TYMPA HEALTH TECHNOLOGIES INC.
DEMONSTRATION TERMS AND CONDITIONS
By executing an Order Form with Tympa Health Technologies Inc. (“we”, “us”, “our”, or “TympaHealth”) that expressly incorporates these Demonstration Terms and Conditions (“Terms”), Customer (as defined in the Order Form) agrees to be bound by these Terms as of the Effective Date on the Order Form. These Terms set forth the terms pursuant to which Customer will be permitted to use the Hardware, Software, and Consumables under the Order Form. Each Order Form incorporates the version of these Terms in effect at the time such Order Form is executed. All references to an Order Form include these Terms as incorporated therein. In the event of a conflict with these Terms and the Order Form, these Terms will prevail unless the Order Form expressly identifies the section of these Terms to be modified. All capitalized terms used but not defined herein have the meaning set forth in the Order Form. Each of Customer and TympaHealth are a “Party” and are collectively, the “Parties.”
1. DEFINITIONS
1.1 “Applicable Laws” means all applicable laws, statutes, regulations and codes.
1.2 “Captured Data” means data and information entered into the Services by Customer, captured via the Services as a result of Customer’s use, or made available to TympaHealth in connection with Customer’s receipt of Services, including all images and procedure results generated by the Software or otherwise produced through Customer’s use of the Services.
1.3 “Consumables” means the separately purchased, one-time or otherwise limited use accessories, add-ons or other consumables, purchased by Customer pursuant to an Order Form. Consumables do not include Hardware.
1.4 “Defect” means an error in the Hardware or Consumables that causes it to fail to operate substantially in accordance with the relevant Documentation and not caused due to any fault or negligence of the Customer.
1.5 “Derived Data” means Captured Data that has been deidentified, or aggregated with other data, such that the resulting data no longer reasonably identifies a specific individual.
1.6 “Documentation” means the operating manuals, user instructions, product specifications, technical literature and all other related materials in human-readable and/or machine-readable form supplied to the Customer by TympaHealth for aiding the use and application of the Services or Consumables, as applicable.
1.7 “Effective Date” means the date stated in the Order Form.
1.8 “Evaluation Term” means the period specified on the Order Form, beginning on the Effective Date. The Evaluation Term may be extended upon mutual written agreement of the Parties.
1.9 “Hardware” means the equipment provided by TympaHealth to the Customer pursuant to an Order Form, including all hardware on which the Software is loaded or through which the Software is accessed or via which the Services are accessed. Hardware excludes Consumables.
1.10 “Location” means the location(s) at which the Hardware is to be installed as specified in the Order Form.
1.11 “Services” means all products and services provided by TympaHealth pursuant to an Order Form, including but not limited to all Hardware and Software (including access to the online database where Captured Data is stored) delivered to the Customer, and any other additional products and services TympaHealth agrees to provide to the Customer from time to time in writing. Services excludes Consumables.
1.12 “Software” means the software applications specified in an Order Form and all operating software provided by TympaHealth that is loaded onto or accessed from the Hardware, and shall include all modifications, updates and extensions to those services from time to time.
1.13 “Usage Data” means Captured Data generated from the use of the Services, which does not identify individual users, any other natural human persons, or Customer, such as technical logs, data, metadata, and learnings about Customer’s use of the Services or Consumables.
2. SERVICES
2.1 Services. During the Evaluation Term, subject to Customer’s compliance with the terms of this Agreement, TympaHealth will provide the Services to Customer, solely for Customer’s internal evaluation purposes (“Evaluation Purposes”) in accordance with the Documentation, this Agreement and the Order Form.
2.2 Hardware. Subject to Customer’s compliance with the terms of this Agreement, TympaHealth will deliver the Hardware for each Location to Customer for use for Evaluation Purposes only in accordance with the Documentation, this Agreement and the Order Form. All Hardware is provided on an “as-a-service” basis, and TympaHealth retains title to all Hardware.
2.3 Consumables. TympaHealth shall deliver the Consumables EXW (Incoterms 2020) for the delivery location specified in the applicable Order Form, at which time risk of loss and title will pass to the Customer. TympaHealth will use commercially reasonable efforts to provide the Customer with an estimated delivery date for each unit of Consumables. However, such delivery date is a good-faith estimate only and is not binding on TympaHealth.
