X-trodes General Terms
PLEASE READ CAREFULLY THESE GENERAL TERMS (“AGREEMENT”).
The X-Trodes System, comprising of the X-trodes hardware (including the X-trodes’ proprietary amplifier and electrodes/sensors, “Hardware”), software (X-trodes’ application programming interface (API) installed on Customer’s server used to record from the Hardware, “Software”) and platform (the X-trodes’ cloud based platform, “Platform”), (the Hardware, Software and Platform collectively, the “System”) is a unique wearable, wireless system with advanced analytics of biopotential signals, including the development of a novel ultra-soft, flexible and dry multi-electrode patch system and machine learning (ML) driven algorithmic methodologies.
BY CLICKING “I AGREE”, “ACCEPT” OR OTHER SIMILAR BUTTON OR BY INSTALLING, ACCESSING AND/OR USING THE SYSTEM, YOU EXPRESSLY ACKNOWLEDGE AND AGREE THAT YOU, OR THE COMPANY YOU REPRESENT (“YOU” OR “USER”), ARE ENTERING INTO A LEGAL AGREEMENT WITH X-TRODES LTD. AND ITS AFFILIATES (“COMPANY”), AND HAVE UNDERSTOOD AND AGREE TO COMPLY WITH, AND BE LEGALLY BOUND BY, THE TERMS AND CONDITIONS OF THIS AGREEMENT. DO NOT SELECT “I AGREE” OR INSTALL OR USE THE SYSTEM (OR PARTS THEREOF) UNTIL YOU HAVE CAREFULLY READ, UNDERSTOOD AND AGREED TO THESE TERMS. FURTHERMORE, YOU HEREBY WAIVE ANY RIGHTS OR REQUIREMENTS UNDER ANY LAWS OR REGULATIONS IN ANY JURISDICTION, WHICH REQUIRE AN ORIGINAL (NON-ELECTRONIC) SIGNATURE OR DELIVERY OR RETENTION OF NON-ELECTRONIC RECORDS, TO THE EXTENT PERMITTED UNDER APPLICABLE LAW. ACTIVEFENCE AND USER MAY ALSO BE REFERRED TO INDIVIDUALLY EACH AS A “PARTY” AND COLLECTIVELY AS THE “PARTIES”.
- Subscription Grants. Subject to the terms and conditions of this Agreement, Company hereby grants you, during the Term (as defined below), a limited, non-exclusive, non-sublicensable, non-transferable license to use the System for data research and inferring insights from such data, and the data feed provided therein, solely for your internal business purposes, or as otherwise agreed between the Parties in writing in a purchase quotation, purchase order, purchase terms and conditions or other similar document, regardless of its title (“Order”).
- Account. In order to use the System, you may have to create an account (“Account”). When creating an Account, you must provide accurate and complete information, and hereby agree to remain solely responsible for the activity that occurs in the Account, and to ensure that the Account password and login information remain secure at all times. Any breach of security or unauthorized use of your Account must be notified to Company immediately.
- User Content. As between the Parties, You are, and shall be, the exclusive owner of all Customer Content, where “User Content” means any Content submitted or uploaded to, or transmitted through, the System, or otherwise provided or made available to X-trodes, by or on behalf of You. Unless the Platform specifically requests otherwise, You shall ensure that no Customer Content includes or links to data Personally Identifiable Information (as defined below). You represent and warrants that: (a) no processing of User Content under this Agreement (whether by X-trodes, its affiliates, or the hosting provider) will violate any law, proprietary right, or privacy right; and (b) it has obtained and will maintain all required consents and licenses, and will maintain all ongoing legal bases under relevant privacy laws (if applicable), necessary to provide, make available, and otherwise expose Customer Content to X-trodes, its affiliates, and the hosting provider. Based on such User Content, certain insights and inferences may be generated (“Data Insights”). You hereby acknowledge that Company may, at its sole discretion, repurpose the Data Insights in order to allow Company to improve its algorithms and learning sets, provided that in no event shall your identity be disclosed as result of such repurposing.
- Restrictions. You must not, and shall not allow any third party to: (i) circumvent, disable or otherwise interfere with features that enforce limitations on use of the System; (ii) allow any unauthorized third party to use the System, your Account, and/or the Data Insights; (iii) sell, rent, lease, license or timeshare the System and/or the Data Insights; (iv) copy, modify, reverse engineer, decompile, disassemble or derive, or attempt to derive, the source code of, the System; (v) use the System to develop a competing service or product; (vi) interfere or attempt to interfere with the integrity or proper working of the System; and/or (vii) use the System and/or the Data Insights in any unlawful manner or in breach of this Agreement.
