MASTER AGREEMENT FOR REMOTE PATIENT MONITORING

This General Service Agreement for Remote Patient Monitoring (this “Agreement”) is entered into between Prove Labs Inc. (“FitCam”), a Delaware corporation, and the “Provider” listed on the Service Order Form (the “Order Form”) entered into by and between FitCam and Provider, as of the Effective Date. Unless otherwise defined in this Order Form, capitalized terms herein have the same meaning as in the Order Form.

 

For good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, FitCam and Provider agree as follows:

 

1. DEFINITIONS.

 

“Authorized Users” means employees, healthcare professionals, patients and agents of Provider authorized by Provider to use the Platform and who have been supplied user identification and passwords by Provider (or by FitCam at Provider’s request). Provider shall not permit more than one individual to use the same user identification. All acts and omissions of the Authorized Users shall be deemed acts or omissions of Provider.

 

“Comprehensive Issue Description” means written description by Provider of an incident and the associated relevant information that is sufficient for FitCam to reproduce the incident.

 

“Patients” means health care end users of Provider approved to participate in the Program by Provider.

 

“Program” means the remote care management program operated by Provider using the Platform.

 

“Platform” means FitCam’s proprietary remote patient monitoring Console provided as “software as a service” (SaaS) hosted by servers operated by FitCam and FitCam’s cloud service providers (e.g. Amazon Cloud Services) and the FitCam App accessible to patients.

 

“Service Third Parties” are third parties that assist Provider by providing hardware, software, or support components of the Platform.

 

“Updates” means a maintenance release of the Platform and/or released revisions to the Platform which are intended to improve efficiency or to incorporate additional or alternative functionality, such release being denoted as a Platform Update by FitCam in its generally published programs and policies.

 

“Upgrades” means a new release of the Platform which incorporates substantial additional or alternative functionality, such release being denoted as a Platform Upgrade by FitCam in its generally published programs and policies.

 

“Written Documentation” means the written documentation provided to Provider by FitCam in paper or electronic format describing features, functionalities, guidelines, plans and requirements for the Platform.

 

2. TERM AND TERMINATION

 

2.1. Subject to early termination as provided in subsections (2.2) and (2.3) below, this Agreement begins on the Effective Date and shall remain in force so long as the Order Form is in effect between FitCam and Provider.

 

2.2. Provider shall have the right to terminate this Agreement or the Order Form at any time without further obligation or liability to FitCam by written notice to FitCam in the event that FitCam is in default of any material term hereof, and such default is not cured within thirty (30) days of FitCam’s receipt of written notice specifying the default in reasonable detail.

 

2.3. FitCam shall have the right to terminate this Agreement or the Order Form at any time without incurring any further obligation or liability to Provider and/or Patients by written notice to Provider in the event that Provider is in default regarding any material term in this Agreement or the Order Form, including payment terms, and such default is not cured within thirty (30) days of Provider’s receipt of written notice specifying the default in reasonable detail.

 

2.4. Upon termination of this Agreement or the Order Form for any reason, (i) any amounts owed to FitCam under this Agreement or the Order Form before such termination will be immediately due and payable, (ii) Provider and its Patients shall discontinue use of the Platform, and (iii) FitCam shall discontinue or cause to be discontinued access to the Platform.

 

2.5. Termination of this Agreement or the Order Form by either party for any reason shall not release or otherwise relieve Provider of its obligations under terms of any other agreements with FitCam, if any, entered into by Provider. This is without prejudice to FitCam’s preliminary or final recourse to arbitration or to the courts of law to secure and protect its interests, the subject of which is the ground(s) relied upon in the termination of this Agreement.

 

3. SERVICES; GRANT OF ACCESS TO SYSTEM.

 

3.1. The parties may enter into one or more Service Orders or Statements of Work for the provision of FitCam Platform and products, including access to the FitCam Console hosted platform and the FitCam App (collectively, the “Platform”).

