Linus Health | Terms & Conditions of Sale

Last updated: June 15, 2023

Except as otherwise superseded by terms contained in a mutually executed written agreement between the parties, all quotations and sales by Linus Health, are subject to these terms and conditions and those on any attached Order Form between the parties. These Terms and Conditions of Sale govern the purchase and sale of any Linus Health products and services and constitutes a binding agreement governing the parties. Linus Health has developed a software-as-a-service platform (the “Linus Platform”) that facilitates the administration of neurocognitive, neuromotor and neuropsychological assessments. The Linus Platform is not intended for use as a stand-alone or adjunctive diagnostic device. As used in the Agreement, the term “Linus Platform” includes a supported web dashboard and one or more mobile applications (the “Portal”).

INTRODUCTION
1. Linus Platform. Linus Health will make the Linus Platform available to Customer during the Term, for the specific Project(s). Linus Health will also provide the number of Devices specified above, as well as the Services as set forth in the SOW or SOWs. Subject to Customer’s compliance with this Agreement, Linus Health grants Customer a limited, nonexclusive, non transferable, non-sublicensable right to use the Linus Platform and access Test results through the Portal during the Term, solely for Customer’s internal use in connection with the testing of Patients. Customer is responsible for obtaining and maintaining all of the equipment, hardware, software and services that Customer may need to access and use the Services. Without limiting the foregoing, Customer must obtain and maintain, and pay all charges, taxes and other costs and fees related to, internet access, telephone, computer, and other equipment, and any communications or other charges incurred by Customer to access and use the Services.
2. Portal. Subject to the terms and conditions of the Agreement, Linus Health grants Customer a limited, nonexclusive, non-transferable, non-sublicensable right to install, use, and access the Portal. Linus Health has taken commercially reasonable and customary steps necessary to prevent the introduction of viruses or other malicious code into the Portal. Customer is solely responsible for the maintenance and security of any computer workstation onto which the Portal is accessed, unless otherwise set forth in the SOW.
3. Documentation. Linus grants Customer a limited, nonexclusive, non-transferable, non-sublicensable right for Customer and Authorized Users to access, use, make a reasonable number of copies of and display any documentation provided or made available by Linus Health to Customer related to the Services and the Linus Platform (“Documentation”) during the Term solely for Customer’s internal use in connection with the licenses granted in this Section 1.
4. Limitations. The following limitations and restrictions will apply to Customer’s access to and use of the Linus Platform, the Services and the Documentation:
  1. Customer will not provide access to the Linus Platform, the Services or the Documentation to any person who is not an Authorized User (as defined below).
  2. Except as expressly permitted by this Agreement, Customer will not and will not permit or authorize any Authorized User or third party to: (i) reverse engineer, decompile, disassemble or otherwise attempt to discover the source code, object code or underlying structure, ideas or algorithms of the Linus Platform or Services; (ii) modify, translate or create derivative works based on the Linus Platform, the Services, or the Documentation, or any portion thereof; (iii) copy (except for archival purposes), rent, lease, distribute, pledge, assign or otherwise transfer or allow any lien, security interest or other encumbrance on the Linus Platform, the Services or the Documentation; (iv) use the Linus Platform, the Services, or the Documentation for time sharing or service bureau purposes or otherwise for the benefit of a third party; (v) hack, manipulate, interfere with or disrupt the integrity or performance of or otherwise attempt to gain unauthorized access to the Linus Platform or related systems, hardware or networks, the Services, or any content or technology incorporated in any of the foregoing; or (vi) remove, obscure or alter any proprietary notices or labels of Linus Health, its suppliers or other service providers on the Linus Platform, the Services or the Documentation.
  3. Customer will at all times use the Services strictly in accordance with the labeling and Documentation.
5. Authorized Users; Account Security. “Authorized Users” means employees or contractors of Customer who are authorized to access the Linus Platform using unique user identifiers and passwords. Customer will not make available the Linus Platform to any person or entity other than Authorized Users. Customer is responsible for: (a) ensuring that each Authorized User maintains the confidentiality of the password and other account information that the Authorized User uses to access the Linus Platform; (b) any and all activities that occur under the passwords or accounts of Authorized Users and others to whom Customer has granted access; and (c) immediately notifying Linus Health of any unauthorized uses of passwords or accounts or any other breach of security with respect to the Linus Platform of which it becomes aware. Linus Health will not be liable for any loss or damage arising from Customer’s failure to comply with Customer’s security obligations and this Section 1.5.
