TERMS AND CONDITIONS
Last Revised: April 23, 2020
These Customer Terms and Conditions are an agreement (this “Agreement”) between Ceribell, Inc. (“Ceribell”) and Customer (defined below). This Agreement sets forth the terms pursuant to which Customer will be permitted to purchase, subscribe to, access, or use certain of Ceribell’s products and services (collectively, the “Products”).
BY ACCEPTING THIS AGREEMENT, EITHER BY CLICKING A BOX INDICATING YOUR ACCEPTANCE, SUBMITTING A PURCHASE ORDER IN RESPONSE TO A QUOTE FROM CERIBELL OR ITS AUTHORIZED CHANNEL PARTNERS RELATING TO THE PRODUCT (DEFINED BELOW), USING THE PORTAL (DEFINED BELOW), OR OTHERWISE AFFIRMATIVELY INDICATING YOUR ACCEPTANCE OF THIS AGREEMENT, YOU: (A) AGREE TO THIS AGREEMENT ON BEHALF OF THE ORGANIZATION, COMPANY, OR OTHER LEGAL ENTITY FOR WHICH YOU ACT (“Customer”); AND (B) IF THIS AGREEMENT HAS NOT ALREADY BEEN ACCEPTED BY CUSTOMER, REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND CUSTOMER TO THIS AGREEMENT. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH THIS AGREEMENT, YOU MUST NOT ACCEPT THIS AGREEMENT AND MAY NOT USE THE PRODUCTS.
- DEFINITIONS; STRUCTURE
- Technology and Services; Orders. This Agreement sets forth the terms and conditions on which Ceribell may make available to Customer certain technology or related services, each as expressly identified in an Order, which may include the following: (a) a Clarity Package, (b) a subscription to access the Portal, (c) one or more Recorders, or (d) one or more Headbands. Each Order is subject to the terms of, and is deemed incorporated into, this Agreement. The Clarity Package and access to the Portal are provided on a subscription basis. Not all of the features or functionality available for any Technology may be available at Customer’s subscription level or Order type irrespective of whether such feature or functionality is described in the Documentation (defined below) and access to such features or functionality may require payment of additional fees or the purchase of additional licenses or access rights.
- Subscription Term. The initial term of each Portal Subscription and Clarity Package will be as specified on the applicable Order (or, if no term is specified, one year) (the “Initial Term”) and, and, unless either party provides the other with at least 30 days’ notice of non-renewal, upon the date of expiration of the Initial Term or then-current renewal term, the term will automatically renew for successive one-year terms (or such other length of renewal period as stated on the Order) (those periods, collectively, the “Subscription Term” of such Portal Subscription or Clarity Package, as applicable). Renewal of any Portal Subscription or Clarity Package, as applicable, may be conditioned on and subject to Customer’s agreement to changes to this Agreement. Customer’s access to the Portal and/or Clarity may be automatically disabled upon expiration of the Subscription Term.
- USE OF TECHNOLOGY AND DOCUMENTATION
- Use of Portal and Clarity. If Customer has purchased the right to access the Portal and/or Clarity, Customer may allow its employees and contractors (“Authorized Users”) to access and use the Portal and/or Clarity, as applicable, on Customer’s behalf solely (a) for the applicable Subscription Term and (b) in accordance with all applicable Documentation and the restrictions set forth in this Agreement. Notwithstanding the foregoing, in no event will Customer allow any third party that is an employee or agent of or otherwise affiliated with a competitor of Ceribell to be an Authorized User or have access to any of the Technology. The number of Authorized Users that Customer is permitted to use will be as set forth on the applicable Order or as otherwise agreed by the parties in writing. Each Authorized User will be provided with unique login credentials, which may not be shared with any other person. Customer must notify Ceribell immediately if it becomes aware that an Authorized User’s Portal credentials have been compromised. Customer is solely responsible for actions of its Authorized Users in connection with the Technology.
