Terms of Use
Effective Date: June 28, 2024
PLEASE READ THESE STANDARD TERMS (THE “TERMS”) CAREFULLY. THIS WEBSITE, SOFTWARE SOLUTION, PLATFORM OR PORTAL AND ANY OTHER SIMILAR OFFERING OF XRHEALTH, ITS AFFILIATES OR AGENTS (COLLECTIVELY, THE “PLATFORM”) AND THE INFORMATION ON IT ARE CONTROLLED BY XRHEALTH. THESE TERMS GOVERN THE USE OF THE PLATFORM AND APPLY TO ALL INTERNET USERS VISITING OR ACCESSING THE PLATFORM.
BY ACCESSING OR USING THE PLATFORM IN ANY WAY, INCLUDING USING THE SERVICES AND RESOURCES AVAILABLE OR ENABLED VIA THE PLATFORM (EACH A “SERVICE” AND COLLECTIVELY, THE “SERVICES”), BY CLICKING ON THE “I ACCEPT” BUTTON, COMPLETING THE REGISTRATION PROCESS, AND/OR BROWSING THE PLATFORM OR DOWNLOADING THE MOBILE APPLICATION (THE “APPLICATION”), YOU, “COMPANY,” REPRESENT THAT (1) YOU HAVE READ, UNDERSTAND, AND AGREE TO BE BOUND BY THE TERMS OF USE, AND (2) YOU HAVE THE AUTHORITY TO ENTER INTO THE TERMS PERSONALLY OR ON BEHALF OF THE ENTITY YOU HAVE NAMED AS THE USER, AND TO BIND THAT ENTITY TO THESE TERMS. IF YOU DO NOT AGREE TO BE BOUND BY THE TERMS OF USE, YOU MAY NOT ACCESS OR USE THE PLATFORM OR THE SERVICES.
Standard Terms and Conditions
2. Access to and Use of the Service
2.1. Authorized Users. Authorized User accounts cannot be shared or used by more than one Authorized User. Customer is responsible for maintaining the confidentiality of its logins, passwords, and accounts and for all activities that occur under Authorized User accounts.
2.2. Customer Responsibilities. Customer will: (a) obtain any permissions and consents required for XRHealth and Authorized Users to access Customer Data in connection with the Service; (b) be responsible for Authorized Users’ compliance with this Agreement; (c) be responsible for the accuracy, appropriateness, and legality of Customer Data; (d) use commercially reasonable efforts to prevent unauthorized access to or use of the Service, and promptly notify XRHealth of any such unauthorized access or use; and (e) use the Services only in accordance with applicable laws and government regulations.
2.3. Usage Restrictions. Customer may not: (a) make the Service available to, or use the Service for the benefit of, anyone other than Customer and the Authorized Users; (b) upload, post, transmit, or otherwise make available to the Service any content that (i) is unlawful or tortious, or (ii) Customer does not have a right to make available under any applicable law or under contractual or fiduciary relationships, or that infringes, misappropriates, or otherwise violates any intellectual property, privacy, publicity, or other proprietary rights of any person; (c) sublicense, resell, time share, or similarly exploit the Service; (d) upload, post, transmit, or otherwise make available any content or information designed to interrupt, interfere with, destroy or limit the functionality of any computer software or hardware or telecommunications equipment; (e) reverse engineer, modify, adapt, or hack the Service, or otherwise attempt to gain unauthorized access to the Service or its related systems or networks; or (f) access the Service to build a competitive product or service.
2.4. Third Party Products and Content. If Customer enables Third Party Products and Content for use with the Service: (a) any use by Customer or its Authorized Users of such Third Party Products and Content is solely the responsibility of Customer and the applicable provider; (b) XRHealth does not guarantee, warrant, or offer support for any such Third Party Products and Content; (c) Customer acknowledges that the providers of those Third Party Products and Content may have access to Customer Data in connection with the interoperation of the Third Party Products and Content with the Service, and XRHealth will not be responsible for any use, disclosure, modification or deletion of such Customer Data.
3. Fees
3.1. Fees, Invoicing, and Payment. Customer will pay all fees specified in the Order. Payment obligations are non-cancelable and, except as expressly set forth herein, fees paid are non-refundable and payable in United States dollars. All fees will be invoiced by XRHealth in accordance with the terms set forth in the Order. Except as set forth in the Order, full payment for invoices issued must be received according to the terms of payment specified in the Order. If any fees owed by Customer (excluding amounts disputed in reasonable and good faith) have not been paid by the applicable due date, XRHealth reserves the right to apply a finance charge of 1.5% per month on any outstanding balance, or the maximum permitted by law, whichever is lower, and be reimbursed for all expenses of collection.
