Standard Terms and Conditions
Last Updated: 04 18 2022
1. ACCESS TO CLINICAL ACTION PLATFORM (PLATFORM).
1.1 Access to Platform.
LookDeep will make the Platform available to Customer. Subject to the terms and conditions of this Agreement, LookDeep hereby grants Customer a limited, non-exclusive, non-transferable, non-sublicenseable right to access and use the Platform solely for Customer’s internal business purposes.
1.2 Usage Restrictions and Responsibilities.
Customer will not use the Platform for any purpose other than the purposes expressly set forth in this Agreement. Customer may not: (a) 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 Platform; (b) modify, translate, or create derivative works based on the Platform (except to the extent expressly permitted by LookDeep); (c) use the Platform for timesharing or service bureau purposes or otherwise for the benefit of a third party; or (d) remove any proprietary notices or labels. Except as set forth in an Order Form, Customer shall be responsible for obtaining and maintaining any equipment and ancillary services needed to connect to, access or otherwise use the Platform. Customer shall be responsible for the acts of its Authorized Users in violation of applicable law, or Customer’s obligations under this Agreement. Customer shall not breach, disable, tamper with, or develop or use (or attempt) any workaround for, or otherwise damage the Platform or any Platform security measure, attempt to access any data on LookDeep’s network (including through the Platform) that is not Customer Content (as defined below) or interfere or attempt to interfere (whether through a device, software, mechanism, routine or otherwise) with the proper working of the Platform or any activity conducted on LookDeep’s network.
1.3 License to Customer Content.
Customer hereby grants to LookDeep a non-exclusive, worldwide, royalty-free, fully paid up, right and license to copy, distribute, display and create derivative works of and otherwise use the content, data or information submitted (a) created through the Platform’s use or (b) uploaded by Customer on the Platform (the “Customer Content”) solely to provide the Platform to Customer. Notwithstanding the foregoing, LookDeep may use images and metrics related to Customer’s usage of the Platform for its business purposes in an aggregated or anonymized form.
Customer may from time to time provide suggestions, comments for enhancements or functionality or other feedback (“Feedback”) to LookDeep with respect to the Platform. LookDeep will have full discretion to determine whether or not to proceed with the development of the requested enhancements, new features or functionality. Customer hereby grants to LookDeep a royalty-free, fully paid up, worldwide, transferable, sublicenseable, irrevocable, perpetual license to copy, distribute, transmit, display, perform, create derivative works of and otherwise exploit the Feedback for its business purposes.
2. OWNERSHIP; RESERVATION OF RIGHTS.
Customer acknowledges and agrees that, as between the Parties, LookDeep retains all right, title and interest in and to the Platform and all associated intellectual property rights. LookDeep grants no, and reserves any and all, rights other than the rights expressly granted to Customer under this Agreement with respect to the Platform. Customer will acquire no right, title, or interest in and to the Platform other than the limited licensed rights expressly granted under this Agreement. Notwithstanding the foregoing, Customer retains all right, title and interest in and to the Customer Content.
3. FEES; PAYMENT TERMS.
Customer will pay to LookDeep the fees set forth on the Cover Sheet. Payment obligations are non-cancelable and fees paid are non-refundable except as provided for in the Cover Sheet.
3.2 Payment Terms.
Unless otherwise stated in the Cover Sheet, LookDeep will provide an invoice to Customer for any fees due to LookDeep. Customer will pay all fees to LookDeep within thirty (30) days of receipt of any such invoice. If payment of any fees is not made when due and payable, a late fee will accrue at the rate of the lesser of one and one-half percent (1.5%) per month or the highest legal rate permitted by law. If any past due payment has not been received by LookDeep within thirty (30) days from the time such payment is due, LookDeep may suspend access to the Platform until such payment is made.
3.3 Net of Taxes.
All amounts payable by Customer to LookDeep hereunder are exclusive of any sales, use and other taxes or duties, however designated, including without limitation, withholding taxes, royalties, know how payments, customs, privilege, excise, sales, use, value added and Platform taxes (collectively “Taxes”). Customer will be solely responsible for payment of any Taxes, except for those taxes based on the income of LookDeep.
4. TERM; TERMINATION.
4.1 Term; Termination.
Subject to earlier termination as set forth in this Agreement, the term of this Agreement will commence on the Effective Date and continue for the initial term set forth in the Cover Sheet, and shall automatically renew for additional periods of equal length, unless either Party provides written notice of non-renewal at least thirty (30) days prior to the end of the then-current term. In addition, a Party may terminate this Agreement immediately if the other Party breaches any material provision of this Agreement and does not cure such breach within thirty (30) days after receiving written notice thereof.
