TERMS OF USE

Terms of Use

Last Updated: September 1, 2024

These Terms of Use (“Terms”) are an agreement between Aidoc, Inc., a Delaware Corporation, with its principal place of business at 442 5th Avenue #2618 Manhattan, NY 10018, USA (“Company”), and you (the individual executing the applicable Order Form and/or accessing or using the Software or Services) and the entity you represent (“Customer”) that govern Customer’s use of the Software and Services. Each of Company and Customer shall be individually referred to herein as a “Party”, and collectively as the “Parties”. By using the Software and/or Services or executing an Order Form, Customer agrees to be bound by these Terms. You represent to us that you are lawfully able to enter into contracts and, if you are entering into these Terms on behalf of an entity, that you have legal authority to bind that entity. Company reserves the right, at its sole discretion, to make changes to portions or all these Terms at any time. Such changes shall be effective as soon as they are posted on this webpage. Customer is responsible for checking these Terms periodically for changes. Customer’s continued use of the Software and/or Services means that Customer agrees to any new or modified provision of these Terms.

All Exhibits attached hereto are incorporated herein by reference and made part of these Terms:

a. Exhibit A: Definitions
b. Exhibit B: Service Level Agreement
c. Exhibit C: Business Associate Agreement

1. PURPOSE AND PRECEDENCE

These Terms apply to the provision of the Software and Services by Company to Customer, as described in detail in any Order Form. All Order Forms, together with these Terms, shall collectively constitute the “Agreement”. In the event of a conflict between these Terms and an Order Form, these Terms shall control, unless explicitly stated otherwise in the applicable Order Form, and in that case the conflicting terms and conditions in such Order Form would apply to that Order Form.

2. GRANT OF RIGHTS

2.1

Use of Software and Services. Subject to the terms and conditions set forth in the Agreement and timely payment of the Fees, as well as the execution of one or more Order Forms, Company shall grant Customer a limited, revocable, non-exclusive, non-transferable, non-sublicensable right to enable only its Authorized Users in the Permitted Facilities to access and use the Software and Services, during the Subscription Term set forth in the applicable Order Form and within the scope of the Subscription and Entitlements granted to Customer under the applicable Order Form, provided that in each case such use and access is in a manner commensurate with the intended use of the Software and Services as prescribed by the Agreement, Order Form and applicable documentation provided by Company, and solely for the internal business purposes of Customer and not for the benefit of any third party healthcare facility.

2.2

Reservation of Rights. Other than the limited rights explicitly granted under the Agreement, Customer shall have no other rights, express or implied, in the Software and/or Services, or any Company Materials (as defined below), and Company reserves all such rights. Nothing in the Agreement constitutes a waiver of Company’s Intellectual Property Rights under any law.

3. SCOPE AND USE OF SOFTWARE AND SERVICES

3.1

Subscription and Entitlements. Customer shall be entitled to utilize the Software and Services on a Subscription-basis, solely within the scope of the Subscription, which includes the Entitlements, set forth in the Order Form(s). If Customer exceeds any Entitlement for two (2) consecutive months during the applicable Subscription Term, Customer will be charged for the Company-calculated monthly overages in the exploitation of Entitlements for such period and will thereafter be automatically moved to and billed at the next-higher Entitlement tier according to pricing established by Company for the remainder of the Subscription Term. Entitlements cannot be decreased during the applicable Subscription Term.

3.2

Subscription Expansion. Customer may, at any time during the applicable Subscription Term, extend the Subscription’s scope by purchasing additional products and/or functionalities offered by Company or increasing the Entitlements in the Subscription, subject to execution of a written addendum or amendment to the Order Form or an alternative Order Form, at a price to be determined and specified in that addendum or amendment or alternative Order Form (prorated for the portion of the Subscription Term remaining at the time the Subscription is extended).

3.3

Functionality. The Software is provided primarily by means of SaaS. Clinical Data, performance and usage data, that is de-identified in accordance with HIPAA (such de-identified data is referred to herein as “Production Data”) will be processed in Company’s analysis cloud server for analysis and sent back to the applicable physician workstations and/or mobile application for reidentification. Clinical Data may be processed on the Customer’s premises or in secure and HIPAA compliant data centers of Company’s CSP (Cloud Service Provider) for the purpose of providing the Software and Services and in compliance with applicable laws.

3.4

Usage Limits

3.4.1

Usage Restrictions. Customer shall not, and shall not allow any third party (including without limitation its Authorized Users) to: (a) distribute, modify, translate, create derivative works of, or reproduce, the Software and/or Services; (b) decompile, reverse engineer or disassemble the Software and/or Services and/or any part thereof; (c) remove, obscure or alter any of Company’s and/or its licensors’ Marks, copyright notices or other proprietary notices from the Software; (d) disclose to a third party the results of any internal performance testing or benchmarking studies of, or about, the Software and/or Services; (e) develop any products, modules, add-ons or other applications, features or functionality based upon or otherwise utilizing, or create any derivative work of, the Software and/or Services and/or any part thereof; (f) use the Software and/or Services to transmit information or material in violation of third party rights (including without limitation privacy rights or Intellectual Property Rights); (g) use the Software and/or Services for malicious or illegal purposes, or otherwise in violation of applicable laws or regulations; (h) attempt to breach the security of the Software and/or Services, circumvent, disable or otherwise interfere with security-related features of the Software and/or Services, perform any form of hacking of the Software and/or Services, or attack the Software or Services in any way whatsoever; (i) interfere with, circumvent, manipulate, impair or disrupt the operation, integrity, performance and/or functionality of the Software and/or Services; (j) use the Software and Services other than as permitted in the Agreement, work around or circumvent any technical limitations in the Software and/or Services or enable features or functionalities of the Software and/or Services that are otherwise disabled or inaccessible; and/or (k) take any action that would, or that would be reasonably likely to, subject the Software to any freeware, open source or similar licensing or distribution models, including through linking to the Software.

3.4.2

Assigning Authorized Users. The Software and Services may be used only by the specific Authorized Users assigned by Customer to use the Software and Services. Customer shall not assign or allow anyone other than the Authorized Users to use the Software or Services, or any components thereof. Customer hereby acknowledges and agrees that: (i) the login credentials of each Authorized User are personal, may only be used by the specific Authorized User to which they were assigned, and may not be shared with any other individual (including other Authorized Users); and (ii) except as set forth in the applicable Order Form(s), a Licensed Physician User’s identification may only be reassigned by Customer to a new Licensed Physician User replacing the one who will no longer use the Software and Services. Customer shall not allow any Authorized User to use the Software or Services for the Authorized User’s own personal use or in any manner other than on behalf of Customer. Customer shall at all times be responsible for the acts and omissions of its Authorized Users with respect to the Software and Services, and any breach of the Agreement by an Authorized User shall be considered a breach by Customer. Customer shall at all times be responsible for: (a) ensuring its Authorized Users’ compliance with the applicable terms of the Agreement, including, without limitation, the use restrictions set forth in Section ‎3.4.1 (Usage Restrictions) and confidentiality terms in Section ‎9 (Confidential Information); and (b) the acts and omissions of its Authorized Users with respect to the Software and Services. Customer will defend and indemnify Company from and against any claims brought by an Authorized User against Company or its Affiliates in connection with the Software or Services or otherwise in connection with the Agreement and will pay losses, damages, fees, fines and penalties finally awarded by a court of competent jurisdiction or agreed in a settlement in connection with such claims. Without derogating from the above, the Software and Services shall be used by Customer solely at Permitted Facilities.

3.5

Suspension or Modification for Regulatory Compliance. Company may suspend or modify the Software or Services or any part thereof as may be required to comply with applicable law or regulatory guidance, or as Company may determine is necessary for regulatory purposes. Company will use commercially reasonable efforts to provide advance electronic notice (e.g., email) prior to implementing any suspension or modification under this Section ‎3.5 (Suspension or Modification for Regulatory Compliance) which would materially alter the Software or Services, except that notice will not be required if it would cause Company to violate legal requirements.

3.6

Temporary Suspension. Company may temporarily suspend the Software or Services or any part thereof upon electronic notice (e.g., email) to Customer in the event that (a) Customer is in breach of the Agreement; (b) Customer’s use of the Software or Services poses a security risk; or (c) any charge payable by Customer pursuant to the Agreement is thirty (30) days or more overdue. Any such suspension under this Section ‎3.6 (Temporary Suspension) will only last as long as the issue giving rise to the suspension persists (i.e., for the duration of the security risk, breach or non-payment). Any suspension hereunder shall be without limitation to any other rights or remedies available to Company.

