These Device Subscription Terms and Conditions, along with any Order Forms that are attached to, linked to or that reference these Terms and Conditions (collectively, the “Agreement”) set forth the terms and conditions under which UroViu Corporation, (“UroViu”) will supply the customer identified in the applicable Order Form (“Customer”) with Devices. UroViu and Customer may each be referred to as a “Party” and collectively as the “Parties”.
Section 1. Definition.
as used in the agreement
1.1 “Box” means any batch of Devices collected together into a distinct or uniform group that are identified by a shared lot or shipment number, which are delivered by UroViu pursuant to the terms of the Agreement.
1.2 “Break-up Fee” means an amount equal to the difference between the fees that would have been paid by Customer hereunder (inclusive of any discounts set forth on the Order Form), and the fees actually paid by Customer hereunder, at the time of termination of the Subscription Term by Customer in accordance with Section 4.3.
1.3 “Device” means any medical device identified on the attached Registration Page to be provided by UroViu to Customer pursuant to the terms of this Agreement.
1.4 “Documentation” means text and/or graphical materials, whether in print or electronic form, that describes the use and operation of a Device, which is provided by UroViu to Customer.
1.5 “Effective Date” means the date of the last signature of the applicable Order Form.
1.6 “Provider” means any health care service provider authorized by Customer to use the Device.
1.7 “Order Form” means UroViu’s standard form of order form attached to, linked to or which otherwise references these Terms and Conditions, executed by an authorized representative of both Customer and UroViu.
1.8 “Services” means any training and/or support services made available by UroViu to Customer pursuant to these Terms and Conditions.
1.9 “Subscription Term” will have the meaning set forth on the Order Form.
1.10 “Warranty Period” means the one (1) year period after the date of deliver, unless otherwise set forth on the applicable Order Form.
Section 2. Delivery
2.1 Subscription Services. Subject to the terms herein, during the Subscription Term, UroViu will (i) ship Boxes on a monthly basis, containing the number and types of Devices set forth on the Registration Page, and (ii) perform the Services set forth on the Order Form, if any. Boxes will be shipped on or about the twentieth day of each month; provided, that, all delivery dates are estimates only; provided, further, that the initial shipment will take place no more than twenty one (21) days after the Effective Date.
2.2 Device Delivery. Title and risk of loss or damage will pass to Customer upon delivery to a common carrier. Customer will be responsible for all shipping and insurance charges, which will be prepaid and invoiced by UroViu unless other arrangements are made by Customer. Prices include packaging in accordance with UroViu’s standard commercial practice. Delivery dates provided to Customer by UroViu represent UroViu’s best estimate of when the Device will be shipped. UroViu does not accept any liability for damages, losses or any other costs due to delivery delays.
Section 3. Permitted Use
3.1 Limited License
3.1.1 License. All software furnished to Customer is licensed, not sold. UroViu grants to Customer, including its Providers, a fully paid-up, royalty-free, non-transferable, non-sublicensable, perpetual and nonexclusive license to use the UroViu software contained in the Device delivered hereunder (“Licensed Software”) solely as contained in the Device on which it was installed at shipment and in accordance with the applicable Documentation.
3.1.2 Software Restrictions. Customer may not modify, reverse engineer, or otherwise attempt to derive the source code of the Licensed Software. UroViu reserves all rights in the Licensed Software not expressly granted hereunder. Customer agrees not to remove, alter, or obscure any of the copyright and other proprietary rights notices on the Licensed Software delivered hereunder, and to include the same on any copies it makes, in whole or in part.
3.2 Permitted Use. Customer acknowledges and agrees that: (i) the Devices are intended solely for use with humans in a clinical setting; (ii) Customer will not use, and will not permit, the use of any Devices in any animal testing; (iii) the Devices are single-use devices, and may not be reused, re-sterilized or repurposed for any reason; (iv) Customer will be responsible for the safe and sanitary disposal of Devices; (v) the Devices are medical devices and may only be used by appropriately trained Providers; and (vi) Customer will use the Devices in accordance with all applicable laws, rules, regulations, and ordinances.
3.3 Regulatory Inquiries. Each Party covenants that it will (a) respond fully and accurately to all inquiries directed to it by any regulatory agency that may impact the quality or timely delivery of Device and promptly notify the other party of same, (b) assist the other party in responding to inquiries directed to such Party by regulatory agencies, and (c) provide regulatory agencies with such information and data as is requested by regulatory agencies with respect to the Device.
