Last Updated: June 12, 2024
ThisAiva Software End User License Agreement (this “EULA”;with each Order Form you enter into in connection herewith, and all exhibitsand attachments hereto and thereto, collectively, this “Agreement”), setsforth the terms and conditions of your license, access, and use of the LicensedSoftware (defined below). For thepurposes of this Agreement, "you" or “Customer” meansyou, the licensee set forth in the Order Form, and "Aiva" or “Company”means Aiva, Inc. and its affiliates. Companyand Customer may be referred to herein together as the “Parties” and individuallyas a “Party”. Capitalized termsused but not defined herein shall have the meaning assigned in thecorresponding Order Form.
Youshould carefully review all of the terms and conditions in this EULA and eachOrder Form before agreeing to this Agreement and before commencing access anduse of the Licensed Software. By agreeingto an Order Form and by accessing and using the Licensed Software you areaccepting and agreeing to be bound by all of the terms, conditions,restrictions, and requirements of this Agreement. For the avoidance of doubt, this Agreementrepresents a limited, non-exclusive, non-transferable, revocable license to accessand use the Licensed Software, and is not a contract for sale of Licensed Software(or any component thereof) or any other product or service.
In the event of a conflict between this EULA and anyOrder Form, this EULA shall govern unless the provisions of the relevant OrderForm explicitly state that the particular relevant portion of the Order Formshould supersede this EULA.
1. Nature of Relationship; Enforceability: Customersigning or checking the appropriate box or by clicking the “AGREE”, “CreateContract”, or similar button in the Order Form, and/orCustomer’s use of the Licensed Software throughout the Term shall constitute Customer’s acceptance of andagreement with all of the terms and conditions of the Agreement, including butnot limited to this EULA and each such Order Form. Customer expresslyacknowledges and agrees that the Agreement, including but not limited to thisEULA and each suchOrder Form, shall be abinding and fully enforceable agreement and, as such, Aiva shall be entitled toenforce all of the terms and conditions in the Agreement, including but notlimited to any and all of Aiva’s rights and remedies set forth in theAgreement, directly against Customer. To theextent that Customer agrees to this Agreement via an Aiva-authorized third-party marketplace orplatform (each, an “Authorized Marketplace”), thisAgreement shall be separate from and independent of Customer’s agreement withsuch Authorized Marketplace, if applicable, and notwithstanding anything to thecontrary Company shall have no responsibility or liability to Customer or anythird party for any act or omission by such Authorized Marketplace.
2. Definitions.
2.1 “AccessProtocol” shall mean the passwords, access codes, technicalspecifications and/or instructions, connectivity standards or protocols, orother relevant procedures and/or documentation, as may be set forth or providedby Company as necessary to allow Customer or any Authorized Users to access anduse the Service(s).
2.2 “Affiliate”shall mean any corporation or other entity that is directly or indirectlycontrolling, controlled by or under common control with a Party. For the purpose of this definition, “control”means: (i) the direct or indirectownership of more than fifty percent (50%) of the capital stock of the subjectentity; (ii) controls more than fifty percent (50%) of the voting rights of thesubject entity; or (iii) possesses, directly or indirectly, the power to director cause direction of the management or policies of the subject entity (whetherthrough ownership of securities or other ownership interests, by contract orotherwise).
2.3 “AncillaryServices” shall have the meaning set forth in Section 5.2 ofthis EULA.
2.4 “AuthorizedUser” shall mean employees and subcontractors of Customer that haveaccess to the Service(s) and authorized by Customer to access the Service(s).
2.5 "CustomerContent" shall mean, as the context requires: (a) non-publicdata, lists or other records and information that is provided by or on behalfof Customer to Company and input into the Licensed Software or Devices,including, without limitation, non-public data, lists, or other records andinformation input (i) by Customer directly or indirectly via one or more ofCustomer’s interface engines for Customer’s electronic health records (“EHR”),(ii) directly by a Participant through voice communication via the Devices, or(iii) by an Authorized User through any means into the Licensed Software orDevices (collectively, “Customer Data”); (b) any other information thatCustomer makes available to Participants and Authorized Users via the Service,including but not limited to, requests, questions, wait times, data, music, messages,materials, and other communications (collectively, “End User Data”); and(c) all derivatives of such Customer Data and End User Data. Notwithstanding the foregoing, Customer Contentshall not include De-Identified Data.
2.6 “CustomerEnd Users” shall mean any individuals at the Site that may use theServices and communicate information or data via the Devices, including but notlimited to Site patients or Site residents as the context requires. Customer End Users shall not includeAuthorized Users of the Licensed Software or Services.
2.7 “De-Identified Data” shall meandata which has been de-identified in accordance with the HIPAA Privacy Rulestandards for de-identification in 45 CFR §164.514(b).
2.8 “Devices”shall mean the third-party equipment and/or devices that (a) Company from timeto time authorizes and enables for use with the Licensed Software, and (b) areable to access the Licensed Software via Company’s proprietary softwareapplication or other interface for accessing the Licensed Software on suchequipment or device. Depending on theLicensed Software licensed by Customer under one or more Order Forms, Devicesmay include, without limitation, (i) Amazon Echo devices, (ii) mobile devices(e.g., mobile phones, tablets), whether supplied by Customer and/or itsAuthorized Users, and (iii) associated accessories, cases, and chargers;provided, however, in each case, such equipment and/or devices must be (A) procuredby Customer or Authorized Users, (B) configured for use with the LicensedSoftware, and (C) provided to Participants or otherwise authorized by Customer foruse with the Services, subject to and in accordance with the terms andconditions herein and in an Order Form.
