Avive Solutions, Inc.
Master Subscription Agreement
PLEASE READ THE FOLLOWING TERMS CAREFULLY:
BY CLICKING A BOX INDICATING YOUR ACCEPTANCE OF THIS AGREEMENT (THE DATE UPON WHICH YOU ACCEPT THIS AGREEMENT IS REFERRED TO AS THE “EFFECTIVE DATE”), YOU AGREE THAT YOU HAVE READ AND UNDERSTOOD, AND, AS A CONDITION TO YOUR USE OF THE SERVICES, YOU AGREE TO BE BOUND BY, THE FOLLOWING TERMS AND CONDITIONS. IF YOU ARE A COMPANY, ORGANIZATION, OR OTHER ENTITY, THE INDIVIDAUL ACCEPTING THIS AGREEMENT ON YOUR BEHALF REPRESENTS AND WARRANTS THAT THEY HAVE AUTHORITY TO BIND YOU TO THIS AGREEMENT. IF YOU ARE NOT ELIGIBLE, OR DO NOT AGREE TO THE TERMS AND CONDITIONS SET FORTH HEREIN, THEN YOU DO NOT HAVE OUR PERMISSION TO USE THE SERVICES. YOUR USE OF THE SERVICES, AND OUR PROVISION OF THE SERVICES TO YOU, CONSTITUTES AN AGREEMENT BY US AND BY YOU TO BE BOUND BY THESE TERMS. UNDEFINED TERMS USED HEREIN HAVE THE MEANINGS GIVEN TO THEM IN THE APPLICABLE ORDER.
1.1 “Authorized Purpose” means access to and use of the Avive Connect AED and Services.
1.2 “Authorized User” means the specific Customer users who need to access the Service for the Authorized Purpose and who are provided with Service account logins by, or on behalf of, Avive.
1.3 “Confidential Information” means any information disclosed by either party to the other party, either directly or indirectly, in writing, orally or by inspection of tangible objects (including without limitation documents, prototypes, samples, plant and equipment), which is designated as "Confidential," "Proprietary" or some similar designation at the time of disclosure. Information communicated orally will be considered Confidential Information if such information is confirmed in writing as being Confidential Information within a reasonable time (no more than 10 days) after the initial disclosure. Confidential Information may also include information disclosed to a disclosing party by third parties. In addition, Avive’s Confidential Information includes, but is not limited to, this Agreement, any addenda hereto signed by both parties, the Service, any responses to technical support requests, and any business information, technical data, or know-how relating to the Service, any services, or any associated technology or services, including without limitation all such information disclosed in written form. Confidential Information will not, however, include any information which (i) was publicly known and made generally available in the public domain prior to the time of disclosure by the disclosing party; (ii) becomes publicly known and made generally available after disclosure by the disclosing party to the receiving party through no action or inaction of the receiving party; (iii) is already in the possession of the receiving party at the time of disclosure by the disclosing party as shown by the receiving party’s files and records immediately prior to the time of disclosure; (iv) is obtained by the receiving party from a third party without a breach of such third party’s obligations of confidentiality; or (v) is independently developed by the receiving party without use of or reference to the disclosing party’s Confidential Information, as shown by documents and other competent evidence in the receiving party’s possession.
1.4 “Order” means an order for Products placed by Customers using one of the following methods: a) written order form which may be received via a phone order, email or Avive’s website, b) work orders pursuant to Avive’s Master Services Agreement, or c) other methods created by Avive from time to time.
1.5 “Products” means Avive’s products.
1.6 “Service” means the online platform to which access is provided to Customer pursuant to this Agreement and which allows Authorized Users to access and use Avive’s REALConnect Platform with the Avive Connect AED, as separately licensed or leased by Customer pursuant to an Order and the General Terms and Conditions of Sale and the LifeSaver Plan – AED Lease Program Agreement, if applicable.
1.7 “Term” shall have the meaning set forth on an Order.
2. Access to Service.
2.1 Grant. Subject to the terms and conditions of this Agreement, Avive hereby grants to Customer a nonexclusive and nontransferable right during the Term to allow the Authorized Users to access and use the Service for the Authorized Purpose. Customer shall not allow access to the Service by any person other than an Authorized User or for use other than as reasonably necessary for the Authorized Purpose.
