The following terms and conditions (the “Agreement”) apply to C8 Health mHealth Inc, a Delaware corporation with its registered office at in 1007 N. Orange Street, in the City of Wilmington, County of New Castle, 19801, and to HeadToToe mHealth Sàrl, located in Avenue d’Aïre 73C, 1203 Genève (CHE-448.064.822) ( “C8 Health”):
C8 Health has developed, and owns or obtained the required license to all rights and title to its proprietary Software-as-a-Service platform, through which C8 Health provides customers with services for the management of their medical institutional knowledge; and The client (the “Client”, “You” or “you”) desires to obtain from C8 Health certain solution and services, as set out in these terms and conditions:
1.1 “Documentation” means the standard written materials regarding the Platform or Subscription Services that C8 Health may make available to its customers.
1.2 “Order Form” 1.1. means an agreement signed by both parties for Client to receive Subscription Services, the Platform, or purchase certain services from C8 Health, such Order Form being provided by C8 Health. Each Order Form will be non-cancelable and non-refundable, except to the extent expressly provided in this Agreement or such Order Form or under applicable law.
1.3 “Platform” means the C8 Health software and mobile application developed and managed by C8 Health and the related services listed in the applicable Order Form, including any enhancements, updates, upgrades, modifications or other releases provided to Client, and Documentation.
1.4 “Subscription Services” means the Platform as made available to Client online and managed by C8 Health for use within the scope set in the applicable Order Form, including related services.
2. LICENSE RIGHTS; RESTRICTIONS
2.1 License. C8 Health grants You, subject to full compliance with the terms and conditions set forth herein, a limited, non-exclusive, non-transferable, non-sublicensable, revocable right during the Term as designated in the applicable Order Form, to:
2.1.1 Subscription Services: Access and use the Platform as provided, deployed, installed, and configured by C8 Health, solely for Your internal use and not for any further commercialization or provision of services which involve the provision of the Platform benefits to any third party, in accordance with Documentation;
2.1.2 Grant Your employees and consultants (“Users”) access to the Platform. Access to the Platform by Users is made through authorized email addresses, which will be provided to You by C8 Health.
2.2 Use Restrictions.
Unless otherwise expressly provided herein, you agree that You will not, nor will you authorize any third party to: (a) distribute, license, sublicense, or sell the Platform or Subscription Services to any third party; (b) modify, alter, copy, transfer, emulate or create any derivative works of the Platform, Subscription Services; (c) reverse engineer, decompile, decode, decrypt, disassemble, or in any way attempt to derive source code, know-how or designs from the Platform the Subscription Services or any part thereof; (d) remove, alter or obscure any copyright, trademark or other proprietary rights notice, on or in, the Platform or Subscription Services; (e) bundle, integrate, or attempt to integrate with the Platform or Subscription Services, any third-party software technology other than as expressly permitted in writing by C8 Health (including through the Documentation); (f) use the Platform or Subscription Services for any benchmarking or for competing development activities, or (g) publish or disclose to any third party any technical features, quality, performance or benchmark test, or comparative analyses relating to the Platform or Subscription Services except for your internal use or as expressly permitted by C8 Health in writing.
Without derogating from the foregoing, you shall take commercially reasonable precautions to prevent any unauthorized access and/or unauthorized usage of the Platform. You shall be responsible and liable for any act or omission by any of your affiliates, Users or other personnel acting on your behalf, as if performed by You.
2.3 Service Changes.
C8 Health reserves the right to modify, correct, amend, enhance, improve, or make other changes which do not have a substantial adverse effect on the Platform or Subscription Services without notice, at any time. In the event of a temporary or permanent discontinuation of the Platform or Subscription Services, or in the event of a modification to the Platform or Subscription Service which is reasonably expected to have a material adverse impact on the Services, C8 Health will make reasonable efforts to provide You with reasonable prior written notice in advance. You agree that C8 Health shall not be liable to You or to any third party for any modification, suspension or discontinuance of the Platform or Subscription Services under this section.
2.4 Feedback. You may provide C8 Health with feedback regarding the use, operation, performance, and functionality of the Platform, Subscription Services or any Pre-Release Features, including identifying potential errors and improvements (“Feedback”). You hereby grant C8 Health a perpetual, irrevocable, worldwide, unlimited, sublicensable, fully paid-up and royalty-free right to use the Feedback in any manner.
2.5 Third Party Software.
You hereby confirm and acknowledge the utilization of third-party software components in the Subscription Services or Platform including without limitation components licensed under free or open source licenses, and you herby consent to use of such third party components and that the use of such third party components may be subject to separate terms, licenses and notices which will be made available to you together with the Platform. Without derogating from C8 Health’s limited warranty provided in section 4 below, such third-party components are utilized on an “AS IS” basis without any warranty whatsoever.