2.9 [IntentionallyOmitted]
2.10 “EffectiveDate” shall mean the date that Customer signs or checks the appropriatebox, or clicks “AGREE”, “Create Contract”, or similar button in the Order Form,or starts using the Licensed Software, whichever is earliest.
2.11 “Fees” shall mean thefees paid or payable by Customer to Company (or Company’s designee) for theServices and Ancillary Services as set forth in any Order Form.
2.12 “Go-LiveDate” shall mean the earliest date of the following to occur within anySite: (a) Participants are able to make a request through the Device which willbe routed to the Licensed Software (e.g. “Alexa, tell my caregiver I am hungry”);(b) Participants are able to use the basic Device functionality (e.g. playmusic, get news, get weather); and/or (c) the Service is otherwise put intocommercial use by the Customer.
2.13 "IntellectualProperty Rights" shall mean: (a) all patents, copyright, database rights, compilations, know-how,designs, and trademarks (registered or unregistered), and related goodwill, aswell as proprietary rights, trade secret, moral rights (including rights ofauthorship and attribution and subsequent modification); (b) all otherintellectual property rights and similar or equivalent rights anywhere in theworld which currently exist or are recognized in the future; and (c) applications,registrations, extensions, and renewals in relations to any such rights.
2.14 "Laws"shall mean all applicable laws, regulations, orders, and binding codes ofpractice, including but not limited to the Health Insurance Portability andAccountability Act of 1996 as amended and the rules promulgated thereunder(together, "HIPAA"), the Telephone Consumer Protection Act of1991 as amended and the rules promulgated thereunder (together, "TCPA"),and any other state or federal laws, regulations, orders and binding codes ofpractice protecting privacy.
2.15 “LicensedSoftware” shall mean, collectively, any and all of Company’sproprietary software application(s) that enable communication of Customer Contentvia the Devices and for which a license is granted to Customer pursuant to thisAgreement, in each case, as listed in an Order Form.
2.16 “Order Form” shall mean eachorder or purchase form that Customer enters into with Company (either directlyor via an Authorized Marketplace) that sets forth (a) the Licensed Software andAncillary Services that Customer elects to license, access, and use under thisAgreement, and (b) the Fees and paymentterms relating to such Licensed Software and Ancillary Services, in each case asagreed by Customer (e.g., by Customer checking the appropriate box, or clicking “AGREE”, “Create Contract”, or similarbutton in such form, or starting to use the Licensed Software) and Company pursuant to the termsherein.
2.17 “Participants”shall mean any individual using the Service, including without limitation,Customer End Users, legal guardians, Authorized Users, or Customer’s or itsAffiliate’s employees, contractors, and vendors.
2.18 “Service”means, collectively, the Licensed Software (including interoperability of suchLicensed Software with Devices), in each case, as set forth in a valid,executed Order Form.
2.19 “Site”shall mean (a) Customer’s location(s) set forth in an Order Form, and(b) any such other Customer locations as may be added throughout the Term withthe execution of an additional Order Form.
2.20 “SoftwareError” shall mean any material non-conformity of any component of theLicensed Software with the applicable Access Protocols.
2.21 “SoftwareUpdate” shall mean any version ofthe Licensed Software (or its components thereof), developed subsequent to theEffective Date, which implements minor improvements or augmentations and isdesignated as a dot (.) release (e.g., 3.X), or which corrects failures of theLicensed Software materially to conform to the then-current Access Protocols.Software Updates shall be included in the price of the annual Service Fees.
2.22 “SoftwareUpgrade” shall mean any versionof the Licensed Software (or its components thereof), developed subsequent tothe Effective Date, which implements additional features or functions, isdesignated as a major release (e.g. X.0), produces substantial and materialimprovements with respect to the utility and efficiency of the LicensedSoftware, but which does not constitute merely a Software Update (as reasonablydetermined by Company in good faith), and which is not marketed by Company as aseparate product and/or service. Software Upgrades shall be included in the price of the annual ServiceFees.
3. Term;Termination.
3.1 Term. The term ofthis Agreement (“Term”) shall be effective as of the earliest EffectiveDate and shall expire on the latest Order Form Term expiration or earliertermination date, unless earlier terminated in accordance with Section 3.2below.
3.2 Termination. Notwithstanding anything to the contrary, atany time during the Term: (a) eitherParty may terminate this Agreement or any Order Form upon written notice to the other Party in the event that such other Party (i) hasbreached any material term of this Agreement and has failed to cure such breachwithin thirty (30) calendar days of receipt of written notice of such breach,or (ii) hasexecuted an assignment for the benefit of creditors or filed for relief underany applicable bankruptcy, reorganization, moratorium, or similar debtor relieflaws, or in the event that a receiver has been appointed for the other Party orany of its assets or properties, or an involuntary petition in bankruptcy hasbeen filed against such other Party, which proceeding or petition has not beendismissed, vacated, or stayed within sixty (60) days; and (b) in the event Companyamends this EULA pursuant to Section 16 below (excluding amendmentscovered by the proviso of the fourth sentence of Section 16), Customermay terminate this Agreement at any time upon written notice to Company priorto the effective date of such amendment.