3.7

Support, Maintenance and Additional Services. Company will provide support, maintenance and additional Services in accordance with the service level agreement attached as Exhibit B to the Agreement.

4. BUSINESS ASSOCIATE AGREEMENT

The Parties hereby enter into and will comply with the Business Associate Agreement attached hereto as Exhibit C (“BAA”) in the context of any processing of PHI. In the event of any conflict, contradiction, discrepancy to misalignment between the provisions of this Agreement and the BAA, the BAA shall prevail. PHI shall not be considered Confidential Information under this Agreement.

5. CUSTOMER RESPONSIBILITIES

Customer acknowledges and agrees that the allocation of a designated server on Customer’s premises for the hosting of certain parts of the Software (“Server”), permitting the secure remote access of Company, its Affiliates and their licensors to the Server andt ensuring the data feeds to the Server, including but not limited to order and results from radiology, laboratory, and nursing, are conditions precedent to the provision of the Software and Services. Customer will: (a) secure and provide to Company and its Affiliates all rights, licenses and authorizations required to access and use the Server, Clinical Data and resources (including without limitation its computer and communications networks, personnel, workspace, equipment and facilities), and ensure the cooperation and performance of its employees and contractors, as necessary to enable Company to receive and generate all data and information and perform all activities required to provide the Software and Services in accordance with the Agreement; (b) remain responsible for its Authorized Users’ compliance with the Agreement in accordance with Section ‎3.4.2 (Assigning Authorized Users); (c) remain responsible for the accuracy, quality and legality of Clinical Data, the means by which Customer acquired Clinical Data and its transfer to Company; (d) use commercially reasonable efforts to prevent unauthorized access to or use of Software and Services, and notify Company promptly of any such unauthorized access or use thereto/of; (e) use the Software and Services only in accordance with the Agreement and applicable laws and government regulations; (f) as between the Parties, remain responsible for Customer’s Applications as provided in Section ‎6 (Customer’s Applications) below and comply with any technical requirements provided by Company to allow the integration and interoperability, and ensure non-interference, of Customer’s Application with the Software and Services; (g) regularly update the Server with operating system patches and best industry standard anti-virus tools; (h) remain responsible for ensuring that the network hosted by the Server has intrusion detection and intrusion protection solutions; (i) take commercially reasonable efforts to protect its Server from any hackers, intruders or any other unauthorized access, including without limitation, any and all actions by its mobile application users, and apply a security policy which shall include any and all required infrastructure, network, firewall settings, and security controls; (j) use reasonable efforts to promptly inform Company of any breaches, intrusions, hacking and/or security incidents on its network or server; and (k) remain responsible for the operation, security and maintenance of the Server and of its applications and information technology environment in which the Server is located and in which the Services are performed, and for protecting and backing up its systems, networks, applications, content, and data used in connection with the Software and Services. If Company’s mobile application is provided as part of the Software and Services, Customer hereby agrees that: (A) it will not consider Company to be in breach of any of its obligations under the Agreement by reason of providing the mobile application, only where such obligations are not compatible with features or functionalities of the mobile application; and (B) it will be solely responsible for its Authorized Users and any other third party accessing and using the mobile application and it will remain responsible for ensuring that all of its Authorized Users of the mobile application protect their accounts and devices; and (C) if applicable, it may use an identity provider system that manages identity information and provides authentication services on its behalf (“Customer’s IDP”) to access the mobile application, and if it chooses to so, in which case: (i) Customer will be solely responsible and liable for the policies and performance of the Customer’s IDP and Customer’s IDP’s compliance with the requirements of applicable law, as well as for the implementation of sufficient information security safeguards to protect against unauthorized access to the mobile application through Customer’s IDP; (ii) Customer acknowledges that Company has no control over Customer’s IDP and is not responsible for the Customer’s IDP, or for Customer’s use thereof; (iii) Customer will remain solely responsible for revoking the access of any individuals who are or were Authorized Users and whose access to the mobile application should be revoked; (iv) Customer hereby waives any legal or equitable rights or remedies regarding the foregoing; and (v) Company disclaims any and all liability arising out of Customer’s IDP, which Customer may elect to implement at its own risk.

6. CUSTOMER’S APPLICATIONS

Customer acknowledges that it may be able to view, access, link to, and/or use third-party software and/or services used by Customer which were not provided by Company (collectively, “Customer’s Application(s)”) via the Software and/or Services, including without limitation, by way of integration with the Software and/or Services. For the avoidance of doubt, once Customer requests Company to enable and allow the connection or integration with a Customer’s Application, or access to such Customer’s Application, it is hereby agreed such action and/or request is Customer’s instruction under the Agreement to do so. Customer hereby agrees and acknowledges that: (a) Customer is solely responsible and liable for receiving all the required approvals for allowing interaction and integration of the Software and/or Services with Customer’s Applications, including without limitation by executing the relevant contractual documents to this effect; (b) Company has no control over Customer’s Applications; (c) Company does not assume any responsibility for the content, terms of use, policies, actions or practices of any Customer’s Applications, or for Customer’s use thereof, including, without limitation, any use and/or processing of data by Customer’s Applications; (d) Company expressly disclaims all warranties regarding, the accuracy, appropriateness, usefulness, safety, or non-infringement of, or relating to, Customer’s Applications; and (e) Customer hereby waives any legal or equitable rights or remedies regarding the foregoing.

7. INNOVATION SOLUTIONS

From time to time, Company may, at its sole discretion, offer to Customer access to certain software solutions and related services that are not generally made commercially available by Company, on an evaluation basis for no additional fees (“Innovation Solutions”). In such event, to the extent the Parties mutually agree in writing that Innovation Solutions will be provided, Company grants Customer a limited, non-exclusive, non-transferable, non-assignable, non-sublicensable, revocable license, to access and use the Innovation Solutions solely for internal and non-clinical use solely for the period and in the scope agreed by the Parties in writing (“Innovation Rights”). The Innovation Rights shall terminate (and Customer shall cease all access and use of the Innovation Solutions) upon the earlier of (a) the termination or expiration of the Agreement; (b) the termination or expiration of the period of time agreed in writing by the Parties; or (c) upon notice of termination by Company to Customer, which Company may provide for any reason. The Innovation Solutions shall be considered Software pursuant to this Agreement, provided, however, that (i) Customer is aware that given the evaluation and non-commercial nature of Innovation Solutions, Company provides these services “as is” and with no warranty of any kind, and therefore the warranties and indemnification obligations of Company hereunder shall not apply to the Innovation Solutions; (ii) Company and Customer acknowledge that certain Innovation Solutions have not been fully granted all applicable regulatory approvals, and are therefore not made available on a commercial basis; (iii) the Innovation Solutions shall be considered Confidential Information of Company until deemed otherwise by Company; and (iv) Company shall retain all right, title, and interest to the Innovation Solutions. NOTWITHSTANDING ANY PROVISION IN THIS, COMPANY AND ITS AFFILIATES AND THEIR RESPECTIVE LICENSORS SHALL NOT BE LIABLE FOR ANY DIRECT OR INDIRECT DAMAGE, COMPENSATION OR LOSS, ARISING OUT OF OR IN CONNECTION WITH THE INNOVATION SOLUTIONS. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, COMPANY HEREBY DISCLAIMS ANY AND ALL IMPLIED OR STATUTORY WARRANTIES REGARDING THE INNOVATION SOLUTIONS.

8. FEES AND PAYMENT

8.1

Fees. In consideration for the provision of the Software and Services, Customer will pay all Fees specified in the applicable Order Form(s). Fees are exclusive of any direct or indirect taxes, levies, customs, duties, and any other payment imposed in any jurisdiction whatsoever. Notwithstanding anything in the Agreement to the contrary, all payment obligations under the Agreement are non-cancelable and Fees paid are non-refundable.

