PLATFORM TERMS
1. The Platform; License.
1.1. Platform; License. Subject to the terms and conditions of this Agreement, the Company hereby grants the Customer, and the Customer hereby accept a limited, non-exclusive, non-sublicensable, non-transferable and fully revocable license remotely access and use the Program, solely by remote means and on a SaaS basis, solely for Customer’s internal business purposes, during the Term (as defined below) and in accordance with the terms contained in this Agreement and in accordance with the Platform’s Documentation (as defined below). All other rights in the Platform are expressly reserved by the Company. The term “Platform” includes the Platform and its binary code, compilation of data, or visual display resulting from the operation of the Platform, and any associated materials, equipment, systems, specifications and Documentation.
1.2. Documentation. The Company may make available certain Documentation related to the use, installation, access, deployment or integration of any portion of the Platform. “Documentation” means the Company's standard user documentation, whether in hard copy, or in any electronic form or other media (generally made available by the Company to its customers), describing the use, features and operation of the Platform. Unless context otherwise requires, the term Platform shall include the Documentation.
1.3. Lawful Use. Customer hereby declares and agrees that it shall only use the Platform in full compliance with all applicable laws and regulations, including, but not limited to, applicable restrictions concerning the protection of privacy and intellectual property, including copyrights and any other intellectual property rights. The Customer shall ensure that it has sufficient resources in all of the Departments for the ongoing use of the Platform, including adequate internet connection.
1.4. Authorized Users; Account. The Customer may not allow the use of and/or access to the Platform by third parties or anyone other than its Authorized Users, which shall be Customer’s employees whose duties require such access or use. Such access will be permitted only at the Facility. The Customer will ensure that its employees, consultants and subcontractors comply with the terms of this Agreement and shall bear full responsibility and liability for any harm caused to the Company for breach of the terms of the license by Customer’s employees, consultants and subcontractors. The Customer is solely and fully responsible and liable for maintaining the confidentiality of the passwords and any activity that occurs within its account and for safeguarding any username and password. The Customer shall promptly notify the Company in writing if it becomes aware of any unauthorized access or use of the Platform.
1.5. Security. The Platform’s architecture is encrypted, differentiated, and distributed, and enables secure cloud access, and shall comply with the following requirements:(i) TLS-based encrypted traffic; (ii) server keys and assets in digital vaults;(iii) the core of the secret to protection – PHI, PII, DICOM; (iv) a differentiated and distributed system architecture that enables secure cloud access - the unified information is only accessed at the end user level; and(v) one-way information flow to Customer’s servers using the PACS protocol.
1.6. Authorized User. As part of the Onboarding processes, the Company shall allow the Customer’s employees, who have completed the POCUS on-boarding training course, to set up account in the Platform (each, a “Authorized User”). As part of the creation of the account, each Authorized User will be required to supply the Company with a few personal details, including email address and password. In order to protect the security of the Customer’s data to the greatest extent possible, the Customer and its Authorized Users must safeguard and not disclose their account log-in details and must supervise the use of such account. Each Authorized User shall, upon the creation of its account, shall be provided with a privacy notice, which shall be posted by the Company on the Platform. The Platform outputs are provided in a report that is intended to support qualified physicians in their analysis and interpretation of adult cardiac POCUS images, using FDA-cleared ultrasound devices. Authorized User shall be trained and privileged by Customer following education processes and should perform cardiac POCUS according to their specialty professional society clinical guidelines.
1.7. Dashboard. The Platform includes: (a) advanced user statistics and monitoring dashboard, which allows for the Authorized User to review tests and self-monitor of the test performed by such user with the Platform self-monitor; and (b) Facility’s managers dashboard, which allows for review of all uses of the Platform.
1.8. Maintenance and Support. The Company shall provide such support as set forth in the SLA attached hereto as Exhibit A. The Platform shall include a chat feature for reporting of bugs or error.
1.9. Uses. If set forth under an Order, the Customer shall pay the Company on a pay-per-Use basis or an additional uses’ packages, for Uses that exceed the total allowed uses for the applicable subscription. For each Use, the Customer shall pay the Additional Use Fee set forth in the Order. Payment will be calculated based on the total number of Uses conducted within each year (“Usage”). Notwithstanding the above, Failed Uses shall not be considered as “Uses”, and shall not be calculated as part of the Usage. The Company shall not be liable for any refunds, credits, or adjustments in cases where tests are improperly conducted due to user error, using the Platform not in accordance with Company’s written instructions, or issues outside the Company’s control, including but not limited to, incorrect input, data entry errors, or network issues on the Customer’s side, and any of these errors will not be deemed as Failed Uses. For the purpose of this Agreement: “Use(s)” means an echo scan performed by the Customer with the use of the Platform, for which the Platform generates any output (even when only one (1) finding is generated)and/or report, for a specific patient. For the removal of doubt, if more than one (1) test was performed for the same patient, all such scans shall be considered Uses per the terms hereof. “Failed Use(s)” means an echo scan that is invalid due to system malfunction, outage, or any technical failure of the Platform, or that not even one (1) result/finding was generated by the Platform. The Company shall issue an invoice to the Customer at the end of each year, detailing the total number of Usage conducted in that month, including detailed report of all Uses and Failed Uses.