3.3 Effect of Termination. Upon any termination of this Agreement, (a)all Order Form Terms shall immediately terminate and the licenses and rightsgranted to Customer under Section 4 below shall terminate immediately,and (b) each Party shall (i) immediately discontinue all use of theother Party’s Confidential Information; (ii) at the Disclosing Party’s optionand cost, return to the other Party, or delete the Confidential Information ofthe other Party then in its possession, with written certification of suchdestruction; and (iii) promptly pay all amounts due and remaining payablehereunder. For clarity, in the event anOrder Form expires or is terminated and there are one or more remaining OrderForms as of such expiration or termination date, this EULA shall remain in fullforce and effect with respect to all surviving Order Forms. Any provisions which remain to be performed,or by their nature are intended to be applicable, following any expiration ortermination of this Agreement shall remain in full force and effect after suchexpiration/termination.
3.4 Survival. The provisions of Section 2 (Definitions), Section 3.3 (Effect of Termination), thisSection 3.4 (Survival), Section4.3 (Retained Rights; Ownership),Section 4.4 (Authorized Users), Section 4.5 (Third PartyIntegrations), the last sentence of Section 4.6 (Use of Name and Logo), Section 6 (Fees), and Sections 11-25, as well as Customer’sobligations to pay any amounts due and outstanding prior to the effective dateof termination hereunder, shall survive termination or expiration of this Agreement
4. RightsGranted; Access and Use.
4.1 LicenseGrant.
4.1.1 From Company to Customer: Subject tothe terms and conditions of this Agreement, Company hereby grants Customer,during the Term, a non-exclusive, non-transferable, non-sublicensable right andlicense to: (i) access and use the corresponding Licensed Software for usesolely in connection with Devices and solely in accordance with thecorresponding Access Protocols; and (ii) where applicable, grant AuthorizedUsers limited sublicenses (without the right of further sublicense) to use the LicensedSoftware for use in connection with Devices in accordance with the AccessProtocols.
4.1.2 From Customerto Company: Subject to the terms and conditions of thisAgreement, Customer hereby grants (andCustomer shall cause Participants to grant) to Company, during the Term,a non-exclusive, non-transferable, non-sublicensable right and license to (i) use the Customer Content during the Term forthe limited purposes of performing Company's obligations under this Agreement;(ii) transmit, display, publicly perform the End User Data, and theCustomer trademarks, service marks and/or logos explicitly provided to Companyfor use with the Services; and (iii) collect and transmit the Customer Contentfrom and/or to Participants.
4.2 Usage Restrictions. Customerwill not: (a) sublicense, sell, resell, transfer, assign, distribute, share,lease, rent, make any commercial use of, outsource, use on a timeshare orservice bureau, otherwise generate income from the Services; (b) decompile,disassemble, reverse engineer or otherwise attempt to obtain or perceive thesource code from which any software component of the Services are compiled orinterpreted, and Customer acknowledges that nothing in this Agreement will beconstrued to grant Customer any right to obtain or use such code; (c) modify,adapt, translate or create derivative works, nor allow any of those actions tooccur, based on all or any part of the Services; (d) modify any proprietaryrights notices which appear in or on the Services or components thereof, orattempt to bypass or disable any security, copy control, or other protectionused, or otherwise circumvent any software copyright management or securityfeatures; (e) allow third parties other than Authorized Users to gain access tothe Licensed Software; and/or (f) use any Services in violation of any Laws(including but not limited to any export laws, restrictions,) or outside of thescope of the rights granted in this Agreement.
4.3 Retained Rights; Ownership.
4.3.1 By Company: Company and its licensors, as applicable,at all times own all right, title, and interest in and to the Services ((x)including, without limitation, the corresponding Licensed Software andinteroperability with any Devices, but (y) excluding any Customer Content andany third-party underlying rights in and to the Devices), Access Protocols,Company Confidential Information, Ancillary Services and Deliverables,including all Intellectual Property Rights in and to each of the foregoing(collectively, the "AIVA IP"). Customer acknowledges and agrees and warrants that it has not acquired,and shall not acquire, any right, title, interest, or other ownership in or tothe AIVA IP. Should any such right,title, interest, or other ownership become vested in Customer by operation oflaw or otherwise, Customer agrees to assign, and hereby assigns, all suchright, tile, interest, and other ownership to Company without furtherconsideration. Any and all use byCustomer of the AIVA IP, and any and all goodwill and benefit arising from suchuse, shall inure to the sole and exclusive benefit of Company. During or after the Term, Customer shall neitherdo anything which would in any way damage, injure, or impair the validity andsubsistence of the AIVA IP, nor permit or cause any lien, charge, pledge,mortgage or encumbrance to attach thereto.
4.3.2 By Customer: Customer retains all right,title, and interest in and to the Customer Content and Customer ConfidentialInformation, and Company acknowledges that it neither owns nor acquires anyadditional rights in and to the Customer Content or Customer ConfidentialInformation not expressly granted to Company by this Agreement.
4.3.3 Reservation: Neither Party shall be deemed togrant to the other Party any right, title, interest, and/or license, whether byimplication, estoppel, status or otherwise other than as expressly provided inthis Agreement. Each Party expresslyreserves all rights not expressly granted to the other Party in this Agreement.
