1.1 Subject to the terms of this Agreement, Company will use commercially reasonable efforts to provide Customer the Services. As part of the registration process, Customer will identify an administrative user name and password for Customer’s Company account. Company reserves the right to refuse registration of, or cancel passwords it deems inappropriate.
1.2 Subject to the terms hereof, Company will provide Customer with reasonable technical support services in accordance with Company’s standard practice.
2.1 Customer will not, directly or indirectly: reverse engineer, decompile, disassemble or otherwise attempt to discover the source code, object code or underlying structure, ideas, know-how or algorithms relevant to the Services or any software, documentation or data related to theServices (“Software”); modify, translate, or create derivative works based onthe Services or any Software (except to the extent expressly permitted by Company or authorized within the Services); use the Services or any Software for time sharing or service bureau purposes or otherwise for the benefit of athird; or remove any proprietary notices or labels. With respect to any Software that is distributed or provided to Customer for use on Customer premises or devices, Company hereby grants Customer a non-exclusive, non-transferable, non-sublicensable license to use such Software during the Term only in connection with the Services.
2.2 Further, Customer agrees to comply with all applicable U.S. export control laws and regulations, including those administered by the U.S. Department of Commerce and the U.S. Treasury Office of Foreign Assets Control. Without limiting the foregoing, Customer shall not access or use the Services in any country subject to U.S. embargo or sanctions, or in violation of any applicable export laws. The Services are provided from U.S.-based infrastructure and are intended for use in compliance with these laws.
2.3 Customer represents, covenants, and warrants tha tCustomer will use the Services only in compliance with Company’s standard published policies then in effect (Exhibit A: the “Policy”) and all applicable laws and regulations. Customer hereby agrees to indemnify and hold harmless Company against any damages, losses, liabilities, settlements and expenses (including without limitation costs and attorneys’ fees) in connection with any claim or action that arises from an alleged violation of the foregoing orotherwise from Customer’s use of Services. Although Company has no obligation to monitor Customer’s use of the Services, Company may do so and may prohibitany use of the Services it believes may be (or alleged to be) in violation ofthe foregoing.
2.4 Customer shall be responsible for obtaining and maintaining any equipment and ancillary services needed to connect to, accessor otherwise use the Services, including, without limitation, modems, hardware, servers, software, operating systems, networking, web servers and the like (collectively, “Equipment”). Customershall also be responsible for maintaining the security of the Equipment, Customer account, passwords (including but not limited to administrative and user passwords) and files, and for all uses of Customer account or the Equipment with or without Customer’s knowledge or consent.
3.1 Each party (the “Receiving Party”) understands that the other party (the “Disclosing Party”) has disclosed or may disclose business, technical or financial information relating to the Disclosing Party’s business (hereinafter referred to as “Proprietary Information” of the Disclosing Party). Proprietary Information of Company includes non-public information regarding features, functionality and performance of the Service. Proprietary Information of Customer includes non-public data provided by Customer to Company to enable the provision of the Services (“Customer Data”). The Receiving Party agrees: (i) to take reasonable precautions to protect such Proprietary Information, and (ii) not to use (except in performance of the Services or as otherwise permitted herein) or divulge to any third person any such Proprietary Information. The Disclosing Party agrees that the foregoing shall not apply with respect to any information after five (5) years following the disclosure thereof or any information that the Receiving Party can document (a) is or becomes generally available to the public, or (b) was in its possession or known by it prior to receipt from the Disclosing Party, or (c) was rightfully disclosed to it without restriction by a third party, or (d) was independently developed without use of any Proprietary Information of the Disclosing Party or (e) is required to be disclosed by law.
3.2 Customer shall own all right, title and interest in andto the Customer Data. Company shall own and retain all right, title and interest in and to (a) the Services and Software, all improvements, enhancements or modifications thereto, (b) any software, applications, inventions or other technology developed in connection with enhancing the Services or support, and (c) all intellectual property rights related to any of the foregoing.
3.3 Notwithstanding anything to the contrary, Company shall have the right to collect and analyze video data and other information relating to the provision, use and performance of various aspects of the Services and related systems and technologies (including, without limitation,information concerning Customer Data and data derived therefrom), and Company will be free (during and after the term hereof) to (i) use such information and data to improve and enhance the Services and for other development, diagnostic and corrective purposes inconnection with the Services and other Company offerings, and (ii) disclose objective data and metrics derived from user-recorded videos (the “Measurements”) solely in aggregate forms in connection with its business. No rights or licenses are granted except as expressly set forth herein.
3.4 Customer agrees that when using the platform, Company may process and store data to provide the services of the Platform.
3.5 Customer has the right to delete Customer Data stored by Company for them at any time. Customer may delete their data directly through the platform, or by contacting the Company at info@modelhealth.io.
