Master Subscription Agreement
This Agreement governs Subscriber’s access to WOUNDS A.I.’s data processing engine and predictive analytics technology platform described in Exhibit A (the “WOUNDS A.I. Platform”) and related professional services offered by WOUNDS A.I. under this Agreement. In consideration of the mutual promises contained herein, and other adequate and valuable consideration, and intending to be legally bound, the Parties agree as follows:
SECTION 1. DEFINITIONS.
“Wounds A.I. Platform” means the software and other technology used to provide the WOUNDS A.I. Platform.
“Confidential Information” has the meaning set forth in Section 6(a).
“Custom Interfaces” means functional interfaces developed by WOUNDS A.I. , pursuant to specifications and requirements of Subscriber, to enable Subscriber to integrate outputs from the WOUNDS A.I. Platform into software products and services developed by Subscriber.
“Disclosing Party” has the meaning set forth in Section 6(a).
“Documentation” means, with respect to the WOUNDS A.I. Platform: (a) any user manual or otherdescription of the modules of the WOUNDS A.I. Platform, specifying inputs and outputs to and from each module, as well as the linkage between modules, the functional and technical principles of operation for each of the modules, and use case scenarios detailing how changes in inputs to the modules affect outputs, and (b) such other documentation as is reasonably requested by Subscriber and provided by WOUNDS A.I. .
“Fees” has the meaning set forth in Section 4(e).
“Implementation Services” means the instantiation of the WOUNDS A.I. Platform environment, as described in Exhibit B.
“Improvements” means any modification, translation, enhancement, correction, bug fix, conversion, recompilation, upgrade, new version or other version of, or change or addition to, the WOUNDS A.I. Platform.
“Intellectual Property Rights” means all intellectual property and other similar proprietary rights, in any jurisdiction, whether owned or held for use under license or subscription, including such rights in and to (a) trade secrets, know-how and other confidential or non-public business information; (b) original works of authorship, whether copyrightable or not, and any moral rights relating thereto; (c) trademarks, service marks, and other indications of origin; (d) patent rights, inventors’ certificates and invention disclosures, inventions and discoveries; and (e) computer systems, including programs, software, object and source code, databases, algorithms, and documentation therefor, in each case including all copyrights therefor.
“Receiving Party” has the meaning set forth in Section 6(a).
“Retained Consulting and Support” has the meaning set forth in Exhibit C.
“Standard Interfaces” means functional interfaces provided by WOUNDS A.I. to enable Subscribers to integrate the results of the WOUNDS A.I. Platform into Subscribers’ products and services.
“Subscriber Data” means all input data files or data sets provided by Subscriber for processing by the WOUNDS A.I. Platform.
“Subscription Fee” has the meaning set forth in Section 4(a).
“Subscription Service” has the meaning set forth in Section 2(a), (c) and (d).
“Subscription Technical Support” means troubleshooting specific to the WOUNDS A.I. Platform environment only.
“Term” has the meaning set forth in Section 5(a).
“Third Party Customer” means a customer of Subscriber, authorized by Subscriber in writing to access the WOUNDS A.I. Platform, under the terms of Section 2(a), as an end-user and not a re-seller of the WOUNDS A.I. Platform.
“User” means a named individual who is an employee or contractor of Subscriber or of a Third Party Customer who, except in the case of an employee of Subscriber, has agreed in writing to confidentiality restrictions in favor of Subscriber which would encompass the obligations imposed on Subscriber under this Agreement, and is authorized by Subscriber to access the Subscription Service.
“User Feedback” has the meaning set forth in Section 7.
SECTION 2. SERVICES.
(a) Subscription Service. Subject to the terms and conditions of this Agreement, WOUNDS A.I. hereby grants to the Subscriber non-exclusive, non-transferable, worldwide access to the WOUNDS A.I. Platform, during the Term, solely for the purpose set forth in Exhibit A. Notwithstanding the foregoing, Subscriber may permit access to the WOUNDS A.I. Platform by Third Party Customers (including but not limited to its parent organization) and Third Party Customers’ Users, provided that Subscriber accepts responsibility for compliance with the terms and conditions of this Agreement by all Third Party Customers and Users and all liability for the acts or omissions of Third Party Customers and Users in connection therewith.