 

3.3. Subject to Provider’s compliance with its obligations, representations, and terms and conditions in this Agreement, during the Term, FitCam grants to Provider and its Authorized Users and Patients a non-exclusive, non-sublicensable, non-assignable, non-transferable right to access the Platform. Any and all other access or use of the Platform is expressly prohibited.

 

3.3. Except as otherwise provided in this Agreement, Provider, at its own expense, is responsible for procuring all services, hardware, desktop software and other technology necessary to access and use the Platform (including, without limitation, patient hardware and devices, Internet access services, data network services for Patients and compliant web browsers). Provider acknowledges and agrees that Provider will arrange for, pay for and maintain the communication lines between the Platform and Provider and its Authorized Users and Patients as part of this Agreement. Provider acknowledges that FitCam (i) does not control communications via third party telecommunications providers and (ii) shall not be responsible for any error or inaccessibility associated with such telecommunications or any violation of law, rule or regulation applicable to transmission of data via such telecommunications.

 

4. MOBILE APPLICATION

 

Provider acknowledges that the FitCam Application (“Patient Application”) is necessary to enable use of the patient-facing features and that the cost of such Patient Application is included in the Subscription Fee set forth in Section 5 below.

 

During the terms of the agreement, FitCam will make sure the Patient Application is a registered with the

Food and Drug Administration as a Class I Medical Device.

 

5. FEES AND PAYMENT.

 

5.1 Provider shall pay FitCam the fees set forth in the Service Orders and Statements of Work (“Fees”). Fees are due regardless of whether or not Provider has collected fees for care management or any other services from its patients or third-party payors, and shall not be subject to any offset or deduction of any kind for any reason.

 

5.2. If any amounts are more than thirty (90) days overdue (except with respect to charges then under reasonable and good faith dispute), in addition to any other rights and remedies of FitCam, without prejudice to FitCam’s right of immediate legal recourse to protect its rights from Provider’s any scheme of dereliction or evasion from delinquency, FitCam will have the right to suspend Provider’s and its Patients access to the Platform without any liability to FitCam, until Provider’s payments are brought current.

 

5.3. Following the Initial Term, FitCam may increase Fees for any Renewal Term by providing sixty (60) days advanced notice to Provider prior to the commencement of the applicable Renewal Term. Provider may terminate this Agreement on written notice to FitCam within thirty (30) days of its receipt of notice from FitCam to adjust the Fees; provided, however, that if Provider fails to object to the adjustment in writing within the foregoing thirty (30) days then Provider will be deemed to have agreed to the adjustment.

 

5.4. Billing and Collection. Provider has sole and exclusive responsibility (i) to bill and collect from all patients, health plans, governmental agencies, third party payers, and other financially-responsible parties; (ii) for all billing, coding, documentation, claims submission, and collections associated with the Platform including the determination of whether or not the Platform are covered by health plans, governmental agencies, third party payers or other financially-responsible parties; and (iii) to comply with all billing laws, regulations, instructions, interpretative guidelines and other requirements established by governmental and commercial payers when billing for the Services.  FitCam may not, and shall not, bill any patient, governmental agencies, or third party payer for the Services rendered to Provider or any User under this Agreement. FitCam shall not be responsible to refund, offset or indemnify Provider for any claim denials, audits, adjustments, or overpayments in connection with Provider’s billing of the Services. Provider will defend, indemnify, and hold FitCam harmless from any responsibility or claim of any kind relating to Provider’s billing and collection of fees for the Services.

 

 

6. IMPLEMENTATION AND TRAINING.

 

6.1. Provider and FitCam shall work together to implement the use of the Platform by Provider and its patients in accordance with an implementation plan mutually acceptable to FitCam and Provider (the “Implementation Plan”). FitCam and Provider shall not be liable for delays in the Implementation Plan due to accidents, strikes, fires, war, inability to obtain materials from regular sources, governmental regulations, acts of God or any other conditions beyond their reasonable control.

