The following terms and conditions (the “Terms”) are part of the agreement between LVIS Corporation, Inc. and/or its Affiliate(s) in the Territory (collectively, “LVIS”) and the customer identified in LVIS’s online order form (“Customer”), that references these Terms (an “Order”). LVIS and Customer are each a Party and collectively the Parties. These Terms and its exhibits, along with the Order, LVIS’s general Terms of Service, and Privacy Policy constitute the Agreement between the Parties. These Terms are effective as to a given Order upon acceptance of that Order in writing by LVIS and such Customer. There shall be no force or effect to any different terms of any related purchase order or similar form provided by Customer even if signed by the Parties after the date hereof.
DEFINITIONS
“NeuroMatch Interface” means any mobile, device, or desktop application(s), website(s), widget(s), and/or other interface(s) or software that LVIS designates or furnishes to Customer or its Users for the purpose of accessing and using the NeuroMatch Services.
“NeuroMatch Services” means the hosted data analysis services enabled by LVIS’s product known as “NeuroMatch,” which LVIS provides through one or more mobile applications, device applications, desktop applications, websites, widgets integrated into Customer’s website, or other interfaces, all as may be described more specifically in the NeuroMatch User Manual.
“Affiliate” means any person or entity that, directly or indirectly, controls, is controlled by or is under common control with a Party for so long as such control exists. For purpose of this definition only, “control” (including, with correlative meaning, the terms “controlled by” or “under common control”) means the actual power, either directly or indirectly through one or more intermediaries, to direct or cause the direction of the management, policies or business affairs of a person or entity, whether by beneficial ownership of more than fifty percent (50%) of the voting stocking (or, where applicable, such lesser percentage which is the maximum allowed to be owned by a foreign entity in a particular jurisdiction) of such person or entity, or by contract or otherwise.
“Customer Data” means data stored in the Customer Systems and made available by Customer to be transmitted or processed in response to Users providing the data to the NeuroMatch Services. Customer Data may include, but is not limited to, electroencephalography (EEG) data and digital video data.
“Customer Systems” means the information systems, programs, and databases operated by Customer, or by third parties on Customer’s behalf, that contain, process, or provide any data or operations that Customer desires to make accessible through the NeuroMatch Services under this Agreement.
“Feedback” means any feedback, ideas, suggestions, feature requests, and similar information regarding the NeuroMatch Services or NeuroMatch Interfaces submitted to LVIS by Customer or Users.
“Gathered Data” means all Customer Data received and analysis of said Customer Data returned by or through the NeuroMatch Services that has been de-identified, as well as aggregated and statistical data derived from the operation of the NeuroMatch Services under this Agreement.
“Intellectual Property” means software, inventions, patents, copyrights, design rights, database rights, trademarks and trade names, domain names, service marks, trade secrets, know-how and other intellectual property (whether registered or unregistered) and all applications and registrations for and extensions and renewals of such rights or any of them, anywhere in the world.
“Regulatory Authority” means the U.S. Food and Drug Administration (FDA), Korean Ministry of Food and Drug Safety (MFDS), European Medicines Agency (EMA), or any other applicable regulatory authority for the approval, monitoring, and regulating of medical devices, including software as a medical device, in the Territory.
“Study” means EEG or digital video Customer Data from one patient during a single recording session (e.g., two EEG recordings acquired at different times for a same patient would be two Studies).
“Territory” is the Territory listed in the Order.
“User” means any individual end user, typically an employee, contractor, or customer of Customer, whom Customer permits or enables to use the NeuroMatch Services under this Agreement.
“User Manual” means any documentation provided (physically or online) by LVIS that provides information, instructions, or product labels for NeuroMatch Interfaces and NeuroMatch Services.
HOSTED SERVICES, LICENSE, UPDATES, AND EQUIPMENT
Hosted Services.Subject to the terms and conditions of this Agreement, including any usage limitations, User quantities, or other parameters specified on the Order, LVIS will provide Customer, through its Users, with access to and use of the NeuroMatch Services solely within the Territory solely for patients within Territory and solely for the indications that NeuroMatch has been approved for by the Regulatory Authority in the Territory. The NeuroMatch Services may be accessed and used only through the NeuroMatch Interface(s) as defined above.
Software License. Subject to the terms and conditions of this Agreement, LVIS hereby grants to Customer a nonexclusive, nontransferable (except as part of a permitted assignment of this Agreement in accordance with Section 16) license to install, operate and use, only on compatible devices owned or controlled by Customer or its Users, any NeuroMatch Interface(s) as furnished by LVIS, solely for the purpose of enabling Users to access and use the NeuroMatch Services in accordance with Section 2.1. The foregoing license extends only for the term of this Agreement and only with respect to Users for which Customer has paid to LVIS all applicable fees (if any) as described in the accompanying Order.
Updates. So long as Customer is in compliance with the terms of this Agreement (including its payment obligations), LVIS will provide access to any updates or upgrades to the NeuroMatch Services and Interface. Any upgrades or updates will be released at LVIS’s sole discretion, and LVIS is not obligated to Customer to release any updates or upgrades to the NeuroMatch Services or Interface. LVIS shall not be liable for lost, altered, or corrupted information, or for non-availability of any NeuroMatch Services.
Links and Non-LVIS Content. The NeuroMatch Services may rely upon, contain, or provide Users with data or other content furnished by Customer or third parties, and/or links to sites or resources furnished by Customer or third parties. LVIS is not responsible for the availability of data, content, sites or resources provided by Customer or third parties, and does not endorse and is not responsible or liable for any content, guidelines, advertising, products, services, or other materials furnished by Customer or third parties and incorporated into or made accessible through the NeuroMatch Services, or that are advertised on or available from Customer or third-party sites or resources. LVIS is not a party to, nor is it responsible for, any transactions or relationships between a User or Customer and any third party, or between a User and Customer.
