SUBSCRIPTION TERMS AND CONDITIONS

These Subscription Terms and Conditions set forth the terms and conditions pursuant to which INCAMedical provides Subscriber access to the Platform and the Services (as described below).  These terms are incorporated into and govern the preceding Order Form. Capitalized terms not defined here shall have the meaning given to them in the Order Form. Acceptance of the Order Form or Subscriber’s use of or access to the Platform and/or the Services shall constitute Subscriber’s unconditional acceptance of the Agreement. INCAMedical and Subscriber are sometimes referred to herein collectively as the “Parties” or individually as a “Party”.

1. Definitions.  The below capitalized terms have the meanings set forth below or in the referenced provision.  Other capitalized terms used herein are defined as they arise in this Agreement.

1. “Confidential Information” means, with respect to a Party, all non-public information regarding such Party and its suppliers, customers and partners and their respective businesses, technologies or research disclosed by or on behalf of such Party in connection with this Agreement, that is either designated as proprietary and/or confidential or, by the nature of the circumstances surrounding disclosure, should in good faith be treated as proprietary and/or confidential.  The Documentation and all non-public information regarding the Platform, the Platform Services (including but not limited to their performance, operation and data formats), and the data shared and collected during the onboarding and implementation process shall be deemed the Confidential Information of INCAMedical.  The Subscriber Content shall be deemed the Confidential Information of Subscriber.  The compensation to be paid by Subscriber is the Confidential Information of both Parties.  Notwithstanding the foregoing, Confidential Information will not include any information that the Party receiving such information can establish by convincing written evidence: (a) was independently developed by the receiving Party without use of or reference to any Confidential Information belonging to the other Party; (b) was acquired by the receiving Party from a third party having the legal right to furnish same to the receiving Party; or (c) was at the time in question (whether at disclosure or thereafter) generally known by or available to the public (through no fault of the receiving Party).

1. “Documentation” means the user documentation provided to Subscriber with respect to the use of the Platform and the Platform Services, as updated from time to time by INCAMedical.
2. “Platform” means, the modules of INCAMedical’s proprietary clinical asset management platform, which Subscriber has purchased a subscription (and as more fully described on Exhibit A).
3. “Registered User” means an individual manager or coordinator employed by Subscriber who has been authorized by Subscriber to access the INCAMedical Systems on behalf of Subscriber, and who has been provided a unique user name and password for such access.
4. “Subscriber Content” means all text, data, graphics, pictures or other content that Subscriber or Registered Users input, post or upload into the Platform, including but not limited to all content relating to Subscriber’s facilities.  As set forth in Section 5.2(b), Subscriber Content is the Confidential Information of Subscriber.

2. Subscription; Subscription Restrictions.

1. Subscription to INCAMedical Platform.  Subject to the terms and conditions in this Agreement, INCAMedical grants to Subscriber, and Subscriber accepts, a nonexclusive, nontransferable subscription (the “Subscription”), without the right to sublicense, to remotely access, via the Internet, an executing instance of the INCAMedical Platform (collectively, the “Platform Services”), solely for Subscriber’s internal business use.
2. Registered Users.  Each Registered User shall access the Platform using the unique login and password associated with such Registered User.  Subscriber shall not permit any unauthorized use of the Platform or the Platform Services.  All acts and omissions of Registered Users shall be deemed to be those of Subscriber, and Subscriber shall be responsible therefor.  Subscriber shall keep all passwords safe and secure, and shall be responsible for all use of the Platform and the Platform Services using passwords issued to Subscriber and Registered Users.  Subscriber shall notify INCAMedical immediately of any actual or suspected (a) unauthorized use of its passwords for the Platform or the Platform Services, or (b) other violation of this Section 2.2, and shall in each case take further steps as may reasonably be requested by INCAMedical to prevent or remedy any such violation.  Without limiting any of its other rights or remedies, INCAMedical reserves the right to suspend any Registered User’s right to access the Platform and the Platform Services if INCAMedical reasonably believes that such Registered User has materially violated the restrictions and obligations in this Agreement (in which case, it shall provide Subscriber prompt written notice of such suspension).
3. Subscriber Responsibilities and Cooperation.  Subscriber shall be solely responsible, at its expense, for devices and hardware in connection with establishing, maintaining, and operating its connection to the Internet (the speed of which may have a significant impact on the responsiveness of the Platform Services), including all access lines, all Internet service provider connection charges, and any long distance telephone charges.  Subscriber shall: (a) reasonably cooperate with INCAMedical in all matters relating to the Platform and Platform Services; and (b) respond promptly to any INCAMedical request to provide information, approvals, authorizations or decisions that are reasonably necessary for INCAMedical to provide the Platform Services in accordance with this Agreement.
4. No Modification, Reverse Engineering, etc.  Subscriber shall not, nor shall Subscriber permit any Registered User to, (a) copy, modify or create derivative works of the Platform or the Platform Services, or (b) access, attempt to access or otherwise interfere with the hosting servers, the Platform or the Platform Services (other than to access the functionality of the Platform and the Platform Services in accordance with the terms of this Agreement).
5. Security.  As part of the Platform Services, INCAMedical (or its subcontractors as applicable) shall use good faith efforts to implement security measures (such as password protection and encryption) and maintain such other safeguards (including virus protection safeguards) which are reasonably intended to prevent the destruction, loss, interception, or alteration of Subscriber Content by unauthorized persons and which are consistent with current commercial practices in the industry.  Subscriber expressly recognizes that, although INCAMedical shall take such reasonable steps, or cause such reasonable steps to be taken, to prevent security breaches, it is impossible to maintain flawless security.  Subscriber and its Registered Users will not attempt to disable, modify or circumvent any security safeguard adopted by INCAMedical.
6. Assessment and Onboarding Services.  During the initial stages of the Subscription Term (as defined in Section 3.1 below), INCAMedical will perform the onboarding, assessment, training, other related services as set forth in the Platform Description (the “Assessment and Onboarding Services” and, together with the Platform Services, the “Services”).

