Please read these terms and conditions (hereinafter “Agreement”) in its entirety and carefully. Customer shall mean the entity listed on the Order Form and Eko shall mean Eko Health, Inc.
(i) "Aggregated Statistics" means data and information related to Customer's use of the Services or Software that is used by Eko in an aggregate and anonymized manner, including to compile statistical and performance information related to the provision and operation of the Services or Software.
(ii) "Authorized User" means Customer's employees, consultants, contractors, patients, and agents (i) who are authorized by Customer to access and use the Services or Software under the rights granted to Customer pursuant to this Agreement and (ii) for whom access to the Services or Software has been purchased hereunder.
(iii) “Confidential Information” means any competitively sensitive or secret business, marketing, or technical information disclosed by one Party (a“Disclosing Party”) to the other Party (a “Receiving Party”). Confidential Information shall include source code, development-level documentation, Customer Data, technical information, and all other data or materials related to the past, present, or future business activities of a Disclosing Party or any of its subsidiaries, affiliates, or clients, including methods, processes, telephone conversation, financial data, systems, Plan Member names, Participant names, account numbers, lists, statistics, programs, and research and development pertaining to a Disclosing Party's business. Confidential information shall not include: (i) information that is or becomes generally available or known to the public through no fault of the Receiving Party; (ii) information that was already known by or available to the Receiving Party without obligation of confidentiality to the party who disclosed the information; (iii) information that is subsequently disclosed to the Receiving Party by a third party who is not under any obligation of confidentiality to the party who disclosed the information; (iv) information that has already been or is hereafter independently acquired or developed by the Receiving Party without violating any confidentiality agreement or other similar obligation; (v) information that is de-identified and aggregated with other information; or (vi) Protected Health Information (“PHI”).
(iv) "Customer Data" means, other than Aggregated Statistics, information, data, and other content, in any form or medium, that is submitted, posted, or otherwise transmitted by or on behalf of Customer or an Authorized User through the Services or Software, including, without limitation, body sounds and EKG data.
(v) “Devices” means Eko Core and Eko DUO.
(vi) "De-Identified Data" means Customer Data which has been de-identified in accordance with the Health Insurance Portability and Accountability Act of 1996 (HIPAA) Privacy Rules.
(vii) "Documentation" means Eko's user manuals and other documentation relating to the devices, Software or Services made available by Eko to Customer either electronically orin hard copy form.
(viii) "Eko IP" means the Services, the Devices, the Software, the Algorithms, the Documentation, and any and all intellectual property provided to Customer or any Authorized User in connection with the foregoing. For the avoidance of doubt, Eko IP includes Aggregated Statistics and any information, data, or other content derived from Eko's monitoring of Customer's access to or use of the Software or Services, but does not include Customer Data.
(ix) "Services" means the Eko software-as-a-service offerings including, without limitation, Eko AI algorithm analyses, Eko Dashboard (https://app.ekodevices.com), Eko Livestream, Eko Telehealth.
(x) "Software" means downloadable software provided to Customer by Eko, including, without limitation, the Eko Windows Application, Eko iOS Application, and Eko Android Application, Eko Software Development Kit (SDK).
2. Access and Use.
(i) Provision of Access. Subject to the terms and conditions of this Agreement, Eko hereby grants Customer a limited, non-exclusive, non-transferable right to access and use the Software, Services, and Documentation during the Term, solely for use by Authorized Users. Such use is limited to Customer's internal business purposes only. Eko shall provide to Customer the necessary passwords and network links or connections to allow Customer to access the Software and Services. Authorized Users will have a unique identifier and password. The Authorized User shall not share the log-on details or passwords with any other person. If it is determined by Eko that Customer’s Authorized Users have shared the log-in details or passwords, Customer shall be liable for additional Authorized User fees.