3.6 Company acknowledges and agrees to ensure that any Licensed IP provided to User will be designed, implemented, and maintained incompliance with the Health Insurance Portability and Accountability Act (HIPAA) privacy and security rules. User shall be responsible for promptly notifying Company of any specific regulatory requirements or rules that may be applicable to their use of the Licensed IP. Company shall undertake reasonable efforts to satisfy such requirements. Customer agrees to pay any audit fees incurred to verify that the Licensed IP adheres to all relevant privacy and security rules applicable to their use. Customer also assumes full responsibility for obtaining the necessary direct consent from individuals whose data is measured or processed using the Licensed IP.
4.1 Customer will pay Company the then applicable fees described in the Order Form for the Services in accordance with the terms therein (the “Fees”). If Customer’s use of the Services exceeds the Service Capacity set forth on the Order Form or otherwise requires the payment of additional fees (per the terms of this Agreement), Customer shall be billed for such usage and Customer agrees to pay the additional fees in the manner provided herein. Company reserves the right to change the Fees or applicable charges and to institute new charges and Fees at the end of the Initial Service Term or then‑current renewal term, upon thirty (30) days prior notice to Customer (which may be sent by email). If Customer believes that Company has billed Customer incorrectly, Customer must contact Company no later than 60 days after the closing date on the first billing statement in which the error or problem appeared, in order to receive an adjustment or credit. Inquiries should be directed to Company’s customer support department, sending an email to support@modelhealth.io.
4.2 Company may choose to bill through an invoice, in which case, full payment for invoices issued in any given month must be received by Company thirty (30) days after the mailing date of the invoice. A 3% credit card fee may further apply. Unpaid amounts are subject to a finance charge of 1.5% per month on any outstanding balance, or the maximum permitted by law, whichever is lower, plus all expenses of collection and may result in immediate termination of Service. Customer shall be responsible for all taxes associated with Services other than U.S. taxes based on Company’s net income.
5.1 Subject to earlier termination as provided below, these terms corresponds to the Initial Service Term as specified in the Order Form, and shall be automatically renewed for additional periods of the same duration as the Initial Service Term (collectively, the “Term”), unless either party requests termination at least thirty (30) days prior to the end of the then-current term.
5.2 In addition to any other remedies it may have, either party may also terminate the Agreement upon thirty (30) days’ notice (or without notice in the case of non payment), if the other party materially breaches any of the terms in this document. Customer will pay in full for the Services up to and including the last day on which the Services are provided. Upon any termination, Company will make all Customer Data available to Customer for electronic retrieval for a period of thirty (30) days, but there after Company may, but is not obligated to, delete stored Customer Data. All sections of these Terms and Conditions which by their nature should survive termination will survive termination, including, without limitation, accrued rights to payment, confidentiality obligations, warranty disclaimers, and limitations of liability.
6.1 Company shall use reasonable efforts consistent with prevailing industry standards to maintain the Services in a manner which minimizes errors and interruptions in the Services. Services may be temporarily unavailable for scheduled maintenance or for unscheduled emergency maintenance, either by Company or by third-party providers, or because of other causes beyond Company’s reasonable control, but Company shall use reasonable efforts to provide advance notice in writing or by e-mail of any scheduled service disruption. However, Company does not warrant that the Services will be uninterrupted or error free; nor does it make any warranty as to the results that may be obtained from use of the Services. EXCEPT AS EXPRESSLY SET FORTH IN THIS SECTION, THE SERVICES ARE PROVIDED “AS IS” AND COMPANY DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED,INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY ANDFITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.
6.2 Service is not intended for medical purposes. Service does not offer any kind of medical advice, diagnosis or treatment. Company is not a licensed medical professional, and the use of Service does not constitute the practice of medicine. The Platform is intended solely for the general analysis of human movement patterns and performance. The video-derived Measurements provided to you of objective movement data and metrics should not be treated as medical advice. Services Content is for informational purposes only and is not a substitute for the professional judgment of a medical professional. You should not use the Services for diagnosis or treatment of any health problem. Always seek the opinion of a licensed medical professional before starting any new treatment. All content provided by the Platform including the Measurements is not intended to be and should not be used inplace of (a) the advice of a physician or other medical professionals, and (b)a visit, call or consultation with your physician or other medical professionals. Should you have any health-related questions, please contact your physician or other healthcare provider promptly.
6.3 Company does not warrant that the Service will be free of errors and Customer acknowledge that the existence of any such errors doesnot constitute a breach of these Terms and Conditions. To the extent permitted by law Company and Company’s Authorized Representatives expressly disclaim all warranties, express or implied, including, but not limited to, any implied warranties of merchantability and fitness for a particular purpose unless otherwise stated herein. Company and Company’s Authorized Representatives do not warrant that the functions contained in the Platform will meet the Authorized Customer requirements or that the operation of the Platform will be correct. Furthermore, Company and Company’s Authorized Representatives do not warrant or make any representations regarding the use or the results of the use of the Platform in terms of its correctness, accuracy, reliability, or otherwise. No oral or written information or advice given by Company and Company’s Authorized Representatives will create a warranty or in any way increase the scope of this warranty. Should the Platform prove defective in your technology environment, you assume the entire cost of all necessary servicing, repair or correction to your own technology environment.