3. Subscription Term and Termination.  

1. Term of Subscription.  Subject to earlier termination as described in Section 3.2 or Section 3.3, and unless otherwise agreed in writing by the Parties, this Agreement shall commence on the Effective Date and continue for the period of time specified on the Order Form (such period being referred to as the “Initial Subscription Term”).  Thereafter, unless specified otherwise on the Order Form, this Agreement shall automatically renew for successive renewal terms of 12 months each (each a “Renewal Subscription Term,” and, together with the Initial Subscription Term, the “Subscription Term”), unless either Party notifies the other Party in writing of its desire not to renew at least thirty (30) days prior to the expiration of the Initial Subscription Term or Renewal Subscription Term then in effect.

2. Termination.  This Agreement may be terminated prior to the expiration of the Subscription Term by either Party, if the other Party materially breaches any provision of this Agreement and such breach remains uncured for at least sixty (60) days following notice thereof.
3. Pilot Termination.  If applicable, during the Pilot Term as set forth on the Order Form, the Subscriber may terminate the Agreement at any time upon thirty (30) days written notice to INCAMedical.
4. Effects of Termination.

1. Except as expressly provided herein, upon any expiration or termination of this Agreement: (i) all rights, subscriptions and obligations of Subscriber to access and use the Platform and the Services shall immediately cease and terminate and Subscriber and its Registered Users shall cease to use and access the Platform and the Services; (ii) Subscriber shall pay INCAMedical in full any remaining unpaid amounts owed to INCAMedical authorized hereunder; and (iii) Subscriber shall return or destroy (and cause its Registered Users to destroy) all copies of the Documentation provided to Subscriber by INCAMedical.
2. Notwithstanding the foregoing, the provisions of Sections 1, 2.2, 2.3, 2.4, 3.3, 4, 5, 6, 7 and 8 shall survive the termination of this Agreement in accordance with their terms.

4. Payment.

5. Subscription Fees.  Subscriber shall pay INCAMedical the subscription fees (“Subscription Fees”) set forth in the Order Form when due in accordance with the Order Form.  The Subscription Fees shall remain unchanged during the Initial Subscription Term.  INCAMedical may change the Subscription Fees for Renewal Subscription Terms by notifying Subscriber in writing of such change at least [forty-five (45)]days in advance of the Renewal Subscription Term in which such change or increase will take effect.  
6. Taxes.  Subscriber acknowledges that it is responsible for any sales, value-added, use or other taxes, tariffs and governmental charges that are due in connection with the sale and provision of, and access to, the Platform and the Services hereunder (except taxes based on INCAMedical’s net income for which INCAMedical shall be solely responsible), and that if INCAMedical is required to pay any such taxes or charges based on the Platform, the Services or other items provided to Subscriber, then such charges shall be billed to and paid by Subscriber.  Subscriber shall obtain and provide to INCAMedical any certificate of exemption or similar document required to exempt any transaction under this Agreement from sales tax, use tax or other tax liability.
7. Payment Terms.  Subscriber shall pay any setup fee shown in the Order Form within thirty (30) days from the Effective Date.  Subscriber shall pay the first monthly license fee described in the Order Form no later than the last business day in the calendar month in which the Effective Date occurs.  Thereafter, monthly license fees shall be due on or before the first calendar day of each month.  All payments shall be made in U.S. Dollars.  In addition to any other remedies available to INCAMedical hereunder, if Subscriber fails to pay any amounts within thirty (30) days after payment is due, then Subscriber shall pay INCAMedical a late payment charge equal to 1.25% per month (or the highest rate permitted by law, if lower), together with all costs and expenses, including reasonable attorney fees, incurred by INCAMedical in collecting such overdue amounts.

