(a) The accompanying [pricing quotation] (the “Confirmation Document”), these License Terms & Conditions (“Terms”) (collectively, this “Agreement”) comprise the entire agreement between Heru, Inc. (“Heru”) and the customer named on the Confirmation Document (“Customer”) with respect to the provision by Heru to Customer of the Headsets (as defined in Section 2(a)), and supersede all prior or contemporaneous understandings, agreements, negotiations, representations and warranties, and communications, both written and oral. These Terms prevail over any of Customer’s general terms and conditions of purchase regardless of whether or when Customer has submitted its purchase order or such terms. Fulfillment of Customer’s order does not constitute acceptance of any of Customer’s terms and conditions and does not serve to modify or amend these Terms. Heru and Customer are each, a “Party” and collectively, the “Parties”. For clarity, if applicable, Heru will execute and abide by Customer’s standard business associate agreement (“BAA”) and nothing contained in this Agreement shall limit or modify Heru’s obligations under the BAA.
(b) All orders for Headsets submitted by Customer are subject to acceptance by Heru. Acceptance of Headsets by Customer constitutes an agreement by Customer to be bound by these Terms, which constitutes the only binding Terms between the Parties, even if these Terms differ from or are in addition to those on any purchase order or other document sent to Heru by Customer.
2. Loaned Product; Licensed Product.
(a) Heru will loan to, and deposit on consignment with, Customer the number of augmented reality and/or virtual reality headsets (each, a “Headset”) set forth in the Confirmation Document for use during the Term (as defined in Section 12(a).
(b) Customer shall be subject to and bound by the terms and conditions applicable to the use or operation of the Headset(s) and any incorporated software developed by or on behalf of the manufacturer of such Headset or any Third Party software incorporated in such Headset(s) (“Incorporated Third Party Software”) (collectively, “Applicable Third Party Contractual Terms”).
If a Headset is a Magic Leap 1 Headset, the Applicable Third Party Contractual Terms to such Headset and any related Incorporated Third Party Software may be accessed at https://www.magicleap.com/en-us/legal and, in particular, shall include https://www.magicleap.com/en-us/legal/software-eula.
If a Headset is a Hololens 2 Headset, the Applicable Third Party Contractual Terms to such Headset and any related Incorporated Third Party Software may be accessed at https://www.microsoft.com/en-us/legal and shall include https://www.microsoft.com/en-us/Useterms/OEM/Windows/10Mobile/UseTerms_OEM_Windows_10Mobile_English.htm.
Customer acknowledges and agrees that Customer’s compliance with all of the provisions of this Agreement shall be in addition to, and not in lieu of, Customer’s obligation to comply with all of the Applicable Third Party Contractual Terms. Notwithstanding the foregoing, in the event of any conflict between any Applicable Third Party Contractual Terms and any of the terms of this Agreement, the terms of this Agreement shall supersede and control. “Third Party” means any Person other than Heru, Customer or an affiliate of either Heru or Customer. “Person” means an individual, sole proprietorship, partnership, limited partnership, limited liability partnership, corporation, limited liability company, business trust, joint stock company, trust, incorporated association, joint venture or similar entity or organization, including a government or political subdivision, department, or agency of a government.
(c) Heru hereby grants to Customer a non-exclusive, non-transferable, license during the Term to access, use and operate Heru’s proprietary hosted software application and the proprietary software that Heru installs on the Headsets prior to delivery, as well as all related documentation and all updates, enhancements, error corrections, bug fixes, release notes, upgrades and changes to such software and documentation developed by Heru from time to time during the Term and made generally available to Heru customers without a separate charge (collectively, the “Software”) with the Headsets provided pursuant to Section 2(a) and any Incorporated Third Party Software (collectively, “Products”) to evaluate and diagnose impairments in the visual field, visual alignment errors and other visual pathologies in patients.
(d) The licenses granted by Heru to the Customer with respect to the Software and the Incorporated Third Party Software, as well as the loan and consignment by Heru to Customer of the Headsets, are limited to Customer’s Permitted Users and Permitted Sites. “Permitted Users” means the Customer if the Customer is an eye care physician or a healthcare service provider or, if the Customer is an entity that owns and operates an ophthalmology practice, those eye care physicians or other healthcare service providers that work in such eye care practice and are designated by Customer in writing as “permitted users” of the Product. “Permitted Sites” means the location or locations in which Customer or any Permitted Users of Customer provide ophthalmology services to patients.