4.2 Effect of Termination.
In the event that this Agreement expires or is terminated for any reason, all rights with respect to the Platform will immediately terminate, and Customer will (a) cease use of the Platform; (b) return to LookDeep or destroy, in LookDeep’ sole discretion, all copies or other embodiments of LookDeep’s Confidential Information; and (c) pay to LookDeep all amounts due and owing under this Agreement.
Upon termination of this Agreement, all licenses and rights granted and obligations in this Agreement will terminate, provided that Sections 1.2 (License Restrictions and Responsibilities), 1.3 (License to Customer Data), 1.4 (Feedback), 2 (Ownership; Reservation of Rights), 3 (Fees; Payment Terms), 4 (Term; Termination), 5 (Confidentiality), 6.2 (Disclaimer), 7 (Limitations of Liability), and 9 (General) will survive.
5.1 Definition of Confidential information.
“Confidential Information” means, subject to the exceptions set forth in Section 5.2, any information or data or materials, regardless of whether it is in tangible form, that is disclosed or otherwise made available by a party (the “Discloser”) to the other party (the “Recipient”) and that (a) the Discloser has marked as confidential or proprietary, or (b) the Discloser identifies as confidential at the time of disclosure with written confirmation promptly following disclosure to the Recipient; provided, however, that reports and/or information related to or regarding the Discloser’s business plans, business methodologies, strategies, technology, specifications, development plans, customers, prospective customers, partners, suppliers billing records, and products or services will be deemed Confidential Information of the Discloser even if not so marked or identified, unless such information is the subject of any of the exceptions set forth in Section 5.2 hereof. For the avoidance of doubt, the Platform is Confidential Information of LookDeep.
5.2 Exceptions to Confidential Information.
Confidential Information will not include any information which: (a) the Recipient can show by written record was in its possession prior to disclosure by the Discloser hereunder, provided that the Recipient must promptly notify the Discloser of any prior knowledge; (b) appears in issued patents or printed publications in integrated form or which otherwise is or becomes generally known by the public other than through the Recipient’s failure to observe any or all terms and conditions hereof; or (c) subsequent to disclosure to the Recipient by the Discloser, is obtained by the Recipient from a third person who is not subject to any confidentiality obligation in favor of Discloser.
5.3 Use and Disclosure of Confidential Information.
The Recipient may only use the Confidential Information for the purpose of performing its obligations and exercising its rights hereunder. The Recipient must keep secret and will never disclose, publish, divulge, furnish or make accessible to anyone any of the Confidential Information of the Discloser, directly or indirectly, other than furnishing such Confidential Information to (a) the Recipient’s employees who are required to have access to such Confidential Information in connection with the performance of the Recipient’s obligations, or the exercise of the Recipient’s rights, hereunder, and (b) professional advisers (e.g., lawyers and accountants), in each case, during the time that the Recipient is permitted to retain such Confidential Information hereunder; provided that any and all such employees are bound by written agreements or, in the case of professional advisers, ethical duties, respecting the Confidential Information in the manner set forth in this Agreement. The Recipient will use at least reasonable care and adequate measures to protect the security of the Confidential Information of the Discloser and to ensure that any Confidential Information of the Discloser is not disclosed or otherwise made available to other persons or used in viola?on of this Agreement.
5.4 Disclosures Required by Law.
In the event that the Recipient is required by law to make any disclosure of any of the Confidential Information of the Discloser, by subpoena, judicial or administrative order or otherwise, the Recipient will give prompt written notice to the Discloser so that the Discloser may take appropriate actions to protect its rights, including without limitation seeking a protective order or other appropriate remedy.
6. REPRESENTATIONS AND WARRANTIES; DISCLAIMER.
6.1 Representations and Warranties.
Each Party represents and warrants to the other Party that (a) such Party has the required power and authority to enter into this Agreement and to perform its obligations hereunder, (b) the execution of this Agreement and performance of its obligations thereunder do not and will not violate any other agreement to which it is a party, and (c) this Agreement constitutes a legal, valid and binding obligation when signed by both Parties. LookDeep will use reasonable efforts to minimize interruptions in the Platform. The Platform may be temporarily unavailable for scheduled maintenance or for unscheduled emergency maintenance, either by LookDeep or by third-party providers, or because of other causes beyond LookDeep’s reasonable control, but LookDeep shall use reasonable efforts to provide advance notice in writing or by e-mail of any scheduled service disruption.