2.6 Export Restrictions. You acknowledge that the Platform or Subscription Services may be subject to United States’ export jurisdiction and to any other applicable laws and regulation concerning the transfer of the Platform or any part thereof across international borders. You will comply with all applicable national and international laws that apply to Your use of the Platform or Subscription Services, including United States Export Administration Regulations, as well as end user, end use and destination restrictions which may be issued by the United States and other governments from time to time.
3. TERM AND TERMINATION
3.1 Term. This Agreement is binding upon signing and will continue through the Term of its Order Forms (“Term”).
3.2 Material Breach. In the event that either party commits a material breach of this Agreement or any Order Form, and such breach remains uncured for thirty (30) days following receipt of written notice from the non-breaching party, the non-breaching party may terminate this Agreement or such Order Form by providing written notice of the breaching party’s failure to cure such breach. If such termination is due to C8 Health’ breach, C8 Health will refund Client any unused, pre-paid fees for the Subscription Services and/or Platform. In the event
that C8 Health reasonably believes that You are breaching or have breached of the terms of this Agreement, C8 Health reserves the right to either suspend or terminate Your use of the Subscription Services, Platform or C8 Health’ provision of other products or services.
3.3 Bankruptcy. Either party may, by written notice to the other party, terminate this Agreement or any Order Form in the event such other party terminates or suspends its business, admits in writing to its inability to pay its debts as they mature, makes an assignment for the benefit of creditors, becomes subject to direct control of a trustee, receiver or similar authority, or becomes subject to any other bankruptcy or insolvency proceedings not dismissed within sixty (60) days.
3.4 Upon Termination or Expiration. If the Agreement is terminated or expires, each party will return to the other, or certify in writing the destruction of all Confidential Information (as defined below) or property of the other, provided, however, that neither party has to delete or erase any Confidential Information that has been saved to a back-up file or electronic archiving system in accordance with such party’s ordinary back-up or document retention policies or that is required for litigation, regulatory or corporate records retention reasons. Upon termination of the Agreement or any Order Form (other than for termination due to C8 Health’ breach of the Agreement), the payment obligation for all fees for the full applicable term will be paid to C8 Health at the time of termination of this Agreement or the Order Form. If this Agreement or an Order Form is terminated or expires, all rights granted under the Agreement and that Order Form will terminate and You shall immediately cease any and all use and access to the Subscription Services and Platform.
3.5 Survival. Sections 3.4, 3.5, 5 through 9, 12, and any outstanding payment obligations will survive the termination or expiration of this Agreement.
4.1 In consideration for the rights and Subscription Services provided to You hereunder, you shall pay C8 Health the Fees set forth in the applicable Order Form.
4.2 Except to the extent expressly provided in the applicable Order Form, all fees are non-cancelable and non-refundable. All payments are due 30 days from the date of C8 Health’s invoice and will be subject to a late charge of 1.5% monthly or the maximum amount permitted by applicable law, whichever is less.
4.3 All Fees are stated and payable in US Dollars and are exclusive of any applicable taxes such as Sales Tax (State or Federal) or Value Added Tax (VAT). Client will bear and pay all taxes related to or arising from this Agreement, except for those taxes based on C8 Health’s income. Client may not withhold or set off any Fees due to C8 Health.
5. LIMITED WARRANTY; DISCLAIMERS
C8 Health REPRESENTS AND WARRANTS THAT THE PLATFORM AND SUBSCRIPTION SERVICES SHALL OPERATE SUBSTANTIALLY IN ACCORDANCE WITH ITS DOCUMENTATION. EXCEPT AS EXPRESSLY PROVIDED HEREIN, THE PLATFORM AND SUBSCRIPTION SERVICES, ARE PROVIDED BY C8 Health “AS IS” AND C8 Health MAKES NO REPRESENTATIONS OR WARRANTIES, ORAL OR WRITTEN, EXPRESS OR IMPLIED ARISING FROM COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE, QUALITY OF INFORMATION, QUIET ENJOYMENT OR OTHERWISE, INCLUDING IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, OR NON-INTERFERENCE.
All materials, software, data, or other information that you provide to C8 Health through the Platform, Subscription Services or
6.3 Anonymous Cumulative Information. You hereby acknowledge and consent that the Subscription Services or Platform may collect and store certain Client Data and other data and diagnostic information in connection with the routine operation of the Subscription Services and Platform (“Usage Data”). Without derogating from the foregoing, you hereby grant C8 Health a perpetual, irrevocable, non-exclusive, worldwide, royalty-free license to use aggregated Usage Data that has been anonymized and that cannot be used to identify or otherwise understood to be related to an individual or attributed to you, for the purpose of internal use, research or otherwise improving or enhancing the Subscription Services, the Platform or other services provided by C8 Health.