(e) Customer shall complete and return the user log document provided Customer by Heru with the names of Customer’s initial Permitted Users and the other information to be included in the user log, and shall update and return such user log to Heru promptly following any change in the identity of Permitted Users or Permitted Sites. Following receipt from Customer of such completed user log, Heru will deliver, or cause to be delivered, the Headset(s) to Customer, and Heru will provide each Permitted User with a personal and non-transferrable username and password to access the Software. If necessary to access, use or operate the Product or any component thereof, Heru will provide each Permitted User with a non-transferrable username and password to access, use or operate any Incorporated Third Party Software.
(f) Customer shall not: (i) modify, disassemble or reverse engineer any Headset (or any component thereof), modify, copy, translate, disassemble, decompile, or create any derivative works based on any Incorporated Third Party Software or the Software or any other component or aspect of the Product; (ii) rent, lease, license, loan, resell, transfer, distribute or otherwise make the Product or any component thereof (including, without limitation, all or any portion of any Headset, any Incorporated Third Party Software or the Software) available to any Third Party, it being understood that this does limit use of the Product by Permitted Users with respect to the diagnosis of patients; (iii) remove or alter any proprietary rights notices affixed to or contained within the Headsets, the Incorporated Third Party Software or the Software; (iv) mortgage, pledge or encumber the Product (or any component thereof) in any way (v) use or knowingly permit the use of any security testing tools in order to probe, scan or attempt to penetrate or ascertain the security of the hosted Software application(s); or (vi) attempt to gain access to the hosted Software or related systems or networks in a manner not set forth in the Documentation.
3. Product Support.
(a) Heru shall provide Customer Permitted Users with technical support and maintenance services for the hosted Software in accordance with the Documentation. “Documentation” means Heru’s online or hardcopy technical and/or functional user guides for the operation of the Software services, as modified from time to time. Heru may, from time to time change the support services without the consent of Customer provided that such changes do not materially affect the nature or scope of the services, or the fees set forth in the Confirmation Document.
(b) Customer will keep the Headset(s) in good condition and working order. Upon delivery of the Headset(s) to Customer and, until the Headset(s) is or are returned to Heru, Customer assumes and will bear the risk of all loss or damage to the Headset(s). Customer will promptly provide Heru with written notice of any loss or damage to the Headset(s).
(c) In the event that Customer identifies a defect or malfunction with the Headset or any Third Party Incorporated Software, Customer shall provide Heru with written notice of such defect or malfunction within two (2) business days of discovery thereof. Customer shall, within five (5) business days following discovery of any such defect or malfunction in any Headset (including any Incorporated Third Party Software), send via overnight courier, or deliver to Heru in person, the defective Headset. Heru will provide a replacement Headset in accordance with Section 4(c) using the procedure specified there for Nonconforming Headsets.
Replacement shall be at no charge unless the defect or malfunction is due to (1) damage to the Headset resulting from improper storage, misuse or abuse, mishandling, neglect, physical or electric modifications, exposure to water or other liquids, exposure to moisture, exposure to extreme conditions (e.g., heat, dirt or sand), (2) use with aproduct other than the Software, (3) use with inadequate ventilation, (4) use not in accordance with the provisions of Section 2, (5) unauthorized repairs. For clarity, any cosmetic damage (e.g., scratches) will not be deemed a defect or malfunction. For clarity, damage resulting from normal wear and tear and normal depletion of parts (e.g., batteries) unless occurring due to defective workmanship or materials in the hardware of your Product. For example, only batteries that leak or exhibit fully charged capacity below a certain threshold of the actual rated capacity will be considered defective for purposes of this Warranty.
(a) The Headset(s) will be delivered within a reasonable time after the receipt of the executed Confirmation Document. Heru shall deliver the Headset(s) to Customer FCA (Incoterms 2020) Heru’s facility using Heru’s standard methods for packaging and shipping Headsets.
(b) With respect to the Software, Customer shall cooperate with Heru in all matters relating to the provision of the Software and provide such access to Customer’s premises, and such office accommodation and other facilities as may reasonably be requested by Heru, for the purposes of providing the Software and related training (if any).
(c) Customer shall inspect the Headset(s) upon receipt. Customer will be deemed to have accepted the Headsets unless it notifies Heru in writing of any Nonconforming Headsets within three (3) business days following receipt. “Nonconforming Headsets” means only that the product shipped is different than identified in Customer’s Confirmation Document, or the product’s packaging incorrectly identifies its contents. If Customer timely notifies Heru of any Nonconforming Headsets, Heru shall replace such Nonconforming Headsets with conforming Headsets. Customer shall ship, at its expense and risk of loss, the Nonconforming Headsets to Heru’s facility identified in the Confirmation Document. Heru shall, after receiving Customer’s shipment of Nonconforming Headsets, deliver the replaced Headsets in accordance with Section 4(a).
