Table of contents
Software License Agreement
END-USER LICENSE AGREEMENT (EULA) FOR THE IOMETE PLATFORM.
This Software License Agreement (“Agreement”) governs the installation and use of the IOMETE platform software (the “Software”) provided by IOMETE INC. (“IOMETE”). The Software is licensed to customers and installed within infrastructure controlled by the customer (“Customer Environment”). The Software is not provided as a hosted or software-as-a-service (SaaS) offering.
By installing, accessing, or using the Software, Customer agrees to be bound by this Agreement.
Deployment Model
The IOMETE platform is provided as self-hosted enterprise software.
The Software is installed and operated within infrastructure controlled by the customer, including customer-managed cloud infrastructure, private cloud environments, or on-premise systems. IOMETE does not host, operate, or manage the infrastructure on which the Software runs.
The Software processes Customer Data exclusively within the Customer Environment.
Operational Responsibility
Customer acknowledges that the performance, availability, and security of the Software depend on the configuration and operation of the Customer Environment.Customer is responsible for provisioning and maintaining the Customer Environment, including:
• infrastructure
• networking
• runtime configuration
• security controls.
IOMETE is not responsible for outages, downtime, data loss, or security incidents resulting from failures or misconfiguration of customer infrastructure, cloud services, or other third-party systems.
Acceptance of Agreement
BY INDICATING YOUR ACCEPTANCE OF THIS AGREEMENT OR BY INSTALLING, ACCESSING, OR USING ANY IOMETE SOFTWARE, YOU AGREE TO BE BOUND BY ALL TERMS AND CONDITIONS OF THIS AGREEMENT.
IF YOU DO NOT AGREE TO THESE TERMS AND CONDITIONS, YOU MAY NOT INSTALL OR USE THE SOFTWARE. YOU AGREE THAT THIS AGREEMENT IS ENFORCEABLE LIKE ANY WRITTEN AGREEMENT SIGNED BY YOU.
IF YOU ARE USING THE SOFTWARE AS AN EMPLOYEE, CONTRACTOR, OR AGENT OF A CORPORATION, PARTNERSHIP, OR OTHER LEGAL ENTITY, YOU REPRESENT AND WARRANT THAT YOU HAVE THE AUTHORITY TO BIND THAT ENTITY TO THIS AGREEMENT.
AGREEMENT
These IOMETE Software License Terms (“Agreement”) are entered into by and between IOMETE INC. (“IOMETE”) and the entity or person (other than a Reseller) placing an order for, installing, accessing, or using any IOMETE software offerings (“Customer” or “you”).
This Agreement consists of the terms and conditions set forth below and any attachments, addenda, or exhibits referenced in this Agreement, as well as any Order Forms that reference this Agreement.
The “Effective Date” of this Agreement is the earlier of:
(a) Customer’s initial installation, access, or use of any IOMETE Software, or
(b) the effective date of the first Order Form referencing this Agreement.
This Agreement governs Customer’s initial use of the Software on the Effective Date as well as any future purchases made by Customer through Order Forms that reference this Agreement.
Modifications to this Agreement
From time to time, IOMETE may modify this Agreement. Unless otherwise specified by IOMETE, changes will become effective for Customer upon renewal of the then-current License Term or upon the effective date of a new Order Form after the updated version of this Agreement becomes effective.
IOMETE will use reasonable efforts to notify Customer of material changes through communications via Customer’s account, email, or other reasonable means. Customer may be required to accept the modified Agreement before renewing a License Term or entering into a new Order Form. In any event, continued installation, access, or use of the Software after the updated version of this Agreement becomes effective constitutes Customer’s acceptance of the updated version.
1.
Use of Service
1.1.
Software Provision and License. IOMETE will provide the Software to Customer for installation and use during the applicable Subscription Term solely for use by Customer and its Users in accordance with the terms and conditions of this Agreement, the Documentation, and the applicable Order Form. Customer may permit its Contractors and Affiliates to serve as Users, provided that any use of the Software by such Contractors or Affiliates is solely for the benefit of Customer or such Affiliate. Customer shall be responsible for each User’s compliance with this Agreement. Subject to the terms of this Agreement, IOMETE grants Customer a limited, non-transferable, non-sublicensable, non-exclusive license during the Subscription Term to install and use the Software in object code form within the Customer Environment solely for Customer’s internal business purposes and in accordance with the Documentation and applicable Order Form.
1.2.
Affiliates. Customer Affiliates may purchase licenses for the IOMETE Software from IOMETE or an IOMETE Affiliate by executing an Order Form that references this Agreement.
Each such Order Form will establish a separate agreement between the Customer Affiliate and the IOMETE entity executing the Order Form.
If a Customer Affiliate resides in a different country than Customer, the applicable Order Form may include modifications to terms applicable to the relevant transaction, including but not limited to tax provisions and governing law. Each Customer Affiliate will be bound by the terms of this Agreement as if it were the Customer.
1.3.
Compliance with Applicable Laws. IOMETE will provide the IOMETE Offerings in accordance with its obligations under laws and government regulations applicable to IOMETE’s provision of such services to its customers generally, including, without limitation, those related to data privacy and data transfer, international communications, and the exportation of technical or personal data, without regard to Customer’s particular use of the services and subject to Customer’s use of the services in accordance with this Agreement.