5. Ownership, Intellectual Property Rights and Nondisclosure.

8. Ownership and Intellectual Property Rights.  INCAMedical and its licensors are the sole owners of the Platform, and of all copyright, trade secret, patent, trademark and other intellectual property rights therein and thereto. This Agreement does not provide Subscriber with any rights to the Platform, the Services, or any copies thereof except as expressly set forth herein.  As between Subscriber and INCAMedical, Subscriber is the sole owner of the Subscriber Content and all intellectual property right therein and thereto, and this Agreement does not provide INCAMedical with any rights to the Subscriber Content except as expressly set forth herein.
9. Confidentiality Obligations.

1. Confidential Information.  Each Party agrees that during the Subscription Term and thereafter: (i) it will use Confidential Information belonging to the other Party solely for the purpose(s) of this Agreement; and (ii) it will take reasonable precautions, but no less than it would take to prevent the disclosure of its own similar Confidential Information, to ensure that it does not disclose Confidential Information belonging to the other Party to any third party (other than to its employees, contractors, and/or professional advisors on a need-to-know basis who are bound by obligations of nondisclosure and limited use at least as stringent as those contained herein) without first obtaining the other Party’s written consent.  Each Party will be responsible for any breach of this Section 5 by its employees, representatives, and agents.  The terms of this Agreement are the Confidential Information of both Parties, but may be disclosed by either Party with its advisors and potential investors or acquirers who are subject to confidentiality obligations or to enforce its terms.
2. Subscriber Content.  INCAMedical acknowledges and agrees that the Subscriber Content (including but not limited to all content relating to Subscriber’s suppliers) is the Confidential Information of Subscriber and is therefore subject to the restrictions on disclosure and use set forth in Section 5.2(a) above.  Notwithstanding the foregoing, INCAMedical may use Subscriber Data or other Confidential Information of Subscriber to (i) provide the Services to Subscriber as contemplated herein, (ii) monitor Subscriber’s and it Registered Users’ use of the Platform and the Services for security purposes, (iii) enforce the terms of this Agreement, and (iv) to improve and expand the features and functionality of the Platform and the Services for Subscriber and other INCAMedical customers (with INCAMedical’s right set forth in this clause (iv) surviving any expiration or termination of this Agreement).
3. Required Disclosures.  These confidentiality obligations will not restrict any disclosure required by order of a court or any government agency, provided that the Party disclosing such Confidential Information gives prompt notice to the other Party of any such order and reasonably cooperates with the other Party at the other Party’s request and expense to resist such order or to obtain a protective order.

10. Equitable Relief.  Because unauthorized access, use, disclosure or transfer of the Confidential Information or other intellectual property of either Party in violation of this Section 5 of this Agreement will diminish substantially the value of such Confidential Information or other intellectual property and irreparably harm the owner of such Confidential Information or intellectual property, if either Party breaches the provisions of this Section 5 of this Agreement, the other Party shall be entitled to seek equitable relief, including a restraining order, preliminary and permanent injunctive relief, specific performance and any other relief that may be available from any court, without providing a bond or other security, in addition to any other remedy to which such Party may be entitled at law or in equity.

6. Limited Warranty; Limitations of Liability.

11. Warranty.  INCAMedical warrants to Subscriber that the Platform shall perform substantially in accordance with the Documentation.  INCAMedical’s sole obligation, and Subscriber’s sole remedy, with respect to any breach of this limited warranty of performance shall be for INCAMedical to correct such nonconformance, or, if INCAMedical is unable to do so in a timely manner, refund to Subscriber actual damages up to a limit of the Subscription Fees paid for the period during which the breach of warranty occurred.