 

6.2. Provider agrees to designate a project manager (“Project Manager”) to work with FitCam on the Implementation Plan. The Project Manager will be knowledgeable in Provider’s practices and will be empowered, authorized and available to execute, coordinate and amend from time to time the Implementation Plan. Furthermore, Provider agrees that Project Manager will be provided sufficient time, authority, and resources to fulfill his or her obligations under the Implementation Plan.

 

6.3. If applicable, FitCam will provide training services to promote proper implementation, configuration and use of the Platform, in conformance with industry best practices and in accordance with FitCam’s

documentation, and in accordance with the pricing specified in the Order Form. Such training shall be delivered in the manner described in the Implementation Plan. Any supplemental training requested by Provider will be provided in a manner mutually agreeable to FitCam and Provider. Any other service not included in the Order Form between FitCam and Provider are deemed excluded.

 

6.4. Provider and FitCam acknowledge that unforeseen issues or changes regularly arise in the course of a system implementation, which require resolution by one or both parties. To the extent that such issues require adjustments to the Implementation Plan, Provider and FitCam shall negotiate such adjustments in good faith and due diligence.

 

7. NOT FOR EMERGENCY USE; NO REAL-TIME MONITORING.

 

The Platform is not designed to, and must not be used to, replace emergency, first responder or paramedic care and does not provide a means to request emergency services (i.e., 911). Provider shall instruct Patients not to rely on the Platform in the event of an emergency. The Platform does not provide any real-time monitoring of Patient health, nor does it provide real-time alarms or alerts. The Platform is not intended for use for intensive or critical care monitoring and does not provide real-time transition of medical sensor data. Any use of the Platform as contemplated in this section will not make FitCam liable to Provider or its patients. Any breach hereof will make Provider liable to FitCam, to its patients, or to the government for any laws and rules or regulations permissively violated. Thus, it is pertinent that Provider, in availing of FitCam’s Platform, must observe due diligence and inform its patients of the terms of use the Platform as contemplated in this section.

 

8. NO MEDICAL ADVICE; BILLING AND ADMINISTRATION OF OPTIONAL CLINICAL SERVICES.

 

8.1. The Platform does not provide or constitute the provision of any medical advice, healthcare advice or guidance, or diagnostic or medical services to the Patient, the Provider or to any other party. The Platform is not a substitute for professional medical advice, diagnosis or treatment. Without limiting the foregoing, the Platform, and the output generated thereby, are merely supplemental tools provided for use by appropriately qualified and skilled health care professionals affiliated with Provider or the Patient, and the making of any health care decision is subject to the independent professional judgment, investigation and responsibility of Provider and such health care professionals. Without limiting the foregoing, (i) any reminders or alerts provided in connection with the Platform, including, without limitation, any reminders with respect to medication and/or testing times, and (ii) any reminders or alerts related to any action to be taken as a result of any collected data, will be determined and programmed based solely on the professional judgment and advice of Provider and healthcare professionals affiliated with Provider. Provider shall indemnify, defend and hold FitCam, Service Third Parties, and their respective affiliates and their respective officers, directors, employees, agents and representatives (“Related Parties”) harmless from and against and all lawsuits, claims damages, losses, costs and expenses that any of them suffers or experiences in connection with any matter relating to any action taken or not taken in rendering or not rendering medical or healthcare related services relating to or based upon the Platform, or the output generated thereby. Provider agrees that the Platform is not used as a substitute for the exercise of appropriate professional skill, investigation and judgment.

 

8.2. To the extent FitCam provides auxiliary/clinical staff services to Provider, such staff will be provided to perform under the appropriate clinical supervision of the Provider, as required by federal and state law, and within the Provider’s workforce. All clinical and health care planning, management and other health care decisions shall be made solely by Provider and its billing and treating practitioners. Provider accepts and acknowledges its responsibility to obtain all necessary informed consents from patients to receive services, as well as supervise and oversee staff as it relates services provided to and for Provider.