1.4.
Sample Data; Third-Party Applications. IOMETE may make sample or demonstration data (“Sample Data”) available to Customer for use with the Software. Customer acknowledges that Sample Data is provided for illustrative purposes only and may not be complete, current, or accurate. Customer will not, and will not permit any third party to, copy, export, distribute, or use Sample Data except as permitted for demonstration or evaluation purposes in connection with the Software. IOMETE may require Customer to cease using Sample Data or delete such Sample Data at any time upon reasonable notice. The Software may include functionality that allows Customer to connect to, integrate with, or access third-party applications, services, or software (“Third-Party Applications”). Any procurement or use of Third-Party Applications is solely between Customer and the applicable third-party provider. IOMETE does not control and is not responsible for any Third-Party Applications, and IOMETE disclaims all liability arising from Customer’s use of or reliance on any Third-Party Applications.
1.5.
Customer-Controlled Data Sharing Functionality.
(a)
Generally. The Software includes functionality that allows Customer, at its option and in its sole discretion, to share Customer Data with other Customer-designated users or organizations and to access data shared by other customers, as further described in the Documentation.
In this context:
the customer sharing data is referred to as a “Provider”, and the customer accessing or using shared data is referred to as a “Consumer.”
(b)
When Customer is Provider. When Customer acts as a Provider, Customer may grant Consumers access to designated sets of Customer Data as described in the Documentation. Provider acknowledges and agrees that: Consumers will have the access permissions granted by Provider, including the ability to view, download, or query shared Customer Data as configured by Provider; IOMETE does not control and is not responsible for the actions of Consumers with respect to Customer Data shared by Provider; and Provider remains solely responsible for determining whether sharing Customer Data with Consumers is appropriate and for managing access permissions.
(c)
When Customer is Consumer. When Customer acts as a Consumer and accesses data shared by a Provider, Customer acknowledges and agrees that: IOMETE has no responsibility or liability for the content, accuracy, or use of any data shared by a Provider; and the Software may record information regarding Consumer’s access to shared data, including identifying information about Consumer, and may make such information available to the applicable Provider.
(d)
Reader Accounts. When Customer acts as a Provider, Customer may authorize third parties that are not IOMETE customers (“Read-Only Consumers”) to access shared Customer Data through read-only accounts (“Reader Accounts”) using mechanisms provided by the Software, as described in the Documentation.
Customer agrees that:
(1)
Customer is responsible for any usage associated with Reader Accounts;
(2)
Reader Accounts may only access Customer Data explicitly shared by Customer;
(3)
Read-Only Consumers must submit support requests in accordance with the applicable Support Policy;
(4)
Customer represents and warrants that it has the right to share with IOMETE any personal information relating to Read-Only Consumers that Customer provides to IOMETE;
(5)
Customer is responsible for any acts or omissions of Read-Only Consumers in connection with their use of Reader Accounts as if such acts or omissions were those of Customer; and
(6)
Customer will defend, indemnify, and hold harmless IOMETE from and against any claims, damages, liabilities, costs, and expenses (including reasonable attorneys’ fees) arising from or related to the actions or omissions of Read-Only Consumers in their use of Reader Accounts.
1.6.
General Restrictions. Customer shall not, and shall not permit any third party to:
(a) sell, rent, lease, license, distribute, sublicense, provide access to, or otherwise make the Software available to any third party, except as expressly permitted by this Agreement, the Documentation, or an applicable Order Form;
(b) use the Software to provide a service bureau, managed service, or other outsourced data processing or data warehousing service for the benefit of a third party;
(c) reverse engineer, decompile, disassemble, or otherwise attempt to derive the source code of the Software or access any non-public APIs, except to the extent such restriction is prohibited by applicable law and only upon prior written notice to IOMETE;
(d) remove, alter, or obscure any proprietary notices, trademarks, or copyright notices contained in the Software or Documentation; or
(e) use the Software in violation of the Acceptable Use Policy or any applicable laws or regulations.
1.7.
Preview Service Terms. IOMETE may make available to Customer certain products, features, or software components that are not yet generally available and that may be identified as “private preview,” “public preview,” “pre-release,” or “beta” (collectively, “Preview Features”). Customer may access and use Preview Features solely for internal evaluation purposes and in accordance with any additional terms applicable to such Preview Features (“Preview Terms”). Preview Features may be incomplete, may contain errors, and may be modified or discontinued at any time without notice.In the event of any conflict between this Agreement and the applicable Preview Terms, the Preview Terms will govern solely with respect to the Preview Features.
2.
Customer Data
2.1.
Rights in Customer Data. As between the parties, Customer or its licensors retain all right, title, and interest (including all intellectual property rights) in and to the Customer Data and any modifications made thereto through Customer’s use of the Software. Subject to the terms of this Agreement, Customer grants to IOMETE and its Affiliates a limited, non-exclusive, worldwide, royalty-free right to access and process Customer Data solely to the extent necessary to provide technical support, resolve service or technical issues, or comply with applicable law, and only where Customer has authorized such access.
