THIS SUBSCRIPTION SERVICES AGREEMENT (THE “AGREEMENT”) GOVERNS YOUR ACQUISITION AND USE OF OUR SERVICES. BY ACCEPTING THIS AGREEMENT WHEN EXECUTING AN ORDER FORM THAT REFERENCE THIS AGREEMENT, YOU AGREE TO THE TERMS OF THIS AGREEMENT. IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY AND ITS AFFILIATES TO THESE TERMS AND CONDITIONS, IN WHICH CASE THE TERMS “CUSTOMER” SHALL REFER TO SUCH ENTITY AND ITS AFFILIATES SIGNING AN ORDER FORM. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH THESE TERMS AND CONDITIONS, YOU MUST NOT ACCEPT THIS AGREEMENT AND MAY NOT USE THE SERVICES. CUSTOMER SHOULD CAREFULLY READ THE FOLLOWING TERMS BEFORE EXECUTING AN ORDER FORM. Capitalized terms not defined elsewhere in this Agreement shall have the meaning given to them in the:
Main Terms of Service:
Data Processing Agreement: https://app.aidmed.ai/data-processing-agreement
This Agreement was last updated on January 1st, 2022. It is effective between Customer and AIDMED Sp. z o.o. as of the date Customer accepts this Agreement which acceptance shall occur on the Effective Date of the first Order Form signed by Customer and AIDMED.
AIDMED and Customer hereby agree as follows:
1. Subscription Service. Subject to the terms and conditions of this Agreement and any applicable Order Form(s), and during the Term, AIDMED hereby grants to Customer a non-exclusive, terminable, non-transferable right and license to access and use the Services pursuant to the Agreement, in and under AIDMED’s intellectual property rights, solely for Customer and its Affiliates’ internal business operations and for no other use or purpose. AIDMED shall provide standard Customer Care support for the Service at no additional charge, or provide upgraded Customer Care support if purchased, as set forth in an Order Form(s). The terms of this Agreement shall also apply to updates and upgrades subsequently provided by AIDMED to Customer for the Service. AIDMED shall host the Service and may update the functionality and user interface of the Service from time to time in its sole discretion and in accordance with this Agreement, the Terms of Service as part of its ongoing mission to improve the Service and Customer’s use of the Service.
Unless otherwise provided in the applicable Order Form, the Service is purchased as subscriptions under the foregoing license. Subscriptions may be added during the Term at the same pricing as the underlying subscription pricing, prorated for the portion of the Term remaining at the time the subscriptions are added. Any added subscriptions will terminate on the same date as the underlying subscriptions.
2. Order Forms. The Service shall be ordered by Customer or its Affiliate(s) pursuant to Order Forms. Except as otherwise provided on the Order Form, each Order Form is only valid and binding on the parties when executed by both parties and shall be subject to, governed by, and incorporates by reference the terms and conditions of this Agreement, the Terms of Service. For any order by Customer or its Affiliate(s) for the benefit of Customer’s Affiliate(s), the term “Customer” shall refer to Customer and such Affiliate(s).
3. Term, Fees, Payment & Taxes.
3.1 Term of Agreement. Unless otherwise specified on the Order Form or earlier terminated pursuant to Section 4 hereof, the term of this Agreement shall be twelve (12) months commencing on the Effective Date (the “Initial Term”). Thereafter, the Term shall be extended as set forth in subsequent Order Forms (each successive renewal term, a “Renewal Term” and collectively, the “Term”). If Customer and AIDMED have not approved an Order Form regarding the upcoming Renewal Term prior to the expiration of the then-current Term, the Term shall be automatically extended for successive Renewal Terms of twelve (12) months each, unless either party provides written notice of non-renewal to the other at least thirty (30) days before such expiration.
3.2 Fees and Payment. Customer shall pay AIDMED the fees for the Service (“Subscription Fees”), as specified in each Order Form. All payments shall be made in currency specified in the Order Form. AIDMED reserves the right to change the Subscription Fees and other charges included in an Order Form at any time during the Term of this Agreement by amending the Order Form upon thirty (30) days’ prior written notice to Customer, by email or otherwise. Purchase of additional subscriptions of the Service during a Term, will co-terminate with and be prorated through the end of the then-current Term. Subscription Fees on all subsequent Order Forms and for all Renewal Terms shall be set at then-current AIDMED pricing. Unless otherwise specified in an Order Form, the Subscription Fees shall accrue and will be invoiced and due quarterly in advance.
3.3 Taxes. Subscription Fees do not include any local, state, federal or foreign taxes, levies or duties of any nature, including value-added, sale, use or withholding taxes (“Taxes”). Customer is responsible for paying all Taxes, excluding only taxes based on AIDMED’s net income. If AIDMED has the legal obligation to pay or collect Taxes for which Customer is responsible under this Section, the appropriate amount shall be invoiced to and paid by Customer unless Customer provides AIDMED with a valid tax exemption certificate authorized by the appropriate taxing authority.
