This Nonin Health Platform License and Subscription Agreement (“Agreement”) is by and between Nonin Medical, Inc. (“Nonin Medical”), and the organization or sole proprietorship on whose behalf you are agreeing to this Agreement, as set forth on the Purchase Order (“Customer”). This Agreement governs Customer’s purchase, license and use of the Nonin Health® Platform and Support Services.

No terms, provisions or conditions of any purchase order, acknowledgement or other business form that Customer may use in connection with this Agreement will have any effect on the rights, duties or obligations of the parties under this Agreement, or otherwise modify this Agreement, regardless of any failure of Nonin Medical to object to such terms, provisions, or conditions. Any purchase order or similar document from Customer will be for billing reference only unless otherwise agreed by Nonin Medical in writing bearing the signature of an authorized Nonin Medical representative.

Unless otherwise specified, all capitalized terms used in this Agreement have the meanings set forth on Exhibit A.

For good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties agree as follows:

1. LICENSE GRANT AND PROVISION OF NONIN HEALTH PLATFORM

1.1 License Grant. Subject to the terms and conditions of this Agreement, Nonin Medical grants Customer a non-exclusive, limited, revocable, non-transferable and non-sublicenseable license to use the Nonin Health Platform only: (a) during the applicable Subscription Term, (b) internally for Customer’s own internal business purposes, and not for resale or license to third parties, (c) by the authorized Users and number of Users, (d) subject to any additional applicable Usage Allowances, and (e) in accordance with any additional rights and limitations specified in the Purchase Order.

1.2 Restrictions. Customer will not directly or indirectly, nor authorize any of its Users, Representatives or any third party to, do any of the following: (a) use or access any Nonin Health Platform for which Customer has not paid the applicable fees, regardless of whether such Nonin Health Platform is accessible by Customer; (b) copy, modify or create derivative works of the Nonin Health Platform; (c) publish, sublicense, sell, resell, rent, lease, market or distribute the Nonin Health Platform, including using on a service bureau, outsourcing or time sharing basis; (d) reverse engineer, decompile, disassemble or otherwise attempt to gain access to the source code form of the Nonin Health Platform; (e) use the Nonin Health Platform or associated User documentation in violation of any applicable law, including export laws; (f) remove any proprietary notices from the Nonin Health Platform, User documentation or any other Nonin Medical materials furnished or made available hereunder; (g) use or access the Nonin Health Platform in order to (i) build a competitive product or service, or (ii) copy any features, functions or graphics of the Nonin Health Platform; (h) make the Nonin Health Platform available to anyone other than Users; (i) interfere with or disrupt the integrity or performance of the Nonin Health Platform or any data contained therein; (j) attempt to gain unauthorized access to the Nonin Medical Platform or its related data, systems or networks; (k) use the Nonin Health Platform to store or transmit infringing, libelous, or otherwise unlawful or tortious material, or to store or transmit material in violation of third party privacy rights; (l) publish or disclose to third parties any evaluation of the Nonin Health Platform without Nonin Medical’s prior written consent; (m) publish or disclose to third parties any data or information on Customer’s results from using the Nonin Health Platform, without Nonin Medical’s prior written consent; (n) perform vulnerability, load or any other test of the Nonin Medical Platform without Nonin Medical’s prior written consent; or (o) violate the Acceptable Use Policy set forth in Exhibit B. Customer is responsible for compliance by each User and Representative with the terms of this Agreement.

1.3 No Other Rights. Except as expressly set forth in this Agreement, no additional rights are granted to Customer. Nonin Medical hereby reserves all rights not expressly granted to Customer under this Agreement. Nonin Medical and its Affiliates retain ownership of all right, title and interest, including all related Intellectual Property Rights, in and to the Nonin Health Platform and Support Services.

2. AFFILIATES; ACCOUNTS; ACCESS AND DELIVERY

2.1 Affiliates. Customer may allow its Affiliates to use the Nonin Health Platform made available to Customer hereunder for the benefit of Customer and its Affiliates, provided that Customer will be responsible for the acts and omissions of its Affiliates as if such acts and omissions were those of Customer. Customer Affiliates may also order Nonin Health Platforms under this Agreement by either of the following methods: (a) pursuant to an Purchase Order executed by Customer and Nonin Medical, in which case Customer will be responsible for such Affiliate’s compliance with the terms and conditions of this Agreement, including payment obligations, or (b) pursuant to a Purchase Order executed by such Affiliate and Nonin Medical under which such Affiliate agrees to the terms and conditions of this Agreement and will be “Customer” for all purposes under this Agreement with respect to such Purchase Order only. With respect to any such Purchase Order signed by an Affiliate, the relevant Affiliate will be solely liable for its own compliance with the terms and conditions of this Agreement, including payment obligations.

2.2 Accounts. In order to use the Nonin Health Platform, Customer and each User must create an account (“Account”). Customer will (a) provide accurate and complete Account and login information, and keep such information current, (b) keep, and ensure that Users keep, all Account login details and passwords secure at all times, (c) remain solely responsible and liable for the activity that occurs in connection with Customer’s Account, and the activities of Users on or relating to the Nonin Health Platform, whether or not Customer knows of such activity, and (d) promptly notify Nonin Medical in writing if Customer becomes aware of any unauthorized access or use of Customer’s Account or the Nonin Health Platform. Customer is responsible for obtaining and maintaining any hardware, software and network infrastructure (“Customer Equipment”) and any ancillary services needed to connect to, access or otherwise use the Nonin Health Platform, and ensuring that the Customer Equipment and ancillary services comply with the configuration requirements specified by Nonin Medical, and all costs and fees associated therewith.