 

8.3. If clinical services are provided to Provider by a third-party provider under this Agreement (a “Clinical Services Provider”), Provider acknowledges and agrees that FitCam shall not be responsible or liable in any way for the acts or omissions of the Clinical Services Provider. Provider acknowledges that FitCam does not exert any control over the Clinical Services Provider or the manner in which the Clinical Services Provider provides its services or employs, screens, trains or instructs its employees and agents. While FitCam may bill Provider for the services provided by the Clinical Services Provider, such billing services are provided strictly as an accommodation to Provider and the Clinical Services Provider. Any fee charged or retained by FitCam in connection with the Clinical Services Provider shall be for providing billing and administration services; no fee charged or retained by FitCam shall be for the provision of health care advice or services.

 

9. NO HIGH-RISK ACTIVITIES.

 

The Platform is not fault-tolerant and is not designed or intended for use in hazardous environments requiring fail-safe performance in which the failure of the Platform could lead to death, personal injury, or severe physical or environmental damage or in the case of patient emergencies (“high risk activities”). FitCam specifically disclaims any express or implied warranty of fitness for high risk activities. Provider will not use the Platform for high risk activities and will ensure that all Authorized Users and Patients are notified of the same.

 

10. RESTRICTIONS ON USE.

 

10.1. Provider shall not have the right to license, sub-license or sell the Platform or to transfer or assign the right to use or access the Platform, except Provider may permit patients to use the Platform as expressly provided herein.

 

10.2. Provider shall not (i) tamper with the security of the Platform or tamper with other clients’ accounts; (ii) access data not intended for Provider; (iii) log into a server or account on the Platform that Provider is not authorized to access; (iv) attempt to probe, scan or test the vulnerability of the Platform or to breach the security or authentication measures without proper authorization; (v) render any part of the Platform unusable; (vi) lease, distribute, license, sell or otherwise commercially exploit the Platform or make the Platform available to a third party other than as contemplated in this Agreement; (vii) use the Platform for timesharing or otherwise for the benefit of a third party; (viii) provide to third parties any evaluation version of the Platform without FitCam’s prior written consent; or (ix) use the Platform in violation of any Acceptable Usage Policy (AUP) which FitCam may make available from time to time by notice to Provider or by posting on the Platform website. The pertinent items herein are not exclusive and includes other acts adjunct or derivatives of the same.

 

10.3. Provider shall access the Platform using only methods and systems identified by FitCam to Provider as enabled or otherwise approved for access, which may include FitCam-designated Internet websites, software for interactive services, or tablet and mobile phone applications. Provider may access the Platform only for business purposes. Provider shall not engage in any of the following activities: (i) modify, disassemble, or decompile the Platform for any purpose, or attempt to derive a source code language or object code version of the Platform or create derivative works; (ii) copy, frame, mirror, or otherwise make available to any unauthorized third party any part or content of the Platform; (iii) reverse engineer any aspect of the Platform; (iii) copy any features, functions, or graphics of the Platform; (iv) upload to the Platform any information or data that does or may violate or infringe upon the rights of others (including without limitation the rights of privacy or publicity, copyright, or trade secret); (v) violate any law or regulation; or (vi) take any action not apparently authorized by the Platform.

 

10.4. Provider shall control its and its Authorized Users’ and Patients’ usernames and passwords as private and confidential information and shall not permit use of such usernames or passwords in connection with any attempt to evade access control limits. Provider is solely responsible for any misuse or unauthorized use of its account.

 

10.5. FitCam may take any actions to remedy the violation of this Section 10, including but not limited to removing violating content without notice, denying or suspending access, reporting to government authorities, or any such other remedies or actions as may be otherwise legally available to FitCam or any aggrieved party, including the provisions of the Digital Millennium Copyright Act, the Computer Fraud and Abuse Act, and the No Electronic Theft Act.