6. Monitoring and Statistical Information. Linus Health may monitor Customer’s and Authorized Users’ use of the Linus Platform and compile statistical and performance information related to the operation of and provision of access to the Linus Platform for Linus Health’s internal use and other lawful purposes.
7. Devices. Linus Health is acquiring the Devices from third party distributors or manufacturers (collectively the “Manufacturers”) as a convenience to Customer. Linus Health makes no representations or warranties with respect to the Devices, but will pass through any and all warranties received from the Manufacturers to the extent permissible. In the event that Devices are not purchased by Customer, but rather leased, then Customer shall: (a) keep the Devices free of all security interests of any kind whatsoever, including liens, encumbrances and other claims; (b) protect the Devices from theft, unauthorized use or vandalism; (c) not remove or have removed any identification marks applied by Linus Health or the Manufacturer; (d) maintain the Devices in good condition and repair, reasonable wear and tear excepted; and (e) use the Devices with due care to prevent injury thereto and to any person or property; and (f) not modify the Devices in any way. Customer shall be responsible for any damage to a Device incurred during the Term, other than reasonable wear and tear.
8. Research Use. In the event Customer uses the Linus Platform in connection with a clinical trial or other study (“Research”), such Research will be indicated on the Order Form. Customer is responsible for obtaining all authorizations for the Research required by law, including consent of Patients and ethics committee approval, as may be required for Customer’s and its Authorized Users’ use of the Linus Platform. In the event the Research results in a publication, any such publication will comply with ICMJE guidelines and shall acknowledge Customer’s use of the Linus Platform in connection with such Research.
9. Clinical Use. The following additional terms shall apply to any clinical use of the Services by Customer: (a) Customer shall be responsible for obtaining any authorizations from Patients required for Customer’s and its Authorized Users’ use of the Linus Platform in a clinical setting. (b) Customer shall use the Services in compliance with all applicable federal, state, and local laws, rules, and regulations, including, without limitation, all import and export restrictions, the Health Insurance Portability and Accountability Act of 1996 and the Health Information Technology for Economic and Clinical Health Act and their implementing regulations, the federal False Claims Act (31 U.S.C. §§ 3729 et seq.), the federal Anti-Kickback Statute (42 U.S.C. § 1320a-7b(b)), including but not limited to any applicable disclosure and transparency obligations under any applicable safe harbor including the equipment lease safe harbor (42 C.F.R. § 1001.952(c)), the Physician Payments Sunshine Act (42 U.S.C. § 1320a-7h), and its implementing regulations, the anti-fraud and abuse provisions of the Federal Health Care Programs (as defined in 42 U.S.C. § 1320a-7b(f)), as well as with the requirements set forth under the Federal Food, Drug, and Cosmetic Act and their implementing regulations ("Applicable Laws"). Customer shall be solely responsible for the retention of any Customer Data or Reports as necessary to comply with Customer's obligations under Applicable Laws. (c) Customer shall promptly notify Linus Health in writing upon receipt of any Adverse Event information relating to the Services. For purposes of this Agreement, "Adverse Event" means an event that reasonably may suggest that the Services: (i) may have caused or contributed to a death or serious injury; or (ii) have malfunctioned and that the Services or a similar product would be likely to cause or contribute to a death or serious injury if the malfunction were to recur. Linus Health shall conduct investigations and file, or cause to be filed, all Adverse Event reports required pursuant to the medical device reporting regulations set forth in 21 C.F.R. part 803, as may be amended from time to time. (d) Customer represents, warrants and covenants that Customer and the Authorized Users: (i) are duly licensed to practice medicine or to receive and dispense or use prescription devices in all jurisdictions where the Tests will be administered; (ii) have not been convicted or charged of any felony, any business crime, or any crime relating to honesty or integrity, and (iii) have not been excluded from participation in Medicare, Medicaid or another Federal Health Care Program (as defined in 42 U.S.C. § 1320a-7b(f)).