8.2

Invoicing and Payment. Unless otherwise set forth in the applicable Order Form, Annual Subscription Fees shall be invoiced at the beginning of each Subscription Year. Unless otherwise stated in the applicable Order Form, Fees are due NET thirty (30) days from the invoice date. Customer is responsible for providing complete and accurate billing and contact information to Company and notifying Company of any changes to billing and invoicing information. All invoices are payable in US Dollars without any deductions, offsets, or withholdings. Banking charges (e.g., wire transfer fees) and any VAT and other applicable tax payments (e.g., withholding tax) incurred in connection with a payment made by Customer shall be added to the Fees and paid by Customer so that the actual amount received by Company shall be the total Fees amount. Customer’s payment obligations are a covenant which is independent of other covenants in the Agreement. Customer shall not offset or reduce any payments due by it to Company.

8.3

Overdue Charges. Any invoice that has not been timely paid in accordance with the Agreement shall bear interest at a rate of 1.5% per month or the maximum rate permitted by applicable law, whichever is lower, until such charge is paid. In addition, Customer shall pay all expenses incurred by Company in connection with the collection of any late payments including, but not limited to, legal fees and expenses.

8.4

Escalation. The Parties agree that annual Fees through the Subscription Term may be subject to an annual escalation rate per Subscription Year up to the equivalent of the lower of the Employment Cost Index or 5% on the anniversary date of the Agreement unless otherwise specified in the Order Form. Nothing in this provision will restrict Company’s ability to modify or establish pricing if the Subscription or Entitlements are supplemented or modified, including, without limitation, via the addition of new Software and/or Services.

8.5

Future Functionality. Customer agrees that Fees are not contingent on the delivery of any future functionality or features, or dependent on any oral or written public comments made by Company regarding future functionality or features, other than those functionalities and features explicitly set forth in the Order Form(s).

9. CONFIDENTIAL INFORMATION

9.1

The Receiving Party shall keep the Disclosing Party’s Confidential Information confidence and use its best efforts to protect the Disclosing Party’s Confidential Information from unauthorized use, access or disclosure in the same or a similar manner as the Receiving Party protects its own confidential or proprietary information of a similar nature, and in any event with no less than reasonable care. Furthermore, the Receiving Party shall use Confidential Information solely as permitted in this Agreement, including for receipt, provision, performance and/or use of the Software and/or Services, to exercise its rights and obligations under the Agreement and/or for the administration and management of the Agreement, and in compliance with the Agreement. Accordingly, the Receiving Party shall not disclose any Confidential Information of the Disclosing Party to any third party, except to the Receiving Party’s, and/or its Affiliates’ employees, contractors, licensors and consultants which are bound by confidentiality agreements which are at least as protective as the terms set forth in this Section ‎9 (Confidential Information). The Receiving Party hereby acknowledges that unauthorized disclosure or use of Confidential Information could cause irreparable harm and significant injury to the Disclosing Party that may be difficult to ascertain. Accordingly, the Receiving Party agrees that the Disclosing Party, without prejudice to any other right or remedy that it may have available to it at law or in equity, will have the right to seek and obtain immediate injunctive relief to enforce obligations under the Agreement. Notwithstanding anything herein to the contrary, Receiving Party may disclose Confidential Information pursuant to an order of a court of competent jurisdiction or as otherwise required by law. In such event, Receiving Party will, if reasonably possible under the circumstance of such disclosure, provide Disclosing Party with reasonable advance notice of such disclosure to afford Disclosing Party an opportunity to take legal action to prevent or limit the scope of such disclosure, will cooperate with Disclosing Party in connection therewith and will disclose such Confidential Information only to those parties it is required or compelled to.

9.2

The restrictions and obligations set forth in this Section 9 (Confidential Information) shall survive and remain in effect for a period of five (5) years after expiration or termination of the Agreement.

10. INTELLECTUAL PROPERTY RIGHTS

10.1

Company and its Affiliates and their respective licensors own and retain all right, title and interest (including all Intellectual Property Rights) in: (a) the Software and Services (and related documentation) and any updates, upgrades, modifications, improvements, enhancements, new versions, new releases, corrections (e.g. error corrections, patches and bug fixes), translations and derivative works of or to any of the foregoing; (b) all software, infrastructure, modules, methods, technology, tools, techniques and know how developed by or on behalf of Company its Affiliates and/or their licensors and used in connection with or for the purposes of providing the Software and/or performing Services hereunder; (c) Company’s and its licensors’ Marks; (d) any know-how learned or obtained by Company, its Affiliates and/or their contractors and licensors during the course of providing the Software or Services; (e) all feedback, including all suggestions, comments, ideas or other information related to the Software and/or the Services, provided by Customer to Company (provided that Customer is under no obligation to provide such feedback); (f) Usage Data; (g) any enhancements, derivative works and modifications to any of the foregoing; and (h) and any and all other information, data, documents, materials, works, and other content, devices, methods, processes, hardware, software, and other technologies and inventions, including any deliverables, technical or functional descriptions, requirements, plans, or reports, that are provided or used by Company and its Affiliates in connection with the Software or Services or otherwise comprise or relate to the Software or Services, including all proprietary and Intellectual Property Rights therein ((a) – (h) are collectively referred to as “Company Materials”). Nothing in the Agreement shall constitute or be considered as constituting a transfer or sale or any similar action of any of Company’s Intellectual Property Rights or any part thereof or any other Company Materials.

10.2

Customer owns and retains all right, title and interest (including all Intellectual Property Rights) in: (a) Customer’s Marks; (b) Customer’s pre-existing Intellectual Property Rights as of the beginning of the Term; (c) Clinical Data; and (d) any enhancements and/or modifications thereto which exist independently of and without reference to Company Materials.

11. RESEARCH

The Software and Services may be used for Customer research and publications. Customer will notify Company thirty (30) days prior to submitting for publication any manuscripts developed using the Software and/or Services. If applicable, upon Company’s request, Customer shall remove Company’s Confidential Information and Intellectual Property Rights from the publication.

12. INDEMNIFICATION

12.1

Company will defend Customer from and against all claims brought against Customer to the extent based on a third party claim that the Software licensed by Customer infringes such third party’s trade secrets, patents or copyrights (a “Claim”), and pay damages, fees, fines, and penalties finally awarded by a court of competent jurisdiction or agreed in a settlement in connection with such Claims. Company has no obligation or liability under this Section ‎12 (Indemnification) with respect to any Claim which is based upon or results from: (a) the combination of any Software with any equipment or software not furnished by Company (except for the Server); (b) any unauthorized modification or use of the Software; (c) failure or error related to the Server; or (d) any Innovation Solutions.

12.2

In the event of a Claim, Customer, as a condition of Company’s indemnification obligation, must: (a) give prompt written notice to Company; (b) give Company exclusive control of the defense and settlement of such Claim, provided that Customer may participate in the process with its own counsel at its expense; (c) provide all reasonable assistance to Company (provided that Company reimburses Customer for its reasonable out-of-pocket expenses incurred in providing such assistance); and (d) Company will not settle a Claim without Customer’s prior written consent in a manner which (x) results in an admission of liability by Customer, (y) requires payment of monies by Customer, or (z) requires Customer to take or refrain from taking an action.

12.3

Should the Software become, or in Company’s opinion be likely to become, the subject of any Claim or infringement of a third party’s Intellectual Property Rights, then Company may, at Company’s option and expense, either: (a) procure for Customer the right to continue using such Software; (b) replace or modify it so that it becomes non-infringing; or (c) if neither option is commercially reasonable, in Company’s reasonable business judgment, terminate the Agreement, require Customer to return or cease using the Software and Services and refund Customer on a pro-rata basis for Fees paid in advance for the Software and Services for any future Subscription Term. Without derogating from Company’s defense and indemnification obligations above, this Section ‎12 (Indemnification) states the entire liability of Company with respect to any Claim, and Company shall have no additional liability hereunder or otherwise with respect to any alleged or proven infringement.

13. LIMITED WARRANTIES

13.1

Each Party represents and warrants to the other Party that: (a) it has the right to enter into the Agreement and perform its obligations hereunder in the manner contemplated by the Agreement; (b) the Agreement does not conflict with any other agreement entered into by it; (c) in the performance of its obligations hereunder, it will comply with all applicable laws, regulations and ordinances, including, privacy and security laws; and (d) it has obtained all licenses, authorizations, approvals, consents and/or permits required to perform its obligations or utilize the rights granted under the Agreement and for the use of any Software or Services provided by Company as contemplated under the Agreement.

