TERMS AND CONDITIONS

1. SALE OF PRODUCT; DELIVERY 

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1.1.   Subject to the terms and conditions set forth herein, Openwater will sell to Customer, and Customer will purchase from Openwater the quantity of Product set forth in the Order Form. 

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1.2   Unless otherwise set forth in writing by Openwater, all shipments of Product are made F.O.B. Openwater’s manufacturing facility.  Title and risk of loss in the Product will pass to the Customer upon delivery of the Product to the shipping carrier.  Openwater may, in its sole discretion, without liability or penalty, make partial shipments of the Product to Customer. 

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1.3.   In the absence of specific shipping instructions, Openwater will ship Product by the method it deems most advantageous.  Transportation charges will be collected on delivery or, if prepaid, will be subsequently invoiced to Customer.  Unless otherwise indicated, Customer is obligated to obtain insurance against damage to the Product being shipped.  Customer shall bear complete and exclusive responsibility for promptly advising the carrier and insurer of any loss or damage and for filing claims against, and recovering any sums owed by, the carrier or the insurer.  

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1.4.   Customer will notify Openwater of any failure of a Product to comply with the specifications set forth in Exhibit A (“Nonconforming Product”) within fifteen (15) days after receiving such Product or Customer will be deemed to have accepted such Product.  If Customer timely notifies Openwater of any such Nonconforming Product, Openwater shall, in its sole discretion, either (i) repair or replace such Nonconforming Product at Openwater’s expense and risk of loss within thirty (30) days of notification, or (ii) credit or refund the Product Purchase Price for such Nonconforming Product, in each case after Customer ships the Nonconforming Product to Openwater at Openwater’s expense and risk of loss.  Customer acknowledges that the remedies set forth in Section 1.4 are Customer’s exclusive remedies for delivery of a Nonconforming Product.  Except as provided in this Section 1.4, all other sales of the Product are final and not subject to returns or exchanges.

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2. SERVICES

 

2.1    Subject to Customer’s payment of all applicable fees, Openwater will provide the Services described in the Order Form.  The Services are subject to modification from time to time at Openwater’s sole discretion, for any purpose deemed appropriate by Openwater.  Openwater will use reasonable efforts to give Customer prior written notice of any such modification.

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3. WARRANTY; WARRANTY DISCLAIMER

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3.1.   Subject to the terms and conditions of this Agreement, Openwater warrants to Customer that each Product will comply with the specifications in Exhibit A for one (1) year following the shipment date.  If Customer at any time believes there has been a breach of such warranty, Customer will promptly notify Openwater’s Designated Warranty Contact.  If Openwater can independently verify that a failure to meet Specifications exists and is attributable to the Product and not any third party equipment or third party act or omission (a “Defect”), Openwater will use commercially reasonable efforts to address the problem at no cost to Customer.  If such efforts fail to correct the Defect, Openwater will, at its sole option, repair or replace the Product or, if Openwater determines in its sole discretion that is not possible or reasonably practical to do so, grant Customer a refund as described below.  Customer will provide reasonable access and cooperation in order to permit Openwater to verify the Defect and perform its obligations in this Section 3.1. Customer understands and agrees that failure to do so will prevent Openwater from performing such obligations, and voids the warranty set forth herein.  

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3.2.   If Openwater opts to replace or repair a Product suffering from a Defect, it will bear the cost of freight and insurance to the point of repair or return and for return of a repaired or replacement Product to Customer.  Any Product repaired or replaced by Openwater will be covered by the warranty described in Section 3.1 only for the remainder of the warranty period for the original Product. 

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3.3    If Openwater elects to provide a refund for a Defect, the refund will equal the original purchase price paid by the Customer, reduced on a straight-line basis over one (1) year from the shipment date.  For example, after six months, the refund will be 50% of the purchase price.  

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3.4    THE REMEDY CHOSEN BY OPENWATER ACCORDING TO SECTION 3.1 IS CUSTOMER’S SOLE REMEDY, AND OPENWATER’S SOLE LIABILITY, WITH RESPECT TO ANY BREACH OF WARRANTY UNDER THIS AGREEMENT.  EXCEPT AS SET FORTH IN SECTION 3.1, THE PRODUCT, AND ANYTHING ELSE PROVIDED IN CONNECTION WITH THIS AGREEMENT ARE PROVIDED “AS-IS,” WITHOUT ANY WARRANTIES OF ANY KIND.  OPENWATER HEREBY DISCLAIMS (ON BEHALF OF ITSELF AND ITS LICENSORS AND SUPPLIERS) ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT. 

