CARESIGHT, LLC END USER LICENSE AGREEMENT AND TERMS OF SERVICE

 AGREEMENT.

The following terms of service (collectively, the “Terms” or “Agreement”) govern the use of the CareSight, LLC data aggregation and analytic services (the “Service” or “Services”) and any associated use of the CareSight Technology and other Licensed Products offered by CareSight, LLC (below referred to as “CareSight,” “We,” “Our”, “Us”).

WE ARE WILLING TO LICENSE THE SOFTWARE AND/OR PROVIDE THE SERVICES TO YOU ONLY UPON THE CONDITION THAT YOU ACCEPT AND AGREE TO ALL THE TERMS CONTAINED IN THIS AGREEMENT. YOU REPRESENT THAT YOU HAVE READ AND UNDERSTAND ALL OF THE PROVISIONS OF THIS AGREEMENT. IF YOU DO NOT AGREE TO ALL OF THE TERMS OF THIS AGREEMENT, DO NOT DOWNLOAD, INSTALL, ORDER, RECEIVE OR USE THE SOFTWARE OR SERVICES. BY USING THE SERVICES OR SOFTWARE, OR EXECUTING BY DIGITAL SIGNATURE, OR BY CLICKING ON “I AGREE” BUTTON BELOW (IF ANY), YOU CONSENT TO BE LEGALLY BOUND BY ALL THESE TERMS. IF YOU ARE ENTERING INTO THESE TERMS ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY TO THESE TERMS, IN WHICH CASE THE TERMS “CUSTOMER”, “YOU” OR “YOUR” SHALL REFER TO SUCH ENTITY AS WELL AS YOU AS AN INDIVIDUAL USER. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH THESE TERMS, YOU MUST NOT ACCEPT THESE TERMS AND MAY NOT USE THE SERVICES.

  1. DEFINITIONS

The following definitions apply to this Agreement:

“Access Device” means a device, equipment or apparatus that may be installed at Your site(s) for the wired or wireless transmission to Us of Data that We will use in the provision of the Services under this Agreement.

“Affiliate” means, with respect to a Person, any other Person that directly or indirectly, through one or more intermediaries, controls, is controlled by, or is under common control with, such Person. For purposes of this definition, the word “control” (including the words “controlled by” and “under common control with”) means the direct or indirect power to direct or cause the direction of the management and policies of a Person, whether through the ownership of voting securities, by contract, or otherwise.

“Aggregated Data and Analytics” mean the Data, information, analytics, materials, reports or other content of any type and in any format, medium or form that is the output or result of the use of CareSight Software or that arises from any use of the CareSight Services or Technology.

“Authorized Representative” means an official with the legal authority to give assurances, make commitments, enter into contracts, and execute such documents on behalf of Customer.  The signature of the Authorized Representative certifies, on behalf of Customer, that commitments made in this Agreement will be honored.

“CareSight Software” means the software described in section 6, below.

“CareSight Technology” means technology, information, trade secrets, patent rights, copyrights, know-how and documentation associated with CareSight Software and services (including the Software covered by this Agreement) as provided or otherwise made available by CareSight and used in the performance of the Services, including all intellectual property rights and Derivative Works therein, on a worldwide basis.

Data” means any data, information, and other content (regardless of whether de-identified) of any type and in any format, medium, or form, whether audio, visual, digital, screen, GUI, or other, that is input, submitted, uploaded to, placed into or collected, stored, processed, generated, or output by any device, system, or network by or on behalf of a Party (or any of its licensors or Affiliates) or otherwise relating to a Party (or any of its licensors or Affiliates) and arising out of or relating to this Agreement, including any and all data, analyses, and other information and materials resulting from any use of a Party’s products or documentation under this Agreement.

“Derivative Work” means any modification of or extensions to any software, process, algorithm, trade secret, work of authorship, invention, or to any other intellectual property right therein or thereto.

“Operator” means Customer and any of the Customer’s employees, representatives, consultants, agents, contractors or other Persons expressly permitted by the Customer in connection with Customer’s business affairs who use the Services and have been supplied user identifications and passwords by the Customer or by CareSight at the Customer’s request.

“Party” means any of the following: CareSight and/or CareSight Affiliate(s), Customer and/or Customer Affiliate(s), collectively, the “Parties.”

Person” means any natural person, corporation, limited liability company, general partnership, limited partnership, trust, proprietorship, joint venture, business organization, or government, political subdivision, agency, or instrumentality.

“Personal Data” means nonpublic, personally identifiable information of or concerning any individual among the consumers, employees, clients and customers of Customer, its parent, subsidiaries, affiliates and agents.

“Professional Contracting” means services provided by CareSight on a time and materials or fixed price basis for custom dashboards, reports, alerts, real time interfaces or any customer identified project or scope of work not covered by this Agreement and for training related to any of the foregoing..