5. Pricing; Payment.
(a) Customer shall pay Heru for the Products and related services as set forth in the Confirmation Document. Heru shall invoice Customer on a monthly basis. Each invoice shall set forth the Confirmation Document(s) number and the amounts being billed. As reasonably requested by Customer, Heru shall cooperate in good faith with Customer to promptly provide additional billing information.
(b) All payments of fees shall be made in U.S. Dollars by wire transfer of immediately available funds into an account designated by Heru. Payments shall be due within thirty (30) days following the invoice date. If Heru does not receive payment of any sum due to it on or before the due date, simple interest shall thereafter accrue on the sum due until the date of payment at the per annum rate of two percent (2%) over the then prime rate quoted by Citibank in New York City or the maximum rate allowable by Applicable Law, whichever is lower. “Applicable Law” means all applicable statutes, ordinances, regulations, rules, or orders of any kind whatsoever of any national, federal, state, local, municipal or other government authority of any nature (including any governmental division, subdivision, department, instrumentality, agency, bureau, branch, office, commission, council, court or other tribunal).
(c) Customer shall reimburse Heru for all reasonable costs incurred by Heru in collecting any late payments or interest, including attorneys’ fees, court costs and collection agency fees; and if such failure continues for more than forty five (45) days following written notice thereof, Heru may suspend performance until all past due amounts and interest thereon have been paid, without incurring any obligation or liability to Customer or any other Person by reason of such suspension unless Customer has complied with its obligations under Section 5(d).
(d) If Customer disputes any fees under this Agreement it shall pay any undisputed payment obligations (including undisputed portions of a payment obligation that is subject to a dispute) and the Parties shall promptly initiate dispute resolution in accordance with Section 13(b).
(d) Taxes arising from the activities conducted by Heru and Customer pursuant to this Agreement shall be borne and paid by the Party upon whom such tax is imposed by Applicable Law. All payments shall be made to Heru without deductions or withholding based on any taxes, unless agreed upon in advance by the Parties, or otherwise required by Applicable Laws. If the Parties agree that payments made pursuant to this Agreement are properly subject to withholding under Applicable Law, the Parties agree to work in good faith to mitigate, reduce or eliminate any taxes that could be imposed attributable to fees paid to Heru under this Agreement, including (but not limited to) cooperation in obtaining relief or exemption under the applicable double taxation treaty or the claiming of foreign tax credits.
(e) Heru may increase fees by providing written notice to Customer at least ninety (90) days prior to the price increase specifying those fees for which an adjustment is being made and the scope of the adjustment, and the applicable Confirmation Document(s) will be deemed amended accordingly.
6. Intellectual Property Rights.
(a) Heru and its licensors own all Intellectual Property Rights in and to the Product and its components (including the Software), and full ownership of the Product (including in each case any improvements) are and shall remain the property of Heru and its licensors. “Intellectual Property Rights” means all rights, title and interest to or in patent, copyright, trademark, service mark, trade secret, business or trade name, know-how and rights of a similar or corresponding character.
(b) All right, title and ownership of Customer Data is and shall remain solely and exclusively vested in Customer, including all Intellectual Property Rights relating thereto. “Customer Data” means the data provided by Customer or any Permitted User to Heru pursuant to this Agreement or generated, processed or analyzed by, or stored or collected in, the Product in the course of the use or operation of the Product by Customer or any Permitted Users pursuant to this Agreement; provided, however, that for purposes of this Agreement Customer Data shall not include “protected health information” as defined under the Health and Insurance Portability and Accountability Act of 1996 (42 U.S.C. § 1320d) (“PHI”), which PHI shall be governed by the terms of the BAA. Customer represents, warrants and covenants that it has obtained all necessary consents (including, without limitation, all necessary consents from patients of Customer or any Permitted Users) to provide or permit access to the Customer Data or PHI to Heru pursuant to this Agreement.
(c) Customer hereby grants to Heru a limited, non-exclusive, non-transferable, sublicensable, worldwide and royalty-free license to use the Customer Data in connection with the provision of the Product or any component thereof (including, without limitation, the Software) during the Term. Customer represents, warrants and covenants that it has obtained all necessary consents (including, without limitation, all necessary consents from patients of Customer or any Permitted Users) to grant to Heru the licenses and rights to set forth above in this Section 6(c).
