TERMS OF SERVICE FOR ARETI HEALTH SYSTEM
If Customer has entered into a written agreement with respect to the AretiHealth Labs LLC (“Areti Health”) System (“System”), the terms of that agreement supersede these Terms of Service. Otherwise, these Terms of Service govern the use of System. They form a binding Agreement between Areti Health and the legal entity which has executed an Order Form for System. This Agreement includes and incorporates any Order Form under which Customer has ordered or subscribed to System. In the event of any inconsistency or conflict between this Agreement and any Order Form, the Order Form will control. As used herein, each of Areti Health and Customer is a “Party” and collectively, they are referred to as “Parties”. The Parties agree as follows:
1. License Grant
During the Term of this Agreement (as set forth the Order Form, as it may be amended from time to time) and subject to these Terms of Service, Areti Health shall provide to Customer and their Authorized Users access to System. Areti Health reserves the right to make changes, modifications, and enhancements to System, at any time, and from time to time without prior notice.
2. Limitations on Use
Except as expressly permitted herein, Customer will not allow third parties to (i) license, sublicense, sell, resell, transfer, assign, distribute or otherwise commercially exploit or make available to any third party System in any way; (ii) modify or make derivative works based upon System; (iii) reverse engineer System; (iv) access System in order to build a competitive product or service; (v) use System in any way that violates any applicable laws, rules or regulations or violates any third party’s rights; or (vi) perform or publish any benchmark tests or analyses on System without Areti Health’s prior written consent.
3. Fees and Payments
Fees. All fees for System and any services included in any Order Form shall be invoiced and paid as set forth in this Article.
Payment. Customer shall pay all Fees in US dollars within thirty (30) days following the date of the invoice therefore. Customer shall make payments to the address or account that Areti Health specifies in writing from time to time.
Late Payment. If Customer fails to make any payment when due then, in addition to all other remedies that may be available, if such payment is not made within 90 days of the date when due, Areti Health may charge interest on the past due amount at the rate of 1.5% per month or, if lower, the highest rate permitted under applicable Law.
4. Customer’s Responsibilities
Customer is responsible for all activity occurring under Customer’s designated user accounts and shall comply with all applicable laws and regulations in connection with Customer’s use of System, including but not limited to those related to data privacy, the transmission of technical or personal data or health records. Customer shall: (i) notify Areti Health immediately of any unauthorized use of any password or account or any other known or suspected breach of security with respect to System; and (ii) report to Areti Health immediately and use reasonable efforts to stop immediately any inappropriate or unauthorized use of System that becomes known or suspected by Customer or Customer’s users. Customer and Areti Health agree to comply with all applicable laws, rules and regulations.
5. Term and Termination.
Initial Term. The initial term of this Agreement begins on the Launch Date and, unless terminated earlier pursuant the provisions hereof, continues for the period term specified in the Order form (“Initial Term”).
Renewal. This Agreement and the Order Form will automatically renew for additional successive one-year terms following the Initial Term unless either Party gives the other Party written notice of non-renewal at least 14 days prior to the expiration of the then-current term (each a “Renewal Term” and, collectively, together with the Initial Term, the “Term”).
Termination. In addition to any other express termination right set forth elsewhere in this Agreement:
(a) Areti Health may terminate this Agreement and an Order Form, effective on written notice to Customer, if Customer: (i) fails to pay any amount when due hereunder, and such failure continues more than 30 days after Areti’s delivery of written notice thereof; or (ii) breaches any of these Terms of Service.
(b) either Party may terminate this Agreement, effective immediately upon written notice to the other Party, if the other Party (i) files or has filed against it, a petition for voluntary or involuntary bankruptcy or otherwise becomes subject, voluntarily or involuntarily, to any proceeding under any domestic or foreign bankruptcy or insolvency Law; (ii) makes or seeks to make a general assignment for the benefit of its creditors; or (iii) applies for or has appointed a receiver, trustee, custodian or similar agent appointed by order of any court of competent jurisdiction to take charge of or sell any material portion of its property or business.