2.2.
Use Obligations.
(a)
In General. Customer’s use of the Software and all Customer Data must comply with applicable laws, government regulations, and any other legal requirements applicable to Customer, including but not limited to data localization or data sovereignty laws. Customer is solely responsible for:
• the accuracy
• content
• legality
of all Customer Data.
Customer represents and warrants that it has all necessary rights to use Customer Data with the Software and to grant the rights set forth in this Agreement.
(b)
HIPAA Data. Customer agrees not to process or store HIPAA-regulated data using the Software unless Customer and IOMETE have entered into a Business Associate Agreement (BAA). Unless such BAA is in place, IOMETE will have no liability under this Agreement for HIPAA-regulated data. If a BAA is executed, it will be incorporated by reference into this Agreement and govern the parties’ obligations with respect to such data.
2.3.
Data Privacy. To the extent applicable, the parties will comply with the Data Processing Addendum (DPA).
3.
Security
3.1.
Security. The parties shall comply with the Security Addendum, which describes the security practices applicable to the Software.
4.
Intellectual Property
4.1.
IOMETE Technology. Customer agrees that IOMETE or its licensors retain all right, title, and interest (including all patent, copyright, trademark, trade secret, and other intellectual property rights) in and to the IOMETE Technology, including the Software and Documentation. Except for the limited license rights expressly granted in this Agreement, no rights, title, or interest in the IOMETE Technology are granted to Customer. Customer acknowledges that the Software is provided as licensed software installed within the Customer Environment and that Customer does not obtain any ownership rights in the Software.Customer may receive copies of the Software in object code form solely as permitted under this Agreement. IOMETE may freely use and incorporate into its products and services any Feedback provided by Customer without restriction or obligation.
4.2.
Usage Data. IOMETE may collect and use Usage Data related to the operation and performance of the Software for purposes including:
• improving the Software
• providing technical support
• maintaining security.
Usage Data will not include Customer Data.
IOMETE may share Usage Data with third parties only:
(a) in accordance with the confidentiality provisions of this Agreement; or
(b) where such Usage Data has been aggregated and anonymized so that Customer and its Users cannot be identified.
4.3.
Marketing. IOMETE may use and display Customer’s name, logo, trademarks, and service marks on IOMETE’s website and in marketing materials to identify Customer as a customer of IOMETE. Upon Customer’s written request, IOMETE will remove such marks from its website and marketing materials within a reasonable time, to the extent commercially feasible. Customer may agree, upon request, to participate in a case study, press release, or similar marketing activity.
5.
Confidentiality
5.1.
Confidentiality. Each party (the “Receiving Party”) will protect the Confidential Information of the other party (the “Disclosing Party”) using the same degree of care it uses to protect the confidentiality of its own confidential information of a similar nature, but in no event less than reasonable care. The Receiving Party agrees to: (a) use the Disclosing Party’s Confidential Information solely for purposes consistent with this Agreement; and (b) limit access to the Disclosing Party’s Confidential Information to its and its Affiliates’ employees, contractors, and advisors who require such access for purposes consistent with this Agreement and who are bound by confidentiality obligations no less protective than those set forth in this Agreement. If the Receiving Party is required by law, regulation, or court order to disclose Confidential Information, the Receiving Party shall, to the extent legally permitted, provide the Disclosing Party with prompt written notice and reasonably cooperate with the Disclosing Party in any effort to obtain confidential treatment of the Confidential Information. The Receiving Party acknowledges that unauthorized disclosure of Confidential Information may cause substantial harm for which monetary damages alone would be an insufficient remedy. Accordingly, the Disclosing Party will be entitled to seek appropriate equitable relief, including injunctive relief, in addition to any other remedies available at law or in equity.
6.
Fees and Payment; Taxes; Payment Disputes
6.1.
Fees and Payment. All fees (“Fees”) and payment terms are set forth in the applicable Order Form. Except as expressly stated in this Agreement, all payment obligations are non-cancelable and all Fees are non-refundable. If Customer issues a purchase order in connection with an Order Form: (i) the purchase order is issued solely for Customer’s internal administrative purposes; (ii) any terms or conditions contained in the purchase order that add to, conflict with, or differ from the terms of this Agreement or the applicable Order Form are rejected by IOMETE and will have no force or effect; (iii) the purchase order will not limit Customer’s obligation to pay the Fees set forth in the applicable Order Form; and (iv) upon Customer’s request, IOMETE may include the purchase order number on its invoices for administrative convenience, provided that Customer supplies the purchase order at least ten (10) business days before the applicable invoice date.
6.2.
Taxes. Fees do not include any applicable taxes, levies, duties, or similar governmental assessments (“Taxes”). Customer is responsible for paying all Taxes associated with its purchases under this Agreement, excluding taxes based on IOMETE’s net income, property, or employees. If IOMETE has a legal obligation to collect or pay Taxes for which Customer is responsible under this section, IOMETE will invoice Customer for such Taxes, and Customer will pay the invoiced amount unless Customer provides a valid tax exemption certificate issued by the appropriate taxing authority. Customer will not deduct or withhold any Taxes from payments due to IOMETE except where required by applicable law. If Customer is required to make such deductions or withholdings, Customer will increase the amount payable so that, after the deduction or withholding, IOMETE receives an amount equal to the Fees it would have received had no deduction or withholding been required.Upon IOMETE’s request, Customer will provide documentation confirming remittance of any withheld taxes to the applicable tax authority. Where applicable, Customer will provide its VAT or GST registration number(s) on the applicable Order Form to confirm that the Software is being purchased for business use.