Custom Implementation and Other Professional Services. WOUNDS A.I. may provide Subscriber with custom Implementation Services set forth in Exhibit B and other professional services set forth in Exhibit C. If at any time Subscriber requires additional professional services, Subscriber may request such additional professional services under Exhibit C. WOUNDS A.I. shall provide such additional professional services at rates to be agreed upon at the time of the service request.
(b) Maintenance and Support Services. As part of the Subscription Service, WOUNDS A.I. shall provide to Subscriber Subscription Technical Support services during the Term as described in the Sales Order Form.
(c) Training Services. Upon request, WOUNDS A.I. shall provide additional training sessions in the use of the WOUNDS A.I. Platform, at the rates set forth in Exhibit C.
(d) Third Party Data Sets. Wounds A.I. may provide Subscriber with access to and provide maintenance and administration services of third party data sets at the rates set forth in Exhibit D. WOUNDS A.I. is under no obligation to provide any third party data sets to Subscriber under this Agreement.
(e) Restrictions. Subscriber agrees that it will not, without the advance written consent of WOUNDS A.I. , (i) copy, reproduce, create derivative works of, disclose or publicly display the WOUNDS A.I. Platform; (ii) decompile, disassemble, reverse engineer or otherwise attempt to determine the functionality of the WOUNDS A.I. Platform; (iii) directly or indirectly license, distribute, resell, rent, lease, subcontract, operate as a service bureau or otherwise make the WPOUNDS A.I. Platform available to any third party, except as provided in this Agreement; (iv) use the WOUNDS A.I. Platform or Confidential Information of WOUNDS A.I. to develop a competing product or service platform; (v) disclose any passwords or other security or authentication device with respect to the WOUNDS A.I. Platform to any person or entity other than the Third Party Customers or Users to whom such passwords or other security or authentication device are properly issued hereunder; (vi) use the WOUNDS A.I. Platform for a purpose other than that set forth in Exhibit A or in a manner that violates any applicable law, rule or regulation; or (vii) remove, conceal or alter any identification, copyright or other proprietary rights notices or labels on the WOUNDS A.I. Platform; and will use commercially reasonable efforts to prevent any third party from doing any of the foregoing.
SECTION 3. RESPONSIBILITIES OF SUBSCRIBER.
(a) Subscriber Hardware Configuration. Except for the hosted cloud environment, Subscriber shall be responsible for selecting, installing and maintaining the hardware on which it will access the WROUNDS A.I. Platform, and for assuring proper hardware configuration, audit controls, back-up plans and operating methods. Subscriber is responsible for supplying all operating system software and utility programs necessary for proper access to the WOUNDS A.I. Platform.
(b) Authorized Users and Security. Subscriber shall implement and maintain all such administrative, physical and technical safeguards as may be necessary to prevent unauthorized users from gaining entry or access to the WOUNDS A.I. Platform, including ensuring that all authorized users are instructed in the importance of password privacy, including, but not limited to, the security requirements pertaining to protected health information as identified in the Health Insurance Portability Act of 1996, and its implementing regulations and guidance, (HIPAA) as well as The Health Information for Economic and Clinical Health Act, (HITECH) By agreeing to the terms and conditions herein, the Subscriber agrees to maintain all information consistent with the security mandates contained in this Agreement and the HIPAA and HITECH security rules.
(c) Information security of the devise and PHI contained on the devise is the sole responsibility of the Subscriber. In addition to theyour organization’s basic information Best Practices for Information Security, the user is advised to comply with the following during the use of the mobile medical devise using Wounds A.I. technology: 1) Encrypting the devise with a password using a minimum of 12 characters in length 2) installation and updates on malware protection; 3) the ability to remotely delete the information from the device if lost or stolen; 4) If using a devise that is identified as a “BYOD” (Bring Your Own Device), disabling or deleting the file sharing feature on the device; 5) Updating the device Operating System (“OS”) on a regular basis; and, a policy limiting the use of the devise to networks that are secure.