Software as a Medical Device. The NeuroMatch Interface and Services may be considered a medical device or otherwise regulated by the Regulatory Authority in the Territory. Customer is responsible for ensuring that it is a licensed medical facility and its Users are licensed medical professionals permitted to use NeuroMatch Interface and Services in compliance with all applicable laws and regulations. Customer and its Users must only use the NeuroMatch Interface and Services for the indications approved by the Regulatory Authority in the Territory.
RESTRICTIONS AND RESPONSIBILITIES
General Customer Restrictions. Customer shall not take (or permit any User to take) any action through or in relation to the NeuroMatch Services that is unlawful or is prohibited by any applicable laws or regulations. Without limiting the foregoing, Customer will not do (or permit any User to do) any of the following through or in relation to the NeuroMatch Services:
any act that would constitute a breach of privacy (including uploading or disclosing private information without the concerned individual’s consent) or any other rights of individuals, whether such rights arise out of applicable laws and regulations or Customer’s contractual obligations;
using the NeuroMatch Services for any indications that are not approved by the Regulatory Authority in the Territory;
permitting access to the NeuroMatch Services for use by anyone other than licensed healthcare providers;
using the NeuroMatch Services to defame or libel LVIS, its employees, or other persons or acting in such a way that brings into disrepute the good name of LVIS;
uploading files that contain viruses or that may otherwise cause damage to the data, systems, or other property of LVIS or of other persons;
posting or transmitting to or through the NeuroMatch Services any material that would violate the intellectual property rights of others; and
posting or transmitting to or through the NeuroMatch Services any unauthorized material, including but not limited to material that in LVIS’s opinion is likely to cause annoyance or harassment, is detrimental to or in violation of LVIS’s or any third party’s systems or network security, or is libelous, defamatory, racist, obscene, threatening, violent, hateful, pornographic, profane, or unlawful.
Restrictions on Rights. Except to the extent expressly permitted under applicable law, the rights granted to Customer under this Agreement are subject to, and Customer agrees to abide by, the following restrictions:
Customer shall not license, sell, rent, lease, transfer, assign, reproduce, distribute, host or otherwise commercially exploit the NeuroMatch Services, NeuroMatch Interfaces, or any portion thereof (including any content included in or received through the NeuroMatch Services, other than Customer Data);
Customer shall not modify, translate, adapt, merge, make derivative works of, disassemble, decompile, reverse compile or reverse engineer any portion of the NeuroMatch Services, NeuroMatch Interfaces, or User Manual except to the extent (if any) that the foregoing restrictions are expressly prohibited by applicable law;
Customer shall not use any means, including but not limited to scripts or programming, to scrape or mine the data or other content associated with any of the NeuroMatch Services;
Customer shall not use any portion of the NeuroMatch Services or its output in order to build, train, or test a similar or competitive product or service;
except as expressly stated herein, no portion of the NeuroMatch Services, NeuroMatch Interfaces, or User Manual may be copied, reproduced, distributed, republished, downloaded, displayed, posted, transmitted, or used by Customer or any User in any form or by any means or in any given location;
Customer shall not remove or destroy any copyright notices or other proprietary markings contained on or in the NeuroMatch Services, NeuroMatch Interfaces, or User Manual;
if the NeuroMatch Services contain robot exclusion files or robot exclusion headers, Customer agrees to honor them and not use any device, software, or routine to bypass them;
Customer shall not attempt to gain unauthorized access to any portion or feature of the NeuroMatch Services, any other LVIS systems or networks, or any of the products or services provided on, accessed from or distributed through the NeuroMatch Services, nor probe, scan, or test the vulnerability of the NeuroMatch Services or any associated network or breach the security or authentication measures of the NeuroMatch Services; and
Customer will use the NeuroMatch Services and NeuroMatch Interfaces only in connection with its internal business and/or operational purposes for approved indications in the Territory.
Restriction on U.S. Government Rights. To the extent applicable, the NeuroMatch Services and NeuroMatch Interfaces are provided subject to Restricted Rights. Use, duplication or disclosure of NeuroMatch Services and NeuroMatch Interfaces by the U.S. government is subject to restrictions stated in subparagraph (c)(1) of The Rights in Technical Data and Computer Software clause at DFARS 252.227-7013 or subparagraphs (c)(1)(ii) and (2) of Commercial Computer Software – Restricted Rights at 48 CFR 52.227-19.
Reservation of Rights. Customer’s and its Users’ rights with respect to the NeuroMatch Services, NeuroMatch Interfaces, and the User Manual are limited to those expressly granted in this Agreement. LVIS and its licensors, suppliers and service providers reserve all other rights in relation to the NeuroMatch Services and NeuroMatch Interfaces.
Customer Responsibilities. In addition to Customer’s obligations under other provisions of this Agreement, Customer shall:
provide all notices and disclosures and obtain all consents and authorizations required (including those required under applicable privacy and data protection laws) for Customer’s collection and processing of Customer Data, and to permit LVIS to access and process the Customer Data and provide Users with access to Customer Data through the NeuroMatch Services;
provide to Users all notices and disclosures and obtain from Users all consents and authorizations required to permit LVIS to collect, process, and retain any information from such Users that LVIS requires in order to provide them with access to the NeuroMatch Services, and to permit LVIS to collect, process, maintain, and use Gathered Data in accordance with the terms of this Agreement;
review, and ensure Users review, the User Manual;
maintain (and, if necessary, obtain from third parties at Customer’s expense) access to Customer Systems and Customer Data that Customer wishes to be accessed by the NeuroMatch Services;
maintain (and ensure that all Users maintain) the confidentiality of Customer’s and its Users’ access credentials for the NeuroMatch Services, and Customer will be responsible for any use of the NeuroMatch Services using those credentials;
provide LVIS with all information necessary to configure the NeuroMatch Services and to log and verify the NeuroMatch Services, and otherwise cooperate as necessary with LVIS in relation to the integration and use of the NeuroMatch Services with Customer Systems and Customer Data; and
inform LVIS as soon as Customer becomes aware of any malfunctions or errors in the NeuroMatch Services, patient injuries, adverse events, and any issues required to be reported to any applicable Regulatory Authority in the Territory.