2.2 Reservation of Rights. Customer acknowledges that it is only granted access to the Service for the Authorized Purpose during the Term in accordance with Section 2.1 and agrees that it shall not use the Service except as permitted under Section 2.1. Customer acknowledges that Avive retains title to the Service. Avive hereby reserves all rights to the Service or any copyrights, patents, trademarks or other intellectual property rights embodied or used in connection therewith, except for the rights expressly granted herein.
2.3 Additional Restrictions. Customer shall not itself, or through any parent, subsidiary, affiliate, agent or other third party: (a) transfer, distribute, sell, lease, license or sublicense access to the Service; (b) attempt to decompile, disassemble, or reverse engineer the Service, in whole or in part; (c) allow access to the Service by any person other than an Authorized User; (d) write or develop any derivative software or any other software program based upon the Service or any Confidential Information; (e) use the Service to provide processing services to third parties, or otherwise use the Service on a ‘service bureau’ basis; or (f) provide, disclose, divulge or make available to, or permit use of the Service by any third party without Avive’s prior written consent.
2.4 Authorized Users. Customer acknowledges and agrees that it is responsible for all use or misuse of the Service by its Authorized Users, and a breach by any such Authorized User of any term of this Agreement shall be deemed a breach under this Agreement. As between the parties, Customer agrees that is responsible for notifying and obtaining the agreement of such Authorized Users to the restrictions with respect to the Service. Avive reserves the right to immediately suspend any or all Authorized Users’ access to the Service if Avive believes, in its sole discretion, that an Authorized User has misused the Service. Each Service account login provided to an Authorized User is personal to that specific individual and may not be transferred, sold or otherwise assigned to or shared with any other individual or entity.
2.5 Feedback. From time to time, Customer may provide to Avive (either on its own accord or at the request of Avive) feedback, analysis, suggestions and comments (including, but not limited to, bug reports and test results, and design suggestions or ideas) related to the Service (collectively, “Feedback”). Avive may also collect certain information about your usage of the Services, including but not limited to: a) when an AED is applied to a patient, b) when and if you contact 911 through the Services, c) a patient’s heart rhythm, and d) the number of times a shock is delivered to a patient ((a) – (d) collectively, “Usage Data”). Avive does not collect patients’ personally identifiable information, and you agree to never send such information to Avive. As between Avive and Customer, all right, title and interest in and to any such Feedback and Usage Data shall be owned by Avive. Customer agrees that Avive shall have the perpetual, irrevocable and worldwide right to use, modify, license, sublicense and otherwise exploit all or part of the Feedback of Usage Data or any derivative thereof for any lawful purpose, in any manner or media now known or hereafter devised and without any remuneration, compensation or credit to Customer.
2.6 Third Party Services. In order to use certain features of the Services, you may need additional services such as RapidSOS Inc.’s service in order to facilitate communication with 911 Emergency Communications Centers across the United States. Third party services are subject to terms and conditions, specified by the third party service provider, and Avive makes no warranties with respect to these services. Your use of such the RapidSOS service will be governed by the End User License Agreement which can be found here.
3. Subscription Fee.
3.1 Payment of Fees. In consideration of the access granted pursuant to Section 2.1, Customer shall pay Avive the subscription fee established by the applicable Order. Any amounts not paid within 30 days will be subject to interest of 1.5% per month, which interest will be immediately due and payable.
3.2 Taxes. All charges and fees provided for in this Agreement are exclusive of any taxes, duties, or similar charges imposed by any government and will be established by the applicable Order. Customer shall pay or reimburse Avive for all federal, state, dominion, provincial, or local sales, use, personal property, excise or other taxes, fees, or duties arising out of this Agreementor the transactions contemplated by this Agreement (other than taxes on the net income of Avive).
4. Limited Warranty and Limitation of Liability
4.1 Disclaimer. Avive makes no warranties, whether express, implied, or statutory regarding or relating to the Service, or any materials or services furnished or provided to Customer under this Agreement. AVIVE HEREBY DISCLAIMS ALL IMPLIED WARRANTIES OF NON-INFRINGEMENT, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE WITH RESPECT TO THE SERVICE AND SAID OTHER MATERIALS AND SERVICES (INCLUDING ANY THIRD PARTY SERVICES MADE AVAILABLE THROUGH AVIVE’S SERVICES), AND WITH RESPECT TO THE USE OF ANY OF THE FOREGOING.