6.4 No PHI. You hereby consent and acknowledge that it is strictly forbidden and that you will not include in the Client Data or otherwise make available through the Platform or the Subscription Service, any personal health information or any information that is otherwise regulated under HIPAA or other healthcare regulation that is applicable to you (“PHI”). In case that the Client Data includes PHI, you are solely responsible for the legality and the protection of such data. You hereby agree to indemnify C8 Health against any and all costs, damages, losses and penalties that C8 Health may suffer in connection with PHI included in the Client Data.
6.5 Authorization and Compliance with Data Privacy. You hereby represent and warrant that you have the full right, permissions and consents to provide and use the Client Data under this Agreement, and
that you have complied, and will throughout the Term comply, with all applicable data privacy laws and regulations and the terms of this Agreement in relation to Client Data. You are solely responsible for the legality, accuracy, completeness and integrity of the Client Data, and hereby waives any and all claims against C8 Health in relation thereof. You hereby agree to indemnify C8 Health against any and all costs, damages, losses and penalties that C8 Health may suffer in respect to any claim that C8 Health’s use and hosting of the Client Data as contemplated by this Agreement, infringes the rights of any third party.
6.6 Contact Data. The parties agree that each party may store, access, and process the other party’s employees’ and contractors’ contact data for the purpose of performing any obligations under this Agreement. Each party may share the other party’s contact data with its contractors, partners, assignees and others acting on such party’s behalf under this Agreement.
7. PROPRIETARY RIGHTS; CONFIDENTIALITY
7.1 Proprietary Rights. You agree and acknowledge that, as between You and C8 Health, C8 Health is and shall remain the sole and exclusive owner of any and all Intellectual Property rights in or pertaining to the Platform and any part thereof, including any modifications, enhancements, improvements, updates and upgrades, and derivative works, thereof. “Intellectual Property” shall mean all inventions, ideas, concepts, analyses, (whether patented, or patentable, or not), methods, methodologies, designs, processes, patents, patent applications, rights associated with works of authorship, including copyrights, copyrights applications, copyrights restrictions, moral rights, any information, ancillary materials, devices, results, know-how, and all rights relating to the protection of trade secrets and confidential information; design rights and industrial property rights; mask works, software, all code including source code, object code, firmware, Usage Data; and any other proprietary rights relating to intangible property. Other than as explicitly stated hereunder, no license, express or implied, in or to the Platform, Services and Intellectual Property of C8 Health, is granted to You under these terms.
7.2 The terms of this Agreement do not grant You any rights to C8 Health’s trademarks, trade names, design marks or service marks.
7.3 Confidentiality. Each party, on behalf of itself and its agents, employees and representatives (collectively, “Representatives”) shall hold and treat in confidence all confidential and proprietary information it learns regarding the other party’s business and any other confidential and proprietary information disclosed by such other party hereunder (“Confidential Information”). Each party and its Representatives shall utilize the other party’s Confidential Information disclosed hereunder for the sole limited purpose of the Subscription Services in accordance with this Agreement. Without prior written consent from the other party, neither party nor any of its representatives shall disclose any of the other party’s Confidential Information in any manner whatsoever, in whole or in part, nor use any such Confidential Information other than for the aforementioned purpose, unless compelled by law (and then only to the minimum extent necessary). If a party receives any legal request for any Confidential Information, such party will provide the other party, without undue delay, a copy of such request, in order to give such other party an opportunity to respond or object before the party that received the request turns over such information. The undertakings of this Section 6.3 shall not apply to information that (i) becomes generally available to the public other than as a result of a disclosure by the receiving party or its Representatives; (ii) was available to the receiving party on a nonconfidential basis prior to its disclosure to the receiving party by the disclosing party as can be evidenced by receiving party’s dated records; (iii) becomes available to the receiving party on a nonconfidential basis from a source other than disclosing party, provided such source was entitled to make the disclosure to the receiving party; or (iv) was independently developed by the receiving party or its employees without any use or reference to such Confidential Information.
7.4 C8 Health INDEMNIFICATION.
7.5 C8 Health shall indemnify and hold You and your respective officers, directors, employees and successors and permitted assigns (“Indemnified Parties”) harmless from and against any costs and damages actually awarded against the Indemnified Parties by a competent court in a final judgment, as a result of, and defend the Indemnified Parties against, any third-party claim that the Platform, the Subscription Services, or any portion thereof, directly infringes such third party’s Intellectual Property rights. Such obligation is subject to: (i) the Indemnified Parties promptly notifying C8 Health in writing of any such claim; (ii) C8 Health having the ability to assume sole control of the defense and/or settlement of such claim; (iii) the Indemnified Parties furnishing to C8 Health, on request, all reasonable information available to the Indemnified Parties for such defense; and (iv) the Indemnified Parties not admitting fault with respect to any such claim and/or making any payments or concessions with respect to such claim without the prior written consent of C8 Health. C8 Health shall (i) keep the Indemnified Parties duly informed in connection with the litigation and/or settlement negotiations, and (ii) not execute any settlement covenant that imposes any liability or obligations on the Indemnified Parties without the prior written consent from the relevant Indemnified Parties.