1.10. Hardware. If set forth under an Order, the Company may provide Customer with certain Hardware, for which the Customer shall pay the Hardware Fee. The Hardware will be used by the Customer solely for the purposes of using the Platform, as detailed herein, and per the following terms:
1.10.1 The Company will deliver the Hardware upon the Effective Date.
1.10.2 The Hardware shall be returned to the Company at the end of the Term (and, if terminated or expired following the Term, at the end of the Pilot Period) or previously if the Agreement is terminated, for any reason. The Hardware shall be returned in the same condition as the Customer received it, except for normal wear and tear. Return of the Hardware shall be at the cost and liability of the Company. The Customer acknowledges that once the Hardware is returned to the Company, all files which may be stored on the Hardware will be deleted and cannot be recovered and the Company will not be liable for any loss of data stored on the Hardware. The Hardware units shall be deemed returned when (i) removed from the Facility by Company; (ii)they have been confirmed to be fully operational and in good working condition, subject to normal wear and tear, as determined by Company in its sole discretion; and (iii) Company has confirmed acceptance thereof in writing.
1.10.3 The Customer shall: (i) use the Hardware solely at its Facility and will not transfer, move or use the Hardware at any other location; (ii) use the Hardware solely in connection with Customer’s use of thePlatform per the terms of the Agreement; (iii) not, and shall not allow any third party to alter, tamper with, use or modify the Hardware; (iv) not deface or remove any identification from the Hardware; and (v) not install its own software on the Hardware without the Company’s prior written consent. All repairs and upgrades of the Hardware must be made in accordance with the Hardware’s manufacturer’s instructions.
1.10.4 The Hardware is loaned to the Customer and NOT sold to the Customer; thus, ownership of and title in and to the Hardware is, and shall remain at all times, with the Company. The exclusive right, title and interest in and to any and all proprietary and intellectual property rights related to or in connection with the Hardware and/or Embedded Software belong solely to Company and/or its licensors, and the Customer shall not do, or cause to be done, any acts or things contesting or in any way impairing any portion of such proprietary or intellectual property rights. For the avoidance of doubt, the Hardware shall be held by Customer as bailee.
1.10.5 The Customer shall: (i) maintain the Hardware fully operational and in a good working condition throughout the Term, (ii)have full and sole liability for the proper safeguarding and preservation of the Hardware and exercise all due care of the Hardware to prevent loss or damage; and (iii) be liable for and bear the entire risk of loss, theft, damage, confiscation or destruction of the Hardware, however such damage has been caused (but excluding reasonable wear and tear). The Customer shall notify the Company of any misuse, loss, theft, damage, malfunction or problems related to the Hardware, and where applicable the Customer shall cease the use of such Hardware until it is repaired (or replaced) by the Company. The Company reserves the right to request the Customer to provide new Hardware and/or charge the Customer the full cost for repair or replacement, when damage to the Hardware occurs due to negligence, loss, theft or improper use. The Customer is prohibited from attempting to fix any Hardware malfunctions by itself and will be held liable for any damage/replacement costs which may be incurred as are result thereof.
1.10.6 The Customer acknowledges that the Hardware includes pre-installed Embedded Software, which is subject to third party license terms. The Customer's right to use such Embedded Software as part of, or in connection with, the Hardware is subject to any applicable acknowledgements and license terms attached to such Embedded Software. If there is a conflict between the licensing terms of such Embedded Software and this Agreement, the licensing terms of the Embedded Software shall prevail in connection with the related Embedded Software. Such Embedded Software is provided on an “AS IS” basis without any warranty of any kind and shall be subject to any and all limitations and conditions required by such third parties. The Customer is solely responsible for promptly installing all Updates to the Embedded Software. “Embedded Software” means any operating system or other software that is embedded or incorporated into the Hardware, but excluding the Platform.