Restrictions on Access. Subscriber shall limit access to the WOUNDS A.I. Platform to its employees and such third parties whose responsibilities require access for Subscriber’s internal business purposes and who agree in writing to abide by restrictions no less protective than those contained in this Agreement. Subscriber shall not use the WOUNDS A.I. Platform in an external service bureau or time sharing arrangement. Subscriber shall not rent, lease, lend, resell, or otherwise transfer for value, any portion of the WOUNDS A.I. Platform. In addition, Subscriber may not access the WOUNDS A.I. Platform for purposes of monitoring its availability, performance or functionality, or for any other benchmarking or competitive purposes.
Data Ownership and Use, Subscriber warrants and represents that you, as the covered entity pursuant to HIPAA, are indeed the owner of the information being provided to WOUNDS A.I. under this agreement. Subscriber acknowledges that Wounds A.I. may anonymize in compliance with HIPAA specifications Subscriber’s data, and use and disclose de-identified data for any purpose whatsoever, and that Subscriber has no interest in such information, or in the proceeds of any sale, license, or other commercialization thereof.
Posting of Harmful Material. Subscriber agrees, on behalf of itself and its authorized Users, not to post on or upload to the WOUNDS A.I. Platform any communications that: (a) violate or infringe upon the intellectual property rights (including copyrights, trademarks, trade secrets and patents), rights of privacy or publicity, moral rights or any other proprietary rights of any third party; (b) are unlawful, defamatory, threatening or are otherwise offensive or objectionable; (c) contain a malware or any other harmful component; or (d) violate any applicable local, state, national or international law or regulation.
SECTION 4. FEES AND PAYMENT.
(a) Subscription Fees. Subscriber agrees to pay WOUNDS A.I. the fee set forth in the Sales Order Form for the Total Monthly Subscription (the “Subscription Fee”). The Subscription Fee shall be payable as stated in the Sales Order Form. WOUNDS A.I. may, in its sole discretion, increase Subscription Fees annually by an amount not greater than six percent (6%) of the Subscription Fee applicable in the immediately preceding year.
(b) Other Professional Services Fees: Subscriber agrees WOUNDS A.I. may, at its option, increase fees for such other professional services by an amount not greater than six percent (6%) of the contracted hourly rate applicable in the immediately preceding year.
(c) Taxes. The Fees described in this Section 4 do not include sales, use, property, value-added, or other federal, state or local taxes based on the services provided under this Agreement. Subscriber shall be responsible for paying all such taxes (excluding taxes based on WOUNDS A.I. ’s income).
(d) Method of Payment; Late Payment. All payments required to be made to WOUNDS A.I. under this Agreement shall be made by wire transfer to such WOUNDS A.I. account as may be specified by WOUNDS A.I. in writing to Subscriber. Any late payment of the Subscription Fee or other fees payable under this Agreement (collectively, “Fees”) shall be subject to WOUNDS A.I.’s costs of collection (including reasonable legal fees and costs) and shall also bear interest at the rate of one and one-half percent (1.5%) per month (or part thereof) or, if lower, the highest rate permitted by applicable law until paid.
SECTION 5. TERMINATION.
(a) Term. This Agreement shall commence on the Effective Date and continue for a period (the “Term”) indicated on the WOUNDS A.I. Sales Order Form unless earlier terminated in accordance with its terms.
(b) Termination. If either Party fails to observe or perform any material obligation under this Agreement, the non-breaching Party shall give written notice to the breaching Party specifying the nature of the breach. This Agreement may be terminated by the non-breaching Party forty-five (45) days following the date of such notice if the breach is not cured within such 45-day period. Notwithstanding the foregoing, WOUNDS A.I. may suspend the Subscription Service effective immediately upon written notice to Subscriber, if the Subscriber has breached Section 2(f) or Section 3, or any of the security measures related to data or platform protection as identified in this Agreement. The right of the non-breaching Party to terminate this Agreement under this Section 5 is in addition to all other rights as are available to it at law or equity,
(c) Effect of Termination. Upon termination or expiration of this Agreement, (i) the Subscriber shall immediately cease use of the WOUNDS A.I. Platform and shall return to WOUNDS A.I. all copies of the Documentation in its possession; and (ii) all Fees owed to WOUNDS A.I. under this Agreement shall immediately become due and payable. Sections 2(f), 4, 5, 6, 7, 8, 9 and 10 shall survive the expiration or termination of this Agreement for any reason. WOUNDS A.I. shall have no obligation to retain Subscriber Data for more than thirty (30) days beyond expiration or termination and shall, at Subscriber’s request, return copies of Subscriber Protected Health Information (PHI) Data in a commercially reasonable format approved by WOUNDS A.I. (such approval of the format not to be unreasonably withheld).