CUSTOMER DATA
1. Ownership; Applicable Laws. Customer owns the data and other content uploaded by Customer into the Linus Platform or otherwise provided by Customer to Linus Health, including but not limited to data with respect to Patients (“Customer Data”). Customer will be solely responsible for the accuracy, quality, and completeness of Customer Data and for the submission of Customer Data to Linus Health. Linus Health acknowledges that the Customer Data may contain personal data, health data and/or medical records data, the use of which is subject to Applicable Laws as defined in Section 1.9(b).
2. Rights in Customer Data. Customer represents, warrants and covenants: (a) that it owns or otherwise controls Customer Data that Customer provides or makes available to Linus Health and that it is explicitly authorized to provide the Customer Data to Linus Health for the purposes described in this Agreement; and (b) that it will comply with all Applicable Laws and that it has obtained, or will obtain prior to disclosure of Customer Data to Supplier, all necessary and appropriate authorizations, consents, permissions, and rights consistent with Applicable Laws to disclose the Customer Data to Linus Health for use by Linus Health for the purposes of performing the Services, including, as applicable, from Patients and/or applicable ethics committees and institutional review boards.
3. Data Processor. Customer appoints Linus Health as its data processor and the parties agree that Customer is data controller in relation to any Customer Data. Linus Health shall take all reasonably practicable steps to comply with the terms of the Agreement and all Applicable Laws and industry standards applicable to Linus Health’s processing of Customer Data. Linus Health shall process Customer Data only: (a) so far as is necessary to provide the Services under this Agreement; and (b) in accordance with Customer's written instructions from time to time.
4. Transfer. In relation to Customer Data which concerns Patients who are residents of the EU, Customer acknowledges that all such Customer Data will be transferred to the U.S. for processing by Linus Health. Customer represents that it will obtain any consents and approvals required from data subjects in order to transfer Customer Data to Linus Health in the U.S. and permit Linus Health’s use of Customer Data for the Services. For the avoidance of doubt, “process” or “transfer” for the purposes of this paragraph, includes the accessing of Customer Data for the provision of maintenance or any other services which remotely access the Customer Data from outside the EU.
5. Cooperation. Linus Health shall cooperate with Customer in implementing such further measures as Customer may reasonably require to protect Customer Data in accordance with Applicable Laws, including entering a further data processing agreement with Customer. For the purposes of the Health Insurance Portability and Accountability Act of 1996 (“HIPAA”), Linus Health may be deemed a business associate to Customer. Customer and Linus Health will, if required, simultaneously with the execution of the Agreement, enter into a business associate agreement (“BAA”) that will govern the transmission, processing and storage of “Protected Health Information” (as defined under HIPAA), of Patients as contemplated by this Agreement.
6. License. Customer grants to Linus Health: (a) a non-exclusive, worldwide, royalty-free, fully paid up, sublicensable right and license during the Term to copy, distribute, display and create derivative works of and use Customer Data and other content to perform Linus Health’s obligations under the Agreement; (b) the right to de-identify and/or anonymize the Customer Data; and (c) a perpetual, irrevocable, non-exclusive, worldwide, royalty-free, fully paid up, sublicensable right and license to use Customer Data solely in an aggregated, de-identified and/or anonymized format such that Customer, Authorized Users and Patients are not identified for the sole purpose of enhancing and improving the Linus Health Services. Customer reserves any and all right, title and interest in and to Customer Data other than the licenses expressly granted to Linus Health under the Agreement.
INTELLECTUAL PROPERTY OWNERSHIP
1. Ownership. Customer acknowledges and agrees that, as between the parties, Linus Health retains all rights, title, and interest in and to the Linus Platform, the Services, and the Documentation, as well as all improvements, updates, modifications and derivative works, all copies or parts thereof (by whomever produced) and all intellectual property rights therein. Except for those rights expressly granted in the Agreement, Linus Health grants no rights and hereby expressly reserves any and all rights in and to the Linus Platform, the Services, and the Documentation. Except as expressly permitted under the Agreement, Customer will not use the Linus Platform, the Services, the Documentation, or the Devices.