LVIS Responsibilities. In addition to LVIS’s obligations under other provisions of this Agreement, LVIS shall:
provide Customer with commercially reasonable access to use the NeuroMatch Services;
provide access to the User Manual (either digitally or at least one physical copy);
operate the NeuroMatch Services in compliance with applicable laws and regulations governing its performance of this Agreement;
provide commercially reasonable error-correction and technical support for the NeuroMatch Services
provide commercially reasonable efforts to maintain EEG data uploaded to the NeuroMatch Services by Customer for one year and maintain digital video data uploaded to the NeuroMatch Services by Customer for two months; and
maintain the security and privacy of transactions and data processed through the NeuroMatch Services in compliance with applicable laws and regulations.
USERS
Access Management. Customer is responsible for managing User access to the NeuroMatch Services, including by (a) registering Users, (b) providing LVIS with a list of Users’ names, email addresses, and/or other pertinent information required by LVIS, and (c) updating this list of Users to keep it current (and where appropriate removing access for each User to the NeuroMatch Services). Customer will not allow Users to share access credentials for the NeuroMatch Services.
User Terms. All Users’ access to and use of the NeuroMatch Services will be subject to LVIS’s NeuroMatch end user terms provided in Exhibit A (which will be available for review by Users within the NeuroMatch Services when they log in), as they may be updated by LVIS from time to time upon notice to Customer (the “User Terms”), except to the extent, if any, that such User Terms conflict with the terms of this Agreement.
User Compliance. Customer shall ensure that all Users comply with the User Terms and this Agreement and shall terminate (or request LVIS terminate) the NeuroMatch Services access credentials of any User who does not comply with the User Terms or this Agreement or whose relationship with Customer terminates. As between Customer and LVIS, Customer shall be responsible for Users’ acts or omissions in relation to the NeuroMatch Services, or in violation of the terms of this Agreement, as if they were Customer’s own acts or omissions. LVIS may (but is not obligated to) deny or suspend any User’s access to the NeuroMatch Services without notice to Customer if LVIS, in its sole discretion, believes that the User’s use of the NeuroMatch Services is unauthorized or would violate any provision of this Agreement or the User Terms.
User Support and Other Interactions. LVIS may, in its discretion, provide Users with login assistance or other basic support in accordance with LVIS’s then-current standards and policies, but has no obligation to provide individual Users with technical support or other assistance in relation to their use of the NeuroMatch Services. Customer will be responsible for all User interactions outside of the NeuroMatch Services, including fielding and addressing all User complaints and technical issues unless explicitly stated otherwise in this Agreement.
FEES
Generally. Customer shall pay to LVIS the fees set forth in the Order. LVIS may revise the fees and/or introduce or discontinue fees from time to time; provided, however, that any such change will take effect no sooner than thirty (30) days after Customer is advised of such change.
Payment Terms. Customer will pay all fees in accordance with the schedule and other payment terms (if any) stated in the Order. If Customer fails to pay any fees by the applicable due date, LVIS shall have the right to suspend its services under this Agreement, including suspending access to the NeuroMatch Services, removing Customer Data from the NeuroMatch Services, and removing any equipment.
Taxes. All fees due by Customer under this Agreement are exclusive of all taxes and other government fees including, but not limited to, Goods and Services Tax (GST). Customer is responsible for payment of all applicable taxes and government fees.
CONFIDENTIALITY AND PROTECTED INFORMATION
Definition. As used in this Agreement, “Confidential Information” means all proprietary information disclosed by one Party (the “Discloser”) to any other Party (the “Recipient”), whether before or after the Effective Date and whether disclosed orally, in writing or through review of records, data, materials, facility visits or otherwise, that is designated as confidential or that reasonably should be understood by the Recipient to be confidential. Customer’s Confidential Information includes any non-public Customer Data that Customer furnishes to LVIS under this Agreement. LVIS’s Confidential Information includes any source code, algorithms, APIs, and other non-public elements of the NeuroMatch Services that LVIS discloses to Customer. In addition, the terms and conditions (including pricing) of this Agreement will be treated as the Confidential Information of both Parties.
Exclusions. Confidential Information does not include information or material that (a) is now, or hereafter becomes, through no act or failure to act on the part of the Recipient, generally known or available; (b) is or was known by the Recipient at or before the time such information or material was received from the Discloser, as evidenced by a contemporaneous writing; (c) is furnished to the Recipient by a third party that is not under an obligation of confidentiality to the Discloser with respect to such information or material; or (d) is independently developed by the Recipient, as evidenced by a contemporaneous writing.
Restrictions on Disclosure and Use. The Recipient shall hold Confidential Information in strict confidence and shall not disclose to third parties or use such Confidential Information for any purpose except to fulfill its obligations and exercise its rights under this Agreement. The Recipient shall take all reasonable measures to protect the confidentiality of the other Party’s Confidential Information in a manner that is at least as protective as the measures it uses to maintain the confidentiality of its own Confidential Information of similar importance but in any event using reasonable care. Notwithstanding the foregoing, the Recipient may disclose the other Party’s Confidential Information (a) to its employees and personnel who have a need to know such information, provided that each such person is under a duty of nondisclosure that is at least as restrictive as the confidentiality and nondisclosure provisions herein, and (b) to the extent the Recipient is legally compelled to disclose such Confidential Information, provided that the Recipient shall (where possible) give advance notice of such compelled disclosure to the other Party, and shall cooperate with the other Party in connection with any efforts to prevent or limit the scope of such disclosure or use of the Confidential Information.
DATA AND INTELLECTUAL PROPERTY
LVIS Intellectual Property. LVIS and, where applicable, its third-party licensors retain all rights, title and interest in and to (a) the NeuroMatch Services and NeuroMatch Interfaces, and any content (other than Customer Data) included in or made available through the same by LVIS, and all improvements, modifications, enhancements or derivative works of the foregoing; (b) all other LVIS Confidential Information; (c) all Feedback, Gathered Data (except to the extent it contains Customer Data or personally identifiable information), and any reports and analytics generated by LVIS; and (d) all other Intellectual Property owned or controlled by LVIS at any time.