1.10.7 THE COMPANY MAKES NO WARRANTY, EXPRESS OR IMPLIED, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE OR OTHERWISE, AND EXPRESSLY EXCLUDES AND DISCLAIMS ALL WARRANTIES AND REPRESENTATIONS OF ANY KIND, INCLUDING ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT WITH RESPECT TO THE AND HARDWARE AND THE EMBEDDED SOFTWARE
2. Use Restrictions. Except as specifically permitted herein, without the prior written consent of the Company, Customer shall not, directly or indirectly: (i) use, modify, incorporate into or with other software, or create a derivative work of any part of the Platform; (ii) sell, resell, license (or sub-license), lease, assign, transfer, pledge, or share Customer’s rights under the Agreement with or to anyone else; (iii) copy, distribute, publish or reproduce the Platform, or any part thereof; (iv) use or permit the Platform to be use to perform services for third parties, whether on a service bureau or time sharing basis or otherwise, without the express authorization of the Company; (v) disclose, publish or otherwise make publicly available the results of any benchmarking of the Platform, or use such results for Customer’s own competing software development activities; (vi) modify, disassemble, decompile, reverse engineer, revise or enhance the Platform or attempt to reconstruct or discover any source code or underlying ideas or algorithms of the Platform; (vii) remove or otherwise alter any of the Company’s trademarks, logos, copyrights, notices or other proprietary notices or indicia, if any, fixed or attached to the Platform as delivered to Customer and the Customer represent and warrant that Customer will abide by all applicable laws in this respect; (viii) ship, transfer or export the Platform into any country, or make available or use the Platform in any manner which is in violation of applicable export control laws, restrictions or regulations; (ix) use the Platform for any illegal, immoral, unlawful and/or unauthorized purposes; (x) take any action that imposes, or may impose, an unreasonable or disproportionately large load on Company’s platform infrastructure, as determined by the Company, or transmit or otherwise make available in connection with the Platform any virus, worm, Trojan Horse, time bomb, spyware, or any other similar computer code, that may or is intended to damage or hijack the operation of any hardware, software or telecommunications equipment, or any other actually or potentially harmful, disruptive, or invasive code or component; (xi) bypass any measures we may use to prevent or restrict access to the Platform; and/or (xii) disclose, provide or otherwise make available trade secrets contained within the Platform and related documentation (including the Documentation) in any form to any third party without the prior written consent of the Company. The Customer shall implement reasonable security measures to protect such trade secrets.
3. Consideration.
3.1. Fees. The applicable fees due in consideration of the licenses and services provided by the Company hereunder, as well as the relevant payment terms, are set forth in the applicable Order (the “Fees”). Unless otherwise provided in the Order, (a) Customer will pay all amounts due under the Agreement in USD; (b) fees will be billed annually (payment at the start of subscription term); and (c) all amounts invoiced hereunder are due and payable within thirty (30) days of the date of the invoice. Any amount not paid when required to be paid hereunder shall accrue interest on a daily basis until paid in full at the lesser of: (i) the rate of one and a half percent (1.5%) per month; or (ii) the highest amount permitted by applicable law. The Company shall further be entitled to recover from the Customer any reasonable costs incurred in the collection of the overdue amount, including, but not limited to, collection agency fees, attorney’s fees, and court costs. The Company’s failure to exercise its rights under this clause in a timely manner shall not constitute a waiver of its rights to collect payment or to pursue any other remedies available under this Agreement or by law.
3.2. Tax. All amounts payable under this Agreement are exclusive of all sales, use, value-added, withholding, and other taxes and duties. Unless otherwise specified in the Order, all taxes, withholdings and duties of any kind payable with respect to the Fees, other than taxes based on our net income, shall be borne and paid by the Customer. In the event that any such taxes, customs or duties are required to be deducted from any payment under applicable law, then Customer shall pay the Company such additional amount as shall cause the net amount of the aggregate payment to the Company, after giving effect to such deduction, to equal the amount of the payment otherwise due to the Company under this Agreement, and shall reimburse the Company against any additional such taxes, customs or duties that are due in connection with the transactions contemplated herein.
3.3. Audits. The Company shall have the right, up on reasonable advance notice and during normal business hours, to conduct audits of the Customer’s systems and processes relating to the provision of the Platform. Such audits shall be limited to verifying compliance with the terms of this Agreement. The Client shall conduct audits in a manner that minimizes disruption to the Customer’s operations. The Customer shall reasonably cooperate with the Company’s audit efforts and provide necessary access to relevant records, personnel, and facilities.