3.4 Late Payments. Late payments shall be subject to a service charge equal to 1.5% of the amount due (calculated on a monthly basis) or the maximum amount allowed by law, whichever is less.
4. Termination. Either party may immediately terminate this Agreement and all Order Forms issued hereunder in the event the other party commits a material breach of any provision of this Agreement or the Terms of Service, which breach is not cured within thirty (30) days of written notice from the non-breaching party. Such notice by the complaining party shall expressly state all of the reasons for the claimed breach in sufficient detail to provide the allegedly breaching party a meaningful opportunity to cure such alleged breach. Upon termination or expiration of this Agreement for any reason, Customer and/or its Affiliate(s) shall have no rights to continue use of the Service and will be obliged to return all supplied devices no later than 14 days after such termination. In case of delay in returning AIDMED’s devices the Customer agrees to pay 5EUR per day of delay in returning the devices. If this Agreement is terminated by Customer for any reason other than a material breach by AIDMED, Customer agrees that AIDMED shall be entitled to all of the fees including, without limitation, the Subscription Fees, due under this Agreement for the then-current Term. If this Agreement is terminated as a result of a breach on AIDMED’s part, AIDMED shall refund the pro-rata portion of any Subscription Fees paid by Customer to AIDMED under this Agreement for the terminated portion of the Term.
5.2 AIDMED shall own all right, title, and interest in and to the work product or other deliverables and/or training materials to be provided to Customer hereinafter referred to as the “Deliverables” and related intellectual property rights. Subject to terms and conditions of the Agreement, and during the Term, AIDMED hereby provides Customer with a limited, non-exclusive, non-transferable (except in connection with an assignment, as set forth in Section 9.1 of this Agreement), non-sublicensable, and terminable license to use the Deliverables solely for Customer’s internal operations in connection with its authorized use of the applicable Service. Notwithstanding any other provision of this Agreement to the contrary, nothing contained herein shall be construed to assign or transfer any intellectual property rights in the proprietary tools, libraries, know-how, techniques, and expertise (“Tools”) used by AIDMED to develop the Deliverables. To the extent such Tools are delivered with or as part of the Deliverables, they are licensed, not assigned, to Customer, on the same terms as the Deliverables. The term “Deliverables” shall not include the Tools.
6. Disclaimer of Warranties. AIDMED DOES NOT REPRESENT THAT CUSTOMER’S USE OF THE SERVICE OR TRANSMISSION OF CUSTOMER DATA TO/FROM THE SERVICE WILL BE SECURE, TIMELY, UNINTERRUPTED OR ERROR-FREE OR THAT THE SERVICE WILL MEET CUSTOMER’S REQUIREMENTS. FURTHERMORE, AIDMED DOES NOT REPRESENT THE ACCURACY OF THE INFORMATION OR DATA IN THE SERVICE, OR THAT ALL ERRORS IN THE SERVICE AND/OR DOCUMENTATION WILL BE CORRECTED OR THAT THE OVERALL SYSTEM THAT MAKES THE SERVICE AVAILABLE (INCLUDING BUT NOT LIMITED TO THE INTERNET, THE CLOUD, OTHER TRANSMISSION NETWORKS, AND CUSTOMER’S LOCAL NETWORK AND EQUIPMENT) WILL BE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. THE WARRANTIES STATED HEREIN ARE THE SOLE AND EXCLUSIVE WARRANTIES OFFERED BY AIDMED. THERE ARE NO OTHER WARRANTIES OR CONDITIONS, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION, THOSE OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT OF THIRD PARTY RIGHTS.
EXCEPT AS OTHERWISE STATED HEREIN, THE SERVICE, PROFESSIONAL SERVICES, AND DELIVERABLES PROVIDED TO CUSTOMER ARE PROVIDED TO CUSTOMER ON AN “AS IS” AND “AS AVAILABLE” BASIS, AND FOR COMMERCIAL USE ONLY. CUSTOMER ASSUMES ALL RESPONSIBILITY FOR DETERMINING WHETHER THE SERVICE AND/OR DELIVERABLE(S) OR THE INFORMATION GENERATED THEREBY IS ACCURATE OR SUFFICIENT FOR CUSTOMER’S PURPOSES. THE WARRANTIES STATED IN SECTION 6 ABOVE ARE THE SOLE REMEDIES FOR CUSTOMER, AND EXCLUSIVE OBLIGATIONS OF AIDMED RELATED TO THE PROFESSIONAL SERVICES AND DELIVERABLES TO BE PERFORMED FOR AND DELIVERED TO CUSTOMER PURSUANT TO THIS AGREEMENT AND ANY SOW.