(ii) Use Restrictions. Customer shall not use the Software, Services, or Documentation for any purposes beyond the scope of the access granted in this Agreement. Customer shall not at any time, directly or indirectly, and shall not permit any Authorized Users to: (i) copy, modify, or create derivative works of the Software, Services or Documentation, in whole or in part; (ii) rent, lease, lend, sell, license, sublicense, assign, distribute, publish, transfer, or otherwise make available the Software, Services or Documentation to individuals other than Authorized Users; (iii) reverse engineer, disassemble, decompile, decode, adapt, or otherwise attempt to derive or gain access to any software component of the Software or Services, in whole or in part; (iv) remove any proprietary notices from the Software, Services or Documentation; or (v) use the Software, Services or Documentation in any manner or for any purpose that infringes, misappropriates, or otherwise violates any intellectual property right or other right of any person, or that violates any applicable law.Company shall require Authorized Users to use the Software and Services in accordance with this Agreement and the Documentation.
(iii) Reservation of Rights. Eko reserves all rights not expressly granted to Customer in this Agreement. Except for the limited rights and licenses expressly granted under this Agreement, nothing in this Agreement grants, by implication, waiver, estoppel, or otherwise, to Customer or any third party any intellectual property rights or other right, title, or interest in or to the Eko IP.
(iv) Suspension. Eko may temporarily suspend Customer's and any Authorized End User's access to any portion or all of the Software or Services (in each instance, a" Suspension if:
i) Eko reasonably determines that: (A) there is a threat or attack on any of the Eko IP; (B) Customers or any Authorized End User's use of the Eko IP disrupts or poses a security risk to the Eko IP or to any other customer or vendor of Eko; (C) Customer, or any Authorized End User, is using the Eko IP for fraudulent or illegal activities; or (C) Eko's provision of the Software or Services to Customer or any Authorized End User is prohibited by applicable law;
ii) Any vendor of Eko has suspended or terminated Eko's access to or use of any third-party services or products required to enable Customer to access the Software or Services.
iii) Eko shall have the right to terminate this Agreement if there are continued violations as set forth in Section 2 (iv) and Eko shall not be liable for any damages associated with terminating the Services or Software.
(v) Aggregated Statistics and De-Identified Data. Eko continuously strives to evaluate and improve the reliability and diagnostic value of its Devices, and the Software and Services with which they may be used. Aggregated Statistics and De-Identified Data provide an important resource for improving Eko’s offerings. Thus, notwithstanding anything to the contrary in this Agreement, Eko may monitor Customer's use of the Software orServices and collect, compile and utilize for its own business purposesAggregated Statistics and De-Identified Data. As between Eko and Customer, all right, title, and interest in Aggregated Statistics, and all intellectual property rights therein, belong to and are retained solely by Eko. Customer agrees that Eko may (i) make Aggregated Statistics publicly available in compliance with applicable law, and (ii) use Aggregated Statistics to the extent and in the manner permitted under applicable law; provided that such Aggregated Statistics do not identify Customer or Customer's Confidential Information.
3. Customer Responsibilities.
(i) General. Customer is responsible and liable for all uses of the Software, Services and Documentation resulting from access provided by Customer, directly or indirectly, whether such access or use is permitted by or in violation of this Agreement. Customer is responsible for all acts and omissions of Authorized Users, and any act or omission by an Authorized User that would constitute a breach of this Agreement if taken by Customer will be deemed a breach of this Agreement by Customer. Customer shall use reasonable efforts to make all Authorized Users aware of this Agreement's provisions as applicable to such Authorized User's use of the Software or Services, and shall cause Authorized Users to comply with such provisions.
4. Fees and Payment.
(i) Fees. Customer shall pay Eko the fees ("Fees") as set forth in any applicable order form, as agreed toby the Parties. Customer shall make all payments on or before the due date set forth in the quotation or order form agreed toby the Parties.
(ii) Taxes. All Fees and other amounts payable by Customer under this Agreement are exclusive of taxes and similar assessments. Customer is responsible for all sales, use, or excise taxes or duties, and charges of any kind imposed by any federal, state, or local governmental or regulatory authority on any amounts payable by Customer hereunder, other than any taxes imposed on Eko's income, unless Customer provides Eko with a valid tax exemption certificate.
(iii) Overdue Payments. All undisputed amounts not paid within thirty (30) days of the due date are subject to a late payment charge of one and a half percent (1.5%) per month simple interest (or, if less, the maximum rate allowed by applicable law) from the due date until the date of payment. All undisputed amounts not paid within sixty (60) days of the due date, may be sent by Eko to an attorney or collection agency and Eko may, at its sole discretion, suspend provision of the Software, Services, or Device, although fees would continue to accrue during suspension. Customer shall be responsible for paying all costs of collection, including, but not limited to reasonable attorneys’ fees and, where lawful, collection agency fees.