2. Feedback. Customer may from time to time provide suggestions, comments for enhancements or functionality or other feedback (“Feedback”) to Linus Health with respect to the Linus Platform and/or Linus Health Devices. Linus Health will have full discretion to determine whether or not to proceed with the development of the requested enhancements, new features or functionality. Customer hereby grants Linus Health a perpetual, irrevocable, worldwide, royalty-free, fully paid up, transferable, sublicensable license to: (a) copy, distribute, transmit, display, perform, and create derivative works of the Feedback; and (b) use the Feedback and/or any subject matter thereof, including without limitation, the right to develop, manufacture, have manufactured, market, promote, sell, have sold, offer for sale, have offered for sale, import, have imported, rent, provide and/or lease products or services which practice or embody, or are configured for use in practicing, the Feedback and/or any subject matter of the Feedback.
PROFESSIONAL SERVICES
1. From time to time, Customer may request Linus Health to provide certain professional services, including, without limitation, integration, implementation, analytical reports, and customization services related to the Linus Platform (“Professional Services”). A description of the Professional Services, and the associated fees, will be described in an SOW(s) governed by the terms of this Agreement. Customer agrees to use such Professional Services in compliance with all applicable laws. Linus Health shall reasonably cooperate with Customer in implementing measures as Customer may reasonably require to protect Customer Data in accordance with all applicable laws.
FEES; PAYMENT TERMS
1. Fees; Payment Terms. Customer will pay Linus Health such fees at such times as indicated on the Cover Page and/or in the applicable SOW within thirty (30) days of the date of invoice. If payment of any fees is not made when due and payable, a late fee will accrue at the rate of the lesser of one and one-half percent (1.5%) per month or the highest legal rate permitted by law and Customer will pay all reasonable expenses of collection. In addition, if any payment has not been received by Linus Health within thirty (30) days from the time such payment is due, Linus Health may suspend access to the Linus Platform until such payment is made. At its discretion, Linus Health may increase the fees stated on the Cover Page for any Renewal Term (as defined below) upon giving Customer at least forty-five (45) days’ written notice (which may be sent by email) prior to the end of the then-current Term.
2. Net of Taxes. All amounts payable by Customer to Linus Health hereunder are exclusive of any sales, use and other taxes or duties, however designated, including without limitation, withholding taxes, royalties, know-how payments, customs, privilege, excise, sales, use, value-added and property taxes (collectively "Taxes"). Customer will be solely responsible for payment of any Taxes, except for those taxes based on the income of Linus Health. Customer will not withhold any Taxes from any amounts due to Linus Health.
TERM, TERMINATION
1. Term. The Initial Term of the Agreement will commence on the Effective Date and continue until the first of the following to occur: (a) the end of the Initial Term, (b) Customer has used all of the number of Tests set forth on the Order Form; or (c) the Agreement terminates in accordance with Section 6.2. At the end of the Initial Term, the Term shall extend for additional periods of one (1) year (each a “Renewal Term” and, together with the Initial Term, the “Term”), unless either party provides written notice of its intent to terminate at least thirty (30) days prior to the expiration of the then-current Term. All SOW’s will automatically renew for additional one year period terms at the end of the expiration of their subscription unless either party provides written notice of its intent to terminate at least thirty (30) days prior to the expiration of the then-current SOW.
2. Termination; Effect of Termination. In addition to any other remedies it may have, either party may also terminate the Agreement if the other party materially breaches any of the terms or conditions of the Agreement and fails to cure such breach within thirty (30) days’ notice (or ten (10) days in the case of nonpayment) after receiving notice thereof. In the event of any termination, Customer will pay all unpaid fees due to Linus Health through the end of the then-current Term, within thirty (30) days of the effective date of termination. Upon termination of the Agreement, all rights granted to Customer will immediately terminate. Specifically, Customer will: (i) cease use of the Linus Platform and the Devices; (ii) destroy and delete all copies of the Documentation; and (iii) promptly return the Devices to Linus Health at Customer’s expense, unless Customer has purchased the Devices.
3. Survival. Upon expiration or termination of the Agreement, all obligations in this Agreement that are intended to survive termination will do so, including, this Section 6 and Sections 2.6(b), 3, 5, 7, 8.3, 9 and 10.