Reporting Unit” means each electronic apparatus, device, monitor, alarm, emergency or call button or switch, or other mechanism for which data is transmitted or otherwise acquired by the CareSight Products on an unaggregated, patient-by-patient and/or staff member-by-staff member basis.

“Support” means the technical support to Customer and its Operators offered by CareSight with the Services.

“Updates” mean bug fixes, hot-fixes or other minor modifications to the CareSight Software which are not deemed by Us in Our sole discretion to be an Upgrade.

“Upgrades” mean any modifications to the CareSight Software or Services which are determined in Our sole discretion to provide enhanced functionality or performance, or that otherwise improve, add to, delete or otherwise materially modify any aspect of the CareSight Software or Services.

  1. YOUR SUBSCRIPTION.
  2. We offer subscription-based Services directly and through authorized third party resellers. For a list of authorized resellers, please visit the following URL: https://caresight.com/become-a-partner/. We will not honor subscription agreements offered by non-authorized resellers. For subscriptions for Services obtained by You through authorized resellers, Services will only be provided by Us during the Period of the applicable agreement between Us and that reseller and only in accordance with the terms and conditions set forth in that agreement.

 

  1. By subscribing to the Services and agreeing to these Terms, You have a limited, non-exclusive, royalty-free (apart from fees for Services and the costs or expenses for Access Devices used to collect Data), non-transferable and terminable license to access and to use the Services, CareSight Technology, CareSight Software and Aggregated Data and Analytics (collectively the “Licensed Products”) solely for Your internal business operations during Your subscription period specified in the applicable contract through which the Services are ordered provided that You are compliant with these Terms. You are expressly prohibited from sublicensing use of the Licensed Products to third parties. You hereby agree that you shall retain full, unconditional responsibility for all third party access to and use of the Licensed Products under this Agreement and all compliance herewith. You hereby agree that neither You nor your Affiliates or customers shall take any action intended to interfere with or disrupt the Services or any other user’s use of CareSight Services, CareSight Software or Technology.
  2. During your subscription period pursuant to a contract entered into by Your Authorized Representative, We or the authorized third party reseller with which You contracted shall: (a) provide to You (and not to your customers or Affiliates) any support included with Your subscription purchase during normal business hours or as otherwise scheduled by CareSight for the Services, (b) use commercially reasonable efforts to make the Services available 24 hours a day, 7 days a week, except for:

(i) Maintenance or other planned downtimes, for which We will use commercially reasonable efforts to notify You in advance through Our site and/or a notice via email based on your account settings within the Services, or by using Notification capabilities within the Services (if available); or

(ii) For any unavailability caused by circumstances beyond our reasonable control, including without limitation, acts of God, acts of government, flood, fire, earthquakes, civil unrest, acts of terror, strikes or other labor problems, or Internet service provider failures, outages or delays, power failures or outages (collectively “Extraordinary Circumstances”).

  1. Extended support and Professional Contracting are available for a separate fee. Fee, coverage and terms information are available from CareSight and will be included in an order upon request.
  2. Your use of the Licensed Products is expressly limited to and licensed only for the duration of the applicable contract Period and any trial period, provided that You are and remain compliant with this Agreement, except as otherwise provided in these Terms. You acknowledge and agree that You will not have access to historical information or data, including Aggregated Data and Analytics related to Your use of the Services upon expiration or termination of Your contract for use of the Services except as follows. Upon expiration or termination of this Agreement You shall have the following access to previously compiled Aggregated Data and Analytics in CSV file format or as otherwise agreed.  If Your contract with CareSight or an applicable reseller expires or is terminated or this Agreement is terminated pursuant to the Terms herein, Your Aggregated Data and Analytics, previously compiled during the contract Period, will be available for one year from the date the contract Period expires or is terminated or this Agreement is terminated, whichever ends sooner.  If We grant online access, it will be available at a URL to be provided by Us.

 

  1. SUBSCRIPTION FEES, BILLING AND RENEWAL.
  2. Paid Subscription. By subscribing to the Services directly with Us pursuant to a purchase order subject to Our written acceptance or other form of contract, you expressly agree to pay subscription fees, corresponding to your subscription plan, plus any applicable taxes and duties, if any. During any Period that you remain in good standing, We will, unless either Party gives the other written notice of non-renewal at least 30 days before the end of the initial term or any renewal term, automatically renew for an additional Period equal to the expiring Period (each as defined below).

(i) Your Subscription. Fees are billed by Us as of the Service commencement date for the entire initial subscription Period (at least twelve months as set forth on the order form for the Services (the “Initial Period”)) of the subscription and for each additional renewal Period of the same length (a “Renewal Period”), for the initial minimum commitment of Reporting Units specified in the applicable subscription contract or  purchase order, net of any contractual discount (the “Minimum Commitment”).

