This Main Services Agreement (the “Agreement“) is entered into as of [ REPLACE WITH DATE ] (“Effective Date“) by and between MyRoad.io, LLC, a Delaware limited liability company, with a principal place of business located at 104 East 600 South Suite 879, Heber City, UT 84032 (“MyRoad“) and [ REPLACE WITH FULL LEGAL NAME OF CUSTOMER ENTITY ] a [ REPLACE WITH TYPE OF ENTITY – LLC/CORP ], with a principal place of business located at [ REPLACE WITH CUSTOMER BUSINESS ADDRESS ] (“Customer“). All capitalized terms have the meanings set forth in the sections in which they are used or in Section 14 below.
WHEREAS MyRoad offers an integrated mobile technology Solution to its customers and end-users and Customer desires to use and access the Solution (as further defined herein);
WHEREAS the parties agree that the following terms and conditions shall apply to Customer’s use and access to the Solution;
NOW THEREFORE, in consideration of the mutual covenants and promises set forth herein, and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties agree as follows:
- Products.
1.1 Solution. MyRoad’s software solution combines the MyRoad proprietary software application with technology from MyRoad Suppliers in a multi-tenant cloud-based offering to create a combined solution (referred to herein collectively as the “Solution“). The Solution includes scanning and database technology from MyRoad Suppliers to provide a fully integrated solution, enabling blood flow-based measurement capabilities (“Opportunity Units“) combined with an Opportunity Engine, Dashboard and mobile SDK, as set forth in further detail in Exhibit A and the applicable Order Form. The Solution enables Individual Users to perform scans, generate and receive Measurements, and to transmit Measurements, using an Individual User’s mobile phone, to a cloud-based machine learning software application for analysis. The Solution provides data to the Individual User and to Customer to assist in identifying changing biomarker status while providing anonymized and aggregated statistical data to the Customer to enable effective and actionable financial planning and decision making.
- License Grant and Restrictions
2.1 Subscriptions and License. Customer and Customer End Users shall have the right to access and use the Solution on a pre-paid subscription basis (each a “Subscription“) subject to the terms and conditions of this Agreement. Each Subscription will be specified in an Order Form or similar document approved by the Customer and MyRoad (“Order Form“). The duration of each Subscription will be one year unless otherwise stated in the Order Form (“Subscription Term“). Subject to Section 2.2, MyRoad grants to Customer and Customer’s End Users a limited, non-exclusive, revocable, non-sublicensable, nontransferable, worldwide right and license to access and use the Solution and related Documentation during an applicable Subscription Term, for the Customer’s internal use and subject to the license restrictions set forth herein. Upon expiration of the Subscription Term, Customer’s right to access and use the Solution shall terminate.
2.2 Supplier Pass Through License Terms. Use of the MyRoad Solution is subject to pass through license terms applicable to certain Supplier technology as further described in Exhibit A.
2.3 License Restrictions. Use of the Solution is limited to the number of Opportunity Units and Authorized Users as set forth in the Order Form. Except as otherwise expressly permitted in this Agreement, Customer shall not itself, or allow any parent, subsidiary, affiliate, agent, End User, or other third party to: (a) sell, lease, license, lend, rent, distribute, sublicense or otherwise transfer in whole or in part, the Solution, any Supplier Services, or the Documentation to a third party or use the Solution or Supplier Services as an application service provider, service bureau, or rental source for any third parties.; (b) decompile, disassemble, translate, reverse engineer or otherwise attempt to derive source code, or determine any design, structure, concepts or construction method of, the Solution or of any Supplier Services; (c) allow access or permit use of the Solution or Documentation by any third party except authorized third-party contractors solely to provide services to Customer, provided that Customer shall be liable for all acts and omissions of such authorized third-party contractors; (d) circumvent any license keys embedded within the Solution or commit any act that may conflict with or adversely affect in any way the provision of Solution or Supplier Services; (e) modify or create derivative works based upon the Solution or Documentation; (f) disclose the results of any benchmark test of the Solution to any third party; or (g) change any proprietary rights notices which appear in the Solution or Documentation; (f) abuse, tamper with or fraudulently use the Solution or Supplier Services or permit or assist others to abuse, tamper with or fraudulently use the Solution or Supplier Services; (g) use the Solution of Supplier Services or permit or assist others to use the Solution or Supplier Services: (i) in any manner that conflicts with the Documentation or this Agreement, or that a reasonable person would recognize as interfering unreasonably with the Solution or Supplier Services, the provision thereof, or access to or use of the Solution or Supplier Services by other customers; (ii) for any purpose or in any manner directly or indirectly in violation of applicable Laws or in violation of any Third Party rights, including Intellectual Property Rights and privacy rights; or (iii) to falsely identify itself as a Third Party; (h) perform load or penetration tests in a production or test environment except as mutually agreed and scheduled in advance; however, MyRoad and its Suppliers reserve the right to reject any such performance of load or penetration tests requested in their discretion.