2.3 Delivery; Installation. The Nonin Health Platform licensed for installation on Customer’s premises will be delivered to Customer electronically, and Customer is responsible for installing the Nonin Health Platform, including configuration and settings, unless Customer has engaged Nonin Medical to provide or assist with implementation. The Nonin Health Platform will be deemed delivered to Customer upon notice of availability for download or access and login instructions, which will include email notices to a Customer designated contact or other Customer representative. Nonin Medical will not provide any media or hard copy User documentation to Customer.

3. SUPPORT SERVICES

3.1 Support Services. Nonin Medical and its Affiliates will provide Support Services for the Nonin Health Platform, as applicable (a) for the duration of the Subscription Term, and (b) to the extent and for the time period that Customer pays the associated fees without interruption. Nonin Medical reserves the right, in its sole discretion, to modify, discontinue, add, adapt, or otherwise change its Support Services, but will not take any such action during a Subscription Term that would materially reduce or degrade the applicable Support Services. Support Services will terminate upon expiration or termination of the Subscription Term or upon Customer’s failure to pay applicable fees for such Support Services.

3.2 Subcontractors. Nonin Medical reserves the right to engage subcontractors to perform its obligations under this Agreement.

4. PRICES AND PAYMENT; TAXES

4.1 Fees and Expenses. Customer will pay all fees specified in each Purchase Order and any applicable additional fees if Customer exceeds the allotted capacity, use or access rights, or other applicable Usage Allowances specified in the Purchase Order. Except as otherwise specified herein or in an Purchase Order (a) fees are payable in United States dollars, (b) fees are based on Nonin Health Platform purchased, whether or not Customer uses the Nonin Health Platform purchased, (c) payment obligations are non-cancellable and fees paid are non-refundable, (d) the Nonin Health Platform will be deemed accepted upon delivery, and (e) the number of Users and Usage Allowances purchased cannot be decreased during the relevant Subscription Term.  All amounts payable under this Agreement will be made without setoff or counterclaim, and without any deduction or withholding by Customer.  Fees are due in advance of each Subscription Term.   Customer agrees to use any designated accounts receivable portal provided by Nonin Medical for payments.  In the event payment by credit card is accepted by Nonin, Customer agrees to pay a surcharge as a percentage of the invoice at the rate then in effect and communicated by Nonin to Customer.   Customer agrees that prepayments will be automatically billed, charged and processed to Customer’s Account.  In the event advance payment is cancelled by Customer for any reason or Customer’s automatic billing is otherwise rejected for payment, the Subscription Term will automatically terminate without further notice.  Fees due for a Subscription Term which begins in the middle of a month will be prorated for the first month.

4.2 Past Due Payment. If any payment is not made when due, interest will begin to accrue and be payable at the lesser of the maximum rate permitted under applicable law or 1.5% per month, accrued from the date due until paid in full. If any amount owed by Customer under this Agreement or any other agreement between the parties is 10 days or more overdue, Nonin Medical may, without limiting Nonin Medical’s other rights and remedies, accelerate Customer’s unpaid fee obligations under this Agreement and the other agreements so that all such obligations become immediately due and payable, and suspend the Nonin Health Platform and Support Services until such amounts are paid in full. Nonin Medical will not exercise the foregoing rights if the applicable fees are under reasonable and good faith dispute and Customer is cooperating diligently to resolve the issue.

4.3 Taxes. Customer is solely responsible for the payment of, and will pay when due, all applicable Taxes now in force, enacted or imposed in the future arising from or relating to this Agreement and the provision of products and services under this Agreement including sales, service, use or value added taxes. If for any reason Nonin Medical pays any such Taxes, Customer will reimburse Nonin Medical for such Taxes. “Taxes” means any form of taxation, levy, duty, charge, contribution or impost of whatever nature and by whatever authority imposed (including any fine, penalty, surcharge or interest), excluding any taxes based solely on the net income of Nonin Medical. If Customer is required under any applicable law or regulation, domestic or foreign, to withhold or deduct any portion of the payments due to Nonin Medical, then the sum payable to Nonin Medical will be increased by the amount necessary so that Nonin Medical receives an amount equal to the sum it would have received had Customer made no withholdings or deductions.

4.4 Right to Audit.  Nonin Medical will have the right upon reasonable notice during the term of this Agreement and for two years thereafter, to perform an audit at Customer’s facilities insofar as may be necessary or desirable, in Nonin Medical’s judgment, to determine Customer’s compliance with its rights and obligations under this Agreement. Nonin Medical and Nonin Medical’s independent auditors will have access to Customer’s books and records, and operations at reasonable times during normal business hours, with reasonable prior written notice and Customer agrees to cooperate in all respects necessary to enable Nonin Medical and its independent auditors to carry out the intent and purposes of this Section. Nonin Medical may notify Customer of any deficiencies in performance discovered in any such audit, which deficiencies will be promptly corrected by Customer including Customer’s payment of applicable fees for exceeding any User and/or Usage Allowance or for using or accessing the Nonin Health Platform for which Customer has not paid the applicable fees. All information disclosed to such third party auditor or otherwise observed or learned by such third party auditor will be deemed Customer’s Confidential Information (defined below).

5. SECURITY AND DATA PRIVACY

5.1 Security and Internal Controls. The Nonin Health Platform is intended solely for use in the United States.  Nonin Medical will: (a) maintain a security framework of policies, procedures and controls that includes administrative, physical and technical safeguards for the protection of the security and integrity of the Nonin Health Platform and of the Customer Data, using reasonable and appropriate measures in accordance with prevailing industry practices and standards, (b) access and use the Customer Data solely to perform its obligations in accordance with the terms of this Agreement and or as otherwise expressly permitted in this Agreement, and (c) perform periodic testing by independent third party audit organizations.