(ii) For subscriptions procured directly from Us, any increase in the actual number of Reporting Units in any month above the derived daily Minimum Commitment paid for during the Period will be billed to You by CareSight for each month of service, upon the end of the applicable month, via invoice, which shall be due and payable in accordance with CareSight’s standard terms.

  1. Usage Fees. Your usage fees shall be determined by the number of connected Reporting Units monitored by the Services during the Period in question, measured on a daily basis. The pricing during any automatic Renewal Period will be the same as the pricing during the immediately prior Period unless We or other authorized selling party have given You written notice of a pricing increase at least 30 days before the end of that prior Period, in which case the pricing increase will be effective upon renewal and thereafter.
  2. Payment Methods. If We are billing you directly, during the registration process, You will choose a business charge card or domestic electronic funds transfer (“ACH”) bank account for directly charging Your subscription fees and any other applicable costs or expenses. You hereby authorize us to automatically debit your designated charge card or ACH bank account for the subscription fees until You cancel your subscription, and We reserve the right to delay or suspend access to the Services unless these accounts are designated and maintained. Subscription fees are fully earned upon payment and except as otherwise specified herein, the payments are nonrefundable and shall not be subject to any offset, discount, allowance, set-off, recoupment or other deduction. In addition, there are no refunds or credits for partial subscription periods. If You would like to change Your payment method or details, such as Your credit card validity or expiration date, you may access and edit your account information through Our application. CareSight uses a third-party intermediary to manage credit card processing and this intermediary is not permitted to store, retain nor use Your billing information except to process your credit card information for the CareSight Services.

 

If your subscription is being invoiced to you by a CareSight authorized reseller, its payment terms and conditions will apply for the duration of the subscription Period covered by your agreement with such authorized reseller.

 

When Payments are Due. All payments due to CareSight shall be due and payable upon receipt of a billing notice or invoice (the “due date”) unless otherwise agreed in writing.  You are responsible for paying any taxes (including without limitation any sales, use or withholding taxes now or hereafter enacted), and any duties, excises or tariffs (together “duties”), that are applicable to receipt of the Services (provided that You shall not be responsible for any taxes based on CareSight’s income). All payments hereunder shall be made without deduction for taxes or duties of any kind or nature. However, if We determine in Our sole judgment that we are legally obligated to add taxes to Your amounts due, We will include such taxes in your Services contract, order or invoices and the full amount inclusive of such taxes will be due and paid. Late payments will be subject to late fees at the rate of one percent (1%) per month, or, if lower, the maximum rate allowed by law. Our obligations under this Agreement are conditioned upon Your timely payment. If You fail to pay fees within thirty (30) days following the payment due date, such lateness shall be considered an incident of default under this Agreement and CareSight has the right to suspend performance of the Services and seek all remedies available, and You agree to reimburse our reasonable expenses, including attorneys’ and other fees incurred in collecting amounts due. Payments received after default shall be applied against late fees, interest, expenses, and principal as we determine in its sole discretion. The Services will be reinstated at Our discretion after all current and overdue amounts and accumulated late fees and expenses are paid.

  1. Free Trials. We may offer a free trial of our Services from time to time. Free trials are for a limited period of time and may be for limited features of the Services. To view specific details of or eligibility for a free trial, visit our website or communicate with a CareSight representative. We may require You to register and designate a payment method even for the free trial. We retain the right to begin charging Your designated payment method for monthly subscription fees plus any applicable tax at the end of the free trial unless You cancel prior to the end of the free trial period.  Your subscription shall be deemed to have commenced at the end of the free trial period.
  2. TERM AND TERMINATION. This Agreement is in force from the earlier of your electronic acceptance of these terms or use of the Services or CareSight Software and subject to any earlier termination permitted in this Agreement, will remain in force for the duration of your usage of the Services through any trial and subscription Period. Except where your early termination is pursuant to CareSight’s uncured material breach (pursuant to subsection (i) below) (in which case we will promptly refund to you the prepaid fees (if any) for that portion of the terminated period for which Services were not provided), early termination of a subscription or ceasing Your use of the Services will not result in a refund of any prepaid fees. Either Party may terminate this Agreement during the Term by written notice: (i) if the other party breaches any material term or condition of this Agreement and, assuming such default is capable of cure, fails to cure such default within thirty (30) days after written notice specifying the default (except in the case of failure to pay fees, which must be cured within fifteen