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4. INTELLECTUAL PROPERTY RIGHTS; OPEN SOURCE TECHNOLOGY

 

4.1    Certain of Openwater’s intellectual property is available to the public pursuant to (a) an open source license, (b) a creative commons license, or (c) a patent pledge, respectively (collectively such rights licensed thereunder, the “Open Source Technology,” and the applicable license(s) and pledge, the “Open Source Terms”).  The Open Source Technology includes certain software code available here that is installed on or otherwise integral to the use of the Products (the “Open Source Code”), which Open Source Code is licensed under the GNU Affero General Public License.  For more details regarding the Open Source Technology and the respective Open Source Terms, please see https://www.openwater.health/opensource. 

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4.2.   “Proprietary Software” means the object code version of all software (a) installed on the Products, or (b) otherwise provided by Openwater to Customer hereunder as complementary to use of the Products; except for, in each case, the Open Source Code. Subject to all terms and conditions of this Agreement, Openwater grants Customer a perpetual, limited, non-exclusive, non-transferable, non-sublicensable, revocable right to use the object code version of the Proprietary Software, solely in the form provided by Openwater.  This Agreement is a license, not a sale, of Proprietary Software and does not convey to Customer any rights of ownership in or related to the Proprietary Software. 

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4.3.   Openwater alone (and its licensors and suppliers, where applicable) will retain all intellectual property rights relating to (a) the Product, (b) the Proprietary Software, (c) the Services, (d) the Open Source Technology, (e) any suggestions, ideas, enhancement requests, feedback, recommendations or other information provided by Customer or any other party relating to the subject matter hereunder (“Feedback”), which are hereby assigned to Openwater, and (f) all improvements to the Product derived from Safety Data (defined below).

 

5. RESTRICTIONS AND RESPONSIBILITIES

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5.1.   The Product is provided for research use only.  Customer agrees to use the Product for research only and not for any therapeutic or diagnostic purpose or any other use for which the results are used to determine the course of patient care.  Customer acknowledges that (i) the Product has not been approved, cleared, or licensed by the United States Food and Drug Administration or any other regulatory entity whether foreign or domestic for any specific intended use, whether research, commercial, diagnostic, or otherwise, and (ii) Customer must ensure it has any regulatory approvals that are necessary for Customer’s intended uses of the Product.  The Products must be used only in a lawful and ethical manner. Customer will comply with all applicable laws, regulations, and ethical guidelines promulgated by established national and international ethical bodies when using, maintaining, and disposing of the Products and the information generated from the use of the Product. 

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5.2    Customer will use the Product and Services in compliance with all applicable laws and regulations and will not and will not permit any third party to use the Product, Open Source Technology, Proprietary Software or Services in any infringing, defamatory, harmful, fraudulent, illegal, deceptive, threatening, harassing, or obscene way.  

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5.3.   Customer will not, and will not permit any third party to: (i) reverse engineer, decompile, disassemble or otherwise attempt to discover or obtain the source code, object code or underlying structure, ideas or algorithms of the Products, Proprietary Software, Open Source Technology, Services or any related documentation or data provided by Openwater (provided that reverse engineering is prohibited only to the extent such prohibition is not contrary to applicable law); (ii) modify, translate, or create derivative works based on the Products, Proprietary Software, Open Source Technology or Services; or (iii) resell or provide the Product, Proprietary Software, Open Source Technology or Services to any third party, without Openwater’s prior written consent. Notwithstanding the foregoing, the foregoing shall not apply to each item of Open Source Technology, solely to the extent the foregoing is in conflict with the Open Source Terms applicable to such item.

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5.4.   Any breach of this Section 5 or any other breach of this Agreement by Customer will immediately (a) void the warranty set forth in Section 3.1 and (b) terminate any obligation of Openwater to provide any Services.  The foregoing does not limit any other legal or equitable remedy available to Openwater. 

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5.5.   Customer will be responsible for maintaining the security of Customer account, passwords (including but not limited to administrative and user passwords) and files, and for all uses of Customer account with or without Customer’s knowledge or consent.