4.4 Authorized Users. Customer acknowledges and agrees that it shall be responsible for allacts and omissions of Authorized Users, and any act or omission by anAuthorized User which, if undertaken by Customer, would constitute a breach ofthis Agreement by Customer. Customershall make all Authorized Users aware of the provisions of this Agreement thatmay be applicable to such Authorized User's use of the Services, and Customershall cause Authorized Users to comply with such provisions.
4.5 Third-PartyIntegrations.
4.5.1 During the Term,to the extent mutually agreed by Company and Customer in writing (including viaemail), Company shall provide the software development necessary for the Licensed Software to work with Customer’s relevant,existing third-party systems (each, a “Third-Party Integration”). For the avoidance of doubt, anysoftware development by Company in connection with Third-Party Integrationsshall remain the Intellectual Property of Company.
4.5.2 As between theParties, Customer is solely responsible for paying any additional costs andfees charged by the vendor(a) of each of the Third-Party Integration tointegrate with the Licensed Software (collectively, the “Third-PartyIntegration Costs”). For clarity,Third-Party Integration Costs shall be due and payable in addition to ThirdParty Integration Fees, if any, as agreed by Company and Customer in writing(including via email).
4.5.3 In connectionwith each Third-Party Integration, the Parties acknowledge and agree that, asbetween the Parties, (a) Customer shall be solely responsible for any and allcontent or information accessible by Participants via the Services inconnection with such Third-Party Integration (collectively, “Third Party Integration Content”),including but not limited to the accuracy, quality, integrity, legality,reliability, and appropriateness of all such Third Party Integration Content,(b) the licenses granted by Customer to Company under Section 4.1.2above shall apply to Third Party Integration Content mutatis mutandis,and (c) Company does notwarrant, endorse or assume any liability or responsibility for any such ThirdParty Integration Content. Inaddition to Customer’s other representations, warranties and covenants setforth in this Agreement, Customer represents and warrants that the Third Party IntegrationContent provided hereunder, including but not limited to the performance,transmission, and provision of such Third Party Integration Content via theDevices by Company, shall not infringe the copyright, patent, trademark, tradesecret, or other Intellectual Property Rights of any third party, or constitutedefamation, or violation of any third party right, or violate any Law.
4.6 Use of Nameand Logo. Subject to the terms and conditions of this Agreement:
4.6.1 Company herebygrants to Customer during the Term a non-exclusive, non-transferable,royalty-free license to use Company’s name and approved logo(s) solely toidentify Company as a provider of services to Customer (provided, however, forclarity, Customer shall not use Amazon’s or any other Device manufacturer’s (orany of their respective Affiliate’s) name or trademark in any public orpromotional manner whatsoever without Company’s or such Device manufacturer’s expressprior written consent on a case-by-case basis).
4.6.2 Customer herebygrants to Company during the Term a non-exclusive, non-transferable,royalty-free license to use (including reproducing, distributing, resizing, anddisplaying) Customer’s name and approved logo(s) and marks in Company’smarketing, sales, and promotional materials (whether digital or physical)solely to identify Customer as a Company customer.
4.6.3 Except for theforegoing, neither Party shall use the name, logo(s), or marks of the otherParty without the other Party’s express prior written approval in eachinstance. Upon either Party’s reasonablerequest, the other Party shall provide the requesting Party with logo(s) ormarks approved for use under the first sentence of this Section 4.6. Upon any expiration or termination of theTerm of this Agreement, each Party will discontinue generating and distributingthe name, logos, and marks of the other party as soon as is commerciallypracticable (and for physical materials no later than the next refresh of suchmaterials). Neither Party shall berequired to recall any authorized uses.
4.7 Suspension. Customer acknowledges andshall cause its Authorized Users to acknowledge that Company may, temporarilyor permanently suspend or discontinue access to the Licensed Software in theevent Company, in its good faith reasonable discretion, is aware of orsuspects (a) any violation of the terms of this Agreement or any Addendathereto, and/or (b) any risk of material harm or liability to the LicensedSoftware, Company, and/or Customer.
5. Provisioning.
5.1 Licensed Software. As soon as reasonably practicable after theEffective Date, Company will provide Customer with access to the Service,including set up of the Licensed Software for interoperation with the Devicesat the Site (it being understood that thetiming and/or sequence of release of certain components or parts of theLicensed Software may be sequential and/or subject to update). As between the Parties, Customer shallbe solely responsible for precuring Devices subject to Section 9 below, including any and all costs and expenses inconnection therewith. Except asexpressly set forth in this Agreement, Company shall have no responsibility orliability with respect to any such Devices. Fees for the Service will begin and bepayable on the Effective Date.
5.2 AncillaryServices. Customer may requestand Company may provide certain ancillary support services, including but notlimited to Device configuration, training, and other service offerings(collectively, “Ancillary Services”), pursuant to a valid Order Form agreedto by Customer for the Ancillary Services.
5.3 Changes and Cancellations. In the eventthat Customer requests a change or cancellation in any part of an Order Form,Customer shall be responsible for any expenses and charges incurred and workperformed by Company through the effective date of such change or cancellation,unless charges are on a flat fee non-cancelable basis as indicated in an OrderForm.
6. Fees.
6.1 Fees. In consideration for the rightsand license granted to Customer for access and use of the Licensed Software andprovision of any Ancillary Services under this Agreement, Customer shall pay to Company(or Company’s designee) the fees set forth in the corresponding Order Form(s) (collectively,“Fees”).