(15) days after any late notice), (ii) if the other party becomes insolvent or admits in writing its inability to pay its debts as they mature or makes an assignment for the benefit of creditors; or (iii) if a petition under the United States Bankruptcy Act, as it now exists or as it may be amended, or any similar law of any other jurisdiction, is filed concerning the other party.  In the event that You subscribe for Services through an authorized CareSight reseller, We may suspend or terminate the Services provided to You, suspend or terminate Your rights to access and use the CareSight Licensed Products and/or suspend or terminate Your account if: if: (a) We are notified by the reseller of Your failure to pay amounts due to reseller with respect to Your subscription to the Services; or (b) reseller fails to pay any amounts due to Us pursuant to the reseller agreement with respect to Your subscription for CareSight Services. You consent to these suspension and termination rights and acknowledge and agree that We shall have no liability to You of any kind with respect to any such suspension or termination.  Your sole recourse with respect to any such suspension or termination shall be against the reseller.  Additionally, CareSight has the right to suspend your password, account, access or use of the Services and/or CareSight Licensed Products and this Agreement shall terminate immediately upon written notice issued and effected in Our sole discretion upon receiving information we believe is credible regarding the unauthorized use or disclosure of the CareSight Licensed Products, or the breach of any part of Sections 6, 7 or 8 hereof. Professional Contracting is separately ordered from the Services. A breach by a Party of its obligations with respect to Professional Contracting shall not by itself constitute a breach by that Party of its obligations with respect to the Services even if the services are enumerated in the same Order Form.