CONFIDENTIALITY
1. Confidential Information. As used in this Agreement, “Confidential Information” means, subject to the exceptions set forth in this Section 7.1, any information or data, disclosed orally, in writing or electronically, by either party (the “Disclosing Party”) that the Disclosing Party has either marked as confidential or proprietary, or a reasonable person would consider to be confidential or proprietary, to the other party (the “Receiving Party” including, without limitation, a Disclosing Party’s business plans, strategies, technology, research and development, current and prospective customers, billing records, and products or services. Linus Health’s Confidential Information includes, without limitation, the Linus Platform, the Services, and the Documentation. Customer’s Confidential Information includes, without limitation, Customer Data (subject to the rights granted to Linus Health pursuant to Section 2.6). Information will not be deemed Confidential Information if such information: (a) is known to the Receiving Party prior to receipt from the Disclosing Party directly or indirectly from a source other than one having an obligation of confidentiality to the Disclosing Party; (b) becomes known (independently of disclosure by the Disclosing Party) to the Receiving Party directly or indirectly from a source other than one having an obligation of confidentiality to the Disclosing Party; (c) becomes publicly known or otherwise ceases to be secret or confidential, except through a breach of the Agreement by the Receiving Party; or (d) is independently developed by the Receiving Party without use of the Disclosing Party’s Confidential Information.
2. Use, Disclosure and Protection of Confidential Information. Each party acknowledges that the Confidential Information constitutes valuable trade secrets and/or proprietary or confidential information of a party, and each party agrees that it will use the Confidential Information of the other party solely in accordance with the provisions of the Agreement and it will not disclose, or permit to be disclosed, the same directly or indirectly, to any third party without the other party’s prior written consent, except as otherwise permitted by this Agreement. Each party will use reasonable measures to protect the confidentiality and value of the other party’s Confidential Information. Notwithstanding any provision of the Agreement, the Receiving Party may disclose Confidential Information: (a) to its employees, officers, directors, professional advisers (e.g., attorneys, auditors, financial advisors, accountants and other professional representatives), existing and prospective investors or acquirers contemplating a potential investment in or acquisition of a party, sources of debt financing and/or subcontractors (collectively, “Representatives”), who have a need to know and are legally bound to keep such Confidential Information confidential by confidentiality obligations or, in the case of professional advisors, are bound by ethical duties to keep such Confidential Information confidential consistent with the terms of the Agreement; and (b) as reasonably deemed by a party to be required by law (in which case each party will provide the other with prior written notification thereof, will provide such party with the opportunity to contest such disclosure, and will use its reasonable efforts to minimize such disclosure to the extent permitted by applicable law). Receiving Party shall be responsible for any breach of this Agreement by its Representatives. Each party agrees to exercise due care in protecting the Confidential Information from unauthorized use or disclosure. In the event of actual or threatened breach of the provisions of this Section 7, the Disclosing Party will be entitled to seek immediate injunctive and other equitable relief, without waiving any other rights or remedies available to it and without the necessity of posting a bond or other security. Each party will promptly notify the other in writing if it becomes aware of any violations of the confidentiality obligations set forth in the Agreement. Upon the termination of the Agreement, each Receiving Party agrees to promptly return to the Disclosing Party or destroy all Confidential Information of the Disclosing Party that is in the possession of the Receiving Party and to certify the return or destruction of all such Confidential Information and embodiments thereof except that Receiving Party need not return or destroy Confidential Information that resides on electronic backup systems created in the ordinary course of business which are not readily accessible.
REPRESENTATIONS, WARRANTIES AND DISCLAIMER
1. Representations and Warranties. Each party represents and warrants to the other party that: (a) such party has the required power and authority to enter into the Agreement and to perform its obligations hereunder; (b) the execution of the Agreement and performance of its obligations do not and will not violate any other agreement to which it is a party; and (c) the Agreement constitutes a legal, valid and binding obligation when signed by both parties.
