This Agreement (this “Agreement”), is made by and between Norbert Health, Inc. (“Norbert”); and (“Customer”), each of which may sometimes be referred to in this Agreement as a “Party” or collectively as the “Parties.”
The Parties hereby agree as follows:
DEFINITIONS. The definitions for some of the defined terms used in this Agreement are set forth below. The definitions for other defined terms are set forth elsewhere in this Agreement.
“Applicable Laws” means all applicable laws, statutes, ordinances, regulations, and self-regulatory guidelines including, without limitation, privacy laws.
“Authorized User” means Customer’s employees, contractors, or agents whom Customer authorizes to access and use the Product and Platform pursuant to the terms and conditions of this Agreement. Customer is responsible for all acts and omissions of Authorized Users and any other person who accesses and uses the Product and Platform using any of Customer’s or any Authorized Users’ login credentials.
“Customer Data” means any and all data, information, and other materials that Customer and Authorized Users furnish to Norbert in connection with their use of the Products and Platform, including, without limitation, PII.
“Confidential Information” means: (i) with respect to Norbert, the Product, the Platform, and any and all source code relating to any of the foregoing; the De-Identified Data; the Documentation; and any other non-public information or material regarding Norbert’s legal or business affairs, financing, customers, properties, pricing, or data including, without limitation, methods, processes, procedures, systems, know-how, algorithms, applications, ideas, techniques, user interface design, technical data, models, architecture, applications, and other intellectual property related to the Products and Platform; (ii) with respect to Customer, the Customer Data and any other non-public information or material regarding Customer’s legal or business affairs, financing, Authorized Users, properties, or data; and (iii) with respect to each Party, the terms and conditions of this Agreement, in all cases, whether disclosed orally or in tangible or electronic form. Notwithstanding any of the foregoing, Confidential Information does not include information which: (a) is or becomes public knowledge without any action by, or involvement of, the Party to which the Confidential Information is disclosed (the “Receiving Party”); (b) is documented as being known to the Receiving Party prior to its disclosure by the other Party (the “Disclosing Party”); (c) is independently developed by the Receiving Party without reference or access to the Confidential Information of the Disclosing Party and is so documented; or (d) is obtained by the Receiving Party without restrictions on use or disclosure from a third party.
“Documentation” means the manuals, specifications, and other materials describing the functionality, features, and operating characteristics, and use of the Product and Platform, as provided or made available by Norbert to Customer whether in a written or electronic form.
“Fees” means the fees set forth in the applicable Order Form for the Product, Platform, and/or Professional Services.
“Harmful Code” means any harmful, malicious, or hidden code, programs, procedures, routines, or mechanisms that would (i) cause the Platform or Products to cease functioning; (ii) in any way damage or corrupt data, storage media, programs, equipment, or communications; or (iii) otherwise interfere with the operations of the Platform or Products, including, without limitation, Trojan horses, viruses, worms, time bombs, time locks, devices, traps, access codes, or drop dead or trap door devices).
“Improvements” means all modifications, improvements, enhancements, extensions, new versions, new modules, and other changes to the Product and Platform developed by Norbert under and Order Form or which may be made available by Norbert to its customers from time to time.
“Order Form” means an order form for the Product, Platform and/or Professional Services, mutually executed by the Parties. Order Forms for the Platform and Product shall be in substantially the form attached hereto as Schedule A and Order Forms for Professional Services shall be in substantially the form attached hereto as Schedule B.
“PII” means any data that directly or indirectly identifies an individual or, alone or in combination with any other data including photographs available to the Customer, is capable of directly or indirectly identifying an individual or (b) as the terms “personal data,” “personal information,” “personally-identifiable information,” or similar terms are otherwise defined, or otherwise interpreted by any relevant governmental authority, in each case, under privacy and information security requirement
“Platform” means Norbert’s proprietary health data and analytics software offered as a service, and all updates and improvements thereto.
“Product” means Norbert’s proprietary health box hardware and related AI and machine-learning software imbedded therein.
“Professional Services” means the professional services ordered by Customer pursuant to an Order Form. Such Professional Services may include, without limitation, onboarding and implementation assistance and Product and Platform training.