  1. OUR SOFTWARE.
  2. The Services are enabled by and utilize a hosted software application (the “Hosted Software”). We shall host the Hosted Software and may update the functionality and user interface of the Hosted Software from time to time in our sole discretion as part of our ongoing mission to improve the Services and our users’ use of the Services. You must have access to the Hosted Software in order to use the Services. In addition, to use the Services fully you may be required to download and install a piece of our software on your network (the “Reader Software”). The CareSight Hosted Software and CareSight Reader Software individually and together constitute the “CareSight Software”. You may also be required to have an Access Device installed on your premises.  You agree to maintain up-to-date industry-standard security measures and protection against system viruses and malware that could affect, interrupt or otherwise cause malfunctions of the Reader Software.
  3. You agree that the rights granted to you are provided on the condition that you will not (and will not allow, give permission to or enable any third party, including without limitation any customer or Affiliate, to) copy, create a Derivative Work of, reverse engineer, reverse assemble, disassemble, decode or decompile the CareSight Software or any part thereof or otherwise attempt to discover any source code, modify or adapt the CareSight Software in any manner or form, or use or derive gain from unauthorized or modified versions of the CareSight Software, including (without limitation) for the purpose of building a similar or competitive product or service or for the purpose of obtaining unauthorized access to the Services. You agree to notify CareSight promptly in writing upon knowledge of any threatened or actual unauthorized access or use of CareSight Software or other Licensed Products or the breach of any condition in this section.
  4. License. Subject to your compliance with the terms of this Agreement, we hereby grant to you a limited, non-exclusive, royalty-free (apart from the fees paid to CareSight for the Services), nontransferable license to download, install and use the CareSight Software (in object code form) onto your network for internal business purposes for the sole purpose of using the CareSight Services. The CareSight Software is not sold but licensed hereunder. Also subject to your compliance with the terms of this Agreement, we hereby grant to you a limited, non-exclusive, royalty-free (apart from the fees paid to CareSight for the Services), nontransferable license to use the other Licensed Products.
  5. OWNERSHIP.
  6. You acknowledge and agree that the CareSight Software and other Licensed Products, including the specific design and structure of individual programs, components and aspects thereof, constitute the proprietary trade secrets and copyrighted material of CareSight, and that CareSight owns all rights, title and interest in and to the CareSight Software and other Licensed Products including the processes, formulas, algorithms, system architecture, database schemas, and methodology used in the production thereof, including all copyrights and other intellectual property inherent therein. The license granted to you is limited by these Terms and does not convey any other rights, title or interest in the Licensed Products, express or implied, nor does it grant any ownership in the Licensed Products or any intellectual property rights therein or thereto. Any rights not expressly granted herein are reserved by CareSight.
  7. You agree that if you make any customizations or customized implementations of the CareSight Software or CareSight Technology that do not qualify as Derivative Works (“Implementations”), such Implementations are hereby licensed to us on a non-confidential, nonexclusive, irrevocable, worldwide, royalty-free, sub-licensable basis to perform services, use, distribute, publish, display, copy, sell, have sold, make, have made, create Derivative Works of, import, export, and license the Implementations and products and services utilizing or incorporating the Implementations, and to otherwise commercially exploit the same. Notwithstanding the foregoing, the Implementations shall not include Personal Data or any of your Confidential Information (each as defined in Section 8 below).
  8. You agree not to remove any copyright or proprietary legends in the CareSight Software, CareSight Technology or other Licensed Products, and to implement reasonable security measures to protect our proprietary rights therein from unauthorized use or disclosure. Certain marks, words and logos displayed on the Services, which may or may not be designated by a “™” “®” “SM” or other similar designation, constitute trademarks, trade names, or service marks belonging to us or our licensors. Except as strictly necessary for you to make use of the Services in accordance with the license rights herein, you are not authorized to use any such marks. Ownership of all such marks and the goodwill associated therewith remains with us or our respective licensors.
  9. You agree that, upon termination of this Agreement or if the Service is not renewed for additional Terms, you will, and will cause your employees, contactors, agents and representatives (and, if applicable, Affiliates) to, promptly return or destroy (at CareSight’s option) all CareSight Licensed Products and Access Devices.
  10. CONFIDENTIALITY.
  11. The Parties agree that during the course of performance under this Agreement, each Party may disclose to the other Party certain technical and/or non-technical information, which (i) is disclosed in a tangible or visual form and clearly labeled as “Confidential”; (ii) is disclosed in an oral, non-tangible or visual form, identified at the time of disclosure as Confidential and confirmed in writing within thirty (30) days; or (iii) is identified and treated as confidential by disclosing Party and given the circumstances of disclosure, and/or the nature of the information, the recipient knew or should reasonably have known the information was confidential (collectively, the “Confidential Information”). For purposes of clarification and in addition to the Confidential Information addressed in the previous sentence, CareSight Technology shall be deemed our Confidential Information and Personal Data shall be deemed your Confidential Information. Confidential Information does not include information, technical data or know-how which (a) is in the possession of the receiving party at the time of disclosure as shown by the receiving party’s files and records immediately prior to the time of disclosure; or (b) prior or after the time of disclosure becomes part of the public knowledge or literature, not as a result of any inaction or action of the receiving party, or (c) is approved for release by the disclosing party, or (d) is independently developed by the receiving party without reference to or use of any Confidential Information of the disclosing party.
  12. Each Party agrees not to use the Confidential Information disclosed to it by the other Party for any purpose except as necessary to perform its obligations under these Terms. Neither Party will disclose the Confidential Information of the other party to third parties or to the first Party’s employees except employees and service providers who are required to have the information in order to carry out such Party’s obligations hereunder who have agreed in writing, as a condition of employment, engagement or otherwise (or who are otherwise bound by fiduciary duty or rules of professional conduct), to protect the Confidential Information with terms no less stringent than are imposed by this Section. Notwithstanding the above, CareSight may use aggregate information to measure general Service usage patterns and characteristics of its user base (the “Usage Information”), and may include such Usage Information in promotional materials or reports to third parties; provided that CareSight shall ensure that all Usage Information is anonymized, de-identified, modified and rendered in such a manner so as not to not identify Customer or its suppliers, customers, contractors, agents, affiliates, or subsidiaries. This Usage Information will not reference Personal Data, names, phone numbers, email addresses, or other personally identifiable information, and shall not be traceable to a specific party. Each Party agrees that it will use the same standard of care that it uses in protecting its own Confidential Information, but in no case less than reasonable care. Each Party agrees to promptly notify the other in writing of any misuse or misappropriation of Confidential Information of the other party that may come to its attention.
  13. The confidentiality and non-use obligations of each receiving Party under this Agreement will survive expiration or termination of this Agreement for a period of five (5) years; except that such obligations shall survive indefinitely with respect to each disclosing Party’s software and technology-based trade secrets so long as they remain eligible for trade secret under prevailing law (without regard to any breach of the receiving party). In the event of any expiration or termination of these Terms, or upon request by the disclosing Party, the receiving Party shall cease all use of the other Party’s Confidential Information and return to the disclosing Party all copies of the disclosing Party’s Confidential Information in the receiving Party’s possession or control, or destroy the same and certify as to its destruction. Except for the CareSight Software, the CareSight Technology and any portion thereof, the receiving Party will not be required to return or immediately destroy an archive copy of the disclosing Party’s Confidential Information made for backup purposes in the ordinary course; provided that such archive copy will be subject to the ongoing obligations of confidentiality and non-use contained herein and shall be destroyed upon the normal expiration of backup files.
  14. The Parties acknowledge and agree that although the incidental capturing of nominal Personal Data in connection with the Service may occur (for example, credentials information and in log files with transactional monitoring, and names and contact information of employees of each Party as

needed to conduct the Services and business relationship), the purpose and focus of the Service is on alerting or alarm device data collection and reporting and not to function as a receptacle to store, manipulate or retrieve Personal Data.  Therefore, without limiting its other obligations under this Agreement, and subject to the foregoing caveats, You agree that You shall not provide Personal Data to CareSight.

  1. You agree that CareSight and Our third party service providers that are utilized by Us to assist in providing the Services to You shall have the right to access Data made available to us as part of the Services and to use, modify, reproduce, distribute, display and disclose such Services Data to the extent necessary to provide or improve the Services, including, without limitation, in response to Your support requests. Any third-party service providers utilized by Us will only be given access to Your Services Data as is reasonably necessary to provide the Services and will be subject to confidentiality obligations substantially consistent with those set forth in this Agreement.