3.4 Compliance with Laws. UroViu and Customer shall perform this Agreement in compliance with all applicable federal, state, and local laws, rules, regulations, and ordinances, and each represents that it shall have obtained all licenses and permits required by law to engage in the activities necessary to perform its obligations under this Agreement.
Section 4. Payment
4.1 Payment Terms. Unless otherwise set forth in the Order Form, Payments for Device shall be made in U.S. Dollars and all amounts are due within thirty (30) days from the date of UroViu’s invoice therefor. Each shipment will be separately invoiced and paid for when due without regard to other shipments. All past due payments will accrue interest at 1.5% per month on the declining unpaid balance, or the highest rate allowed by law, whichever is less. In the event of delinquency on any account, Customer agrees to pay for all collection costs, attorneys’ fees, and court costs incurred in the collection of said account, regardless of whether judicial action is taken or otherwise. If Customer does not make payment in accordance with terms of payment specified herein, UroViu may, in addition to its other remedies, at its option either (a) terminate this Agreement, (b) refuse to perform further under this Agreement until Customer cures said payment default; and/or (c) require payment in advance for all future shipments. To the extent that all or any portion of amounts payable to UroViu hereunder remains unpaid after shipment of the Device, Customer hereby grants UroViu a continuing security interest in the Device and all proceeds thereof to secure Customer’s payment of all amounts payable to UroViu in full, plus any accrued interest as specified in this Section 4.1.
4.2 Taxes. All prices for Device are exclusive of federal, state, or local sales, use, excise, or similar taxes applicable to the sale or to the products sold, except taxes based upon UroViu’s income. Any such taxes shall be separately itemized on UroViu’s invoices and Customer agrees to assume and pay or cause to be paid any and all such taxes and other charges incidental to the purchase or sale of such Device, or, in lieu thereof, Customer shall furnish UroViu with a properly executed tax exemption certificate prior to shipment.
4.3 Cancellation. Customer may terminate the Subscription Term at any time upon no less than thirty (30) days prior written notice; provided, however, that in the event of any such termination, Customer will promptly pay UroViu the applicable Break-up Fee.
Section 5. Warranty and Disclaimers
5.1.1 UroViu warrants that Device furnished under this Agreement will substantially conform with UroViu’s applicable published specifications and be free in all material respects from defects in material and workmanship for the Warranty Period, or for such longer period as may be agreed upon in an applicable Order Form. UroViu also warrants that the title to all Device delivered to Customer hereunder will at the time of delivery be free of any liens of any kind whatsoever. UroViu will at its own expense and option, and as Customer’s sole and exclusive remedy for any breach of this warranty, repair or replace Device that does not conform to the foregoing warranty, or, if UroViu determines that such options are not commercially reasonable, refund the monies paid by Customer for the non-conforming Device; provided that Customer notifies UroViu of any Device that does not conform to the foregoing warranty during the Warranty Period. Customer must return non-conforming Device to UroViu in accordance with the procedures set forth in Section 5.2. Any replacement Device will be new or reconditioned. Transportation charges on any Device returned from Customer to UroViu will be at UroViu’s expense. The warranty provided under this Section 1.1 will be void if (a) the Device fails or malfunctions as a result of improper handling, installation, maintenance, removal, modification, or repair; (b) the Device is damaged, or subjected to abuse, abnormal physical or electrical stress, or improper use; (c) the Device is used with: (i) software, hardware or machinery not authorized by UroViu; or (ii) any reagent or consumable not supplied by UroViu; (d) the Device or any component thereof is returned in improper packaging; or (e) the Device is re-used, re-purposed and/or re-sterilized (collectively, “Excluded Claims”).
5.1.2 EXCEPT FOR THE EXPRESS WARRANTY SET FORTH IN SECTION 5.1.1, THE DEVICE IS PURCHASED BY CUSTOMER “AS IS,” ENTIRELY AT ITS OWN RISK AS TO ITS QUALITY AND PERFORMANCE, IN RELIANCE SOLELY UPON ITS OWN INSPECTION OF THE EQUIPMENT AND WITHOUT RELIANCE UPON ANY OTHER REPRESENTATION OR DESCRIPTION BY UROVIU. UROVIU MAKES NO OTHER WARRANTIES, EXPRESS OR IMPLIED, AND HEREBY EXPRESSLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR ANY PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT AND ANY WARRANTIES ARISING FROM COURSE OF CONDUCT. NO STATEMENT BY ANY EMPLOYEE OF UROVIU WILL CONSTITUTE A WARRANTY.