 

11. PATIENT ACCESS.

11.1. Provider shall cause all patients that participate in the Program or otherwise use the Platform to accept FitCam’s Participant Authorization and Terms of Use (“Participant Terms”) in effect from time to time in such manner as FitCam directs (including, without limitation, by requiring participants to accept an End User License Agreement (“EULA”) they will see when they initially log into the Platform). This is without prejudice to FitCam’s amendments to the Participant Terms and EULA to conform to changing laws, rules and regulations, and trends.

 

12. CONFIDENTIAL INFORMATION.

 

12.1. “Discloser” and “Recipient” apply to both parties depending on their role, whether as the discloser or the recipient of Confidential Information.

 

12.2. “Confidential Information” means a party’s proprietary or confidential information, intellectual property, trade secrets, know-how, software, technology, specifications, and non-public business or financial information; a party’s member, Provider and employee data, any written materials marked as confidential and/or perceived / contemplated / prima facie confidential; and any other information of a party, including visual or oral information, which reasonably should be understood to be confidential. Confidential Information also means any third party’s information provided to a party under obligation of confidentiality.

 

12.3. Recipient will use Discloser’s Confidential Information only as required or permitted under this Agreement and will not disclose Discloser’s Confidential Information, or permit anyone else to disclose it, except to the recipient’s employees, affiliates, accountants, attorneys, and consultants who have a need to know and who are contractually or legally bound to the same confidentiality restrictions as Recipient.

 

12.4. Recipient will keep confidential all of Discloser’s Confidential Information, maintain Discloser’s Confidential Information in a safe and secure place, and exercise the same degree of care to safeguard Discloser’s Confidential Information as it would in protecting its own, but in no event less than reasonable care.

 

12.5. Recipient will return or destroy all documents, copies, notes, or other materials containing any of Discloser’s Confidential Information upon Discloser’s request.

 

12.6. Recipient is not subject to the confidentiality obligations of this Agreement regarding Confidential Information that Recipient can prove meets any of the following criteria: (a) is or becomes publicly available without breach of this Agreement, but only from the date that it becomes publicly available; (b) was rightfully in Recipient’s possession without an obligation of confidentiality owed to Discloser before Recipient received it from Discloser; (d) is independently developed by Recipient without using any of the Confidential Information; or (e) is required to be disclosed by Provider to obtain payment from a commercial and/or governmental payor, but only for the purpose of obtaining such payment.

 

12.7. If a judicial or governmental request or order seeks Confidential Information, Recipient may disclose that Confidential Information as requested or ordered. But, if permitted by applicable law, Recipient must notify Discloser before disclosing the Confidential Information and cooperate with Discloser’s reasonable requests in seeking a protective order or limiting the effect of that disclosure.

 

12.8. All of Discloser’s Confidential Information remains the property of Discloser. Nothing in this Agreement grants ownership, a license, or other right to use Confidential Information – except as expressly stated in this Agreement – or waives any right a party has in its Confidential Information.

 

12.9. The confidentiality obligations of this Agreement are perpetual and survive expiration or termination of this Agreement.

 

13. CONSENT TO DATA USAGE.

Subject to applicable law, Provider agrees that FitCam and Service Third Parties may collect and use de-identified data and related information input into the Platform. Subject to applicable law, FitCam and Service Third Parties may use this information as they choose, as long as it is in a form that does not personally identify Provider or its employees, agents, or Patients.

 

14. MARKETING.

FitCam may include and use Provider’s name on a list of Providers and may refer to Provider as a user of the Platform and services in its advertising, marketing, promotional and investor materials.