 

  1. REPRESENTATIONS AND WARRANTIES.
  2. Representations. Each Party hereby represents and warrants to the other that (i) such Party has the right, power and authority to enter into these Terms and to fully perform all its obligations hereunder; and (ii) the making of these Terms does not violate any agreement existing between such Party and any third party. Customer further warrants that it has accurately identified itself on the signature page of the Agreement, the Order Form and through the subscription service registration process and will maintain the accuracy of such identification via the Services.
  3. Limited Service Warranty.

We warrant that we will use commercially reasonable efforts to deliver and perform the Services in a good and workmanlike manner consistent with applicable industry standards.

  1. INDEMNIFICATION.
  2. By CareSight. We shall, at our own expense, indemnify You from and against any damages finally awarded in a final adjudication on the merits, to the extent of any finding therein that the CareSight Technology, when used in strict compliance with the license rights and use instructions provided by CareSight infringed or misappropriated a third party’s U.S. copyright or U.S. trade secret rights, provided We receive prompt notice and the opportunity to provide the defense and participate in the litigation and settlement negotiations. Notwithstanding the foregoing, We shall have no liability, and shall have no obligation to defend or indemnify You, for any third party claim of infringement to the extent based upon or related to (i) use of other than the then current, unaltered version of the CareSight Technology, Software and applicable Services, unless the infringing portion is also in the then current, unaltered release; (ii) use of the Services or CareSight Software or Technology other than strictly in accordance with our instructions and documentation; (iii) use, operation or combination of the applicable Services with non-CareSight programs, data, equipment or documentation if such infringement would have been avoided but for such use, operation or combination; or (iv) any third party hardware or software. In the event the use of any Service or CareSight Technology is, or we believe is likely to be, alleged or held to infringe any third party intellectual property right, we may, at our sole option and expense, (a) procure for you the right to continue using the affected service, (b) replace or modify the affected service with functionally equivalent service so that it does not infringe, or, if either (a) or (b) is not commercially feasible, (c) terminate the Services and refund the fees received by us from you for the affected service for the remaining Term of then-current subscription Period. THE FOREGOING CONSTITUTES OUR ENTIRE LIABILITY, AND YOUR SOLE AND EXCLUSIVE REMEDY WITH RESPECT TO ANY THIRD PARTY CLAIMS OF INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS OF ANY KIND OR NATURE.
  3. By You. You shall defend, indemnify and hold Us harmless from and against any and all claims, damages, obligations, losses, liabilities, and expenses (including without limitation reasonable attorney’s fees) arising from: (i) Your violation of these Terms; (ii) Your negligence or more culpable act or omission; or (iii) Your violation of any third party intellectual property or privacy right; provided, that We (a) promptly give You written notice of the claim; (b) give You control of the defense and settlement of the claim (provided that you may not settle any claim unless the settlement unconditionally releases Us of all liability); and (c) provide to You all reasonable assistance, at your expense. We may participate in the defense and settlement activities with counsel of our choosing at Your expense.
  4. DISCLAIMERS, LIMITATION OF DAMAGES AND LIABILITY.