7.6 Should the Platform, or any part thereof, become, or in C8 Health’s opinion be likely to become, the subject of any infringement claim as specified above, then C8 Health will, at its own option and expense either: (i) procure the right to continue using the Platform and/or Subscription Services without infringement; (ii) replace or modify the Platform and/or Subscription Services without non-negligibly reducing its functionality, so that it becomes non-infringing; or (iii) if (i) or (ii) cannot be achieved with by using reasonable commercial efforts, C8 Health shall be entitled to terminate your license to use the Platform immediately upon written notice.
7.7 Notwithstanding the foregoing, C8 Health shall have no liability for any claim of infringement which results from (a) the use of the Platform or the Subscription Services in violation of any provision of this Agreement, (b) your failure to install changes, revisions or new releases as instructed or provided by C8 Health at no cost, (c) use of a combination of the Platform, the Subscription Services or any part thereof with other products, equipment, or software not provided or approved in writing for such use under the Documentation or by C8 Health, or (d) modifications of the Platform or the Subscription Services not made by C8 Health, on C8 Health’s behalf or without C8 Health’s prior written consent.
7.8 This section 8 states the exclusive remedy of the Indemnified Parties and the entire liability of C8 Health with respect to infringement claims involving the Platform, the Subscription Services or any part or use thereof.
8. LIMITATION OF LIABILITY
IN NO EVENT WILL C8 Health, NOR ITS AFFILIATES, OR THEIR RESPECTIVE DIRECTORS, OFFICERS, SHAREHOLDER, AND EMPLOYEES’ (“C8 Health’S PARTIES”) AGGREGATE LIABILITY TO YOU, EXCEED THE AMOUNTS PAID BY YOU TO C8 Health UNDER THE APPLICABLE OREDER FORM IN THE 12 MONTHS PRECEDING THE EVENT THAT GAVE RISE TO SUCH LIABILITY. IN NO EVENT WILL C8 Health OR C8 Health PARTIES, HAVE ANY LIABILITY TO YOU FOR ANY INDIRECT, CONSEQUENTIAL, SPECIAL, EXEMPLARY OR INCIDENTAL DAMAGES, INCLUDING WITHOUT LIMITATION DAMAGES FOR LOST PROFITS OR REVENUES, BUSINESS INTERRUPTION, LOSS OF GOODWILL, COMPUTER FAILURE OR MALFUNCTION, LOSS OF DATA OR BUSINESS INFORMATION ARISING FROM THE INSTALLATION, OPERATION, USE OF OR INABILITY TO USE THE SOLUTION, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR IF SUCH POSSIBILITY WAS REASONABLY FORESEEABLE. NO ACTION, REGARDLESS OF FORM, ARISING OUT OF OR RELATING TO THIS AGREEMENT MAY BE BROUGHT AGAINST C8 Health MORE THAN TWELVE (12) MONTHS AFTER THE TERMINATION OR EXPIRATION OF THE APPLICABLE ORDER FORM.
C8 Health will provide maintenance and support as set in the applicable Order Form.
You hereby agree that C8 Health may publicly refer to you and identify you as C8 Health’s client or business partner and use Client’s marks such as name and logo, in its sales presentations, marketing materials and in press releases, and on C8 Health’s website.
In the event any provision or part of the terms of this Agreement is held to be invalid or unenforceable by any court of competent jurisdiction, it shall be amended to the extent required to render it valid, legal and enforceable, or deleted if no such amendment is feasible, and such amendment or deletion shall not affect the enforceability of the other provisions hereof; No waiver of any breach of the terms of this Agreement will be a waiver of any other breach, and no waiver will be effective unless made in writing and signed by an authorized representative of the waiving party. 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. The terms of this Agreement supersede all previous agreements or representations, written or oral, with respect to the subject matter hereof between You and C8 Health. The terms of this Agreement may not be modified or amended except in writing signed by a duly authorized representative of each party. For any issue relevant to C8 Health mHealth Inc., the validity, interpretation, and performance of the terms of this Agreement shall be controlled by and construed under the laws of the State of California, USA as if performed wholly within California and without giving effect to the principles of conflicts of laws. The Parties hereby consent to the exclusive jurisdiction of the courts of California.
For any issue relevant to HeadToToe mHealth Sarl.,The validity, interpretation, and performance of the terms of this Agreement shall be controlled by and construed under the laws of Switzerland as if performed wholly within Switzerland and without giving effect to the principles of conflicts of laws. The Parties hereby consent to the exclusive jurisdiction of the courts of Geneva, Switzerland.