SECTION 6. CONFIDENTIALITY.
(a) Obligations. As used herein, “Confidential Information” means all confidential information disclosed by one Party (“Disclosing Party”) to the other Party (“Receiving Party”), whether orally or in writing, that is designated as proprietary or confidential or that reasonably should be understood to be proprietary or confidential. Each Party shall use the same degree of care to safeguard the confidentiality of the Confidential Information that it uses to safeguard the confidentiality of its own confidential information, but in no event less than reasonable care. Without limiting the foregoing, each Party agrees (i) to maintain the confidentiality with respect to the Confidential Information of the Disclosing Party, (ii) not to disclose, or permit any third party to disclose, except as permitted hereby, the Confidential Information of the Disclosing Party (or any portion thereof) without prior written consent of Disclosing Party; and (iii) to ensure that any employees or any third parties who receive access to the Confidential Information, are advised of the confidential and proprietary nature thereof and are prohibited from disclosing the Confidential Information and using the Confidential Information other than for the benefit of the Receiving Party, in accordance with this Agreement. It is expressly agreed by the Parties that Confidential Information of WOUNDS A.I. includes the Subscription Service.
(b) Exclusions. The following shall not be deemed to be Confidential Information for purposes of this Agreement: (a) information already lawfully known to one party at the time of disclosure by the other, (b) information generally known to the public other than as a result of disclosure in violation of this Section 6, (c) information lawfully obtained from any third party that has no duty or obligation of confidentiality with respect to such information, and (d) information developed by the Receiving Party independently and without reference to Confidential Information provided by the Disclosing Party.
(c) Permitted Disclosure. Confidential Information may be disclosed to the extent required by court order or other legal process, provided that the Party directed to disclose shall give the maximum practical advance written notice of same to the other Party, and shall use its best efforts to limit the disclosure and maintain the confidentiality of such Confidential Information. In addition, the Party directed to disclose shall permit the other Party to attempt to limit such disclosure by appropriate legal means.
(d) Equitable Relief. Each Party acknowledges that the Confidential Information of the other is important, material and confidential, and gravely affects the successful conduct of the business of such other, and that any breach of the terms shall constitute a material breach of this Agreement. The Parties recognize that a breach of Section 6 of this Agreement would result in irreparable harm for which monetary damages would not be adequate. In the event of such breach, and without limiting the right of a Party to seek any other remedy or relief to which it may be entitled under law, each Party agrees that the other will be entitled to equitable relief, including temporary and permanent injunctive relief and specific performance.
SECTION 7. INTELLECTUAL PROPERTY RIGHTS.
(a) WOUNDS AI. Platform; Standard Interfaces. All right, title and interest in and to the WOUNDS A.I. Platform, Application Programming Interface (API), user interface, Standard Interfaces, and all Intellectual Property Rights therein are and shall remain exclusively with WOUNDS AI., its licensors and their respective successors and assigns. Subscriber is not granted any right, title or interest whatsoever in the WOUNDS A.I. Platform, Standard Interfaces, other Confidential Information of WOUNDS A.I. , or any Intellectual Property Rights associated with any of the foregoing. To the extent Subscriber provides any verbal or written ideas or feedback to WOUNDS A.I. concerning the Subscription Service (“User Feedback”), Subscriber hereby assigns, transfers and conveys to WOUNDS A.I., or its designee, all worldwide right, title, and interest in and to any and all User Feedback, including, without limitation, any ideas, inventions, discoveries, original works of authorship, findings, conclusions, concepts, and improvements in such User Feedback.
