Terms and Conditions
These Terms and Conditions (“Terms”) are between LuminDx, Inc. (“LuminDx”) and the entity listed as Licensor in
the Order which references these Terms. These Terms will govern the use and provision of any Services as described in any Order. Any terms not defined herein will have the meaning given to them in the applicable Order. The “Agreement” shall refer to the Order, these Terms, any additional Order and all exhibits and any other attachments to
LuminDx shall engage a subcontractor, Melken Solutions, LLC (“Melken”) to digitize and de-identify medically diagnosed slides provided by Licensor showing photos of various skin conditions and associated diagnosis, as agreed upon by the parties (“Slides”), shipped and delivered by the Licensor directly to such Melken (the “Services”), as further described in the Order. The parties agree that LuminDx shall not receive access to any protected health information in anticipation of the Services. Licensor shall use commercially reasonable efforts to deliver the Slides to the subcontractor by the Delivery Date in the format determined in LuminDx’s sole
discretion. Licensor shall provide Melken with all reasonable assistance and guidance necessary for the performance of the Services, including those resources, data, information and materials as Melken may reasonably request. In consideration for: (a) Licensor providing the Slides to Melken and (b) LuminDx paying Melken for the Services, the parties shall receive the results of the Services, consisting of (i) the digital, de-identified images of the Slides, and (ii) the accompanying digital text descriptions of the Slides in an editable format (“Work Product”). For the avoidance of doubt, LuminDx shall be responsible to pay Melken for its performance of the
2. LICENSE GRANT
Licensor hereby grants to LuminDx the royalty-free right to sublicense the Slides to Melken for Melken to use, create derivative works of, analyze, and perform the Slides solely to perform the Services hereunder.
As between the parties, Licensor shall retain all right, title and interest to the Slides. LuminDx (subject to the license below) shall be the sole and exclusive owner of all of the Work Product and any derivative works of the Work Product it creates (including any analyses derived based in whole or in part on the Work Product), with the exclusive right to use, re-use and modify the Work Product [; provided that any use of the Work Product shall not include the right for LuminDx to display any of the Slide images to end users through its mobile application]. LuminDx hereby grants to Licensor a perpetual, irrevocable, worldwide, royalty-free license to use the Work Product solely for personal, non-commercial uses and for research purposes, and, if indicated in an Order, may sublicense the Work Product to other academic medical centers for training and research purposes upon written notice to LuminDx.
“Confidential Information” means any information of a Party (the “Disclosing Party”), whether disclosed orally or in written or digital media, that is identified as “confidential” or with a similar legend at the time of such disclosure or that the receiving Party (the “Receiving Party”) knows or should have known is the confidential or proprietary information of the Disclosing Party. Information will not constitute the other Party’s Confidential Information if it (a) is already known by the Receiving Party without obligation of confidentiality; (b) is independently developed by the Receiving Party without access to or use of the Disclosing Party’s Confidential Information; (c) is publicly known without breach of this Agreement; or (d) is lawfully received from a third party without obligation of confidentiality. The Receiving Party will not use or disclose any Confidential Information except as expressly authorized by this Agreement and will protect the Disclosing Party’s Confidential Information using the same degree of care that it uses with respect to its own confidential information, but in no event with safeguards less than a reasonably prudent business would exercise under similar
circumstances. The Receiving Party will take prompt and appropriate action to prevent unauthorized use or disclosure of the Disclosing Party’s Confidential Information. If any Confidential Information must be disclosed to any third party by reason of legal, accounting or regulatory requirements, the Receiving Party will promptly notify the Disclosing Party of the order or request and permit the Disclosing Party (at its own expense) to seek an appropriate protective order.
5. WARRANTIES; DISCLAIMERS; LIMITATIONS ON LIABILITY
5.1 General Representations
Each party represents and warrants that: (y) it has the full right, power, and authority to enter into and perform this Agreement without the consent of any third party including the right to grant all licenses granted herein; and (z) it shall comply with all applicable local, state, and federal laws and regulations relating to the performance of this Agreement.
5.2 Licensor Warranties
Licensor represents, warrants, and covenants that: (a) Licensor owns or otherwise has all
right and authority to grant the licenses set forth herein regarding the Slides; (b) Licensor has obtained any necessary licenses, consents, and/or releases required to permit the activities contemplated by this Agreement (if any); (c) that the Slides do not and will not infringe the intellectual property rights or moral rights of any third party, violate any right of privacy or publicity or contain any defamation; and (d) Licensor has used commercially reasonable efforts to ensure the accuracy and completeness of the Slides.