3.2. Taxes. The fees are excusive of, and Customer will be solely responsible for, all applicable taxes in connection with this Agreement, including any sales, use, excise, value-added, goods and services, consumption, and other similar taxes or duties (but excluding taxes based on XRHealth’s net income). Should any payment for the services provided by XRHealth be subject to withholding tax by any taxing authority, Customer will reimburse XRHealth for such withholding tax.
4. Proprietary Rights
4.1. XRHealth Property. Subject to the limited rights expressly granted to Customer hereunder, XRHealth reserves and retains, and as between XRHealth and Customer, XRHealth exclusively owns, all rights, title, and interest in and to the Service, including all modifications, derivative works, upgrades, and updates thereto, and all related intellectual property rights therein. No rights are granted by XRHealth hereunder other than as expressly set forth herein. If Customer or any Authorized User provides XRHealth any feedback or suggestions regarding the Service, then Customer grants XRHealth an unlimited, irrevocable, perpetual, sublicensable, royalty-free license to use any such feedback or suggestions for any purpose without any obligation or compensation to Customer or any Authorized User. Unless otherwise set forth in the Order, XRHealth retains exclusive ownership of all work product created by XRHealth in connection with its performance of Professional Services.
4.2. Customer Data. Customer grants to XRHealth and its Affiliates a worldwide, non-exclusive, limited term license to access, use, copy, distribute, perform, and display Customer Data, and provide necessary access to third party service providers acting on XRHealth’s behalf, such as XRHealth’s hosting services provider, only: (a) to provide, maintain, and update the Service for Customer and Authorized Users; (b) to prevent or address service or technical problems or at Customer’s request in connection with support matters; (c) as compelled by law; or (d) as expressly permitted in writing by Customer. Subject to the limited licenses granted herein, XRHealth acquires no right, title, or interest under this Agreement in or to any Customer Data.
4.3. De-identified Data. Customer acknowledges and agrees that XRHealth may, during and after the Term, collect, use and analyze any de-identified information derived from the Customer Data (collectively, the “De-identified Data”) for XRHealth’s lawful business purposes, including to improve and enhance the Service and for other development, diagnostic, and corrective purposes in connection with the Service. XRHealth may disclose De-identified Data solely in aggregate form in connection with its business.
5. Confidentiality
5.1. Definition. “Confidential Information” means all confidential information disclosed by a party (“Disclosing Party”) to the other party (“Receiving Party”), whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure, including all copies thereof. Confidential Information of Customer includes Customer Data, Confidential Information of XRHealth includes the Service (including its software and content, other than Customer Data) and the work product created from its performance of any Professional Services, and Confidential Information of each Party includes the terms of this Agreement. However, Confidential Information will not include any information that: (a) is or becomes generally available to the public without breach of any obligation owed to the Disclosing Party; (b) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party; (c) is received from a third party without breach of any obligation owed to the Disclosing Party; or (d) was independently developed by the Receiving Party without use of or reliance on the Confidential Information of the Disclosing Party.
5.2. Protection. The Receiving Party will: (a) use the same degree of care that it uses to protect the confidentiality of its own confidential information of like kind (but in no event less than reasonable care); (b) not use any Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement; and (c) except as otherwise authorized by the Disclosing Party in writing, limit access to Confidential Information of the Disclosing Party to those of the Receiving Party’s and its Affiliates’ employees, contractors, and agents who need such access for purposes consistent with this Agreement and who are subject to confidentiality obligations at least as restrictive as those herein. The Receiving Party will provide prompt written notice to the Disclosing Party of any unauthorized use or disclosure of the Disclosing Party’s Confidential Information. Upon request of the Disclosing Party during the Term, the Receiving Party will promptly return, or at the Disclosing Party’s option destroy, any or all Confidential Information of the Disclosing Party in the Receiving Party’s possession or under its control.
5.3. Compelled Disclosure. The Receiving Party may access or disclose Confidential Information of the Disclosing Party if it is compelled by law to do so, provided the Receiving Party gives the Disclosing Party prior notice of such compelled access or disclosure (to the extent legally permitted) and reasonable assistance, at the Disclosing Party’s expense, if the Disclosing Party wishes to contest the access or disclosure.