PRODUCT, PLATFORM, SERVICES, AND FEES.
Product and Services. During the Term, Norbert will provide Customer with Product units, as well as access to the Platform, subject to the terms and conditions of this Agreement.
Modifications. Norbert reserves the right to modify the Platform at any time and from time to time by adding, deleting, or modifying features to improve the user experience provided, however, that during any Term, such additions, deletions, or modifications to features will not materially decrease the overall functionality of the Platform.
Support. Norbert accepts support questions twenty-four (24) hours per day, seven (7) days per week via the Platform. Responses to support questions submitted through the Platform are provided during normal business hours only. Customer may also email Norbert at firstname.lastname@example.org. Norbert attempts to respond to support questions, whether submitted via the Platform or via email, within one (1) business day, although Norbert does not guarantee any specific response time. During the Term, Norbert, or its contractors, shall host the Platform such that the Platform is available for use by Customer. Norbert and/or its contractors shall monitor the Platform to optimize performance, and shall use commercially reasonable efforts to minimize any downtime, other than for scheduled maintenance or downtime caused by reasons beyond Norbert’s reasonable control, including, but not limited to, acts of God, acts of any governmental body, war, insurrection, sabotage, armed conflict, terrorism, embargo, fire, flood, strike or other labor disturbance, unavailability of or interruption or delay in telecommunications or third-party services, or virus attacks or hackers. Norbert will notify Customer of any unavailability or other issue with the Platform of which Norbert has knowledge.
Customer’s Obligations. Customer shall obtain consents from all Authorized Users that it is collecting and processing PII and that it has the rights to share such PII with Norbert.
Payments. Customer is required to pay the Fees, and any Taxes, for the applicable Product, Platform and Professional Services. Amounts and payment terms for the Product and Platform. By purchasing the Product and Platform, you agree to pay Norbert all charges at the prices then in effect for such Product and Platform in accordance with the applicable payment terms.
Additional Payment Terms. Unless otherwise expressly provided for in this Agreement or the applicable Order Form, (i) all Fees are based on usage levels purchased by Customer, and not on actual use; and (ii) all Fees paid under this Agreement are non-refundable. Customer agrees that payment of the Fees under any applicable Order Form is not contingent on the delivery of any future Product and/or Platform functionalities, or features, or any other future commitments.
USE; RESTRICTIONS ON USE; COMPLIANCE.
Limited Right and License. During the Term, Norbert hereby grants to Customer and its Authorized Users a non‑exclusive, non‑transferable limited right and license, without the right to grant sublicenses, to use the Products and to access and use the Platform and the Documentation solely for its business use.
Restrictions on Use. Customer will not (and will not authorize, permit, or encourage any Authorized User or any third party to): (i) allow anyone other than Authorized Users to access and use the Products or the Platform; (ii) reverse engineer, decompile, disassemble, or otherwise attempt to discern the source code or interface protocols of the Products or the Platform; (iii) modify, adapt, or translate the Products or the Platform; (iv) make any copies of the Products or the Platform; (v) resell, distribute, or sublicense the Products or the Platform, or use any of the foregoing for the benefit of anyone other than you or the Authorized Users; (vi) remove or modify any proprietary markings or restrictive legends placed on the Products or the Platform; (vii) use the Products or the Platform in violation of any Applicable Law, in order to build a competitive product or service, or for any purpose not specifically permitted in this Agreement; or (viii) introduce, post, or upload to the Products or the Platform any Harmful Code.
Compliance. Norbert has the right to monitor Customer’s compliance with this Agreement. If any such monitoring reveals that Customer is not using the Products or the Platform in compliance with this Agreement, then Customer will remedy any such non-compliance within two (2) business days of receiving notice from Norbert.
REPRESENTATIONS AND WARRANTIES.
Mutual Representations and Warranties. Each Party represents and warrants to the other Party that: (i) it is duly organized, validly existing, and in good standing under its jurisdiction of organization and has the right to enter into this Agreement; (ii) the execution, delivery, and performance of this Agreement and the consummation of the transactions contemplated hereby are within the corporate powers of such Party and have been duly authorized by all necessary corporate action on the part of such Party, and constitute a valid and binding agreement of such Party; and (iii) it has the full power, authority, and right to perform its obligations and grant the rights and licenses it grants hereunder.