EXCEPT AS EXPRESSLY SET FORTH HEREIN, THE SERVICES IS PROVIDED ON AN “AS-IS” BASIS AND LOOKDEEP DISCLAIMS ANY ADDITIONAL REPRESENTATION OR WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED (EITHER IN FACT OR BY OPERATION OF LAW), OR STATUTORY, AS TO ANY MATTER WHATSOEVER. LOOKDEEP EXPRESSLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUALITY, ACCURACY, TITLE, AND NON-INFRINGEMENT. LOOKDEEP DOES NOT WARRANT THAT THE SERVICES IS ERROR-FREE OR THAT OPERATION OF THE SERVICES WILL BE SECURE OR UNINTERRUPTED.
7. LIMITATIONS OF LIABILITY.
7.1 Representations and Warranties.
EXCEPT FOR (A) CUSTOMER’S BREACH OF SECTION 1.2 (LICENSE RESTRICTIONS AND RESPONSIBILITIES), IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER FOR ANY SPECIAL, INDIRECT, RELIANCE, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL DAMAGES OF ANY KIND, LOST OR DAMAGED DATA, LOST PROFITS OR LOST REVENUE, WHETHER ARISING IN CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, EVEN IF A PARTY HAS BEEN NOTIFIED OF THE POSSIBILITY OF SUCH DAMAGES.
7.2 General Cap on Liability.
EXCEPT FOR (A) CUSTOMER’S BREACH OF SECTION 1.2 (LICENSE RESTRICTIONS AND RESPONSIBILITIES) ABOVE, (B) EITHER PARTY’S BREACH OF SECTION 5 (CONFIDENTIALITY) ABOVE, AND (C) LIABILITY ARISING FROM A PARTY’S INDEMNIFICATION OBLIGATIONS SET FORTH IN SECTIONS 8.1 AND 8.2 BELOW, AS APPLICABLE, UNDER NO CIRCUMSTANCES WILL EITHER PARTY’S LIABILITY FOR ALL CLAIMS ARISING UNDER OR RELATING TO THIS AGREEMENT (INCLUDING BUT NOT LIMITED TO WARRANTY CLAIMS), REGARDLESS OF THE FORUM AND REGARDLESS OF WHETHER ANY ACTION OR CLAIM IS BASED ON CONTRACT, TORT, OR OTHERWISE, EXCEED THE AGGREGATE FEES PAID AND PAYABLE BY CUSTOMER TO LOOKDEEP UNDER THIS AGREEMENT DURING THE TWELVE (12) MONTHS PRECEDING THE CLAIM.
EACH PROVISION OF THIS AGREEMENT THAT PROVIDES FOR A LIMITATION OF LIABILITY, DISCLAIMER OF WARRANTIES, OR EXCLUSION OF DAMAGES IS TO ALLOCATE THE RISKS OF THIS AGREEMENT BETWEEN THE PARTIES. EACH OF THESE PROVISIONS IS SEVERABLE AND INDEPENDENT OF ALL OTHER PROVISIONS OF THIS AGREEMENT, AND EACH OF THESE PROVISIONS WILL APPLY EVEN IF THEY HAVE FAILED OF THEIR ESSENTIAL PURPOSE.
8.1 Indemnification by LookDeep.
LookDeep will indemnify and defend Customer any action brought by a third party that alleges that the Platform infringes any United States patent or copyright (except for claims for which LookDeep is entitled to indemnification under Section 8.2, in which case LookDeep will have no indemnification obligations with respect to such claim). LookDeep will have no liability or obligation under this Section 8.1 with respect to any Liability if such Liability is caused in whole or in part by: (a) modification of the Platform by any party other than LookDeep; (b) the combination, operation, or use of the Platform with other product(s), data or services where the Platform would not by itself be infringing; or (c) unauthorized or improper use of the Platform. This Section 8.1 states LookDeep’ entire obligation and Customer’s sole remedies in connection with any claim regarding the intellectual property rights of any third party.
8.2 Indemnification by Customer.
Customer will indemnify, defend and hold LookDeep and the officers, directors, agents, and employees of LookDeep (“LookDeep Indemnified Parties”) harmless from Liabilities that are payable to any third party by the LookDeep Indemnified Parties (including reasonable attorneys’ fees) arising from, directly or indirectly, any claim, demand or allegation by a third party that arises out of or is in connection with the Customer Content or any use by Customer of the Platform in violation of this Agreement.