 

15. OWNERSHIP.

The Platform and all associated software, services, products, and technologies are the proprietary information of FitCam or the third party that provides them. Except for the grant of access to the Platform as provided in Section 3, Provider does not acquire under this Agreement or otherwise any intellectual property or other proprietary rights, including without limitation, any patents, inventions, improvements, designs, trademarks, including any applications for same, copyright, rights in any confidential information or trade-secrets, in or relating in any way to the Platform. All modifications, improvements, adaptations, expansions and inventions related to the Platform, services and marks of FitCam that are made, required or produced by Provider in connection with the Program shall belong solely to FitCam as of creation or discovery thereof, and to the extent any of the same may not or do not vest in FitCam at creation or discovery, Provider hereby assigns, and agrees to assign and secure assignments of, the same to FitCam. Any grants not expressly granted herein are reserved. Except where otherwise specified, the contents of the Platform are FitCam copyright. The contents of the Platform are subject to protection under U.S. and foreign copyright laws. Provider is not permitted to use the copyrighted content outside of the normal functions of the Platform without the prior written consent of FitCam. Provider shall not alter, change or remove any proprietary notices or confidentiality legends placed on or contained within the Platform. In the event that Provider becomes aware of any action or claim that may infringe or misappropriate the proprietary rights of FitCam, Provider shall promptly notify FitCam in writing of such action or claim.

Without the needed agreement, permission, authority, or grant from FitCam, any derivative, invention, improvement, designs, or any other intellectual property that Provider may acquire by reason of its own efforts and/or expense shall be owned by FitCam. This clause covers advice, feedback, suggestions, comments, recommendations, and any act showing an inventive step leading to an adjunct or derivative of the service. Attribution of Provider or any of its employees to any of the foregoing may be permissible upon FitCam’s permission.

 

16. SERVICE LEVEL AGREEMENT; WARRANTIES AND REMEDIES.

 

16.1. During the term of this Agreement, FitCam represents and warrants that it will provide the SaaS Services in a professional manner consistent with general industry standards and that the SaaS Services will perform substantially in accordance with the Written Documentation. For any breach of a warranty, Provider’s exclusive remedy shall be as provided in Section 2, Term and Termination.

 

16.2. During the term of this Agreement, FitCam warrants that the Platform (i) will conform as to all material operational features and performance characteristics as provided in the Written Documentation and (ii) will be free of errors and defects that materially affect the performance of such features; provided, however, that the foregoing warranty and the warranty in Section 16.1 shall only apply so long as (A) the Platform is implemented and used in accordance with all instructions supplied by FitCam, (B) Provider notifies FitCam in writing of any case of nonconformity, error, or defect within three (3) business days of the appearance thereof, (iii) Provider complies with its hardware, equipment, internet access and other obligations under this Agreement, and (iv) there is no interference of any event constituting force majeure or government intervention. If Provider, in a timely manner, provides FitCam with a Comprehensive Issue Description of any such error, defect or nonconformity that materially affects the core functions of the Platform, FitCam shall at its sole and exclusive discretion (1) remedy the error, defect or nonconformity or (2) issue Provider credits for the time during which the Platform was not in compliance with the foregoing warranty. During the term of this Agreement, FitCam shall provide telephone consultation and/or any other mode(s) of communication convenient for both parties regarding the use and operation of the Platform. The remedies set out in this section 16.2 are the sole and exclusive remedies for breach of the limited warranty. FitCam does not warrant that the service will meet subscriber’s requirements, that the service will operate in the combinations which subscriber may select for use or that the operation of the service will be error-free or uninterrupted.

 

16.3. Notwithstanding any other provisions of this Agreement to the contrary, the warranties provided in this Section 16 shall not apply to nonconformities, errors, or defects due to any of the following: (i) misuse of the Platform, (ii) modification of the Platform that is not contracted with or expressly authorized in writing by FitCam, or (iii) failure by Provider to utilize compatible computer, networking hardware and software.

16.4. FitCam hereby represents that FitCam has full authority to grant Provider access to the Platform under this Agreement. FitCam will indemnify, defend and hold Provider harmless from and against any claims or lawsuits, including attorney’s fees, that arise or result from any claim to the contrary.