5. Confidentiality and HIPAA.
(i) Requirements. Each Receiving Party acknowledges that it will be exposed to Confidential Information of the Disclosing Party during the performance of this Agreement and shall only be entitled to use such Confidential Information for the purposes intended hereunder. Each Receiving Party agrees it will use the same degree of care in protecting the Confidential Information from disclosure to others as it uses in protecting its own Confidential Information of a similar nature. Each Receiving Party agrees not to disclose Confidential Information of the Disclosing Party to any third party without the prior written consent of the Disclosing Party. The Receiving Party may disclose Confidential Information of the Disclosing Party to the Receiving Party's employees (collectively, “Representatives”), only on a need to know basis. Each party shall be responsible and liable for ensuring its Representatives comply with the terms of this Section 5 and any breach of this Section 5 by a Party’s Representatives shall be deemed a breach by such Party.
(ii) Injunction. Each Party acknowledges and agrees that the other Party may suffer irreparable loss and damage if the Receiving Party should breach or violate any of the covenants and agreements contained in this Section 5, and that damages at law may be an inadequate remedy to the Disclosing Party. Each Party further acknowledges and agrees that each of such covenants is reasonably necessary to protect and preserve the legitimate business interests and assets of the Disclosing Party. Therefore, as a material inducement for each Party to enter into this Agreement, each Party agrees and consents that, in addition to any other remedies available to the other Party, such other Party shall be entitled to preliminary and permanent injunctive relief to prevent a breach of any of the covenants or agreements contained in this Section, without prejudice to any other right or remedy, legal or equitable, to which such other Party may be entitled. The Parties agree that no bond or other security shall be required to obtain such injunctive relief.
6. Intellectual Property Ownership.
(i) Eko IP. Customer acknowledges that Eko owns all right, title, and interest, including all intellectual property rights, in and to the Eko IP. Customer does not acquire any rights, express or implied, in any Eko IP whatsoever. All applicable rights to patents, copyrights, trademarks, trade secrets in any Software, Service, or Eko IP are and shall remain with Eko.
(ii) Customer Data. Eko acknowledges that, Customer owns all right, title, and interest, including all intellectual property rights, in and to the Customer Data. Customer hereby grants to Eko (i) a non-exclusive, royalty-free, worldwide license to reproduce, distribute, and otherwise use and display the CustomerData and perform all acts with respect to the Customer Data as may be necessary for Eko to provide the Software or Services to Customer, and (ii) anon-exclusive, perpetual, irrevocable, sublicensable, royalty-free, worldwide license to reproduce, distribute, modify, and otherwise use and display Customer Data incorporated within the Aggregated Statistics and De-IdentifiedData for any purpose, including, without limitation, development and improvement of algorithms for analysis of data procured by Eko medical devices(“Algorithms”).
(i) Eko represents and warrants that when installed, the Software and Services will possess the functional capabilities described in the Documentation and will perform such functions without material defects on hardware approved by Eko and operate in accordance with applicable laws.
(ii) Eko represents and warrants that when first made available to Customer, the Software and Services shall not contain any malware including, without limitation, any automatic shut-down, lockout, virus, spyware, worm, trap door, Trojan horse, back door, time bomb or other similar mechanism
(iii) EXCEPT AS OTHERWISE STATED HEREIN, THE EXPRESS WARRANTIES SET FORTH IN THIS AGREEMENT ARE EXCLUSIVE ANDTHE ONLY WARRANTIES MADE BY EKO TO CUSTOMER. EKO HEREBY DISCLAIMS ALL OTHER WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE. EKO SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND ALL WARRANTIES ARISING FROM COURSE OF DEALING, USAGE, OR TRADE PRACTICE. EKO MAKES NO WARRANTY OF ANY KIND THAT THE EKO IP, OR ANY PRODUCTS OR RESULTS OF THE USE THEREOF, WILL MEET CUSTOMER'S OR ANY OTHER PERSON'S REQUIREMENTS, OPERATE WITHOUT INTERRUPTION, ACHIEVE ANY INTENDED RESULT, BE COMPATIBLE OR WORK WITH ANY SOFTWARE, SYSTEM OR OTHER SERVICES, OR BE SECURE, ACCURATE COMPLETE, FREE OF HARMFUL CODE, OR ERROR FREE.