6. Representations, Warranties, and Disclaimers
6.1. Mutual Representations. Each Party represents that: (a) it is duly organized, validly existing, and in good standing under its jurisdiction of organization and has the right to enter into this Agreement; and (b) the execution, delivery, and performance of this Agreement are within the corporate powers of such Party and have been duly authorized by all necessary corporate action on the part of such Party, and constitutes a valid and binding agreement of such Party.
6.2. XRHealth Warranties. XRHealth warrants that: (a) the Service will perform materially in accordance with the applicable Documentation.
6.3. Customer Warranty. Customer warrants that it has obtained and will maintain all rights, consents, and permissions necessary for Customer to make available the Customer Data to XRHealth for its use as contemplated herein.
6.4. Disclaimer. EXCEPT FOR THE EXPRESS WARRANTIES PROVIDED IN SECTION 6.2, THE SERVICE AND ALL RELATED COMPONENTS AND INFORMATION ARE PROVIDED ON AN “AS IS” BASIS WITHOUT ANY WARRANTIES OF ANY KIND, AND XRHEALTH EXPRESSLY DISCLAIMS ANY AND ALL OTHER WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. XRHEALTH DOES NOT WARRANT THAT THE SERVICE WILL BE UNINTERRUPTED OR ERROR-FREE.
7. Indemnification
7.1. XRHealth Indemnification. XRHealth will defend Customer and its Affiliates from and against any lawsuit or proceeding brought by a third party to the extent alleging that Customer’s use of the Service as permitted hereunder infringes or misappropriates such third party’s intellectual property rights, and XRHealth will indemnify Customer and its Affiliates for any damages and any reasonable attorneys’ fees finally awarded against them arising from such lawsuit or proceeding; provided, however, that XRHealth will have no liability under this Section to the extent any such lawsuit or proceeding arises from: (a) Customer Data or Third Party Products and Content; (b) Customer’s or any of its Affiliates’ or Authorized Users’ negligence, misconduct, or breach of this Agreement; or (c) any modification or combination of the Service that is not performed or approved by XRHealth or specifically set out in the Documentation.
7.2. Customer Indemnification. Customer will defend XRHealth and its Affiliates from and against any lawsuit or proceeding brought by a third party to the extent alleging that any Customer Data infringes, misappropriates, or otherwise violates the rights, including privacy and publicity rights, of any other party, or that Customer’s or any Authorized User’s particular use of the Service violates applicable law, and Customer will indemnify XRHealth and its Affiliates for any damages and any reasonable attorneys’ fees finally awarded against them arising from such lawsuit or proceeding; provided, however, that Customer will have no liability under this Section to the extent any such lawsuit or proceeding arises from XRHealth’s or any of its Affiliates’ negligence, misconduct, or breach of this Agreement.
7.3. Procedures. The indemnified party will provide the indemnifying party with: (a) prompt written notice of any matter that is subject to indemnification hereunder; (b) the right to assume the exclusive defense and control of any such matter (provided that the indemnified party may participate in the defense at its own expense); and (c) cooperation with any reasonable requests assisting the indemnifying party’s defense of such matter. The indemnifying party may not settle any such lawsuit or proceeding without the indemnified party’s prior written consent.
7.4. Exclusive Remedy. This Section states the indemnifying party’s sole liability, and the indemnified party’s exclusive remedy, for any type of claim described in this Section.
8. Limitation of Liability
8.1. Exclusion of Certain Damages. IN NO EVENT WILL EITHER PARTY HAVE ANY LIABILITY TO THE OTHER PARTY OR TO ANY OTHER PARTY FOR ANY LOST PROFITS OR REVENUES, OR FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, COVER, OR PUNITIVE DAMAGES, WHETHER OR NOT THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE FOREGOING DISCLAIMER WILL NOT APPLY TO THE EXTENT PROHIBITED BY APPLICABLE LAW.
8.2. Liability Cap. EXCEPT FOR CUSTOMER’S LIABILITY FOR ITS PAYMENT OBLIGATIONS OR A PARTY’S LIABILITY FOR ITS INDEMNIFICATION OBLIGATIONS, ITS BREACH OF ITS CONFIDENTIALITY OBLIGATIONS, OR FOR ITS WILLFUL MISCONDUCT (COLLECTIVELY, THE “EXCLUDED CLAIMS”), IN NO EVENT WILL EITHER PARTY’S AGGREGATE LIABILITY RELATING TO THIS AGREEMENT EXCEED THE TOTAL AMOUNT ACTUALLY PAID BY CUSTOMER TO XRHEALTH HEREUNDER IN THE 12 MONTHS PRECEDING THE DATE ON WHICH THE FIRST CLAIM GIVING RISE TO LIABILITY AROSE (THE “GENERAL LIABILITY CAP”).