5.2 Device Returns. Before returning any Device to UroViu, Customer will obtain a Return Material Authorization (RMA) number from UroViu and all return documentation must contain UroViu’s RMA UroViu will not unreasonably delay or withhold the issuance of an RMA number. Returned shipments not properly identified with an RMA number will be refused by UroViu. The foregoing notwithstanding, prior to refusing such shipment UroViu will first contact Customer to resolve any identification deficiencies. The request for an RMA number must include serial numbers when possible and full identification of the Device to be returned and must reasonably identify how the returned Device fails to conform to the warranty set forth in Section 5.1. Proper handling procedures must be used in the packing and shipping of all returned Device. Returned Device must be returned in the original and/or an equivalent container and have the RMA number clearly visible on the package.
5.3 Export Control Compliance. Customer agrees to adhere to all of the requirements of the U.S. Export Administration laws and regulations with respect to the Device and shall not export or re-export any Confidential Information (as defined in Section 9), technical data, or Device received from UroViu, or any direct product of such Confidential Information or technical data, in violation of any applicable law. This requirement is not limited by the time period stated in this or any agreement, and will survive the termination of this Agreement.
Section 6. Termination
Each Party will have the right to terminate this Agreement by written notice to the other Party if the other Party materially breaches the Agreement and fails to cure such breach, or implement a corrective action plan designed to cure the breach, within thirty (30) days after receiving written notice of the breach from the non-breaching Party and if such breach still has not been cured, or a corrective action plan still has not been implemented, when the termination notice is given.
Section 7. Limited Liability
EXCEPT FOR BREACHES OF SECTION 3 AND SECTION 9, IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL DAMAGES, WHETHER OR NOT FORESEEABLE, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, INCLUDING BUT NOT LIMITED TO, LOSS OF REVENUE, LOSS OF GOODWILL, OR LOSS OF PROFITS, ARISING OUT OF OR IN RELATION TO THIS AGREEMENT OR THE PERFORMANCE OR NONPERFORMANCE OF ANY OBLIGATION HEREIN, WHETHER ARISING OUT OF CONTRACT, TORT OR ANY OTHER LEGAL OR EQUITABLE THEORY. IN NO EVENT WILL UROVIU’S LIABILITY UNDER THIS AGREEMENT, INCLUDING THE PERFORMANCE OF UROVIU’S INDEMNIFICATION OBLIGATIONS HEREIN, EXCEED THE AMOUNTS PAID BY CUSTOMER TO UROVIU DURING THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT(S) GIVING RISE TO LIABILITY HEREUNDER.
Section 8. Indemnification
8.1 By UroViu. UroViu will defend Customer from any lawsuit filed by a third party based upon a claim that (i) the Device infringes upon the U.S. intellectual property rights of any third party; or (ii) any bodily injury caused by any breach of Section 5.1.1, and pay all damages attributable to such lawsuit which are finally awarded against Customer or paid in settlement. If the Device is enjoined or, in UroViu’s determination is likely to be enjoined, UroViu shall, at its option and expense (a) procure for Customer the right to continue using the Device, (b) replace or modify the Device so that it is no longer infringing but continues to provide comparable functionality, or (c) terminate this Agreement and refund any pre-paid and unused amounts. Notwithstanding anything to the contrary herein, UroViu will have no obligation under this Section 8.1 to the extent any claim is based on: (x) any Excluded Claims or other use of Devices in breach of Section 3 of this Agreement; (y) any use of a Device with any third party hardware, software, data or other equipment not provided or authorized by UroViu, whereby such claim would not have arisen but for such combination; or (z) Customer’s use of any Device where UroViu has provided a replacement Device that would have avoided any claim for which indemnification is sought (each, a “Customer Indemnification Obligation”).
8.2 By Customer. Customer will defend UroViu from any lawsuit filed by a third party based upon (i) Customer’s use of the Device or any component or consumable thereof or (ii) any Customer Indemnification Obligation, and pay all damages attributable to such lawsuit which are finally awarded against UroViu or paid in settlement. Notwithstanding the foregoing, Customer will have no obligation under this Section 8.2 with respect to any claim covered by UroViu’s obligations under Section 8.1.
