Terms of Service

1. Definitions

The following capitalized terms have the meanings set forth below:

• “Feature” means any module, tool, functionality, or feature of the Service.
• “Initial Subscription Term” means the initial subscription period for the Service, as specified in the Order Form.
• “Order Form” means a written or electronic order form, to which these Terms are incorporated, and which is executed by the Parties. The “Order Form” shall include the relevant usage and volume parameters, as well as the commercial terms, agreed between the Parties.
• “Subscription Scope” means any Service usage and/or limitations set forth in the Order Form or Partner Order Form (if purchased via Partner).
• “User(s)” means the Customer or a physician authorized by Customer to access and use the Service (as the case may be).

2. Subscription

2.1 Access Right

Subject to the terms and conditions of these Terms, Company hereby grants Customer a limited, worldwide, non-exclusive, non-sublicensable, non-transferable and revocable right to remotely access (i.e. on a SaaS basis) the Company’s software-as-a-service (the “Service”) during the Subscription Term (as defined below), solely for Customer’s internal purposes (collectively, the “Subscription”). Unless otherwise indicated, the term “Subscription” also includes any appliance and any manual or documentation provided or made available to Customer in connection with the operation of the Service (“Documentation”). Customer may use the Service subject to the use limitations specified in these Terms and the respective Order Form or Partner Order Form (if purchased via Partner) and applicable laws and regulations.

2.2 Additional Purchases

Purchases of access to additional Features and/or purchases of additional volume under the Subscription Scope (collectively, “Additional Purchases”) shall be made by a mutually signed written addendum to the Order Form or by executing a new order form.

2.3 Account Setup

In order to access the Service, Customer must set up an administrative account with Company, by submitting the information requested in the applicable Service interface (“Account”), and each User may need to set up a user account (each, a “User Account”, and references herein to the “Account” shall be deemed to include all such User Accounts if applicable). Customer warrants that all information submitted during the registration process is, and will thereafter remain, complete and accurate. Customer will require that all Users keep user ID and password information strictly confidential and not share such information with any unauthorized person. Customer shall be fully responsible and liable for any breach of these Terms by any User and for all activities that occur under or in the Account.

3. Support Services and Professional Services

3.1 Support and Maintenance

Company shall provide support and maintenance services in accordance with Company’s then current Service Level Agreement (“SLA”). The support and maintenance services may be performed by Company, a Partner and/or Company’s certified third party providers. Company shall be responsible for such service providers’ performance of the support and maintenance services. The term Subscription shall include the services provided under the SLA and any Professional Services (as defined below). Customer acknowledges and agrees that Company may from time to time, during the Subscription Term, develop bug fixes and patches (“Updates”) which may remotely and automatically update and maintain the Service components (including if installed on Customer’s premises). For clarity, such Updates do not include any generally-available release of the Service that typically includes new features, functionality and/or enhancements which is subject to the payment of separate fees.

3.2 Professional Services

If Customer has purchased the Subscription directly from Company, this Section 3.2 shall apply. In the event Customer wishes to receive any additional services from Company that are not included in the SLA, such as installation, deployment, configuration, customization, integration, training, or other professional services (“Professional Services”), Customer shall request same from Company in writing, and, subject to Company’s agreement in its sole discretion, such Professional Services shall be set out in sequential Statements of Work to these Terms, as shall be negotiated and executed by both Parties (each, a “SOW”). Professional Services shall be charged in accordance with the fees and payment terms specified within the applicable SOW. Each SOW is hereby deemed incorporated into these Terms by reference. To the extent of any conflict between the main body of these Terms and a respective SOW, the former shall prevail, unless and to the extent that the SOW expressly states otherwise.

4. Subscription Fees

4.1 Subscription Fees

If Customer has purchased the Subscription directly from Company, this Section 4.1 shall apply. Customer shall pay Company the Subscription fees specified in the Order Form (the “Subscription Fees”).

4.2 Other Fees

Customer shall pay Company whatever other fees or charges are specified in the Order Form (“Other Fees”, and together with the Subscription Fees, the “Fees”).

4.3 General

Unless expressly stated otherwise in the Order Form: (a) all Fees are stated, and are to be paid, in U.S. Dollars; (b) all payments under these Terms are non-refundable, and are without any right of set-off or cancellation; (c) all Fees are payable, and shall be invoiced, in advance, and shall be paid within thirty (30) days of receipt of invoice; and (d) any amount not paid when due will accrue interest on a daily basis until paid in full, at the lesser of the rate of one and a half percent (1.5%) per month and the highest amount permitted by applicable law.

