Last Updated: March 1, 2019
SPECT PROVIDES YOU WITH THE HARDWARE AND THE EYELOGIC SOFTWARE PLATFORM (“SERVICES”) UPON ACCEPTING THE SOFTWARE EULA AND THIS LICENSE AGREEMENT.
SPECT PROVIDES THE HARDWARE SOLELY ON THE TERMS AND CONDITIONS SET FORTH IN THIS LICENSE AGREEMENT AND ON THE CONDITION THAT YOU AND YOUR AUTHORIZED USERS, COMPLY WITH THE TERMS HEREIN. BY CLICKING THE "I AGREE" BUTTON BELOW YOU (I) ACCEPT THIS AGREEMENT AND AGREE THAT YOU AND YOUR AUTHORIZED USERS ARE LEGALLY BOUND BY THESE TERMS AND CONDITIONS; AND (II) REPRESENT AND WARRANT THAT: (A) YOU ARE OF LEGAL AGE TO ENTER INTO A BINDING AGREEMENT; AND (B) IF YOU ARE A CUSTOMER AND ACCEPTING AND AGREEING ON BEHALF OF A LEGAL ENTITY, YOU HAVE THE RIGHT, POWER AND LEGAL AUTHORITY TO ENTER INTO THIS AGREEMENT ON BEHALF OF SUCH LEGAL ENTITY AND TO BIND SUCH LEGAL ENTITY AND ITS AUTHORIZED USERS AND/OR EMPLOYEES TO THESE TERMS. IF YOU DO NOT AGREE TO THE TERMS AND CONDITIONS OF THIS AGREEMENT, SPECT WILL NOT AND DOES NOT LICENSE THE SPECT HARDWARE TO YOU AND YOU SHALL NOT: (1) USE THE SPECT HARDWARE OR ANY UPDATED VERSIONS OR DERIVATIVE HARDWARE; (2) INSTALL, DOWNLOAD, ACCESS, AND/OR USE THE SPECT SOFTWARE; OR (3) ACCESS AND/OR USE THE ASSOCIATED WEB PORTAL. IF YOU DO NOT AGREE TO THE TERMS OF THIS LICENSE AGREEMENT OR THE SOFTWARE EULA, THEN NO LICENSE IS HEREBY GRANTED TO YOU BY SPECT.
THIS LICENSE AGREEMENT IS CONDITIONED UPON YOUR ACCEPTANCE AND EXECUTION OF THE SOFTWARE END USER LICENSE AGREEMENT. IF YOU DO NOT ACCEPT EITHER OF THE AGREEMENTS, NO LICENSE OF ANY KIND SHALL BE GRANTED TO YOU HEREIN.
SPECT RESERVES THE RIGHT TO REVISE ANY OF THE TERMS OF THIS AGREEMENT AT ANY TIME AND IN ITS SOLE DISCRETION. ANY REVISIONS WILL BE EFFECTIVE UPON THE EARLIER TO OCCUR OF: (A) EMAILING THE REVISED TERMS, OR NOTICE OF THE REVISED TERMS, TO YOU AT YOUR E-MAIL ADDRESS; OR (B) POSTING THE REVISED TERMS ON THE WEB PORTAL. YOU ARE RESPONSIBLE FOR REVIEWING THE REVISED AGREEMENT OR NOTICE OF THE REVISED AGREEMENT. YOUR CONTINUED USE OF THE HARDWARE FOLLOWING ANY AMENDMENT OR MODIFICATION NOTICE TO THIS AGREEMENT OR POSTING OF THE REVISED AGREEMENT, SHALL CONSTITUTE YOUR ACCEPTANCE OF THE REVISED AND NEW AGREEMENT. IF YOU DO NOT AGREE TO THE REVISED AGREEMENT, YOU MUST STOP ACCESSING AND USING THE SPECT HARDWARE, SPECT SOFTWARE, AND THE WEB PORTAL IMMEDIATELY, AND YOU SHALL PROVIDE SPECT WITH A WRITTEN NOTICE CONFIRMING YOUR DISAGREEANCE OF THE REVISED AGREEMENT. IF YOU DO NOT AGREE TO ANY NEW TERMS OF THE AGREEMENT, YOU SHALL NO LONGER BE ALLOWED TO USE THE SPECT HARDWARE, AND SPECT SOFTWARE, AND SHALL DELETE ALL COPIES OF THE SOFTWARE, INCLUDING ARCHIVED COPIES, AND SHALL IMMEDIATELY RETURN ANY SPECT HARDWARE IN YOUR POSSESSION ASSOCIATED WITH THE SPECT SOFTWARE. NO OWNERSHIP IS GRANTED (WHETHER EXPRESSLY, BY IMPLICATION, OR OTHERWISE) UNDER THIS AGREEMENT, AND THIS AGREEMENT EXPRESSLY EXCLUDES ANY RIGHT, CONCERNING ANY HARDWARE THAT LICENSEE DID NOT ACQUIRE LAWFULLY OR THAT IS NOT A LEGITIMATE, AUTHORIZED COPY OF LICENSOR’S HARDWARE.