13.2

Company represents and warrants that the Software shall, during the applicable Subscription Term, substantially meet the specifications thereof set forth in the Agreement; provided, however that Company makes no representations or warranties regarding the Innovation Solutions. Customer represents, covenants and warrants to Company that: (a) it has obtained all licenses, authorizations, approvals, consents and permits required to perform its obligations under the Agreement, including, to provide all appropriate notices and/or obtain all required informed consents and permissions to provide the Clinical Data and any other personally identifiable data provided by Customer in connection with the Software and/or Services (including that of its Authorized Users), and to allow Company and its licensors to use and process such information as permitted under the Agreement and/or as needed to facilitate and enable the provision of the Software and Services; and (b) Customer will procure and maintain any and all ongoing legal bases for allowing Company and its Affiliates to collect, use, and process the personal data in accordance with the Agreement.

14. DISCLAIMER AND LIABILITY

14.1

EXCEPT FOR THE LIMITED WARRANTIES SET FORTH IN SECTION ‎13 (LIMITED WARRANTIES), THE SOFTWARE AND SERVICES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS WITHOUT REPRESENTATIONS OR WARRANTIES OF ANY KIND OR NATURE, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, COMPANY, ITS AFFILIATES AND THEIR RESPECTIVE LICENSORS SPECIFICALLY DISCLAIM ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, OR ARISING FROM A COURSE OF DEALING, USAGE OR TRADE PRACTICE. NEITHER COMPANY, NOR ITS AFFILIATES NOR THEIR RESPECTIVE LICENSORS SHALL BE RESPONSIBLE FOR ANY WARRANTIES AND REPRESENTATIONS MADE BY ANY PARTNER TO CUSTOMER, AND SUCH WARRANTIES AND REPRESENTATIONS ARE THE SOLE RESPONSIBILITY OF SUCH PARTNER.

14.2

NEITHER COMPANY, NOR ITS AFFILIATES NOR THEIR RESPECTIVE LICENSORS SHALL BE LIABLE FOR, OR SHALL HAVE OBLIGATION TO REMEDY, ANY DEFECTS CAUSED DUE OR CONTRIBUTED TO ONE OR MORE OF THE FOLLOWING: (a) ALTERATIONS, ENHANCEMENTS OR REPAIRS OF THE SOFTWARE BY ANY PERSON OR ENTITY OTHER THAN COMPANY, ITS AFFILIATES, AND THEIR RESPECTIVE LICENSORS; (b) MISHANDLING, ABUSE, OR MISUSE OF THE SOFTWARE, INCLUDING IN ANY MANNER WHICH IS NOT IN ACCORDANCE WITH THE APPLICABLE DOCUMENTATION PROVIDED BY COMPANY OR THE AGREEMENT; (c) TECHNICAL PROBLEMS OF THE INTERNET (INCLUDING WITHOUT LIMITATION SLOW INTERNET CONNECTIONS OR OUTAGES); (d) ANY ISSUE THAT IS ATTRIBUTABLE TO CUSTOMER’S HARDWARE (INCLUDING, WITHOUT LIMITATION, THE SERVER) OR SOFTWARE OR CUSTOMER’S INTERNET OR DATA SERVICE PROVIDER; (e) ANY FORCE MAJEURE EVENT; OR (f) DOWN-TIME, ERRORS OR ANY OTHER DAMAGES CAUSED DUE TO TECHNICAL ERRORS CAUSED BY CUSTOMER (INCLUDING WITHOUT LIMITATION, SERVER-RELATED ISSUES).

14.3

NEITHER COMPANY, NOR ITS AFFILIATES NOR THEIR RESPECTIVE LICENSORS OFFER ANY WARRANTY OR MAKE ANY REPRESENTATIONS REGARDING ANY CONTENT, REPORTS, INFORMATION AND/OR RESULTS THAT CUSTOMER OBTAINS THROUGH THE USE OF THE SOFTWARE AND/OR SERVICES (“RESULTS”) OR THAT THE RESULTS ARE COMPLETE OR ERROR-FREE. THE RESULTS DO NOT CONSTITUTE MEDICAL ADVICE AND CUSTOMER UNDERSTANDS THAT IT MUST DETERMINE FOR ITSELF ANY MEDICAL RESULTS OR FINDINGS. CUSTOMER’S USE OF AND RELIANCE UPON THE SOFTWARE AND/OR SERVICES AND/OR RESULTS IS ENTIRELY AT CUSTOMER’S SOLE DISCRETION AND RISK, AND NEITHER COMPANY, NOR ITS AFFILIATES NOR THEIR RESPECTIVE LICENSORS SHALL HAVE ANY LIABILITY WHATSOEVER TO CUSTOMER OR ANY THIRD PARTY IN CONNECTION WITH ANY OF THE FOREGOING. IN ADDITION, SOFTWARE AND SERVICES MAY INCLUDE IMAGE ACQUISITION MONITORING SERVICE FOR FLAGGING SUSPECTED TECHNICAL INADEQUACY, INCLUDING SUSPECTED ARTIFACTS, SUBOPTIMAL BOLUS TIMING, OR AN INADEQUATE FIELD OF VIEW. SUCH FLAGGING DOES NOT CONSTITUTE A MEDICAL DIAGNOSIS, AND ONLY THE REVIEWING PHYSICIAN CAN DETERMINE THAT THE SUSPECTED FLAG CONTAINS A TECHNICAL INADEQUACY.

14.4

NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY AND REGARDLESS OF THE CAUSE OF ACTION (WHETHER BASED ON CONTRACT, TORT, EQUITY OR ANY OTHER THEORY OF LIABILITY WHATSOEVER), IN NO EVENT SHALL EITHER PARTY, ITS AFFILIATES AND/OR THEIR RESPECTIVE LICENSORS BE LIABLE TO THE OTHER PARTY OR ANY THIRD PARTY FOR ANY SPECIAL, INDIRECT, INCIDENTAL, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES, LOSSES, EXPENSES, OR FOR ANY LOSS OF DATA, REVENUE, PROFITS, BUSINESS, GOODWILL, REPUTATION, BUSINESS INTERRUPTION, WORK STOPPAGE, ACCURACY OF RESULTS, COMPUTER FAILURE, MALFUNCTION, FIRE, ELECTRICAL FAILURE OR SHORT CIRCUIT, OR OTHER INTANGIBLE LOSSES, THAT ARISE UNDER OR IN CONNECTION WITH THE AGREEMENT, OR THAT RESULTS FROM THE USE OF, OR THE INABILITY TO USE, THE SOFTWARE AND SERVICES, REGARDLESS OF THE NATURE OF THE CLAIM AND EVEN IF SUCH PARTY, ITS AFFILIATES AND/OR THEIR RESPECTIVE LICENSORS HAVE BEEN APPRISED OF THE LIKELIHOOD OF SUCH DAMAGES OCCURRING.

14.5

THE TOTAL AGGREGATE LIABILITY OF COMPANY, ITS AFFILIATES AND THEIR RESPECTIVE LICENSORS, FOR ALL DAMAGES, COSTS, OBLIGATIONS, EXPENSES OR LOSSES WHATSOEVER (INCLUDING INDEMNIFICATION, PAYMENT OR REIMBURSEMENT OBLIGATIONS (IF ANY)), ARISING OUT OF OR RELATING TO THE AGREEMENT, THE SOFTWARE AND THE SERVICES, SHALL NOT EXCEED THE AMOUNT ACTUALLY PAID TO COMPANY HEREUNDER DURING THE TWELVE (12) MONTHS PRECEDING THE BRINGING OF THE CLAIM. THE LIMITATION IN THIS SECTION ‎14.5 SHALL NOT APPLY TO: (i) COMPANY’S INDEMNIFICATION OBLIGATION UNDER SECTION ‎12 (INDEMNIFICATION); (ii) COMPANY’S INFRINGEMENT OF THIRD PARTY INTELLECTUAL PROPERTY RIGHTS; AND/OR (ii) COMPANY’S WILLFUL MISCONDUCT.