2.4 Customer Responsibilities. Customer represents and warrants that Customer shall not (a) use the Solution for purposes that are unlawful or for purposes that are not related to the intended use of the Solution or (b) breach any laws or regulations, including laws and regulation applicable to the retention, processing and transmission of personal information or protected health information.
2.5 Individual and Mobile End Users. Individual and Customer Users are required to acknowledge and accept the MyRoad End User License Agreement (“EULA“) that accompanies the mobile software application upon downloading and using the Solution.
2.6 Right to Suspend Services. In the event that any End User commits any act that materially and adversely impacts MyRoad or MyRoad Supplier’s systems or its ability to provide services, MyRoad reserves the right to suspend the delivery of the affected portion of the Supplier Services. MyRoad will provide prompt written notice to Customer of any such service suspension.
3. Professional Services. MyRoad or its authorized subcontractors may provide implementation, consulting, or other services (“Professional Services“) in relation to the Solution to Customer as specified in the applicable Order Form and described in a separate Statement of Work (“SOW“) containing applicable specifications. Each SOW shall be subject to the terms of this Agreement.
- Fees and Payment. Customer agrees to pay MyRoad the Fees as stated on the applicable Order Form. Customer will pay any taxes arising out of this Agreement or MyRoad’s performance under this Agreement, excluding taxes on MyRoad’s net income, which will be set forth on the applicable invoice. If any applicable law requires Customer to withhold amounts from any payments to MyRoad under this Agreement, (a) Customer shall effect such withholding, remit such amounts to the appropriate taxing authorities and promptly furnish MyRoad with tax receipts evidencing the payments of such amounts and (b) the sum payable by Customer upon which the deduction or withholding is based shall be increased to the extent necessary to ensure that, after such deduction or withholding, MyRoad receives and retains, free from liability for such deduction or withholding, a net amount equal to the amount MyRoad would have received and retained absent the required deduction or withholding. Unless otherwise set forth in the applicable Order Form, Fees shall be: (i) invoiced in full upon the effective date of the applicable Order Form, (ii) paid in US dollars, and (iii) paid immediately upon receipt of invoice. Payments are nonrefundable and shall be made without right of set-off or chargeback. If Customer does not pay the invoices when due, MyRoad may charge interest at one percent (1%) per month on the unpaid balance. If Customer fails to pay Fees in accordance with this Section, MyRoad may suspend fulfilling its obligations under this Agreement until such payment is received by MyRoad.
- Support Services. MyRoad shall provide Support Services to the extent described in the Order Form.
6. Ownership; Intellectual Property.
6.1 Solution. Subject to the limited license and rights expressly provided in this Agreement, MyRoad and the MyRoad Suppliers have and will retain all rights, title, and interest, including, without limitation, all patent, copyright, trademark, trade secret and other intellectual property rights in and to the Solution, the Supplier Services, the Documentation, and all copies, modifications, and derivative works thereof. Customer acknowledges that it is obtaining only a limited license right to use the Solution and that irrespective of any use of the words “purchase,” “sale,” or like terms hereunder, no ownership rights are being conveyed to Customer under this Agreement or otherwise. All rights in and to the Solution and Supplier Services not expressly granted to Licensee hereunder are reserved to MyRoad and its Suppliers.
6.2 Training Materials. Customer agrees and acknowledges that Customer is not obtaining any intellectual property rights in or to any training materials provided by MyRoad or any Supplier to Customer in connection with the provision to Customer of training related Professional Services (“Training Materials”), other than the rights of use specifically granted in this Agreement. Customer will be entitled to keep and use all Training Materials provided by MyRoad to Customer, but without any other license to exercise any of the intellectual property rights therein, all of which are hereby strictly reserved to MyRoad. In particular, and without limitation, Training Materials may not be modified, re-distributed, disclosed to third parties, lent, hired out, made available to the public, sold, offered for sale, shared, or transferred in any other way. All MyRoad trademarks, trade names, logos and notices present on the Training Materials will be preserved.
6.3 Customer Data. As between MyRoad and Customer, Customer shall have and retain all right, title and interest in and to any Customer Data, subject to any rights held by the Individual User in and to the Individual User’s Personal Data. Customer’s access, collection, use, or disclosure of Measurements and other Protected Health Information in connection with an Individual User’s use of the Solution, shall be limited to its anonymized de-identified form as aggregated data. Notwithstanding the foregoing, Health Care Provider Users may access Individual User’s PHI as authorized by an Individual User and subject to laws and regulations applicable to the processing of PHI.
6.4. Customer warrants and covenants to MyRoad and its Suppliers that if any Personal Data is provided to MyRoad or its Suppliers (including by uploading or transmitting in or through the Supplier Services), or from a Customer or an Individual User, that all disclosures have been provided by Customer, as applicable, and all consents have been obtained by Customer that are, in each case, required under applicable Law in respect of the collection, storage, use and disclosure of such Personal Data by MyRoad and its Suppliers in accordance with this Agreement.