- Use of Other Technology. Ceribell grants to Customer a non-sublicensable, non-exclusive limited license during the applicable Subscription Term to, solely by and through Authorized Users, use (a) the Firmware in connection with Customer’s authorized use of each Recorder and (b) the user manuals, help files, technical manuals, and any other materials provided by or on behalf of Ceribell that accompany Technology, in printed, electronic, or other form, that describe the installation, operation, use, or technical specifications of the Technology (the “Documentation”) solely in support of its authorized use of the Technology in accordance with this Agreement. All Recorders and Headbands (“Hardware”) are provided to Customer solely for use by Customer in connection with the other Hardware, Portal, and Clarity. All sales of Hardware are shipped FOB Ceribell’s point of shipment.
- Third Party Products. The Products may include or be accompanied by software, content, data, or other materials, including related documentation, or that are otherwise identified in the Documentation as being required to use properly such Technology, that are not owned by Ceribell and that are provided to Customer on terms that are in addition to and/or different from those contained in this Agreement (“Third-Party Products”). The Third-Party Products and their use by Customer are subject to all terms that accompany such Third-Party Products. Customer is responsible for complying with all such terms. Certain Technology may include code and components licensed under an open source license.
- Additional Clarity Package Terms. The applicable Order will specify how many Recorders will be provided to Customer as part of any Clarity Package. For department-level Clarity Packages, Customer and Authorized Users will not utilize the Technology outside of the hospital department(s) specified in the Order.
- Loaned Recorders. If an Order specifies that Recorders provided to Customer will be provided to Customer on a loaned basis (“Loaned Recorders”), such Loaned Recorders are loaned, not sold, to Customer, and will remain the property of Ceribell. Customer will use a reasonable degree of care to maintain and protect each Loaned Recorder. Customer will assume all risk of loss, damage, theft, or destruction of each Loaned Recorder while it is in its possession or control or that of its agents, including any carrier, and will reimburse Ceribell for any costs of repair or replacement. Customer will, at all times, keep the Loaned Recorders in its control (whether by contract or possession).
- Ownership; Data. As between Ceribell and Customer, Customer retains all right, title, and interest, including all intellectual property rights, in and to (a) any data or information that Customer uploads or inputs into any Technology or otherwise makes available to Ceribell, including in connection with Customer’s use of any Technology or receipt of the technical support services, if any, provided by or on behalf of Ceribell to assist Customer with its use of the Products (“Support Services”) and (b) data that is generated and made available to Customer by any Technology through use of the data described in part (a) above ((a) and (b) collectively, “Customer Data”). Customer hereby grants Ceribell and its affiliates a non-exclusive, worldwide, royalty-free, fully paid, sublicensable, fully transferable, irrevocable license to use, process, transmit, store, and disclose the Customer Data: (a) for the purpose of exercising Ceribell’s rights and performing its obligations under this Agreement and (b) in a form that does not identify Customer as the source thereof, for its business purposes, including to develop and improve Ceribell’s and its affiliates’ products and services.
- Reservation of Rights. As between the parties, Ceribell owns all right, title, and interest, including all intellectual property rights, in and to the Technology, Documentation, and any improvements to any Ceribell products or services made as a result of Ceribell’s use, processing, or generation of Customer Data and all modifications to, and derivative works based upon, the Technology or Documentation. Ceribell does not grant any implied licenses to Customer.
- Feedback. If Customer provides any feedback to Ceribell concerning the functionality and performance of any Technology, any Documentation, or the Support Services (including identifying potential errors and improvements), Customer hereby assigns to Ceribell all right, title, and interest in and to the feedback, and Ceribell is free to use the feedback without payment or restriction. Ceribell is not obligated to use, display, reproduce, or distribute any such feedback.