6.2 Payment. Customer will pay Company (or Company’s Authorized Marketplace or otherdesignee) the Fees set forth in the applicable Order Form(s), without offset ordeduction. Unless otherwise set forth inthe applicable Order Form (or otherwise agreed as between Customer and anAuthorized Marketplace, if applicable), all payment amounts due hereunder shallbe due within thirty (30) calendar days following Customer’sreceipt of invoice. All payments of invoiced amounts must be paid in full inU.S. Dollars to Company pursuant to the payment instructions set forth in theOrder Form or as otherwise notified by Company (or an Authorized Marketplace) inwriting. If any such payment is not paidin full when due, in addition to any other remedy otherwise available toCompany, Company may impose interest on overdue charges and payments at therate of 1.5% per month or the maximum amount permissible by law, whichever isgreater, until Customer is current on all payments.
6.3 Taxes. Any taxes, duties, excises, or tariffs imposed on costs and Fees paidunder this Agreement shall be the responsibility of Customer. Customer shall indemnify, defend, and holdCompany harmless for any failure by Customer to timely remit any of theaforementioned taxes, duties, excises, tariffs, or other charges. IfCompany is required by law to directly pay any such taxes, duties,excises, tariffs or other charges, Customer shallpromptly reimburse Company upon Company’s presentation to Customer of documentation evidencing such payment.
7. CustomerResponsibilities.
7.1 Authorized User Access to the Services. Subject to Section4.4 of this EULA, Customer may permit any Authorized Users to access anduse the features and functions of the Service as contemplated by this Agreement. Authorized User IDs cannot be shared or usedby more than one Authorized User. Customer shall use commercially reasonable efforts to preventunauthorized access to, or use of, the Service, and shall notify Companypromptly of any such unauthorized use known to Customer. Customer acknowledges and agrees that it mayneed certain networking capabilities, bandwidth, software, and hardware to usethe Services. Customer is solelyresponsible for all such networking capabilities, bandwidth, software, andhardware required to reach the Company systems to gain access to the Services.
7.2 Customer Responsibility for Data and Security. Customershall be responsible for all changes to and/or deletions of all securitypasswords and other Access Protocols required in order to access theServices. Customer shall also managesecurity protocols for accessing the Licensed Software via the Devices (e.g.,mandatory password resets; duration of use before passwords must be reentered;etc.). Customer shall be responsible forcompliance by its Authorized Users with the Access Protocols and all other suchsecurity protocols related to the Licensed Software and Devices. Customer shall have the sole responsibilityfor the accuracy, quality, integrity, legality, reliability, andappropriateness of the Customers Content. Customer agrees to collect, maintain, store, transmit, and disclose anyinformation gathered hereunder, including but not limited to any Customer Contentin compliance with its published terms of use, privacy policy, and Laws. Customer agrees that Company does not assumeany liability or responsibility to Customer, any Participant, or any thirdparty for any Customer Content made accessible via the Licensed Software.
7.3 Maintenance of Customer Equipment & Environment. Customer isresponsible for (a) maintenance and management of its computer network(s),servers, hardware, software (other than the Licensed Software), website(s), andany equipment or services related to the maintenance and management of theforegoing; and (b) correctly configuring Customer’s systems in accordance withthe mutually agreed upon Access Protocols.
7.4 Compliancewith Laws. Customer shall use the Services in compliancewith Laws.
8. TechnologyMaintenance.
8.1 Error Correction. Provided that Customer haspaid all Fees due and payable pursuant to this Agreement, Company will usecommercially reasonable efforts to adapt, re-configure or re-program the LicensedSoftware, as applicable, in order to correct in a timely fashion any SoftwareErrors reported by Customer via its designated representatives.
8.2 Procedural Workarounds. In the eventthat Company fails or is unable to correct any Software Error, as required bythis EULA, Company shall use commercially reasonable efforts to develop in atimely fashion procedure or routines, for use by the Authorized Users of theService, which, when employed in the regular operation of, or access to, theService will avoid or substantially diminish the practical adverse effects ofthe relevant Software Error, provided that any failure or inability by Companyto develop any such procedure or routine, or failure or inability to do so in atimely fashion will in no event be deemed a breach of Company’s obligationshereunder.
8.3 SoftwareUpdates; Software Upgrades. From time totime Company may, in its discretion, develop Software Updates and/or SoftwareUpgrades. Company will, during the Term,make such Software Updates and/or Software Upgrades available to Customer freeof charge, by the same means or methods by which the Service is made available,provided that Customer has paid all Fees due hereunder. Any such Software Updates and/or SoftwareUpgrades provided hereunder will be deemed to constitute part of the Serviceand will be subject to all the terms and provisions hereof.
9. DeviceProcurement.
9.1 Procurementof Devices. As between the Parties, Customershall be solely responsible for procuring the Devices to be deployed at theSite for use by Participants, including any and all costs and expenses inconnection therewith. Company shall have no responsibility orliability with respect to any Devices. In the event of loss, damage, or defect in design, material, orworkmanship of any Device, it shall be Customer’s sole responsibility to assertany manufacturer's warranty and/or provide replacement Devices.