- Warranties
7.1 Solution Warranty. MyRoad warrants to Customer only that, for the duration of the applicable Subscription period (the “Warranty Period“), the Solution shall substantially conform to the description contained in the applicable Documentation. If during the Warranty Period the Solution does not substantially conform to the description contained in the applicable Documentation, MyRoad shall perform the Support Services described in Exhibit B. MyRoad further warrants that if any Health Scan fails to register with the Solution due to an interruption of the service or an error caused by MyRoad or its Suppliers, a replacement Health Scan may be performed at no additional charge.
7.2 Services Warranty. MyRoad warrants to Customer that Services shall be performed in a professional and workmanlike manner. If the Services are not performed as set forth above, MyRoad shall re-perform the applicable Professional Services.
7.3 Remedies. The remedies in Sections 7.1 and 7.2 are Customer’s sole and exclusive remedies for breach of warranty.
7.4 No Guarantees. Subject to the warranty set forth in Section 7.1, MyRoad does not warrant or guarantee that the Solution will function without any disruptions, delay, or errors. MyRoad takes no responsibility for any disruption, interruption, or delay caused by any failure of or inadequacy of the Solution or any items over which MyRoad has no control.
7.5 The warranties in Sections 7.1 and 7.2 are made to and for the benefit of Customer only. The warranties shall apply only if: (i) the Solution has been properly installed and used at all times in accordance with the instructions in the applicable Documentation; (ii) no modification, alteration or addition has been made to the Solution; and (iii) MyRoad receives written notification of the breach, in the case of the warranty in Section 7.2, within thirty (30) days following the performance of the relevant Professional Services.
7.6 Disclaimer.
THE SOLUTION AND ALL RELATED PRODUCTS, SERVICES, DOCUMENTATION AND TRAINING MATERIALS ARE PROVIDED “AS-IS” AND, EXCEPT FOR THE WARRANTIES IN THIS SECTION 7, MYROAD AND MYROAD SUPPLIERS MAKE NO WARRANTIES OF ANY KIND. ALL ADDITIONAL CONDITIONS, REPRESENTATIONS AND WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT OF THIRD-PARTY RIGHTS, ACCURACY OF MEASUREMENTS OR OTHER OUTPUTS, OR THAT THE SOLUTION SHALL BE FREE OF FAULT OR INTERRUPTIONS, ARE HEREBY DISCLAIMED TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW.
ALL ADDITIONAL CONDITIONS, REPRESENTATIONS AND WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT OF THIRD-PARTY RIGHTS, ACCURACY OF MEASUREMENTS OR OTHER OUTPUTS, OR THAT THE SERVICES AND PRODUCTS SHALL BE FREE OF FAULT OR INTERRUPTIONS, ARE HEREBY DISCLAIMED TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW.
THE SOLUTION AND ANY SUPPLIER PRODUCTS OR SERVICES MAY BE SUBJECT TO LIMITATIONS OR ISSUES INHERENT IN THE USE OF THE INTERNET AND MYROAD AND ITS SUPPLIERS ARE NOT RESPONSIBLE FOR ANY PROBLEMS OR OTHER DAMAGE RESULTING FROM SUCH LIMITATIONS OR ISSUES. THE SOLUTION AND ANY SUPPLIER PRODUCTS AND SERVICES (1) ARE NOT A SUBSTITUTE FOR THE CLINICAL JUDGMENT OF A HEALTH CARE PROFESSIONAL; (2) ARE INTENDED TO IMPROVE AWARENESS OF GENERAL WELLNESS; AND (3) DO NOT DIAGNOSE, TREAT, MITIGATE OR PREVENT ANY DISEASE, SYMPTOM, DISORDER OR ABNORMAL PHYSICAL STATE. INDIVIDUALS SHOULD CONSULT WITH A HEALTH CARE PROFESSIONAL OR EMERGENCY SERVICES IF THEY BELIEVE THEY MAY HAVE A MEDICAL ISSUE.
- Indemnification.
8.1 MyRoad Indemnity. Subject to the terms of this Agreement, MyRoad shall (i) defend, or at its option settle, a third party claim brought against Customer alleging that the Solution infringes such third party’s patent, copyright or trademark, or makes intentional, unlawful use of such party’s trade secret (each, an “Infringement Claim”) and (ii) pay any settlement of such Infringement Claim consented to by MyRoad or pay any damages finally awarded against Customer to such third party by a court of competent jurisdiction as the result of such Infringement Claim; provided that Customer: (a) notifies MyRoad promptly in writing of such Infringement Claim, (b) grants MyRoad sole control over the defense and settlement of such Infringement Claim, and (c) reasonably cooperates in response to a MyRoad request for assistance. MyRoad will have the exclusive right to defend any such Infringement Claim and make settlements at its own discretion, and Customer may not settle or compromise such Infringement Claim, except with prior written consent of MyRoad.
If Customer’s use of any Solution is enjoined, MyRoad shall, at its option and expense, (A) procure for Customer the right to make continued use of the Solution, (B) replace or modify the Solution such so that it becomes non-infringing, or (C) request return of the Solution and upon receipt of Solution, the corresponding licenses shall terminate and MyRoad shall refund any prepaid but unused Fees paid for the infringing Solution.