6.3.
Payment Disputes. IOMETE will not exercise its rights under Section 7.2 (Termination for Cause) or Section 7.5(a) (Suspension) with respect to Customer’s non-payment of Fees if Customer is disputing the applicable charges reasonably and in good faith and is cooperating diligently with IOMETE to resolve the dispute. If the parties are unable to resolve the dispute within thirty (30) days, either party may pursue any remedies available under this Agreement or at law or in equity. For clarity, Customer must pay all undisputed amounts in accordance with the payment terms set forth in the applicable Order Form.
6.4.
Reseller Orders. Customer may purchase licenses for the IOMETE Software through an IOMETE-authorized reseller (“Reseller”) pursuant to a separate agreement between Customer and the Reseller (a “Reseller Arrangement”), which may contain different terms relating to invoicing, payment, or taxes. IOMETE will have no obligation to provide licenses for the Software to Customer under a Reseller Arrangement unless IOMETE and the Reseller have executed an applicable Order Form covering such purchase. Customer acknowledges and agrees that, solely in connection with purchases made through a Reseller Arrangement:
(a) IOMETE may share with the Reseller information reasonably necessary to administer the Reseller Arrangement, including information relating to Customer’s deployment and use of the Software; (b) notwithstanding anything to the contrary in this Agreement, references to “Customer” in the defined terms “Fees” and “Order Form” will be deemed to refer to the Reseller, and all payments of fees, refunds, and credits (if any) will be made between Customer and the Reseller; (c) this Agreement governs Customer’s installation and use of the Software, notwithstanding anything to the contrary in the Reseller Arrangement; and (d) the Reseller is not authorized to modify this Agreement or make any warranties, representations, commitments, or promises on behalf of IOMETE regarding the Software.
7.
Term and Termination
7.1.
Term. This Agreement becomes effective on the Effective Date and will remain in effect until terminated in accordance with its terms. If no Order Form or Statement of Work (“SOW”) is then in effect, either party may terminate this Agreement upon written notice to the other party. Each Order Form will remain in effect for the License Term specified in the applicable Order Form, unless earlier terminated in accordance with this Agreement or unless otherwise expressly stated in the applicable Order Form.
7.2.
Termination for Cause. Either party may terminate this Agreement (including all related Order Forms) if the other party: (a) fails to cure any material breach of this Agreement (including failure to pay Fees) within thirty (30) days after written notice (without limiting Section 6.3 (Payment Disputes)); (b) ceases business operations without a successor; or (c) seeks protection under any bankruptcy, receivership, trust deed, creditors’ arrangement, composition, or comparable proceeding, or if any such proceeding is instituted against that party and is not dismissed within sixty (60) days. Except where an exclusive remedy is expressly specified, the exercise by either party of any remedy under this Agreement, including termination, will be without prejudice to any other remedies available under this Agreement, at law, or in equity. If Customer terminates this Agreement for cause in accordance with Section 7.2(a), Customer will be entitled to a refund of any prepaid Fees for the unused portion of the applicable License Term under the affected Order Form.
7.3.
Effect of Termination. Upon expiration or termination of this Agreement or any applicable Order Form: (a) all licenses granted to Customer under this Agreement will immediately terminate; (b) Customer must cease all installation, use, and access of the Software and Documentation; (c) Customer must promptly delete or destroy all copies of the Software, Documentation, and any other IOMETE Confidential Information in its possession or control, except to the extent retention is required by applicable law or for archival backup purposes. Customer acknowledges that the Software operates within the Customer Environment and that Customer retains control of its Customer Data. IOMETE has no obligation to store, retrieve, or return Customer Data upon termination of this Agreement. Termination of this Agreement will not relieve Customer of any obligation to pay Fees accrued prior to the effective date of termination.
7.4.
Survival. The following sections will survive the expiration or termination of this Agreement: 1.6 (General Restrictions), 4 (Intellectual Property), 5 (Confidentiality), 6.1 (Fees and Payment), 6.2 (Taxes), 7 (Term and Termination), 8.3 (Warranty Disclaimer), 11 (Indemnification), 12 (Limitation of Remedies and Damages), 13 (General Terms), and 14 (Definitions).
7.5.
Suspension. In addition to any other rights or remedies available under this Agreement (including termination rights), IOMETE may suspend Customer’s license to use the Software, or suspend access to updates, support services, or other related services provided by IOMETE, if:(a) any Fees remain unpaid for thirty (30) days or more after becoming due (and are not subject to Section 6.3 (Payment Disputes)); (b) IOMETE reasonably determines that Customer has breached Section 1.6 (General Restrictions) or Section 2.2 (Use Obligations); (c) IOMETE reasonably determines that suspension is necessary to prevent material harm to IOMETE, the Software, or other customers, including where Customer’s use of the Software creates security risks, system abuse, or other disruptive activity; or (d) suspension is required by applicable law or at the request of a governmental authority. Where commercially reasonable, IOMETE will provide advance notice of any suspension and will restore Customer’s rights once the issue giving rise to the suspension has been resolved.