9.2 DeviceConfiguration. The Parties shall work togetherin good faith to configure those Devices enumerated in the Order Form to becompatible with the Licensed Software, at all times, solely for the internalaccess and subject to and in accordance with the terms and conditions of this Agreement. Company will provide reasonable remotesupport to help Customer configure Devices.
9.3 Use ofDevice. Customer shall only use the Devices at theSite in a careful and proper manner for the purposes of accessing the Services under theterms of this EULA and will comply with all applicable Laws regarding the use,maintenance, and storage of the Devices.
9.4 Installation. Physical installation, and de-installationfor all Devices shall be the sole and exclusive responsibility of Customer.
9.5 ReplacementDevices. The replacement of any Devices shall be thesole responsibility of Customer.
10. De-Identified Data: The Partiesexpressly acknowledge and agree that Company and its suppliers own and shallretain the right to use De-Identified Data to monitor, analyze, improve andenhance the Services and to generate aggregate reports and statistics that maybe used for marketing purposes.
11. Confidentiality:
11.1 “Confidential Information” shall meanall business, financial, engineering and/or technical information belonging toor properly in the possession of either Party (“Disclosing Party”), or to which the other Party (“Receiving Party”) has access pursuantto this Agreement, regardless of form or medium (including, without limitation,information and tangible and intangible property which may related toproprietary products, concepts, marketing information, trade secrets,technology, processes drawings, specifications, programs, models, financialinformation and projections, formulae, data, know-how, developments, designs,improvements, software programs, marketing materials, plans and strategies,customer and provider lists, and other valuable business information andproducts), and whether or not marked or otherwise identified by DisclosingParty as being confidential. Confidential Information shall not include any of the following: (a) information that is independentlydeveloped by Receiving Party without any use of and/or access to theConfidential Information as establishedby Receiving Party by appropriate documentation; (b) information that islawfully received by the Receiving Party free of restriction from a third partyhaving the right as of the date of such disclosure to so furnish suchConfidential Information without any breach of the confidentiality obligationowed to Disclosing Party; (c) information that is in the public domain at thetime of disclosure or which thereafter becomes part of the public domainthrough no wrongful act of Receiving Party; (d) information that, at the timeof disclosure to Receiving Party, was known to Receiving Party free ofrestriction as evidenced by appropriate documentation in Receiving Party’spossession; and (e) information that Disclosing Party agrees in writing is freeof such restrictions.
11.2 Non-Disclosure and Use. Receiving Party shall notdisclose Disclosing Party’s Confidential Information to any person or entity otherthan Receiving Party’s employees, agents, advisors, and representatives with aneed to know the Confidential Information in order to carry out the purpose ofthis Agreement and who agree to be bound by Receiving Party’s obligations underthis Agreement with regard to non-disclosure and use of such Confidential Information (“Representatives”). Receiving Party’s agrees that it shall notpermit itself or its Representatives to reverse-engineer, decompile ordisassemble any part of, or remove any proprietary marking from, DisclosingParty’s Confidential Information. Receiving Party shall be liable for any breach of this Section 11by its Representatives.
11.3 Care. Receiving Party shall use atleast the same degree of care to safeguard and to prevent disclosure to thirdparties of Confidential Information as it employs to safeguard its own ConfidentialInformation, but in no event less than reasonable care. Receiving Party shall promptly (i) notifyDisclosing Party in writing of the details and circumstances of any unauthorized disclosure, misuse or misappropriation of any ofDisclosing Party’s Confidential Information (an “Unauthorized Use”) which may come to Receiving Party’s attention;(ii) use best efforts to rectify or cure such Unauthorized Use and retrieve anysuch disclosed Confidential Information; and (iii) use best efforts to provideassistance to and cooperate with Disclosing Party to rectify or cure suchUnauthorized Use and to prevent further misuse or disclosure of suchConfidential Information.
11.4 Mandatory Disclosure. If Receiving Party becomeslegally compelled to disclose any of Disclosing Party’s ConfidentialInformation, Receiving Party shall (i) promptly notifyDisclosing Party of such requirement before any disclosure is made so thatDisclosing Party may seek a protective order or other appropriate remedylimiting disclosure or use of such Confidential Information; and (ii) providereasonable assistance to Disclosing Party to seek such remedy at DisclosingParty’s expense. If such protectiveorder or other remedy is not obtained, Receiving Party may furnish only thatportion of such Confidential Information that, in the opinion of its legalcounsel, it is legally required to disclose, and Receiving Party agrees to makecommercially reasonable efforts to obtain assurance that confidential treatmentwill be accorded to the Confidential Information.
11.5 Remedies. The Parties acknowledge andagree that money damages would not be a sufficient remedy for any breach ofthis Section 11, and that any such breach may causeimmediate and irreparable harm. Accordingly, each Party agrees that, in the event of any breach orthreatened breach of this Section 11 by Receiving Party, DisclosingParty shall be entitled, in addition to all remedies otherwise available at lawor in equity, to seek injunctive relief to prevent the disclosure of itsConfidential Information.
12. Representations and Warranties.
12.1 Each Partyrepresents and warrants to the other Party as follows: (a) it is an entity duly incorporated ororganized, validly existing, and has all requisite corporate power andauthority to execute, deliver and perform its obligations under this Agreement;and (b) it will comply with all applicable Laws in connection with itsobligations under this Agreement.