MyRoad shall have no liability or obligations under this Section 8 if the alleged Infringement Claim arises from or is related to: (1) any combination with non-Solution products, data or business processes, (2) use for a purpose or in a manner for which the Solution was not designed, (3) use of any older release or version of the Solution when use of a newer version or revision would have avoided the infringement, (4) any modification or alteration of the Solution, (5) any intellectual property right owned or licensed by Customer, (6) MyRoad’s compliance with any materials, designs, specifications or instructions provided by Customer, or (7) Customer’s use of the Solution after MyRoad notifies Customer to discontinue use due to an alleged Infringement Claim. THIS SECTION 8 STATES CUSTOMER’S SOLE AND EXCLUSIVE REMEDY AND MYROAD’S ENTIRE LIABILITY FOR INFRINGEMENT CLAIMS.
8.2 Customer Indemnity. Customer shall defend, indemnify, and hold harmless, MyRoad and its Suppliers, and each of their directors, officers, agents, contractors, partners and employees, from and against any loss, liability, claim, demand, damages, costs and expenses, including reasonable attorney′s fees, arising out of or in connection with (a) Customer’s or any End User’s information transmitted to MyRoad or to a Supplier, or the use, access, or misuse of the Solution, (b) breach of Section 2 or any license rights provided in this Agreement by Customer or any End User; (c) use of the Solution for any unlawful purpose or otherwise in violation of any applicable law or regulation relating to the protection of Personal Data or (d) the Customer or any End User’s violation of any third party rights, including without limitation any intellectual property, property, or privacy right.
- Limitation of Liability.
9.1 NOTWITHSTANDING ANY OTHER PROVISION OF THIS AGREEMENT (i) IN NO EVENT WILL MYROAD OR ITS SUPPLIERS BE LIABLE UNDER THIS AGREEMENT FOR ANY INDIRECT, RELIANCE, PUNITIVE, CONSEQUENTIAL, SPECIAL, EXEMPLARY, OR INCIDENTAL DAMAGES OF ANY KIND AND HOWEVER CAUSED; (ii) IN NO EVENT WILL MYROAD OR ITS SUPPLIERS’ CUMULATIVE LIABILITY FOR ANY AND ALL CLAIMS ARISING IN CONNECTION WITH THIS AGREEMENT EXCEED THE LESSER OF US $10,000 OR THE FEES PAID BY CUSTOMER TO MYROAD UNDER THIS AGREEMENT FOR THE THREE MONTHS PRIOR TO WHEN THE CUSTOMER ALLEGING A BREACH OF CONTRACT OR OTHER CLAIM PROVIDES A NOTICE IN WRITING TO MYROAD THAT IT HAS OR WILL BRING A CLAIM ARISING HEREUNDER FOR WHICH IT SEEKS DAMAGES OR OTHER RELIEF.
9.2 THE LIMITATIONS AND EXCLUSIONS OF LIABILITY SET FORTH HEREIN IN THIS SECTION 9 (LIMITATION LIABILITY) SHALL APPLY REGARDLESS OF THE BASIS OF LIABILITY, WHETHER THE UNDERLYING ALLEGATIONS, ACTIONS, OR CLAIMS, ARE BASED IN TORT, INCLUDING NEGLIGENCE, CONTRACT, OR OTHER LEGAL THEORY. THE PROVISIONS OF THIS SECTION 9 ALLOCATE RISKS UNDER THIS AGREEMENT BETWEEN CUSTOMER, MYROAD AND MYROAD’S SUPPLIERS. THE PARTIES ACKNOWLEDGE THAT THEY HAVE ENTERED INTO THIS AGREEMENT IN RELIANCE UPON THE DISCLAIMERS OF WARRANTY AND THE EXCLUSIONS AND LIMITATIONS OF LIABILITY SET FORTH HEREIN, AND THAT THE SAME FORM AN ESSENTIAL BASIS OF THE BARGAIN BETWEEN THE PARTIES. THE FOREGOING LIMITATIONS, EXCLUSIONS AND DISCLAIMERS APPLY TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, EVEN IF ANY REMEDY FAILS IN ITS ESSENTIAL PURPOSE.
9.3 CUSTOMER AND END USERS, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, WAIVE THEIR RIGHT TO AND PROMISE NOT TO ASSERT ANY CLAIMS AGAINST MYROAD OR ITS SUPPLIERS, OR THEIR RESPECTIVE AFFILIATES, SUCCESSORS OR ASSIGNS, OR ANY OF THEIR RESPECTIVE OFFICERS, DIRECTORS, AGENTS, SUBCONTRACTORS, SUPPLIERS, OR EMPLOYEES (COLLECTIVELY, THE “RELEASED PARTIES”) RELATING TO: (I) ACCESS TO OR COLLECTION, USE OR DISCLOSURE OF, THE MEASUREMENTS OR OTHER INFORMATION COLLECTED IN CONNECTION WITH CUSTOMER OR AN END USER’S USE OF THE SOLUTION OR SUPPLIER SERVICES.