8.3 Action in Response to Potential Infringement.
If the use of the Platform by Customer has become, or in LookDeep’s opinion is likely to become, the subject of any claim of infringement, LookDeep may at its option and expense (a) procure for Customer the right to continue using the Platform as set forth hereunder; (b) replace or modify the Platform to make it non-infringing so long as the Platform has at least equivalent functionality; (c) substitute an equivalent for the Platform or (d) if options (a)-(c) are not reasonably practicable, terminate this Agreement.
8.4 Indemnification Procedure.
If a Customer Indemnified Party or a LookDeep Indemnified Party (each, an “Indemnified Party”) becomes aware of any matter it believes it should be indemnified under Section 8.1 or Section 8.2, as applicable, involving any claim, action, suit, investigation, arbitration or other proceeding against the Indemnified Party by any third party (each an “Action”), the Indemnified Party will give the other Party (the “Indemnifying Party”) prompt written notice of such Action. The Indemnified Party will cooperate, at the expense of the Indemnifying Party, with the Indemnifying Party and its counsel in the defense.
9.1 Export Compliance.
Each party will comply with the export laws and regulations of the United States and other applicable jurisdictions in providing and using the Platform.
Neither party hereto may assign or otherwise transfer this Agreement, in whole or in part, without the other party’s prior written consent, except that either party may assign this Agreement without consent to a successor to all or substantially all of its assets or business related to this Agreement. Any attempted assignment, delegation, or transfer by either party in violation hereof will be null and void. Subject to the foregoing, this Agreement will be binding on the Parties and their successors and assigns.
9.3 Amendment; Waiver.
No amendment or modification to this Agreement, nor any waiver of any rights hereunder, will be effective unless assented to in writing by both parties. Any such waiver will be only to the specific provision and under the specific circumstances for which it was given, and will not apply with respect to any repeated or continued violation of the same provision or any other provision. Failure or delay by either party to enforce any provision of this Agreement will not be deemed a waiver of future enforcement of that or any other provision.
This Agreement may be executed in multiple counterparts, each of which will be deemed an original, but all of which together will constitute one and the same instrument.
Nothing contained herein will in any way constitute any association, partnership, agency, employment or joint venture between the parties hereto, or be construed to evidence the intention of the parties to establish any such relationship. Neither party will have the authority to obligate or bind the other in any manner, and nothing herein contained will give rise or is intended to give rise to any rights of any kind to any third parties.
If a court of competent jurisdiction determines that any provision of this Agreement is invalid, illegal, or otherwise unenforceable, such provision will be enforced as nearly as possible in accordance with the stated intention of the parties, while the remainder of this Agreement will remain in full force and effect and bind the parties according to its terms.
9.7 Governing Law.
This Agreement will be governed by the laws of the State of California, USA, exclusive of its rules governing choice of law and conflict of laws. This agreement will not be governed by the United Nations Convention on Contracts for the International Sale of Goods. All disputes arising out of the Agreement will be subject to the exclusive jurisdiction and venue of the state and federal courts of San Francisco County, California, USA, and the parties hereby consent to the personal jurisdiction of these courts.
9.8 Entire Agreement.
This Agreement comprises the entire agreement between Customer and LookDeep with respect to its subject matter, and supersedes all prior and contemporaneous proposals, statements, sales materials or presentations and agreements (oral and written). No oral or written information or advice given by LookDeep, its agents or employees will create a warranty or in any way increase the scope of the warranties in this Agreement The terms of any purchase order or similar document submitted by Customer to LookDeep will have no force or effect.
9.9 Force Majeure.
Neither Party will be deemed in breach hereunder for any cessation, interruption or delay in the performance of its obligations due to causes beyond its reasonable control, including, without limitation, earthquake, flood, or other natural disaster, act of God, labor controversy, civil disturbance, terrorism, war (whether or not officially declared) or the inability to obtain sufficient supplies, transportation, or other essential commodity or service required in the conduct of its business, or any change in or the adoption of any law, regulation, judgment or decree.
9.10 Government Terms.
LookDeep provides the Platform, including related software and technology, for ultimate federal government end use solely in accordance with the terms of this Agreement. If Customer (or any of its customers) is an agency, department, or other entity of any government, the use, duplication, reproduction, release, modification, disclosure, or transfer of the Platform, or any related documentation of any kind, including technical data, software, and manuals, is restricted by the terms of this Agreement. All other use is prohibited and no rights than those provided in this Agreement are conferred. The Platform was developed fully at private expense.