12.2 If Aiva is your“Business Associate” as defined in HIPAA, then as of the date that Aiva becomesyour Business Associate, the HIPAA Business Associate Addendum at https://www.aivahealth.com/hipaa-baa (“BAA”) automatically shall apply and becomepart of the Agreement; and, in such case, all references to the “Agreement” inthis EULA, each Order Form, and any exhibit attached hereto or thereto, shallbe deemed to mean the Agreement with the BAA so incorporated.
12.3 Customer furtherrepresents and warrants to Company that: (a) it has obtained, and that it shall obtain and maintain, allnecessary and legally required consents, acknowledgements, approvals, orapplicable authorizations (collectively, "Acknowledgments")from Participants as required for the use of the Services and each componentthereof by such Participants; (b) all Acknowledgments shall be obtained andmaintained in accordance with all Laws; (c)Customer shall ensure that each Participant is informed of the proper use ofthe Services, including that the Services are not intended to be used forhealth emergencies; (d) Customer and its Authorized Users shall not use anyServices, Licensed Software, Devices, Ancillary Services, and/or any otherservices provided by Company to Customer hereunder in violation of any Laws;(e) Company has not and is not expected to provide Customer with any analysis,interpretation or advice regarding the compliance of any aspect of the Services,including any Acknowledgments, with any third-party rights or Laws; and (f) theCustomer Content provided hereunder, including performance, transmission, andprovision of such Customer Content via the Devices by Company shall notinfringe the copyright, patent, trademark, trade secret, or other IntellectualProperty Right of any third party, or constitute defamation, or violation ofany third party right, or violate any Law.
13. Disclaimers. CUSTOMER ACKNOWLEDGES AND AGREES THAT, TO THEFULLEST EXTENT PERMITTED BY LAW, EXCEPT AS EXPRESSLY SET FORTH IN THISEULA: (a) COMPANY HAS NOT MADE NOR WILLBE DEEMED TO HAVE MADE, AND COMPANY HEREBY DISCLAIMS, ANY OTHER REPRESENTATIONOR WARRANTY, EXPRESS OR IMPLIED (WHETHER BY STATUTE, FACT, CUSTOM, OROTHERWISE), INCLUDING, WITHOUT LIMITATION, ANY REPRESENTATION OR WARRANTY AS TOMERCHANTABILITY, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR USE OR PURPOSE,NON-INFRINGEMENT OR CONFORMANCE TO ANY DESCRIPTION (WHETHER WITH RESPECT TO THESERVICE, ANY LICENSED SOFTWARE, DEVICES, ANCILLARY SERVICES, OR OTHERWISE); AND(b) CUSTOMER SHALL HAVE NO REMEDIES IN RESPECT OF ANY STATEMENT,REPRESENTATION, ASSURANCE OR WARRANTY (WHETHER MADE INNOCENTLY OR NEGLIGENTLY)THAT IS NOT SET OUT IN THIS EULA.
14. Indemnification. Customer shall indemnify, defend and hold Company, its affiliates,and their respective officers, directors, employees, agents and representatives(collectively, “Company Indemnified Parties”) from and against any andall loss or damage arising out of a third-party claim, suit, or proceedingagainst such Company Indemnified Party to the extent that such claim arises outof or results from (a) Customer's gross negligence, intentional wrongdoing orwillful misconduct; and (b) a breach or an alleged breach by Customer of itsrepresentations, warranties, covenants, and obligations under this Agreement;and/or (c) Customer's breach or alleged breach of any Laws.
15. Limitation of Liability. TO THEMAXIMUM EXTENT PERMITTED BY LAW: (a) IN NO EVENT SHALL COMPANY BE LIABLE FOR ANY INCIDENTAL,INDIRECT, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES, REGARDLESS OF THE NATUREOF THE CLAIM, INCLUDING, WITHOUT LIMITATION, LOST PROFITS, COSTS OF DELAY, ANYFAILURE OF DELIVERY, BUSINESS INTERRUPTION, COSTS OF LOST OR DAMAGED DATA ORDOCUMENTATION OR LIABILITIES TO THIRD PARTIES ARISING FROM ANY SOURCE, EVEN IFA PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES; AND (b) THECUMULATIVE LIABILITY OF COMPANY FOR ALL CLAIMS ARISING FROM OR RELATING TO THISAGREEMENT, INCLUDING, WITHOUT LIMITATION, ANY CAUSE OF ACTION SOUNDING INCONTRACT, TORT, OR STRICT LIABILITY, SHALL NOT EXCEED THE AGGREGATE AMOUNTSPAID BY CUSTOMER TO COMPANY UNDER THIS AGREEMENT DURING THE 12-MONTH PERIODIMMEDIATELY PRECEDING SUCH CLAIM(S). THEDISCLAIMERS, EXCLUSIONS, AND LIMITATIONS ON DAMAGES, CLAIMS, AND LIABILITY (A)ARE INTENDED TO APPLY WITHOUT REGARD TO WHETHER OTHER PROVISIONS OF THISAGREEMENT HAVE BEEN BREACHED OR HAVE PROVEN INEFFECTIVE, AND (B) form an essential basis of the bargain betweenthe Parties. absent any of suchdisclaimers, exclusions, or limitations, the provisions of this Agreement,including, without limitation, the economic terms, would be substantiallydifferent.