4.4 Taxes

Amounts payable under these Terms are exclusive of all applicable sales, use, consumption, VAT, GST, and other taxes, duties or governmental charges, except for taxes based upon Company’s net income. In the event that Customer is required by any law applicable to it to withhold or deduct taxes for any payment under these Terms, then the amounts due to Company shall be increased by the amount necessary so that Company receives and retains, free from liability for any deduction or withholding, an amount equal to the amount it would have received had Customer not made any such withholding or deduction. If a purchase order (or purchase order number) is required by Customer in order for an invoice to be paid, then Customer shall promptly provide such purchase order (or number) to Company. Any terms or conditions (whether printed, hyperlinked, or otherwise) in a purchase order or related correspondence, which purport to modify or supplement these Terms (or the corresponding Order Form), shall be void and of no effect.

4.5 Partner Purchases

If Customer purchased the Subscription via a Partner, the Subscription is subject to the full payment of the applicable fees as set forth in the Partner Order Form between Customer and the respective Partner. All payments shall be made directly to Partner, as agreed between Customer and Partner. If Customer is entitled to a refund under the terms and conditions of these Terms, then, unless Company specifies otherwise, Company will refund any applicable fees to the Partner, and the Partner alone will be responsible for refunding the appropriate amounts to Customer.

5. Subscription Restrictions

As a condition to the Subscription, and except as expressly permitted otherwise under these Terms, Customer shall not, and shall not permit or encourage any User or any third party to, do (in whole or in part) any of the following subscription restrictions: (a) copy, “frame” or “mirror” the Service; (b) sell, assign, transfer, lease, rent, sublicense, or otherwise distribute or make available the Service to any third party (such as offering it as part of a time-sharing, outsourcing or service bureau environment); (c) publicly perform, display or communicate the Service; (d) modify, alter, adapt, arrange, or translate the Service; (e) decompile, disassemble, decrypt, reverse engineer, extract, or otherwise attempt to discover the source code or non-literal aspects (such as the underlying structure, sequence, organization, file formats, non-public APIs, ideas, or algorithms) of, the Service; (f) remove, alter, or conceal any proprietary rights notices displayed on or in the Service; (g) circumvent, disable or otherwise interfere with security-related or technical features or protocols of the Service; (h) make a derivative work of the Service, or use it to develop any service or product that is the same as (or substantially similar to) it; (i) store or transmit any robot, malware, Trojan horse, spyware, or similar malicious item intended (or that has the potential) to damage or disrupt the Service; or (j) take any action that imposes or may impose (as determined in Company’s reasonable discretion) an unreasonable or disproportionately large load on the servers, network, bandwidth, or other cloud infrastructure which operate or support the Service, or otherwise systematically abuse or disrupt the integrity of such servers, network, bandwidth, or infrastructure.

6. Personal Data

To the extent that Customer needs a Data Processing Agreement and/or a CCPA addendum, Customer shall request Company to provide it with Company’s Data Processing Agreement and/or CCPA addendum and return it signed to Company as described therein.

7. Mutual Warranties

Each Party represents and warrants that it is duly organized, validly existing and in good standing under the laws of its jurisdiction of incorporation or organization; and that the execution and performance of these Terms will not conflict with other agreements to which it is bound or violate applicable law.

8. Intellectual Property Rights

8.1 Service

As between the Parties, Company is, and shall be, the sole and exclusive owner of all intellectual property rights in and to: (a) the Service and all related software and intellectual property; and (b) any and all improvements, derivative works, and/or modifications of or to the foregoing, regardless of inventorship or authorship. Customer shall make, and hereby irrevocably makes, all assignments necessary or reasonably requested by Company to ensure and/or provide Company the ownership rights set forth in this paragraph. Company shall be entitled, from time to time, to modify and replace the Features (but not material functionalities, unless such modification improves the material functionality) and user interface of the Service. Nothing herein constitutes a waiver of Company’s intellectual property rights under any law.

8.2 Feedback

The Company appreciates and encourages any feedback Customer provides regarding the Service (such as questions, comments, suggestions or the like) (“Feedback”). By submitting Feedback to the Company, Customer grants the Company a perpetual and irrevocable license to use the Feedback for any purpose, including but not limited to improving and developing the Service, without payment of compensation or attribution to Customer. It is further understood that use of Feedback, if any, may be made by Company at its sole discretion, and that Company shall in no way be obliged to make use of the Feedback.