5.2 Cloud Provider. As of the Last Updated date above, Microsoft Azure hosts the SaaS services of the Nonin Health Platform. Nonin Medical will provide Customer with 60 days advance notice of any change in the cloud hosting provider.

5.3 Data Storage, Security, and Backup.

5.3.1 Customer Data uploaded into the Nonin Health Platform is backed up at the frequency and for the duration specified by Nonin Medical in accordance with its current policies, as may be set forth in the Nonin Health Platform documentation. EXCEPT FOR NONIN MEDICAL’S SECURITY OBLIGATIONS, NONIN MEDICAL HAS NO OBLIGATION OR LIABILITY FOR ANY LOSS, ALTERATION, DESTRUCTION, DAMAGE, CORRUPTION, OR RECOVERY OF CUSTOMER DATA UPLOADED TO OR CREATED IN THE NONIN HEALTH PLATFORM.

5.3.2 Nonin Medical will be responsible for the security of Customer Data as processed by the Nonin Health Platform solely in connection with Customer’s proper and authorized use of the Nonin Health Platform in accordance with the terms of this Agreement, except that Nonin Medical’s obligations with respect to the storage and security of Customer Data are limited to Nonin Medical’s responsibilities described in the Microsoft Azure Shared Responsibility Model at https://learn.microsoft.com/en-us/azure/security/fundamentals/shared-responsibility.

5.4 Compliance with Law. Nonin Medical will comply with all laws applicable to the provision of the Nonin Health Platform.

5.5 Temporary Limitation of Access and Use Rights. Nonin Medical may temporarily limit Customer’s or any User’s right to access or use the Nonin Health Platform upon notice to Customer (which will be reasonable prior notice unless Nonin Medical reasonably believes immediate limitation is necessary) if Nonin Medical reasonably determines that (a) there is a threat or attack on any of the Nonin Health Platform, or (b) Customer’s or a User’s use of the Nonin Health Platform violates Nonin Medical’s Acceptable Use Policy, poses a security risk or threat to the function of the Nonin Health Platform, or poses a security or liability risk or threat to Nonin Medical, its Affiliates or any third party. Nonin Medical will restore Customer’s access and use rights promptly after Customer has resolved the issue giving rise to the limitation. Customer remains responsible for all fees and charges for the Nonin Health Platform during the period of limitation.

6. CUSTOMER DATA AND OBLIGATIONS

6.1 Customer Ownership. Customer is and will remain the sole and exclusive owner of all right, title and interest to all Customer Data, including any Intellectual Property Rights therein. Customer hereby grants Nonin Medical all necessary rights to host, use, process, store, display and transmit Customer Data solely as necessary for Nonin Medical to provide the Nonin Health Platform in accordance with this Agreement or as otherwise permitted by agreement with Customer or by law. Customer represents and warrants to Nonin Medical that Customer is the owner or the licensee of all Intellectual Property Rights in and to the Customer Data.

6.2 Responsibilities. Customer will (a) access and use the Nonin Health Platform in accordance with this Agreement, applicable laws, rules, and regulations and Nonin Medical’s Acceptable Use Policy, and (b) use commercially reasonable efforts to prevent unauthorized access to or use of the Nonin Health Platform and notify Nonin Medical promptly of any such unauthorized access or use.

6.3 Customer Data. Customer will ensure that all Customer Data is at all times compliant with this Agreement, Customer’s privacy policies, and all applicable laws and regulations and conventions. Customer is solely responsible for the accuracy, content and legality of all Customer Data. Customer represents and warrants that Customer has sufficient rights in the Customer Data to grant the rights granted to Nonin Medical hereunder and that the Customer Data does not infringe or violate the intellectual property, publicity, privacy or other rights of any third party.

6.4 Protected Health Information. Customer agrees not to upload to the Nonin Health Platform or provide to Nonin Medical any Protected Health Information unless Customer has entered into a Business Associate Agreement with, and in a form acceptable to, Nonin Medical. Unless a Business Associate Agreement is in place, Nonin Medical will have no liability under this Agreement for Protected Health Information.

7. WARRANTIES; DISCLAIMER

7.1 Nonin Medical Warranty for the Nonin Health Platform. Nonin Medical warrants to Customer that the Nonin Health Platform will perform materially in accordance with the applicable User documentation during the Subscription Term. In the event of breach of the foregoing warranty, as Customer’s exclusive remedy and Nonin Medical’s sole liability and obligation, Nonin Medical will use commercially reasonable efforts to correct the Nonin Health Platform, at no additional charge, or if the foregoing remedy is not commercially practicable, Nonin Medical shall terminate the applicable Purchase Order and access to the Nonin Health Platform upon written notice, Customer shall cease use of the Nonin Health Platform, and Nonin Medical will refund to Customer any pre-paid fees paid by Customer with respect to the unexpired portion of the current Subscription Term for the non-conforming Nonin Health Platform.

7.2 EXCEPT AS EXPRESSLY PROVIDED IN THIS SECTION 7, NONIN MEDICAL MAKES NO OTHER WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND NONIN MEDICAL SPECIFICALLY DISCLAIMS AND EXCLUDES ALL OTHER WARRANTIES AND CONDITIONS, WHETHER STATUTORY, EXPRESS OR IMPLIED, INCLUDING ANY IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT OF THIRD PARTY RIGHTS OR ARISING OUT OF ANY COURSE OF DEALING OR USAGE OF TRADE. NONIN MEDICAL DOES NOT WARRANT THAT THE NONIN HEALTH PLATFORM AND SUPPORT SERVICES WILL MEET CUSTOMER’S NEEDS OR REQUIREMENTS OR THAT THE PROVISION OF THE NONIN HEALTH PLATFORM AND SUPPORT SERVICES WILL BE UNINTERRUPTED OR THAT THE NONIN HEALTH PLATFORM AND SUPPORT SERVICES WILL BE AVAILABLE AT ANY PARTICULAR TIME OR ERROR-FREE. FURTHER, NONIN MEDICAL DOES NOT WARRANT THAT ALL ERRORS IN THE NONIN HEALTH PLATFORM AND SUPPORT SERVICES ARE CORRECTABLE OR WILL BE CORRECTED. CUSTOMER MAY HAVE OTHER STATUTORY RIGHTS, BUT THE DURATION OF STATUTORILY REQUIRED WARRANTIES, IF ANY, WILL BE LIMITED TO THE SHORTEST PERIOD PERMITTED BY LAW.