2.4 Customer Obligations. Customer will (a) use the Services and Consumables only in accordance with this Agreement, the Documentation, Order Forms and Applicable Laws; (b) prevent unauthorized access to or use of the Services and Consumables, and shall notify us promptly of any such unauthorized access or use; (c) be responsible for the accuracy, quality and legality of Captured Data, and the means by which Customer acquired the Captured Data, that Customer input into the Services, including compliance with all Applicable Laws; (d) inspect the Hardware and Consumables on delivery and notify us immediately in writing of any Defects in the Hardware or Consumables; (e) be responsible for installing the Hardware at the Location in accordance with our instructions, unless otherwise agreed in writing with us; (f) use the Hardware and Consumables in a proper manner and in accordance with any operating instructions issued for it, and shall ensure that Customer’s staff are properly trained to use and/or supervise the use of the Hardware or Consumables; (g) not, allow any person other than a representative of TympaHealth to modify, repair or maintain any part of the Hardware; (h) not transfer, sell, assign, sub-license, pledge or otherwise dispose of, encumber or suffer a lien or encumbrance upon or against any interest in the Hardware; (i) not lend or hire the Services to any third party without our prior written consent; (j) insure the Hardware for so long as it is in Customer’s possession; (k) notify us in writing immediately of any loss of or damage to the Hardware, and Customer shall make us whole against any loss or damage to the Hardware while in Customer’s possession, excluding damage which in our opinion constitutes wear and tear in the ordinary course of use; (l) remove all Captured Data from the Hardware before returning the Hardware to us; (m) be solely responsible for procuring and maintaining the network connections and telecommunications links from Customer’s systems to the Software and our data centers, and for all problems, conditions, delays, delivery failures and all other loss or damage arising from or relating to Customer’s network connections or telecommunications links or caused by the internet; (n) provide us with all necessary cooperation in relation to our provision of the Services, including all necessary access to such information as may be required by us in order to provide the Services; and (o) only use Consumables in connection with utilizing the Services.
2.5 Restrictions.
(a) Customer will not use the Services to access, store, distribute or transmit any harmful software or material, including but not limited to viruses, or any other material that: (i) is unlawful, harmful, threatening, defamatory, obscene, infringing, harassing or racially or ethnically offensive; (ii) facilitates illegal activity; (iii) depicts sexually explicit images; (iv) promotes unlawful violence; (v) is discriminatory based on race, gender, color, religious belief, sexual orientation, disability, or any other illegal activity; or (vi) causes damage or injury to any person or property.
(b) Customer will not, except as may be required to be allowed by Applicable Law: (i) attempt to copy, modify, duplicate, create derivative works from, frame, mirror, republish, download, display, transmit, or distribute all or any portion of the Hardware, Software, Consumables and/or Documentation (as applicable) in any form or media or by any means; (ii) attempt to reverse compile, disassemble, reverse engineer or otherwise reduce to human- perceivable form all or any part of the Hardware, Consumables, or Software; (iii) access all or any part of the Services, Consumables, or Documentation in order to build a product or service which competes with the Services and/or the Documentation; (iv) use the Services, Consumables, and/or Documentation to provide services to third parties, except as otherwise provided for in this Agreement; (v) license, sell, rent, lease, transfer, assign, distribute, display, disclose, or otherwise commercially exploit, or otherwise make the Services, Consumables, and/or Documentation available to any third party; or (vi) attempt to obtain, or assist third parties in obtaining, access to the Services, Consumables, and/or Documentation, other than as provided under this Agreement or any Order Form.
2.6 Protection and Maintenance of Hardware. Customer assumes full responsibility for the Hardware following delivery to the Location until returned to TympaHealth. Customer will: (a) reasonably protect and maintain the Hardware, (b) not incur any lien or encumber the Hardware in any way, and (c) not move the Hardware from the Location without TympaHealth’s prior written consent. In the event of loss, damage, theft or destruction of the Hardware (normal wear and tear excepted), Customer will promptly notify the TympaHealth in writing, and pay the repair or replacement cost of the Hardware (at TympaHealth’s election), plus shipping and handling charges.
2.7 Ownership. TympaHealth and its third-party licensors retain all right, title and interest in and to the Services and Documentation, including all intellectual property rights therein or thereto. Customer acknowledges that this is not a sale and does not transfer to Customer title or ownership of the Services or Documentation, but only provides for limited use for Evaluation Purposes as contemplated herein.
2.8 Suspension of Services. TympaHealth may immediately suspend Customer’s access to or use of any or all of the Services if Customer is in breach of this Agreement or if Customer’s continued access or use of the Services is likely to harm TympaHealth’s other customers or the security, availability, or integrity of the Service. Where practicable, TympaHealth will use reasonable efforts to provide Customer with prior notice of the suspension via email. If the issue that led to the suspension is resolved, TympaHealth will restore Customer’s access to the Service.