- The intellectual property rights and all other rights, title and interest of any nature in and to the System and the Data Insights and any algorithms, methods and techniques created based on the Data Insights, as well as any related content, documentation and services provided or made available by Company hereunder, including all modifications, upgrades, customizations and derivative works (whether or not permitted under this Agreement) of the System, any feedback, suggestions, or ideas for or about the System, are and shall remain the exclusive property of Company and its licensors. Except as expressly set forth herein, nothing in this Agreement shall be construed as transferring any rights, title or interests to you or any third party. Company and its licensors reserve any and all rights not expressly granted in this Agreement.
- Any results generated from the use of User Content of the Systems (“Results”) shall be owned by User. Notwithstanding the foregoing, intellectual property rights in and to the System derived as a result of or in conjunction with the Results shall be the sole property of X-trodes.
- Payments. User agrees to pay X-trodes the System-related fees and other charges (the “Fees“). Certain Platform features and functionalities may be subject to additional Fees, pricing for which may be specified within the Platform interface or the relevant Order.
- Suspension. If Company believes that you or anyone on your behalf is using the System in a manner that may cause harm to Company or any third party then Company may, without derogating from Company’s right to terminate this Agreement for any breach hereof, suspend your access to its Account and use of the System until such time as Company believes the threat of harm, or actual harm, has passed.
- Term and Termination.
- Term and Termination. Unless agreed otherwise in an Order, this Agreement is effective until terminated by either you or Company (the “Term”). Company reserves the right, at any time, to: (i) discontinue or modify any aspect of the System; and/or (ii) terminate this Agreement and your use of the System with or without cause, and shall not be liable to you or any third party for any of the foregoing. If you object to any term or condition of this Agreement or any subsequent modifications thereto, or become dissatisfied with the System in any way, your only recourse is to immediately discontinue use of the System.
- Effect of Termination. Upon termination in accordance with the provisions of this Agreement, you shall (i) immediately discontinue all access and use of the System and shall promptly, but in any event within three (3) days, permanently delete all copies of the System in your possession or control; and (ii) pay any outstanding amounts owed to Company under an Order (if any). For the avoidance of doubt, you shall not be entitled to any refunds or reimbursements of any amount(s) paid by you in connection with this Agreement, regardless of the cause of termination.
- Survival. This Section 8.3 and Sections 4 (Restrictions), 5 (Title), 6 (Payments, to the extent any amounts due hereunder remain payable), 2 (Effect of Termination), 9 (Warranty Disclaimer), 10 (Limitation of Liability), 11 (Confidential Information; Privacy), and 12 (Indemnification), and 13 (Independent Contractors) through 16 (General) shall survive termination of this Agreement.
- Warranty Disclaimer; Limited Warranty.
- EXCEPT AS EXPRESSLY SET FORTH HEREIN, THE SYSTEM AND THE DATA INSIGHTS ARE PROVIDED ON AN “AS IS” BASIS, AND ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE ARE HEREBY DISCLAIMED TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. COMPANY WILL NOT BE LIABLE OR RESPONSIBLE FOR: (A) ANY FAILURE TO DETECT CONTENT; (B) ANY TECHNICAL PROBLEMS OF THE INTERNET (INCLUDING WITHOUT LIMITATION SLOW INTERNET CONNECTIONS OR OUTAGES); AND/OR (C) ANY ISSUE THAT IS ATTRIBUTABLE TO YOUR SOFTWARE OR YOUR INTERNET OR DATA SERVICE PROVIDER.
- The System is not intended to, and will not, operate as a data storage or archiving product or service, and You agree not to rely on the System for the storage of any User Content whatsoever. You are solely responsible and liable for the maintenance and backup of all User Content. “Personally Identifiable Information” means any personal information that can be used to identify an individual, as defined (or defined in a similar term) under the relevant privacy law.
- X-trodes grants You a 1-year limited warranty to the System. For sake of clarity, this warranty does not include the Hardware, batteries or SD cards, and will not be granted in the event that the System or any component thereof is: (i) subject to misuse, negligence, accident or improper installation, use or maintenance by anyone other than X-trodes, or; (ii) modified, repaired or altered by anyone other than X-trodes; or (iii) used in a manner for which it was not intended, or not in compliance with its specifications and/or Documentation; (iv) damaged by any factor beyond X-trodes’ reasonable control; or (v) if the System was used in conjunction with anything other than the Hardware and Software.
- Limitation of Liability.