(d) If Customer’s provides Heru with any suggestions with respect to enhancements, changes or adaptations for improving the Product that Customer may have (collectively, “Feedback”), including, without limitation, in the form of responses to questionnaires provided by Heru), Customer hereby irrevocably assigns and agrees to assign to Heru, all right, title and interest of Customer in and to the Feedback, and all rights to exploit the Feedback, or any parts thereof, by any and all means, whether now known or hereinafter developed, free and clear of any and all rights claimed by Customer or any Permitted User. In the event and to the extent that the Feedback cannot be assigned, Customer grants to Heru a perpetual, irrevocable, exclusive, transferable, sublicensable, worldwide and royalty-free license for Heru to use the Feedback for any purpose. Heru’s use of the Feedback shall be subject to Section 7(e) with respect to Feedback that is identified as provided by Customer.
(a) Each Party agrees that, during the Term and for a period of [five (5)] years thereafter, a Party (“Receiving Party”) receiving Confidential Information of the other Party (“Disclosing Party”) shall: (i) maintain in confidence such Confidential Information using not less than the efforts such Receiving Party uses to maintain in confidence its own confidential or proprietary information of similar kind and value, (ii) not disclose such Confidential Information to any Third Party without the prior written consent of the Disclosing Party, except for disclosures expressly permitted below, and (iii) not use such Confidential Information for any purpose except those permitted by this Agreement. Notwithstanding anything to the contrary in this Agreement, the obligations of confidentiality and non-use with respect to any trade secret within such Confidential Information shall survive such [5-year] period for so long as such Confidential Information remains protected as a trade secret under Applicable Law. For clarity, the obligations of Heru with respect to PHI are those specified in the BAA and not those specified in this Section 7.
“Confidential Information” means all proprietary information concerning the Product or any component of the Product, the Customer Data, the Feedback, the terms of this Agreement, and any other information that is confidential or proprietary provided by one Party to the other Party (“Receiving Party”) in any form.
(b) The obligations in Section 7(a) shall not apply with respect to any portion of the Confidential Information to the extent that the Receiving Party can show by competent evidence: (i) is publicly disclosed by the Disclosing Party, either before or after it is disclosed to the Receiving Party hereunder; (ii) is known to the Receiving Party or any of its Affiliates, without any obligation to keep it confidential or any restriction on its use, prior to disclosure by the Disclosing Party; (iii) is subsequently disclosed to the Receiving Party or any of its Affiliates on a non-confidential basis by a Third Party that, to the Receiving Party’s knowledge, is not bound by a similar duty of confidentiality or restriction on its use; (iv) is now, or hereafter becomes, through no act or failure to act on the part of the Receiving Party or any of its Affiliates, generally known or available, either before or after it is disclosed to the Receiving Party; (v) is independently discovered or developed by or on behalf of the Receiving Party or any of its Affiliates without the application or use of Confidential Information belonging to the Disclosing Party; or (vi) is the subject of written permission to disclose provided by the Disclosing Party.
(c) The Receiving Party may disclose Confidential Information belonging to the Disclosing Party in response to a court order or other legal requirement, provided that the Receiving Party will, except where impracticable or prohibited by Applicable Law, give reasonable advance notice to the Disclosing Party upon learning about any court order or other legal requirement that purports to compel disclosure of such Confidential Information and permits the Disclosing Party to the exercise its right to protect the confidentiality of the Confidential Information before any tribunal or governmental agency. If and when any Confidential Information is disclosed in accordance with this Section 7(c), such disclosure shall not cause any such information to cease to be Confidential Information except to the extent that such disclosure results in a public disclosure of such information (other than by breach of this Agreement).
(d) Each Receiving Party shall notify the Disclosing Party promptly on discovery of any unauthorized use or disclosure of the Disclosing Party’s Confidential Information by the Receiving Party or any of its Affiliates, agents or representatives.
(e) Neither Party shall make, place or disseminate any advertising, public relations, promotional material or any material of any kind using the name of the other Party or using their trademarks, without the prior written approval of the other Party. Without limiting the generality of the foregoing, upon receipt of written consent from the Customer to use Feedback for testimonials, reference accounts and marketing materials, such consent not to be unreasonably withheld, delayed or conditioned, Heru shall have to right to use the Feedback (as identified by Customer in its consent) for testimonials, reference accounts, marketing materials or other publicity purposes.