14.6

COMPANY AND ITS AFFILIATES AND THEIR RESPECTIVE LICENSORS SHALL NOT BE LIABLE FOR ANY DIRECT OR INDIRECT DAMAGE, COMPENSATION OR LOSS, ARISING OUT OF OR IN CONNECTION WITH COMPANY’S MODIFICATION OR SUSPENSION OF THE SOFTWARE OR SERVICES PURSUANT TO SECTIONS ‎3.5 (SUSPENSION OR MODIFICATION FOR REGULATORY COMPLIANCE) OR ‎3.6 (TEMPORARY SUSPENSION) HEREOF, INCLUDING WITHOUT LIMITATION CUSTOMER’S INABILITY TO ACCESS OR USE THE SOFTWARE OR SERVICES AS A RESULT OF SUCH MODIFICATION OR SUSPENSION OR ANY NONCOMPLIANCE WITH THE SPECIFICATIONS.

14.7

Customer recognizes and agrees that the warranty disclaimers and liability limitations in these Terms, have been bargained for, form the basis of the Agreement, and will be considered and reflected in determining any amounts to be paid by Customer under any Order Form.

15. TERM; TERMINATION

15.1

Term. The term of this Agreement shall commence upon the earlier of the date Customer first uses the Software and/or Services or the Effective Date of an Order Form, and will remain in effect until terminated in accordance with Section 15.2 (Termination). Each Order Form shall remain effective for the duration of the Subscription Term applicable to that Order Form.

15.2

Termination. Either Party may terminate the Agreement (including, for the avoidance of doubt, all Order Forms) immediately upon written notice if: (a) the other Party is in breach or default of any provision hereunder or any provision of an Order Form, which breach or default is not cured within thirty (30) days of receipt of written notice from the non-breaching Party; or (b) the other Party becomes the subject of any proceeding under any bankruptcy, insolvency or liquidation law, whether domestic or foreign and whether voluntary or involuntary, unless dismissed within 60 days of commencement thereof. For the removal of doubt, unless otherwise set forth in the applicable Order Form, Subscriptions and Order Forms cannot be terminated or cancelled other than by termination of the Agreement according to this Section ‎15.2 (Termination).

15.3

Renewal. Unless otherwise indicated in an Order Form or a new Order Form is entered into between the Parties for the Subscription, following the initial subscription term indicated in the Order Form (“Initial Subscription Term”), the Order Form and Subscription thereunder will renew automatically for successive additional twelve (12) month periods (each, a “Renewal Period”), unless a Party notifies the other Party of its intent not to renew in writing at least thirty (30) days prior to the end of the Initial Subscription Term or the then-current Renewal Period.

15.4

Consequences of Termination. Upon termination and/or expiration of the Agreement, all rights granted by Company to Customer under the Agreement shall terminate, the Subscription Term will end and Customer shall: (a) promptly pay to Company any amounts due and owing to Company in relation to any Software provided and Services performed by Company prior to the date of such termination; (b) cease all use of the Services and the Software; and (c) promptly delete the Software and all data stored on the Server. The following Sections shall survive the expiration or termination of the Agreement: ‎7 (Innovation Solutions) – except that Innovation Rights will in no event extend beyond the Term, 8 (Fees and Payment), 9 (Confidential Information), ‎10 (Intellectual Property Rights), 14 (Disclaimer and Liability), ‎15.4 (Consequences of Termination) and ‎16 (Miscellaneous).

16. MISCELLANEOUS

16.1

Headings. Paragraph headings included herein are for convenience of reference only and shall not modify, define, expand or limit any of the terms or provisions hereof.

16.2

Severability. If any provision of the Agreement is held to be unenforceable for any reason, it shall be adjusted rather than voided, if possible, in order to achieve the intent of the Parties to the fullest extent possible. In any event, all other provisions of the Agreement shall remain valid and enforceable to the fullest extent possible.

16.3

Waiver. No failure or delay by either Party to exercise or enforce any right, power or remedy under the Agreement shall be deemed a waiver of any such right, power or remedy or of any other right, power or remedy under the Agreement.

16.4

Notices. Any notice or other communication made in connection with the Agreement shall be in writing and shall be sent solely by email or sent by both (i) email and (ii) personally delivered or mailed by certified mail to the addresses set out in the Agreement or otherwise agreed mutually by the Parties. All notices shall be in writing and become effective when personally delivered, the next business day following sending an email, or five (5) days following sending certified mail. Such addresses may be changed, from time to time, by means of a notice given in the manner provided in this Section ‎16.4 (Notices).

Notices to Company will be sent to the following addresses:

To: Aidoc, Inc.

442 5th Avenue #2618,

New York, NY 10018

Attn: Legal Department

Email: [email protected]

16.5

Assignment. A Party may not assign or transfer, in whole or in part, or delegate all or any portion of its rights or obligations under the Agreement without the prior written consent of the other Party, except that Company may assign the Agreement without the need to obtain consent to its Affiliates, or to an entity into or with which it is merged, or which purchases all or substantially all the assets of Company. Any prohibited assignment shall be null and void.

16.6

No Third Party Beneficiaries. The Agreement shall be binding and inure solely to the benefit of the Parties (and their respective lawful successors and assigns). Unless stated otherwise, nothing in the Agreement is intended to or shall confer upon any third party any rights, benefits or remedies of any nature whatsoever under or by reason of the Agreement.

16.7

Reference. Company and Customer may release a mutually agreed upon press release, in a form agreed upon by the Parties, to announce their cooperation hereunder. Notwithstanding the foregoing, Company may include Customer’s name and logo, and refer to Customer as a client of Company, including without limitation in Company’s website, social media channels and marketing materials.

16.8

Notice to U.S. Government Customers (if applicable). For U.S. Government procurements, (i) Software is a “commercial” computer software as defined in FAR 12.212, and (ii) “commercial” software and documentation are also provided in accordance with DFARS 227.7202, “Rights in Commercial Computer Software or Commercial Computer Software Documentation”, as applicable, and any successor regulations. Any use, reproduction release, performance, display, or disclosure of the Software or the applicable documentation by the U.S. Government must be in accordance with license rights and restrictions described in these Terms. Notwithstanding the foregoing, the U.S Government agrees that this software qualifies as “commercial” computer software within the meaning of the acquisition regulations applicable to this procurement. These Terms shall pertain to the U.S Government’s use and disclosure of the Software and the applicable documentation, and shall supersede any conflicting contractual terms or conditions.

16.9

Governing Law and Jurisdiction. The Agreement shall be governed and construed in accordance with the law of the State of New York, without regard to conflict of law rules thereof. Any dispute, controversy, or claim arising out of, or in relation to, the Agreement (including, for the avoidance of doubt any Order Form), shall be settled amicably between the Parties. If the dispute cannot be resolved by the Parties amicably, the case shall be finally and exclusively submitted to any competent court located in the State of New York. Each Party irrevocably consents to the exclusive jurisdiction of such court and waives any objection it may have to any proceedings brought in any such court and claim that the proceedings have been brought in an inconvenient forum. To the fullest extent permitted by law, each of the parties hereto irrevocably waives all rights it may have to trial by jury in any action, suit, proceeding, or counterclaim arising out of or relating to the Agreement. Notwithstanding any other provision to the contrary, Company will always have the right, at its sole and absolute discretion, to file a claim or application for injunctive remedies against Customer, in the competent courts of the jurisdiction in which Customer’s domicile is, according to the governing law in such jurisdiction, without reference to the other provisions in this Section ‎16.9 (Governing Law and Jurisdiction).

16.10

Force Majeure. If any performance (excluding payment obligations) under the Agreement by either Party is prevented, hindered, or delayed by reason of a Force Majeure Event, the Party so affected shall be excused from such performance to the extent that, and for so long as, performance is prevented, interrupted, or delayed thereby, provided that such Party so affected shall promptly notify the other Party of the occurrence of such event. If and when performance is resumed, all dates specified in the Agreement and/or in any purchase orders accepted pursuant to the Agreement shall be automatically adjusted to reflect the period of such prevention, interruption, or delay by reason of such Force Majeure Event.

16.11

Entire Agreement. The Agreement represents the entire agreement of the Parties with respect to the subject matter hereof, and supersedes and replaces all prior and contemporaneous oral or written understandings, agreements and statements by the Parties with respect to such subject matter. The Agreement may be amended or modified only by a written instrument duly executed by the Parties. For the avoidance of doubt, any pre-printed provisions on Customer’s purchase orders or other terms referenced from Customer’s purchase orders shall not apply and have no force or effect. Acknowledgment (whether express or implied) by Company of Customer’s purchase orders which contain additional, different, or conflicting terms and conditions shall not constitute acceptance of such terms and conditions by Company. Notwithstanding anything to the contrary, in the event of a conflict, discrepancy or contradiction between the terms of the Agreement and any other agreements between the Parties as pertaining the subject matter of the Agreement, the terms of the Agreement shall prevail. If the Parties enter into any standard printed terms in addition to the Agreement, in the event of discrepancy, inconsistency, gap, ambiguity, or conflicting language between such terms and the Agreement, the Agreement shall prevail.