Norbert’s Additional Representations and Warranties. In addition to the representations and warranties set forth in Section 4.1, Norbert represents and warrants to Customer that (i) the Product and Platform do not infringe, misappropriate, or otherwise violate any United States patents, copyrights, or trade secrets; and (ii) Norbert will comply with all Applicable Laws in performing its obligations hereunder.
Customer’s Additional Representations and Warranties. In addition to the representations and warranties set forth in Section 4.1, Customer represents and warrants to Norbert that: (i) it has the right to provide Norbert, and permit Norbert to collect and use including the capturing of photos of Authorized Users, Customer Data in accordance with this Agreement including any and all PII that Customer or an Authorized User provides; (ii) Customer’s use of the Products and the Platform, including, without limitation, the submission and processing of PII, shall comply with all Applicable Laws; and (iii) Customer will not rely on the Products or Platform as a sole source of data capture and/or rely solely on any data generated by the Products or Platform for or on behalf of Authorized Users during the Term.
DISCLAIMERS. EXCEPT AS SET FORTH IN SECTION 4, THE PRODUCT AND THE PLATFORM, AND ALL OF THEIR RESPECTIVE COMPONENTS, ARE PROVIDED “AS IS” AND “AS AVAILABLE,” AND NORBERT MAKES NO WARRANTIES, EXPRESS OR IMPLIED, AS TO THEM OR ANY PART THEREOF. NORBERT DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO, WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, AND NONE ARE CREATED, WHETHER UNDER THE UNIFORM COMMERCIAL CODE, CUSTOM OR USAGE IN THE INDUSTRY, OR THE COURSE OF DEALINGS BETWEEN THE PARTIES. NORBERT DOES NOT WARRANT OR REPRESENT THAT THE OPERATION OF THE PRODUCT OR PLATFORM WILL BE UNINTERRUPTED OR ERROR FREE. NORBERT DOES NOT WARRANT, GUARANTEE OR MAKE ANY REPRESENTATION TO CUSTOMER OR ANY AUTHORIZED USER REGARDING THE USE OR PERFORMANCE OF THE PRODUCT, THE PLATFORM, OR ANY COMPONENT THEREOF OR ANY DATA PRODUCED OR CAPTURED BY SUCH USE. NORBERT WILL HAVE NO LIABILITY FOR ANY HARM OR DAMAGE ARISING OUT OF OR IN CONNECTION WITH ANY USE OF THE PRODUCT OR PLATFORM. CUSTOMER AND EACH AUTHORIZED USER AGREES THAT ITS ACCEPTANCE AND/OR USE OF THE PRODUCT AND PLATFORM OR ANY COMPONENT THEREOF IS ENTIRELY AT ITS OWN RISK.
FEEDBACK. From time to time during the Term and at the conclusion of the Term, Customer may provide Norbert with suggestions for Product and Platform improvements and other feedback regarding Customer’s and each Authorized User’s experience using the Product and Platform (“Feedback”). Norbert shall own all right, title, and interest (including intellectual property rights) and to any Feedback, and Norbert will be free to use, reproduce, disclose, and otherwise exploit any and all such Feedback without compensation or attribution to Customer or any Authorized User.
INTELLECTUAL PROPERTY; DATA.
Norbert IP. All right, title, and interest in and to (i) the Platform and Products, (ii) the Documentation, (iv) the De-Identified Data, (v) all modifications, Improvements, adaptations, enhancements, or translations made to any of the foregoing, and (v) all proprietary rights therein including, without limitation, intellectual property rights, will be and remain the sole and exclusive property of Norbert and its licensors. Except for the express licenses granted herein, nothing shall confer on a Party any right or interest in or to the other Party’s intellectual property.