8. CONFIDENTIALITY

8.1 Confidential Information. Each party acknowledges on its own behalf, that during the term of this Agreement it (“Receiving Party”) may receive from or on behalf of the other party (“Disclosing Party”) nonpublic information, including business, financial, and technical information reasonably considered by the Disclosing Party to be valuable and proprietary (“Confidential Information”). Confidential Information also includes the terms and conditions of a Purchase Order and/or related documents and may include proprietary or confidential information of third parties that have disclosed such information to the Disclosing Party in the course of its business. Confidential Information will not include information that the Receiving Party can prove: (a) was previously rightfully in the Receiving Party’s possession (in written or other recorded form) with no obligation to maintain confidentiality; (b) was developed by or for Receiving Party independently of, and without use of or reference to, Disclosing Party’s Confidential Information; (c) was received from a third party who is not prohibited from disclosing the information to the Receiving Party by a contractual, legal or fiduciary obligation; or (d) is or became available to and widely known by the public as to be reasonably regarded as public information without breach of this Agreement by the Receiving Party.

8.2 Use and Nondisclosure Obligations. During the term of this Agreement and after its termination, the Receiving Party will: (a) hold the Disclosing Party’s Confidential Information in confidence and use the same degree of care to protect the Disclosing Party’s Confidential Information as it uses for its own Confidential Information of like importance, but in no event using less than a reasonable standard of care; (b) not divulge any such Confidential Information of the Disclosing Party or any information derived therefrom to any third person except to Receiving Party’s Representatives as authorized hereunder; (c) not make any use of the Disclosing Party’s Confidential Information except to carry out its rights and obligations under this Agreement; and (d) not copy the Disclosing Party’s Confidential Information (except as necessary to carry out its rights and obligations under this Agreement). Any Representative of Receiving Party given access to the Disclosing Party’s Confidential Information must have a legitimate “need to know” and must have agreed, either as a condition of employment, representation or in a written agreement in order to obtain the Disclosing Party’s Confidential Information, to be bound by terms and conditions no less protective of the Disclosing Party than this Section 8. The Receiving Party will be liable for any of its Representatives’ failure to comply with such obligation. If the Receiving Party suffers any unauthorized disclosure, loss of, or inability to account for Disclosing Party’s Confidential Information, the Receiving Party will promptly notify and cooperate with the Disclosing Party and take such actions as may be necessary or reasonably requested by the Disclosing Party to minimize the damage. “Representatives” means, with respect to a party, such party’s employees, directors, officers, advisors, consultants, subcontractors or other agents or representatives.

8.3 Authorized Disclosures. The Receiving Party may disclose the Disclosing Party’s Confidential Information strictly limited to that required pursuant to the order or requirement of a court, administrative agency, or other governmental body . To the extent not prohibited by law, the Receiving Party will give reasonable notice to the Disclosing Party to allow the Disclosing Party to contest such order or requirement or seek confidentiality treatment. Each party may disclose the terms and conditions of this Agreement: (a) on a confidential basis to legal or financial advisors; (b) pursuant to reports, applications or similar filings submitted to regulatory agencies and governing authorities as required by applicable law; or (c) on a confidential basis in connection with any financing transaction or due diligence inquiry.

9. INDEMNIFICATION

9.1 Nonin Medical Obligations. Nonin Medical will defend, indemnify and hold harmless Customer and its Affiliates from and against any liability, claim, damage, cost or expense (including reasonable attorneys’ fees) awarded against Customer or agreed upon by Nonin Medical in settlement to the extent arising out of or resulting from a claim by a third party that Customer’s permitted use of the Nonin Health Platform infringes or misappropriates any copyright, trade secret or any patent of a third party issued in the United States.

9.1.1 If a claim under this Section 9.1 is brought or threatened, or Nonin Medical believes is likely to occur, Nonin Medical may, at its option, (a) procure for Customer the right to use the Nonin Health Platform, or (b) replace the Nonin Health Platform with non-infringing products or services that are functionally equivalent in all material respects, or (c) if options (a) and/or (b) above cannot be accomplished despite Nonin Medical’s commercially reasonable efforts, then Nonin Medical may terminate this Agreement with respect to such Nonin Health Platform, as applicable, and upon return or cessation of use of the Nonin Health Platform, as applicable, issue a pro-rata refund or credit to Customer for any prepaid fees corresponding to the remaining Subscription Term of the Nonin Health Platform, as applicable, after the date of termination.

9.1.2 Nonin Medical will have no liability under this Agreement or otherwise to the extent a claim is based upon (a) Nonin Medical’s compliance with a Customer-provided specification or instruction, (b) any infringement arising out of the use of the Nonin Health Platform in combination with other hardware, equipment, software or materials not furnished by Nonin Medical (if such infringement would not have occurred but for such combined use), (c) use of the Nonin Health Platform in violation of the applicable User documentation, (d) any patent, copyright or trade secret in which the Customer, or its Affiliate has a direct or indirect interest, (e) modification or alteration of the Nonin Health Platform not made by or for Nonin Medical, if infringement would have been avoided by the absence of the modifications, (f) Nonin Medical’s use of any Customer Data or any other Customer-provided material in accordance with this Agreement, (g) use of any version other than a current release of the Nonin Health Platform, if infringement would have been avoided by use of a current release made available to Customer at no additional cost, (h) Customer’s continuing such allegedly infringing activity after being informed by Nonin Medical and provided, at no additional charge, with modifications that would have avoided the alleged infringement and reasonable time to implement such modifications; (i) Customer’s use of the Nonin Health Platform in breach of this Agreement; or (j) Customer’s use of the Nonin Health Platform after the then-current Subscription Term.