2. Except for the warranty set forth in Section 6.1 above, INCAMedical makes no representation or warranty whatsoever, and hereby disclaims all representations and warranties, with respect to the Platform and the Services (in each case whether express or implied by law, course of dealing, course of performance, usage of trade or otherwise), including any warranty (a) of merchantability, fitness for a particular purpose, or noninfringement, (b) that the Platform or the Services will meet Subscriber’s requirements, will always be available, accessible, uninterrupted, timely, secure or operate without error, (c) as to the results that may be obtained from the use of the Platform or the Services, or (d) as to the accuracy or reliability of any information obtained from the Platform or the Services.

12. INCAMedical shall in no event be liable for any indirect, special, incidental, exemplary, punitive or consequential damages arising out of or in connection with the use or performance of the Platform or the Services, whether or not INCAMedical has been made aware of the possibility of such damages, including but not limited to any damages resulting from loss of data or content or lost profits.

13. INCAMedical’s liability for damages to subscriber for any claims whatsoever, and for all claims in the aggregate, regardless of the form of any claim or action, shall not exceed the Subscription Fees paid under this Agreement during the twelve (12) month period prior to when the most recent claim arose.

14. Subscriber acknowledges and agrees that the Subscription Fees and other fees under this Agreement have been agreed by INCAMedical in reliance on limitations of liability and disclaimers of warranty set forth in Sections 6.2, 6.3 and 6.4 above and that these provisions are an essential term of this Agreement.

15. Annulment for Improper Use.  Any use of the Platform or the Platform Services in contravention with the terms of this Agreement or the Documentation may annul the warranty set forth in Section 6.1

7. Indemnification.  

16. INCAMedical shall defend, indemnify, and hold harmless Subscriber and its officers, directors, employees, and shareholders from and against any and all any damages, penalties, judgments and reasonable related costs and expenses, including but not limited to reasonable legal fees and expenses, (“Damages”) arising out of any third party claim or allegation (a “Claim”) that Subscriber’s use or access of the Platform or the Platform Services in accordance with the terms of this Agreement infringes the patent, copyright or other intellectual property right of any third party, except to the extent: (a) due to any Subscriber Content or specific materials that Subscriber uses or uploads into the Platform; or (b) such claim is based on Subscriber’s unauthorized or unlawful use of the Platform or the Platform Services (i) in combination with other services and products not supplied by INCAMedical and not required by the Documentation or (ii) in contravention of the Documentation or INCAMedical’s express written directions.
17. Subscriber shall defend, indemnify, and hold harmless INCAMedical and its officers, directors, employees, and shareholders from and against any and all any Damages, including but not limited to reasonable legal fees and expenses, arising out of any third party Claim based on Subscriber’s use of the Platform or the Platform Services, except to the extent covered by the indemnification under Section 7.1.
18. If Subscriber or INCAMedical intends to claim indemnification hereunder (for itself or for another indemnitee) with respect to any Damages arising under a Claim, then Subscriber or INCAMedical (the “Indemnified Party”) shall promptly notify the other Party (the “Indemnifying Party”) of any Claim in respect of which the Indemnified Party (whether for itself or for one of the persons entitled to indemnification under Section 7.1 or 7.2) intends to claim such indemnification reasonably promptly after the Indemnified Party is aware thereof, and the Indemnifying Party shall assume the defense of any related third party action, suit or proceeding with counsel of the Indemnifying Party’s choice.  The indemnity agreement in this Section 7 shall not apply to amounts paid in settlement of any claim, loss, damage or expense if such settlement is effected without the consent of the Indemnifying Party, which consent shall not be withheld or delayed unreasonably.  The failure of the Indemnified Party to deliver notice to the Indemnifying Party within a reasonable time after the Indemnified Party becomes aware of any such matter, if prejudicial to Indemnifying Party’s ability to defend such action, shall relieve the Indemnifying Party of any liability under this Section 7 with respect to such Claim.  The Indemnified Party and all indemnitees shall cooperate fully with the Indemnifying Party and its legal representatives in the investigation of any matter covered by this indemnification.  
19. Should the Platform or the Platform Services become, or in INCAMedical’s opinion, be likely to become the subject of a claim or an injunction preventing its use as contemplated herein, INCAMedical may, at its option (a) procure for Subscriber the right to continue to access the Platform or the Platform Services hereunder, (b) replace or modify the Platform or the Platform Services so that it becomes non-infringing, or, if INCAMedical determines, in its sole discretion, that (a) and (b) are not commercially practical for INCAMedical, then (c) INCAMedical may terminate this Agreement and refund to Subscriber a pro-rated amount of the Subscription Fees paid in advance, if any.