4. Data; Privacy.
4.1. Customer Data. The Company shall have no direct contact with the patients of the Authorized Users, for which the Platform is used, and all requests in connection with such patients’ data will be handled and addressed by the Customer. The Platform may enable the Customer to upload to the Platform certain Customer Data (as defined below). Any Customer Data shall be solely owned by the Customer. “Customer Data”means any and all information and data uploaded by the Customer (including any Authorized User) to the Platform, including without limitation medical records, test results, analysis and reports, and other Personal Data (as defined below). Except as set forth herein, nothing in this Agreement shall be construed as transferring any rights, title or interests in the Customer Data to Company or any third party. The Customer shall have control and access to all such Customer Data via the Platform and has full administrative control over such data, including by its right to view or modify it. The Customer is solely and severally responsible for its own compliance with applicable data protection and privacy laws with respect to the Customer Data, including providing all applicable privacy notices and receiving all consents required under applicable law from affected data subjects, and the means by which Customer acquired such data. CUSTOMER’S UPLOAD TO THE PLATFORM AND USE OF CUSTOMER DATA, AND ANY DECISION MADE OR ACTION TAKEN BY CUSTOMER BASED ON SUCH DATA ARE CUSTOMER’S SOLE RESPONSIBILITY AND LIABILITY AND AT CUSTOMER’S SOLE DISCRETION AND RISK. THE COMPANY WILL HAVE NO LIABILITY WHATSOEVER FOR CUSTOMER DATA OR THE USE THEREOF.
4.2. Output Data. The Customer is solely and exclusively liable for all actions that the Customer and/or anyone on Customer’s behalf take or are required to take in response to the all reports, alerts, analytics, recommendations, notices, and other forms of information and data that the Platform may generate, provide or make available to the Customer, whether through our web-based interface, an output file, or otherwise (collectively, “Output Data”) and Customer must thoroughly review such Output Data and independently determine which actions are appropriate in light thereof. Except as expressly set forth in the Agreement, the Company disclaims all warranties, whether express or implied, with respect to the Output Data, and is not responsible or liable for the Customer’s reliance upon and/or use of the Output Data, or any consequences resulting there from. The Output Data does not constitute, and does not substitute, medical advice and cannot replace professional advice. ANY DECISIONS MADE OR ACTIONS TAKEN OR NOT TAKEN BY CUSTOMER BASED ON THE USE OF THE PLATFORM ARE AT CUSTOMER’S SOLE LIABILITY AND AT CUSTOMER’S SOLE RISK. Output Data should be reviewed by the Customer, taking into consideration the terms of the Documentation, and the possibility of false positive and false negative. THE COMPANY WILL HAVE NO LIABILITY WHATSOEVER TO CUSTOMER OR ANYONE ACTING ON BEHALF OF THE CUSTOMER FOR THE OUTPUT DATA OR THE USE THEREOF.
4.3. Personal Data. The Customer undertakes to use its best efforts to ensure that the Company shall not receive or obtain any Personal Data (as defined below). Without derogating from the above obligation, the Company undertakes that any confidential patient’s information and/or Personal Data inadvertently disclosed to it or to anyone on its behalf, shall be kept confidential and, per the Customer’s request, shall be deleted and/or returned to Customer. “Personal Data” shall mean any identifiable patient information including information identifying or, in combination with other information, identifiable to a living individual.
4.4. Patient Privacy. Unless otherwise agreed by the Parties under this Agreement, the Company shall not gain access and the Customer shall not transfer or otherwise make available to the Company any personal data (as such term is defined under applicable privacy laws). The Company shall not conduct any activities or otherwise attempt to make or try to make any personal data included in the Customer Data which the Customer may provide to the Company, or any part thereof, identified or un-anonymized. The Company undertakes that in the event any such personal data or confidential patient medical records has been disclosed to it, or has come to its knowledge during the period of thisAgreement, it will be kept confidential and will not be disclosed by them and/or its employees, to any third party, unless ordered or requested to do so by applicable law and regulations and/or as per the instructions of theCustomer.
4.5. Analytics and Anonymized Information. Notwithstanding any contrary provision of the Agreement, the Company may collect, create, disclose, publish, use and/or generate any analytics and/or statistical, aggregated, anonymous and non-identifiable information or non-Personal Data (including anonymized videos, echo examinations and echo results), such as performance metrics, derived from the use of the Platform and the Customer Data, in order to provide and improve Company’s programs and services, including the performance of thePlatform, and for any other legitimate business purposes (including further and future research and development activities of the Company). The Company shall be and remain the exclusive owner of such anonymized information.