2. Uptime; Support. Linus Health will use reasonable efforts consistent with prevailing industry standards to provide the Linus Platform in a manner that minimizes errors and interruptions in accessing the Linus Platform. The Linus Platform may be temporarily unavailable for scheduled maintenance or for unscheduled emergency maintenance, either by Linus Health or by third-party providers, or because of other causes beyond Linus Health’s reasonable control, but Linus Health will use reasonable efforts to provide advance notice in writing or by email of any scheduled service disruption. Linus Health may provide certain training to Customer to facilitate Customer’s support obligations hereunder, as further described in a SOW.
3. Disclaimer of Warranties. EXCEPT AS SPECIFICALLY SET FORTH IN THIS AGREEMENT, NEITHER LINUS HEALTH NOR CUSTOMER MAKE ANY ADDITIONAL REPRESENTATION OR WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED OR STATUTORY, AS TO ANY MATTER WHATSOEVER. ALL OTHER EXPRESS OR IMPLIED REPRESENTATIONS AND WARRANTIES, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUALITY, ACCURACY, TITLE, AND NON-INFRINGEMENT, COURSE OF DEALING, USAGE OR TRADE PRACTICE ARE HEREBY EXCLUDED. EXCEPT AS EXPRESSLY SET FORTH HEREIN, THE DOCUMENTATION, THE SERVICES, AND ANY PROFESSIONAL SERVICES ARE PROVIDED STRICTLY ON AN “AS-IS” AND “AS AVAILABLE” BASIS. CUSTOMER ACKNOWLEDGES THAT LINUS HEALTH DOES NOT WARRANT THAT THE SERVICES, THE LINUS PLATFORM OR THE DOCUMENTATION, WILL BE ERROR-FREE, FREE OF ALL POSSIBLE VIRUSES OR OTHER HARMFUL CODE, OR THAT OPERATION OF THE LINUS PLATFORM WILL BE SECURE OR UNINTERRUPTED. CUSTOMER UNDERSTANDS AND AGREES THAT LINUS HEALTH IS NOT ENGAGED IN THE PRACTICE OF MEDICINE OR THE PROVISION OF HEALTHCARE SERVICES. ANY GUIDANCE PROVIDED BY LINUS HEALTH TO CUSTOMER RELATED TO THE OPERATION OR PERFORMANCE OF THE SERVICES IS PURELY ADVISORY IN NATURE THE SERVICES ARE DESIGNED SOLELY FOR THE PURPOSE OF FACILITATING THE ADMINISTRATION OF TESTS AND PROVIDING REPORTS RELATED THERETO. THE SERVICES ARE NOT INTENDED TO BE USED TO DETERMINE THE LEVEL OR TYPE OF CARE TO BE PROVIDED TO ANY PATIENTt. CUSTOMER IS SOLELY RESPONSIBLE FOR ANY MEDICAL CARE OR ADVICE RENDERED TO PATIENTS AND THE RESULTS OF ANY RESEARCH.
LIMITATIONS OF LIABILITY; INDEMNIFICATION
1. Disclaimer of Consequential Damages. NOTWITHSTANDING ANY OTHER PROVISION IN THE AGREEMENT, EXCEPT FOR (A) CUSTOMER’S BREACH OF SECTION 1 OR SECTION 2.2, OR (B) EITHER PARTY’S BREACH OF SECTION 7, IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER FOR ANY SPECIAL, INDIRECT, RELIANCE, INCIDENTAL OR CONSEQUENTIAL DAMAGES OF ANY KIND, LOST OR DAMAGED DATA, LOST PROFITS OR LOST REVENUE, WHETHER ARISING IN CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, EVEN IF A PARTY HAS BEEN NOTIFIED OF THE POSSIBILITY THEREOF.
2. General Cap on Liability. NOTWITHSTANDING ANY OTHER PROVISION OF THE AGREEMENT, EXCEPT FOR (A) CUSTOMER’S BREACH OF SECTION 1 OR SECTION 2.2, (B) EITHER PARTY’S BREACH OF SECTION 7, AND (C) LIABILITY ARISING FROM A PARTY’S INDEMNIFICATION OBLIGATIONS SET FORTH IN SECTION 9, UNDER NO CIRCUMSTANCES WILL EITHER PARTY’S LIABILITY FOR ALL CLAIMS ARISING UNDER OR RELATING TO THE AGREEMENT, REGARDLESS OF WHETHER ANY ACTION OR CLAIM IS BASED ON CONTRACT, TORT, OR OTHERWISE, EXCEED THE AGGREGATE FEES PAID AND PAYABLE BY CUSTOMER TO LINUS HEALTH UNDER THE AGREEMENT DURING THE TWELVE (12) MONTH PERIOD PRECEDING THE EVENT OR CIRCUMSTANCES GIVING RISE TO SUCH LIABILITY. THIS LIMITATION OF LIABILITY IS CUMULATIVE AND NOT PER INCIDENT.