9.4 THE FOREGOING LIMITATIONS OF LIABILITY ARE EXPRESSLY FOR THE BENEFIT OF MYROAD AND MYROAD SUPPLIERS AND SHALL APPLY TO ANY CLAIMS BROUGHT AGAINST MYROAD’S SUPPLIER IN RELATION TO THE SOLUTION PROVIDED UNDER THIS AGREEMENT.
- Term and Termination.
10.1 Term of Agreement. This Agreement shall commence on the Effective Date and shall continue for three (3) years, unless terminated as set forth in this Section 10.1 (“Term”). Either party may terminate this Agreement upon written notice in the event that the other party materially breaches this Agreement and does not cure such breach within forty-five (45) days of receipt of written notice thereof. Upon termination of the Agreement for material breach, all Order Forms and Subscriptions shall terminate.
10.2 Subscriptions. During the Term, Customer may purchase Subscriptions from MyRoad by entering into an Order Form governed by the terms of the Agreement and paying the applicable Subscription Fees. Each Subscription shall begin on the date Customer purchases the Subscription and shall continue until the end of the Subscription Term as stated on the Order Form, unless terminated earlier in accordance with Section 10.1. Subscriptions may not be cancelled until the end of the Subscription Term and are non-refundable. Subscriptions shall automatically renew for additional terms of one (1) year each (each a “Renewal Subscription Term”) unless either party gives the other party written notice of its intent not to renew at least forty-five (45) days prior to the end of the then-current Subscription Term. Notwithstanding Section 10.1, in the event that a Subscription remains current at the expiration of the Agreement Term, such Subscription shall continue subject to the terms and conditions of the Agreement until the end of the applicable Subscription Term.
10.3 Rights and Obligations Upon Termination. The applicable licenses granted in Section 2 of this Agreement shall automatically terminate upon the termination of the underlying Subscription or this Agreement. MyRoad will return or destroy all Customer Data and Confidential Information and will certify destruction in writing to Customer upon request. the Customer shall immediately, but no later than within five (5) days as of such termination or written request, as applicable, (a) return any and all materials related to the Solution and provided to it by MyRoad, and destroy, delete, and uninstall from its computers, mobile devices, servers or any other applicable hardware, the Solution and any computer files or other materials in connection therewith and (b) upon request of MyRoad, certify in writing, that it has complied with the obligations set forth in this Section 10.6.
10.4 Survival. The rights and obligations set forth in Sections 6 through 14 shall survive the expiration or termination of this Agreement.
- Confidentiality. For a period of five (5) years from the date of disclosure of the applicable Confidential Information, the Receiving Party shall (i) hold the Confidential Information of the Disclosing Party in trust and confidence and avoid the disclosure or release of such Confidential Information to any other person or entity by using the same degree of care as it uses to avoid unauthorized use, disclosure, or dissemination of its own Confidential Information of a similar nature, but not less than reasonable care, and (ii) not use the Confidential Information of the Disclosing Party for any purpose whatsoever except as expressly contemplated under this Agreement; provided that, to the extent the Confidential Information is comprised of or constitutes trade secrets, including but not limited to software code, the Receiving Party agrees to protect such information for so long as it qualifies as a trade secret under applicable law. The Receiving Party shall disclose the Confidential Information of the Disclosing Party only to those of its employees and contractors having a need to know such Confidential Information and shall ensure that such employees and contractors comply with the provisions of this Section. The obligations under this Section shall not apply to information that the Disclosing Party can demonstrate (a) was in its possession at the time of disclosure and without restriction as to confidentiality, (b) at the time of disclosure is generally available to the public or after disclosure to the Receiving Party becomes generally available to the public through no breach of this Agreement or other wrongful act by the Receiving Party, (c) has been received from a third party without restriction on disclosure and without breach of this Agreement by the Receiving Party, or (d) is independently developed by the Receiving Party without regard to the Confidential Information. In addition, the Receiving Party may disclose Confidential Information as required to comply with binding orders of governmental entities that have jurisdiction over it, provided that the Receiving Party gives the Disclosing Party prompt notice thereof if the Receiving Party is legally permitted to do so. Notwithstanding anything to the contrary, Customer acknowledges and agrees that MyRoad, its employees and agents shall be free to use and employ their general skills, know-how, and expertise, and to use, disclose, and employ any generalized ideas, concepts, know-how, methods, techniques, or skills gained or learned during the course of any Subscriptions and Services performed under this Agreement.
- General.
12.1 Entire Agreement. This Agreement constitutes the entire agreement between the parties concerning its subject matter. No amendment, modification, or waiver, of any provision of this Agreement shall be effective unless in writing and signed by both parties. Purchase orders shall be for the sole purpose of defining quantities, prices, and describing the products and services to be provided under this Agreement and to this extent only are incorporated as a part of this Agreement and all other terms in purchase orders are rejected. This Agreement supersedes all prior or contemporaneous discussions, proposals and agreements between the parties relating to the subject matter of this Agreement.