4.6. Transparency. The Company will comply with all applicable laws, regulations and applicable government or industry guidelines with regard to transparency of payments to healthcare professionals (the “Transparency Requirements”). The Customer therefore agrees that the Company may disclose all information relating to the Agreement, to the extent required under the applicable Transparency Requirements. Such information may include, but is not limited to the payee’s name, name of health care professional providing the services, value of amounts transferred, and nature of services.
5. Confidentiality; Intellectual Property & Ownership.
5.1. Confidentiality. Each Party may have access to certain non-public and/or proprietary information of the other Party, in any form or media, including (without limitation) confidential trade secrets and other information related to the products, software, technology, data, know-how, or business of the otherParty, whether written or oral, and any such other information that, regardless of the manner in which it is furnished and given the totality of the circumstances, a reasonable person or entity should have reason to believe is proprietary, confidential, or competitively sensitive (the “Confidential Information”). Each Party shall take reasonable measures, at least as protective as those taken to protect its own confidential information, but in no event less than reasonable care, to protect the other Party’s Confidential Information from disclosure to a third party. Each Party shall not use, reproduce, distribute, disclose, or otherwise disseminate the Confidential Information except as strictly necessary to perform its obligations under this Agreement. Neither Party shall use or disclose the Confidential Information of the other Party except as expressly permitted under this Agreement. All rights, title and interest in and to Confidential Information are and shall remain the sole and exclusive property of the disclosing Party. For the avoidance of doubt, the Documentation shall be considered as Confidential Information of the Company. To the extent a receiving Party is required to disclose any Confidential Information of the disclosing Party in order to comply with law or court order, the recipient Party shall (i) seek the highest level of protection available; (ii) only disclose the minimum required; and (iii) when legally permitted, give the disclosing Party prior notice to provide a reasonable chance to seek a protective order.
5.2. Ownership; Intellectual Property Rights. The Platform, Hardware (if such is supplied by the Company to the Customer) and the related Documentation are licensed and not sold. The Company and its licensors are and shall retain all right, interest and ownership in and to the Platform, theHardware and the related Documentation, including without limitation in and to any and all Intellectual Property Rights (as defined below) evidenced by or embodied in and/or attached/connected/related to the Platform and/or Hardware and/or the related Documentation and any and all derivative works thereof. This Agreement does not convey to the Customer an interest in or to the Platform and/or the Hardware and/or the related Documentation, but only a limited revocable right to use the Platform and/or the Hardware and/or the related Documentation in accordance with the terms of this Agreement. Nothing in this Agreement constitutes a waiver of the Company’s intellectual property rights under any law. “Intellectual Property Rights” means: (i) patents and patent applications throughout the world, including all reissues, divisions, continuations, continuations-in-part, extensions, renewals, and re-examinations of any of the foregoing, all whether or not registered or capable of being registered; (ii) common law and statutory trade secrets and all other confidential or proprietary or useful information that has independent value, and all know-how, in each case whether or not reduced to a writing or other tangible form; (iii) all copyrights, whether arising under statutory or common law, whether registered or not; (iv) all trademarks, trade names, corporate names, company names, trade styles, service marks, certification marks, collective marks, logos, and other source of business identifiers, whether registered or not; (v) moral rights in those jurisdictions where such rights are recognized; (vi) any rights in source code, object code, mask works, databases, algorithms, formulae and processes; and (vii) all other intellectual property and proprietary rights, and all rights corresponding to the foregoing throughout the world.
5.3. Feedback. If the Customer contact the Company with feedback data (e.g., questions, comments, suggestions or the like) regarding the Platform(collectively, “Feedback”), such Feedback shall be deemed nonconfidential, and the Company shall have anon-exclusive, worldwide royalty-free and perpetual license to use orin corporate such Feedback into the Platform and/or other current or future products or services of the Company (without Customer’s approval and without further compensation to the Customer).
6. Representations and Warranties; Disclaimers.
6.1. Mutual Representations and Warranties. Each Party represents and warrants to the other Party that (a) it is duly organized, validly existing and in good standing under the laws of its jurisdiction of incorporation or organization; (b) it has the requisite power and authority to enter into this Agreement and to carry out the transactions contemplated by theAgreement; and (b) that the execution, delivery and performance of theAgreement and the consummation of the transactions contemplated by theAgreement do not and will not conflict with any obligations it has towards third parties, or violate any provision of any applicable law. Without derogating from the above, the Customer represents and warrants that it will use the Platform in compliance with any applicable laws, including without limitation privacy protection laws.
6.2. Platform Warranties. The Company further represents that the Platform shall perform in substantial conformance with its Documentation.