16.5. Except for the limited warranty provided in this section, FitCam hereby disclaims all warranties, both express and implied, including implied warranties respecting merchantability, title, and fitness for a particular purpose. Provider acknowledges that no representations other than those contained in this Agreement have been made respecting the service or services to be provided hereunder, and that Provider has not relied on any representation not expressly set out in this Agreement.

 

16.6. FITCAM’S ENTIRE LIABILITY ARISING OUT OF THIS AGREEMENT, THE ORDER FORM AND/OR GRANTING ACCESS TO THE PLATFORM OR SALE OF SERVICES SHALL BE SOLELY LIMITED TO THE SUBSCRIPTION FEES AND PLATFORM FEES PAID BY PROVIDER UNDER THE ORDER FORM DURING THE 12 MONTHS PRECEDING THE ACT OR OMISSION GIVING RISE TO THE LIABILITY, AND IF ANY SUCH LIABILITIES ARISE OUT OF PROVIDER’S USE OF THE PLATFORM OR SERVICES PROVIDED HEREUNDER, SUCH LIABILITY SHALL BE LIMITED TO THE FEES PAID FOR THE RELEVANT PORTION OF THE PLATFORM OR SERVICES GIVING RISE TO THE LIABILITY.

 

16.7. IN NO EVENT SHALL FITCAM BE LIABLE TO PROVIDER UNDER ANY THEORY, INCLUDING, BUT NOT LIMITED TO, NEGLIGENCE AND STRICT PRODUCTS LIABILITY, FOR ANY INDIRECT OR DIRECT, SPECIAL OR INCIDENTAL OR CONSEQUENTIAL DAMAGES, INCLUDING, BUT NOT LIMITED TO, COSTS OF PROCUREMENT OF SUBSTITUTE GOODS AND SERVICES, DAMAGES FOR LOSS OF DATA, LOSS OF USE OF COMPUTER HARDWARE, DOWNTIME, LOSS OF GOODWILL, AND LOSS OF BUSINESS OR COMPUTER HARDWARE MALFUNCTION, EVEN IF FITCAM HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

 

16.8. No claim or action, regardless of form, arising out of or relating to this Agreement or the Order Form may be brought by Provider more than six (6) months after the cause of action has occurred.

 

16.9. This Agreement allocates fairly between FitCam and Provider the risks of defects to, or failure of, the Platform. This allocation is the result of negotiation between the parties, is accepted by both parties, and is reflected in, including but not limited to, the pricing for the Service, other fees payable, the limited warranties provided, the limited remedies provided, the disclaimer of liability for certain damages including without limitation, incidental and consequential damages, the limitation of liability, and the limitation on actions. Under the principle of Autonomy of Contracts that most if not all jurisdictions recognize, the parties hereby stipulate that in any proceeding regarding any dispute under this Agreement, all of these provisions should be recognized and enforced.

 

17. TECHNICAL SUPPORT.

 

17.1. FitCam shall provide Provider support using the technical support line during FitCam regular office hours, subject to extraneous circumstances, without fault on the part of the FitCam, that may affect the support line, assigned at the time of implementation. Failure by Provider to provide a Comprehensive Issue Description will prevent FitCam from fulfilling its obligations and shall not constitute a violation of this Agreement.

 

17.2. FitCam shall provide Provider Updates and Upgrades at the time and in the manner in which FitCam makes such Updates and Upgrades generally available to other subscribers.

 

18. INDEMNIFICATION.

Provider shall indemnify, defend and hold FitCam, Platform Third Parties, their partners, licensors, affiliates, contractors, officers, directors, employees and agents harmless from all damages, losses and expenses arising directly or indirectly from (a) any negligent acts, omissions or willful misconduct of Provider, (b) Provider’s or its Authorized Users’ or Patients’ use of the Platform in a manner not permitted by this Agreement or in a manner other than is explicitly allowed by the Platform, (c) any breach of or failure to comply with this Agreement by Provider, (d) any claim by or on behalf of a Patient alleging medical malpractice or an error, misjudgment, deficiency or defect in any medical advice, diagnosis or treatment and (e) Provider’s violation of any law or of any rights of any third party.