8.3. Excluded Claims. Notwithstanding Section 8.2, in no event will XRHealth’s aggregate liability for all Excluded Claims exceed three times (3x) the General Liability Cap.
8.4. Scope. For the avoidance of doubt, the exclusions and limitations set forth in Section 8 will apply with respect to all legal theories of liability, whether in contract, tort, or otherwise. The Parties agree that the exclusions and limitations set forth in Section 8 allocate the risks between the Parties under this Agreement, and that they have relied on these exclusions and limitations in determining whether to enter into this Agreement.
9. Term, Termination, and Suspension
9.1. Term of the Agreement. The term of this Agreement commences on the Effective Date and, unless earlier terminated in accordance with the terms of this Agreement, will continue for the “Initial Term” specified in the Order (the “Initial Term”). Thereafter, unless otherwise indicated in the Order, this Agreement will automatically renew for successive additional periods of 1 year each (each, a “Renewal Term”) unless either Party provides the other with written notice of non-renewal at least 30 days prior to the expiration of the Initial Term or the then-current Renewal Term. Customer agrees that XRHealth may modify the fees for each Renewal Term by providing Customer with written notice of such modification at least 60 days prior to the expiration of the Initial Term or the then-current Renewal Term, as applicable. The Initial Term and each Renewal Term, if any, are collectively referred to herein as the “Term.”
9.2. Suspension. XRHealth may suspend Customer’s or any or all Authorized Users’ access to the Service, in whole in part, if: (a) Customer or any Authorized User is using the Service in violation of this Agreement or any applicable law; (b) suspension of the Service is necessary, in XRHealth’s reasonable discretion, to protect the security of the Service or the infrastructure of XRHealth or its Affiliates; (c) suspension is required by applicable law; or (d) any fees owed by Customer (excluding amounts disputed in reasonable and good faith) are 30 days or more overdue, provided XRHealth has given Customer 10 or more days’ prior notice.
9.3. Termination for Cause. Either Party may terminate this Agreement effective after 30 days’ written notice if the other Party materially breaches this Agreement and such breach is not cured within such 30-day period. Upon any termination for cause by Customer, XRHealth will promptly refund Customer any prepaid fees covering the period remaining in the Term after the effective date of such termination. Upon any termination for cause by XRHealth, Customer will promptly pay XRHealth any unpaid fees covering the period remaining in the Term after the effective date of such termination.
9.4. Effects of Termination. Upon termination of this Agreement for any reason, (a) any amounts owed to XRHealth prior to such termination and all completed but unpaid Professional Services fees will be immediately due and payable, and (b) all rights granted to access and use the Service will immediately cease to exist. For a period of 30 days following any termination of this Agreement, XRHealth will, upon Customer’s request, provide Customer with an export of all current Customer Data in the format agreed by the Parties. After such 30-day period, XRHealth will have no obligation to maintain or provide any Customer Data and XRHealth will, unless prohibited by applicable law, delete all Customer Data in its systems or otherwise in its possession or under its control in accordance with XRHealth’s then-current data retention and deletion policies. Subject to this Section, upon any termination of this Agreement and the Disclosing Party’s request, the Receiving Party will promptly return, or at the Disclosing Party’s option destroy, any or all Confidential Information of the Disclosing Party in the Receiving Party’s possession or under its control.
9.5. Survival. The sections titled “Protection of Customer Data,” “Fees,” “Proprietary Rights,” “Confidentiality,” “Indemnification,” “Limitation of Liability,” “Termination for Cause,” “Effects of Termination,” “Survival,” and “General Provisions” will survive any termination of this Agreement.
10. General Provisions
10.1. Attribution. Customer agrees that XRHealth may use Customer’s name and logo to indicate that Customer is a customer of XRHealth for the Service on XRHealth’s website, marketing materials, and in communications with existing or prospective XRHealth customers. Any such attribution will be consistent with Customer’s style guidelines or requirements as communicated to XRHealth by Customer.