Customer Data. Subject to this Section 7.2, as between the Parties, all right, title, and interest in and to the Customer Data, and all proprietary rights therein, will be and remain Customer’s sole and exclusive property, including, without limitation, all PII captured using the Product or the Platform. Customer hereby grants to Norbert a non-exclusive, non-transferable, limited right and license to use the Customer Data during the Term to provide the Product and the Platform and related services to Customer and its Authorized Users, and to improve the Product and Platform through AI and machine learning; provided, however, that the Customer Data shall be de-identified and anonymized pursuant to pursuant to 45 CFR § 164.514 before use by Norbert to improve the Product and Platform through AI and machine learning (the “De-Identified Data”).
De-Identified Data. Customer hereby agrees that Norbert may collect, reproduce, execute, store, archive, modify, enhance, or otherwise use De-Identified Data for training the Product and Platform using AI and machine learning. De-Identified Data shall not contain any PII.
Confidentiality. The Receiving Party will protect and preserve the Confidential Information of the Disclosing Party as confidential, using no less care than that with which it protects and preserves its own confidential and proprietary information (but in no event less than a reasonable degree of care), and will not use the Confidential Information for any purpose except to perform its obligations and exercise its rights under this Agreement. The Receiving Party may disclose, distribute, or disseminate the Disclosing Party’s Confidential Information to any of its officers, directors, members, managers, partners, employees, contractors, or agents (its “Representatives”), provided that the Receiving Party reasonably believes that its Representatives have a need to know and such Representatives are bound by confidentiality obligations at least as restrictive as those contained herein. The Receiving Party will not disclose, distribute, or disseminate the Confidential Information to any third party, other than its Representatives, without the prior written consent of the Disclosing Party. The Receiving Party will at all times remain responsible for any violations of this Agreement by any of its Representatives. If the Receiving Party is legally compelled to disclose any of the Disclosing Party’s Confidential Information, the Receiving Party will provide the Disclosing Party prompt prior written notice of such requirement so that the Disclosing Party may seek a protective order or other appropriate remedy and/or waive compliance with the terms of this Section. If such protective order or other remedy is not obtained or the Disclosing Party waives compliance with the provisions of this Section, the Receiving Party may furnish only that portion of the Confidential Information which it is advised by its counsel is legally required to be disclosed, and will use commercially reasonable efforts to insure that confidential treatment will be afforded such disclosed portion of the Confidential Information.
Specific Performance and Injunctive Relief. The Receiving Party acknowledges that in the event of a breach of Section 8.1 by the Receiving Party or its Representatives, substantial injury could result to the Disclosing Party and money damages will not be a sufficient remedy for such breach. Therefore, in the event that the Receiving Party or its Representatives engage in, or threaten to engage in, any act which violates Section 8.1, the Disclosing Party will be entitled, in addition to all other remedies which may be available to it under law, to seek injunctive relief (including, without limitation, temporary restraining orders or preliminary or permanent injunctions) and specific enforcement of the terms of Section 8.1. The Disclosing Party will not be required to post a bond or other security in connection with the granting of any such relief.
LIMITATION OF LIABILITY. EXCEPT IN CONNECTION WITH A PARTY’S GROSS NEGLIGENCE, WILLFUL MISCONDUCT, BREACH OF CONFIDENTIALITY OBLIGATIONS, OR INDEMNIFICATION OBLIGATIONS: (I) IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER PARTY OR ANY OTHER PARTY FOR ANY INCIDENTAL, INDIRECT, CONSEQUENTIAL, SPECIAL, EXEMPLARY, OR PUNITIVE DAMAGES OF ANY KIND (INCLUDING, BUT NOT LIMITED TO, LOST REVENUES OR PROFITS) ARISING FROM OR RELATING TO THIS AGREEMENT REGARDLESS OF WHETHER SUCH PARTY WAS ADVISED, HAD OTHER REASON TO KNOW, OR IN FACT KNEW OF THE POSSIBILITY THEREOF; AND (II) EACH PARTY’S AGGREGATE LIABILITY FOR DIRECT DAMAGES UNDER THIS AGREEMENT WILL NOT EXCEED THE FEES PAID BY CUSTOMER HEREUNDER FOR THE PRECEDING SIX MONTHS.