9.1.3 This Section 9.1 contains and limits the entire liability and obligations of Nonin Medical for Intellectual Property Rights infringements by the Nonin Health Platform.

9.2 Customer Obligations. Customer will defend, indemnify and hold harmless Nonin Medical and its Affiliates from and against any liability, claim, damage, cost or expense (including reasonable attorneys’ fees) awarded against Nonin Medical or agreed upon by Customer in settlement to the extent arising out of or resulting from a claim by a third party that Customer Data, or the use, storage, processing or display of Customer Data or any other materials provided by Customer hereunder by Nonin Medical as authorized by Customer hereunder, violates applicable law or a third party’s rights.

9.3 Indemnity Process. The party seeking to be indemnified will give prompt written notice to the other party of the claim against which it seeks to be indemnified and will provide the indemnifying party, at the indemnifying party’s expense, with the assistance reasonably necessary for the defense and settlement of the claim. The failure by the indemnified party to timely furnish to the indemnifying party any notice required to be furnished under this Section 9 will not relieve the indemnifying party of its obligations under this Section 9, except to the extent such failure materially and adversely prejudices the ability of the indemnifying party to defend such claim. The indemnifying party will have sole control of the defense and settlement of any such claim. The indemnifying party will not be liable for any settlement of an action effected without its written consent (which consent will not be unreasonably withheld or delayed), nor will the indemnified party settle any such action without the written consent of the indemnifying party (which consent will not be unreasonably withheld or delayed). The indemnifying party will have no right to settle any claim without the indemnified party’s prior written consent, which will not be unreasonably withheld or delayed, unless the settlement unconditionally releases the indemnified party of all liability. The indemnified party may engage counsel of its choice at its own expense.

10. LIMITATION OF LIABILITY

10.1 Exclusion of Consequential Damages. EXCEPT FOR EXCLUDED CLAIMS, IN NO EVENT WILL EITHER PARTY AND ITS AFFILIATES HAVE ANY LIABILITY TO THE OTHER PARTY OR ITS AFFILIATES FOR ANY LOST PROFITS OR REVENUES OR FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, OR PUNITIVE DAMAGES HOWEVER CAUSED, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE) OR UNDER ANY OTHER THEORY OF LIABILITY, AND WHETHER OR NOT A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

10.2 Limitation on Liability. EXCEPT FOR EXCLUDED CLAIMS, AND FEES DUE BUT UNPAID, IN NO EVENT WILL THE AGGREGATE LIABILITY OF EITHER PARTY AND ITS AFFILIATES ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE) OR UNDER ANY OTHER THEORY OF LIABILITY, EXCEED THE FEES PAID OR PAYABLE BY CUSTOMER TO NONIN MEDICAL UNDER THIS AGREEMENT IN THE 12 MONTHS PRECEDING THE DATE ON WHICH THE EVENT GIVING RISE TO SUCH LIABILITY OCCURRED (“GENERAL LIABILITY LIMIT”). For clarity, amounts awarded to or settled with a third party under Section 9 with respect to an intellectual property infringement claim will be deemed to be direct damages under this Agreement regardless of the characterization of the damages giving rise to such award or settlement, including punitive, special, indirect, consequential or otherwise.

10.3 The foregoing limitations in this Section 10 apply notwithstanding any failure of the essential purpose of this Agreement or any limited remedy hereunder. Multiple claims will not expand these limitations.

11. TERM AND TERMINATION

11.1 Term of Agreement. This Agreement will begin on the date a Purchase Order is accepted by Nonin Medical and will remain in force until there are no Purchase Orders or Subscription Terms in effect, unless terminated earlier in accordance with the terms of this Agreement.

11.2 Subscription Term. The term of each Subscription Term for a Nonin Health Platform will begin upon the Subscription Term start date set forth in the applicable Purchase Order and will remain in force for the Subscription Term, unless terminated earlier in accordance with the terms of this Agreement. The Subscription Term will automatically renew without notice to Customer for successive periods equal to the initial Subscription Term (each a “Renewal Term”), unless either party gives the other party written notice of its intent not to renew such Subscription Term at least 30 days before the expiration of the then-current term. Each Renewal Term will be subject to Nonin Medical’s then-current policies and pricing.

11.3 Termination. Each party will have the right to terminate this Agreement (including all Purchase Orders) if the other party breaches any term of this Agreement and/or a Purchase Order (including nonpayment), and fails to cure such breach within 30 days (10 days in the case of non-payment) after written notice thereof. Either party may terminate this Agreement (including all Purchase Orders) immediately upon delivery of written notice if (a) the other party makes an assignment for the benefit of creditors, or (b) the other party becomes the object of the institution of voluntary or involuntary proceedings in bankruptcy or liquidation and, where such proceedings are involuntary, they remain undismissed for 60 days after their institution, or a receiver is appointed with respect to a substantial part of its assets.

