MobileSmith PeriOp Product Validation Program (PPVP) Terms

MobileSmith PeriOp Product Validation Program (PPVP) Terms

Effective Date: December 10, 2020

  1. During the term of this PPVP engagement (“Term”), MobileSmith grants Customer a limited, non-exclusive, non-transferable license only to access and to use the MobileSmith PeriOp product and related services (“Products”) solely in support of the PPVP. Customer shall provide, at its own expense, mobile devices, third-party software, and internet access as necessary to access and use the Products. Customer agrees to use the Products only with mock data; no real patient data should be used as part of the PPVP.  Customer acknowledges that MoblieSmith and its licensors retain all intellectual property rights in and to the Products.  Customer shall not: (a) modify, disclose, or distribute the Products, or (b) reverse engineer or otherwise attempt to discover the source code for the Products. MobileSmith shall have a royalty-free, worldwide, perpetual license to use or incorporate into the Products any suggestions, ideas, enhancement requests, or other feedback provided by Customer or any User relating to the Products.
  2. MobilesSmith will use commercially reasonable efforts to provide the implementation and support services described above. If MobileSmith is required to access any Customer third-party systems or software, then Customer shall provide the necessary access to such systems and software and shall ensure that such access is permitted.
  3. Confidential Information” means all information disclosed by one party (“Disclosing Party”) to the other party (“Receiving Party”), whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential. MobileSmith’s Confidential Information includes (a) non-public information regarding the Products and proposed enhancements to the Products; and (b) pricing information.  However, Confidential Information does not include information that (i) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party, (ii) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party, or (iii) is received from a third party without breach of any obligation owed to the Disclosing Party.  The Receiving Party will use the same degree of care that it uses to protect the confidentiality of its own confidential information of like kind (but not less than reasonable care).  The Receiving Party agrees not to use any Confidential Information of the Disclosing Party for any purpose outside the scope of this PPVP engagement. The Receiving Party may disclose Confidential Information of the Disclosing Party to the extent required by law to do so, provided the Receiving Party gives the Disclosing Party prior notice of the compelled disclosure (to the extent legally permitted) and reasonable assistance, at the Disclosing Party’s cost, if the Disclosing Party wishes to contest the disclosure.
  4. NEITHER PARTY’S LIABILITY ARISING OUT OF OR RELATED TO THESE TERMS ORTHE PRODUCTS WILL EXCEED US $100. NEITHER PARTY SHALL BE LIABLE TO THE OTHER PARTY FOR CONSEQUENTIAL DAMAGES, PUNITIVE DAMAGES, INDIRECT DAMAGES, LOST PROFITS OR LOST OPPORTUNITIES. THE ABOVE LIMITATIONS WILL APPLY WHETHER AN ACTION IS IN CONTRACT OR TORT AND REGARDLESS OF THE THEORY OF LIABILITY. THE FOREGOING LIMITS WILL NOT APPLY TO A BREACH OF CONFIDENTIALITY OBLIGATIONS HEREUNDER OR TO A PARTY’S UNAUTHORIZED USE OF THE OTHER PARTY’S INTELLECTUAL PROPERTY OR TO PARTY’S WILLFUL MISCONDUCT.
  5. THE PRODUCTS ARE PROVIDED “AS-IS”, WITHOUT WARRANTY OF ANY KIND. MOBILESMITH EXPRESSLY DISCLAIMS ANY IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. These Terms are governed by North Carolina substantive law.
  6. Neither party may assign its rights or obligations under this PPVP engagement, in whole or in part, without the other party’s prior written consent; provided, however, that either party may assign these Terms to its successor in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its business.
  7. If either party is delayed in performing its obligations hereunder due to war, natural disaster, act of terrorism, disease, pandemic, civil unrest, strike or other circumstances outside its reasonable control, then such obligations shall be suspended until such time as the underlying cause of the delay has been remedied.
  8. This document constitutes the entire agreement between the parties related to the PPVP engagement and supersedes all prior agreements, proposals or representations, written or oral, concerning their subject matter.