7. Limitation of Liability. IN NO EVENT SHALL EITHER PARTY BE LIABLE TO ANYONE FOR LOST PROFITS OR REVENUE OR FOR INCIDENTAL, CONSEQUENTIAL, PUNITIVE, COVER, SPECIAL, RELIANCE OR EXEMPLARY DAMAGES, OR INDIRECT DAMAGES OF ANY TYPE OR KIND HOWEVER CAUSED, WHETHER FROM BREACH OF WARRANTY, BREACH OR REPUDIATION OF CONTRACT, NEGLIGENCE, GROSS NEGLIGENCE, WILLFUL MISCONDUCT OR ANY OTHER LEGAL CAUSE OF ACTION FROM OR IN CONNECTION WITH THIS AGREEMENT OR THE BAA (AND WHETHER OR NOT THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES) TO THE MAXIMUM EXTENT PERMITTED BY LAW AND SHALL IN NO EVENT EXCEED THE DIRECT DAMAGE LIMITATIONS AS SET FORTH IN THIS SECTION 7 BELOW.
Except with regard to amounts due under this Agreement, liability arising out of or in connection with the Service, any Professional Services or Deliverables, liability resulting from gross negligence or willful misconduct, or claims subject to indemnification as set forth in Section 11 hereof, the maximum liability one party may have to the other party whatsoever arising out of or in the connection with any license, use or other employment of the Service, whether such liability arises from any claim based on breach or repudiation of contract, breach of warranty, negligence, tort, or otherwise, shall in no case exceed value to Fees paid to AIDMED by the Customer. The maximum liability of AIDMED to any person, firm or corporation whatsoever arising out of or in connection with any Professional Services or Deliverables shall be the amount paid by Customer for the Professional Services giving rise to the liability. The parties acknowledge that the limitations set forth in this Section 7 are integral to the amount of fees charged in connection with making the Service available to Customer and that, were AIDMED to assume any further liability other than as set forth herein, such fees would of necessity be set substantially higher.
8.1 Infringement. AIDMED shall, at its own expense and subject to the limitations set forth in this Section, defend Customer from and against any and all allegations, threats, claims, suits, and proceedings brought by third parties (collectively “Claims”) alleging that the Service, as used in accordance with this Agreement, infringes third party copyrights, trade secrets or trademarks and shall indemnify and hold Customer harmless from and against liability, damages and costs finally awarded or entered into in settlement (including, without limitation, reasonable attorneys’ fees) (collectively, “Losses”) to the extent based upon such a Claim. If a Claim of infringement is brought or threatened, AIDMED shall, at its sole option and expense, use commercially reasonable efforts either (a) to procure a license that will protect Customer against such Claim without cost to Customer, (b) to modify or replace all or portions of the Service as needed to avoid the alleged infringement, such update or replacement having substantially similar or better capabilities, or (c) if (a) and (b) are not commercially feasible, terminate this Agreement and refund to Customer a pro-rata refund of the Subscription Fees paid for under the Agreement for the terminated portion of the Term. The rights and remedies granted to Customer under this Section 11.1 state AIDMED’s entire liability, and Customer’s exclusive remedy, with respect to any claim of infringement of the intellectual property rights of a third party.
8.2 Customer’s Indemnity. Customer shall, at its own expense and subject to the limitations set forth in this Section, defend AIDMED. from and against any and all Claims (a) alleging that the Customer Data or any trademarks or service marks, or any use thereof, infringes the intellectual property rights or other rights, or has caused harm to a third party, or (b) arising out of Customer’s breach of Sections 1.4 (Customer’s Lawful Conduct), 1.8 (Confidentiality) or 1.11 (Restrictions) of the Terms of Service, and shall indemnify and hold AIDMED harmless from and against liability for any Losses to the extent based upon such Claims.
8.3 Indemnification Procedures and Survival. In the event of a potential indemnity obligation under this Section, the indemnified party shall (a) promptly notify the indemnifying party in writing of such Claim, (b) allow the indemnifying party to have sole control of its defense and settlement (provided that the indemnifying party shall make no admission of fault or wrongdoing or other statement reflecting negatively on the indemnified party without the indemnified party’s prior express written consent), and (c) upon request of the indemnifying party, cooperate in all reasonable respects, at the indemnifying party’s cost and expense, with the indemnifying party in the investigation, trial, and defense of such Claim and any appeal arising therefrom. The indemnification obligations under this Section are expressly conditioned upon the indemnified party’s compliance with this Section 8.3 except that failure to notify the indemnifying party of such Claim shall not relieve that party of its obligations under this Section, but such Claim shall be reduced to the extent of any damages attributable to such failure. The indemnification obligations contained in this Section shall survive termination of this Agreement for one (1) year.