8.3 Analytic Information

The Company may use anonymous information derived from the use of the Service (such as metadata, aggregated or analytical information) that is not personally identifiable information, as well as Customer Data that does not include identifying data, for the purpose of operation, maintenance, management, development and improvement of the Service and for statistical purposes (“Analytics Information”).

8.4 Customer Data

While using the Services, certain data, such as personal data or other data, will be made available and/or accessible to Company or the Service (the “Customer Data”). Customer hereby grants Company and its affiliates a worldwide, non-exclusive, non-assignable (except as provided herein), non-sublicensable (except to Company’s subcontractors, if applicable), non-transferable right and license, to access and use the Customer Data for Company’s provision of the Services and maintenance, support and improving the services hereunder. As the exclusive owner of the Customer Data, Customer represents, warrants and covenants that to the extent the Customer Data includes any personally identifiable information or medical information, Customer has received and/or obtained any and all required consents or permits and has acted in compliance with any and all applicable privacy laws, including, without limitation privacy laws, as to allow us to receive, transfer and use the Customer Data solely for the purposes mentioned above. Company may however be required to disclose the Customer Data: (a) to satisfy any applicable law, regulation, legal process, subpoena or governmental request; or (b) to collect, store, transfer, and/or process the Customer Data through Company’s affiliates, subsidiaries, third party service providers and vendors as reasonably necessary to provide the Service. Company will maintain commercially reasonable administrative, technical, and physical safeguards designed to protect the security, confidentiality, and integrity of Customer Data.

9. Third Party Components

The Service may use or include third party open source software, files, libraries or components that may be distributed to Customer and are subject to third party open source license terms. A list of any third party open source software and related open source licenses will be provided by Company upon request. If there is a conflict between any open source license and the terms of these Terms, then the open source license terms shall prevail but solely in connection with the related third party open source software. Company makes no warranty or indemnity hereunder with respect to any third party open source software.

10. Confidentiality

“Confidential Information” means any information disclosed by or on behalf of one Party (“Discloser”) to the other Party (“Recipient”) pursuant to these Terms that is marked as “confidential,” or in some other manner to indicate its confidential nature. Without limiting the foregoing, the Service is Company’s Confidential Information. Confidential Information does not include any information which: (i) is or becomes generally known and available to the public through no act of the Recipient; (ii) was already in the Recipient’s possession without a duty of confidentiality owed to the Discloser at the time of the Discloser’s disclosure; (iii) is lawfully obtained by the Recipient from a third party who has the express right to make such disclosure; or (iv) is independently developed by the Recipient without breach of an obligation owed to the Discloser.

The Recipient may use the Discloser’s Confidential Information solely to perform its obligations under these Terms. Except as set forth in the immediately following sentence, the Recipient will not disclose the Discloser’s Confidential Information to any third party except to its employees, consultants, affiliates, agents, and subcontractors having a need to know such information to perform its obligations under these Terms who are obligated to confidentiality obligations at least as protective of the Discloser’s Confidential Information as those contained herein. The Recipient may disclose the Discloser’s Confidential Information to the extent that such disclosure is required by law or by the order of a court or similar judicial or administrative body, provided that it notifies the Discloser of such required disclosure to enable Discloser to seek a protective order or otherwise seek to prevent or restrict such disclosure. All right, title, and interest in and to Confidential Information are and will remain the sole and exclusive property of the Discloser. The Recipient will use no less than reasonable efforts to protect the Discloser’s Confidential Information from unauthorized access, use, or disclosure. Notwithstanding anything to the contrary in these Terms, Company’s obligations with respect to the protection of Customer Data are solely as set forth in Section 8.4.

11. Disclaimer of Warranties

Company represents and warrants that, under normal authorized use, the Service shall substantially perform in conformance with its Documentation. As Customer’s sole and exclusive remedy and Company’s sole liability for breach of this warranty, Company shall use commercially reasonable efforts to repair the Service. The warranty set forth herein shall not apply if the failure of the Service results from or is otherwise attributable to: (i) repair, maintenance or modification of the Service by persons other than Company or its authorized contractors; (ii) accident, negligence, abuse or misuse of the Service; (iii) use of the Service other than in accordance with the Documentation; or (iv) the combination of the Service with equipment or software not authorized or provided by Company.