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5.6    Customer acknowledges and agrees that the Services operate on or with or using equipment and/or other services operated or provided by third parties (“Third Party Services”).  Openwater is not responsible for the operation of any Third Party Services nor the availability or operation of the Services to the extent such availability and operation is dependent upon Third Party Services.  Customer is solely responsible for procuring any and all rights necessary for it to access Third Party Services and for complying with any applicable terms or conditions thereof.  Openwater does not make any representations or warranties with respect to Third Party Services or any third party providers.  Any exchange of data or other interaction between Customer and a third party provider is solely between Customer and such third party provider and is governed by such third party’s terms and conditions.  Openwater shall not have any liability whatsoever to the other with respect to damages caused by: (i) electrical outages, power surges, brown-outs, utility load management or any other similar electrical service interruptions whatever the cause; (ii) interruptions in wireless or cellular service linking Product to the Services; (iii) interruptions attributable to unauthorized Openwater network intrusions; or (iv) interruptions in services provided by any internet service provider.  This includes the loss of data resulting from such electrical, wireless, cellular or Internet service interruptions.

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5.7.   The Product is labeled and provided solely for research use. It is not intended for use in diagnostic or therapeutic procedures. The Customer shall not use, or permit the use of, the Product for any purpose other than research, nor make any representation, express or implied, that the Product is safe or effective for any medical or diagnostic use. The Customer is solely responsible for obtaining all necessary regulatory approvals, including IRB approval and informed consent, prior to any research involving human subjects. The Customer shall ensure that all labeling, documentation, and communications regarding the Product clearly state: “For Research Use Only. Not for use in diagnostic procedures.” Any data generated using the Product may not be used to support clinical decisions or patient care, nor submitted for regulatory approval without Openwater’s prior written consent. The Customer shall indemnify and hold Openwater harmless from any claims, damages, or liabilities arising from the Customer’s use of the Product, including but not limited to regulatory violations, failure to obtain IRB approval, or misuse of the Product.

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6. SAFETY AND EFFICACY DATA

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6.1.   Safety Data.  Customer shall promptly notify Openwater in writing of any adverse events, safety concerns, device malfunctions, unanticipated problems, or other safety-related data or findings (collectively, “Safety Data”) arising from or related to the use of the Product, whether or not such events are required to be reported to any regulatory authority. Customer agrees to provide Openwater with all Safety Data generated or obtained in connection with the use of the Product, including, without limitation, any reports submitted to an Institutional Review Board (“IRB”), ethics committee, or regulatory agency. Such notification shall be made as soon as reasonably practicable, but in no event later than ten (10) business days after Customer becomes aware of the Safety Data, except where a shorter timeline is required by law or regulatory authority. Customer shall report such Safety Data to Openwater by completing Openwater’s Safety Data Disclosure Form or by emailing Openwater at safety@openwater.health.  Customer shall cooperate with Openwater in investigating any such Safety Data and shall provide additional information or documentation as reasonably requested by Openwater. Customer’s obligations under this section are subject to compliance with applicable laws, IRB requirements, and participant consent agreements.  

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6.2.   Customer acknowledges and agrees that Openwater may use and disclose any Safety Data provided by Customer in connection with the use of the Product for the purposes of improving the Product, fulfilling regulatory obligations, and promoting safe use of the Product. Openwater may share such Safety Data with its other customers in aggregated or de-identified form, provided that Openwater does not disclose any information that would reasonably identify any individual research subject, except as required by law or regulatory authorities.  Openwater will not attempt to re-identify any de-identified data.

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6.3.   Efficacy Data. “Efficacy Data” means all data, results, analyses, and reports generated by Customer in connection with the use of the Product that relate to the Product’s efficacy, performance, or clinical outcomes, including but not limited to raw data, summary reports, statistical analyses, and study protocols. 

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6.4.   Customer may provide Efficacy Data to Openwater in electronic format and in accordance with any reasonable templates or standards provided by Openwater upon completion of the applicable study, and at such other times as reasonably agreed upon by the parties Customer shall ensure that all Efficacy Data shared with Openwater is de-identified in accordance with (i) the HIPAA Privacy Rule’s de-identification standards, (ii) institutional policies, and (iii) participant consent agreements, and does not contain any personally identifiable information or protected health information, unless otherwise agreed in writing and in compliance with applicable law. 

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6.5.   Customer acknowledges and agrees that Openwater may use Efficacy Data for product improvement and other legitimate business purposes, subject to the confidentiality provisions of this Agreement.  Openwater may share such Efficacy Data with its other customers solely in aggregated and de-identified form, provided that Openwater does not disclose Customer’s identity or any information that would reasonably identify Customer or any individual research subject, except as required by law or regulatory authorities.   Customer retains the right to publish Efficacy Data.

 

7. PAYMENT OF FEES

 

7.1    Customer will pay Openwater the applicable fees as set forth on the Order Form (the “Fees”).  All payments will be made in accordance with the Payment Schedule and the Method of Payment.  If not otherwise specified, payments will be due within thirty (30) days of invoice and are nonrefundable.