SECTION 8. DISCLAIMER OF WARRANTY. THE SUBSCRIPTION SERVICE PROVIDED HEREUNDER IS PROVIDED “AS-IS”, “WHERE-IS” AND “AS-AVAILABLE,” WITH ALL FAULTS. EXCEPT AS OTHERWISE SET FORTH HEREIN, WOUNDS A.I. HEREBY EXPRESSLY DISCLAIMS ANY AND ALL WARRANTIES, EXPRESS, IMPLIED OR STATUTORY, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT AND TITLE, TO THE MAXIMUM EXTENT PERMITTED BY LAW. VENDOR DOES NOT REPRESENT OR WARRANT THAT (A) ACCESS TO THE VENDOR PLATFORM WILL BE SECURE, UNINTERRUPTED OR ERROR-FREE, OR WILL OPERATE IN COMBINATION WITH ANY OTHER HARDWARE, SOFTWARE, SYSTEM OR DATA, (B) DEFECTS, IF ANY, WILL BE CORRECTED, (C) WOUNDS A.I. PLATFORM IS FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS, (D) THAT THE SUBSCRIPTION SERVICE OR THE RESULTS ACHIEVED THROUGH USE OF THE SUBSCRIPTION SERVICE WILL MEET SUBSCRIBER’S EXPECTATIONS OR (E) ANY STORED DATA WILL BE ACCURATE OR RELIABLE AND VENDOR DOES NOT MAKE ANY REPRESENTATIONS OR WARRANTIES ABOUT THE ACCURACY, RELIABILITY, CURRENCY, QUALITY, PERFORMANCE OR SUITABILITY OF THE SUBSCRIPTION SERVICE OR THE RESULTS ACHIEVED THROUGH USE OF THE SUBSCRIPTION SERVICE. IN THE EVENT THAT WOUNDS A.I. IS UNABLE TO RESOLVE A PROBLEM WITH THE SUBSCRIPTION SERVICE, THE SUBSCRIBER’S SOLE AND EXCLUSIVE REMEDY UNDER THIS AGREEMENT IS TO CEASE USE OF THE SUBSCRIPTION SERVICE AND RECEIVE A PRO RATA REFUND OF ANY FEES PAID FOR THE UNEXPIRED TERM.
THE WOUNDS A.I. PLATFORM IS PROVIDED VIA THE INTERNET AND THE SUBSCRIBER ACKNOWLEDGES AND AGREES THAT WOUNDS A.I. DOES NOT OPERATE OR CONTROL THE INTERNET. AS SUCH, THE WOUNDS A.I. PLATFORM MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS. WOUNDS A.I. IS NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES, OR OTHER DAMAGE RESULTING FROM SUCH PROBLEMS. SUBSCRIBER ACKNOWLEDGES AND AGREES THAT THE SUBSCRIBER IS SOLELY RESPONSIBLE FOR ITS USE OF ALL DATA AND OUTPUT FROM THE WOUNDS A.I. PLATFORM, INCLUDING CONFIRMING THE CONDITION, QUALITY, ACCURACY, RELIABILITY, SUITABILITY AND FUNCTIONALITY OF THE WOUNDS A.I. PLATFORM.
WOUNDS A.I. SHALL NOT BE RESPONSIBLE UNDER THIS AGREEMENT FOR: (I) ANY THIRD PARTY SOFTWARE OR SERVICES USED WITH THE WOUNDS A.I. PLATFORM; (II) MODIFICATION OR IMPROVEMENTS BY THE SUBSCRIBER TO ANY APPLICATION PROTOCOL INTERFACES TO THE WOUNDS A.I. PLATFORM; (III) THE CORRECTION OF PROGRAM ERRORS RESULTING FROM MODIFICATION OF THE WOUNDS A.I. PLATFORM AT THE REQUEST OF SUBSCRIBER; OR (IV) SUBSCRIBER’S FAILURE TO USE THE WOUNDS A.I. PLATFORM IN ACCORDANCE WITH DOCUMENTATION PROVIDED BY WOUNDS A.I. .