Other than as explicitly stated in these Terms, to the extent permitted by applicable law, the Services and the results thereof are provided on an “as is” and “as available” basis. Customer expressly acknowledges and agrees that the Service does not substitute professional medical judgment, diagnosis, or treatment. The Company does not guarantee that the Service will diagnose any medical problem, condition, or disease, and that the Service provides information and assistance tools only, and is not intended to replace the independent judgment of the User. The Company does not guarantee absolute accuracy of recommendations, results, or information provided through the Service. Company does not warrant that: (i) the Services will meet Customer’s requirements, or (ii) the Service will operate error-free. Except as set forth in Section 7 and this Section 11, the Company expressly disclaims all implied warranties, including merchantability, satisfactory quality title, non-infringement, non-interference, fitness for a particular purpose. Company will not be liable for delays, interruptions, service failures or other problems inherent in use of the internet and electronic communications or for issues related to public networks or Customer’s hosting services. Company shall not be responsible for any warranties and representations made by any Partner to Customer.

12. Limitation of Liability

Without derogating from Company’s indemnification obligation under Section 13 and except for any damages resulting from any breach of either Party’s confidentiality obligations herein, willful misconduct, and/or Customer’s misappropriation or otherwise violation of Company’s intellectual property rights (including violation of the Subscription Restrictions by Customer); (i) neither Party shall be liable for any indirect, incidental, special, punitive, or consequential damages, or any loss of revenue, reputation, profits, data, or data use, or the cost of procuring any substitute goods or services; (ii) either Party’s maximum liability for any damages arising out of or related to these Terms, whether in contract or tort, or otherwise, shall in no event exceed, in the aggregate, the total amounts actually paid or payable to Company by Customer in the twelve (12) month period immediately preceding the event giving rise to such claim. This limitation of liability is cumulative and not per incident. For clarity, the limitations in this Section do not apply to payments due to Company under these Terms (including its exhibits).

13. Indemnification

13.1 IP Infringement Claims

Company agrees to defend, at its expense, any third-party action or suit brought against Customer alleging that the Services, when used as permitted under these Terms, infringe the intellectual property rights of a third party (an “IP Infringement Claim”); and Company will pay any damages finally awarded by a court against Customer that are attributable to any such IP Infringement Claim, provided that (i) Customer promptly notifies Company in writing of such claim; and (ii) Customer grants Company the sole authority to handle the defense or settlement of any such claim and provides Company with all reasonable information and assistance in connection therewith, at Company’s expense. Company will not be bound by any settlement that Customer enters into without Company’s prior written consent.

13.2 Remedies

If the Service becomes, or in Company’s opinion is likely to become, the subject of an IP Infringement Claim, then Company may, at its sole discretion: (a) procure for Customer the right to continue using the Service; (b) replace or modify the Service to avoid the IP Infringement Claim; or (c) if options (a) and (b) cannot be accomplished despite Company’s reasonable efforts, then Company may terminate the affected Order Form(s) upon written notice to Customer, and Customer shall be entitled to receive a pro-rated refund of any prepaid Subscription Fees under such Order Form(s) based on the remaining period of the corresponding Subscription Term(s).

13.3 Exceptions

Notwithstanding the foregoing, Company shall have no responsibility for IP Infringement Claims resulting from or based on: (i) Company’s compliance with Customer’s instructions or specifications; or (ii) combination or use of the Services with equipment, devices, or software not supplied by Company.

This Section 13 states Company’s entire liability, and Customer’s exclusive remedy, for any IP Infringement Claim.

14. Term and Termination

14.1 Term

These Terms commence on the Effective Date and, unless terminated in accordance herewith, shall continue in full force and effect for the duration of the initial subscription term specified in the Order Form, or the initial subscription terms specified in the Partner Order Form (as the case may be) (the “Initial Subscription Term”). In case Customer purchased the subscription directly from the Company, unless otherwise specified in the Order Form, following such Initial Subscription Term, the Order Form shall automatically renew for successive Subscription Terms of equal length (each, a “Renewal Subscription Term”, and together with the Initial Subscription Term, the “Subscription Term”), unless either Party notifies the other Party in writing of its intent not to renew the Order Form, not less than sixty (60) days prior to the expiration of the then-current Subscription Term. In addition, the Company may terminate these Terms if the Service, or any part thereof, is discontinued or reaches end-of-life by the Company, subject to notice within sixty (60) days.

14.2 Termination for Breach

Each Party may terminate these Terms immediately upon written notice to the other Party if the other Party commits a material breach under these Terms and, if curable, fails to cure that breach within thirty (30) days after receipt of written notice specifying the material breach.

