TERMS AND CONDITIONS

Last Revised: February 23, 2024

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 as described in the invoice or other billing statement(s) as issued by Ceribell (collectively, the “Products”).

BY SUBMITTING A PURCHASE ORDER IN RESPONSE TO A PRODUCT QUOTE, USING THE PORTAL (DEFINED BELOW), OR OTHERWISE INDICATING YOUR ACCEPTANCE OF THIS AGREEMENT, YOU ARE ACTING ON BEHALF OF THE ORGANIZATION, COMPANY, OR OTHER LEGAL ENTITY THAT WILL USE THE PRODUCTS (“CUSTOMER”); AND (B) REPRESENTING THAT YOU HAVE THE AUTHORITY TO BIND CUSTOMER TO THIS AGREEMENT.

  1. DEFINITIONS; STRUCTURE
    1. Definitions
      • “Authorized Users” means the employees and contractors of Customer permitted to access and use the technology on behalf of Customer.
      • “ClarityTM” and “ClarityProTM” mean a software based algorithm and related technology access via the Portal and/or Recorder to automatically identify areas of potential seizure activity (the “Software”).
      • “Subscription Package” includes the (a) a Portal Subscription, (b) access to Software, and (c) provision of one or more Recorders.
      • “Software Subscription Term” means the period during which Customer’s Subscription Package is in effect.
      • “Documentation” includes 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.
      • “Firmware” means any embedded software program installed by or on behalf of Ceribell on a Recorder, including any upgrades, updates, bug fixes, and modified versions thereof, as applicable, that may be provided to Customer.
      • “Headband” means a single-use, disposable headband with electrodes for use with a Recorder.
      • “Order” means a quote, order form, or other ordering document for Products that expressly references this Agreement.
      • “Portal” is a cloud-based technology platform for access to the Software. The Portal does not include Software except to the extent Customer has obtained a separate Software subscription.
      • “Portal Subscription” means a license purchased by Customer that allows Authorized Users to access the Portal.
      • “Recorder” means a hardware recorder provided by or on behalf of Ceribell for use with the Portal and/or Software.
      • “Software” includes Clarity and ClarityPro.
      • “Technology” means Recorders, Headbands, the Portal, Firmware, and Software.
    2. Technology and Services; Orders. Each Order is subject to the terms of, and is deemed incorporated into, this Agreement. The Subscription 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 and access to such features or functionality may require payment of additional fees or the purchase of additional licenses or access rights.
    3. Subscription Term. The initial term of each Portal Subscription and Subscription Package will be as specified on the applicable Order (or, if no term is specified, one year) (the “Initial Term”) and, unless either party provides the other with at least thirty (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 Subscription Package, as applicable). Renewal of any Portal Subscription or Subscription Package, as applicable, may be conditioned on and subject to Customer’s agreement to changes to this Agreement. Customer may provide notice of non-renewal by emailing Ceribell at orders@ceribell.com. Customer’s access to the Portal and/or Software may be automatically disabled upon expiration of the Subscription Term.
  2. USE OF TECHNOLOGY AND DOCUMENTATION
    1. Use of Portal and Software. Authorized Users may access and use the Portal and/or Software 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. 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.
    2. 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) Documentation solely in support of its authorized use of the Technology in accordance with this Agreement. All Recorders and Headbands are provided to Customer solely for use by Customer in connection with the Portal, and Software. All Recorders and Headbands are shipped Incoterm FOB Ceribell’s point of shipment.
    3. Additional Subscription Package Terms. The applicable Order will specify how many Recorders will be provided to Customer as part of any Subscription Package. For Subscription Packages, Customer and Authorized Users will not utilize the Technology outside of the hospital department(s) specified in the Order.
    4. Loaned Recorders. Recorders that will be provided to Customer on a temporary basis (“Loaned Recorders”), are 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 $2,500 for the cost of loss, damage, or destruction. Customer will, at all times, keep the Loaned Recorders in its control.
    5. 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, and (b) data that is generated and made available to Customer by any Technology through use of the data (“Customer Data”). Customer hereby grants Ceribell a non-exclusive, worldwide, royalty-free, fully paid, sublicensable, fully transferable, irrevocable license to use, process, transmit, store, and disclose (but not sell) the Customer Data: (i) for the purpose of exercising Ceribell’s rights and performing its obligations under this Agreement and (ii) in a form that does not identify Customer as the source thereof, for its business purposes, including to develop and improve Ceribell’s products and services.
    6. 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 Products 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.
    7. Feedback. If Customer provides any feedback to Ceribell concerning the functionality and performance of any Technology or Documentation (including 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.