BY AGREEING TO AND ACCEPTING THE TERMS AND CONDITIONS OF THIS AGREEMENT YOU AGREE TO AND ACCEPT THE TERMS AND CONDITIONS OF THE BUSINESS ASSOCIATE ADDENDUM (“BAA”) IN EXHIBIT 1 AND THE SOFTWARE END USER LICENSE AGREEMENT (“SOFTWARE EULA”) ATTACHED HEREIN AT EXHIBIT 2.
WHEREAS, Licensor has developed and owns the Spect Software and associated Hardware (as defined below), and provides clinical decision support to Licensee.
WHEREAS, Clinic provides care to patients.
WHEREAS, the Parties desire to enter into this License Agreement, and to establish terms and conditions as set forth herein to govern this relationship with respect to the Hardware License and its Use.
NOW, THEREFORE, in consideration of the mutual promises, conditions and provisions contained in or incorporated by reference in this Agreement, the Parties hereby agree as follows:
2. Hardware License. Spect hereby grants You and Your Authorized Users, a limited, non-exclusive, revocable, non-transferable, non-assignable, non-delegable, non-sublicenseable, and non-perpetual license to obtain, access and use the Spect Hardware (“Hardware License”).
3. License Fee. Licensee shall pay Licensor a License Fee in the amount designated on the Order Form, subject to change with written notification to You, in order to access and use the Spect Hardware for use (“License Fee”). The License Fee shall be paid upon executing this License Agreement, before receipt of the Spect Hardware, and shall be paid on a thirty (30) day billing cycle. Failure to pay the entire or portion of the License Fee shall be considered material breach and shall be grounds for immediate termination of this Agreement and any license granted herein and in the Software EULA. Late payments of the License Fee shall be ground for immediate termination of this Agreement and the Hardware License.
4. Term. The Hardware License shall commence upon the Licensee’s acceptance of this Agreement and receipt of full payment of the First License Fee, and shall extend for a term of thirty (30) days (“License Term”), automatically renewable unless provided otherwise in writing by either Party. Renewals shall commence upon timely and full payment of the then current Renewal Fee and/or new License Fee, if applicable.
5. Reinstatement Fee. Should You cancel or terminate Your Hardware License, for whatever reason, and request to reinstate Your Account or use the Spect Hardware, You may incur a reinstatement fee (“Reinstatement Fee”), and shall be required to pay the then current License Fee.
7. Taxes. All fees paid or payable to Licensor are exclusive of any federal, state, or local excise, sales, use, intangible, import charges, value added, or other taxes, duties or similar assessments imposed with respect to the Spect Services. You are solely responsible for the payment of any and all taxes resulting from this Hardware License, the use of the Spect Services, except for any federal, state, or local income tax imposed on Licensor in connection with revenues associated with this Agreement or the Hardware License. Licensee hereby agrees to hold harmless Licensor from and against any and all claims and liabilities arising from Licensee’s failure to report or pay any such taxes, duties or similar assessments if any and to promptly pay any such taxes, duties or similar assessments that may become due.