14.3 Termination for Bankruptcy

Each Party may terminate these Terms upon written notice to the other Party upon the occurrence of any of the following events in respect of such other Party: (a) a receiver is appointed for the other Party or its property, which appointment is not dismissed within sixty (60) days; (b) the other Party makes a general assignment for the benefit of its creditors; (c) the other Party commences, or has commenced against it, proceedings under any bankruptcy, insolvency or debtor’s relief Law, which proceedings are not dismissed within sixty (60) days; or (d) the other Party is liquidating, dissolving or ceasing normal business operations.

14.4 Effect of Termination; Survival

Upon termination of these Terms for any reason: the Subscription shall automatically terminate. The Customer may, within thirty (30) days from the termination or expiration date of the Terms, request the Company to assist the Customer in exporting Customer Data, in a format to be agreed between the Parties. The Company shall respond to such request in a reasonable manner. After the expiration of such thirty (30) day period, the Company shall have no further obligation to the Customer regarding the storage of Customer Data, and the Company shall permanently delete Customer Data, except for Customer Data backed up in the Company’s backup systems. Such data will be deleted in accordance with the Company’s data retention policy. Additionally, Customer shall cease all access and use of the Services thereunder, and Customer shall (as directed) permanently erase and/or return all Confidential Information of Company in Customer’s possession or control. Following termination, all outstanding Fees and other charges that accrued as of termination shall become immediately due and payable, and if necessary, Company shall issue a final invoice therefor. The provisions of these Terms that, by their nature and content, must survive the termination of these Terms in order to achieve the fundamental purposes of these Terms (including limitation of liability) shall so survive. Termination shall not affect any rights and obligations accrued as of the effective date of termination.

15. Governing Law and Jurisdiction

The Rounds Health entity entering into these Terms, the law governing these Terms which applies in the event of a dispute arising out of or in connection with these Terms, the courts that have exclusive jurisdiction (including non-contractual) over any such dispute, and the local time depend on where the entity or individual executing these terms is domiciled, or otherwise resides, in accordance with the following:

For clarity, (a) the Governing Law specified above excludes any conflict of laws principles or rules and is without regard to the United Nations Convention on Contracts for the International Sale of Goods; and (b) notwithstanding the courts listed above, each Party may seek equitable relief in any court of competent jurisdiction to protect its proprietary rights.

16. Miscellaneous

These Terms, including the Data Processing Agreement and/or a CCPA addendum (if applicable), and any exhibits attached or referred to herein, represent the entire agreement between the Parties concerning the subject matter hereof, and may be amended by the Company from time to time. The Company will provide the Customer with prior notice of any material amendment or update to these Terms, and any such amendment will become effective on the date specified in such notice. Any terms and conditions printed or linked to within any Customer purchase order which are in addition to and/or inconsistent with the terms and conditions of these Terms shall be of no effect.

Customer hereby agrees that Company may use (a) Customer’s name and, if Customer is an entity, Customer’s logo to identify Customer as a customer of Company or user of the Service, on Company’s website, presentations, marketing materials, or otherwise. Following the termination of these Terms, Customer may request Company to remove such customer reference.

Except as stated otherwise herein, these Terms are for the sole benefit of the Parties hereto and nothing herein, express or implied, shall give, or be construed to give, any rights hereunder to any other person. Neither Party may assign its rights or obligations under these Terms without the prior written consent of the other Party, which consent may not be unreasonably withheld or delayed. Notwithstanding the foregoing, these Terms may be assigned by either Party in connection with a merger, consolidation, sale of all of the equity interests of such Party, or a sale of all or substantially all of the assets of the Party to which these Terms relate. Without derogating from and subject to the abovementioned, these Terms will bind and benefit each Party and its respective successors and assigns.

These Terms do not, and shall not be construed to, create any relationship, partnership, joint venture, employer-employee, agency, or franchisor-franchisee relationship between the Parties. Company will not be liable for any delay or failure to provide the Services resulting from circumstances or causes beyond the reasonable control of Company including, but not limited to, strikes, shortages, riots, insurrection, fires, flood, storms, explosions, acts of God, war, governmental or quasi-governmental authorities’ actions, riot, acts of terrorism, earthquakes, explosions, power outages, pandemic or epidemic (or similar regional health crisis), or any other cause that is beyond the reasonable control of Company.

Any notice under these Terms shall be delivered to the Company by email to the Company’s email address.