8.
Warranty
8.1.
Service Warranty. IOMETE warrants that: (a) the Software, when installed and used in accordance with the applicable Documentation, will operate in substantial conformity with the Documentation; and (b) any Technical Services and Deliverables provided by IOMETE will be performed in a professional and workmanlike manner and substantially in accordance with the specifications set forth in the applicable Statement of Work (“SOW”). If IOMETE is unable to correct any reported nonconformity with this warranty within a reasonable period of time, either party may terminate the applicable Order Form or SOW, and Customer’s sole and exclusive remedy will be a refund of any prepaid Fees covering the unused portion of the applicable License Term or Technical Services. This warranty will not apply if the error or nonconformance results from:
(i) misuse of the Software or Deliverables;
(ii) modifications to the Software or Deliverables made by Customer or any third party not authorized by IOMETE; or
(iii) third-party hardware, software, or services used in connection with the Software. For Technical Services and Deliverables, this warranty will not apply unless Customer provides written notice of the claim within thirty (30) days after completion of the applicable SOW.
8.2.
Mutual Warranty. Each party represents and warrants that: (a) it has the full legal power and authority to enter into this Agreement; (b) this Agreement has been validly executed and constitutes a binding obligation of that party; and (c) entering into and performing its obligations under this Agreement does not violate any other agreement to which it is a party.
8.3.
Warranty Disclaimer. EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, THE SOFTWARE, CLIENT SOFTWARE, SAMPLE DATA, AND ANY TECHNICAL SERVICES OR DELIVERABLES PROVIDED BY IOMETE ARE PROVIDED “AS IS.” TO THE MAXIMUM EXTENT PERMITTED BY LAW, IOMETE DISCLAIMS ALL OTHER WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, INCLUDING BUT NOT LIMITED TO ANY IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. IOMETE DOES NOT WARRANT THAT THE SOFTWARE WILL OPERATE WITHOUT INTERRUPTION OR ERROR, OR THAT ANY ERRORS OR DEFECTS WILL BE CORRECTED. IOMETE DOES NOT REVIEW CUSTOMER DATA AND MAKES NO WARRANTIES REGARDING THE ACCURACY, COMPLETENESS, OR LEGALITY OF CUSTOMER DATA.
9.
Support and Availability
9.1.
Support and Availability. During the applicable License Term, IOMETE will provide Customer with the level of support services for the Software specified in the applicable Order Form, in accordance with the Support Policy. Customer acknowledges that the Software operates within the Customer Environment, and IOMETE is not responsible for the availability, performance, or operation of the Customer Environment.
10.
Technical Services
10.1.
Provision of Technical Services. IOMETE will perform the Technical Services for Customer as described in each applicable Statement of Work (“SOW”), subject to the terms and conditions of this Agreement.
10.2.
Assistance. Customer acknowledges that timely access to applicable Customer Materials, personnel, systems, equipment, and facilities may be required for the performance of Technical Services. Customer agrees to provide such access and to reasonably cooperate with IOMETE during the course of any Technical Services engagement. IOMETE will have no liability for any delay or deficiency in the performance of Technical Services to the extent resulting from Customer’s failure to fulfill its obligations under this Section 10.
10.3.
Customer Materials. Customer grants IOMETE a limited, non-exclusive right to use Customer Materials solely for the purpose of performing the Technical Services. Customer retains all rights, title, and interest (including all intellectual property rights) in and to the Customer Materials. Customer Materials that constitute Confidential Information will be treated in accordance with Section 5 (Confidentiality). Customer represents and warrants that it has all necessary rights to provide the Customer Materials to IOMETE and that the Customer Materials do not violate any third-party rights.
10.4.
Access to Customer Data under an SOW. To the extent Technical Services require access to Customer Data, Customer is responsible for ensuring that the duration and scope of such access are limited to what is necessary to perform the applicable SOW. Customer agrees that IOMETE will only access Customer Data when such access is specifically authorized in the applicable SOW and only for the duration of the Technical Services engagement. Unless otherwise specified in the SOW: (a) any access to Customer Data will be read-only and limited to Customer’s designated development or testing environment within the Customer Environment; and (b) Customer will not grant access to Customer Data that is unencrypted or contains sensitive personal data, including without limitation personal data, credit card or other financial account information, or protected health information. Where access to Customer Data is required, Customer will provide IOMETE with: (i) secure Customer-managed systems and networks for accessing Customer Data; and (ii) unique credentials for authorized IOMETE personnel, which will be managed solely by Customer.
10.5.