  5. DISCLAIMERS AND EXCLUSIVE REMEDY. EXCEPT FOR THE REPRESENTATIONS AND LIMITED WARRANTY IN SECTIONS 9.A (REPRESENTATIONS) AND 9.B. (LIMITED SERVICE WARRANTY), THE LICENSED PRODUCTS, INCLUDING SERVICES, CARESIGHT SOFTWARE AND CARESIGHT TECHNOLOGY ARE PROVIDED “AS IS” WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED OR ANY WARRANTIES ARISING FROM A COURSE OF DEALING OR TRADE USAGE INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, NONINFRINGEMENT, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT. NOR DO WE WARRANT THAT THE CARESIGHT LICENSED PRODUCTS, INCLUDING SOFTWARE, TECHNOLOGY OR SERVICES, WILL ACHIEVE ANY INTENDED RESULT, BE UNINTERRUPTED OR ERROR-FREE. NOR DO WE MAKE ANY REPRESENTATIONS OR WARRANTIES REGARDING THE SECURITY, ACCURACY, RELIABILITY, TIMELINESS OR PERFORMANCE OF THE SERVICES. WE MAKE NO REPRESENTATIONS OR WARRANTIES ABOUT THE SUITABILITY OF THE CARESIGHT TECHNOLOGY OR SERVICES FOR ANY PURPOSE AND DO NOT WARRANT THAT THE CARESIGHT TECHNOLOGY OR SERVICES WILL MEET YOUR OR OTHER PERSONS’ REQUIREMENTS. IN THE CASE OF A BREACH OF WARRANTY BY CARESIGHT, YOUR SOLE AND EXCLUSIVE REMEDY SHALL BE TO RECEIVE A SUBCRIPTION FEE REFUND OF AMOUNTS PAID DIRECTLY TO CARESIGHT IN THE AMOUNT OF THE CURRENT UNUSED PORTION OF YOUR AGREEMENT.   NO EMPLOYEE OR AGENT OF CARESIGHT OR RESELLER IS AUTHORIZED TO MAKE ANY STATEMENT THAT ADDS TO OR AMENDS THE WARRANTIES OR LIMITATIONS CONTAINED IN THESE CARESIGHT TERMS AND CONDITIONS.
  6. INDIRECT AND CONSEQUENTIAL DAMAGES. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, EXCLUDING THE INDEMNIFICTION OBLIGATIONS IN SECTION 10, OR CLAIMS, LIABILITIES OR LOSSES ASSOCIATED WITH A BREACH OF YOUR OBLIGATIONS UNDER SECTIONS 6 THROUGH 8, IN NO EVENT WILL EITHER PARTY BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES ARISING OUT OF OR IN ANY WAY RELATING TO THESE TERMS, THE SERVICES PROVIDED, OR THE USE OF OR INABILITY TO USE THE SERVICES INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF GOODWILL, WORK STOPPAGE, LOST PROFITS, LOSS OF DATA, COMPUTER FAILURE OR ANY AND ALL OTHER COMMERCIAL DAMAGES OR LOSSES EVEN IF ADVISED OF THE POSSIBILITY THEREOF AND REGARDLESS OF THE LEGAL OR EQUITABLE THEORY (CONTRACT, TORT, STRICT LIABILITY OR OTHERWISE) UPON WHICH THE CLAIM IS BASED.
  7. LIMITATION OF LIABILITY. IN NO EVENT WILL CARESIGHT’S AGGREGATE, CUMULATIVE LIABILITY ARISING OUT OF OR RELATING TO THESE TERMS AND ALL ORDER FORMS EXCEED THE AMOUNTS RECEIVED BY US FROM YOU DURING TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE FIRST EVENT GIVING RISE TO LIABILITY, WITH RESPECT TO THE PARTICULAR SERVICE GIVING RISE TO LIABILITY UNDER THE MOST APPLICABLE ORDERING DOCUMENT. THIS LIMITATION IS CUMULATIVE FOR ALL CLAIMS HOWSOEVER ARISING UNDER ALL AGREEMENTS AND ORDERING DOCUMENTS, AND THIS LIMITATION SHALL APPLY EVEN IF THE REMEDIES PROVIDED IN THIS AGREEMENT SHALL FAIL OF THEIR ESSENTIAL PURPOSE.
  8. BASIS OF BARGAIN. YOU ACKNOWLEDGE AND AGREE THAT THE FOREGOING SECTIONS ON WARRANTIES AND DISCLAIMERS, INDEMNIFICATION AND LIMITATION OF LIABILITY FAIRLY ALLOCATE THE RISKS BETWEEN THE PARTIES AND ARE ESSENTIAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN THE PARTIES. YOU EXPRESSLY ACKNOWLEDGE THAT THE FEES THAT WE CHARGE FOR THE SERVICES ARE BASED UPON OUR EXPECTATION THAT THE RISK OF ANY LOSS OR INJURY THAT MAY BE INCURRED BY USE OF THE SERVICES WILL BE BORNE BY YOU AND NOT US AND WERE WE TO ASSUME ANY FURTHER LIABILITY OTHER THAN AS SET FORTH HEREIN, SUCH FEES WOULD OF NECESSITY BE SET SUBSTANTIALLY HIGHER.
  9. Regulatory Matters – Medical Devices
  10. Neither Party will seek any licenses, permits, or approvals or make any determinations that may result in any of the other Party’s products or services being deemed regulated as a medical device or that may impose any obligations or limitations on the other Party with respect to the regulatory status of any of the other Party’s products or services; and
  11. If Customer or any third party decides to seek any licenses, permits, or approvals or to take any action that may result in Reporting Units, Access Devices or other devices necessary for the working of Reporting Units being deemed regulated as a medical device or that may impose any obligations or limitations on any of the Reporting Units, Access Devices or other devices with respect to their regulatory status, and those obligations or limitations affect the conduct of either or both Parties’ performance under this Agreement or either Party’s rights or obligations under this Agreement, then Customer will immediately notify the CareSight, and will use commercially reasonable efforts to minimize the effect of such regulation, obligation, or limitation, to the extent reasonably practicable.