8. Intended Use; Compliance With Laws; Indemnification.
(i) It is the responsibility of Customer and its Authorized Users to confirm that Authorized Users of the Services, Software and Eko devices have appropriate qualifications, training and expertise for their intended use of the Devices, Services and Software; and interpret any information provided by or through the Services and Software, in combination with other information, as one portion of a professional health assessment, and not as a substitute for a user’s professional medical judgment.
(ii) Health care regulation varies by jurisdiction, and depending on your location, local telemedicine restrictions may restrict your ability to utilize some aspects of the Software and the Services. It is the responsibility of Customer and its Authorized Users to ensure that their use of the Devices, the Software, the Services by Customer or any Authorized User, is in accordance with all local laws and regulations.
(iii) Discounts. The dollar value of the discounts, incentives, or rebates provided hereunder, if any, are intended by the parties to be "discounts and other reductions in price" under Section 1128B (b) (3) (A) of the Social Security Act (42 U.S.C. § 1320-a-7b (b) (3) (A)), as amended. It is the intent of the Parties that all services and payments in this Agreement comply with the Anti-Kickback Statute. The Discount Safe Harbor may require that certain discounts be reported to Federal and State health care programs, such as Medicare and Medicaid, and Eko agrees to cooperate to provide Customer with relevant information to support any such reporting.
(iv) Eko Indemnification.
i) Eko shall indemnify, defend, and hold harmless Customer from and against any and all losses, damages, liabilities, costs (including reasonable attorneys' fees) ("Losses") incurred by Customer resulting from any third-party claim, suit, action, or proceeding ("Third-Party Claim") (A) based on Eko’s gross negligence or willful misconduct; or (B) that the Software or Services, or any use of the Software or Services in accordance with this Agreement, infringes or misappropriates such third party's US intellectual property rights, provided that Customer promptly notifies Eko in writing of the claim, cooperates with Eko, and allows Eko sole authority to control the defense and settlement of such claim, provided that such settlement does not impose a payment obligation on Customer, does not require Customer to admit or acknowledge any fault or guilt, and obtains a complete release for Customer. If the settlement of the claim does require Customer to admit or acknowledge fault or guilt, Eko shall obtain Customers consent which shall not be unreasonably withheld, delayed, or conditioned. This section shall survive the termination or expiration of this Agreement for any reason.
ii) If such an Indemnification claim of infringement is made, Eko may, at Eko's sole discretion, to (A) modify or replace the Software or Services, or component or part thereof, to make it non-infringing, or (B) obtain the right for Customer to continue use. If Eko determines that neither alternative is reasonably available, Eko may terminate this Agreement, in its entirety or with respect to the affected component or part, effective immediately on written notice to Customer. This Section 8 (c) is Eko’s entire liability and Customer’s exclusive remedy for infringement.
iii) Eko’s indemnification obligations will not apply to the extent that the alleged infringement arises from Customer’s: (A) use of the Services or Software in combination with data, software, hardware, equipment, or technology not provided by Eko; (B) authorized by Eko in writing or modifications to the Services or Software not made by Eko or authorized by Eko in writing; or (C) use of the Services or Software in a manner other than as set forth in the Documentation or authorized by Eko in writing.
(iv) Customer Indemnification. Customer shall indemnify, hold harmless, and, at Eko's option, defend Eko from and against any Losses resulting from any Third-Party Claim that, through the intended functionality of the Software and Services, Customer or any Authorized User has transmitted or disclosed the Customer Data in an unauthorized or illegal manner, and any Third-Party Claims based on Customer's or any Authorized User's (i) gross negligence or willful misconduct; (ii) use of the Services or Software in a manner not in accordance with the Documentation; (iii) use of the Services or Software in combination with data, software, hardware, equipment or technology not provided by Eko or authorized by Eko in writing; (iv) modifications to the Services or Software not made by Eko, or (v) based on Customer Data, provided that Customer may not settle any Third-Party Claim against Eko unless Eko consents to such settlement, and further provided that Eko will have the right, at its option, to defend itself against any such Third-Party Claim or to participate in the defense thereof by counsel of its own choice.