 

19. FORCE MAJEURE.

FitCam shall not incur any liability to Provider on the account of any loss or damage resulting from any delay or failure to perform all or any part of its obligations under this Agreement to the extent such delay or failure is caused by events, occurrences, or causes beyond the reasonable control of FitCam, including, without limitation, acts of God; flood, fire, earthquake or explosion; war, invasion, hostilities (whether war is declared or not), terrorist threats or acts, riot or other civil unrest; government order or law; actions, embargoes or blockades in effect on or after the date of this Agreement; action by any governmental authority; national or regional emergency; strikes, labor stoppages or slowdowns or other industrial disturbances; and shortage of adequate power or transportation facilities.

 

20. MISCELLANEOUS.

 

20.1. Assignment. Provider may not assign, license, or otherwise transfer any rights or obligations under this Agreement, and any attempt to transfer or any transfer purporting to have been validly executed shall be null and void. FitCam may transfer its rights and obligations under this Agreement in connection with an acquisition of FitCam, a merger of FitCam with or into another entity, a sale of FitCam’s assets (including, without limitation, a sale of the business unit that provides the Platform), or similar transactions.

 

20.2. Notice. All notices and other communications required or permitted under this Agreement shall be validly given if in writing and delivered personally, sent by certified or registered mail, sent by nationally recognized overnight courier, or sent by email, to the addresses set forth in the Order Form. Notice shall be effective (i) when delivered (or when delivery is refused), if personally delivered or delivered by a nationally recognized overnight courier, (ii) on the third business day following the date on which the piece of mail containing such communication is posted, if sent by certified or registered mail, or (iii) when sent, if sent by email during normal business hours of the recipient, and if not sent during normal business hours, then on the recipient’s next business day.

 

20.3. Governing Law. The laws of the state of California, excluding its conflicts of law rules that would cause the application of the laws of another state, govern this Agreement and Provider’s use of the Platform. Provider’s use of the Platform may also be subject to other local, state, national, or international laws. With respect to any disputes arising out of or related to this Agreement, the parties consent to the jurisdiction of, and venue in, the courts in Los Angeles County in the State of California.

 

20.4. Waiver of Jury Trial. Both FitCam and Provider hereby waive their right to trial by jury in connection with any dispute related to this Agreement.

 

20.5. Non-Waiver of Rights. Any waiver of the provisions of this Agreement by a party or its rights or remedies under this Agreement must be in writing. Any waiver is solely for the circumstances giving rise to it and does not constitute a waiver for future situations. The failure of any party to insist in any one or more cases upon the performance of any of the provisions, covenants, or conditions of this Agreement or to exercise any option herein contained shall not be construed as a waiver or relinquishment of such right including future situations relative of any such provisions, covenants, or conditions. The acceptance of performance of anything required by this Agreement to be performed with knowledge of the breach or failure of a covenant, condition, or provision hereof shall not be deemed a waiver of such breach or failure.  

 

20.6. Severability. If any provision of this Agreement is declared or found to be illegal, unenforceable, or void, then each provision not so affected will be enforced to the extent permitted by law.

 

20.7. Relationship of the Parties. FitCam is an independent contractor. Nothing in this Agreement shall be construed in any way as to create a partnership, franchise, joint venture, agency, fiduciary, or other relationship between the parties.

 

20.8. Entire Agreement; Amendment. This Agreement and the Order Form constitute the entire agreement between the parties with respect to the subject matter thereof and supersedes all prior proposals, agreements, negotiations, correspondence and all other communications, whether written or oral, between FitCam and Provider. No amendment or modification of any provision hereof nor terms and conditions contrary to whatever is stipulated herein and purportedly shown on any other document shall be effective unless made in writing and signed by both FitCam and Provider.