8. Termination. Either Party may terminate this Hardware License at any time and with or without cause, provided that they provide the other Party with fifteen (15) days written notice.
Upon termination of this Hardware License, Licensee shall:
This section shall survive any expiration or termination of this Agreement. No expiration or termination shall affect Licensee’s obligation to pay all Licensee Fees and Total Fees that may have become due before such expiration or termination. Spect may terminate the license grant and this Agreement in writing with immediate effect, upon You and/or Your Authorized Users’ material breach of this Agreement or the Hardware License. Upon Your and/or Your Authorized Users’ material breach of this Agreement or the License Agreement, including without limitation, late payment of License Fee, failure to pay the License Fee, breach of confidentiality, breach of intellectual property, Spect shall provide You with a written notification (“breach notification”). You shall have five (5) business days to cure the breach specified in the Breach Notification (“Cure Period”). Failure to cure the breach within the prescribed Cure Period, shall entitle Spect to exercise any and all rights and remedies available to it at law or in equity, and to immediately delete Your access to the Spect Software and request immediate return of the Spect Hardware. Termination or breach of this Agreement shall be considered termination of the Software License EULA and this Hardware Agreement.
9. Return of Hardware. Upon termination of this Agreement, the underlying Hardware License and/or the Software EULA, You shall return any and all Spect Hardware in Your possession within five (5) business days of termination. You may be charged an additional fee if the Spect Hardware (1) is broken; (2) is damaged; (3) fails to function properly; (4) is not in good working condition; and/or (5) is required to be fixed (“Damage Fee”). The Damage Fee shall not exceed the total of the past three preceding License Fee payments.
10. Replacement of Hardware. Spect may replace Your Hardware in the event that it (1) does not function properly according to Spect; (2) does not take Retina Images; (3) fails to properly complete Image Acquisition; and (4) breaks within the warranty described herein. Spect is under no obligation to replace a Spect Hardware. Spect may, at its discretion, replace the G2.5 Mobile Ophthalmoscope with a substantially equivalent or, as determined by Spect, superior device (e.g., the G3.0), which replacement device would thereafter constitute the licensed “Spect Hardware” for all purposes under this Agreement
11. No Refunds. If Licensee terminates this Agreement, with or without cause, before the License Term expires, the Licensee is not entitled to any returns or refunds of any prorated portion of the Hardware License.
12. No Ownership. The Spect Hardware is licensed, not sold, to You. The Spect Hardware is the proprietary property of Spect, and all right, title and interest in and to the Spect Hardware, including, without limitation, all intellectual property rights, are retained by Spect. No transfer of title, ownership and/or rights are granted in this Agreement or through this Hardware License.
13. License Restrictions. You and Your Authorized Users, shall not:
14. Your Obligations. You shall:
15. Support and Maintenance Services. Spect may provide You with Support and Maintenance Services, as designated on the Order Form. However, Spect will not provide these services if Spect Software has been misused, altered or modified by a third party, including Licensee.
16. Patient Information.
18. Intellectual Property. This Agreement grants You with a license to the Spect Hardware, and in no way transfers to You any ownership interest in the Spect Software, Spect Hardware and/or any material or information provided to You. Licensor retain all rights, ownership and title in all intellectual property associated with the Spect Hardware provided to You. All trademarks, logos, trade dress and service marks seen on the Spect Hardware are the intellectual property of Licensor and shall not be copied, reproduced, used, exploited, sold, licensed, assigned, or the like to a third Party, without Licensor’s expressed written consent. Licensor and its suppliers, partners, Affiliates, and distributors reserve all rights not expressly granted herein. Whenever You are permitted to copy or reproduce all or any part of the Spect Hardware, all titles, trademark symbols, copyright symbols and legends, and other proprietary markings must be reproduced. Licensee does not acquire any ownership interest in the Spect Hardware under this Agreement and Hardware License, or any other rights thereto, other than to use the same in accordance with the license granted and subject to all terms, conditions, and restrictions under this Agreement and Hardware License. Licensee shall safeguard all Spect Hardware from infringement, misappropriation, theft, misuse, or unauthorized access.