5.3 Warranty Disclaimer
EXCEPT FOR THE FOREGOING EXPRESS WARRANTIES, THE PARTIES DISCLAIM ANY AND ALL OTHER WARRANTIES OF ANY KIND OR NATURE, WHETHER EXPRESS, IMPLIED OR STATUTORY, RELATING TO THE SERVICES PROVIDED HEREUNDER AND WORK
PRODUCT, INCLUDING WITHOUT LIMITATION THE IMPLIED WARRANTIES OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY, AND FITNESS FOR A PARTICULAR PURPOSE.
5.4 Limitation of Liability
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, AND EXCEPT WITH RESPECT TO INDEMNIFICATION OBLIGATIONS HEREUNDER: (A) IN NO EVENT WILL A PARTY BE LIABLE TO THE OTHER PARTY FOR ANY INCIDENTAL, INDIRECT, SPECIAL,
CONSEQUENTIAL OR PUNITIVE DAMAGES, INCLUDING, WITHOUT LIMITATION, ANY LOST DATA, LOST PROFITS AND COSTS OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, ARISING FROM OR RELATING TO THIS AGREEMENT HOWEVER CAUSED AND UNDER ANY THEORY OF LIABILITY; AND (B) A PARTY’S TOTAL CUMULATIVE LIABILITY ARISING FROM OR
RELATED TO THIS AGREEMENT, WHETHER IN CONTRACT OR TORT OR OTHERWISE, WILL NOT EXCEED ONE THOUSAND US DOLLARS ($1,000).
BECAUSE SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF CERTAIN LIABILITY, IN SUCH JURISDICTIONS THE LIABILITY OF EVISORT WILL BE LIMITED TO THE MAXIMUM EXTENT PERMITTED BY LAW. THE PROVISIONS OF THIS SECTION 5 WILL APPLY WITHOUT REGARD TO WHETHER OTHER PROVISIONS OF THE AGREEMENT HAVE BEEN BREACHED, ANY LIMITED REMEDY HEREIN IS HELD TO FAIL OF ITS ESSENTIAL PURPOSE OR THE FORM OF THE CLAIM OR CAUSE OF ACTION, WHETHER IN CONTRACT, WARRANTY, STATUTE, TORT (INCLUDING BUT NOT LIMITED TO NEGLIGENCE).
Each Party will indemnify, defend and hold each other Party harmless for any third party claims resulting from any breach of its respective representations, warranties, and covenants hereunder or any intentional misconduct or negligence by itself or any of its employees, agents, or subcontractors. In the event of any third party claim, demand, suit, or action (a “Claim”) for which a Party (or any of its affiliates, employees, or agents) is or may be entitled to indemnification hereunder, such Party may, at its option, require the indemnifying Party to defend such Claim at the indemnifying Party’s sole expense. The indemnifying Party may not agree to settle any such Claim without the indemnified Party’s express prior written consent.
7. TERM AND TERMINATION
This Agreement will begin on the Effective Date and will continue until terminated in accordance with this Agreement.
This Agreement may be terminated (a) by a Party where another Party has materially breached this Agreement and has failed to cure such breach within thirty (30) days of any written notice; or (b) by Licensor immediately upon written notice to LuminDx in the event LuminDx ceases its business operations.
7.3 Effects of Termination
The License Grant, Ownership, Confidentiality, Warranties, Indemnification, Limitation of Liability, Term and Termination, and Miscellaneous provisions will survive the termination of this Agreement.
This Agreement may only be modified, waived or amended by a writing executed by the authorized representatives of the Parties. This Agreement will be governed by the laws of the Commonwealth of Massachusetts, without regard to its conflict of law provisions and each Party hereby irrevocably submits to, and waives any objection to, the exclusive personal jurisdiction of the state and federal courts located in Suffolk County, Massachusetts. This Agreement will be binding upon and inure to the benefit of each Party and its
successors and assigns. Licensor may not assign any of its rights or delegate any of its obligations under this Agreement without the LuminDx’s prior written consent. Any attempted assignment or delegation in violation of the foregoing will be null and void. This Agreement constitutes the entire agreement between the Parties concerning the subject matter of this Agreement. This Agreement may be executed in any number of counterparts, all of which shall constitute one agreement. An electronic or a .pdf copy of a signature shall be deemed an original for all purposes.