8. Data Security; Protected Health Information.
(a) During the Term, (i) Heru shall maintain administrative, physical and technical safeguards that reasonably and appropriately protect the confidentiality, integrity and availability of the Customer Data. [Heru shall maintain complete and accurate records relating to its data protection practices and the security of Customer Data, including any backup, disaster recovery or other policies, practices or procedures relating to Customer Data and any other information relevant to its compliance with Section 7 and this Section 8; and upon Customer’s request, make all such records, appropriate personnel and relevant materials available during normal business hours for inspection and audit by Customer or an independent data security expert that is reasonably acceptable to Heru, provided that Customer shall: (i) give Heru at least thirty (30) days prior notice of any such audit; (ii) undertake such audit no more than once per calendar year, except for good cause shown; and (iii) conduct or cause to be conducted such audit in a manner designed to minimize disruption of Heru’s normal business operations and that complies with the terms and conditions of all data confidentiality, ownership, privacy, security and restricted use provisions of this Agreement. Customer may, but is not obligated to, perform such security audits.
(b) Any failure of Heru to meet the requirements of this Agreement with respect to the security of any Customer Data or other Confidential Information of Customer, including any related backup, disaster recovery or other policies, practices or procedures, is a material breach of this Agreement for which Customer, at its option, may terminate this Agreement on written notice to Heru in accordance with Section 12(d) without any notice or cure period.
(b) Heru agrees to execute and abide by Customer’s standard business associate agreement (“BAA”). Nothing contained in this Agreement shall limit or modify Heru’s obligations under the BAA.
9. Compliance; Standards.
(a) Heru agrees to comply with 42 U.S.C. §1320a-7b(b)(3)(A) and the “safe harbor” regulations regarding discounts or other reductions in price set forth at 42 C.F.R. §1001.952(h). Heru represents and warrants that that any and all discounts described in this Agreement are earned based on purchases of the same good or service bought within a single fiscal year under this Agreement. Heru agrees to identify on each invoice, coupon, or statement in the net price and comply with such requests Customer may make from time to time in connection with any reporting obligations or, if the value of the discount is not known at the time of sale, Heru shall fully and accurately report the existence of the discount program on the invoice, coupon or statement submitted to Customer and when the value of the discount becomes known provide Customer with the documentation of the calculation of the discount identifying the specific goods or services purchased to which the discount will be applied. Heru shall refrain from doing anything which would impede Customer from meeting its obligations under this Section or applicable law or the safe harbor at 42 C.F.R. §1001.952(h).
(b) Heru represents and warrants that it and its directors, officers, and employees involved in the direct provision of healthcare services reimbursable under Medicare or Medicaid (if any) (i) are not currently and for the duration of this Agreement shall not excluded, debarred, or otherwise ineligible to participate in the Federal health care programs as defined in 42 U.S.C.A. §1320a-7b(f) (the “Federal Healthcare Programs”); (ii) have not been and for the duration of this Agreement shall not be convicted of a criminal offense related to the provision of healthcare items or services but have not yet been excluded, debarred, or otherwise declared ineligible to participate in the Federal Healthcare Programs; and (iii) are not, to the knowledge of Heru management, under investigation or otherwise aware of any circumstances which may result in being excluded from participation in the Federal Healthcare Programs. If Heru or its directors, officers, and employees involved in the direct provision of healthcare services reimbursable under Medicare or Medicaid (if any) is excluded or threatened to be excluded from participating in, or becomes otherwise ineligible to participate in, any such program during the term of this Agreement, Heru shall notify Customer of that event immediately. Notwithstanding any other provision in this Agreement, Customer shall incur no obligation to pay for Headsets provided during any period of exclusion of Heru from participation in any federal health care program or other federal or state government payment program and Heru agrees to reimburse Customer for any losses, including but not limited to lost revenue, incurred by Customer as a result therefore or arising therefrom. Any breach of this Section shall give Heru the right to terminate thisAgreement immediately as well as any other remedies available under this Agreement or otherwise.
(c) The Parties shall comply with the provisions of Section 1861(v)(l)(I) of the Social Security Act (as amended) and any regulations promulgated thereunder, and the Parties shall make available, upon written request of the Comptroller General of the United States, the Secretary of the Department of Health and Human Services, or any of their duly-authorized representatives, any books, documents, and records that are necessary to verify the nature and extent of costs incurred by either Party under this Agreement. The Parties obligation to make records available shall extend for four (4) years after the termination of this Agreement. This provision shall survive termination or expiration of this Agreement.