12.2 Severability. If any provision of this Agreement is held to be invalid or unenforceable, the remaining portions shall remain in full force and effect and such provision shall be enforced to the maximum extent possible to effect the intent of the parties and shall be reformed to the extent necessary to make such provision valid and enforceable.
12.3 Waiver. No waiver of rights by either party may be implied from any actions or failures to enforce rights under this Agreement.
12.4 Force Majeure. Neither party shall be liable to the other for any delay or failure to perform due to causes beyond its reasonable control (excluding payment of monies due).
12.5 Third-Party Beneficiaries. Unless otherwise specifically stated, the terms of this Agreement are intended to be, and are solely for, the benefit of the parties, and do not create any right in favor of any third party.
12.6 Governing Law and Jurisdiction.
12.6.1 This Agreement shall be governed by the laws of the State of California, without reference to the principles of conflicts of law. Subject to Section 12.6.3 (Arbitration), any litigation related to this Agreement shall be brought in the state or federal courts located in San Francisco, California, and only in those courts and each party irrevocably waives any objections to such venue.
12.6.2 The provisions of the Uniform Computerized Information Transaction Act and United Nations Convention on Contracts for the International Sale of Goods shall not apply to this Agreement. The parties shall attempt to resolve any dispute related to this Agreement informally, initially through their respective management, and then by non-binding mediation to take place in the applicable jurisdiction.
12.6.3 Arbitration. Any dispute, controversy or claim arising out of or relating to this contract, including the formation, interpretation, breach or termination thereof, including whether the claims asserted are arbitrable, will be referred to and finally determined by arbitration in accordance with the JAMS International Arbitration Rules. The Tribunal will consist of one arbitrator. The place of arbitration will be San Francisco, California. The language to be used in the arbitral proceedings will be English. Judgment upon the award rendered by the arbitrator may be entered in any court having jurisdiction thereof.
12.7 Notices. Notices under this Agreement shall be sufficient only if in writing and personally delivered, delivered by a major commercial courier service, or mailed by certified or registered mail, return receipt requested. Notices to MyRoad shall be addressed to the following address: MyRoad.io, LLC, Attn: Legal Dept., 21 Orinda Way, C-214, Orinda, CA 94563. Notices to Customer may be addressed to the address set forth in the introductory paragraph to this Agreement or to the address listed in an applicable Order Form.
12.8 Government Regulation. Customer acknowledges that the Solution may be subject to export restrictions, including by the U.S. government and import restrictions by certain foreign governments. Customer may not export or re-export the Solution except in compliance with the U.S. Export Administration Act and the related rules and regulations and similar non-U.S. government restrictions, if applicable. Customer shall not and shall not allow any third-party to remove or export from the United States or allow the export or re-export of any part of the Solution or any direct product thereof: (i) into (or to a national or resident of) any embargoed or terrorist-supporting country; (ii) to anyone on the U.S. Commerce Department’s Table of Denial Orders or U.S. Treasury Department’s list of Specially Designated Nationals; (iii) to any country to which such export or re-export is restricted or prohibited, or as to which the U.S. government or any agency thereof requires an export license or other governmental approval at the time of export or re-export without first obtaining such license or approval; or (iv) otherwise in violation of any export or import restrictions, laws or regulations of any United States or foreign agency or authority. Customer agrees to the foregoing and warrants that it is not located in, under the control of, or a national or resident of any such prohibited country or on any such prohibited party list. The Solution is further restricted from being used for terrorist activity, or for the design or development of nuclear, chemical, or biological weapons or missile technology without the prior permission of the U.S. government. The Solution and accompanying Documentation are deemed to be “commercial computer software” and “commercial computer software documentation”, respectively, pursuant to DFAR Section 227.7202 and FAR Section 12.212(b), as applicable. Any use, modification, reproduction, release, performing, displaying, or disclosing of the Solution and Documentation by the U.S. Government shall be governed solely by the terms of this Agreement.
12.9 Audit Rights. During the Term and for one (1) year following termination or expiration of this Agreement (but no more than once in a calendar year), MyRoad and its auditors may inspect Customer’s records relating to its reproduction and use of the Solution for the purposes of verifying Customer’s compliance with this Agreement. Customer shall cooperate fully with MyRoad and its auditors in conducting audits and provide reasonable assistance. If an underpayment is discovered, Customer shall promptly pay such amount. If an underpayment of more than ten percent (10%) for the period audited is discovered, Customer shall promptly reimburse MyRoad for the cost of the audit.
- Data Security and Privacy.
13.1 MyRoad Obligations. MyRoad will implement reasonable security measures, including, without limitation, technical, physical, administrative, and organizational controls, designed to maintain the confidentiality, security, and integrity of the Customer’s Confidential Information and the Personal Data of its End Users. Access to End Users’ Personal Data will be in accordance with MyRoad’s Privacy Policy (available at https://myroad.io/privacy ).