License to Deliverables. Technical Services performed by IOMETE (for example, providing guidance on configuring or deploying the Software) and any resulting Deliverables are generally applicable to IOMETE’s business and form part of the IOMETE Technology. Subject to the terms and conditions of this Agreement (including the restrictions set forth in Section 1.6 (General Restrictions)), IOMETE grants Customer a limited, non-exclusive, worldwide, royalty-free, non-transferable license to use the Deliverables internally and solely in connection with Customer’s authorized use of the Software. The parties may agree in an applicable Statement of Work (SOW) to additional restrictions relating to the use of Deliverables provided under that SOW, in which case those restrictions will apply solely to the Deliverables created under that SOW.
10.6.
Change Orders; Other Terms. Customer may submit written requests to IOMETE to change the scope of Technical Services under an existing Statement of Work (SOW). IOMETE will promptly notify Customer if the requested change requires an adjustment to the fees, schedule, assumptions, or scope of the Technical Services.Neither party will be bound by any changes to an SOW unless the parties agree to such changes in writing through a Change Order. IOMETE may use subcontractors to perform Technical Services but will remain responsible for their performance in accordance with this Agreement. For clarity, Customer will be responsible for any infrastructure usage, software consumption, or other costs incurred within the Customer Environment as a result of the Technical Services.
11.
Indemnification
11.1.
Indemnification by IOMETE. IOMETE will defend Customer against any third-party claim alleging that the Software or any Deliverable, when used in accordance with this Agreement, infringes such third party’s intellectual property rights. IOMETE will indemnify and hold Customer harmless from any damages, costs, or expenses awarded against Customer or agreed in settlement by IOMETE (including reasonable attorneys’ fees) arising from such claim. If Customer’s use of the Software or Deliverable results in, or in IOMETE’s reasonable opinion is likely to result in, an infringement claim, IOMETE may, at its option: (a) modify or replace the Software or Deliverable with a functionally similar product that does not infringe; (b) procure for Customer the right to continue using the Software or Deliverable; or (c) if neither (a) nor (b) is commercially reasonable, terminate this Agreement or the applicable Order Form or Statement of Work (SOW) and refund to Customer any prepaid Fees covering the unused portion of the applicable License Term. The foregoing indemnification obligations will not apply to the extent the claim arises from: modifications to the Software or Deliverables made by any party other than IOMETE, or modifications made based on Customer’s specifications; the combination of the Software or Deliverables with products, services, or processes not provided by IOMETE; use of the Software or Deliverables in violation of this Agreement or the Documentation; or Customer Data, Customer Materials, or any deliverables or components not provided by IOMETE. This Section 11.1 states Customer’s sole and exclusive remedy with respect to any claim of intellectual property infringement relating to the Software or Deliverables.
11.2.
Indemnification by Customer. Customer will defend IOMETE against any third-party claim arising from or relating to: Customer Data, Customer Materials, orany product, service, or offering provided by Customer using the Software. Customer will indemnify and hold harmless IOMETE from any damages, costs, or expenses awarded against IOMETE or agreed in settlement by Customer (including reasonable attorneys’ fees) resulting from such claim.
11.3.
Indemnification Procedures. In the event of a claim subject to indemnification under this Section 11: (a) the indemnified party must promptly notify the indemnifying party in writing of the claim; (b) the indemnifying party will have the right to control the defense and settlement of the claim at its own expense; and (c) the indemnified party will reasonably cooperate in the defense of the claim at the indemnifying party’s expense.Failure to provide prompt notice will not relieve the indemnifying party of its obligations except to the extent the indemnifying party is materially prejudiced by the delay. The indemnifying party may not settle any claim that:imposes liability on the indemnified party,requires an admission of fault by the indemnified party, orimposes obligations other than payment of money, without the indemnified party’s prior written consent, which will not be unreasonably withheld. No indemnification obligation will apply to claims settled or admitted without the indemnifying party’s prior written consent.
12.
Limitation of Remedies and Damages
12.1.
Limitation of Remedies and Damages. Except with respect to Excluded Claims, and to the maximum extent permitted by applicable law, and notwithstanding any other provision of this Agreement:
(a)
Excluded Damages. Neither party nor its Affiliates will be liable to the other party or its Affiliates for any:
• loss of use
• loss or corruption of data
• loss of profits
• loss of revenue
• business interruption
• costs of delay
or any indirect, special, incidental, consequential, punitive, or exemplary damages, even if the party has been advised of the possibility of such damages.
(b)
General Liability Cap. Subject to Section 12.1(c), each party’s and its Affiliates’ total aggregate liability arising out of or relating to this Agreement will not exceed the total amount of Fees actually paid or payable to IOMETE under the applicable Order Form or Statement of Work (SOW) during the twelve (12) months preceding the event giving rise to the claim (the “General Liability Cap”).
(c)
Data Protection Liability Cap. For claims relating to Data Protection Claims, each party’s and its Affiliates’ total aggregate liability will not exceed two (2) times the General Liability Cap (the “Data Protection Liability Cap”).
(d)
Single Recovery. In no event will either party be liable for the same event under both the General Liability Cap and the Data Protection Liability Cap. Where multiple claims arise from the same underlying event, the maximum aggregate liability will not exceed the Data Protection Liability Cap.
(e)
Applicability. The limitations set forth in this Section 12 apply regardless of the form of action, whether in:contracttort (including negligence) strict liability or otherwise and will apply even if any limited remedy fails of its essential purpose.