- Restrictions. Customer will not: (a) use the Technology except as expressly permitted under the terms of this Agreement; (b) reverse engineer, decompile, disassemble, modify, merge, or translate the Technology, or attempt to discover either the layout of the technology underlying the Recorder or Headbands or the source code or the underlying ideas, algorithms, structure, or organization of the Portal or Firmware, or create derivative works of the Technology (except to the extent that applicable law prevents the prohibition of such activities); (c) install or otherwise utilize the Technology in any way that would permit or authorize the Technology to be used in violation of this Agreement; (d) transfer, assign, sublicense, sell or otherwise convey any of Customer’s rights to or license in the Technology or under this Agreement without the express written approval of Ceribell, except as authorized in Section 2.2; (e) remove, delete, alter, or obscure any trademarks or any copyright, trademark, patent, or other intellectual property rights notices provided on or with the Technology, including any copy; (f) remove, circumvent, or disable, or otherwise create or implement any workaround of any security or other technological features or measures of any Technology, including any designed to prevent unauthorized use of the Technology, or use any Technology in a manner that Ceribell reasonably believes poses a threat to the security of Ceribell-controlled computer systems, (g) rent, lease, or otherwise permit third parties (or other persons not authorized by this Agreement) to use any Technology or the Documentation; (h) use any Technology for any benchmarking activity or in connection with the development of a competitive product; (i) access any Technology in a manner that materially impacts or burdens Ceribell or Ceribell’s servers and other computer systems, or that interferes with Ceribell’s ability to make available any Technology to any third party, or (j) use the Technology for any illegal, harmful, or fraudulent activities. Customer shall notify Ceribell immediately via email to firstname.lastname@example.org if it becomes aware of any unauthorized activity or use of the Technology in violation of this Agreement.
- FEES AND PAYMENTS
- General Fee and Payment Terms. Customer will pay Ceribell the fees and any other amounts owing under this Agreement, plus any applicable sales, use, excise, or other taxes (unless a tax exemption certificate is provided), as specified in each Order. Customer will pay Ceribell the actual shipping fees incurred by Ceribell in connection with shipping the Technology to Customer, including with respect to Recorders provided in connection with a Clarity Package. With respect to Portal Subscriptions and Clarity Packages, the fees for each renewal term will be Ceribell’s then-current fees. Fees for Technology are due in advance as specified in the applicable Order, and Customer will pay all amounts due within 30 days of the date of the applicable invoice.All amounts payable under this Agreement are denominated in U.S. dollars, and Customer will pay all such amounts in U.S. dollars. Other than net income taxes imposed on Ceribell, Customer will bear all taxes, duties, and other governmental charges resulting from this Agreement.
- Credits. If Customer was provided with any Technology credits in connection with a Clarity Package (“Credits”), those Credits are considered “earned” by Customer on a straight-line basis over the first 12 months of the Subscription Term for that Clarity Package. If Customer terminates its Clarity Package prior within the first 12 months of the Subscription Term, any unused Credits will be cancelled and any used but unearned Credits will be billed to Customer.
- TERM AND TERMINATION
- Termination for Material Breach. Either party may terminate this Agreement or one or more Orders if the other party does not cure its material breach of this Agreement or the applicable Order(s) within 30 days of receiving written notice of the material breach from the non-breaching party. Termination in accordance with this Section 4.1 will take effect when the breaching party receives written notice of termination from the non-breaching party, which notice must not be delivered until the breaching party has failed to cure its material breach during the 30-day cure period. Notwithstanding the foregoing, Ceribell may immediately terminate this Agreement upon notice to Customer if Ceribell reasonably believes that Customer has made or distributed any unauthorized copies of any Technology, has violated any restrictions in this Agreement, has attempted to assign or sublicense any right granted by this Agreement except as expressly permitted herein, or has otherwise taken any actions that threaten or challenge Ceribell’s intellectual property rights, including rights in and to any Technology. Without limiting any other provision of this Section 4.1, if Customer fails to timely pay any fees, Ceribell may, without limitation to any of its other rights or remedies, suspend provision of or access to the Technology under all Orders until it receives all amounts due.
- Effect of Termination. Upon the termination of this Agreement all rights and licenses granted by Ceribell to Customer under this Agreement, including any rights to Technology or Documentation or Support Services, will terminate.