13.2 Customer Warranty and Covenant. Customer warrants and covenants to MyRoad and its Suppliers that if any Personal Data is provided to MyRoad or its Suppliers (including by uploading or transmitting in or through the NuraLogix Services), or from a Customer or an End User, that all disclosures have been provided by Customer to End Users, as applicable, and all consents have been obtained by Customer that are, in each case, required under applicable Law in respect of the collection, storage, use and disclosure of such Personal Data by MyRoad and its Suppliers in accordance with this Agreement.
- Definitions.
In this Agreement, capitalized terms shall have the meanings indicated in this Section. Other capitalized terms used in this Agreement have the meanings assigned where they first appear. All defined terms include both plural and singular.
“Affiliate” means any person or entity, that directly or indirectly, is in control of, is controlled by, or is under common control with another person or entity. For purposes of this definition, “control ” means the power, direct or indirect, to direct or cause the direction of the management and policies of an entity, whether by contract or otherwise; and the terms “controlling” and “controlled” have meanings correlative to the foregoing.
“Applicable Data Protection Laws” means any and all applicable U.S. and international data protection and privacy laws, ordinances, statutes, regulations, guidance, and other binding restrictions, as amended or replaced from time to time, to which the Personal Data is subject either directly or indirectly.
“Authorized Users“, “End Users” or “Users” mean the persons licensed to access and use the Solution and Services as permitted under an Order Form and as authorized by Customer.
“Claim” means any civil, criminal, administrative, regulatory, arbitral or investigative demand, action, suit or proceeding, or any other claim, allegation, or demand.
“Confidential Information” means any and all information or materials in every form or media, disclosed or made available by one party to the other party in connection with the transactions contemplated under this Agreement, including (i) all trade secrets, (ii) existing or contemplated products, services, designs, technology, processes, technical data, engineering, techniques, methodologies, concepts, software, and any related information, (iii) information relating to business plans, sales or marketing methods and customer lists or requirements, and (iv) Personal Information.
“Customer Data” means data provided to MyRoad by Customer or data generated by the Solution for Customer’s use consisting of anonymized and de-identified Scan results that are further processed in the MyRoad Opportunity Engine and reside in the Customer’s MyRoad structured database. Data consisting of protected health information of End Users shall remain the data of the applicable End User.
“Customer Admin User” or “Admin User” an End User that is an employee or authorized agent of Customer authorized to administer the MyRoad database(s) including administering access and use by Health Care Provider Users, Customer Users, and Individual Users, on behalf of Customer.
“Customer User”, means an End User that is an employee or authorized agent of the Customer, licensed to access and use the MyRoad Solution on behalf of Customer to view aggregated and anonymized data derived from Measurements.
“Data Subject” refers to a “data subject”, “consumer”, or other similar term designated under Applicable Data Protection Laws and, at a minimum, means an identifiable natural person including Customer End Users, employees, contractors, vendors, and/or agents.
“Disclosing Party” means the party to this Agreement disclosing Confidential Information to the other party.
“Documentation” means the electronic user and administrative manuals regarding the Solution, contained within the Solution or otherwise published and provided to Customer, including information provided to Customer by MyRoad with any Solution Updates.
“Error” means a reproducible failure of the Solution to comply in a material respect with the Documentation when used as authorized by terms of the Agreement.
“Fees” mean the fees to be paid by Customer for Subscriptions and related services as set forth in the applicable Order Form.
“Health Care Provider User” means an End User that is a licensed medical practitioner authorized to view Individual User scan data and Measurements, who may be an employee or authorized agent of the Customer, licensed to access and use the MyRoad Solution, subject to applicable laws and regulations including HIPAA.
“Health Scan” or “Scan” means a single scan performed by an End User using the mobile application to extract the blood flow signal and which is uploaded and then further processed by the Opportunity Engine database.
“Individual User” means an individual licensed to use the MyRoad Solution to perform personal Scans and view the resulting Measurements via the Mobile Application or in the Opportunity Engine database.
“NuraLogix” means NuraLogix Corporation, a corporation incorporated under the laws of Ontario, Canada, and its Affiliates.
“NuraLogix Services” means the services, software, and technology solutions provided by NuraLogix as described in Exhibit A, including but not limited to the DeepAffex Solution and Mobile SDK.
“Opportunity Units” means a scan that is processed in the Opportunity Engine enabling the creation of population and individual risk stratification, historical and real time trending, segments into cohorts with 20 possible outcomes per unit.
“Opportunity Engine” means the logic and algorithms that processes a scan and generates actions or tasks on each Opportunity Unit.
“Order Form“ means a document subject to this Agreement setting forth an order by Customer to purchase Subscriptions to access and use the Solution or Services from MyRoad and accepted by the parties.
“Partner Admin User” means an End User that is an employee or authorized agent of a MyRoad partner authorized to administer the MyRoad database(s) on behalf of the end Customer including administering Health Care Provider Users, Customer Users, and Individual Users.