EXHIBIT A

Definitions

Defined terms, as used in the Agreement and not elsewhere defined in the Agreement, shall have the meanings set forth in this Exhibit A.

Affiliate means any entity which directly or indirectly controls, is controlled by, or is under common control with a Party, where “control” means owning 50% or more of the voting securities of such entity or the ability to direct managerial decisions or board decisions of such entity.

Annual Subscription Fee means the total fees payable by Customer for each Subscription Year.

Authorized Users means specific employees or individual independent contractors of Customer, in each case who are designated, assigned and authorized by Customer to access and use the Software and Services in accordance with the access and use rights set forth in the Agreement.

Clinical Data means PHI received from the Customer containing identifiable patient data and reports transmitted to the Software, including but not limited to images, labs, vitals, scans and textual data.

Confidential Information means all confidential, proprietary or non-public information disclosed by one Party (the “Disclosing Party”) to the other Party (the “Receiving Party”), whether any of the foregoing is disclosed orally or in tangible form, excluding information which the Receiving Party can demonstrate by contemporaneous written evidence: (i) is already in the Receiving Party’s possession at the time of disclosure of such Confidential Information; or (ii) is or later becomes available to the public other than as a result of disclosure by the Receiving Party; or (iii) is lawfully received by the Receiving Party from a third party authorized to make such disclosure and without restriction on use or disclosure; or (iv) the Receiving Party can demonstrate in its records to have independently developed, without breach of the Agreement and/or any use of the Confidential Information; or (v) is approved for release by prior written consent from the Disclosing Party. For the avoidance of doubt: (a) all documents and data provided by Customer, excluding Usage Data, are deemed to be and shall remain Customer’s Confidential Information; (b) all documents, data and information provided by or obtained from Company or created as a result of the Agreement, including without limitation any information related to the Software and Services as well as the content and commercial terms of all Order Forms, are deemed and shall remain Company’s and/or its licensors’ Confidential Information.

Entitlements means the following Subscription metrics:

Licensed Physician Users means Authorized Users who are credentialed physicians. For the avoidance of doubt, Licensed Physician Users shall not include any Authorized Users who are non-physician users, such as radiologic technologists, nurses, and systems administrators.

ii.

Licensed Site means, unless otherwise stated in the Order Form, a Permitted Facility which is a physical healthcare inpatient, acute care facility and for which net patient revenue equals or exceeds thirty million US Dollars (US$30,000,000) annually. For the avoidance of doubt, Permitted Facilities that are owned, leased, or managed facilities, such as outpatient centers, hospital sites, and specialized facilities, in each case that generate less than thirty million US Dollars (US$30,000,000) in net patient revenue annually, are not considered Licensed Sites.

iii.

Annual Image Volume means the total amount of DICOM formatted medical image studies generated by the Licensed Sites. When applicable, the Order Form shall set forth the maximum Annual Image Volume permitted to be transmitted via the Software and Services.

Fees means any fees payable under an Order Form or otherwise in connection with the Agreement, including without limitation, the Annual Subscription Fee and fees for increased Entitlements.

Intellectual Property Rights means all intangible legal rights, titles and interests evidenced by, embodied in, connected or related to: (i) all inventions, whether patentable or unpatentable and whether or not reduced to practice, all improvements thereto, and all patents, patent applications, and patent disclosures, together with all reissuances, continuations, continuations-in-part, revisions, extensions and re-examinations thereof; (ii) all trademarks, service marks, trade dress, logos, trade names, corporate names, domain names together with all translations, adaptations, derivations and combinations thereof, including all goodwill associated therewith, and all applications, registrations and renewals in connection therewith; (iii) any work of authorship, regardless of copyrightability, all compilations, all copyrightable works, all copyrights (including moral rights) and all applications, registrations and renewals in connection therewith; (iv) all mask works and all applications, registrations and renewals in connection therewith; (v) all trade secrets, Confidential Information and business information; (vi) all computer software (including data and related documentation), source code and any other related documentation; and (vii) all other proprietary rights, industrial rights and any other similar rights, in each case on a worldwide basis, and all copies and tangible embodiments thereof, or any part thereof, in whatever form or medium and in any and all applicable jurisdictions.

Marks means logos, trademarks and service marks.

10.

Order Form means an order form in Company’s standard format, quote, statement of work or other similar document that is entered into between Customer and Company or any of their Affiliates, resellers or distributors of Company’s Software and Services specifying, inter alia, the Software and Services to be provided in accordance with the parameters, specifications, scope, and limitations defined thereunder, the Entitlements, the Subscription Term, the applicable Fees, and the payment terms, including any addenda and supplements thereto.

11.

Permitted Facilities means bespoke facilities owned or controlled by Customer (i.e., in which the Customer legally possesses a stake of at least 50% ownership), designated, assigned and authorized by Customer for use of Software and Services in accordance with the access and use rights set forth in the Agreement.

12.

Force Majeure Event means (1) fire, flood, earthquake, explosion, pandemic or epidemic (or similar regional health crisis), or other act of God; (2) strikes, lockouts, picketing, concerted labor action, work stoppages, other labor disturbances, or shortages of materials or equipment, not the fault of either Party; (3) war (declared or undeclared), terrorism, riot, or civil commotion; (4) a change in legal requirements or regulatory guidance; (5) an act of governmental or quasi-governmental authorities; and/or (6) any other matter beyond the reasonable control of the affected Party.

13.

Protected Health Information or “PHI” shall have the same meaning ascribed to the term at 45 CFR § 160.103.

14.

Services means the subscription-based services described in the Order Form and/or provided in connection with the Software described therein, such as maintenance, support, troubleshooting, additional services and professional services provided by Company to Customer under an Order Form or otherwise in connection with the Software.

15.

Software means the proprietary software and platform of Company, its Affiliates and/or their third party licensors (including without limitation, where applicable, AI modules and software of Company’s or its Affiliates’ third party partners provided to Customer by Company), including their associated technology and underlying services and functionalities and any updates, revisions, upgrades and corrections (e.g. error corrections, patches and bug fixes) to the foregoing, and related documentation, as provided by Company to Customer. Without limitation to the foregoing, “Software” may include (to the extent provided in the Order Form) software installed on Customer’s premises, any platform made available on a “Software-as-a-Service” (SaaS) basis, and mobile or web application(s).

16.

Subscription means the limited right to access and use the Software and Services purchased by Customer from Company pursuant to an Order Form, in accordance with the specific products, parameters, specifications, scope and limitations defined in the Order Form.

17.

Subscription Term means the Initial Subscription Term, together with any applicable Renewal Periods.

18.

Subscription Year means a twelve (12)-month period commencing from the Subscription commencement date as set forth in the applicable Order Form and ending twelve (12) months thereafter and each consecutive twelve (12) months until the end of the Subscription Term.

19.

Usage Data means Production Data and aggregated, analytical or de-identified information about usage of the Software by Authorized Users, such as audit logs, pixels, analytical data, de-identified results and conclusions and metadata resulting from Customer’s use of the Software or Services.

EXHIBIT B

Service Level Agreement

1. GENERAL

This Service Level Agreement (“SLA”) sets forth the terms and conditions of the support services provided by the Company or any of its affiliates to the Customer in connection with the Software and Services. This SLA is subject to and made a part of the Terms to which it is attached. All capitalized terms not otherwise defined herein will have the meaning assigned to them in the Agreement.

2. DEFINITIONS

2.1

“Business Hours” means Monday through Friday, 6:00 a.m. to 6:00 p.m.Eastern Time.

2.2

“Errors” means Customer-reported performance issues, bugs, defects, or errors in the Software that can be identified and/or replicated.

2.3

“Support Ticket” means a request for Support Services submitted by Customer through one of the Support Channels.

3. Support Services

Support Services. During the Subscription Term, the Company shall provide Customer training for using the Software, respond to general requests and questions regarding the use of the Software, and assist with questions or issues arising from Errors, including troubleshooting, diagnosis, and recommendations for potential workarounds (“Support Services”). The Support Services shall include:

3.1.1

Monitored email support, available 24 hours a day / 7 days a week.