 

  1. GENERAL PROVISIONS.
  2. Notices. You agree to provide CareSight with your e-mail address, to promptly provide CareSight with any changes to your e-mail address, and to accept e-mails (or other electronic communications) from CareSight at the e-mail address you specify. Except as otherwise provided in this Agreement, You further agree that CareSight may provide any and all notices, statements, and other communications to You through either e-mail or posting on the Service. Notices to You may be provided by e-mail and shall be addressed to the Authorized Representative designated by you for your relevant Services account, and in the case of billing-related notices, to the relevant billing contact designated by You. CareSight maintains the right to require placement of a valid e-mail address within the Services portal for both billing, Services notification and notices purposes. In no event shall CareSight be held liable for negative consequences resulting from a lack of CareSight notices in the case notification e-mail addresses are not included by you in the Services portal as required. Legal notices to you may at our option also be sent to the address on the Order Form or that you have last provided, and such notices to Us should be sent to CareSight, LLC, 606 Post Road East, Suite 512, Westport, CT, 06880
  3. Governing Law and Jurisdiction. Each party agrees to the applicable governing law of the State of Connecticut without regard to choice or conflicts of law rules and except for actions seeking injunctive relief, the parties agree to the exclusive jurisdiction of the federal and state courts in Connecticut.
  4. Export. Software and technical data are subject to U.S. export control laws, including the

Export Administration Act and its associated regulations, and may be subject to export or import regulations in other countries. You agree not to export the CareSight Software or CareSight Technology or CareSight’s technical data in violation of any such laws or regulations and to comply strictly with all applicable rules and regulations.

  1. Relationship of the Parties. The parties are independent contractors and these Terms do not create a partnership, franchise, joint venture, agency, fiduciary, or employment relationship between the Parties. There are no third-party beneficiaries to these Terms.
  2. Waiver and Cumulative Remedies. No failure or delay by either Party in exercising any right under these Terms shall constitute a waiver of that right. Other than as expressly stated herein, the remedies provided herein are in addition to, and not exclusive of, any other remedies of a Party at law or in equity.
  3. Severability. If any provision of these Terms is held by a court of competent jurisdiction to be contrary to law, the provision shall 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 these Terms shall remain in effect.
  4. Survival. Sections 4 (Subscription Fees, Billing and Renewal) (surviving until all fees and charges are paid), 5 (Term and Termination), 6.B. (Our Software), 7 (Ownership), 8 (Confidentiality) (surviving for the term specified therein), 10.B. (Indemnification), 11 (Disclaimers, Limitation of Damages and Liability), and 12 (General Provisions) (surviving according to the specified periods, if any), shall survive expiration or termination of this Agreement.
  5. Assignment.
  6. 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 (not to be unreasonably withheld), except as otherwise provided in this Agreement. Notwithstanding the foregoing, We may assign this Agreement in its entirety, without your consent to our Affiliate provided the assignee accepts full responsibility for our obligations hereunder, or to a successor in interest pursuant to a merger, acquisition, corporate reorganization, or sale of all or substantially all of our assets. Subject to the foregoing, these Terms shall bind and inure to the benefit of the Parties, their respective successors and permitted assigns.
  7. Under the terms of our agreement with an authorized reseller, Your agreement with the reseller with respect to Your subscription to the Services may be assigned to Us. If the Your agreement with a reseller is assigned to CareSight, Your continued rights to access and use the Services will remain subject to this Agreement, such assignment being fully subject to Terms. You agree that following any such assignment, You shall, upon request by CareSight, provide such information as is required to secure payment for the Services and any necessary Access Devices.
  8. Publicity.

 

  1. Neither Party will make any news or press release regarding these Terms without the other Party’s prior written consent.
  2. Subject in each case to Your agreement and only on an occasional basis, we may ask that you consider in your sole discretion making a representative available (i) to serve as a non-public reference to Our prospective customers to discuss Your experience working with Us; and (ii) to work with Us in developing and publishing case studies and press releases that describe Your use of the Services.
  3. Force Majeure. Except for the nonpayment of money due, neither Party shall be liable for any delay or failure in performance due to Extraordinary Circumstances (as defined in Section 3.B (ii) (Your Subscription) hereof).
  4. Entire Agreement. These Terms and any attachments hereto along with any Order Form or equivalent document constitute the entire agreement between the Parties and supersede all prior and contemporaneous agreements, proposals or representations, written or oral, concerning its subject matter, including but not limited to any non-disclosure and proof of concept agreements entered by the Parties. Any amendment proposed by You may only be accepted by Us in a non-electronic writing, manually signed by authorized representatives of the Parties. Except to the extent there is an applicable separate non-electronic agreement manually signed by authorized representatives of the Parties, if the Services or CareSight Software has Upgrades or Updates, if you continue to use the CareSight Software or other Licensed Products or Services or if Your subscription is renewed, You agree by Your installation and use of such Upgrades, Updates or continued use of the CareSight Software or other Licensed Products or Services: (a) that the current CARESIGHT, LLC End User License Agreement And Terms Of Service applicable thereto (which will also be set forth at https://caresight.com/cs-eula) applies to Your Services purchases; (b) to voluntarily terminate Your earlier CARESIGHT, LLC End User License Agreement And Terms Of Service.