(c) either Party may terminate this Agreement for any reason upon providing a 30-day written notice.
Effect of Expiration or Termination. Upon any expiration or termination of this Agreement, except as expressly otherwise provided in this Agreement:
(a) all rights, licenses, consents and authorizations granted by either Party to the other hereunder or under an Order Form will immediately terminate;
(b) Areti Health may disable all Customer and Authorized User access to the System;
(c) Customer shall immediately cease all use of System and Areti Materials and (i) within 7 days return to Areti, or at Areti’s written request destroy, all documents and tangible materials containing or based on any Areti Health Materials; (ii) permanently erase all Areti Materials from all systems Customer directly or indirectly controls.
(d) Customer shall pay all Fees previously accrued but not yet paid for services rendered prior to termination, on receipt of Areti’s invoice therefor;
(e) Areti Health shall refund any unaccrued Fees on the prorated basis.
(f) For a period of two weeks following termination, Customer may access and download any previously saved conversations and related data.
Surviving Terms. The provisions set forth in the following Sections 6-12, and any other right or obligation of the parties in this Agreement that, by its nature, should survive termination or expiration of this Agreement, will survive any expiration or termination of this Agreement.
6. Indemnification
Both Customer and Areti Health shall indemnify, defend and hold each other's officers, directors, employees, agents, successors, assigns, and affiliates harmless, from and against any and all losses, claims, actions, demands, liabilities, damages, fines, penalties, costs and expenses (including but not limited to costs of judgments, settlements, court costs and reasonable attorneys’ fees actually incurred) arising from or related to any breach of this Agreement or any negligent or wrongful acts or omissions in connection with this Agreement.
7. Customer Data
Customer will retain all right, title and interest in and to any data or content that Customer transmits to or through System (collectively, “Customer Data”) in the form provided to Areti Health. Subject to the terms of this Agreement, Customer hereby grants Areti Health a non-exclusive, fully sublicenseable, worldwide, royalty-free right to collect, use, copy, store, transmit, modify and create derivative works of Customer Data, in each case to the extent necessary to provide System to Customer and to improve System. Customer, shall have sole responsibility for the accuracy, quality, integrity, legality, and intellectual property ownership or right to use all Customer Data, and Areti Health shall not be responsible or liable for the use, deletion, correction, destruction, damage, or loss of such Customer Data within System. Areti Health shall be responsible for deletion, correction, destruction, damage, or loss of Customer Data outside of System if caused by usage or development of System. Customer represents and warrants that it has all necessary right, title and interest in and to the Customer Data as required for Areti Health to use and process such Customer Data on Customer’s behalf in accordance with this Agreement. Areti Health’s use of Customer Data shall be limited to the purpose of providing System to the Customer pursuant to this Agreement. Customer agrees and acknowledges that Areti Health is not obligated to retain any Customer Data after termination or expiration of this Agreement, and Areti Health may (and, upon request by the Customer, will) delete Customer Data after the end of Term, without further obligation or liability to the Customer.
8. Intellectual Property Ownership.
Areti Health owns and shall retain all right, title and interest, including all related intellectual property rights, in and to System, including to any and all enhancements, updates, modifications, and/or derivative works thereof. This Agreement is not a sale and does not convey to Customer any rights of ownership in or related to System or the intellectual property rights owned by Areti Health. The Areti Health name and the Areti Health logo are trademarks of Areti Health, and no right or license is granted to use them outside of System.
Customer hereby grants to Areti Health a royalty-free, worldwide, transferable, sublicensable, irrevocable, perpetual license to use and otherwise exploit any suggestions, enhancement requests, recommendations, or other feedback provided by the Customer relating to System.