16. Amendments. Company maymake changes to this EULA from time to time in its sole discretion. Company will notify you of changes to thisEULA in writing (email sufficient). Ifthe Effective Date of your Agreement is after publication of any such changes,the modified version of this EULA will apply to you immediately uponenrollment. If the Effective Date ofyour Agreement is prior to such changes, the modified version of this EULAautomatically will become effective upon the later of (a) thirty (30) daysafter delivery of the corresponding email notice and (b) the date indicated insuch email notice, regardless of whether or not you affirmatively acknowledgeand agree to such changes; provided, however, that Company may change thisAgreement with effect as of the date we notify you of them if changes (i) addadditional features to the Services that do not materially adversely affectyou, or (ii) are necessary to comply with Laws or to prevent fraud or abuse, orfor security reasons (e.g., malware, spam, data breaches, or othercybersecurity risks). Each new versionof this EULA will supersede all prior versions. You agree to regularly monitor your Customer Binding Email Address (asprovided in the Order Form) for notices regarding such changes. For clarity, if you do not agree with anyproposed changes under this Section 16, you may terminatethis Agreement pursuant to Section 3.2(b) above, whichis your sole and exclusive remedy. Subject to the foregoing, you agree that your continued use of theServices made available to you via this Agreement constitutes your agreement tosuch modified terms. No Order Form maybe amended without the express written approval of each Party.
17. No Waiver; Severability. No waiver of this Agreement will be bindingupon either Party unless made in writing and signed by duly authorizedrepresentatives of such Party, and no failure or delay in enforcing any rightwill be deemed a waiver of such right. All remedies set forth in this Agreement shall be cumulative and inaddition to and not in lieu of any other remedies available to either Party atlaw, in equity or otherwise, and may be enforced concurrently or from time totime. If any term or provision of this Agreementshall be found to be illegal or unenforceable, such illegal or unenforceableprovision will be deemed modified to the limited extent required to permit itsenforcement in a manner most closely approximating the intention of the Partiesexpressed herein.
18. EntireAgreement. This Agreement (including all Exhibits andeach Order Form attached hereto) expresses the entire understanding of theParties about the described subject matter and supersedes all prior andcontemporaneous agreements, contracts, arrangements, and understandings(whether oral, written, or implied). The Parties have reviewed this Agreementwith their own attorneys prior to signing it.
19. GoverningLaw; Venue; Attorneys’ Fees. This Agreement, its interpretation,performance, and enforcement, any and all disputes related in any way to it,and all other matters related in any way to it, shall be governed by the lawsof the State of California, without giving effect to any conflict of lawprinciples or choice of law principles. The Parties agree that Los Angeles County, California shall be the situsof any legal proceeding arising out of or relating to this Agreement. Each party hereby waives any right it mayhave to assert the doctrine of forum nonconveniens or similar doctrine or to object to venue with respect to anyproceeding brought in accordance with this Section 19, and stipulatesthat the state and federal courts located in Los Angeles, California shall havein personam jurisdiction and venueover each of them for the purpose of litigating any dispute, controversy, orproceeding arising out of or related to this Agreement. In any action between the Parties seekingenforcement of any of the provisions of this Agreement, the prevailing party insuch action shall be awarded, in addition to damages, injunctive or otherrelief, its reasonable costs and expenses, not limited to taxable costs, andreasonable attorneys’ fees.
20. Assignment. This Agreementshall be binding on the Parties’ successors and assigns; provided, that neitherParty may assign or transfer any rights or obligations under this Agreementwithout the advance written consent of the other Party. Notwithstanding the foregoing, consent of theother Party shall not be required for assignment or transfer made by (a)operation of law, or (b) to an entity that acquires all or substantially all ofits stock, assets, or business. Exceptas provided in this Section 20, any attempts by either Party to assignany of its rights or delegate any of its duties hereunder without the priorwritten consent of the other Party shall be null and void.
21. NoExclusivity. Nothingin this Agreement shall obligate Customer to use Company’s products or serviceson an exclusive basis. Nothing in this Agreement grants an exclusive license toCustomer hereunder of any Company products or services.
22. Force Majeure. Each Party shall be excused from performance of its obligations underthis Agreement if such a failure to perform results from compliance with anyrequirement of Laws, acts of god, fire, strike, embargo, terrorist attack, war,insurrection or riot or other causes beyond the reasonable control of suchParty. Any delay resulting from any ofsuch causes shall extend performance accordingly or excuse performance, inwhole or in part, as may be reasonable under the circumstances.
23. Independent Contractors. Companyand Customer acknowledge and agree that the relationship arising from thisAgreement does not constitute or create any joint venture, partnership,employment relationship or franchise between them, and the Parties are actingas independent contractors in making and performing this Agreement.
24. No Third-Party Beneficiaries. The Parties acknowledge that the covenantsset forth in this Agreement are intended solely for the benefit of the Parties,their successors and permitted assigns. Nothing herein, whether express or implied, shall confer upon anyperson or entity, other than the Parties, their successors and permittedassigns, any legal or equitable right whatsoever to enforce any provision ofthis Agreement.
25. Interpretation. This Agreement has beennegotiated by the Parties and their respective counsel, and shall beinterpreted in accordance with its terms and without any strict construction infavor of or against either Party. The section headings in this Agreement areincluded for convenience only and shall not limit or otherwise affect theinterpretation of any of the terms or provisions herein. As used in this Agreement, the words “include” and“including,” and variations thereof, will be deemed to be followed by the words“without limitation.”