(f)
Affiliate Aggregation. The liability caps set forth in this Section apply in the aggregate across this Agreement and all agreements governing Customer’s use of the Software entered into between IOMETE and any Customer Affiliate.
13.
General Terms
13.1.
Assignment. This Agreement will bind and inure to the benefit of each party and its permitted successors and assigns. Neither party may assign this Agreement without the prior written consent of the other party, except that either party may assign this Agreement, without consent, in connection with: a merger, reorganization, acquisition, or sale of all or substantially all of its assets. IOMETE may also assign this Agreement to any of its Affiliates. Any attempted assignment in violation of this section will be null and void.
13.2.
Severability; Interpretation. If any provision of this Agreement is held by a court of competent jurisdiction to be invalid or unenforceable, that provision will be limited to the minimum extent necessary so that the remainder of this Agreement remains in full force and effect. Section headings are for convenience only and will not affect the interpretation of this Agreement.
13.3.
Dispute Resolution. Before initiating any legal proceeding relating to this Agreement, the parties agree to attempt in good faith to resolve the dispute through discussions between senior representatives of each party. Nothing in this section will prevent either party from seeking injunctive or other equitable relief to protect its intellectual property, Confidential Information, or other proprietary rights.
13.4.
Governing Law; Jurisdiction. This Agreement will be governed by the laws of the State of Delaware, without regard to its conflict-of-laws principles and without regard to the United Nations Convention on Contracts for the International Sale of Goods. The parties consent to the exclusive jurisdiction and venue of the state and federal courts located in New Castle County, Delaware.
13.5.
Notice. Any notice or communication required or permitted under this Agreement must be in writing and delivered to the addresses specified in this Agreement or to any other address designated by a party in writing. Notices will be deemed received:
(a) when delivered personally;
(b) one (1) business day after being sent by a recognized overnight courier;
(c) two (2) business days after being sent by certified or registered mail (return receipt requested); or
(d) when sent by email to the designated notice address. Email notices to IOMETE must be sent to ashley@vcorpservices.com and pj@iomete.com. Notwithstanding the foregoing, notices relating to termination of this Agreement, material breach claims, or indemnification claims may not be delivered solely by email unless otherwise expressly agreed in writing.
13.6.
Amendments; Waivers. This Agreement may be amended only by a written document executed by authorized representatives of both parties. No waiver of any provision of this Agreement will be effective unless it is in writing and signed by an authorized representative of the party granting the waiver. A party’s failure to enforce any right under this Agreement will not constitute a waiver of that right. Any terms contained in a Customer purchase order, vendor onboarding form, or similar document will have no force or effect and will not modify this Agreement, except for Order Forms executed by both parties.
13.7.
Entire Agreement. This Agreement constitutes the entire agreement between the parties regarding the subject matter hereof and supersedes all prior or contemporaneous agreements, negotiations, or communications, whether written or oral.
13.8.
Third-Party Beneficiaries. This Agreement is for the benefit of the parties only and does not create any third-party beneficiary rights..
13.9.
Force Majeure. Neither party will be liable for any delay or failure to perform its obligations under this Agreement (other than payment obligations) if such delay or failure results from causes beyond that party’s reasonable control. Such causes may include, without limitation:
• acts of God
• natural disasters
• earthquakes, storms, or floods
• wars, terrorism, or civil unrest
• labor disputes
• failures of utilities or telecommunications networks
• public health emergencies
• governmental orders or restrictions.
The affected party will use reasonable efforts to resume performance as soon as practicable.
13.10.
Independent Contractors. The parties are independent contractors, and nothing in this Agreement will be deemed to create any partnership, joint venture, employment, franchise, or agency relationship between the parties. Neither party has the authority to bind the other party or incur obligations on behalf of the other party without the prior written consent of that party. Employees and contractors of one party will not be entitled to any benefits provided by the other party to its employees, including without limitation health, life, or disability insurance.
13.11.
Export Control. Customer agrees to comply with all applicable export control and import laws and regulations, including those of the United States and any other applicable jurisdiction. Customer represents and warrants that: (a) it is not listed on any U.S. government list of prohibited or restricted parties and is not located in, or a national of, any country subject to a U.S. government embargo or designated as supporting terrorism; (b) it will not permit any third party to access or use the Software in violation of any applicable export control laws or regulations; and (c) it will not provide to IOMETE any information or materials that are controlled under the U.S. International Traffic in Arms Regulations (ITAR).
13.12.
Counterparts. This Agreement may be executed in one or more counterparts, each of which will be deemed an original, and all of which together will constitute one and the same agreement. Electronic signatures and electronic copies of signatures will be deemed to have the same legal effect as original signatures.
14.
Definitions
“Account” means any administrative or user credential used to access or operate the Software within the Customer Environment.
“Affiliate” means any entity that directly or indirectly controls, is controlled by, or is under common control with a party. For purposes of this definition, “control” means ownership of more than fifty percent (50%) of the voting securities of an entity or the power to direct the management or policies of the entity.
“BAA” means a Business Associate Agreement governing the parties’ respective obligations with respect to HIPAA-regulated data processed using the Software.