11.4 Effect of Termination. All rights granted to Customer hereunder will immediately terminate upon any termination of this Agreement. Upon termination of this Agreement, Customer will: (a) within ten business days promptly pay to Nonin Medical any and all unpaid amounts due under this Agreement, (b) within five days return or destroy, at Nonin Medical’s direction, any and all Nonin Health Platform software and Nonin Medical materials, and all copies thereof, and (c) upon Nonin Medical’s request certify in writing to Nonin Medical that all actions required by the preceding clause (b) have been satisfied. Further, both parties will either return or destroy any and all Confidential Information of the other party, and all copies thereof, at the direction of the owning party and provide written proof of same upon the owning party’s reasonable request; provided that a party shall not be required to return or destroy copies of Confidential Information that are automatically stored or archived in any of its computer systems for back-up, disaster, legal retention, or redundancy purposes so long as the provisions of this Agreement continue to apply to such Confidential Information.

11.5 Customer Data Retrieval. Customer Data is retained for as long as the applicable Subscription Term is in effect. Customer Data enters an “expired” state when the Subscription Term expires or terminates for a reason other than Customer’s breach or Customer has closed its Account. Expired Customer Data will be retained for thirty (30) days (“Customer Data Retention Period”). After the Customer Data Retention Period, Nonin Medical has the right to permanently delete Customer’s Account settings and Customer Data (unless required by law to retain all or a portion of the Customer Data). Customer may retrieve Customer Data as follows:

11.5.1 If Customer voluntarily closes Customer’s Account prior to expiration or termination of the Subscription Term, if Customer desires to retrieve Customer Data, Customer must download all Customer Data manually or via the API prior to closing the Account.

11.5.2 In the event Customer’s access to the Nonin Health Platform is suspended (due to a failure to pay under Section 4 or a breach of the Acceptable Use Policy), then Customer must cure such failure to pay or breach of the Acceptable Use Policy prior to being able to access Customer’s Account in order to manually download any Customer Data. In the event fails to cure such failure to pay or breach of the Acceptable Use Policy within thirty (30) days, the Customer Data Retention Period shall immediately commence.

11.6 Non-Exclusive Remedy. Except as otherwise expressly stated herein, termination of this Agreement by either party will be a nonexclusive remedy and will be without prejudice to any other right or remedy of such party. Except as otherwise expressly stated herein, the rights and remedies of the parties to this Agreement are cumulative and not alternative.

11.7 Survival. Notwithstanding any other provision of this Agreement, Sections 1.2, 1.3, 4, 7.2, 8, 9, 10, 11.4, 11.5, 11.6, 11.7, 11.8 and 12, and all rights and obligations thereunder, and the exhibits, addenda and Nonin Medical policies (to the extent required to carry out the rights and obligations set forth in this Agreement), and all other terms and conditions which by their express statement are intended to survive, will survive any termination of this Agreement.

11.8 Remedies. The parties agree that money damages are not a sufficient remedy for any breach or anticipated breach of Section 1 (License Grant and Provision of Nonin Health Platform) and Section 8 (Confidentiality) or any other provisions of this Agreement which may cause either party irreparable injury or may be inadequately compensable in monetary damages.  Accordingly, each party is entitled to specific performance, injunctive or other equitable relief as a remedy for any such breach or anticipated breach without the necessity of proving irreparable harm or posting bond and without waiving any other remedies at law or in equity which may be available in the event of any action to enforce such provisions.

12. GENERAL PROVISIONS

12.1 Anti-Corruption. Neither party has received or been offered any illegal or improper bribe, kickback, payment, gift, or thing of value from any of the other party’s employees or agents in connection with this Agreement. If a party learns of any violation of the above restriction, such party will use reasonable efforts to promptly notify the other party.

12.2 Notices. Except as otherwise specified in this Agreement, all notices required or permitted hereunder will be in writing and will be deemed to have been given upon the date of electronic confirmation of receipt of an email. Notices of breach or termination sent by email (except for a notice not to renew a Subscription Term) are not valid unless also sent and received by one of the following methods (a) personal delivery, (b) the third business day after being sent by certified mail return receipt requested, or (c) the first business day after sending by a generally recognized international guaranteed overnight delivery service. Notices to Nonin Medical will be sent to legal@nonin.com, and notices to Customer will be sent to the appropriate address and legal contact set forth in the Purchase Order or to such other person or address as either party will furnish to the other party in writing pursuant to the above.

12.3 Force Majeure. Except with respect to any payment to be made to Nonin Medical hereunder, neither party will be liable under this Agreement for any failure, deficiency or delay in the performance of its obligations under this Agreement due to any force majeure event, including natural catastrophe, fire, explosion, electrical or communication line failure, disturbance, war or military action, acts of terrorism, epidemic, pandemic, government acts, orders, or regulation, equipment failure, or any cause or matter whatsoever not within the reasonable control of such party. In the event of such a force majeure, the affected party will be entitled to a reasonable extension of time for the performance of its obligations under this Agreement. If the force majeure event continues for more than 60 calendar days, then either party may terminate the Agreement upon written notice to the other party.

12.4 Relationship of the Parties. The parties are independent contractors. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between the parties.

12.5 Suggestions. Nonin Medical will have the unrestricted right to use or act upon any suggestions, ideas, enhancement requests, feedback, recommendations or other information provided by Customer or Users or any other party relating to the Nonin Health Platform.

12.6 Subscription Service Analyses. Nonin Medical may (a) compile statistical and other information related to the performance, operation and Customer’s use of the Nonin Health Platform, and (b) use, and share data from the Nonin Health Platform environment in aggregated form for security and operations management, to create statistical analyses, and for research and development purposes (collectively the “Service Analyses”). Service Analyses will not incorporate any information, including Customer Data, in a form that could serve to identify Customer or an individual. Nonin Medical retains all intellectual property rights in Service Analyses.

12.7 Insurance. During the term of this Agreement and until one year after the termination of this Agreement, Nonin Medical will procure, and maintain in full force and effect, the insurance coverage in the types and amounts as are reasonable and customary in the industry for comparable businesses. Upon request, Nonin Medical will provide Customer with Certificates of Insurance evidencing its then-current insurance coverage.