19. Use of Trademark. Parties acknowledges that they may desire to use one another’s name and logo publically on their respective websites, press releases, social media, product brochures, financial reports and other media channels indicating that Licensee is a user of the Spect Hardware, and both Parties agree that either Party may use the other’s name and logo in such a manner without compensation or without violation of any intellectual property rights. Parties reserve the right to review any use of its name or logo and to grant or withhold permission, provided that permission will not reasonably be withheld.
20. Intellectual Property Warranty. Licensor warrants to Licensee that it and its suppliers, partners, affiliates, and distributors, own the legal rights to the Spect Hardware to provide the Hardware License herein. The Licensee’s sole and exclusive remedy for breach of this warranty is indemnification as provided for in this Agreement.
21. Infringement Indemnity. Licensor agrees to defend, indemnify, and hold Licensee harmless from and against any and all costs, judgments, damages and awards in lawsuits, proceedings or actions brought by any third party, and costs in connection with the defense thereof (including, without limitation, court fees and reasonable attorney's fees), resulting from any claim or allegation that the Spect Hardware infringes any patent, copyright, trade secret or other proprietary right of any third Party ("Claims").
22. Infringement Indemnity Limitation. The obligations set forth in Section 20 will not apply to, and Licensor assumes no liability for, any Claims to the extent arising from (i) use of a modified or altered version of the Spect Hardware, (ii) the combination, operation or use of the Spect Hardware with non-Licensor programs, data, software, methods or technology if such infringement would have been avoided without the combination, operation or use of the Spect Hardware with other programs, data, methods, software or technology, or (iii) unlicensed use of the Spect Hardware.
23. Procedure for Infringement Indemnification. Licensor's obligations under Section 20 only apply if Customer gives Licensor: (i) written notice of the Claim within five (5) business days of knowledge or reasonable cause to believe of claim; (ii) sole control of the defense and settlement of such Claims; and (iii) assistance when reasonably requested by Licensor.
24. Actions by Licensor. In the event any such infringement pursuant to Section 20, Claim, action or allegation is brought or threatened, or if Licensor deems that there is a material risk of a Claim, Licensor may, at its sole option and expense; (1) Procure for Licensee the right to continue its use of the Spect Hardware; or (2) Modify or amend the Spect Hardware or infringing part thereof, or replace the Spect Hardware or infringing part thereof with other software having substantially the same or better capabilities; or, if neither of the foregoing is commercially practicable; or (3) Terminate this Agreement and the underlying Hardware License with immediate effect of termination.
25. Exclusivity. You hereby agree that during the Term of this Agreement, You shall not contract with and/or use a hardware, device, camera, software and/or the like that is in direct or indirect competition to Spect Services. You may, however, upon termination of this Agreement or the Software EULA, use a direct or indirect competitor’s device, software, hardware, system, and/or camera.
26. Confidentiality. Neither Party will use the other Party's Confidential Information during the term of this Agreement except as reasonably required for the performance of this Agreement. In addition, the confidentiality obligations set forth in this Section will survive for five (5) years after the termination or expiration of this Agreement or the Software License. Each Party will hold in confidence the other Party's Confidential Information by means that are no less restrictive than those used for its own confidential materials. Each Party agrees not to disclose the other Party's Confidential Information to anyone other than its employees or subcontractors who are bound by these confidentiality obligations and who are required to use the Confidential Information to successfully perform or assist such Party's obligations hereunder. You agree: (i) to take reasonable precautions to protect such Confidential Information, and (ii) not to use (except in regard to using the Spect Hardware or as otherwise permitted herein) or divulge to any third person any such Confidential Information. Both Parties agree that the foregoing shall not apply with respect to any information that can be evidenced (a) is or becomes generally available to the public, or (b) was in its possession or known by it prior to receipt from Us, or (c) was rightfully disclosed to it without restriction by a third Party, or (d) was independently developed without use of any of Our Proprietary Information or (e) is required to be disclosed by law. You acknowledge that We may collect Your business data including, including but not limited to, inventory and pricing as well as end-user data, including but not limited to names, email addresses, physical addresses, and order details such as items ordered, amounts, transactional details, payment and renewal amounts (“End-User Data”). In performance of the Spect Hardware, We have permission to disclose End-User Data and Your Data to third-parties and to payment processors if necessary, and to use such End-User Data for business analytics and internal use. You represent and warrant that You have permission from Your end-users to share End-User Data with Us, and for Us to share End-User Data with third-parties in the performance of the Spect Services. With that acknowledgement in mind, it is important to note that We shall only disclose such data solely in aggregate or other de-identified form in connection with the business.