- Post-Termination Obligations. If this Agreement or an Order is terminated for any reason: (a) Customer will pay to Ceribell any amounts that have accrued prior to the effective date of termination; (b) the parties’ respective rights and obligations under Sections 2.5, 2.7, 3, 4, 5.2, 6, and 7 will survive; and (c) if Customer has a Clarity Package, Customer must immediately cease use of the Portal, Documentation, and any Loaned Recorders and remove the Documentation from all computers or servers and Customer will (i) provide Ceribell with a written certification that all use of Loaned Recorders, the Portal, and Documentation has been discontinued and (ii) at its expense, securely package and ship each Loaned Recorder, complete with all components, hard copy Documentation, and related materials, back to Ceribell. Customer assumes all risk of loss, damage, theft, or destruction of Loaned Recorders during shipping until received by Ceribell.
- WARRANTIES AND DISCLAIMER
- Warranty. Ceribell warrants to Customer that the Recorders will be free from material defects in material and workmanship (the “Recorder Warranty”) for a period of (a) one year from the date of shipment with respect to purchased Recorders and (b) during the Subscription Term for Loaned Recorders (the “Warranty Period”). Ceribell warrants to Customer that each Headband is free from material manufacturing defects (the “Headband Warranty”). As Customer’s sole and exclusive remedy if any Recorder does not meet the Recorder Warranty during the Warranty Period or any Headband does not meet the Headband Warranty prior to the Headband’s labeled expiration date, Ceribell, at its sole option, will do one of the following: (i) replace the Recorder or Headband, as applicable, with the same or an equivalent Recorder or Headband that meets the applicable warranty at no cost to Customer (including shipping) or (ii) for Recorders, use reasonable efforts to correct any deficiencies in the Recorder so that it will comply with the warranty. This limited warranty will not apply to defects caused by improper testing, assembly, handling, or use by Customer or other third parties.
- Disclaimer. EXCEPT FOR THE LIMITED WARRANTIES DESCRIBED IN SECTION 5.1, CERIBELL MAKES NO OTHER EXPRESS OR IMPLIED WARRANTIES In CONNECTION WITH THIS AGREEMENT, INCLUDING THE IMPLIED WARRANTIES OF NON-INFRINGEMENT OF THIRD PARTY RIGHTS, MERCHANTABILITY, SATISFACTORY QUALITY, AND FITNESS FOR A PARTICULAR PURPOSE AS WELL AS ANY WARRANTIES ARISING FROM A COURSE OF DEALING, USAGE, OR TRADE PRACTICE. IF SUCH DISCLAIMER IS NOT PERMITTED BY LAW, THE DURATION OF ANY SUCH IMPLIED WARRANTIES IS LIMITED TO 90 DAYS FROM THE DATE OF DELIVERY. IN ADDITION, CERIBELL DOES NOT WARRANT THAT THE TECHNOLOGY OR DOCUMENTATION WILL SATISFY CUSTOMER’S REQUIREMENTS, ARE WITHOUT DEFECT OR ERROR, OR THAT THE OPERATION OF THE TECHNOLOGY WILL BE UNINTERRUPTED.
- LIMITATIONS OF LIABILITY
- Export. Customer will comply with all applicable laws, rules and regulations in connection with Customer’s activities under this Agreement, including but not limited to export and import laws. It is Customer’s responsibility to obtain any required licenses to export and re-export the Technology. The Technology, including technical data, is subject to U.S. export control laws, including but not limited to the U.S. Export Administration Act and its associated regulations, and may be subject to export or import regulations in other countries. None of the Technology is being or will be acquired for, shipped, transferred, or re-exported, directly or indirectly, to proscribed or embargoed countries or their nationals and persons on the Table of Denial Orders, the Entity List or the List of Specifically Designated Nationals, unless specifically authorized by the U.S. Government for such purposes.
- Governing Law; Attorneys’ Fees. This Agreement will be governed by the laws of the United States and the State of California. The United Nations Convention on Contracts for the International Sale of Goods is specifically disclaimed. If either party brings an action to enforce or interpret this Agreement, the prevailing party will be entitled to recover reasonable attorneys’ fees and litigation costs and expenses in addition to any other appropriate relief.