6.3. Disclaimers.
6.3.1 All of the Output Data provided by the Platform, including all information, text, treatments, dosages, outcomes, charts, profiles, graphics, photographs, images, advice, messages, and forum postings, are for informational purposes only and DO NOT CONSTITUTE MEDICAL ADVICE and are not intended to substitute independent professional medical judgment, advice, diagnosis, or treatment. Therefore, Customer agrees that the use of the Platform is not intended to, and shall not, limit or otherwise derogate from any of Customer’s obligations or liabilities with respect to the health-related services and/or the medical treatment provided by the Customer to its patients, and that the use of the Platform does not replace, in any manner, Customer and/or Customer’s personnel's medical discretion. Reliance on any information provided on the Platform (including any Output Data) is solely at Customer own risk. Notwithstanding the generality of the above, any of the Customer’s decisions regarding drug therapy, treatment and/or medical care, with respect to which the Platform is utilized, shall be made based solely on the Customer’s independent professional judgment. The Company will not be liable for any damage and/or loss in connection there with. The Company expressly disclaims any and all responsibility and/or liability with respect to actions taken or not taken based on the Output Data and/or the Platform and/or regarding the accuracy, completeness, correctness or reliability of the Output Data.
6.3.2 The Company shall not be held liable for any damage or loss caused as a result of incomplete or wrong Customer Data and all other data provided by the Customer.
6.3.3 OTHER THAN AS EXPLICITLY STATED UNDER THIS AGREEMENT TO THE EXTENT PERMITTED BY APPLICABLE LAW, THE PLATFORM, AND THE DOCUMENTATION, THE OUTPUT DATA AND ANY OTHER SERVICES PROVIDED HEREUNDER ARE PROVIDED ON AN “AS IS” BASIS. THE COMPANY DOES NOT WARRANT THAT THE PLATFORM AND/OR THE DOCUMENTATION AND/OR THE OUTPUT DATA AND/OR ANY OTHER SERVICES PROVIDED HEREUNDER WILL MEET CUSTOMER’S REQUIREMENTS OR
THAT THE PLATFORM'S OPERATION WILL BE SECURE, UNINTERRUPTED, ERROR-FREE, FREE OF VIRUSES, BUGS, WORMS, OTHER HARMFUL COMPONENTS, OR OTHER PLATFORM LIMITATIONS. THE COMPANY HEREBY EXPRESSLY DISCLAIMS ALL EXPRESS WARRANTIES, ALL IMPLIED WARRANTIES, AND ALL CONDITIONS, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, NON-INTERFERENCE, NON-INFRINGEMENT, FITNESS FOR A PARTICULAR PURPOSE, SATISFACTORY QUALITY AND ANY WARRANTIES ARISING OUT OF COURSE OF DEALING OR USAGE OF TRADE.
6.3.4 DUE TO THE CONTINUAL DEVELOPMENT OF NEW TECHNIQUES FOR INTRUDING UPON AND ATTACKING NETWORKS, COMPANY DOES NOT WARRANT THAT THE PLATFORM AND/OR THE DOCUMENTATION AND/OR THE OUTPUT DATA AND/OR ANY OTHER SERVICES PROVIDED HEREUNDER OR ANY EQUIPMENT OR SYSTEM SUPPLIED BY THE COMPANY WITH THE PLATFORM (IF ANY), WILL BE FREE OF VULNERABILITY TO INTRUSION OR ATTACK.
7. Limitation of Liability. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW (A) THE COMPANY AND/OR ITS SUPPLIERS AND/OR LICENSORS SHALL NOTBE LIABLE WHETHER UNDER CONTRACT, TORT OR OTHERWISE, TO CUSTOMER OR ANY THIRDPARTY FOR ANY INDIRECT, INCIDENTAL, PUNITIVE, EXEMPLARY, SPECIAL ORCONSEQUENTIAL DAMAGES OF ANY KIND (INCLUDING BUT NOT LIMITED TO, ANY LOSS ORDAMAGE TO BUSINESS EARNINGS, LOST PROFITS OR GOODWILL AND LOST OR DAMAGED DATAOR DOCUMENTATION), SUFFERED BY ANY PERSON, ARISING FROM AND/OR RELATED WITHAND/OR CONNECTED TO THE INSTALLATION OF THE PLATFORM OR ANY EQUIPMENT OR SYSTEMSUPPLIED BY THE COMPANY (IF ANY) AND/OR ANY USE OF OR INABILITY TO USE THEPLATFORM AND/OR THE DOCUMENTATION AND/OR OUTPUT DATA AND/OR ANY OTHER SERVICESPROVIDED HEREUNDER, OR ANY EQUIPMENT OR SYSTEM SUPPLIED BY THE COMPANY (IFANY), THE RESULTS AND CONSEQUENCES OF USE OF THE PLATFORM OR SUCH SERVICES, ANDTHE ACCURACY OF SUCH RESULTS AND THEIR RELIABILITY, EVEN IF THE COMPANY WASADVISED OF THE POSSIBILITY OF SUCH DAMAGES; AND (B) IN NO EVENT SHALL THE COMPANY'S TOTAL LIABILITY ARISING OUT OF OR RELATING TO THIS AGREEMENT FROM ALLCLAIMS OR CAUSES OF ACTION AND UNDER ALL THEORIES OF LIABILITY, EXCEED THETOTAL PAYMENTS ACTUALLY MADE TO THE COMPANY FOR THE PLATFORM, IF ANY, DURINGTHE SIX (6) MONTH PERIOD PRIOR TO ANY SUCH CLAIM OR CAUSE OF ACTION AROSE. THIS LIMITATION OF LIABILITY IS CUMULATIVE AND NOT PER INCIDENT.