“Change Order” means a written amendment to a Statement of Work (“SOW”) agreed to and executed by both parties that modifies the scope of Technical Services.
“Client Software” means any client-side software provided by IOMETE for installation on end-user devices in connection with Customer’s use of the Software.
“Confidential Information” means any information disclosed by one party (“Disclosing Party”) to the other party (“Receiving Party”) that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure. Customer Data will be deemed Confidential Information of Customer.
IOMETE Technology will be deemed Confidential Information of IOMETE. Confidential Information does not include information that the Receiving Party can demonstrate:
(a) was already known to the Receiving Party without restriction prior to disclosure;
(b) becomes publicly available through no fault of the Receiving Party;
(c) is received from a third party without breach of any confidentiality obligation; or
(d) is independently developed by the Receiving Party without use of or reference to the Confidential Information.
“Contractor” means Customer’s independent contractors or consultants authorized to use the Software on Customer’s behalf.
“Customer Data” means any data or information provided, generated, stored, or processed by Customer using the Software within the Customer Environment.
“Customer Materials” means any materials, information, or data provided by Customer to IOMETE in connection with the performance of Technical Services.
“Data Protection Claims” means any claim arising from a party’s breach of Section 2.3 (Data Privacy), Section 3 (Security), or Section 5 (Confidentiality), where such breach results in the unauthorized disclosure of Customer Data or violation of Section 2.2 (Use Obligations).
“Deliverables” means any guides, documentation, code (including SQL queries), configurations, or other materials created or provided by IOMETE in connection with Technical Services. For clarity, IOMETE may use compilers, interpreters, development tools, or similar utilities to create Deliverables, and such tools themselves are not Deliverables.
“Disclosing Party” has the meaning set forth in Section 5 (Confidentiality).
“Documentation” means IOMETE’s technical documentation, product guides, and usage instructions relating to the Software, made available by IOMETE at iomete.com/resources or through other channels designated by IOMETE.
“Excluded Claims” means obligations and claims based on: (a) a party’s breach of its obligations under Section 5 (Confidentiality) (excluding obligations relating to Customer Data);
(b) either party’s indemnification obligations under Section 11 (Indemnification); or
(c) liabilities that cannot be limited under applicable law (such as gross negligence, willful misconduct, or fraud).
“Feedback” means any suggestions, enhancement requests, recommendations, corrections, or other input provided by Customer or its Users regarding the Software or related products.
“Fees” means the fees payable by Customer to IOMETE as specified in the applicable Order Form. For Technical Services, applicable Fees are specified in the relevant Statement of Work (SOW). Fees may include reimbursable expenses only where expressly stated in the applicable SOW.
“HIPAA” means the Health Insurance Portability and Accountability Act, as amended and supplemented.
“HIPAA Data” means any patient, medical or other protected health information regulated by HIPAA or any similar federal or state laws, rules or regulations.
“Order Form” means the ordering document executed by IOMETE and Customer that references this Agreement and specifies the Software licenses or Technical Services purchased by Customer.
“Reader Accounts”, “Read Only Consumers”, and “Read Only Users” have the meanings set forth in Section 1.5(d) (Reader Accounts).
“Receiving Party” is defined in Section 5 (Confidentiality).
“Sample Data” means any data (including data obtained from third-party sources) provided by IOMETE to Customer solely for testing, demonstration, or evaluation purposes. Sample Data may not be used in production environments.
“Security Addendum” means the IOMETE Security Addendum, as may be updated from time to time.
“Software” means the IOMETE platform software licensed to Customer under this Agreement and installed within the Customer Environment, including any updates or upgrades provided by IOMETE.
“IOMETE” means IOMETE INC. or its Affiliate, as applicable.
“IOMETE Technology” means the Software, Documentation, Client Software, Deliverables, and all related underlying technology, including any modifications, derivative works, or improvements to the foregoing.
“SOW” or “Statement of Work” means a written document executed by both parties describing Technical Services to be performed by IOMETE under this Agreement.
“License Term” means the period during which Customer is authorized to use the Software under an applicable Order Form.
“Support Policy” means the IOMETE Support Policy and Service Level Agreement.
“Taxes” means any taxes, levies, duties, or similar governmental assessments of any nature, including sales, use, value-added, GST, or withholding taxes, but excluding taxes based on IOMETE’s net income, property, or employees.
“Technical Services” means consulting, implementation, configuration, training, or other professional services performed by IOMETE for Customer pursuant to an Order Form or SOW.
“Third-Party Applications” means any software, services, or data provided by third parties that may interoperate with the Software. Such Third-Party Applications are subject solely to the terms and conditions between Customer and the applicable third party.
“Usage Data” means operational and usage-related data generated in connection with Customer’s use of the Software, including logs, telemetry, performance metrics, and metadata (such as object definitions and properties). Usage Data does not include Customer Data.
“User” means any individual authorized by Customer to access or use the Software within the Customer Environment, including Customer’s employees, Contractors, and Affiliates acting on Customer’s behalf.
“VAT/GST Registration Number” means the value-added tax (VAT) or goods and services tax (GST) registration number of Customer for the jurisdiction in which Customer is established or where the Software licenses or Technical Services are used for business purposes.