9. Disclaimer of Warranty.
SYSTEM AND ASSOCIATED SERVICES ARE PROVIDED “AS IS” AND ARETI HEALTH MAKES NO WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND ARETI HEALTH SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING ANY WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT AND FITNESS FOR A PARTICULAR PURPOSE OR ANY IMPLIED WARRANTIES ARISING OUT OF THE COURSE OF DEALING OR THE USAGE OF TRADE, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. ARETI HEALTH DOES NOT WARRANT THAT SYSTEM AND ASSOCIATED SERVICES, (INCLUDING PROFESSIONAL SERVICES OR RELATED DELIVERABLES, IF ANY), ARE OR WILL BE ERROR-FREE, WILL MEET CUSTOMER’S REQUIREMENTS, OR BE TIMELY OR SECURE. CUSTOMER WILL NOT HAVE THE RIGHT TO MAKE OR PASS ON ANY REPRESENTATION OR WARRANTY ON BEHALF OF ARETI HEALTH TO ANY THIRD PARTY. ARETI HEALTH’S SERVICES MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS. ARETI HEALTH IS NOT RESPONSIBLE FOR DELAYS, DELIVERY FAILURES, OR OTHER DAMAGE RESULTING FROM SUCH PROBLEMS NOT CAUSED BY ARETI HEALTH.
10. Limitation of Liability.
IN NO EVENT SHALL CUSTOMER OR ARETI HEALTH BE LIABLE FOR ANY DAMAGES HEREUNDER, INCLUDING BUT NOT LIMITED TO DIRECT, INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES, OR DAMAGES BASED ON LOST PROFITS, DATA OR USE, HOWEVER CAUSED AND, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, AND REGARDLESS OF WHETHER CUSTOMER OR ARETI HEALTH HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES RESPECTIVELY.
11. Confidentiality.
Each party (as a “Receiving Party” hereunder) shall not disclose to any third party, any Confidential Information of the other party (as a “Disclosing Party” hereunder) provided to such Receiving Party in anticipation of, or in connection with the performance of this Agreement. For the avoidance of doubt, this includes Confidential Information provided to the Receiving Party prior to the Effective Date of this Agreement. As used herein, the term “Confidential Information” refers to any and all financial, technical, commercial, or other information concerning the business and affairs of the Disclosing Party, whether labeled “Confidential” or not, including, without limitation, any cost or pricing information, contractual terms and conditions, marketing or distribution data, business methods or plans. For the avoidance of doubt, Areti Health’s Confidential Information shall include the Areti Health System information (e.g., software, user interfaces, processes, algorithms, techniques, designs, features, functionality and roadmap) and all pricing terms offered to Customer, and Customer Confidential Information shall include Customer Data. Confidential Information does not include information which (i) becomes generally available to the public other than as a result of a disclosure by the Receiving party, (ii) was available to a party on a non-confidential basis prior to its disclosure by the other party or in connection with the performance by such party of its obligations under this Agreement, or (iii) becomes lawfully available to a party on a non-confidential basis from an independent third party. The Receiving Party will not use Confidential Information for any purpose other than carrying out its obligations as set forth in this Agreement and shall not disclose Confidential Information to any third party, without the prior written consent of the Disclosing Party. Third parties shall not include agents of the Receiving Party, employees or affiliates of the Receiving Party, attorneys, accountants, and other professional advisors of the Receiving Party and in each case such person must have a legitimate reason to have access to such Confidential Information and must be under a duty to protect such Confidential information which duty is substantially equivalent to the obligations contained herein. Each Receiving Party’s confidentiality obligations with respect to such Confidential Information, shall remain in effect for the term of this Agreement and for a period of three (3) years after the termination or expiration of this Agreement.
12. General.
Customer may not assign this Agreement, or any of the rights or obligations hereunder, whether by operation of law or otherwise, without the prior written consent of Areti Health. This Agreement shall be governed exclusively by the internal laws of the State of California, without regard to the conflicts of laws rules of any jurisdiction. Each party hereby consents to the exclusive jurisdiction of the State of California to adjudicate any dispute arising out of or relating to this Agreement. This Agreement constitutes the entire agreement between the parties, and supersedes all prior and contemporaneous agreements, proposals or representations, written or oral, concerning its subject matter. No modification, amendment or waiver of any provision of this Agreement shall be effective unless in writing and either signed or accepted electronically by the parties.