Indemnification by Norbert. Subject to Section 10.3, Norbert will defend, indemnify, and hold Customer harmless from any and all damages, losses, liabilities, costs, and expenses, including reasonable attorneys’ fees (“Losses”) incurred by such parties in connection with any third-party action, claim, or proceeding (each, a “Claim”) (a) alleging that Customer’s access to and use of the Product and Platform in accordance with this Agreement infringes or misappropriates any United States patents, copyrights, or trade secrets, or (b) arising out of Norbert’s violation of this Agreement, any Order Form, or Applicable Law; provided, however, that the foregoing obligation will be subject to Customer: (i) promptly notifying Norbert of the Claim (provided that failure to provide prompt written notice to Norbert of the Claim will not alleviate Norbert of its obligations under this Section 10.1 to the extent any associated delay does not materially prejudice or impair the defense of the related Claim); (ii) providing Norbert, at Norbert’s expense, with reasonable cooperation in the defense of the Claim; and (iii) providing Norbert with sole control over the defense and negotiations for a settlement or compromise of the Claim, provided that Norbert may not make any settlement or admission of liability on Customer’s behalf without Customer’s prior written approval.
Exceptions to Norbert’s Indemnification Obligations. Norbert is not obligated to indemnify, defend, or hold Customer harmless with respect to any Claim to the extent: (i) the Claim arises from or is based upon Customer or Authorized Users’ use of: (a) the Product or Platform not in accordance with the Documentation, this Agreement, or an Order Form; or (b) any unauthorized modifications, alterations, or implementations of the Product or Platform made by Customer or at Customer’s request (other than by Norbert); (ii) the Claim arises from use of the Product or Platform in combination with unauthorized modules, apparatus, hardware, software, or services not supplied or specified in writing by us; or (iii) the Claim arises from any use of the Product or Platform for which it was not designed.
Infringement Claims. In the event that Norbert reasonably determines that the Products, Platform or any portion thereof is likely to be the subject of a Claim, Norbert will have the right (but not the obligation), at its own expense, to: (i) procure for Customer the right to continue to use the Product or Platform as provided in this Agreement and any applicable Order Form; (ii) replace the infringing components of the Product or Platform with other components with equivalent functionality; or (iii) suitably modify the Product or Platform so that it is non-infringing and functionally equivalent. If none of the foregoing options is available to Norbert on commercially reasonable terms, Norbert may terminate this Agreement and/or any applicable Order Form without further liability to Customer and refund Customer a pro-rated portion of any pre-paid Fees. This Section 10.3, together with the indemnity provided under Section 10.1, states Customer’s sole and exclusive remedy, and Norbert’s sole and exclusive liability, regarding any Claim.
Indemnification by Customer. Customer will defend, indemnify, and hold harmless Norbert, its licensors, its hosting providers, and its and their respective officers, directors, managers, employees, contractors, and agents from any and all Losses incurred by such parties in connection with any Claim: (a) alleging that the Customer Data infringes or misappropriates any United States patents, copyrights, or trade secrets, or (b) arising from or in connection with Customer’s or any of its Authorized Users’ breach or violation of this Agreement, any Order Form, or Applicable Law; provided, however, that the foregoing obligation will be subject to Norbert: (i) promptly notifying Customer of the Claim (provided that failure to provide prompt written notice to Customer of the Claim will not alleviate Customer of its obligations under this Section 10.4 to the extent any associated delay does not materially prejudice or impair the defense of the related Claim); (ii) providing Customer, at its expense, with reasonable cooperation in the defense of the Claim; and (iii) providing Customer with sole control over the defense and negotiations for a settlement or compromise of the Claim, provided that Customer may not make any settlement or admission of liability on Norbert’s behalf without Norbert’s prior written approval.
TERM AND TERMINATION.
Term. The term of this Agreement (the “Term”) commences on the Effective Date and will continue in effect for twelve (12) months (the “Initial Period”), after which time the term will automatically renew for successive twelve (12) month periods (each, a “Renewal Period” and collectively with the Initial Period the “Term”) unless either Party provides written notice to the other Party of its desire for the term not to renew at least thirty (30) days prior to the date of such automatic renewal.
Termination. Either Party may terminate this Agreement: (i) upon thirty (30) days’ notice to the other Party if the other Party breaches a material term of this Agreement, and the breach remains uncured at the expiration of such thirty (30) day period; or (ii) immediately, if the other Party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, liquidation, or assignment for the benefit of creditors. Termination of the Agreement will result in termination of any Order Form in effect.