3. Independent Allocations of Risk. EACH PROVISION OF THE AGREEMENT THAT PROVIDES FOR A LIMITATION OF LIABILITY, DISCLAIMER OF WARRANTIES, OR EXCLUSION OF DAMAGES IS TO ALLOCATE THE RISKS OF THE AGREEMENT BETWEEN THE PARTIES. EACH OF THESE PROVISIONS IS SEVERABLE AND INDEPENDENT OF ALL OTHER PROVISIONS OF THE AGREEMENT, AND EACH OF THESE PROVISIONS WILL APPLY EVEN IF THEY HAVE FAILED OF THEIR ESSENTIAL PURPOSE.
4. Indemnification by Linus Health. Linus Health will indemnify, defend and hold Customer and the officers, directors, agents, and employees of Customer (“Customer Indemnified Parties”) harmless from settlement amounts and damages, liabilities, penalties, costs and expenses (“Liabilities”) that are payable to any third party or incurred by the Customer Indemnified Parties (including reasonable attorneys' fees) arising from, directly or indirectly, any claim, demand or allegation by a third party that arises out of any copyright infringement claim that involves, relates to or concerns the Documentation or the Linus Platform (except for claims for which Linus Health is entitled to indemnification under Section 9.5, in which case Linus Health will have no indemnification obligations with respect to such claim). Linus Health will have no liability or obligation under this Section 9.4 with respect to any Liability if such Liability is caused in whole or in part by: (a) modification of the Documentation or the Linus Platform by any party other than Linus Health without Linus Health’s express consent; (b) the combination, operation, or use of the Documentation or the Linus Platform with other product(s), data or services where the Linus Platform, as applicable, would not by itself be infringing; or (c) unauthorized or improper use of the Documentation or the Linus Platform. If the use of the Documentation or the Linus Platform by Customer has become, or in Linus Health’s opinion is likely to become, the subject of any claim of infringement, Linus Health may at its option and expense (i) procure for Customer the right to continue using the Documentation or the Linus Platform, as applicable, as set forth hereunder; (ii) replace or modify the Documentation or the Linus Platform, as applicable, to make it non-infringing so long as the replacement or modification has at least equivalent functionality; or (iii) if options (i) or (ii) are not reasonably practicable, terminate the Agreement (subject to providing Customer with a pro-rata refund with respect to any prepaid fees for the Services that were unusable). This Section 9.4 states Linus Health’s entire obligation and Customer’s sole remedies in connection with any claim regarding the intellectual property rights of any third party.
5. Indemnification by Customer. Customer will indemnify, defend and hold Linus Health and the officers, directors, agents, and employees of Linus Health (“Linus Health Indemnified Parties”) harmless from Liabilities that are payable to any third party or incurred by the Linus Health Indemnified Parties (including reasonable attorneys' fees) arising from, directly or indirectly, any claim, demand or allegation by a third party: (a) arising from or related to any use or disclosure by Customer of the Documentation or the Linus Platform or any portion thereof in violation of the Agreement: or (b) a breach or alleged breach by Customer of Section 1 or Section 2.2.
6. Indemnification Procedure. If a Customer Indemnified Party or a Linus Health Indemnified Party (each, an “Indemnified Party”) becomes aware of any matter for which it believes it should be indemnified under Section 9.4 or Section 9.5, as applicable, involving any claim, action, suit, investigation, arbitration or other proceeding against the Indemnified Party by any third party (each an “Action”), the Indemnified Party will give the other party (the “Indemnifying Party”) prompt written notice of such Action. The Indemnified Party will cooperate, at the expense of the Indemnifying Party, with the Indemnifying Party and its counsel in the defense, and the Indemnified Party will have the right to participate fully, at its own expense, in the defense of such Action with counsel of its own choosing. Any compromise or settlement of an Action will require the prior written consent of both Parties, such consent not to be unreasonably withheld, conditioned or delayed.