(v) Limitations of Liability.
EKO WILL NOT BE LIABLE FOR ANY SPECIAL, INCIDENTAL, INDIRECT, OR CONSEQUENTIAL DAMAGES (INCLUDING, WITHOUT LIMITATION, LOSS OF BUSINESS PROFITS, BUSINESS INTERRUPTION, LOSS OF DATA, OR LOSS OF BUSINESS OR CONFIDENTIAL INFORMATION) ARISING OUT OF THE USE OF OR INABILITY TO USE THE EKO SOFTWARE AND SERVICES. EKO’S MAXIMUM LIABILITY UNDER THIS AGREEMENT SHALL NOT EXCEED THE AMOUNTS PAID BY THE CUSTOMER UNDER THIS AGREEMENT DURING THE TWELVE (12) IMMEDIATELY PRECEDING THE FIRST EVENT, ACTION OR OMISSION GIVING RISE TO THE EKO’S LIABILITY.
THE DEVICES, SOFTWARE, SERVICES, AND DOCUMENTATION DO NOT PROVIDE MEDICAL DIAGNOSIS OR ADVICE. EKO IS NOTA LICENSED HEALTH CARE PROVIDER, NOR DOES IT RENDER HEALTHCARE ADVICE OR SERVICES. THE SOFTWARE, SERVICES, andDOCUMENTATION ARE NOT A REPLACEMENT FOR THE ADVICE OF A MEDICAL PROFESSIONAL. CUSTOMER AND ITS USERS ARE SOLELY RESPONSIBLE FOR USING THEIR OWN PROFESSIONAL JUDGEMENT IN ASSESSING THE VALIDITY AND USEFULNESS OF ANY RESULTS OR OTHER INFORMATION MADE AVAILABLE THROUGH THE SERVICES OR SOFTWARE. USE OFTHE SERVICES DOES NOT CREATE A PHYSICIAN-PATIENT RELATIONSHIP. CUSTOMER IS RESPONSIBLE FOR COMPLIANCE WITH HIPAA STANDARDS
9. Term and Termination.
(i) Term. The term of this Agreement begins on the Effective Date and will continue for a period of one (1) year (“Initial Term”). Unless either Party notifies the other of its intent not to renew this Agreement at least thirty(30) days prior to the expiration of the then-current term, this Agreement will automatically renew for subsequent terms of one (1) year or such other duration as may be specified on a renewal quotation or order form executed by theParties (each a “Renewal Term”; the Initial Term and any Renewal Terms referred to as “Term”)
(ii) Termination for Convenience. Eko may terminate this Agreement with or without cause effective immediately upon written notice.
(iii). Termination. In addition to any other express termination right set forth in this Agreement:
i) If there shall be a failure in the performance or observance of any other agreement or condition contained herein on the part of either Party to be performed or observed and such failure shall not be corrected within thirty (30) days after such Party shall receive notice from the other Party of such failure, then the non-defaulting Party shall have the right, at its election, by notice to the defaulting Party to terminate this Agreement on the date designated therefor in said notice, which date shall be not less than thirty (30) days after the receipt of such notice by the defaulting Party.
ii) either Party may terminate this Agreement, effective immediately upon written notice to the other Party, if the other Party: (A) becomes insolvent or is generally unable to pay, or fails to pay, its debts as they become due; (B) files or has filed against it, a petition for voluntary or involuntary bankruptcy or other wise becomes subject, voluntarily or involuntarily, to any proceeding under any domestic or foreign bankruptcy or insolvency law; (C) makes or seeks to make a general assignment for the benefit of its creditors; or (D) applies for or has appointed a receiver, trustee, custodian, or similar agent appointed by order of any court of competent jurisdiction to take charge of or sell any material portion of its property or business.
(iv) Effect of Expiration or Termination. No expiration or termination will affect Customer's obligation to pay all Fees that may have become due before such expiration or termination, or entitle Customer to any refund.