7.1 Company will under no circumstances, be obligated to indemnify, defend, or hold Customer, its Affiliates, or respective representatives, officers, directors, stockholders, employees or agents harmless from any liability, claims, demands, causes of action, judgments, damages, or expenses (including reasonable attorneys' and experts' fees and costs) arising out of or as a result of Customer's or its sub-licensees' use of the Licensed IP under thes Terms and Conditions.
7.2 Promptly after receipt by Company of notice of any indemnification claim, Company must give Customer written notice describing the claim in reasonable detail, along with copies of any correspondence, court documents, or other writings stating the claim. Customer will be responsible for the defense or settlement of the claim, at its own expense and by counsel of its own selection and Company will have the right (at its own expense) to participate in the defense of the claim. Company must reasonably cooperate with Customer and its counsel in the defense and settlement of the claim. Customer cannot enter into any settlement with respect to any claim without the prior written consent of Company, which consent will not be unreasonably withheld. If Customer declines to assume the defense of the claim, Company may assume such defense and settle the claim as it deems appropriate, provided that does not enter into any settlement with respect to the claim without the prior written consent of Customer, which consent will not be unreasonably withheld.
NOTWITHSTANDING ANYTHING TO THE CONTRARY, EXCEPT FOR BODILY INJURY OF A PERSON, COMPANY AND ITS SUPPLIERS (INCLUDING BUT NOT LIMITED TO ALL EQUIPMENT AND TECHNOLOGY SUPPLIERS), OFFICERS, AFFILIATES, REPRESENTATIVES, CONTRACTORS AND EMPLOYEES SHALL NOT BE RESPONSIBLE OR LIABLE WITH RESPECT TO ANY SUBJECT MATTER OF THIS TERMS AND CONDITIONS RELATED THERE TO UNDER ANY CONTRACT, NEGLIGENCE, STRICTLIABILITY OR OTHER THEORY: (A) FOR ERROR OR INTERRUPTION OF USE OR FOR LOSS OR INACCURACY OR CORRUPTION OF DATA OR COST OF PROCUREMENT OF SUBSTITUTE GOODS, SERVICES OR TECHNOLOGY OR LOSS OF BUSINESS; (B) FOR ANY INDIRECT, EXEMPLARY, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES; (C) FOR ANY MATTER BEYOND COMPANY’S REASONABLE CONTROL; OR (D) FOR ANY AMOUNTS THAT, TOGETHER WITH AMOUNTS ASSOCIATED WITH ALL OTHER CLAIMS, EXCEED THE FEES PAID BY CUSTOMER TO COMPANY FOR THE SERVICES UNDER THESE TERMS AND CONDITIONS IN THE 12 MONTHS PRIOR TO THE ACT THAT GAVE RISE TO THE LIABILITY, IN EACH CASE, WHETHER OR NOT COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
If any provision of this Terms and Conditions is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that this Terms and Conditions will otherwise remain in full force and effect and enforceable. The Services are not assignable, transferable or sublicensable by Customer except with Company’s prior written consent. Company may transfer and assign any of its rights and obligations under these Terms and Conditions without consent. Upon acceptance, these Terms and Conditions are the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements, communications and other understandings relating to the subject matter of these Terms and Conditions, and that all waivers and modifications must be in a writing signed by both parties, except as otherwise provided herein. No agency, partnership, joint venture, or employment is created as a result of these Terms and Conditions and Customer does not have any authority of any kind to bind Company in any respect whatsoever. In any action or proceeding to enforce rights under these Terms and Conditions, the prevailing party will be entitled to recover costs and attorneys’ fees. All notices under these Terms and Conditions will be in writing and will be deemed to have been duly given when received, if personally delivered; when receipt is electronically confirmed, if transmitted by facsimile or e-mail; the day after it is sent, if sent for next day delivery by recognized overnight delivery service; and upon receipt, if sent by certified or registered mail, return receipt requested. These Terms and Conditions shall be governed by the laws of the State of Delaware without regard to its conflict of laws provisions. The parties shall work together in good faith to issue at least one mutually agreed upon press release within 90 days of the Effective Date, and Customer otherwise agrees to reasonably cooperate with Company to serve as a reference account upon request.
1. Permitted Use:
The Service is intended solely for lawful, professional use in analyzing human movement through marker less motion capture. Customer agrees to:
2. Prohibited Use:
Customer must NOT:
3. Data Responsibilities
Customer is responsible for the legality and accuracy of any data uploaded.