3.1.2

Remote assistance using a remote desktop and/or a virtual private network when made available to Company by Customer.

3.1.3

Deployment of all Company Software updates when applicable to the applications for Clinical Use in accordance with the executed order form.

The language for all communications related to the Support Services shall be English.

3.2

Support Channels. Customer may submit a Support Ticket by using any of the following methods (“Support Channels”):

3.2.1

By emailing a Support Ticket to: [email protected] [This is the recommended method].

3.2.1

By calling and/or recording a message containing the case details, Customer callback phone number, and email address at the following toll-free support number(s):

US:+18335051777
Europe:+3280076621
Israel and ROW: +972737946878

If the Support Ticket is submitted by email (3.2.1), all responses and updates regarding the progressions, status, and resolution of the Support Ticket will be sent to the email address from which the Support Ticket was submitted.

If the Support Ticket is submitted by calling and/or recording a message (3.2.2), all responses and updates regarding the progressions, status, and resolution of the Support Ticket will be sent to the email provided in the call and/or message.

3.3

Support Ticket Acknowledgement Notice. Following receipt of a Support Ticket, Customer will receive an automated response (via email) confirming receipt of the Support Ticket and containing the Support Ticket number (ID).

3.4

Severity Level of Support Tickets. Following receipt of a Support Ticket, Company’s support team will assess and determine the severity of the Error for which the Support Ticket was opened based on its impact on the use of the Software. Company’s support team may request Customer to provide additional technical information necessary to assess and handle the Support Ticket effectively.

The following table defines the different classification levels:

Severity Level	Definition
Level 1 – Urgent/Critical	An Error that (a) renders the Software completely inoperative; or (b) makes Customer’s use of material features of the Software impossible, with no workaround available.
Level 2 – High	An Error that (a) has a high impact on key portions of the Software, or (b) seriously impairs Customer’s use of material features of the Software, and a workaround cannot reasonably circumvent or avoid the Error on a temporary basis.
Level 3 – Medium	An Error that has a medium-to-low impact on the Software, but Customer can still access and use some functionality of the Services.
Level 4 – Low	An Error that has low-to-no impact on Customer’s access to and use of the Software.

3.5

Expected Response Time. Company will use commercially reasonable efforts to promptly respond to and resolve each Support Ticket submitted by Customer.The following table defines the expected interval between the receipt of a Support Ticket by Company and the initial response by Company (the “Expected Response Time.”):

Severity Level	Expected Response Time
Level 1 – Urgent/Critical	Within thirty (30) minutes during Business Hours. Within two (2) hours outside of Business Hours.
Level 2 – High	Within sixty (60) minutes during Business Hours. Within eight (8) hours outside of Business Hours.
Level 3 – Medium	Within two (2) hours during Business Hours.
Level 4 – Low	Within eight (8) hours during Business Hours.

For the avoidance of doubt, the Expected Response Time specifies the time to begin the investigation and analysis of the Error described in the Support Ticket, not the length of time for resolution. Actual resolution time will depend on the nature of the Error and the required resolution. A resolution may consist of a fix, workaround, or other solution in Company’s reasonable determination.

3.6

Escalation of Support Tickets. Support Tickets will be automatically escalated to Company’s support team leader for further investigation and analysis if not resolved within twenty-four (24) hours from receipt.

3.7

Updates on Support Ticket Status. Company will provide any information reasonably requested by Customer and update Customer on an ongoing basis regarding work performed and progress made by Customer in response to Support Tickets.

4. Customer’s Responsibilities

4.1

Customer will make every effort to triage and/or consolidate support issues through their Company-trained, non-physician staff members when submitting a new case.

4.2

Customer will provide the necessary access to Customer’s network, resources, personnel, and equipment during the mutual investigation and analysis of the Support Ticket. This access includes remotely accessing the Software and Customer’s network, subject to Customer’s security procedures.

4.3

Without derogating from the provisions of Section 4.2, Customer will provide all requested and relevant information to Company and grant direct access to Customer’s malfunctioning systems at Company’s request. Customer shall further provide as much detailed information as possible, including demonstration or replication of the perceived issue to help Company resolve the Error.

5. Boundaries and Exclusions

The services, support, turnaround, and availability commitments of Company under this SLA do not apply to, and Company will not be responsible for failure to meet this SLA resulting from, any of the following causes (“Boundaries and Exclusions”):

5.1

Customer equipment, including third-party computer hardware, software, or network infrastructure, that is not within the sole control of Company.

5.2

Use of the Software in breach of these Terms and/or actions or inactions of Customer (unless undertaken at the expressed directive of Company) or third parties beyond the control of Company.

5.3

Overall internet congestion, slowdown, or unavailability by Customer’s internet service provider.

5.4

Scheduled downtime for maintenance time and/or deployment of Updates or any other planned downtime.

5.5

Force Majeure Event.

5.6

Customer’s failure to comply with Customer’s Responsibilities outlined in Section 4 above and/or Customer’s failure to reasonably cooperate with the investigation and analysis of the Support Ticket, such as lack of response to follow-up questions or reasonable requests for additional information.

EXHIBIT C

Business Associate Agreement

This Business Associate Agreement (“BAA”) is entered into by and between Customer (“Covered Entity”); and Company (“Business Associate”).

WHEREAS, Covered Entity is either a “covered entity” or “business associate” of a covered entity as each are defined under the HIPAA Rules (as defined below);

WHEREAS, in connection with the Software and Services provided in the Agreement, Covered Entity may disclose to Business Associate certain protected health information (“PHI”) that is subject to protection under applicable provisions of: (i) the Health Insurance Portability and Accountability Act of 1996, Pub. L. 104-191, as amended (“HIPAA”); (ii) the privacy standards (at 45 C.F.R. parts 160 and 164, subparts A and E (“the Privacy Rule”)) and security standards (at 45 C.F.R. parts 160 and 164, subparts A and C (“the Security Rule”)) adopted by the U.S. Department of Health and Human Services (“HHS”); (iii) Subtitle D of the Health Information Technology for Economic and Clinical Health Act, Pub. L 111-5 (the “HITECH Act”), including as implemented by 45 C.F.R. part 164, subpart D (the “Breach Notification Rule”) and the regulations published at 78 Fed. Reg. 5566, 5687 (Jan. 25, 2013), adopted by HHS, all as they may be amended from time to time (collectively, “the HIPAA Rules”);

WHEREAS, both Parties intend to protect the privacy and provide for the security of PHI disclosed to Business Associate pursuant to the terms of this BAA and the HIPAA Rules.

NOW, THEREFORE, in consideration of the mutual promises and covenants herein, and for other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the Parties agree as follows:

A. DEFINITIONS

Terms used herein, but not otherwise defined, shall have meanings ascribed by the HIPAA Rules or the Agreement.

“Individual” means the specific person who is the subject of the PHI.

“PHl” has the meaning specified in 45 C.F.R. § 160.103, limited to such protected health information that is received by Business Associate from, or created, received, maintained, or transmitted by Business Associate on behalf of, Covered Entity. All references to PHI in this BAA will include Electronic PHI, as applicable under the HIPAA Rules.

“Successful Security Incident“ means a security incident that results in the unauthorized access, use, disclosure, modification, or destruction of PHI.

“Unsuccessful Security Incident“ means a security incident that does not result in the unauthorized access, use, disclosure, modification, or destruction of PHI (including, but not limited to, pings and other broadcast attacks on Business Associate’s firewall, port scans, unsuccessful log-on attempts, denials-of-service, or malware such as worms or viruses).

B. Permitted Uses and Disclosures of PHI

Business Associate may use and disclose PHI (i) as necessary to provide the Services to or on behalf of Covered Entity and (ii) as permitted by this BAA and the Terms and as required by law.

Proper Management and Administration and Legal Responsibilities. Business Associate may use and disclose PHI for the proper management and administration of Business Associate or to carry out its legal responsibilities, provided that:

(a)

the disclosures are required by law; or

(b)

Business Associate obtains reasonable assurances from the person or entity to whom the PHI is disclosed that: (i) the PHI will be held confidentially and further used and disclosed only as required by law or for the purpose for which it was disclosed to the person or entity; and (ii) the person or entity will notify Business Associate of any instances of which it is aware in which confidentiality of the PHI has been breached.