28. Warranty and Disclaimers. SPECT REPRESENTS AND WARRANTS THAT THE SPECT HARDWARE DOES NOT INFRINGE OR MISAPPROPRIATE THE INTELLECTUAL PROPERTY RIGHTS OF ANY THIRD PARTY KNOWN. EXCEPT AS SPECIFICALLY SET FORTH HEREIN, THE SPECT HARDWARE IS PROVIDED “AS-IS,” AND SPECT DISCLAIMS ANY AND ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, WITH RESPECT TO THE SPECT SOFTWARE OR ANY PART THEREOF, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE (WHETHER OR NOT SPECT KNOWS, OR HAS REASON TO KNOW, OF SUCH PURPOSE). SPECT DOES NOT WARRANT THAT THE SPECT HARDWARE WILL MEET YOUR, YOUR AUTHORIZED USERS’, AND PATIENTS’ REQUIREMENTS, THAT THE OPERATION OF THE SPECT HARDWARE WILL BE FREE FROM ERROR, REPLACEMENT, AND REPAIR OR THAT ANY ERRORS OR DAMAGE WILL BE CORRECTED. SPECT IS UNDER NO OBLIGATION TO REPAIR OR REPLACE THE HARDWARE. LICENSOR STRICTLY DISCLAIMS ALL WARRANTIES, WITH RESPECT TO ANY THIRD-PARTY MATERIALS , THE LICENSOR PROVIDES NO WARRANTY OR UNDERTAKING, AND MAKES NO REPRESENTATION OF ANY KIND THAT THE LICENSED HARDWARE WILL MEET THE LICENSEE’S REQUIREMENTS, ACHIEVE ANY INTENDED RESULTS, BE COMPATIBLE, OR WORK WITH ANY OTHER SOFTWARE, APPLICATIONS, SYSTEMS, OR SERVICES (OTHER THAN SPECT SOFTWARE), OPERATE WITHOUT INTERRUPTION, MEET ANY PERFORMANCE OR RELIABILITY STANDARDS OR BE ERROR FREE, OR THAT ANY ERRORS OR DEFECTS CAN OR WILL BE CORRECTED
29. LIMITATION OF LIABILITY. IN NO EVENT WILL LICENSOR OR ITS AFFILIATES, OR ANY OF ITS OR THEIR RESPECTIVE LICENSORS OR SERVICE PROVIDERS, BE LIABLE TO LICENSEE OR ANY THIRD PARTY FOR ANY USE BE LIABLE FOR ANY INCIDENTAL, SPECIAL, INDIRECT, CONSEQUENTIAL, OR PUNITIVE DAMAGES WHATSOEVER, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF PROFITS, LOSS OF DATA, LOSS OF PERSONAL INFORMATION, LOSS OF REPORTS, LOSS OF PERSONAL HEALTH INFORMATION, LOSS OF VIDEOS, LOSS OF EXAM IMAGES, LOSS OF PATIENT INFORMATION, BUSINESS INTERRUPTION, LOSS OR CORRUPTION OF DATA, LOSS RESULTING FROM SYSTEM OR SYSTEM SERVICE FAILURE, MALFUNCTION, OR SHUTDOWN, FAILURE TO DIAGNOSE, FAILURE TO TREAT, FAILURE TO CAPTURE ACCURATE RETINA IMAGES, FAILURE TO ACCURATELY TRANSFER, READ, OR TRANSMIT INFORMATION, FAILURE TO UPDATE OR PROVIDE CORRECT INFORMATION, SYSTEM INCOMPATIBILITY OR PROVISION OF INCORRECT COMPATIBILITY INFORMATION, OR BREACHES IN SYSTEM SECURITY OR ANY COMMERCIAL DAMAGES OR LOSSES ARISING OUT OF OR RELATED TO THIS AGREEMENT OR YOUR USE OR INABILITY TO USE THE SPECT SERVICES, HOWEVER CAUSED, WHETHER UNDER A THEORY OF CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE), PRODUCTS LIABILITY, OR OTHERWISE, EVEN IF SPECT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY REMEDY.