8.3 Procedure. Any Party that is seeking to be indemnified under the provision of this Section 8 (an “Indemnified Party”) must (i) promptly notify the other Party (the “Indemnifying Party”) of any third-party suit for which it is seeking an indemnity hereunder (a “Claim”); provided, that, any failure to provide notice hereunder will not relieve the Indemnifying Party of its obligations herein except to the extent such delay materially prejudices the Indemnifying Party’s ability to defend such Claim; (ii) give the Indemnifying Party the sole control over the defense and settlement of such Claim; provided, that, the Indemnifying Party will not settle any Claim that admits fault or liability on the part of the Indemnified Party or that does not fully release the Indemnified Party from all liabilities relating to such Claim, without the prior written consent of the Indemnified Party (not to be unreasonably withheld, conditioned or delayed); and (iii) the Indemnified Party will reasonably cooperate with the Indemnifying Party, at the Indemnifying Party’s request and expense.
Section 9. Confidentiality and Protected Health Information
9.1 Confidentiality Each Party acknowledges that it may have access to certain confidential information of the other Party concerning the other Party’s business, plans, customers, technology, and products, and other information held in confidence by the other Party that is marked or designated as confidential (collectively, “Confidential Information”). Notwithstanding the foregoing, the pricing information set forth in this Agreement is the Confidential Information of UroViu. Each Party agrees that it will (a) disclose the other Party’s Confidential Information only to its employees that have a need to know such information for purposes of this Agreement and who are under a duty of confidentiality no less restrictive than the receiving Party’s duty hereunder, (b) not use the other Party’s Confidential Information except to perform its obligations under this Agreement, and (c) will not disclose the other Party’s Confidential Information to any third party except as expressly permitted in this Agreement or with the express prior written consent of the Disclosing Party. Each Party will take reasonable precautions to protect the confidentiality of the other Party’s Confidential Information in its possession, which precautions will be at least as stringent as those takes to protect its own Confidential Information. Information will not be deemed Confidential Information if the receiving Party can prove by competent written evidence that such information: (i) was known to the receiving Party prior to receipt from the disclosing Party; (ii) was lawfully provided (independently of disclosure by the disclosing Party) to the receiving Party by a third party that does not have an obligation of confidentiality to the disclosing Party; (iii) has become publicly known or otherwise ceased to be secret or confidential, except through a breach of this Agreement by the receiving Party; or (iv) has been independently developed by the receiving Party. The receiving Party may disclose Confidential Information pursuant to the requirements of a governmental agency or by operation of law, provided that it gives the disclosing Party reasonable prior written notice sufficient to permit the disclosing Party to contest such disclosure. The receiving Party will either, at the disclosing Party’s option, return to the disclosing Party or destroy all Confidential Information of the disclosing Party in the receiving Party’s possession or control promptly upon the written request of the Disclosing Party or upon the expiration or termination of this Agreement, whichever comes first. The receiving Party will certify in writing that it has fully complied with its obligations under the preceding sentence if such a certification is requested by the disclosing Party.
9.2 Protected Health Information. The Parties currently do not anticipate the exchange of any protected health information, as such term is defined by the Health Insurance Portability and Accountability Act of 1996, as amended. In the event the Parties intend to share or believe it will be necessary to share any protected health information hereunder, the Parties agree to negotiate in good faith the terms of a mutually agreeable business associate agreement.
Section 10. General
10.1 Authority. Each Party represents and warrants that, all corporate action on such Party’s part and on the part of its officers and directors necessary for the authorization, execution and delivery of this Agreement has been taken, it has the full right and authority to enter into this Agreement and perform its obligations hereunder and that it is not aware of any obligations owed to third parties that would conflict with its ability to perform its obligations hereunder.
10.2 Assignment. Either Party may assign this Agreement to a successor or affiliate in connection with a reorganization, acquisition, merger, or similar transaction, provided that the successor or affiliate agrees to assume and fulfill all of such Party’s ongoing and future obligations under the Agreement. All obligations and duties of either Party under this Agreement shall be binding on all successors in interest and assigns of such Party. Except as expressly permitted above, neither Party may assign, delegate or otherwise transfer any of its rights or obligations under this Agreement to any third party without the other Party’s express prior written consent, and any attempted assignment, delegation or transfer in violation of the foregoing will be null and void.