10.2. Force Majeure. Except for payment obligations, neither Party will be liable hereunder by reason of any failure or delay in the performance of its obligations due to events beyond the reasonable control of such Party, which may include natural disasters, fires, epidemics, pandemics, riots, war, terrorism, denial of service attacks, internet outages, labor shortages, and judicial or government action (each, a “Force Majeure Event”). If either Party’s nonperformance hereunder due to a Force Majeure Event persists for more than 30 days, either Party may immediately terminate this Agreement without charge or penalty upon notice to the other Party.
10.3. Assignment. Neither Party may assign any of its rights or obligations hereunder, whether by operation of law or otherwise, without the prior written consent of the other Party. Notwithstanding the foregoing, either Party may assign or transfer this Agreement in its entirety, without the consent of the other Party, in connection with a merger or sale of all or substantially all of its assets, so long as the assigning Party provides 30-days’ prior written notice thereof to the other Party. Any purported
assignment in violation of this Section will be null and void. This Agreement will bind and inure to the benefit of the Parties, their respective successors, and permitted assigns.
10.4. Governing Law. This Agreement, and any disputes arising out of or related hereto, will be governed exclusively by the internal laws of the State of Delaware, without regard to its conflicts of laws rules or the United Nations Convention on the International Sale of Goods. Each Party hereby waives any right to jury trial in connection with any action or litigation in any way arising out of or related to this Agreement.
10.5. Notices. All notices under this Agreement will be in writing addressed to the points of contacts of each of the Parties listed on the Order at the addresses set forth on the Order and will be deemed to have been duly given: (a) upon receipt if personally delivered or sent by certified or registered mail with return receipt requested; and (b) the first business day after sending by email or by next day delivery by a recognized overnight delivery service.
10.6. Insurance. Each Party shall carry and maintain insurance in the amounts and for the occurrences for which insurance is typically carried by entities in the same or similar business.
10.7. Relationship of the Parties. The Parties are independent contractors and this Agreement does not create a partnership, franchise, joint venture, agency, fiduciary, or employment relationship between the Parties. There are no third party beneficiaries to this Agreement.
10.8. Waiver. No failure or delay by either Party in exercising any right under this Agreement will constitute a waiver of that right.
10.9. Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be invalid or unenforceable, such provision will be modified by the court and interpreted so as best to accomplish the objectives of the original provision to the fullest extent permitted by law, and the remaining provisions of this Agreement will remain in full force and effect.
10.10. Entire Agreement. This Agreement, including all exhibits hereto and all Orders, constitutes the entire agreement between the Parties and supersedes all prior and contemporaneous agreements, proposals, or representations, written or oral, concerning Customer’s purchase and use of the Service. No modification, amendment, or waiver of any provision of this Agreement will be effective unless in writing and signed by each of the Parties. To the extent of any conflict or inconsistency between the provisions in the body of this Agreement and any exhibit hereto or any Order, the terms of such exhibit or Order will prevail. Notwithstanding any language to the contrary therein, no terms or conditions stated in any Customer purchase order or other Customer ordering documentation (excluding Orders) will be incorporated into or form any part of this Agreement, and all such terms or conditions will be null and void.
11. Definitions.
11.1. “Affiliate” of a Party means: (a) any entity that such Party controls; (b) any entity that controls such Party; or (c) any entity under common control with such Party. To “control,” for purposes of this definition, means owning or otherwise controlling more than 50% of the voting interests of an entity.
11.2. “Authorized User” means healthcare professionals, independent contractors, employees, patients or any other affiliated third party to Customer who are authorized by Customer to access and use the Service, and who has been issued a Service account by Customer and/or XRHealth that is associated to a unique email address with a domain name owned or controlled by Customer and/or XRHealth.
11.3. “Customer Data” means all data, content, and information submitted by Authorized Users into the Service and the Customer-specific output that is generated by Authorized Users’ use of the Service.
11.4. “Documentation” means the user manuals, specifications, and policies, as may be updated from time to time, that describe the functionality, features, operation, or use of the Service and that are made available by XRHealth to Customer.
11.5. “Service” means XRHealth’s software-as-a-service platform, user interfaces and software within a device, as further set forth in an Order. References to the “Service” in this Agreement include the Documentation.
11.6. “Professional Services” means any professional services related to Customer’s use of the Service, such as consulting, implementation, or training services, provided by XRHealth to Customer as expressly identified in the Order.
11.7. “Third Party Products and Content” means any applications, products, services, or content that interoperate with the Service and that are provided by Customer or a third party.