9. General Provisions.
9.1 Assignment. Neither party may assign this Agreement without written consent of the other; provided, however, that AIDMED may assign this Agreement and delegate its obligations hereunder to any of its affiliates, or to a successor, by way of merger or consolidation or the acquisition of substantially all of the business and/or assets relating to the subject matter of this Agreement, without Customer’s prior written consent. Subject to the foregoing, this Agreement shall be binding on and inure to the benefit of the parties hereto and their respective successors and permitted assigns.
9.2 Governing Law; Jurisdiction; Venue. This Agreement shall be governed in accordance with the laws of Poland.
9.3 Attorneys’ Fees and Costs. The prevailing party in any action to enforce this Agreement will be entitled to recover its attorneys’ fees and costs in connection with such action. In the event of any litigation or any controversy or dispute arising out of or in connection with this Agreement, its interpretations, its performance or the like, the prevailing party shall be awarded reasonable attorneys’ fees and/or costs. If any provision is held by a court of competent jurisdiction to be contrary to law, such provision shall be eliminated or limited to the minimum extent necessary so that this Agreement shall otherwise remain in full force and effect.
9.4 Manner of Giving Notice. Except as otherwise specified in this Agreement, all notices related to this Agreement will be in writing and will be effective upon (a) personal delivery, (b) the second business day after mailing, or (c), except for notices of termination or an indemnifiable claim (“Legal Notices”), which shall clearly be identifiable as Legal Notices, the day of sending by email. Billing-related notices to Customer will be addressed to the relevant billing contact designated by Customer when signing the Order Form. All other notices to Customer will be addressed to the relevant Service system administrator designated by Customer.
9.5 Amendments; Waivers. No supplement, modification, or amendment of this Agreement will be binding unless executed in writing by a duly authorized representative of each party to this Agreement. No waiver will be implied from conduct or failure to enforce or exercise rights under this Agreement, nor will any waiver be effective unless in writing signed by a duly authorized representative on behalf of the party claimed to have waived. No provision of any purchase order or other business form employed by Customer will supersede the terms and conditions of this Agreement, and any such document relating to this Agreement will be for administrative purposes only and will have no legal effect.
9.6 Third Party Beneficiaries. There are no third-party beneficiaries to this Agreement. This Agreement does not create any joint venture, partnership, agency, or employment relationship between the parties, although AIDMED reserves the right to name Customer as a User of the Service.
9.7 Non-Solicitation/Non-Hire. During the Term, Customer will not directly or indirectly solicit, employ or engage the services of any of the employees and/or contractors of AIDMED who were involved in providing Professional Services under or relating to this Agreement without prior written permission of AIDMED.
9.8 Force Majeure. Neither party shall be liable for any loss or delay (including failure to meet the service level commitments) resulting from any force majeure event, including, but not limited to, acts of God, fire, natural disaster, terrorism, labor stoppage (other than those involving AIDMED employees), Internet service provider failures or delays, civil unrest, war or military hostilities or criminal acts of third parties (collectively, a “Force Majeure Event”), and any payment date or delivery of Service date shall be extended to the extent of any delay resulting from any Force Majeure Event.9.9 Entire Agreement. This Agreement, including all exhibits, addendums, Order Form(s) shall constitute the entire understanding between Customer and AIDMED and is intended to be the final and entire expression of their agreement. The parties expressly disclaim any reliance on any and all prior discussions, emails, Requests for Proposals and/or agreements between the parties. Other than the attachments hereto, there are no other verbal agreements, representations, warranties undertakings or other agreements between the parties. Under no circumstances will the terms, conditions or provisions of any purchase order, invoice or other administrative document issued by Customer in connection to this Agreement be deemed to modify, alter or expand the rights, duties or obligations of the parties under, or otherwise modify this Agreement, regardless of any failure of AIDMED to object to such terms, provisions or conditions. This Agreement shall not be modified or amended, except as expressly set forth herein or in the Terms of Service, or in writing and signed or accepted electronically by the party against whom the modification, amendment or waiver is to be asserted, or by a properly executed Order Form. Notwithstanding the above, after execution of this Agreement, and during the electronic provisioning of Customer’s account, Customer may be presented with the requirement to “agree” to a click-through agreement pertaining to terms of service before Customer’s account can be successfully provisioned. Customer acknowledges that other click-through terms and agreements found at https://app.aidmed.ai/register or other similar URL shall apply in the event that such optional services are subsequently ordered or activated by Customer (i.e., AIDMED Third Party Application Terms). Sections 3.2, 3.3, 3.4, 6, 7, 8, 9.2, 9.3, 9.4, 9.5, 9.6, 9.8, and 9.9 of this Agreement and Sections 2.4, 2.5, 2.7, 2.8, 2.9, 3.3, and 6 of the Terms of Service shall survive the termination or expiration of this Agreement.