12.8 English Language. This Agreement is in the English language only, which language will be controlling in all respects. No translation, if any, of this Agreement into any other language for convenience or to meet local requirements will be of any force or effect in the interpretation of this Agreement or in determination of the interests of either party hereto. Furthermore, all correspondence, notices, claims, suits and other communication between the parties hereto will be written or conducted in English.

12.9 Open Source Software. The Nonin Health Platform may include certain “Open Source Software”. If Customer orders Nonin Health Platform licenses for installation on Customer’s premises (including for installation in Customer’s data center or on Customer’s third party service provider’s cloud service), a list of the Open Source Software included in the Nonin Health Platform, the applicable license terms, and how to obtain the Open Source Software will be provided to Customer upon written request. Any provisions in this Agreement which differ from any Open Source Software license are offered by Nonin Medical alone and not by any other party. ALL OPEN SOURCE SOFTWARE IS PROVIDED ON AN “AS IS” BASIS, AND NONIN MEDICAL DISCLAIMS ALL WARRANTIES WITH REGARD TO OPEN SOURCE SOFTWARE, INCLUDING ALL IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, NON-INFRINGEMENT, AND FITNESS FOR A PARTICULAR PURPOSE. IN NO EVENT WILL NONIN MEDICAL OR ITS LICNONIN MEDICALRS BE LIABLE FOR ANY DIRECT, INDIRECT, CONSEQUENTIAL, INCIDENTAL, PUNITIVE, EXEMPLARY OR SPECIAL DAMAGES OR ANY OTHER DAMAGES WHATSOEVER, WHETHER IN AN ACTION OF CONTRACT, NEGLIGENCE, OR OTHER TORTIOUS ACTION, ARISING OUT OF OR IN CONNECTION WITH THE USE OR PERFORMANCE OF THE OPEN SOURCE SOFTWARE EVEN IF NONIN MEDICAL OR ITS LICENSORS HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND WHETHER OR NOT SUCH LOSSES OR DAMAGES ARE FORESEEABLE. THIS LIMITATION WILL NOT APPLY TO LIABILITY FOR DEATH OR PERSONAL INJURY RESULTING FROM NONIN MEDICAL’S OR ITS LICENSORS’ NEGLIGENCE TO THE EXTENT APPLICABLE LAW PROHIBITS SUCH LIMITATION.

12.10 Local Laws; Compliance with Law. Customer represents and warrants that, to the best of Customer’s knowledge, the provisions of this Agreement, and the rights and obligations of the parties hereunder, are enforceable under the laws of the jurisdictions within which the Nonin Health Platform will be used. Customer and Users will use the Nonin Health Platform in compliance with the requirements of all applicable laws. Without limiting the foregoing, Customer acknowledges that the Nonin Health Platform and related technical data received from Nonin Medical may be subject to United States export and import controls, and in using the Nonin Health Platform and related technical data Customer will comply with all applicable laws, and agrees to commit no act which, directly or indirectly, would violate any United States law, regulation or order, including tax, export and foreign exchange laws, import controls, and export controls imposed by law.

12.11 Assignment. Customer may not assign or transfer this Agreement (in whole or in part) without Nonin Medical’s prior written consent and any attempt to do so without such consent will be void; provided, however, Customer may assign and transfer this Agreement in whole without Nonin Medical’s prior written consent to any Customer Affiliate or pursuant to a corporate reorganization, merger, acquisition or sale of all or substantially all of Customer’s assets to which this Agreement relates. Nonin Medical may assign or transfer its rights and delegate its obligations (in whole or in part) under this Agreement, without Customer’s consent, to an Nonin Medical Affiliate or pursuant to a corporate reorganization, merger, acquisition or sale of all or substantially all of its assets to which this Agreement relates. This Agreement is binding upon the parties and their successors and permitted assigns.

12.12 Governing Law. This Agreement will be governed by and construed in accordance with the laws of the State of Minnesota, without reference to conflict of laws principles. Each party consents to the exclusive jurisdiction of the federal and state courts located in Hennepin County, Minnesota, for any and all actions arising out or relating to this Agreement. Each party submits to the exclusive jurisdiction of these courts and agrees not to commence any legal action under or in connection with the subject matter of this Agreement in any other court or forum. The United Nations Convention on Contracts for the International Sale of Goods and the Uniform Computer Information Transactions Act do not apply to the Agreement.

12.13 Waiver. No failure or delay by either party in exercising any right under this Agreement will constitute a waiver of that right. A waiver by a party of any provision of this Agreement in any one instance will not be deemed or construed to be a waiver of such provision for any similar instance in the future or of any subsequent breach.

12.14 Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, the provision will be deemed null and void, and the remaining provisions of this Agreement will remain in effect. The parties agree to negotiate in good faith an enforceable substitute provision for any invalid or unenforceable provision that most nearly achieves the intent and economic effect of such provision.

12.15 Document Order of Precedence. In the event of conflict, the following order of precedence will apply: (a) the Purchase Order and any documents attached to or incorporated therein by reference, (b) the terms and conditions of this Agreement, and (c) the exhibits, addenda and Nonin Medical policies attached or incorporated herein by reference including data processing and information, privacy and security addenda and policies.

12.16 Customer List. Nonin Medical may include and use Customer’s name, trademarks, logos and designs on a list of customers and may refer to Customer as a user of the Nonin Health Platform in its advertising, marketing, promotional and investor materials.