Customer Intellectual Property. Customer retains all rights, title and interest in and to (a) Customer Data; (b) Customer Systems; (c) Customer Confidential Information; and (d) all other Intellectual Property owned or controlled by Customer before receiving access to the NeuroMatch Services; and (e) all other Intellectual Property owned or controlled by Customer on or after receiving access to the NeuroMatch Services that was acquired or developed independently of LVIS or LVIS’s Intellectual Property.
License to Customer Intellectual Property. Customer, on behalf of itself and Users where applicable, grants to LVIS and its applicable subcontractors and service providers a non-exclusive, nontransferable (except as part of a permitted assignment of this Agreement in accordance with Section 16), royalty-free license to: (a) use, reproduce, modify, adapt, and display all Customer Data in order to provide the NeuroMatch Services as contemplated under the Agreement, and in order to monitor, evaluate, and improve LVIS’s technologies, products and services, provided such activities do not involve disclosure to third parties in violation of Section 6.3; and (b) transmit or otherwise make available the Customer Data to Users or third parties in accordance with work-flows or specifications furnished or approved by Customer, or otherwise in fulfillment of Customer’s instructions.
Customer Data. Customer Data provided to the NeuroMatch Services for analysis should be considered by Customer to be a copy of Customer Data, and Customer must not rely on the NeuroMatch Services for primary storage and retention of Customer Data. LVIS will not be liable to Customer for any loss of Customer Data, and Customer is solely responsible for maintaining Customer Data for Customer’s use and compliance with any applicable laws.
Gathered Data. Subject to compliance by LVIS to applicable laws, Customer acknowledges and agrees that LVIS may log and store all Gathered Data. LVIS has no obligation to furnish any of the Gathered Data to Customer except on a per request basis as required by law, and will be free to retain, process, use, and disclose the Gathered Data for any lawful purposes, including but not limited to the development and improvement of LVIS’s products and services; provided, however, that to the extent any Gathered Data includes any personally identifiable information, LVIS will de-identify such Gathered Data prior to any use or disclosure or otherwise refrain from using or disclosing such personally identifiable information without proper authorization from the affected individual(s) (other than use or disclosure in the course of providing the NeuroMatch Services for Customer and its Users). All reports, documentation and other materials prepared by LVIS based on or incorporating de-identified, aggregated, or other non-identifying Gathered Data shall be owned solely by LVIS.
Data Privacy and Security. The Parties acknowledge that the Customer Data and/or Gathered Data may contain personal information that is covered by national or local privacy and/or data-protection laws or regulations within the Territory. Each Party agrees to comply with such laws and regulations as they apply to its collection, storage, processing, use, disclosure, and/or protection of such data (provided, in the case of LVIS, that Customer has fulfilled its applicable responsibilities set forth in clauses (a) and (b) of Section 3.4). For example, if applicable to the Territory, Customer and LVIS will comply with the European Union General Data Protection Regulation, United States of America Health Insurance Portability and Accountability Act (HIPAA), or Korea Personal Information Protection Act. If required by applicable law, LVIS and Customer will enter into a Business Associate Agreement (as defined by HIPAA) or other applicable agreement as provided in Exhibit B.
Feedback. Customer agrees that LVIS will own and be free to use (or not use) any Feedback. Customer irrevocably assigns and agrees to assign to LVIS all rights, title, and interest in and to such Feedback, and will cause any Users to do the same as needed to give effect to the intent of the preceding sentence. Without limiting the foregoing, LVIS’s rights in the Feedback will include the rights to use, reproduce, perform, display, distribute, adapt, modify, re-format, create derivative works of, and otherwise commercially or non-commercially exploit in any manner any and all Feedback, and to permit others to do the same, without any compensation or other obligations to Customer or any User. Customer and Users are under no obligation to provide any Feedback to LVIS, except as provided in Section 3.4(g).
TERM AND TERMINATION
Agreement Term. The term of this Agreement begins on the Effective Date indicated on the Order and (unless earlier terminated as set forth below in Section 8.2) will continue for an initial period of one (1) year from that date, or (if applicable) such other initial period as may be specified in the Order associated with this Agreement. Thereafter, this Agreement will automatically renew for successive one (1) year periods unless and until a Party gives notice of its intent not to renew at least sixty (60) days before the expiration of the initial term or then-current renewal period.
Early Termination. Either Party may terminate this Agreement for a material breach by the other Party that, if curable, remains uncured thirty (30) days after delivery of written notice of such breach. LVIS may terminate this Agreement for any or no reason with sixty (60) day’s prior written notice. LVIS may terminate this Agreement immediately upon written notice, if in LVIS’s reasonable judgement, any new law or any amendment to a then-existing law makes the performance of this Agreement unlawful or technically or commercially infeasible.
Effect of Termination. Upon any termination or expiration of this Agreement, LVIS shall have no further obligation to provide any services under this Agreement, and Customer and all Users must stop use of the NeuroMatch Services and NeuroMatch Interfaces. Each Party shall, upon request (and subject to LVIS’s rights to retain Gathered Data), promptly return to the other Party the Confidential Information of the other Party then in its possession or certify in writing to the other Party that such Confidential Information has been destroyed. The following terms of this Agreement shall survive termination or expiration for any reason: Section 6 (Confidentiality), Section 7 (Data and Intellectual Property), Section 8.3 (Effect of Termination), Section 10 (Warranties and Liability), Section 11 (Indemnification), Section 13 (Dispute Resolution and Law), and Sections 15-21. Termination or expiration of this Agreement shall not release Customer from the obligation to make payment of all amounts then or thereafter due and payable hereunder.
RELATIONSHIP OF PARTIES
Independent Contractors. Each Party shall be deemed to be and shall be an independent contractor and, as such, no Party (and none of its personnel) shall be entitled to any benefits applicable to employees of the other Party.