“Personal Data” means “personal information”, “personal data,” “sensitive personal data,” “personally identifiable information,” “personal information,” “sensitive personal information,” “non-public personal information (NPPI),” or “protected health information (PHI)” as defined under Applicable Data Protection Laws and, at a minimum, means any data that can be used to directly or indirectly identify a Data Subject.
“Products” means the products licensed or provided for use under Subscription by MyRoad to Customer.
“Professional Services” means consulting, implementation, or training services that may be provided by MyRoad to the Customer under this Agreement as specified in an Order Form or SOW.
“Receiving Party” means the party to this Agreement receiving Confidential Information from the other party.
“Salesforce.com” or “SFDC” means Salesforce.com as defined further in the SFDC Terms of Use.
“Service(s)” means the Support Services and the Professional Services provided by MyRoad or its authorized subcontractors as applicable.
“SFDC Terms of Use” means the “SFDC Terms of Use (Applies to OEM Partner)” published by SFDC at the following URL (or such successor URL as may be published by SFDC from time to time): https://www.salesforce.com/company/legal/agreements.jsp
“Statement of Work” or “SOW” means a schedule or similar writing setting forth the scope, specifications, and other details for Professional Services.
“Subscription” means the right to access and use the Solutions and Services for a set duration of time as set forth in an applicable Order Form and subject to the terms and conditions of this Agreement.
“Supplier(s)” means the technology partners of MyRoad that provide components of the Solution under license to MyRoad, including but not limited to NuraLogix, Salesforce.com, and their respective Affiliates.
“Support Services” mean the maintenance and support services provided by MyRoad under this Agreement as further described in Exhibit B.
“Update” means an update to the Solution made available by MyRoad as part of the Support Services or in relation to the solution purchased under the applicable Subscription.
“Upgrade” means an upgrade to the Solution made available by MyRoad during a Subscription Term that includes net new or upgraded functionality.
[Signature Page Follows]
IN WITNESS WHEREOF, intending to be bound, the duly authorized representatives of the parties hereto have executed this Agreement as of the Effective Date.
MyRoad.io Customer
By: By:
Name: Name:
Title: Title:
Date: Date:
EXHIBIT A
SOLUTION SPECIFICATIONS – SUPPLIERS
The Solution combines the MyRoad software application with DeepAffex scanning technology from NuraLogix and database technology from Salesforce.com to provide a fully integrated solution.
- DeepAffex enables facial blood flow-based measurement capabilities and includes the DeepAffex SaaS Engine, DeepAffex Dashboard and DeepAffex Mobile SFDC Services provide the core database functionality.
- The DeepAffex SaaS Engine is a cloud-based engine that processes the encrypted extracted facial blood flow data received through an API to return and store the End User’s measurement results. The End User is logically separated from other End User Data generated by other customers.
- The DeepAffex Dashboard is web-based platform that interfaces with the DeepAffex SaaS Engine and can be used for tasks including assigning user roles; viewing, managing and exporting End User data; administering device licenses; viewing measurement usage; and billing.
- The DeepAffex Platform includes the Mobile SDK for the purpose of accelerating the integration of the MyRoad Solution with the DeepAffex SaaS Engine. The SDK contains the software components to extract the facial blood flow signal from a video input as well as the API used to interact with the DeepAffex SaaS Engine. The Mobile SDK contains these software components for the Android and iOS platforms included as native libraries and native source code. Additionally, the Mobile SDK includes the measurement capabilities from the Anura Mobile Application (including camera-control, exposure optimization, constraints, and the measurement user-interface) as well as a functional sample application. The Mobile SDK does not provide a user-interface for displaying measurement results other than example source-code for a primitive line-oriented output to a text-console. Licensee is responsible for developing a suitable user-interface for presenting measurement results incorporating its branding, styling, theme and workflow.
EXHIBIT A-1
SUPPLIER PASS THROUGH LICENSE TERMS
MyRoad Supplier’s software license terms and conditions apply to use of the Solution. In addition to the terms and conditions of this Agreement, Supplier pass through license terms and terms of use apply to use of the applicable Supplier Services.
(1) Salesforce License. Use of SFDC Services is governed by the SFDC Terms of Use (Applies to OEM Partner)” published by SFDC at the following URL (or such successor URL as may be published by SFDC from time to time): https://www.salesforce.com/company/legal/agreements.jsp SFDC shall be entitled to the benefit of, and the right to enforce, the SFDC Terms of Use. The SFDC Terms of Use neither govern any services that Customer acquires directly from SFDC nor supersedes the SFDC MSA.
(2) Nuralogix License. Customer and End User are granted access to and use of the Nuralogix Services comprising the DeepAffex SaaS Engine solely to capture blood flow information from their face for analysis and measurement, and solely in conjunction with and part of the MyRoad Solution.
In addition, both SFDC and Nuralogix shall be deemed a third-party beneficiary of this Agreement and shall have the right to enforce the rights and privileges set forth in this Agreement as if in direct privity with Customer or a Customer End User. With respect to any Supplier Service, in the event of a conflict between the terms of this Agreement and the terms of any Supplier license terms, the Supplier license terms shall prevail.