[(d) Each Party shall be responsible for tracking and reporting transfers of value initiated and controlled by its and its affiliates’ employees, contractors, and agents pursuant to the requirements of the transparency laws of any Governmental Authority in the Territory, including Section 6002 of the Patient Protection and Affordable Care Act, Pub. L. No. 111-148, as amended, commonly referred to as the “Sunshine Act.”]
10. Representations and Warranties.
(a) Each Party represents and warrants to the other Party that: (i) such Party has the full corporate power and authority to execute and deliver this Agreement and to consummate the transactions contemplated hereby and has taken all necessary corporate action to authorize the execution and delivery of this Agreement; (ii) this Agreement is and shall be the legal, valid, and binding obligation of such Party and shall be enforceable in accordance with its terms; (iii) such Party shall comply with all applicable privacy or data protection statutes, rules or regulations governing the respective activities of that Party; (iv) neither this Agreement nor any Confirmation Document , nor any payment thereunder, is in exchange for any explicit or implicit agreement or understanding that Heru purchase, lease, order, prescribe, recommend or otherwise arrange for, or provide formulary or other preferential or qualifying status for the use of Customer products; and (v) the total payment for the Headsets represents the Fair Market Value for the Services and has not been determined in any manner that takes into account the volume or value of any referrals or business between Heru and Customer. “Fair Market Value” means the compensation negotiated during an arm’s-length transaction in which neither Party is required to buy or sell and when both Parties have reasonable knowledge of the relevant facts.
(b) Heru represents and warrants to Customer that during the Term of this Agreement: (i) the Software shall perform substantially in accordance with the applicable Documentation when used and/or accessed in accordance with the terms and conditions of this Agreement; (ii) the functionality of the Software shall not be materially decreased; (iii) the Software will be reasonably accessible by Customer except for scheduled downtime for routine maintenance and service; and (iv) Heru has received clearance from the U.S. Food and Drug Administration (“FDA”) to commercially distribute, sell or market the Product in the U.S. based on a determination by the FDA of substantial equivalence (within the meaning of 21 C.F.R. § 807.100). Heru does not provide a warranty with respect to the Headsets and the Incorporated Third Party Software components of the Product, but will replace a defective Headset (including Incorporated Third Party Software) in accordance with the provisions of Section 3(c).
(c) Customer represents and warrants to Heru that during the Term of this Agreement the Headsets shall only be used by licensed healthcare service providers for the provision of ophthalmology-related medical services. Customer acknowledges that healthcare professionals (and not Heru) are solely responsible for determining the treatment regiments of patients and to apply and integrate the information obtained from the Product into day-to-day medical practice, and the Product is not intended as a substitute for professional medical judgment or Customer’s experience in evaluating patients, and Heru shall have no obligations or liability related to any failure on the part of Customer or any Permitted User (i) in the case of healthcare professionals, to exercise prudent professional judgment and (ii) in the case of patients, to follow the advice of healthcare professionals.
(d) EXCEPT AS EXPRESSLY SET FORTH IN THIS SECTION 10, NEITHER PARTY MAKES ANY REPRESENTATIONS OR WARRANTIES OF ANY KIND WHATSOEVER, EITHER EXPRESS OR IMPLIED, WRITTEN OR ORAL, EITHER IN FACT OR BY OPERATION OF LAW, BY STATUTE OR OTHERWISE, AND EACH PARTY SPECIFICALLY DISCLAIMS ANY OTHER WARRANTIES, INCLUDING ANY EXPRESS OR IMPLIED WARRANTY OF QUALITY, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR WARRANTY OF NON-INFRINGEMENT OF THIRD PARTY RIGHTS. HERU AND ITS LICENSORS MAKE NO WARRANTY THAT OPERATION OF THE PRODUCTS WILL BE UNINTERRUPTED OR ERROR FREE OR THAT ALL DEFECTS WILL BE CORRECTED EXCEPT TO THE EXTENT THAT THE SAME IMPACT THE FUNCTIONALITY OF THE PRODUCTS.
11. Limitation of Liability.
(a) Except for breach of Section 7 [or Third Party claims for indemnification under Section 11], IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR ANY INDIRECT, INCIDENTAL, PUNITIVE, EXEMPLARY, SPECIAL OR CONSEQUENTIAL DAMAGES (INCLUDING, BUT NOT LIMITED TO, LOSS OF PROFIT OR COSTS OF SUBSTITUTE SERVICES) SUFFERED BY EITHER PARTY, HOWEVER CAUSED, REGARDLESS OF THE THEORY OF LIABILITY, WHETHER IN CONTRACT, TORT, PRODUCT LIABILITY OR OTHERWISE, EVEN IF THE OTHER PARTY HAS BEEN PREVIOUSLY ADVISED OF THE POSSIBILITY, OR HAS CONSTRUCTIVE KNOWLEDGE, OF SUCH DAMAGES, AND NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE.
