005 (“HITECH”) and the regulations promulgated thereto, the California Health and Safety Code §1280.15, the California Civil Code §§1798.82 and 1798.29, and other applicable state and federal laws and regulations, as may be amended from time to time. If Company inadvertently comes in contact with protected health information, Company will keep such information confidential and not further access, use or disclose it. If Company becomes a business associate, as defined under HIPAA regulations, Company agrees to comply with all applicable provisions of HIPAA and agrees to sign a mutually agreeable form of Hospital’s then-current Business Associate Agreement, which shall be compliant with applicable law.
- The parties hereto expressly acknowledge and agree that Company shall be permitted and have full rights and authority to de-identify and aggregate any and all data as such terms are defined under HIPAA and HITECH, including protected health information (as defined under 45 C.F.R. 160.103), to the extent permitted by applicable law, including HIPAA and HITECH (collectively, “De-identified Data”). Company shall have sole ownership and rights over all De-identified Data, except as otherwise explicitly provided for in this Agreement. Customer agrees that the Software includes functionality allowing De-identified Data to be generated, extracted and exported from the Software over secure Internet transmission to Company. Customer will fully cooperate in allowing Company to exercise its rights in the De-identified Data, and shall not take any actions that could prevent such De-identified Data from being transmitted to or used by Customer. Customer shall be solely responsible for any Internet service provider fees, telecommunications fees, and the costs to allow for such transmission.
19. Medical Qualifications; Compliance with Law.
- Customer shall be responsible for all information submitted using the Products, including ensuring that all information is accurate and error-free and legally obtained. All recommendations analysis generated by the Products must be reviewed by a qualified healthcare provider before making any recommendations to patients based on such information. Neither Company, nor the Products make any clinical, medical or other professional decisions, and are not substitutes for licensed medical personnel applying their own professional judgement and analysis in every case. Customer is solely responsible for (i) verifying the accuracy and diagnostic utility (if any) of all information and reports produced by the Products, (ii) obtaining any necessary written and binding consents for use and disclosure of protected health information or other patient information from patients, (iii) determining the data necessary or appropriate for decision-making by its licensed medical personnel; and (iv) making all diagnoses and treatments and determining compliance, and complying with, all laws and licensing requirements for delivery of medical care. Customer is responsible for ensuring that all personnel using the Products have active professional licenses and all other credentials required by applicable law for the provision of services by them and are not suspended, debarred or prohibited from providing medical care services by applicable law or otherwise.
- Customer shall comply with all applicable laws, regulations and ordinances. Customer shall maintain in effect all the licenses, permissions, authorizations, consents and permits that it needs to carry out its obligations under this Agreement. Customer shall comply with all export and import laws of all countries involved in the sale of the Products under this Agreement. Products, services and technical data delivered by Company shall be subject to U.S. export controls. Customer shall obtain all licenses, permits and approvals required by any government and shall comply with all applicable laws, rules, policies and procedures of the applicable government and other competent authorities.
During the License Term and for a period of one (1) year after its expiration or earlier termination, Company may, at its own expense (except as set forth below), audit the books and records of Customer insofar as they relate to: (a) the payments due pursuant to this Agreement, in order to verify the sufficiency of payments made by Customer hereunder; and (b) Customer’s compliance with the license restrictions, terms, and conditions set forth herein. Any such audit shall be conducted with at least ten (10) days advance written notice to Customer and only during Customer’s business hours in such manner as not to unreasonably interfere with the normal business activities of Customer. In the event that an audit discloses an underpayment of more than five percent (5%) and/or any non-compliance with the license restrictions, terms, or conditions set forth in this Agreement, Customer shall promptly reimburse Company for the costs of the audit and, if applicable, the amount of any underpayment.
If either party materially defaults in any of its obligations under this Agreement, the non-defaulting party, at its option, shall have the right to terminate this Agreement by written notice to the other party unless, within thirty (30) calendar days after written notice of such default, the defaulting party remedies the default. Notwithstanding anything herein to the contrary, in the event Customer breaches the restrictions and limitations on use provided herein, or the confidentiality obligations under this Agreement, Company may immediately terminate this Agreement upon notice to Customer.
22. Amendment and Modification.
This Agreement may only be amended or modified in a writing which specifically states that it amends this Agreement and is signed by an authorized representative of each party.
No waiver by Company of any of the provisions of this Agreement is effective unless explicitly set forth in writing and signed by Company. No failure to exercise, or delay in exercising, any rights, remedy, power or privilege arising from this Agreement operates or may be construed as a waiver thereof. No single or partial exercise of any right, remedy, power or privilege hereunder precludes any other or further exercise thereof or the exercise of any other right, remedy, power or privilege.