8. Third Party Software. The Platform may use or include third party software, files and components that are subject to open source and third-party license terms (“Third-Party Components”). The Customer’s right to use such Third-Party Components as part of, or in connection with the Platform is subject to any applicable acknowledgements and license terms accompanying such Third-Party Components contained therein or related thereto. If there is a conflict between the licensing terms of such Third-Party Components and this Agreement, the licensing terms of the Third Party Components shall prevail in connection with the related Third-Party Components. Such Third-Party Components are provided on an “AS IS” basis without any warranty of any kind and shall be subject to any and all limitations and conditions required by such third parties. The Customer hereby agrees to such terms associated with the Third-Party Components. Under no circumstances shall the Platform or any portion thereof (except for the Third-Party Components contained therein) be deemed “open source” or “publicly available” software. A list of Third-Party Components is available in the Platform or its documentation and will be updated from time to time. The licenses of certain Third-Party Components may require the provision of the source code of these Third-Party Components. With respect to any licenses ofThird-Party Components that require the provision of the open-source code of these Components, the Company will provide Customer and any third party, during a period set forth by each such license, for a charge of no more than Company's cost of physically performing source distribution, a complete machine-readable copy of the corresponding source code, on a medium customarily used for software interchange. For that purpose, the Customer should contact the Company at:aisap@aisap.ai.
9. Term and Termination.
10.1 The Term. The term of this Agreement shall be as set forth in the Order (the “Term”).
10.2 Termination.
10.2.1. Either Party may terminate the Agreement with immediate effect if the other Party materially breaches the Agreement and such breach remains uncured (to the extent that the breach can be cured) thirty (30)days after having received written notice thereof. The Company may terminate the Agreement immediately without notice if Customer fail to comply or breaches any provision of the Agreement.
10.2.2. Either Party may terminate the Agreement immediately (i) upon the other Party’s insolvency, dissolution or cessation of business operations, (ii) if such other Party files a petition in bankruptcy or if a petition in bankruptcy is filed against it, (iii) if such other Party makes an assignment for the benefit of any of its creditors or similar arrangement pursuant to any bankruptcy law (or similar law of an applicable jurisdiction), or (iv) has appointed or suffers the appointment of a receiver or trustee for its business, property or assets.
10.3. Effect of Termination. The expiration or earlier termination of the Agreement will not relieve any Party of any obligations that may have accrued hereunder prior to the effective date of such expiration or termination. Upon termination of theAgreement: (i) the Company will cease from providing any services hereunder, the licenses granted to Customer under this Agreement shall expire, andCustomer shall discontinue all further use of the Platform; (ii) Customer shall promptly permanently delete all copies of the Documentation and Platform (where applicable) in Customer’s or any of its representatives’ possession or control;(iii) Customer shall immediately return and/or permanently delete (as instructed by the Company) the Company’s Confidential Information; and (iv) In the event that the Agreement is terminated, other than due to breach ofCustomer, during the Term, the Customer shall be entitled to a prorated refund of the Fee for the remaining unused months of the current subscription term. The refund shall be calculated based on the number of full months remaining in the term, rounded down to the nearest whole month. Any partial month of service shall not be eligible for a refund.
10.4 Survival. The provisions of Sections 2, 4, 5,6.4, 7 and 8 above, and any other provisions intended to survive the termination or expiration of the Agreement shall survive termination or expiration of the Agreement for any reason.
10. Relationship of the Parties. The Parties acknowledge and agree that the Agreement does not create any employer-employee, agency or partnership relationship between the Parties. The Customer shall in no circumstances hold himself out as representing the Company. For the avoidance of any doubt, each Party will be responsible for payment of all salaries and taxes and social welfare benefits and any other payments of any kind in respect of its employees and officers.