3. DATA
3.1 Use of Captured Data. TympaHealth and its third-party licensors reserve all right, title and interest in and to the Services and the Documentation not expressly granted under this Agreement. Customer shall own all rights, title and interest in and to all of the Captured Data. Customer hereby grants us a non-exclusive, worldwide, royalty-free, fully paid, sublicensable, fully transferable, irrevocable license to use, process, transmit, store, disclose, and otherwise exploit in full: (a) the Captured Data during the Term for the purpose of exercising TympaHealth’s rights and performing its obligations under this Agreement, including to develop and improve its and its affiliates’ products and services and to generate Derived Data; and (b) the Derived Data and Usage Data in perpetuity for TympaHealth’s and its affiliates’ business purposes.
3.2 Captured Data. Customer is responsible for its Captured Data, including its content. Customer represents and warrants that it has made all disclosures, provided all notices, and has obtained all rights, consents and permissions necessary for TympaHealth to collect, store, use, transmit, and otherwise process Captured Data as contemplated under this Agreement without violating or infringing any Applicable Laws, third-party rights, or terms or policies that apply to the Captured Data. Customer acknowledges that certain Captured Data must be provided in order for the Services to function and agrees to promptly provide such Captured Data, and will keep such Captured Data up to date during the Evaluation Term.
4. FEEDBACK. Customer may provide to TympaHealth feedback regarding the use, operation and functionality of the Services (whether or not provided at the request of TympaHealth) (“Feedback”). Such Feedback shall include, without limitation, any information about operating results, known or suspected bugs, errors or compatibility problems, suggested modifications, and user-desired features. Customer hereby grants TympaHealth a non-exclusive, world-wide, perpetual, irrevocable, royalty-free, fully paid-up, fully sublicensable and transferable right and license to use, copy, distribute, and otherwise exploit the Feedback without restriction.
5. TERM AND TERMINATION
5.1 Term. This Agreement will commence as of the Effective Date and will remain in full force and effect until the end of the Evaluation Term (the “Term”).
5.2 Termination. Either Party may terminate this Agreement: (a) by providing the other Party with at least 5 days’ prior written notice; or (b) immediately if the other Party materially breaches this Agreement.
5.3 Effects of Termination. Upon termination or expiration of this Agreement for any reason: (i) all licenses granted by us under this Agreement and Customer’s right to use the Services shall immediately terminate; (ii) Customer shall remove all Captured Data from the Hardware and return (at Customer’s expense) and make no further use of the Hardware, Software, Documentation and other items (and all copies of them) belonging to us; (iii) Customer shall immediately pay to us any sums due under this Agreement; (iv) we will refund Customer within a reasonable amount of time any prepaid fees for the Services covering the remainder of the Term of all Order Forms after the effective date of termination where Customer has terminated the Order Form pursuant to our material breach of this Agreement; (v) the accrued rights of the parties as at termination, or the continuation after termination of any provision expressly stated to survive or implicitly surviving termination, shall not be affected or prejudiced; (vi) each Party shall promptly return or destroy all Confidential Information of the other Party (other than Hardware); and (vii) Sections 1, 2.6 – 2.7, 3.1, 4, 5.3, 5.4, and 6, – 9 will survive.
5.4 Unless we receive, no later than 25 days after the expiry or termination of this Agreement for any reason, a written request from you for the delivery to you of the then most recent back-up of the Captured Data, all Captured Data shall be deleted. Upon such request, we shall use commercially reasonable efforts to deliver, to a secure location provided by you (for example SFTP server or cloud repository), a copy of such back-up within 60 days of our receipt of such request and thereafter delete our copy of Captured Data, provided you have, at that time, paid all fees and charges outstanding at and resulting from expiry or termination. You acknowledge that such data may be in an unstructured format. Subject to the foregoing, all Captured Data will be deleted 60 days after expiry or termination of the Agreement. Prior to expiry or termination, you will be able to extract Captured Data in accordance with this Agreement.
6. CONFIDENTIALITY
6.1 Definition. “Confidential Information” means information disclosed to the receiving Party (“Recipient”) under this Agreement that is designated by the disclosing Party (“Discloser”) as proprietary or confidential or that should be reasonably understood to be proprietary or confidential due to its nature and the circumstances of its disclosure. TympaHealth’s Confidential Information includes the terms and conditions of this Agreement and any technical or performance information about the Services.