4.2 Limitation of Liability. IN NO EVENT WILL AVIVE BE LIABLE FOR ANY LOSS OF PROFITS, LOSS OF USE, BUSINESS INTERRUPTION, LOSS OF DATA, COST OF COVER OR INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES OF ANY KIND IN CONNECTION WITH OR ARISING OUT OF THE FURNISHING, PERFORMANCE OR USE OF THE SERVICE (INCLUDING ANY THIRD PARTY SERVICES MADE AVAILABLE THROUGH AVIVE’S SERVICES), WHETHER ALLEGED AS A BREACH OF CONTRACT OR TORTIOUS CONDUCT, INCLUDING NEGLIGENCE, EVEN IF AVIVE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. AVIVE’S LIABILITY UNDER THIS AGREEMENT FOR DAMAGES WILL NOT, IN ANY EVENT, EXCEED THE SUBSCRIPTION FEES PAID BY CUSTOMER TO AVIVE UNDER THIS AGREEMENT. CUSTOMER UNDERSTANDS AND AGREES THAT AVIVE IS NOT OBLIGATED TO NOTIFY OR DISPATCH MEDICAL, FIRE, OR POLICE ASSISTANCE AND THAT AVIVE SHALL HAVE NO LIABILITY FOR FAILING TO DO SO OR FOR MEDICAL, FIRE, OR POLICE ASSISTANCE NOT RECEIVING SUCH NOTIFICATION OR NOT ACTING ON SUCH NOTIFICATION. IF AVIVE ELECTS TO NOTIFY MEDICAL, FIRE, OR POLICE ASSISTANCE, AVIVE’S LIABILITY FOR DOING SO SHALL BE LIMITED AS SET FORTH HEREIN AND AVIVE TAKES NO RESPONSIBILITY FOR ANY FIRST RESPONDERS’ OR EMERGENCY ASSISTANCE RESPONSE TO SUCH A SIGNAL. CUSTOMER AGREES THAT IT IS CUSTOMER’S SOLE RESPONSIBILITY TO PREPARE FOR ANY MEDICAL, FIRE, OR POLICE EMERGENCY. The provisions of this Section 4 allocate risks under this Agreement between Customer and Avive. Avive’s pricing of the Service reflects this allocation of risks and limitation of liability.
5. Indemnification for Infringement
5.1 Indemnity. Avive shall, at its expense, defend or settle any claim, action or allegation brought against Customer that the Service infringes any copyright or trade secret of any third party and shall pay any final judgments awarded or settlements entered into; provided that Customer (i) gives prompt written notice to Avive of any such claim, action or allegation of infringement, (ii) gives the Avive the assistance, authority and information as Avive may reasonably require to settle or oppose such claims, and (iii) gives Avive the authority to proceed as contemplated herein. Avive will have the exclusive right to defend any such claim, action or allegation and make settlements thereof at its own discretion, and Customer may not settle or compromise such claim, action or allegation, except with prior written consent of Avive.
5.2 Options. In the event any such infringement, claim, action or allegation is brought or threatened, Avive may, at its sole option and expense: (a) procure for Customer the right to continue use of the Service or infringing part thereof; or (b) modify or amend the Service or infringing part thereof, or replace the Service or infringing part thereof with other software having substantially the same or better capabilities; or, (c) if neither of the foregoing is commercially practicable, terminate this Agreement and repay to Customer a pro rata portion, if any, of any pre-paid subscription fees. Avive and Customer will then be released from any further obligation to the other under this Agreement, except for the obligations of indemnification provided for above and such other obligations that survive termination.
5.3 Exclusions Avive shall have no liability hereunder if the actual or alleged infringement results from (a) Customer’s breach of this Agreement, (b) any modification, alteration or addition made to the Service or any use thereof, including any combination of the Service with software or other materials not provided by Avive, (c) Customer’s failure to use any corrections or modifications made available by Avive that would not result in any material loss of functionality, (d) use of the Service in a manner or in connection with a product or data not contemplated by this Agreement, or (e) any settlements entered into by Customer or costs incurred by Customer for such claim that are not pre-approved by Avive in writing.
5.4 Limitation. THIS SECTION 5 STATES THE ENTIRE LIABILITY OF AVIVE WITH RESPECT TO INFRINGEMENT OF ANY PATENT, COPYRIGHT, TRADE SECRET OR OTHER PROPRIETARY RIGHT.