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7.2    Unpaid Fees are subject to a finance charge of one point five percent (1.5%) per month, or the maximum permitted by law, whichever is lower, plus all expenses of collection, including reasonable attorneys’ fees.  Fees under this Agreement are exclusive of all tariffs and taxes, including national, state or provincial and local use, sales, value-added, excise, property and similar taxes, if any.  Customer agrees to pay such taxes (excluding US taxes based on Openwater’s net income) unless Customer has provided Openwater with a valid exemption certificate.  In the case of any withholding requirements, Customer will pay any required withholding itself and will not reduce the amount paid to Customer on account thereof.

 

8. CONFIDENTIALITY

8.1    Each party (the “Receiving Party”) understands that the other party (the “Disclosing Party”) has disclosed or may disclose non-public information relating to the Disclosing Party’s technology or business (hereinafter referred to as “Proprietary Information” of the Disclosing Party).  

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8.2    The Receiving Party agrees: (i) not to divulge to any third person any such Proprietary Information, (ii) to give access to such Proprietary Information solely to those employees with a need to have access thereto for purposes of this Agreement, and (iii) to take the same security precautions to protect against disclosure or unauthorized use of such Proprietary Information that the party takes with its own proprietary information, but in no event will a party apply less than reasonable precautions to protect such Proprietary Information.  The Disclosing Party agrees that the foregoing will not apply with respect to any information that the Receiving Party can document (a) is or becomes generally available to the public without any action by, or involvement of, the Receiving Party, or (b) was in its rightful possession or known by it without restriction prior to receipt from the Disclosing Party, or (c) was rightfully disclosed to it without restriction by a third party, or (d) was independently developed without use of any Proprietary Information of the Disclosing Party.  Nothing in this Agreement will prevent the Receiving Party from disclosing the Proprietary Information pursuant to any judicial or governmental order, provided that the Receiving Party gives the Disclosing Party reasonable prior notice of such disclosure to contest such order.  In any event, Openwater may aggregate data and use such aggregated data to evaluate and improve the Services and otherwise for its business purposes.  Notwithstanding anything to the contrary, if Openwater collects information related to the performance of the Product or Services (including the occurrence of and circumstances relating to any Defect), Openwater may freely use and disclose such information provided it does not identify Customer in doing so.  Feedback is Openwater’s Proprietary Information, deemed disclosed by Openwater and to which the exceptions set forth in (b) and (d) above do not apply.

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8.3    Customer acknowledges that Openwater does not wish to receive any Proprietary Information from Customer that is not necessary for Openwater to perform its obligations under this Agreement (including its Services obligations), and, unless the parties specifically agree otherwise, Openwater may reasonably presume that any information that is not necessary for Openwater to perform such obligations received from Customer is not confidential or Proprietary Information.

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9. TERM; TERMINATION 

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9.1    Customer’s obligation to purchase the Product becomes effective on the Effective Date.  

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9.2    In the event of any material breach of this Agreement (including any failure to pay), the non-breaching party may terminate this Agreement by giving thirty (30) days (or ten (10) days in the case of nonpayment) prior written notice to the breaching party; provided, however, that this Agreement will not terminate if the breaching party has cured the breach prior to the expiration of such thirty-day period.  Either party may terminate this Agreement, without notice, (i) upon the institution by or against the other party of insolvency, receivership or bankruptcy proceedings, (ii) upon the other party’s making an assignment for the benefit of creditors, or (iii) upon the other party’s dissolution or ceasing to do business.

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9.3    Upon termination of this Agreement, Sections 3, 4.3, 5, 6, 7, 8.4, 9, 10, and 11 will survive any such termination. 