6.2 Obligations. As Recipient, each Party will: (a) hold Confidential Information in confidence and not disclose it to third parties except as permitted in this Agreement; and (b) only use Confidential Information to fulfill its obligations and exercise its rights in this Agreement. At Discloser’s request, Recipient will delete all Confidential Information, except, in the case where TympaHealth is the Recipient, TympaHealth may retain the Customer’s Confidential Information to the extent required to continue to provide the Services. Recipient may disclose Confidential Information to its employees, agents, contractors, and other representatives having a legitimate need to know, provided it remains responsible for their compliance with this Section 6 and they are bound to confidentiality obligations no less protective than this Section 6.
6.3 Exclusions. These confidentiality obligations do not apply to information that Recipient can show: (a) is or becomes public knowledge through no fault of the Recipient; (b) it rightfully knew or possessed prior to receipt under this Agreement; (c) it rightfully received from a third party without breach of confidentiality obligations; or (d) it independently developed without using or accessing Discloser’s Confidential Information.
6.4 Remedies. Unauthorized use or disclosure of Confidential Information may cause substantial harm for which damages alone are an insufficient remedy. Each Party may seek appropriate equitable relief, in addition to other available remedies, for breach or threatened breach of this Section 6.
6.5 Required Disclosures. Nothing in this Agreement prohibits either Party from making disclosures, including of Captured Data and other Confidential Information, if required by Applicable Law, subpoena, or court order, provided (if permitted by Applicable Law) it notifies the other Party in advance and cooperates in any effort to obtain confidential treatment.
7. WARRANTY DISCLAIMER, RESPONSIBILITY AND LIMITATION OF LIABILITY
7.1 TympaHealth and its employees and staff do not provide medical advice or services within the scope of the practice of medicine. TympaHealth’s services under this Agreement are limited to the provision technology, including Hardware and Software products, and product-related services. TympaHealth does not independently verify the information provided by third parties and is not liable or responsible for any services, information, or content provided by third-party independent contractors. Use of our Hardware or Software products does not create a doctor-patient relationship between Customer and TympaHealth. Healthcare professionals who use our products and services should exercise their own professional judgment when using our products and services, including services provided by third parties. We assume no responsibility for any consequences relating directly or indirectly to any action or inaction Customer may take based upon the information or services provided by third parties. In no event shall we be liable for unavailability, inaccuracies, incompleteness or errors in the data captured or input by Customer or Customer’s customers using the Services or results provided through the Services.
7.2 We shall not be responsible for: (a) any loss, destruction, alteration or disclosure of the Captured Data; or (b) any delays, delivery failures, or any other loss or damage resulting from the transfer of Captured Data and any other data over communication networks and facilities, including the internet.
7.3 WARRANTY DISCLAIMER. THE SERVICES AND DOCUMENTATION ARE PROVIDED “AS IS” WITHOUT WARRANTY OF ANY KIND. WE MAKE NO ADDITIONAL REPRESENTATION OR WARRANTY OF ANY KIND WHETHER EXPRESS, IMPLIED (EITHER IN FACT OR BY OPERATION OF LAW), OR STATUTORY, AS TO ANY MATTER WHATSOEVER. WE EXPRESSLY DISCLAIM ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUALITY, ACCURACY, TITLE, AND NON-INFRINGEMENT. WE DO NOT WARRANT AGAINST INTERFERENCE WITH THE ENJOYMENT OR USE OF THE SERVICES. WE DO NOT WARRANT THAT THE SERVICES, CONSUMABLES, DOCUMENTATION ARE ERROR-FREE OR THAT OPERATION OF THE SERVICES WILL BE SECURE OR UNINTERRUPTED. WE DO NOT WARRANT THAT ANY INFORMATION PROVIDED BY THE SERVICES OR DOCUMENTATION, IS ACCURATE OR COMPLETE OR THAT ANY SUCH INFORMATION WILL ALWAYS BE AVAILABLE. WE EXERCISE NO CONTROL OVER, AND EXPRESSLY DISCLAIM ANY LIABILITY ARISING OUT OF OR BASED UPON THE RESULTS OF, CUSTOMER’S USE OF THE SERVICES, CONSUMABLES, OR DOCUMENTATION, OR ANY THIRD PARTY TECHNOLOGY USED TO RECEIVE OR PROVIDE THE SERVICES.
7.4 Indemnification. Customer shall defend, indemnify and hold us and our affiliates harmless against all claims, actions, proceedings, losses, damages, expenses and costs (including without limitation court costs and reasonable legal fees) arising out of or in connection with any third-party claim brought against us arising out of, based upon, or in connection with Customer’s breach of any of the provisions of this Agreement, Customer’s use of the Services, Consumables, and Captured Data (other than our use of Captured Data in breach of this Agreement), including any actual or alleged infringement of a third party’s intellectual property rights, data protection laws, or other obligations through the processing of Captured Data by TympaHealth.