24. Force Majeure.
Company shall not be liable or responsible to Customer, nor be deemed to have defaulted or breached this Agreement, for any failure or delay in fulfilling or performing any term of this Agreement when and to the extent such failure or delay is caused by or results from acts or circumstances beyond the reasonable control of Company including, without limitation, acts of God, flood, fire, earthquake, explosion, governmental actions, war, invasion or hostilities (whether war is declared or not), terrorist threats or acts, riot, or other civil unrest, national emergency, revolution, insurrection, epidemic, lock-outs, strikes or other labor disputes (whether or not relating to either party’s workforce), or restraints or delays affecting carriers or inability or delay in obtaining supplies of adequate or suitable materials, materials or telecommunication breakdown or power outage (each a “Force Majeure Event”), provided that, if the event in question continues for a continuous period in excess of ninety (90) days, Customer shall be entitled to give notice in writing to Company to terminate this Agreement.
Customer shall not assign any of its rights or delegate any of its obligations under this Agreement without the prior written consent of Company. Any purported assignment or delegation in violation of this Section is null and void. No assignment or delegation relieves Customer of any of its obligations under this Agreement.
26. Relationship of the Parties.
The relationship between the parties is that of independent contractors. Nothing contained in this Agreement shall be construed as creating any agency, partnership, joint venture or other form of joint enterprise, employment or fiduciary relationship between the parties, and neither party shall have authority to contract for or bind the other party in any manner whatsoever.
Customer hereby grants to Company the right to display Customer’s name and logo on Company’s website and in presentations to prospective clients and investors for the purpose of referencing Customer as a client of Company’s Products and/or Services.
28. No Third-Party Beneficiaries.
This Agreement is for the sole benefit of the parties hereto and their respective successors and permitted assigns and nothing herein, express or implied, is intended to or shall confer upon any other person or entity any legal or equitable right, benefit or remedy of any nature whatsoever under or by reason of this Agreement.
29. Governing Law.
All matters arising out of or relating to this Agreement is governed by and construed in accordance with the internal laws of the State of California without giving effect to any choice or conflict of law provision or rule (whether of the State of California or any other jurisdiction) that would cause the application of the laws of any jurisdiction other than those of the State of California.
30. Dispute Resolution.
The parties irrevocably agree that any dispute, legal suit, action or proceeding arising out of or relating to this Agreement shall be submitted to the American Arbitration Association (“AAA”) and shall be finally settled under the AAA rules. The place and location of the arbitration shall be in San Diego, California, pursuant to the AAA rules and shall be finally settled in accordance with said rules by a single arbitrator selected by both parties. If the parties are unable to agree, then the AAA shall choose the arbitrator. The language to be used in the arbitral proceeding shall be English. The arbitrator(s) shall have no authority to issue an award that is contrary to the express terms of this Agreement or the laws of the State of California or applicable US Federal Law, and the award may be vacated or corrected on appeal to a court of competent jurisdiction for any such error. The arbitrator(s) shall be specifically empowered to allocate between the parties the costs of arbitration, as well as reasonable attorneys’ fees and costs, in such equitable manner as the arbitrator(s) may determine. The arbitrator(s) shall have the authority to determine issues of arbitrability and to award compensatory damages, but they shall not have authority to award punitive or exemplary damages. Judgment upon the award so rendered may be entered in any court having jurisdiction or application may be made to such court for judicial acceptance of any award and an order of enforcement, as the case may be. In no event shall a demand for arbitration be made after the date when institution of a legal or equitable proceeding based upon such claim, dispute or other matter in question would be barred by the applicable statute of limitations. Notwithstanding the foregoing, either party shall have the right, without waiving any right or remedy available to such party under this Agreement or otherwise, to seek and obtain from any court of competent jurisdiction any interim or provisional relief that is necessary or desirable to protect the rights or property of such party, pending the selection of the arbitrator(s) hereunder or pending the arbitrator(s)’ determination of any dispute, controversy or claim hereunder.
All notices, request, consents, claims, demands, waivers and other communications hereunder (each, a “Notice”) shall be in writing and addressed to the parties at the addresses set forth on the face of the Quotation or to such other address that may be designated by the receiving party in writing. All Notices shall be delivered by personal delivery, nationally recognized overnight courier (with all fees pre-paid), facsimile (with confirmation of transmission) or certified or registered mail (in each case, return receipt requested, postage prepaid). Except as otherwise provided in this Agreement, a Notice is effective only (a) upon receipt of the receiving party, upon confirmation of delivery by nationally recognized overnight courier or upon forty-eight (48) hours after being sent by certified or registered mail (as applicable), and (b) if the party giving the Notice has complied with the requirements of this Section.
If any term or provision of this Agreement is invalid, illegal or unenforceable in any jurisdiction, such invalidity, illegality or unenforceability shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction.
Provisions of this Agreement which by their nature should apply beyond their terms will remain in force after any termination or expiration of this Agreement including, but not limited to, the following provisions: Medical Qualifications; Compliance with Laws, Confidentiality, Governing Law, Dispute Resolution, Survival, and the restrictions in Sections 3 and 12.
Last Updated 16 October 2017