12.17 No Third-Party Beneficiaries. There are no third-party beneficiaries to this Agreement.

12.18 Modification of Agreement Terms and Conditions. From time to time, Nonin Medical may modify the terms and conditions of this Agreement (including any referenced policies and other documents), and the modified version will be effective as to Customer upon the earlier of Customer’s next (a) Subscription Term, or (b) Renewal Term; provided, however, that any Urgent Terms in the modified version will be effective immediately upon notice to Customer’s contact or by posting in Customer’s Account. An “Urgent Term” means a term that (i) addresses new functionality; (ii) is required by a third party provider of Nonin Medical, for example, with regard to infrastructure or functionality, or (iii) in the reasonable opinion of Nonin Medical’s counsel, is required to comply with applicable law.

12.19 Entire Agreement. This Agreement, including the Purchase Orders, and the applicable exhibits, addenda, and Nonin Medical policies incorporated herein by reference, constitute the entire agreement between the parties with respect to the subject matter hereof and supersede all previous and contemporaneous agreements and understandings, whether oral or written, between the parties with respect to the subject matter hereof. Except as otherwise provided in this Agreement, no modification, amendment, waiver, cancellation or any other change in any term or condition of this Agreement will be valid or binding on either party unless mutually assented to in writing by both parties. The term “including” and/or “includes” and the like means “including without limitation”. The headings used in this Agreement are for reference only and do not change the meaning of any provision of this Agreement and will not be used in interpretation of any provision of this Agreement. This Agreement will be construed without regard to any presumption or rule requiring construction against the drafting party.

EXHIBIT A – DEFINITIONS

“Affiliate” means any entity that controls, is controlled by, or is under common control with Nonin Medical or Customer (where “control” means ownership of more than 50% of the voting equity interests in such entity or the legal power to direct or cause the direction of the general management of such entity, whether by contract or otherwise), but in each case only for so long as such ownership or control will continue.

“Customer Data” means any information, data or content that Customer uploads or transfers to the Nonin Health Platform.

“Excluded Claims” means (a) either party’s indemnification obligations under Section 9, (b) Customer’s breach of Section 1 of this Agreement, and/or (c) claims arising out of either party’s gross negligence or intentional misconduct.

“Intellectual Property Rights” means all patents, patent applications, copyrights, mask work rights, trade secrets, trademarks, and moral rights, whether or not registered, and all applications therefor and registrations, renewals and extensions thereof, under the laws of any state, country, territory, or other jurisdiction.

“Nonin Health Platform” means Nonin Medical’s proprietary data ecosystem, which includes the Nonin Health App (a mobile application for iOS and Android), a cloud-based data platform, the associated SaaS services and software, the Nonin Health Desktop App, and the Nonin Health Suite (an internet web portal hosted at the URL www.noninhealth.com).  The use of the term Nonin Health Platform includes each component thereof referenced herein individually and the data ecosystem as a whole.

“Protected Health Information” means any patient, medical or other protected health information regulated by Health Insurance Portability and Accountability Act of 1996, as amended by the Health Information Technology for Economic and Clinical Health Act, and its implementing regulations or any similar federal or state laws, rules or regulations.

“Purchase Order” means either a separate Nonin Medical order form executed by the parties for the license and purchase of Nonin Health Platform and that incorporates by reference this Agreement or an online purchase through the Nonin Medical website for the Nonin Health Platform pursuant to which Customer accepts the terms and conditions of this Agreement.

“Subscription Term” means the subscription duration specified in the Purchase Order during which the Nonin Health Platform is licensed to Customer, including any Renewal Term .

“Support Services” means the support and maintenance services and service level agreement, if any, for the Nonin Health Platform provided in a Purchase Order or incorporated document.

“Usage Allowance” means the number of permitted uses of the Nonin Health Platform specified during a designated period.

“Users” means the individuals who are designated by Customer to access and use the Nonin Health Platform under this Agreement solely for the benefit of Customer, and for whom Customer has issued or approved access credentials. Each User must be a single identified individual using a single login with one unique email address. Customer may permanently (i.e., not for a predefined temporary period of time) replace one named User with another if the original named User no longer has access to the Nonin Health Platform.

EXHIBIT B – ACCEPTABLE USE POLICY

This Acceptable Use Policy (“Policy”) describes prohibited and unacceptable uses of the Nonin Health Platform. This Policy is in addition to any other terms and conditions under which Nonin Medical provides any other products or services to you.

Nonin Medical may modify this Policy at any time by posting a revised version on the Nonin Medical website. By using the Nonin Medical Platform, you agree to the latest version of this Policy. If you violate the Policy or authorize or help others to do so, we may terminate your use of the Nonin Health Platform. Questions about this Policy (e.g., whether any contemplated use is permitted) and reports of violations of this Policy should be directed to legal@nonin.com.

Prohibited content, uses and activities include, without limitation, any use of the Nonin Health Platform in a manner that, in Nonin Medical’s reasonable judgment, involves, facilitates, or attempts any of the following:

  • violating any law;
  • displaying, performing, sending, receiving or storing any content that is obscene, inappropriate, offensive, or otherwise objectionable, even if the material or its dissemination is lawful;
  • harassing any person or advocating or encouraging violence of any kind against any person, entity or government;
  • infringing, violating or misappropriating another’s rights;
  • obtaining unauthorized access to, or interfering by any means with, any user, system, network, service, or account, including evasion of filters or violation of the security or integrity of any network or system;
  • distributing computer viruses or malware of any kind or sending, receiving or supporting email messages that are unsolicited, deceptive, anonymous, excessively voluminous or that contain falsified identifying information, including spamming and phishing.

The above examples are not exhaustive. Nonin Medical reserves the right to determine other prohibited conduct in its reasonable judgment. You are responsible to ensure that use of the Nonin Health Platform and your content is in compliance with all applicable laws, or in any jurisdiction, as required to comply with such laws. Nonin Medical reserves the right to take all actions it deems appropriate to comply with applicable laws.