12. Term and Termination.
(a) The term of this Agreement shall commence on the Effective Date set forth in the Confirmation Document and shall, unless earlier terminated in accordance with Section 12(b)-(d), expire on second anniversary of the EffectiveDate (the “Term”).
(b) Either Party may terminate this Agreement upon at least thirty (30) days’ prior written notice to the other Party upon breach of this Agreement by such other Party, unless the Party in breach cures the breach within such 30-day period.
(c) Customer may terminate with notice in accordance with Section 8(b).
(d) Customer may terminate this Agreement without cause upon at least ninety (90) days’ prior written notice to Heru.
(e) Promptly following the termination or expiration of this Agreement, (i) Heru shall, if requested by Customer, provide to Customer a copy of all Customer Data in the format then maintained by Heru, excluding such Customer Data which has been aggregated and de-identified for use in accordance with Section 6(c); (ii) Customer shall return to Heru the Product (including, without limitation, all Headsets and the Documentation); and (iii) each Receiving Party shall, in accordance with the Disclosing Party’s request, either return to the Disclosing Party or certify in writing to the Disclosing Party that it has destroyed all documents and other tangible items containing the Confidential Information of the Disclosing Party. For clarity, Section 12(e)(iii) shall not require Heru to cease using the license granted it under Section 6(c) with respect to Customer Data which has been aggregated and de-identified for use in accordance with Section 6(c).
(f) Except as otherwise provided herein, termination or expiration of this Agreement for any reason will be without prejudice to any rights that will have accrued to the benefit of a Party prior to the effective date of such termination. The provisions of Sections 2(f), 3(b)(second sentence), 5(f), 6, 7, 10(d), 11(a), 12(e)-(f), 13(b)-(e) and 13(g)-(n) shall survive expiration or termination of this Agreement.
(a) U.S. Government Users. If Customer is a unit or agency of the United States Government, or if a license hereunder is acquired pursuant to a contract with any such unit or agency, Customer agrees that the Software, Third Party Included Software and Documentation are provided with Restricted Rights: Use, duplication, or disclosure is subject to the restrictions as set forth in the Rights in Technical Data and Computer Software clause at DFARS 252.227-7013 subparagraph (c)(1)(ii), or the Commercial Computer Software — Restricted Rights at CFR 52.227-19, subparagraphs (c)(1) and (2), as applicable. Manufacturer is Heru, Inc. 1951 NW 7th Avenue, Suite 600, Miami, FL 33136.
(b) Dispute Resolution. If Heru or Customer desires to institute legal proceedings concerning the transactions contemplated by this Agreement, such Party shall provide written notice to that effect to the other Party. The Party providing such notice shall refrain from instituting said legal proceedings for a period of thirty (30) days following the date of provision of such notice. During such period, the Parties shall attempt in good faith to amicably resolve their dispute by negotiation among their respective executive officers before instituting legal proceedings. Notwithstanding the provisions of this paragraph, either Party shall have the right to seek appropriate equitable relief, including injunctive relief, specific performance or other appropriate relief, without posting any bond or other security, (i) in the event of an actual or threatened breach of Sections 2 or 7 or (ii) as may be otherwise necessary to avoid irreparable damage or to preserve the status quo.
(c) Governing Law. This Agreement shall be governed by, subject to, and construed in accordance with the substantive laws of Florida without regard for any choice or conflict of laws rule or provision that would result in the application of the substantive law of any other jurisdiction. EACH OF THE PARTIES EXPRESSLY ACKNOWLEDGES AND AGREES THAT BY THIS PROVISION EACH IS WAIVING AND RELINQUISHING ITS RESPECTIVE RIGHT TO A JURY TRIAL IN ANY AND ALL DISPUTES BETWEEN THE PARTIES RELATING TO THIS AGREEMENT OR THE SERVICES CONTEMPLATED BY THIS AGREEMENT AND THAT ANY DISPUTE IN SUCH COURTS SHALL BE A BENCH TRIAL AND SHALL NOT BE A JURY TRIAL.
(d) Amendment and Waiver. No provision of or right under this Agreement shall be deemed to have been waived by any act or acquiescence on the part of either Party, its agents or employees, but only by an instrument in writing signed by an authorized officer of each Party. No waiver by either Party of any breach of this Agreement by the other Party shall be effective as to any other breach, whether of the same or any other term or condition and whether occurring before or after the date of such waiver.