- Remedies. Notwithstanding anything in this Agreement to the contrary, where a breach of certain provisions of this Agreement may cause either party irreparable injury or may be inadequately compensable in monetary damages, either party may seek equitable relief, including injunctive relief, in addition to any other remedies which may be available. The rights and remedies of the parties in this Agreement are not exclusive and are in addition to any other rights and remedies available at law or in equity.
- Assignment. Either party may freely assign or otherwise transfer all or any of its rights, or delegate or otherwise transfer all or any of its obligations or performance, under this Agreement without the other party’s consent, by operation of law, or as party of a merger, a sale of all or substantially all of the party’s assets to which this Agreement relates, or a business reorganization. This Agreement is binding upon and inures to the benefit of the parties hereto and their respective permitted successors and assigns. Any other assignment without the consent of the other party is void.
- Severability; Waiver. If any provision of this Agreement is found to be unenforceable, such provision will be deemed modified to the extent necessary to allow enforceability of the provision as so limited, being intended that Ceribell will receive the benefit contemplated herein to the fullest extent permitted by law, and the validity and enforceability of the remaining provisions will not be affected thereby. Failure of either party to require performance by the other party of any provision hereof will not affect the full right to require such performance at any time thereafter; nor will the waiver by either party of a breach of any provision hereof be taken or held to be a waiver of the provision itself.
- Entire Agreement. This Agreement, including all exhibits, is the final and complete expression of the agreement between the parties regarding Customer’s use of the Technology and Documentation and receipt of Support Services. Any Business Associate Agreement entered into by the parties is deemed attached as an exhibit to this Agreement. This Agreement supersedes, and the terms of this Agreement govern, all previous oral and written communications regarding these matters, all of which are merged into this Agreement, except that this Agreement does not supersede any prior nondisclosure or comparable agreement between the parties executed prior to entering into this Agreement. No employee, agent, or other representative of Ceribell or any vendor, reseller, or other person has any authority to bind Ceribell with respect to any statement, representation, warranty, or other expression unless the same is specifically set forth in this Agreement. No usage of trade or other regular practice or method of dealing between the parties will be used to modify, interpret, supplement, or alter the terms of this Agreement. This Agreement may be changed only by a written agreement signed by an authorized agent of the party against whom enforcement is sought. Ceribell will not be bound by, and specifically objects to, any term, condition or other provision that is different from or in addition to this Agreement (whether or not it would materially alter this Agreement) that is proffered by Customer in any purchase order, receipt, acceptance, confirmation, correspondence, or otherwise, unless Ceribell specifically agrees to such provision in writing and signed by an authorized agent of Ceribell.
- Relationship. Ceribell will be and act as an independent contractor (and not as the agent or representative of Customer) in the performance of this Agreement. This Agreement will not be interpreted or construed as: (a) creating or evidencing any association, joint venture, partnership, or franchise between the parties; (b) imposing any partnership or franchise obligation or liability on either party; or (c) prohibiting or restricting Ceribell’s performance of any services for any third party or the provision of products to any third party. Customer must not represent to anyone that Customer is an agent of Ceribell or is otherwise authorized to bind or commit Ceribell in any way without Ceribell’s prior authorization.
- Notices. Any notice required or permitted to be given in accordance with this Agreement will be effective if it is in writing and sent by certified or registered mail, or insured courier, return receipt requested, to the appropriate party at the address set forth on the applicable Order and with the appropriate postage affixed. Either party may change its address for receipt of notice by notice to the other party in accordance with this Section. Notices are deemed given two business days following the date of mailing or one business day following delivery to a courier.
- Force Majeure. Ceribell will not be liable for, or be considered to be in breach of or default under this Agreement on account of, any delay or failure to perform as required by this Agreement as a result of any cause or condition beyond Ceribell’s reasonable control, so long as Ceribell uses all commercially reasonable efforts to avoid or remove such causes of non-performance.