- EXCEPT TO THE EXTENT PROHIBITED BY APPLICABLE LAW, IN NO EVENT SHALL COMPANY BE LIABLE FOR ANY LOSS OF INCOME, PROFITS, GOODWILL, REPUTATION, SPECIAL, INDIRECT, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL DAMAGES THAT ARISE UNDER THIS AGREEMENT OR THAT RESULT FROM THE USE OF, OR THE INABILITY TO USE, THE SYSTEM, AND/OR THE DATA INSIGHTS, EVEN IF IT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
- EXCEPT TO THE EXTENT PROHIBITED BY APPLICABLE LAW COMPANY’S TOTAL AGGREGATE LIABILITY FOR ALL DAMAGES AND LOSSES UNDER THIS AGREEMENT, OR IN CONNECTION WITH THE USE OF OR INABILITY TO USE THE SYSTEM, AND/OR THE DATA INSIGHTS, SHALL NOT, UNDER ANY CIRCUMSTANCE, EXCEED THE AMOUNT OF FEES ACTUALLY PAID BY YOU TO COMPANY UNDER THIS AGREEMENT WITHIN THE TWELVE (12) MONTHS PRECEDING THE DATE OF BRINGING A CLAIM.
- Confidential Information; Privacy.
- Each Party may have access to certain non-public and/or proprietary information of the other Party, in any form or media, including (without limitation) confidential trade secrets and other information related to the products, software, technology, data, know-how, or business of the other Party, whether written or oral, and any such other information that, regardless of the manner in which it is furnished and given the totality of the circumstances, a reasonable person or entity should have reason to believe is proprietary, confidential, or competitively sensitive (“Confidential Information”). Each Party shall take reasonable measures, at least as protective as those taken to protect its own confidential information, but in no event less than reasonable care, to protect the other Party’s Confidential Information from disclosure to a third party. Neither Party shall use or disclose the Confidential Information of the other Party except as expressly permitted under this Agreement or by applicable law. All right, title and interest in and to Confidential Information are and shall remain the sole and exclusive property of the disclosing Party. The terms of this Agreement are Confidential Information of Company.
- You hereby warrant and represent that you will (i) comply at all times with any and all applicable laws and regulations (including, without limitation, the EU General Data Protection Regulation (“GDPR”); (ii) provide all appropriate notices; (ii) To the extent required by applicable laws and regulations, obtain all required informed consents and/or have any and all ongoing legal bases in order to allow Company to process the User Data pursuant to this Agreement
- Except as agreed otherwise in an Order, any personal data collected and/or processed in connection with this Agreement shall be done in accordance with our privacy and data protection practices.
- Indemnification. You hereby agree to defend, indemnify and hold Company harmless against any damages awarded against Company by a court of competent jurisdiction, or paid in settlement, in connection with a third-party claim, suit or proceeding arising from or related to: (i) breach of any of your obligations, representations or warranties hereunder; or (ii) your gross negligence or willful misconduct.
- Independent Contractors. The parties are independent contractors. Nothing in this Agreement shall create a partnership, joint venture, agency, or employment relationship between the parties. Neither Party may make, or undertake, any commitments or obligations on behalf of the other.
- Assignment. This Agreement and any rights or obligations hereunder: (i) may not be transferred or assigned by you without the prior written consent of Company which may not be unreasonably withhold; but (ii) may be transferred or assigned by Company. Subject to the foregoing conditions, this Agreement shall be binding upon and inure to the benefit of each Party and its respective assigns. Any prohibited assignment shall be null and void.
- Governing Law and Jurisdiction. This Agreement shall be governed by the laws of the State of Israel, without regard to its conflict of laws’ provisions. All disputes arising out of this Agreement shall be subject to, and each Party hereby consents to, the sole and exclusive jurisdiction of the competent courts located in Tel Aviv-Yaffo, Israel.
- General. The headings used in this Agreement are for convenience only and shall in no case be considered in construing this Agreement. Any capitalized but undefined term in the Order shall have the meaning given to it in this Agreement. In the case of an inconsistency or contradiction between this Agreement and any Order, the Order shall prevail. This Agreement comprises the entire agreement between the parties regarding the subject matter hereof and supersedes and merges all prior understandings, oral and written, between the Parties relating to the subject matter of this Agreement. Company reserves the right to modify this Agreement at any time by sending you a notification and/or publishing the revised Agreement on the System. Such change will be effective ten (10) days following the foregoing notification thereof, and your continued use of the System thereafter means that you accept those changes. If any part of this Agreement is held by a court of competent jurisdiction to be illegal or unenforceable, the validity or enforceability of the remainder of this Agreement shall not be affected and such provision shall be deemed modified to the minimum extent necessary to make such provision consistent with applicable law and, in its modified form, such provision shall then be enforceable and enforced. No failure or delay in exercising any right hereunder by either Party shall operate as a waiver thereof, nor will any partial exercise of any right hereunder preclude further exercise. YOU AGREE THAT ANY CAUSE OF ACTION THAT YOU MAY HAVE ARISING OUT OF OR RELATED TO THE SYSTEM MUST COMMENCE WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION ACCRUES. OTHERWISE, SUCH CAUSE OF ACTION IS PERMANENTLY BARRED.