Marketing/Fundraising. Business Associate shall not, without written authorization from Covered Entity, use or disclose PHI for the purposes of marketing or fundraising. If Covered Entity requests and authorizes Business Associate to engage in these activities, Business Associate shall comply with the applicable provisions of the HIPAA Rules.

No Sale of Protected Health Information. Business Associate shall not directly or indirectly receive remuneration in exchange for an Individual’s PHI unless it is pursuant to specific written authorization by the Individual or subject to an exception established in the HIPAA Rules.

De-identified Information. Business Associate may de-identify PHI in accordance with 45 CFR §164.514 and use and disclose the resulting de-identified information as necessary to provide the Services to or on behalf of Covered Entity and as permitted by this BAA and the Terms.

C. Obligations of Business Associate

Notice to Covered Entity of Unauthorized Use or Disclosure. Business Associate agrees to notify Covered Entity regarding any use or disclosure of PHI of which Business Associate becomes aware that is not provided for or permitted by this BAA or the HIPAA Rules, including breaches of unsecured PHI as required at 45 CFR 164.410 and any Successful Security Incidents, within fifteen (15) business days of discovery. This Section constitutes notice by Business Associate to Covered Entity of the ongoing existence and occurrence of Unsuccessful Security Incidents, for which no additional notice to Covered Entity shall be given or required.

Reporting. In its notice to Covered Entity or promptly thereafter as information becomes available, Business Associate shall provide, to the extent it is reasonably able to do so, (i) the identification of each Individual whose unsecured PHI has been or is reasonably believed by Business Associate to have been accessed, acquired, used, or disclosed during the breach, (ii) a brief description of what happened, including the date of the breach and the date of discovery of the breach, and (iii) a description of the types of unsecured PHI that were involved in the breach.

Implementation of Safeguards. Business Associate shall use appropriate administrative, physical, and technical safeguards, and comply with Subpart C of 45 CFR Part 164 with respect to PHI, to prevent use or disclosure of PHI other than as provided for by this BAA.

Minimum Necessary. Business Associate shall limit uses and disclosures of PHI in a manner consistent with the “minimum necessary” requirements of the Privacy Rule found at 45 C.F.R. § 164.502(b).

Mitigation. Business Associate will mitigate, to the extent practicable, any harmful effect that is known to Business Associate of an unauthorized use or disclosure of PHI by Business Associate in violation of the requirements of this BAA orapplicable law.

Disclosure to Subcontractors. If Business Associate discloses PHI received from Covered Entity, or created, received, or maintained by Business Associate on behalf of Covered Entity, to a subcontractor, Business Associate shall require the subcontractor to agree to substantially similar restrictions and conditions as apply to Business Associate under this BAA. Notwithstanding the foregoing, this Section shall not apply to the extent that Covered Entity has entered into a business associate agreement directly with a subcontractor with respect to the subject matter of this BAA and the Terms.

Individual Rights Regarding Designated Record Sets. If Business Associate maintains a Designated Record Set on behalf of Covered Entity, Business Associate agrees as follows:

(a)

Right to Copy or Inspection. Within thirty (30) business days of receiving a written request from Covered Entity for access to PHI, Business Associate shall make available to Covered Entity PHI in a Designated Record Set as necessary for Covered Entity to meet its obligations under 45 C.F.R. § 164.524. If an Individual submits a request for access to PHI to Business Associate, Business Associate will direct individuals to make such requests with the Covered Entity directly.

(b)

Right to Amendment. Within thirty (30) business days of receiving a written request from Covered Entity to amend an Individual’s PHI, Business Associate shall amend PHI in a Designated Record Set that is in the custody or control of Business Associate, so that Covered Entity may meet its obligations under 45 C.F.R. § 164.526. If an Individual submits a request for amendment to Business Associate, Business Associate will direct Individuals to make such requests with the Covered Entity directly.

Accounting of Disclosures.

(a)

Business Associate shall maintain and, within thirty (30) business days of receiving a written request from Covered Entity, make available the information required to provide an accounting of disclosures to Covered Entity as necessary to satisfy Covered Entity’s obligations under45 CFR 164.528.

(b)

If an Individual submits a request for an accounting of disclosures to Business Associate, Business Associate will direct Individuals to make such requests with the Covered Entity directly.

Internal Practices, Policies and Procedures. Business Associate shall make its practices, books, and records related to use and disclosure of PHI available to the Secretary upon request for the purpose of determining Covered Entity’s compliance with this BAA and the HIPAA Rules.

10.

Covered Entity Obligations. To the extent the Services require Business Associate to carry out one or more of Covered Entity’s obligations under the Privacy Rule, Business Associate shall comply with the requirements of the Privacy Rule that apply to Covered Entity in the performance of such obligations.

11.

Business Associate may not use or disclose PHI in a manner that would violate Subpart E of 45 CFR Part 164 if done by Covered Entity, except as otherwise permitted by this BAA.

D. Obligations of Covered Entity

Covered Entity shall:

Notify Business Associate of any limitation(s) in the notice of privacy practices of Covered Entity under 45 CFR 164.520, to the extent that such limitation may affect Business Associate’s use or disclosure of PHI;

Notify Business Associate of any changes in, or revocation of, the permission by an Individual to use or disclose their PHI, to the extent that such changes may affect Business Associate’s use or disclosure of PHI;

Notify Business Associate of any restriction on the use or disclosure of PHI that Covered Entity has agreed to or is required to abide by under 45 CFR 164.522, tothe extent that such restriction may affect Business Associate’s use or disclosureof PHI;

Obtain all authorizations and consents required by law for all of the uses or disclosures of PHI by Business Associate permitted under this BAA and theTerms; and

Promptly inform Business Associate of any Successful Security Incidents on Covered Entity’s network(s) or server(s) utilized by the Services.

E. Term and Termination

Term This BAA shall continue in effect until the earlier to occur of (i) the expiration or termination of the Terms or (ii) termination pursuant to this Section E.

Termination for Breach. Either Covered Entity or Business Associate may terminate this BAA effective immediately if either Party determines that there has been a material breach or violation of the other Party’s obligations under the BAA and the breaching Party has failed to cure such material breach or violation within thirty (30) business days of being notified by the other Party.

Effect of Termination. Upon termination of this BAA for any reason, Business Associate, with respect to PHI received from Covered Entity, or created, maintained, or received by Business Associate on behalf of Covered Entity, shall:

(a)

Retain only that PHI which is necessary for Business Associate to continue its proper management and administration or to carry out its legal responsibilities;

(b)

Destroy the remaining PHI that the Business Associate still maintains inany form;

(c)

Continue to use appropriate safeguards and comply with Subpart C of 45 CFR Part 164 with respect to PHI to prevent use or disclosure of the PHI, other than as provided for in this Section, for as long as Business Associate retains the PHI;

(d)

Not use or disclose the PHI retained by Business Associate other than for the purposes for which such PHI was retained and subject to the same conditions set out in this BAA; and

(e)

Destroy the PHI retained by Business Associate when it is no longer needed by Business Associate for its proper management and administration or to carry out its legal responsibilities.

Survival. The respective rights and obligations of Business Associate under Section E.3 of this BAA shall survive the termination of this BAA.

F. Miscellaneous

This BAA is hereby incorporated into and made part of the Terms.

Amendments. This BAA may not be changed or modified in any manner except by an instrument in writing signed by a duly authorized officer of each of the Parties hereto. Notwithstanding the foregoing. to the extent that any relevant provision of HIPAA or the HIPAA Rules is amended in a manner that changes the obligations of Business Associate or Covered Entity provided for in this BAA, such changes shall be deemed automatically to apply to and to be incorporated by reference into this BAA. The Parties agree to amend this BAA from time to time as necessary to reflect their agreement to such changes.

Regulatory References. A reference in this BAA to a section in the HIPAA Rules means the section as in effect or as amended.

Interpretation. Any ambiguity in this BAA shall be resolved in favor of a meaning that permits Covered Entity and Business Associate to comply with the HIPAA Rules. The provisions of this BAA shall prevail over the provisions of any other agreement that exists between the Parties that may conflict with, or appear inconsistent with, any provision of this BAA or the HIPAA Rules.

No Agency. Unless the context of the relationship specifically requires otherwise, Business Associate shall not be deemed to be the agent of Covered Entity.

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