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10. LIMITATION OF LIABILITY

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TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, (A) IN NO EVENT WILL OPENWATER (OR ANY OF ITS AGENTS, AFFILIATES, LICENSORS OR SUPPLIERS) BE LIABLE FOR ANY INDIRECT, PUNITIVE, INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES, ARISING OUT OF OR IN ANY WAY CONNECTED WITH THE USE OF THE PRODUCT OR SERVICES OR ANYTHING ELSE PROVIDED IN CONNECTION WITH THIS AGREEMENT, THE DELAY OR INABILITY TO USE THE PRODUCT OR SERVICES OR ANYTHING ELSE PROVIDED IN CONNECTION WITH THIS AGREEMENT OR OTHERWISE ARISING FROM THIS AGREEMENT, INCLUDING WITHOUT LIMITATION, LOSS OF REVENUE OR ANTICIPATED PROFITS OR LOST BUSINESS OR LOST SALES, WHETHER BASED IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, OR OTHERWISE, EVEN IF OPENWATER (OR ANY OF ITS AGENTS, AFFILIATES, LICENSORS OR SUPPLIERS) HAVE BEEN ADVISED OF THE POSSIBILITY OF DAMAGES, AND (B)  THE TOTAL LIABILITY OF OPENWATER HEREUNDER, WHETHER BASED IN CONTRACT, TORT (INCLUDING NEGLIGENCE OR STRICT LIABILITY), OR OTHERWISE, WILL NOT EXCEED, IN THE AGGREGATE, THE FEES ACTUALLY PAID TO OPENWATER FOR PRODUCTS AND SERVICES IN THE TWELVE MONTH PERIOD PRECEDING THE APPLICABLE CLAIM.  THE FOREGOING LIMITATIONS WILL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY.

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11. U.S. GOVERNMENT MATTERS

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Notwithstanding anything else, Customer may not provide to any person or export or re-export or allow the export or re-export of the Product or Services or any software or anything related thereto or any direct product thereof (collectively “Controlled Subject Matter”), in violation of any restrictions, laws or regulations of the United States Department of Commerce, the United States Department of Treasury Office of Foreign Assets Control, or any other United States or foreign agency or authority.  Without limiting the foregoing Customer acknowledges and agrees that the Controlled Subject Matter will not be used or transferred or otherwise exported or re-exported to countries as to which the United States maintains an embargo (collectively, “Embargoed Countries”), or to or by a national or resident thereof, or any person or entity on the U.S. Department of Treasury’s List of Specially Designated Nationals or the U.S. Department of Commerce’s Table of Denial Orders (collectively, “Designated Nationals”).  The lists of Embargoed Countries and Designated Nationals are subject to change without notice.  Use of the Product or Services is representation and warranty that the user is not located in, under the control of, or a national or resident of an Embargoed Country or Designated National.  The Controlled Subject Matter may use or include encryption technology that is subject to licensing requirements under the U.S. Export Administration Regulations.  As defined in FAR section 2.101, any software and documentation provided by Openwater are “commercial items” and according to DFAR section 252.227-7014(a)(1) and (5) are deemed to be “commercial computer software” and “commercial computer software documentation.”  Consistent with DFAR section 227.7202 and FAR section 12.212, any use modification, reproduction, release, performance, display, or disclosure of such commercial software or commercial software documentation by the U.S. Government will be governed solely by the terms of this Service Agreement and will be prohibited except to the extent expressly permitted by the terms of this Agreement.  

 

12. MISCELLANEOUS

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If any provision of this Agreement is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect and enforceable.  This Agreement is not assignable or transferable by Customer except with Openwater’s prior written consent.  Openwater may freely transfer and assign any of its rights and obligations under this Agreement without consent.  Both parties agree that this Agreement is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements, communications and other understandings relating to the subject matter of this Agreement, and that all waivers and modifications must be in a writing signed by both parties, except as otherwise provided herein.  No agency, partnership, joint venture, or employment is created as a result of this Agreement and Customer does not have any authority of any kind to bind Openwater in any respect whatsoever.  In any action or proceeding to enforce rights under this Agreement, the prevailing party will be entitled to recover costs and attorneys’ fees.  All notices under this Agreement will be in writing and will be deemed to have been duly given when received, if personally delivered; when receipt is electronically confirmed, if transmitted by facsimile or e-mail; and upon receipt, if sent by certified or registered mail (return receipt requested), postage prepaid.  Openwater will not be liable for any loss resulting from a cause over which it does not have direct control, including without limitation acts of God, acts of government, flood, fire, earthquakes, civil unrest, acts of terror, strikes or other labor problems (other than those involving Openwater’s employees), computer, telecommunications, Internet service provider or hosting facility failures or delays involving hardware, software or power systems not within Openwater’s possession or reasonable control, and denial of service attacks.  This Agreement will be governed by the laws of the California, U.S.A. without regard to its conflict of laws provisions.  The federal and state courts sitting in San Francisco County, Delaware, U.S.A. will have proper and exclusive jurisdiction and venue with respect to any disputes arising from or related to the subject matter of this Agreement, provided that either party may seek injunctive relief in any court of competent jurisdiction.  Customer agrees to participate in press announcements, case studies, trade shows, or other forms reasonably requested by Openwater.  Openwater is permitted to disclose that Customer is one of its customers to any third-party at its sole discretion.

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