11. Miscellaneous. The Agreement shall be construed and governed in accordance with the laws of the State of Delaware (except for conflict of law provisions) and the competent courts of Delaware shall have exclusive jurisdiction in any conflict or dispute arising out of this Agreement. The application of the United Nations Convention of Contracts for the International Sale of Goods is expressly excluded. The Agreement represents the complete agreement of the Parties concerning the subject matter hereof and may be amended only by a written agreement executed by both Parties. The failure of either Party to enforce any rights granted hereunder or to take action against the other Party in the event of any breach hereunder shall not be deemed a waiver by that Party as to subsequent enforcement of rights or subsequent actions in the event of future breaches. If any provision of the Agreement is held to be unenforceable, such provision shall be reformed only to the extent necessary to make it enforceable while preserving as nearly as possible the original intent of the Parties. The Customer may not assign its rights or obligations under this Agreement without the prior written consent of the Company. The Company may assign or otherwise transfer this Agreement in its sole discretion. The Company will not be liable for any delay or failure to perform hereunder resulting from circumstances or causes beyond the reasonable control of the Company (i.e., force majeure events). In case of a conflict between this Agreement and other agreement executed between the Parties with respect to the subject matter, this Agreement shall prevail.
Exhibit A
1. Introduction and Definitions
This Service Level Agreement (“SLA”)defines the responsibilities of the Company with regard to the standard support and maintenance offering, with respect to the Platform. For the purpose of this SLA: “Downtime” or “Downtime Incident” means the time in which the Platform is unavailable to the Customer as measured and determined solely by the Company. Downtime Incidents exclude: (a) planned downtimes announced at least 72 hours in advance by Company, including, without limitation, for periodic upgrade and maintenance; and/or (b) any time during which the Company is awaiting information from the Customer, or awaiting Customer's confirmation that the Platform has been restored.
2. Severity Levels and Expected Response Time.
The Company guarantees a specific response time according to the severity of the reported issue. The following table defines the severity levels and the maximum response times guaranteed by the Company's support team:
Severity Level
Definition
Initial Response Time
2.1. Major Flaw: A Major Flaw shall be defined as a flaw adhering one of more of the following conditions: (i) it severely impairs systems the Platform interacts or their mateial functionality; (ii) it creates a substantial flaw in Customer's ability to provide its services; or (iii) it causes a system restart that impairs the services or the operation of certain features of Customer's system, more then once a day.
Up to 24 hours
2.2 Minor Flaw: A Minor Flaw shall be deemed as any other flaw.
Up to 48 hours
2.3 All non-service-impacting issues, such as documentation or product enhancement requests, questions, etc.
Up to 5 business days
3. Exclusions:
The Company’s obligations under this SLA do not apply to any: (a) features or services which are not included in thePlatform; or (b) Downtime Incidents that: (i) are explicitly excluded under this SLA; (ii) are caused by factors beyond the Company’s reasonable control; (iii) resulted from Customer’s software or hardware that would have been prevented but for such Customer’s software or hardware; (iv) resulted from the Customer's own management or misuse of the Platform; (v) resulted from third party software or hardware, the use of which was not approved by the Company in advance; or (vi) resulted from violation by Customer of the Agreement.
4. Support provided by Third Parties
TO THE EXTENT CUSTOMER PURCHASED SUPPORT/MAINTENANCE SERVICES DIRECTLY FROM THIRD PARTIES (THE “THIRD PARTY PROVIDERS”), THE COMPANY MAKES NO REPRESENTATIONS WITH RESPECT THERETO, AND THE CUSTOMER HEREBY WAIVES ANY CLAIMS RELATED TO ANY SERVICES THAT THE THIRD PARTY PROVIDERS MAY PROVIDE TO THE CUSTOMER. ANY RIGHTS GRANTED TO CUSTOMER UNDER ANY CONTRACTOR PURCHASE ORDER BETWEEN THE CUSTOMER AND THIRD PARTY PROVIDERS THAT ARE NOT EXPLICITLY PROVIDED HEREIN, APPLY ONLY IN CONNECTION WITH SUCH THIRD PARTIES, AND NOT THE COMPANY. THE COMPANY DISCLAIMS ANY WARRANTIES OR REPRESENTATIONS PROVIDED OR MADE TO THE CUSTOMER BY THE THIRD PARTY PROVIDERS. SUCH WARRANTIES AND REPRESENTATIONS ARE THE SOLE RESPONSIBILITY OF THE THIRD PARTY PROVIDERS.
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