GENERAL
1. Customer shall comply with any restrictions, laws or regulations of the United States Department of Commerce, the United States Department of Treasury Office of Foreign Assets Control (“OFAC”), or any other United States or foreign agency or authority with respect to the subject matter of this Agreement.
2. If any provision of the Agreement is found to be unenforceable or invalid, that provision will be modified, limited or eliminated to the minimum extent necessary to effectuate the intent of the parties and so that the Agreement will otherwise remain in full force and effect and enforceable.
3. Neither party may assign the Agreement or assign or delegate its rights or obligations under the Agreement without the other party’s prior written consent; provided, however, that either party may assign the Agreement to an acquirer of or successor to all or substantially all of its business or assets to which the Agreement relates, whether by merger, sale of assets, sale of stock, reorganization or otherwise. Any assignment or attempted assignment by either party otherwise than in accordance with this section 10 will be null and void.
4. This Agreement is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements, communications and other understandings relating to the subject matter of the Agreement. All waivers and modifications must be in a writing signed by both parties, except as otherwise provided herein.
5. The relationship between the parties is that of independent contractors. No agency, partnership, joint venture, or employment is created as a result of the Agreement and a party does not have any authority of any kind to bind the other party in any respect whatsoever; provided that the parties do not intend the foregoing to restrict Linus Health from performing its obligations under this Agreement.
6. All notices under the Agreement will be in writing and sent to the recipient’s address set forth in the order form and will be deemed to have been duly given when received, if personally delivered; when receipt is electronically confirmed, if transmitted by email; the day after it is sent, if sent for next day delivery by recognized overnight delivery service; and upon receipt, if sent by certified or registered mail, return receipt requested. Each party agrees that it will not, without prior written consent of the other, issue a press release regarding their business relationship.
7. Linus Health may mention customer and the relationship between Linus Health and customer in Linus Health’s marketing collateral, website, and other promotional and marketing materials.
8. Each party will be excused from performance for any period during which, and to the extent that, it is prevented from performing any obligation or service (except for any payment obligations hereunder), in whole or in part, as a result of a cause beyond its reasonable control and without its fault or negligence, including, but not limited to, acts of god, acts of war, pandemics, fire, communication line failures, power failures, earthquakes, floods, blizzard, or other natural disasters (but excluding failure caused by a party's financial condition or any internal labor problems (including strikes, lockouts, work stoppages or slowdowns, or the threat thereof)) (a “force majeure event”). Delays in performing obligations due to a force majeure event will automatically extend the deadline for performing such obligations for a period equal to the duration of such force majeure event. Except as otherwise agreed upon by the parties in writing, in the event such non-performance continues for a period of thirty (30) days or more, either party may terminate the Agreement by giving written notice thereof to the other party. Upon the occurrence of any force majeure event, the affected party will give the other party written notice thereof as soon as reasonably practicable of its failure of performance, describing the cause and effect of such failure, and the anticipated duration of its inability to perform.
9. This Agreement will be governed by the laws of the Commonwealth of Massachusetts without regard to its otherwise applicable conflicts of law provisions. For all disputes relating to the Agreement, each party submits to the exclusive jurisdiction of the United States District Court for the Eastern District of Massachusetts or the state courts of Suffolk County, Massachusetts if there is no federal jurisdiction, and waives any jurisdictional, venue, or inconvenient forum objections to such courts. THE PARTIES WAIVE ANY AND ALL RIGHT TO A TRIAL BY JURY FOR A DISPUTE RELATED TO THIS AGREEMENT. Any unauthorized use of the Linus Platform may cause irreparable harm and injury to Linus Health for which there may be no adequate remedy at law. In addition to all other remedies available under the agreement, at law or in equity, Linus Health will be entitled to seek injunctive relief without the necessity of posting bond or other security, or proof of actual damages, in the event Customer uses the Services, the Documentation, or the Linus Platform in violation of this Agreement.