No Agency. Unless specified herein, no Party is authorized or empowered to act as an agent for or legal representative of the other Party for any purpose and shall not on behalf of the other have any right, power or authority to enter into any contract, warranty, or representation as to any matter, or create any obligation or responsibility of any kind, express or implied on behalf of the other.
WARRANTIES AND LIABILITY
Mutual Warranties. Each Party represents and warrants that it has obtained all necessary approvals and authority to enter into and perform this Agreement.
Disclaimer of Warranties. TO THE FULLEST EXTENT PERMITTED BY LAW, THE NEUROMATCH SERVICES, NEUROMATCH INTERFACES, AND ANY OTHER SERVICES AND MATERIALS PROVIDED BY LVIS UNDER THIS AGREEMENT ARE PROVIDED “AS IS” AND, EXCEPT FOR THE EXPRESS WARRANTIES SET FORTH IN SECTION 10.1, LVIS MAKES NO WARRANTIES OF ANY KIND WITH RESPECT TO THIS AGREEMENT, THE NEUROMATCH SERVICES, NEUROMATCH INTERFACES, OR SUCH OTHER SERVICES OR MATERIALS, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE. WITHOUT LIMITING THE FOREGOING, LVIS DISCLAIMS ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT, AND WARRANTIES ARISING FROM ANY COURSE OF DEALING OR USAGE OF TRADE. LVIS DOES NOT WARRANT THAT THE NEUROMATCH SERVICES ARE ERROR FREE OR WILL MEET CUSTOMER’S REQUIREMENTS.
Limitation of Damages. Notwithstanding anything to the contrary in this Agreement and in so far as permitted under applicable laws, LVIS’s total and cumulative liability under this Agreement, however arising, shall not exceed the amount of fees received by LVIS under this Agreement during the twelve (12) months preceding the event(s) giving rise to a claim.
Exclusion of Damages. TO THE FULLEST EXTENT PERMITTED BY LAW, IN NO EVENT WILL LVIS BE LIABLE TO CUSTOMER FOR ANY SPECIAL, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL DAMAGES, OR FOR ANY LOST PROFITS, LOSS OF USE, LOSS OF DATA OR LOSS OF GOODWILL, OR FOR THE COSTS OF PROCURING SUBSTITUTE PRODUCTS, ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR THE USE OR PERFORMANCE OF THE SERVICES OR MATERIALS PROVIDED BY LVIS HEREUNDER, WHETHER SUCH LIABILITY ARISES FROM ANY CLAIM BASED UPON BREACH OF CONTRACT, BREACH OF WARRANTY, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR OTHERWISE, AND WHETHER OR NOT LVIS HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE.
Failure of Essential Purpose. The Parties agree that the limitations specified in this Section 10 will survive and apply even if any limited remedy specified in this Agreement is found to have failed of its essential purpose.
Basis of Bargain. The Parties expressly acknowledge and agree that LVIS has set its prices and entered into this Agreement in reliance upon the limitations of liability specified herein, which allocate the risk between LVIS and Customer and form a basis of the bargain between the Parties.
INDEMNIFICATION
By LVIS.
LVIS will indemnify, defend and hold harmless Customer and its affiliates, officers, employees, and agents from and against any claims, damages and losses arising from or relating to a third-party claim that the NeuroMatch Services, as furnished by LVIS under this Agreement, infringe or misappropriate such third party’s copyright, trade secret, or patent or trademark rights; provided, however, that LVIS shall have no responsibility if the alleged infringement or misappropriation arises from: (i) any Customer Data or other content, data, or business logic furnished, requested, specified, or approved by Customer or a User; (ii) modifications to the NeuroMatch Services made by anyone other than LVIS or its agents, if a claim would not have occurred but for such modifications; (iii) the combination, operation or use of the NeuroMatch Services with services, equipment, devices, software or data not supplied by LVIS, if a claim would not have occurred but for such combination, operation or use; (iv) any failure to comply with LVIS’s instructions; or (v) improper or unauthorized use of the NeuroMatch Services, or any violation of this Agreement or the User Terms by Customer or any User.
If use of the NeuroMatch Services or any portion thereof is, or in LVIS’s opinion is likely to be, enjoined due to the type of claim specified in Section 11.1(a) above, then: (i) LVIS may, at its sole option and expense, procure for Customer the right to continue using the NeuroMatch Services or portion thereof under this Agreement, or replace or modify the NeuroMatch Services or portion thereof so that it is non-infringing and substantially equivalent in function; and (ii) if the options under clause (i) are technically or commercially infeasible, LVIS may terminate Customer’s rights and LVIS’s obligations hereunder with respect to the NeuroMatch Services and refund to Customer a prorated portion of the fees (if any) that Customer pre-paid for the period affected by such termination.
THE PROVISIONS OF THIS SECTION 11.1 SET FORTH LVIS’S SOLE AND EXCLUSIVE OBLIGATIONS, AND CUSTOMER’S SOLE AND EXCLUSIVE REMEDIES, WITH RESPECT TO INFRINGEMENT OR MISAPPROPRIATION OF THIRD-PARTY INTELLECTUAL PROPERTY RIGHTS.
By Customer. Customer will indemnify, defend and hold harmless LVIS and its affiliates, officers, employees, agents, subcontractors, and service providers from and against any claims, damages and losses arising from or relating to: (i) any Customer Data or other content, data, or business logic furnished to LVIS by Customer or Users under this Agreement; or (ii) Customer’s or any User’s use or misuse of the NeuroMatch Services, in each case except to the extent the claim is of a type for which LVIS is responsible under Section 11.1.
Procedure. Each Party's indemnity obligations are subject to the following: (i) the aggrieved Party will promptly notify the indemnifier in writing of the applicable claim; (ii) the indemnifier will have sole control of the defense and all related settlement negotiations with respect to the claim (provided that the indemnifier may not settle or defend any claim unless it unconditionally releases the aggrieved Party of all liability); and (iii) the aggrieved Party will cooperate fully to the extent necessary, and execute all documents necessary for the defense of such claim.