6. Confidential Information
6.1 Non-Use and Non-Disclosure. Each party agrees not to use any Confidential Information of the other party for any purpose except to exercise its rights and perform its obligations under this Agreement. Each party agrees not to disclose any Confidential Information of the other party to third parties or to such party’s employees who do not have a need to know. Notwithstanding, a receiving party may disclose such Confidential Information a) that is required by law to be disclosed if the receiving party gives the disclosing party prompt written notice of such requirement prior to such disclosure and assistance in obtaining an order protecting the information from public disclosure, or b) with its partners, distributors, affiliates and sales agents. Neither party shall reverse engineer, disassemble or decompile any prototypes, software or other tangible objects which embody the other party’s Confidential Information and which are provided to the party hereunder.
6.2 Maintenance of Confidentiality. Each party agrees that it shall take reasonable measures to protect the secrecy of and avoid disclosure and unauthorized use of the Confidential Information of the other party. Without limiting the foregoing, each party shall take at least those measures that it takes to protect its own most highly confidential information and shall ensure that its employees who have access to Confidential Information of the other party have signed a non-use and non-disclosure agreement in content similar to the provisions hereof, prior to any disclosure of Confidential Information to such employees. Neither party shall make any copies of the Confidential Information of the other party unless the same are previously approved in writing by the other party. Each party shall reproduce the other party’s proprietary rights notices on any such approved copies, in the same manner in which such notices were set forth in or on the original.
6.3 Return of Materials. Upon the termination or expiration of this Agreement, each party shall deliver to the other party all of such other party’s Confidential Information that such party may have in its possession or control.
7. Term and Termination
7.1 Term. The initial term of this Agreement will be established by the applicable Order (the “Initial Term”). After the Initial Term, this Agreement will automatically renew on an annual basis (the “Renewal Term”), unless stated otherwise in the applicable Order. Collectively, the Initial Term and Renewal Terms are the “Term.”
7.2 Termination by Customer. This Agreement may be terminated by Customer upon thirty (30) days’ prior written notice to Avive, with or without cause, provided that no such termination will entitle Customer to a refund of any portion of the subscription fees.
7.3 Termination Events. Avive may, by written notice to Customer, terminate this Agreement if any of the following events (“Termination Events”) occur:
(a) Customer fails to pay any amount due Avive within thirty (30) days after Avive gives Customer written notice of such nonpayment; or
(b) Customer is in material breach of any nonmonetary term, condition or provision of this Agreement, which breach, if capable of being cured, is not cured within thirty (30) days after Avive gives Customer written notice of such breach; or
(c) Customer (i) terminates or suspends its business, (ii) becomes insolvent, admits in writing its inability to pay its debts as they mature, makes an assignment for the benefit of creditors, or becomes subject to direct control of a trustee, receiver or similar authority, or (iii) becomes subject to any bankruptcy or insolvency proceeding under federal or state statutes.
If any Termination Event occurs, termination will become effective immediately or on the date set forth in the written notice of termination. Termination of this Agreement will not affect the provisions regarding Customer’s or Avive’s treatment of Confidential Information, provisions relating to the payment of amounts due, or provisions limiting or disclaiming Avive’s liability, which provisions will survive termination of this Agreement.
7.4 Survival and Termination Obligations. Immediately upon expiration or termination of this Agreement for any reason whatsoever, Customer will cease all access to and use of the Service. In addition, no later than thirty (30) days after the date of termination or discontinuance of this Agreement for any reason whatsoever, Customer shall return all any Confidential Information of the Avive in its possession that is in tangible form. Customer shall furnish Avive with a certificate signed by an executive officer of Customer verifying that the same has been done. Sections 2.2-2.5, 3, 4.2, 5, 6, 7.3-7.4, and 8 shall survive any termination or expiration of this Agreement.
8.1 Assignment. Neither this Agreement nor any rights under this Agreement may be assigned or otherwise transferred by Customer, in whole or in part, whether voluntary or by operation of law, including by way of sale of assets, merger, or consolidation, without the prior written consent of Avive. Avive may freely assign this Agreement.