- Interpretation. For purposes of this Agreement, (a) the words “include”, “includes” and “including” will be deemed to be followed by the words “without limitation”; (b) the words “such as”, “for example”, “e.g.” and any derivatives of those words will mean by way of example and the items that follow these words will not be deemed an exhaustive list; (c) the word “or” is used in the inclusive sense of “and/or” and the terms “or,” “any,” and “either” are not exclusive; (d) the words “herein”, “hereof”, “hereby”, “hereto” and “hereunder” refer to this Agreement as a whole; (e) words denoting the singular have a comparable meaning when used in the plural, and vice-versa; and (f) whenever the context may require, any pronouns used in this Agreement will include the corresponding masculine, feminine or neuter forms, and the singular form of nouns and pronouns will include the plural, and vice versa. The headings set forth in this Agreement are for convenience of reference purposes only and will not affect or be deemed to affect in any way the meaning or interpretation of this Agreement or any term or provision hereof. Any law defined or referred to herein means such law as from time to time amended, modified or supplemented, including (in the case of statutes) by succession of comparable successor laws.
“Clarity”means functionality accessed via the Portal and/or a Recorder that uses a software based algorithm and related technology to analyze sections of EEG recordings that may correspond to electrographic seizures.
“Clarity Package” means a package that includes the following during the Clarity Subscription Term: (a) a Portal Subscription, (b) access to Clarity, and (c) provision of one or more Recorders.
“Clarity Subscription Term” means the period during which Customer’s Clarity Package is in effect.
“Firmware” means any firmware installed by or on behalf of Ceribell on a Recorder, including any upgrades, updates, bug fixes, and modified versions of the Firmware, as applicable, that may be provided to Customer by or on behalf of Ceribell.
“Headband” means a single-use, disposable headband made available by Ceribell for use with a Recorder.
“Order” means a quote, order form, or other ordering document or Product that expressly references this Agreement.
“Portal” means Ceribell’s cloud-based technology known as the “EEG Portal,” but does not include Clarity except to the extent Customer has obtained a separate subscription for or other package that expressly includes Clarity.
“Portal Subscription” means a subscription purchased by Customer that allows it to permit Authorized Users to access the Portal.
“Recorder” means a hardware recorder provided by or on be for use with the Portal and/or Clarity.
“Technology” means Recorders, Headbands, the Portal, Firmware, and Clarity.
NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED IN THIS AGREEMENT, CERIBELL WILL NOT BE LIABLE TO CUSTOMER FOR CONSEQUENTIAL, INCIDENTAL, SPECIAL, OR EXEMPLARY DAMAGES, INCLUDING BUT NOT LIMITED TO LOST PROFITS OR LOSS OF BUSINESS, ARISING OUT OF OR RELATED TO THIS AGREEMENT, EVEN IF APPRISED OF THE LIKELIHOOD OF SUCH DAMAGES OCCURRING. WITHOUT LIMITING THE FOREGOING, UNDER NO CIRCUMSTANCES WILL CERIBELL BE LIABLE FOR ANY LOSS OF DATA STORED IN, OR IN CONNECTION WITH, ANY TECHNOLOGY. UNDER NO CIRCUMSTANCES WILL CERIBELL’S TOTAL LIABILITY OF ALL KINDS ARISING OUT OF OR RELATED TO THIS AGREEMENT (INCLUDING BUT NOT LIMITED TO WARRANTY CLAIMS), REGARDLESS OF THE FORUM AND REGARDLESS OF WHETHER ANY ACTION OR CLAIM IS BASED ON CONTRACT, TORT, OR OTHERWISE, EXCEED THE TOTAL AMOUNT PAID BY CUSTOMER TO CERIBELL UNDER THE ORDER WITH RESPECT TO WHICH THE LIABILITY AROSE DURING THE 12 MONTHS IMMEDIATELY PRECEDING THE CLAIM (DETERMINED AS OF THE DATE OF ANY FINAL JUDGMENT IN AN ACTION).
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