    8. 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 will notify Ceribell immediately via email to legal@ceribell.com if it becomes aware of any unauthorized activity or use of the Technology in violation of this Agreement.
  3. FEES AND PAYMENTS
    1. 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 Subscription Package. With respect to Portal Subscriptions and Subscription Packages, the fees for each renewal term will be Ceribell’s then-current fees.  Notice will be provided at least 30 days prior.  Fees for Technology are due in advance as specified in the applicable Order, and Customer will pay all amounts due within thirty (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, if applicable, resulting from this Agreement.
  4. TERM AND TERMINATION
    1. Termination for Convenience.  Either party may terminate this Agreement for convenience and without cause at any time by giving the other party thirty (30) days’ prior written notice designating the termination date
    2. Termination for Material Breach. Either party may terminate this Agreement or one or more Orders if the other party breaches its material obligations and does not cure the material breach of this Agreement or the applicable Order(s) within thirty (30) days of receiving written notice of the material breach from the non-breaching party. Termination in accordance with this Section 4.2 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 thirty (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 4.2, 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.
    3. 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.
    4. 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, 7, and 8 will survive; and (c) if Customer has a Subscription 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, upon request,  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 Order Management at 360 N. Pastoria Avenue, Sunnyvale CA 94085 within fourteen (14) days of the termination date. Customer assumes all risk of loss, damage, theft, or destruction of Loaned Recorders during shipping until received by Ceribell.
  5. WARRANTIES AND DISCLAIMER
    1. Warranty. Ceribell warrants to Customer that the Recorders will be free from material defects in the materials and workmanship (the “Recorder Warranty”) (a) for a period of three years 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.
    2. Disclaimer. THE UNITED NATIONS CONVENTION ON CONTRACTS FOR THE INTERNATIONAL SALE OF GOODS IS SPECIFICALLY DISCLAIMED.  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.
  6. LIMITATIONS OF LIABILITY
    • 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).
  7. INDEMNIFICATION
    • Ceribell agrees to defend, indemnify and hold harmless Customer, its parent, any subsidiary or affiliate companies and their respective successors, assigns, agents and employees, officers and directors from and against any and all claims, losses, damages, liabilities, costs and expenses (including attorneys’ fees) arising out of: (a) any defect in the Product; (b) any claim or finding by any federal, state or local government, agency or instrumentality or any other party that the Product is not as represented or warranted by Ceribell; and (c) the infringement or alleged infringement of any United States patent, trademark or copyright or other proprietary rights of any third party.
  8. GENERAL
    1. Export Control. 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 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.
    2. Attorneys’ Fees. 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.
    3. 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.
    4. 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.
    5. 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, 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.
    6. 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 technical support services. Any Business Associate Agreement entered into by the parties is deemed attached as an exhibit to this Agreement and incorporated by this reference. 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 previously executed nondisclosure or similar agreement between the parties. No usage of trade or other regular method of dealing between the parties will modify, interpret, supplement, or alter the terms of this Agreement. This Agreement may be changed only by a written agreement signed by authorized agents of both parties. 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 that is proffered by Customer in any purchase order, receipt, acceptance, confirmation, correspondence, or otherwise, unless Ceribell specifically agrees to such provision in a writing signed by an authorized agent of Ceribell.
    7. Relationship. Ceribell is an independent contractor and not an agent or representative of Customer in the performance of this Agreement. This Agreement does not: (a) create or evidence any association, joint venture, partnership, or franchise between the parties; (b) impose any partnership or franchise obligation or liability on either party; or (c) prohibit or restrict Ceribell’s performance of services for, or the provision of Products to, any third party.
    8. 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. 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.
    9. 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 commercially reasonable efforts to avoid or remove such causes of non-performance.

*****