7.5 LIMITATION OF LIABILITY. THE TOTAL LIABILITY OF TYMPAHEALTH ARISING OUT OF OR RELATED TO THESE TERMS WILL NOT EXCEED THE TOTAL AMOUNT PAID BY CUSTOMER TO TYMPAHEALTH PURSUANT TO THESE TERMS. IN NO EVENT WILL TYMPAHEALTH HAVE LIABILITY FOR ANY INDIRECT, INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES, INCLUDING BUT NOT LIMITED TO LOST PROFITS OR LOSS OF BUSINESS, EVEN IF ADVISED OF THE POSSIBILITY OF THESE DAMAGES. THESE LIMITATIONS WILL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY IN THIS AGREEMENT. CUSTOMER ASSUMES SOLE RESPONSIBILITY FOR RESULTS OBTAINED FROM CUSTOMER’S USE OF THE SERVICES, CONSUMABLES, AND THE DOCUMENTATION, AND FOR CONCLUSIONS DRAWN FROM SUCH USE. TYMPAHEALTH IS NOT LIABLE FOR ANY DAMAGE CAUSED BY ERRORS OR OMISSIONS IN ANY INFORMATION, INSTRUCTIONS OR SCRIPTS PROVIDED TO TYMPAHEALTH BY CUSTOMER IN CONNECTION WITH THE SERVICES, OR ANY ACTIONS TAKEN BY TYMPAHEALTH AT CUSTOMER’S DIRECTION. THE LIMITATIONS IN THIS SECTION 7 WILL APPLY NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY IN THIS AGREEMENT
8. FEES AND PAYMENT
Customer agrees to pay the amounts indicated on the Order Form. Unless otherwise specified in such Order Form, Customer will pay all amounts due within 30 days of the date of the applicable invoice. Customer will reimburse any costs or expenses (including, but not limited to, reasonable attorneys’ fees) incurred by TympaHealth to collect any amount that is not paid when due. Additional fees may apply if the Evaluation Term is extended. Other than net income taxes imposed on TympaHealth, Customer will bear all taxes, duties, and other governmental charges (collectively, “Taxes”) resulting from this Agreement, including withholding Taxes. Customer will pay any additional amounts as are necessary to ensure that the net amounts received by TympaHealth after all such withholding Taxes are paid are equal to the amounts to which TympaHealth would have been entitled in accordance with this Agreement if such additional withholding Taxes were not payable.
9. GENERAL PROVISIONS
9.1 Assignment. This Agreement may not be transferred or assigned by Customer without the prior written consent of TympaHealth. Any purported transfer or assignment in violation of this Section 9.1 shall be null and void. TympaHealth may freely assign this Agreement without Customer’s prior written consent. This Agreement shall inure to the benefit of and be binding upon the Parties and their respective successors and permitted assigns.
9.2 Governing Law. These Terms will be interpreted, construed, and enforced in all respects in accordance with the local laws of the State of New York, and not including the provisions of the 1980 U.N. Convention on Contracts for the International Sale of Goods. Each Party hereby irrevocably consents to the exclusive jurisdiction and venue of the federal, state, and local courts in New York, New York in connection with any action arising out of or in connection with this Agreement.
9.3 Notices. All notices required to be sent hereunder shall be in writing and shall be deemed to have been given upon (i) the date sent by confirmed facsimile (ii) on the date it was delivered by courier, or (iii) if by certified mail return receipt requested, on the date received, to the addresses set forth on the Order Form and to the attention of the signatory of the Order Form or to such other address or individual as the Parties may specify from time to time by written notice to the other Party.
9.4 Severability. If any provision of this Agreement is held to be invalid or unenforceable, the remaining provisions of this Agreement will remain in full force and effect.
9.5 Waiver. The waiver by either Party of any default or breach of this Agreement shall not constitute a waiver of any other or subsequent default or breach.
9.6 Force Majeure. Neither Party shall be liable for any delay or failure in performance due to acts of God, earthquakes, shortages of supplies, transportation difficulties, labor disputes, riots, war, fire, epidemics, and similar occurrences beyond its reasonable control. Performance times under this Agreement shall be extended for a period of time equivalent to the time lost because of a delay which is excusable under this provision.
9.7 Entire Agreement. This Agreement and the Order Form, together with any attachments, constitute the complete agreement between the Parties and supersedes all prior or contemporaneous agreements or representations, written or oral, concerning the subject matter herein. This Agreement may not be modified or amended except in writing signed by a duly authorized representative of each Party. No other act, document, usage or custom shall be deemed to amend or modify this Agreement.