30. Relationship. Spect and You are independent legal entities. Nothing in this Agreement shall be construed to create the relationship of joint venture, employer and employee, or principal and agent, or any relationship other than that of independent parties contracting with each other solely for the purposes of carrying out the terms of this Agreement and this Hardware License hereunder. Spect has no authority to make contracts on Your behalf, or to bind You to perform obligations or incur liabilities for third parties, and You have no authority to enter into contracts on Spect’s behalf, or to bind Spect to perform obligations or incur liabilities for third parties.
31. Force Majeure. Spect shall be excused from performing its obligations under this Agreement to the extent any event or circumstance not caused by Spect, regardless of whether it was foreseeable, prevents Spect from performing such obligations.
32. Export. You shall not use, export, re-export, import, sell or transfer the Spect Services except as authorized by United States law, the laws of the jurisdiction in which You obtained the Spect Services, and any other applicable laws and regulations.
33. Entire Agreement. This Agreement constitutes the entire agreement between Spect and You with respect to Your Spect Hardware License and supersedes all previous representations, understandings, and agreements relating to the subject matter hereof.
34. Notice. All notices, requests, consents, claims, demands, waivers, and other communications hereunder shall be in writing and shall be deemed to have been given: (i) when delivered by hand (with written confirmation of receipt); (ii) when received by the addressee if sent by a nationally recognized overnight courier (receipt requested); (iii) on the date sent by facsimile [or email] (with confirmation of transmission) if sent during normal business hours of the recipient, and on the next business day if sent after normal business hours of the recipient; or (iv) on the second day after the date mailed, by certified or registered mail, return receipt requested, postage prepaid.
35. Severability. All provisions of this Agreement will be considered separate terms and conditions and in the event any provision is held illegal, invalid, or unenforceable, all the other provisions hereof will remain in full force and effect as if the illegal, invalid, or unenforceable provision was not a part of this Agreement.
36. Survival. The provisions of this Agreement concerning post-termination rights, indemnification, limitation of liability, confidentiality, and any other provision that, by its nature, is intended to survive this Agreement, shall survive the termination this Agreement.
37. Choice of Law and Venue. This Agreement will be governed by and interpreted in accordance with the laws of the State of California without regard to principles of choice of law or conflicts of laws. Each Party hereby agrees that the courts located in Santa Clara County of the State of California shall have sole jurisdiction and venue for all disputes and litigation arising under or relating to this Agreement. In the event any suit or action is filed to enforce or interpret the terms and obligations of this Agreement, the prevailing Party shall be entitled to its reasonable attorney fees and costs, including reasonable post-judgment attorney fees incurred in collection efforts.
38. Amendments and Waiver. This Agreement may only be amended, modified, or supplemented by an agreement in writing agreed upon by each Party hereto. No waiver by any Party of any of the provisions hereof shall be effective unless explicitly set forth in writing and signed by the Party so waiving. Except as otherwise set forth in this Agreement, no failure to exercise, or delay in exercising, any right, remedy, power, or privilege arising from this Agreement shall operate or be construed as a waiver thereof; nor shall any single or partial exercise of any right, remedy, power, or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power, or privilege.