10.3 Force Majeure. UroViu will not be held liable for, or be deemed in breach of this Agreement as a result of, any delay or failure in performance of this Agreement by UroViu arising from any cause beyond its reasonable control and without its fault or negligence, such as acts of God, acts of civil or military authority, terrorism, government regulations, embargoes, epidemics, pandemics, war, terrorist acts, riots, insurrections, fires, explosions, earthquakes, nuclear accidents, floods, power blackouts, unusually severe weather conditions, inability to secure products or services of other persons or transportation facilities, or acts or omissions of transportation common carriers.
10.4 Severability. If any provision of this Agreement is for any reason held invalid, unenforceable, or void in any respect, such provision shall be construed so as to render it enforceable and effective to the maximum extent possible in order to effectuate the intention of this Agreement, and the validity, legality and enforceability of the remaining provisions of this Agreement shall not in any way be affected or impaired thereby.
10.5 Publicity. Any press releases or public announcements by either Customer or UroViu concerning this Agreement will require prior written approval of both Parties. However, nothing in this section prohibits either Party from making disclosures or filings concerning this Agreement as necessary to comply with legal requirements applicable to such Party or in filings with the Securities and Exchange Commission and other regulatory bodies.
10.6 No Third Party Beneficiaries. No provision in this Agreement is intended, or shall be interpreted, to provide any person not a party to this Agreement with any remedy, claim, liability, reimbursement, or cause of action or create any other third-party beneficiary rights.
10.7 Independent Contractors. The Parties declare and agree that each Party is engaged in a business which is independent from that of the other Party and that nothing contained herein shall be construed to imply a partnership, joint venture, principal and agent, or employer and employee relationship between the Parties hereto. Neither Party shall have the right, power, or authority to create any obligation, expressed or implied, on behalf of the other.
10.8 Notices. All notices and other communications required or permitted hereunder shall be in writing and shall be mailed by certified or registered mail (return receipt requested), overnight express air courier (charges prepaid), facsimile (with electronic answer back) or in person to the following individuals at the addresses set forth on the Registration Page or such other individuals or addresses as to which a Party may have notified the other in writing and such notice shall be effective on the date of receipt or refusal thereof by the receiving Party.
10.9 Headings. The headings and titles of provisions of this Agreement are for convenience only and are not to be considered in construing this Agreement.
10.10 Governing Law and Dispute Resolution. This Agreement and any issues arising out of or in relation thereto shall be governed by the law of California without regard to principles of law that would require the application of laws of a different jurisdiction. The United Nations Convention on Contracts for the International Sale of Goods shall not govern this Agreement and is hereby disclaimed. Excluding actions seeking solely equitable relief, any dispute, claim or controversy arising out of or relating to this Agreement shall be finally determined by binding arbitration administered by the Rules of JAMS in San Francisco before one (1) arbitrator.
10.11 Amendments; Waiver. This Agreement may be amended only by written agreement signed by authorized representatives of both Parties. No waiver of any provision of this Agreement or any default under this Agreement will be effective unless the waiver is in writing and signed by or on behalf of the Party against whom such waiver is claimed. No course of dealing or failure of any Party to strictly enforce any term, right, or condition of this Agreement shall be construed as a waiver of such term, right or condition. Waiver by either Party of any default by the other Party shall not be deemed a waiver of any other default.
10.12 Fully Integrated. This Agreement constitutes the entire agreement between the Parties as to the subject matter hereof and supersedes and merges all prior or contemporaneous oral or written agreements, representations, statements, negotiations, understandings, proposals, and undertakings with respect to the subject matter of this Agreement.
10.13 Interpretation of Agreement. This Agreement is a negotiated document. If this Agreement requires interpretation, such interpretation shall not use any rule of construction that a document is to be construed more strictly against the Party who prepared the document.
10.14 Right to Enter into Contracts. Nothing herein shall be construed as preventing either Party from entering into similar contractual agreements with other parties, unless such contracts would conflict with the terms or performance of this Agreement.
10.15 Remedies Cumulative. Unless expressly provided otherwise herein, all rights of termination, or other remedies set forth in this Agreement are cumulative and are not intended to be exclusive of other remedies to which the injured Party may be entitled at law or equity in case of any breach or threatened breach by the other Party of any provision of this Agreement.
Version: 260035486 v4
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