COMPLIANCE WITH LAWS
Generally. Each Party shall at all times have all permits and licenses required by any governmental unit or agency and will comply with all international, national, state, regional and local laws and regulations applicable to such Party’s activities contemplated under this Agreement (including, in Customer’s case, all laws pertaining to its or its Users’ use of the NeuroMatch Services’ output).
Export Control. Intellectual Property, NeuroMatch Services, Confidential Information or data arising from this Agreement may be subject to regulations that relate to the export of technology or technical data. Customer acknowledges that LVIS may be subject to U.S., EU, and/or other export or trade regulations, and Customer will not export or otherwise provide any LVIS Intellectual Property, LVIS Confidential Information, NeuroMatch Services, or LVIS data arising from this Agreement to any destination, person or entity, or use the same for any prohibited activity or purpose, in violation of applicable export control laws or regulations.
Anti-Corruption. In connection with the negotiation and performance of this Agreement, the Parties will comply with all applicable anti-bribery laws (including, without limitation, the U.S. Foreign Corrupt Practices Act of 1977, the Korea Improper Solicitation and Graft Act of 2016, and the UK Bribery Act 2010).
DISPUTE RESOLUTION AND LAW
Efforts to Resolve Amicably. In the event of any dispute or disagreement arising between the Parties in relation to this Agreement or the rights and obligations of the Parties hereunder (“Dispute”), the Parties shall, in good faith, meet and discuss the Dispute, and use their best endeavors to amicably resolve the same, failing which the Dispute shall in the first instance be referred to the following officers for resolution:
LVIS: Tom Baxter (tbaxter@lviscorp.com)
Customer: [Customer name indicated on the Order]
The respective officers named above shall, in good faith, convene to attempt to resolve the Dispute within thirty (30) days of their receipt of written notification of the same.
Arbitration. Any Dispute which cannot be resolved in accordance with Section 13.1, any controversy or claim arising out of or relating to this Agreement, or the breach thereof, shall be exclusively and finally determined by arbitration administered by the American Arbitration Association (“AAA”) in accordance with its Commercial Arbitration Rules. The place of arbitration shall be Santa Clara County, California. The Parties consent to the exclusive jurisdiction AAA in Santa Clara County, California and hereby waive any objection based on forum non conveniens, and any objection to venue of any arbitration instituted pursuant to this Section 13.2. The number of arbitrators shall be one. Notwithstanding any contrary provisions in the Rules, each Party shall bear its own costs and expenses of the arbitration, and the Parties to the dispute shall bear fees and costs for the arbitrator in equal proportion unless the arbitrator determines the fees and costs should be borne by one of the Parties. The arbitrator may not award or assess punitive damages against a Party
Governing Law. This Agreement and its subsequent variations shall be deemed to be made in the State of California of the United States of America and shall be subject to, governed by and interpreted in accordance with the laws of the State of California for every purpose.
Injunctive Relief. Nothing in this Section 13 shall affect either Party’s right to seek an immediate remedy of an injunction, specific performance or similar court order to enforce the defaulting Party’s obligations. The Parties hereby agree to submit irrevocably to the non-exclusive jurisdiction of the state and federal courts of Santa Clara County in the State of California, and hereby waive any objection based on forum non conveniens, and any objection to venue, in relation to the aforesaid injunction, specific performance or similar court order.
FORCE MAJEURE
Generally. A Party shall not be liable for any delay in performing or failure to perform its obligations under this Agreement (other than Customer’s obligations to pay fees owing hereunder) if such delay or failure results from a Force Majeure Event (as defined below), provided that such Party shall, whenever possible, resume that obligation as soon as the Force Majeure Event ceases. The Party whose performance is prevented or delayed by a Force Majeure Event shall give each other Party written notice thereof, specifying the matters constituting the Force Majeure Event and the likely duration of the prevention or delay.
Suspension of Obligation. Each Party’s obligations under this Agreement which are affected by the Force Majeure Event (other than Customer’s payment obligations) shall be suspended and to the extent that performance of such obligations were prevented or delayed by the Force Majeure Event, and the affected Party shall be granted a fair and reasonable extension of time to enable it to perform its obligations.
Termination. If the Force Majeure Event continues for a period exceeding three (3) months from the date of notification under Section 14.1, any Party may terminate this Agreement by written notice in accordance with Section 8.2.
Definition. “Force Majeure Event” means any circumstance or event beyond the reasonable control of a Party which results in such Party being unable to observe or perform on time its obligation under this Agreement.
NOTICES
Any notice or communication required or permitted under this Agreement shall be made in writing and shall be deemed duly served if delivered personally or if sent by electronic mail (with confirmation of receipt) or by prepaid registered post or recognized international express delivery service (with confirmation of delivery) to the addressee as stated herein for the Party concerned, or at such other address as the Party to be served may have notified the other Party for the purposes of this Agreement.
If to LVIS:
LVIS
2600 East Bayshore Road
Palo Alto, CA 94303 USA
Attention: Tom Baxter
Email: tbaxter@lviscorp.com
If to Customer:
The contact information provided in the Order
ASSIGNABILITY
Except as expressly provided for in this Agreement, neither Party may assign any right or novate, charge, delegate, sub-license or sub-contract any obligation or otherwise dispose of or transfer any of its rights or obligations under this Agreement without the written permission of the other Party, which permission may not be unreasonably withheld or delayed. Notwithstanding the foregoing, LVIS may assign this Agreement in its entirety, without consent of Customer, in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets or business to which this Agreement relates. Subject to the foregoing, this Agreement shall bind and inure to the benefit of the Parties and their respective successors and permitted assigns. Any attempted assignment in violation of this provision shall be void.
WAIVER
No waiver by a Party hereto of any breach or default of any of the covenants conditions, stipulations, obligations or provisions contained or implied in this Agreement herein set forth shall be deemed a waiver as to any subsequent or similar breach or default.