Effect of Termination. Upon termination of this Agreement as set forth in Section 11.2: (i) Customer will stop all access to and use of the Product and Platform; (ii) Customer will promptly pay all unpaid Fees and applicable Taxes due through the effective date of termination; (iii) if Customer has terminated this Agreement, Norbert will refund Customer a portion of any pre-paid Fees pro-rated to the effective date of termination; and (iv) upon written request, each Party will either return to the Disclosing Party (or, at such Disclosing Party’s instruction, destroy and provide such Disclosing Party with written certification of the destruction of) all documents, computer files, and other materials containing any of such Disclosing Party’s Confidential Information that are in the Receiving Party’s possession or control.
Survival. The following provisions will survive termination of this Agreement: Section 1 (“Definitions”), Section 4 (“Representations and Warranties”), Section 5 (“Disclaimers”), Section 6 (“Feedback”), Section 7 (“Intellectual Property; Data”), Section 8 (“Confidentiality”), Section 9 (“Limitation of Liability”), Section 10 (“Indemnification”), this Section 11 (“Term and Termination”), and Section 12 (“General Provisions”).
Assignment. Neither Party may assign or otherwise transfer any of its rights or obligations under this Agreement without the prior, written consent of the other Party; provided, however, that a Party may, upon written notice to the other Party and without the consent of the other Party, assign or otherwise transfer this Agreement in connection with a change of control transaction (whether by merger, consolidation, sale of equity interests, sale of all or substantially all assets, or otherwise). Any assignment or other transfer in violation of this Section will be null and void. Subject to the foregoing, this Agreement will be binding upon and inure to the benefit of the Parties hereto and their permitted successors and assigns.
Waiver. No failure or delay by either Party in exercising any right or remedy under this Agreement will operate, or be deemed to operate, as a waiver of any such right or remedy.
Governing Law. This Agreement will be governed by and construed in accordance with the laws of the State of New York, without regard for choice of law provisions thereof.
Exclusive Forum. The Parties hereby consent and agree to the exclusive jurisdiction of the state and federal courts located in the State of New York, Borough of Manhattan for all suits, actions, or proceedings directly or indirectly arising out of or relating to this Agreement or any Order Form and waive any and all objections to such courts, including but not limited to, objections based on improper venue or inconvenient forum, and each Party hereby irrevocably submits to the exclusive jurisdiction of such courts in any such suits, actions, or proceedings.
Independent Contractors. As between themselves, the Parties are independent contractors. Neither Party will be deemed to be an employee, agent, partner, joint venturer, or legal representative of the other Party for any purpose, and neither Party will have any right, power, or authority to obligate the other Party.
Severability. If any provision of this Agreement is found invalid or unenforceable by a court of competent jurisdiction, that provision will be amended to achieve as nearly as possible the same economic effect as the original provision, and the remainder of this Agreement will remain in full force and effect. Any provision of this Agreement which is unenforceable in any jurisdiction, will be ineffective only as to that jurisdiction, and only to the extent of such unenforceability, without invalidating the remaining provisions hereof.
Third-Party Beneficiaries. There are no other third-party beneficiaries under this Agreement.
Export. Customer will not export or re-export, either directly or indirectly, the Products, the Platform, or any copies thereof in such manner as to violate the export laws and regulations of the United States or any other applicable jurisdiction in effect from time to time (including, without limitation, when such export or re-export requires an export license or other governmental approval without first obtaining such license or approval). Without limiting the foregoing, Customer will not permit Authorized Users or any third parties to access or use the Products or the Platform in violation of any United States export embargo, prohibition, or restriction.
Complete Understanding. This Agreement and the exhibits constitute the final and complete agreement between the Parties regarding the subject matter hereof, and supersede any prior or contemporaneous communications, representations, or agreements between the Parties, whether oral or written, including, without limitation, any confidentiality or non-disclosure agreements.
Counterparts. This Agreement may be executed in counterparts (which may be exchanged by fax or PDF), each of which will be deemed an original, but all of which together will constitute the same Agreement.