20. This Section 7 states the entire liability of INCAMedical with respect to infringement of third party intellectual property rights by the Platform Services or Platform or any part thereof or by its operation.

8. Miscellaneous.

1. Publicity.  This Agreement does not grant either Party the right to use any trademark, trade name or logo of the other Party in any advertising or promotional material, except that INCAMedical may identify Subscriber as a customer of INCAMedical, including as a subscriber of the Platform, in promotional materials and published lists of INCAMedical’s customers.  Subscriber agrees that INCAMedical may issue a press release, in a form to be mutually agreed by Subscriber and INCAMedical, describing this subscription including a quote from Subscriber.

2. Entire Agreement.  This Agreement (which includes the Order Form, the Platform Description, and the Subscription Terms and Conditions) constitutes the entire agreement between INCAMedical and Subscriber with respect to the subject matter hereof.  No addendum, waiver, consent, modification, amendment or change of the terms of this Agreement shall bind either Party unless in writing and signed by duly authorized officers of Subscriber and INCAMedical.

3. Severability.  In the event that any provision of this Agreement is held by a court of competent jurisdiction to be unenforceable because it is invalid or in conflict with any law of any relevant jurisdiction, the validity of the remaining provisions shall not be affected, and the rights and obligations of the Parties shall be construed and enforced as if the Agreement did not contain the particular provisions held to be unenforceable.

4. Assignments.  Subscriber shall not assign (including but not limited to by operation of law) this Agreement or any of its rights, obligations or subscriptions granted hereunder without INCAMedical’s prior written consent, which shall not unreasonably be withheld, except that Subscriber may assign this Agreement to a successor to its business in connection with a merger or sale of all or substantially all of its assets.  This Agreement shall inure to the benefit of the Parties and their permitted successors and assigns.

5. Notices.  Any notice by a Party under this Agreement shall be in writing and either personally delivered or sent via reputable overnight courier (such as Federal Express) or certified mail, postage prepaid and return receipt requested addressed to the other Party to (a) the address on the Order Form (b) or, in each case, such other address of which either Party may from time to time notify the other in accordance with this Section 8.5.  All notices shall be in English and shall be deemed effective on the date of personal delivery, one business day after deposit with an overnight courier, or five (5) business days after deposit in the mail.

6. Governing Law; Venue.  The validity, construction and interpretation of this Agreement, and the rights and duties of the Parties, shall be governed by and construed in accordance with the laws of the Commonwealth of Massachusetts, U.S.A.  The United National Convention for the International Sale of Goods shall not apply.  Other than as necessary to enforce any final judgment, award or determination or to obtain a preliminary injunction or other equitable relief to safeguard a party’s intellectual property or confidential information, any action brought pursuant to or in connection with this Agreement shall be brought only in the state or federal courts within the Commonwealth of Massachusetts without regard to its conflict of law provisions and both Parties submit to the personal jurisdiction, and waive any objections to venue, of such courts.

7. No Waiver.  The waiver by either Party of a breach of a default of any provision of this Agreement by the other Party shall not be construed as a waiver of any succeeding breach of the same or any other provision, nor shall any delay or omission on the part of either Party to exercise or avail itself of any right, power or privilege that it has, or may have thereunder, operate as a waiver of any right, power or privilege by such Party.

8.  Section Headings.  Captions and section headings hereof are for reference purposes only and shall not control or alter the meaning of this Agreement as set forth in the text.
9.  Force Majeure.  In the event that either Party is unable to perform any of its obligations under this Agreement because of causes beyond its reasonable control or because of any Act of God, accident to equipment or machinery; any fire, flood, hurricane, tornado, storm or other weather condition; any war, act of war, act of public enemy, terrorist act, sabotage, riot, civil disorder, act or decree of any governmental body; any failure of communications lines, transportation, light, electricity or power; any earthquake, civil disturbance, commotion, lockout, strike or other labor or industrial disturbance; or any illness, epidemic, quarantine, death or any other natural or artificial disaster the Party who has been so affected shall immediately give notice to the other Party and shall do everything reasonably possible to resume performance.  Upon receipt of such notice, all obligations under this Agreement shall be immediately suspended and performance times shall be considered extended for a period of time equivalent to the time lost because of any such delay.  Nothing provided herein shall excuse the delay of any payment that is validly due by Subscriber under this Agreement.