SEVERABILITY
Generally. If any term or condition or provision of this Agreement or the application of any such term, condition or provision shall be held by a court of competent jurisdiction to be wholly or partly invalid, illegal, or unenforceable or a violation of any applicable law, statute or regulation of any jurisdiction, in any respect, the same shall be deemed to be deleted from this Agreement and shall be of no force and effect, and the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired thereby, provided that the intent of the Parties in entering into the Agreement is not materially affected thereby.
Negotiation. Notwithstanding the aforesaid, in the event of such deletion, the Parties hereto shall negotiate in good faith in order to agree to terms which are mutually acceptable and satisfactory alternative provision(s) in place of the provision(s) so deleted.
ENTIRE AGREEMENT
Unless otherwise specified, this Agreement and the various Exhibits referred to therein (all of which shall be deemed to form part of this Agreement) constitute the entire agreement between the Parties concerning the subject matter hereof. All prior written agreements respecting the subject matter hereof are void. No amendment to this Agreement shall be binding on the Parties unless agreed to and executed in writing thereto by the Parties.
NO THIRD-PARTY BENEFICIARIES
Generally. Customer and LVIS intend for the terms and provisions of this Agreement to benefit solely Customer and LVIS. Nothing in this Agreement is to be construed as conferring third-party beneficiary rights on any other person or entity.
Please note that a copy of Exhibit A Individual terms will be emailed to you after accepting this document. The terms will need to be accepted for each NeuroMatch user.
EXHIBIT A – INDIVIDUAL USER TERMS
Last Revised: September 23, 2024
LVIS Corporation (“LVIS,” “we,” or “us”) is focused on empowering doctors and frontline medical workers around the world, and we have partnered with your institution or organization (as our customer) to provide you (a “User”) with access to NeuroMatch software (the “NeuroMatch Services”). Your use of the NeuroMatch Services is governed by the contract that we have signed with your institution or organization (the “Agreement”) in addition to the terms and conditions outlined in this document (the “User Terms”).
By clicking ‘I accept’ or accessing or using the NeuroMatch Services via a mobile application, web application, or any other interface provided by us or your institution or organization, you agree to be bound by the Agreement, and User Terms. If you do not agree, please do not use the NeuroMatch Services.
Should you have any questions about the Agreement, please check with your institution or organization, or feel free to write to us attermsofservice@lviscorp.com and we can put you in touch with your institution or organization representative.
Account Information and Security
Your institution or organization is paying for you to use NeuroMatch Services. You are required to register an account in order to access and use the NeuroMatch Services. This account registration is based on the contact information that your institution or organization provides to us. You are fully responsible for the activities of your account and maintaining the confidentiality of account access information. In using the NeuroMatch Services, you agree to immediately notify us and your institution or organization of any compromise to your account access information or any other breach of security. We are not liable for your failure to maintain the security of your account access information.
Medical Disclaimer
NeuroMatch Services are for the use of clinical professionals authorized by their institution or organization solely for indications approved by regulatory authority in your country (e.g., the FDA in the U.S. or the MFDS in Korea). NeuroMatch Services are not a replacement for experienced clinical or professional judgment. To the full extent permitted by law, LVIS cannot and will not be held legally, financially, or medically responsible for decisions made using the NeuroMatch Services or any associated content, data, clinical tools, equations, algorithms, or resources.
Acceptable Use
When using the NeuroMatch Services, you must conduct yourself properly and appropriately in light of all applicable ethical, legal, and professional requirements and duties. We and your institution or organization reserve the right to terminate or suspend your account in any circumstances where we or they believe it is warranted. Without limiting the terms above, you agree in particular to abide by the following requirements and restrictions in relation to the NeuroMatch Services.
You will:
Carefully read the user manual and any other documentation provided by us or your institution regarding NeuroMatch
Comply with all applicable laws and governmental regulations, including, but not limited to, all privacy, patient care, intellectual property, and export control laws and regulations
Comply with all applicable rules and policies of your institution or organization
Treat other individuals with respect when interacting through the NeuroMatch Services
Obtain (or make sure your institution or organization has obtained) all required consents, authorizations, and permissions to upload or otherwise provide data to the NeuroMatch Services
Use the NeuroMatch Services only in connection with your relationship with your institution or organization
Use the NeuroMatch Services only in your country for patients residing in your country and only for indications for which NeuroMatch Services have been approved in your country
Promptly notify the appropriate people at your institution or organization in the event you become aware of any malfunction or error in the NeuroMatch Services or patient adverse events.
You will NOT:
Falsely state or otherwise misrepresent your affiliation with any organization, person, or other entity
Falsely assume the identify of any person or entity or allow another person or entity to access a your account or assume your identity
Violate any applicable laws or the rights of another person, including but not limited to privacy, publicity, and intellectual property rights
Collect information or other personal information of others through the NeuroMatch Services by any means for the purposes of sending unsolicited communications
Advertise or offer to sell or buy any goods or services or perform any other form of solicitation not expressly authorized by your institution or organization or LVIS
Promote or assist any criminal or unethical activity or enterprise
Obtain or attempt to access or otherwise obtain any information, confidential or otherwise, through any means not intentionally provided through the NeuroMatch Services
Defame or libel LVIS, its employees, or other persons or act in a way that brings into disrepute the good name of LVIS or your institution or organization
Upload files that contain viruses or that may otherwise cause damage to the data, systems, or other property of LVIS or of other persons
Bypass or disable any robot exclusion files or headers used by the NeuroMatch Services
Attempt to gain unauthorized access to any portion or feature of the NeuroMatch Services or any LVIS systems or networks, or probe, scan, or test the vulnerability of the NeuroMatch Services or any associated network, or breach the security or authentication measures of the NeuroMatch Services
Access the NeuroMatch Services through any means other than the interface(s) provided by us or your institution or organization, or use any means to scrape or mine any data or other content associated with any of the NeuroMatch Services
Use the NeuroMatch Services in order to build, train, or test a similar or competitive product or service
Post or transmit to or through the NeuroMatch Services any unauthorized material, including but not limited to material that in our, or your institution or organization’s, opinion is likely to cause annoyance or harassment, is detrimental to or in violation of LVIS’s or any third party’s systems or network security, or is libelous, defamatory, racist, obscene, threatening, violent, hateful, pornographic, profane, or unlawful.