(e) Independent Contractors. Each Party represents that it is acting on its own behalf as an independent contractor and is not acting as an agent for or on behalf of any Third Party. Neither Party is granted, and neither Party shall exercise, the right or authority to assume or create any obligation or responsibility on behalf of or in the name of the
other Party or its Affiliates. Each Party shall be solely responsible for compensating all its personnel and for payment of all related FICA, workers’ compensation, unemployment and withholding taxes. Neither Party shall provide the other Party’s personnel with any benefits, including but not limited to compensation for insurance premiums, paid sick leave or retirement benefits.
(f) Assignment. Customer may not assign or otherwise transfer, in whole or in part, this Agreement without the prior written consent of Heru, such consent not to be unreasonably withheld or delayed. Any assignment not in accordance with this Section 13(f) shall be null and void.
(g) Notices. All notices and other communications given or made pursuant to this Agreement shall be in writing and shall be deemed to take effect as follows: (i) upon receipt if delivered either in person on any business day (i.e., day that is not a Saturday, Sunday or national holiday in the U.S.) in the delivery location prior to 6 pm local time; or (ii) on the next succeeding business day if delivered in person on a non-business day or after 6 pm local time; or (iii) one (1) business day after having been delivered to a recognized air courier for overnight delivery (with delivery tracking provided, signature required and delivery prepaid); or (iv) if delivered by email, when the primary recipient, by an email sent to the email address for the sender stated on the Confirmation Document or by a notice delivered by another method in accordance with this Section 13(g) acknowledges having received that email, with an automatic “read receipt” not constituting acknowledgment of an email for purposes of this Section 12(g), in each case, to the Parties at the addresses set forth on the signature page (or at such other address for a Party as shall be specified by notice given in accordance with this Section 13(g)).
(h) Severability. In the event any provision of this Agreement shall for any reason be held to be invalid, illegal or unenforceable in any respect, such invalidity, illegality or unenforceability shall not affect any other term or provision hereof. The Parties agree that they will negotiate in good faith or will permit a court to replace any provision hereof so held invalid, illegal or unenforceable with a valid provision which is as similar as possible in substance to the invalid, illegal or unenforceable provision.
(i) Headings. The Section headings are inserted for convenience of reference only and are not intended to be a part of or to affect the meaning or interpretation of this Agreement.
(j) Word Meanings. Words such as herein, hereinafter, hereof and hereunder refer to this Agreement as a whole and not merely to a section or paragraph in which such words appear, unless the context otherwise requires. The singular shall include the plural, and each masculine, feminine and neuter reference shall include and refer also to the others, unless the context otherwise requires, the word “or” is used in the inclusive sense (and/or) and the word “including” is used without limitation and means “including without limitation”.
(k) Entire Agreement. The terms and provisions contained in this Agreement and the BAA constitute the entire understanding of the Parties with respect to the transactions and matters contemplated hereby and supersede all previous communications, representations, agreements and understandings relating to the subject matter hereof. No agreement or understanding extending this Agreement or varying its terms (including any inconsistent terms in any purchase order, acknowledgment or similar form) shall be binding upon either Party unless it is in a writing specifically referring to this Agreement and signed by a duly authorized representative of the applicable Party.
(l) Rules of Construction. The Parties agree that they have participated equally in the formation of this Agreement and that the language and terms of this Agreement shall not be construed against either Party by reason of the extent to which such Party or its professional advisors participated in the preparation of this Agreement.
(m) Counterparts. This Agreement may be executed in one or more counterparts, including by transmission of electronic or PDF copies of signature pages, each of which shall for all purposes are deemed to be an original and all of which together shall constitute one instrument.
(n) Force Majeure. Except as otherwise provided in this Agreement, in the event that a delay or failure of a Party to comply with any obligation created by this Agreement is caused by a Force Majeure condition, that obligation shall be suspended during the continuance of the Force Majeure condition. “Force Majeure” means any event beyond the reasonable control of a Party which is not attributable to a Party’s malfeasance or failure to exercise due diligence in the management of its affairs, including fire, flood, riots, strikes, epidemics, pandemics, acts of war (declared or undeclared and including the continuance, expansion or new outbreak of any war or conflict now in existence), acts of terrorism, embargoes and governmental or regulatory authority’s actions or decrees, any change of Applicable Laws that materially affects the Party’s performance of its obligations, except payment obligations, under this Agreement.