(v) Survival. This Section 9 (d) and Sections 1, 4, 5, 6, 7 (c), 8, and 10 survive any termination or expiration of this Agreement. No other provisions of this Agreement survive the expiration or earlier termination of this Agreement.
(i) Entire Agreement. This Agreement contains the entire agreement between the Parties and supersedes all prior negotiations or agreements, whether written or oral, between them with respect to the matters set forth herein. This Agreement may be amended only in writing signed by both Parties. The section headings contained in this Agreement are for convenience of reference only and will not be used for substantive purposes. Should any part of this Agreement be declared invalid or unenforceable for any reason, such decision shall not affect the validity of the remainder of this Agreement, which will remain in full force and effect and enforceable in accordance with its terms. The waiver by either Party of a breach or violation of any provision hereunder will not constitute a waiver of any prior simultaneous, or subsequent breach of the same or any other provision hereof.
(ii) Notices. All notices, requests, consents, claims, demands, waivers, and other communications hereunder (each, a "Notice")must be in writing and addressed to the Parties at the addresses set forth on the Order Form.
(iii) Force Majeure. In no event shall either Party be liable to the other Party, or be deemed to have breached this Agreement, for any failure or delay in performing its obligations under this Agreement (except for any obligations to make payments), if and to the extent such failure or delay is caused by any circumstances beyond such Party's reasonable control, including but not limited to acts of God, flood, fire, earthquake, explosion, war, terrorism, invasion, riot or other civil unrest, strikes, labor stoppages or slowdowns or other industrial disturbances, or passage of law or any action taken by a governmental or public authority after the Effective Date of this Agreement, including imposing an embargo. (“Force Majeure Event”). If a Force Majeure Event persists for thirty (30) days or longer, either Party may terminate this Agreement upon written notice to the other Party.
(iv) Amendment and Modification; Waiver. No amendment to or modification of this Agreement is effective unless it is in writing and signed by an authorized representative of each Party. No waiver by any Party of any of the provisions hereof will be effective unless explicitly set forth in writing and signed by the Party so waiving. Except as otherwise set forth in this Agreement, (i) no failure to exercise, or delay in exercising, any rights, remedy, power, or privilege arising from this Agreement will operate or be construed as a waiver thereof and (ii) no single or partial exercise of any right, remedy, power, or privilege hereunder will preclude any other or further exercise thereof or the exercise of any other right, remedy, power, or privilege.
(v) Severability. If any provision of this Agreement is invalid under any applicable statute or rule of law, it is to that extent to be deemed omitted. The remainder of the Agreement shall be valid and enforceable to the maximum extent possible.
(vi) Governing Law; Submission to Jurisdiction. This Agreement shall be construed in accordance with the laws of the State of California. Any proceeding arising between the Parties in any matter pertaining or related to this Agreement shall, to the extent permitted by law, be held in Alameda County, California.
(vii) Assignment. Customer may not assign any of its rights or delegate any of its obligations hereunder, in each case whether voluntarily, involuntarily, by operation of law or otherwise, without the prior written consent of Eko, which consent shall not be unreasonably withheld. Any purported assignment or delegation in violation of this Section will be null and void. No assignment or delegation will relieve the assigning or delegating Party of any of its obligations hereunder. This Agreement is binding upon and inures to the benefit of the Parties and their respective permitted successors and assigns.
(viii) Export Regulation. Customer agrees to comply with the export laws and regulations of the United States and any other country with jurisdiction over the Software and Services.
(ix) Counterparts. This Agreement may be executed in counterparts, each of which is deemed an original, but all of which together are deemed to be one and the same agreement.
(x) Attorneys’ Fees. Except as otherwise set forth herein, in the event that either Party finds it necessary to employ the services of any attorney to enforce any of its rights hereunder, the prevailing Party will be entitled to receive from the non-prevailing Party all of those costs it incurred including, but not limited to, the fees and costs of its attorneys, paralegals and consultants incurred as a result of such enforcement action and all appeals thereof.
(xi) Nature of Relationship. The nature of the Parties’ relationship under this Agreement will be that of an independent contractor. Nothing herein will be interpreted or applied to create a Partnership, joint venture, principal and agent, employment or other relationship between Eko and Customer.