8.2 Notices. Any notice required or permitted under the terms of this Agreement or required by law must be in writing (email sufficient) and shall be deemed sufficiently given when received, if (a) delivered in person, (b) sent by first class registered mail, or air mail, as appropriate at the addresses indicated in the applicable Order, or (c) sent by overnight air courier, in each case properly posted and fully prepaid to the appropriate address set forth in the applicable Order, or (d) sent to the email address indicated in the applicable Order. Either party may change its address for notice by notice to the other party given in accordance with this Section. Notices will be considered to have been given at the time of actual delivery in person, three (3) business days after deposit in the mail as set forth above, or one day after delivery to an overnight air courier service.
8.3 Limitation on Claims. No action arising out of any breach or claimed breach of this Agreement or transactions contemplated by this Agreement may be brought by either party more than one year after the cause of action has accrued. For purposes of this Agreement, a cause of action will be deemed to have accrued when a party knew or reasonably should have known of the breach or claimed breach.
8.4 No Warranties. No employee, agent, representative or affiliate of Avive has authority to bind Avive to any oral representations or warranty concerning the Service. Any written representation or warranty not expressly contained in this Agreement will not be enforceable.
8.5 Force Majeure. Neither party will incur any liability to the other party on account of any loss or damage resulting from any delay or failure to perform all or any part of this Agreement if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control and without negligence of the parties. Such events, occurrences, or causes will include, without limitation, acts of God, strikes, lockouts, riots, acts of war, earthquake, fire and explosions, but the inability to meet financial obligations is expressly excluded.
8.6 Waiver. Any waiver of the provisions of this Agreement or of a party’s rights or remedies under this Agreement must be in writing to be effective. Failure, neglect, or delay by a party to enforce the provisions of this Agreement or its rights or remedies at any time, will not be construed and will not be deemed to be a waiver of such party’s rights under this Agreement and will not in any way affect the validity of the whole or any part of this Agreement or prejudice such party’s right to take subsequent action. No exercise or enforcement by either party of any right or remedy under this Agreement will preclude the enforcement by such party of any other right or remedy under this Agreement or that such party is entitled by law to enforce.
8.7 Severability. If any term, condition, or provision in this Agreement is found to be invalid, unlawful or unenforceable to any extent, the parties shall endeavor in good faith to agree to such amendments that will preserve, as far as possible, the intentions expressed in this Agreement. If the parties fail to agree on such an amendment, such invalid term, condition or provision will be severed from the remaining terms, conditions and provisions, which will continue to be valid and enforceable to the fullest extent permitted by law.
8.8 Integration. This Agreement (including any Orders hereto) contains the entire agreement of the parties with respect to the subject matter of this Agreement and supersedes all previous communications, representations, understandings and agreements, either oral or written, between the parties with respect to said subject matter. This Agreement may not be amended, except by a writing signed by both parties.
8.9 Export. Customer acknowledges that the Service may contain features subject to United States and local country laws governing import, export, distribution and use. Customer is responsible for compliance by the Customer and its Authorized Users with United States and local country laws and regulations and shall not export, use or transmit the Service (i) in violation of any export control laws of the United States or any other country, or (ii) to anyone on the United States Treasury Department’s list of Specially Designated Nationals or the U.S. Commerce Department’s Table of Deny Order.
8.10 U.S. Government Restricted Rights. If the Service is accessed or used by any agency or other part of the U.S. Government, the U.S. Government acknowledges that Avive provides the Service, including related software and technology, for ultimate federal government end use solely in accordance with the following: Government technical data and software rights related to the Service include only those rights customarily provided to the public as defined in this Agreement. This customary commercial license is provided in accordance with FAR 12.211 (Technical Data) and FAR 12.212 (Software) and, for Department of Defense transactions, DFAR 252.227-7015 (Technical Data – Commercial Items) and DFAR 227.7202-3 (Rights in Commercial Computer Software or Computer Software Documentation). If a government agency has a need for rights not granted under these terms, it must negotiate with Avive to determine if there are acceptable terms for granting those rights, and a mutually acceptable written addendum specifically granting those rights must be included in any applicable agreement.
8.11 Publicity. Customer acknowledges that Avive may desire to use its name in press releases, product brochures and financial reports indicating that Customer is a customer of Avive, and Customer agrees that Avive may use its name in such a manner, subject to Customer’s consent, which consent will not be unreasonably withheld.
8.12 Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of California, excluding its conflicts-of-law provisions. Any dispute between the parties regarding this Agreement will be subject to the exclusive venue of the state and federal courts in San Diego County, California. The parties hereby consent to the exclusive jurisdiction and venue of such courts.