Intellectual Property
The NeuroMatch Services constitute, contain, and are powered by our proprietary software, algorithms, and other intellectual property. You agree not to license, sell, rent, lease, transfer, assign, reproduce, distribute, host or otherwise commercially exploit our intellectual property, in whole or in part. You also agree not to modify, translate, adapt, merge, make derivative works of, disassemble, decompile, reverse compile or reverse engineer our intellectual property, in whole or in part. You will not remove or destroy any copyright notices or other proprietary markings on the NeuroMatch Services or their output.
We have authorized your institution or organization, rather than you directly, to access and use the NeuroMatch Services as outlined in our Agreement. Your institution or organization may allow you to exercise those rights (while they remain in effect) on its behalf, but you do not receive any separate or additional rights from LVIS under the Agreement or these User Terms. We reserve all other rights to our intellectual property.
Customer Data and Gathered Data
Your institution or organization retains any ownership or other rights it may have with respect to any data it makes accessible to you through the NeuroMatch Services unless they expressly told you otherwise. Subject to applicable law, the data received from you and the data returned by or through the NeuroMatch Services, as well as aggregated and statistical data derived from the use of the NeuroMatch Services, may be retained and used by us for any lawful purpose, including but not limited to the development and improvement of our products, including the NeuroMatch Services.
For more information about how we protect your privacy and data, please refer to the Agreement.
Feedback
You are free to tell us what you think of the NeuroMatch Services! Before you do, you should know that we will be free to use (or not use) any suggestions, ideas, and other feedback you provide, without any compensation or other obligations to you. You hereby irrevocably assign and agree to assign to us all rights, title, and interest in and to such feedback. However, you are under no obligation to provide any feedback to us, except for problems and adverse events as noted above.
Non-LVIS Content
The NeuroMatch Services may rely upon, contain, or provide you with data or other content furnished by your institution or organization or third parties (collectively referred to below as “other parties”), and/or links to sites or resources furnished by other parties. We are not responsible for the availability of data, content, sites or resources provided by other parties, and we do not endorse and are not responsible or liable for any content, guidelines, advertising, products, services, or other materials furnished by other parties and incorporated into or made accessible through the NeuroMatch Services, or that are advertised on or available from other parties’ sites or resources. We are not a party to, nor are we responsible for, any transactions or relationships between you and any other party.
Availability of NeuroMatch and Services
LVIS aims to keep the NeuroMatch platform available twenty-four (24) hours a day, seven (7) days a week, and to maintain saved information. We also aim to provide your institution or organization with advanced notice of scheduled unavailability due to maintenance or other events. However, we shall not be liable to you for lost, altered, or corrupted information or non-availability of the NeuroMatch Services, with or without warning.
Disclaimers and Limitations of Liability
Our Agreement with your organization or institution may include various warranties between us and them. BUT AS BETWEEN US AND YOU, THE NEUROMATCH SERVICES ARE PROVIDED “AS IS” WITH ALL FAULTS, AND TO THE FULLEST EXTENT PERMITTED UNDER APPLICABLE LAW, WE DISCLAIM ALL REPRESENTATIONS, WARRANTIES, AND CONDITIONS, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE ARISING (INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS, ACCURACY, AVAILABILITY, OR NON-INFRINGEMENT). IN NO EVENT WILL WE BE LIABLE TO YOU FOR ANY INCIDENTAL, CONSEQUENTIAL, OR OTHER INDIRECT DAMAGES. OUR TOTAL CUMULATIVE LIABILITY TO YOU IN RELATION TO THE NEUROMATCH SERVICES OR THESE USER TERMS, FOR ALL CLAIMS AND REGARDLESS OF THE THEORY OF LIABILITY, WILL NOT EXCEED US$100.
Class Action Waiver
To the fullest extent permitted under applicable law: (a) you agree to bring any legal claims against us or our affiliates or representatives solely on an individual basis, and (b) you waive any rights to initiate, maintain, or participate in any class action or similar proceedings against us or our affiliates or representatives, whether as a representative, as a class member, or in any other capacity.
Modifications to User Terms
We may modify these User Terms at any time upon notice to you or your organization or institution, or by posting the modified version online so that it is readily accessible through the NeuroMatch Services, and your continued use of the NeuroMatch Services will constitute your acceptance of the modified User Terms in full. Please check regularly so you are aware of the most recent version (as indicated by the “Last Revised” date above).
Notices and Communications
You acknowledge and agree that we may provide notices and other disclosures to you electronically (with the same effect as a paper copy) via notifications in the NeuroMatch Services, or by posting on our website, or by emailing you at any email address provided to us by you or your organization or institution. You also agree that we may record any communications that you have with us (by telephone, email, text, or otherwise) and that the recordings may be kept and used for training and support purposes, for product or service development purposes, as a record of your interactions with us, and as evidence in any legal or arbitration proceedings related to you that may occur.
Miscellaneous
You may not transfer your access to the NeuroMatch Services to any other person, nor may you assign or delegate any of your rights or obligations under these User Terms, and any attempt to do so will be void. No waiver by us of any rights or remedies under these User Terms will be effective unless made in writing and signed by our authorized representative. These User Terms are governed by the laws of the State of California of the United States of America, without regard to any conflicts-of-laws rules to the contrary. These User Terms and applicable provisions of the Agreement, are the entire agreement between us and you with respect to the subject matter hereof. Any finding that a provision of these User Terms is invalid, illegal or unenforceable will not diminish the effect of any other provisions.
Should you have any further questions about these User Terms, please feel free to write to us attermsofservice@lviscorp.comand we can put you in touch with your representative.
