The Standard Terms and Conditions of Sale (“Terms of Sale”)  contained herein, the Terms of Use available at https://www.xr.health/vrhealth-terms-of-use/ (“Terms of Use”) and the Privacy Policy available at https://www.xr.health/vrhealth-privacy-policy/ (“Privacy Policy” and collectively with the Terms of Use and Terms of Sale, these “Terms and Conditions”) shall apply to all quotations or offers of XRHealth USA, Inc. and/or its parent company, subsidiaries or affiliates (“XRHealth”) for the Service, subscription licenses to access and use the Software, any Third Party Software and Hardware, Training and IT support, whose purchase order is accepted by XRHealth (each, a “Statement of Work”). Each of XRHealth and Customer may be referred to as a “Party” herein and together as the “Parties”.

The Terms and Conditions contained herein shall apply to all sales made by XRHealth except to the extent these Terms and Conditions conflict with an existing individual customer contract where special terms and conditions (signed by XRHealth and Customer) may take precedence over these Terms and Conditions.

1. Definitions.

“Customer” means the individual or entity who accepts a Statement of Work.

“Customer Data” means Customer, User and Patients’ Personal Information.

“Hardware” means premium VR headset(s).

 “HIPAA” means the Health Insurance Portability and “Accountability Act of 1996, as codified at 42 U.S.C. sec. 1320d through 1320d-8, and the implementing regulations governing (a) the privacy of individually identifiable health information as covered at 45 CFR Part 160 and Part 164 subparts A and E, commonly known as the Privacy Rule, and (b) the security of electronic PHI as covered at 45 CFR Part 160 and Part 164 subpart C, commonly known as the Security Standards, as they have been amended by the Health Information Technology for Economic Clinical Health Act and regulations promulgated thereunder, commonly known as the HITECH Act, as each may be further amended and in effect from time to time.

“Legal Requirements” means all applicable federal, state, local, municipal, and foreign laws, statutes, ordinances, regulations, rules, codes, decrees, judgments, orders, or other requirements or rules of law, as amended, modified, codified, replaced, or reenacted, in whole or in part, and in effect at the date of the Statement of Work or other applicable date specified in the context used, including the rules and regulations promulgated thereunder.

“Patients” means patients of Customer. Customer acknowledges that Patients are subject to XRHealth’s Terms of Use and Privacy Policy.

“Personal Information” means information that identifies Customer, Users and / or Patients or could be used to identify a Customer, User and / or Patient alone, or in combination with other information.

“Software” means XRHealth’s proprietary software product(s) intended for maintaining or encouraging a general state of health or a healthy activity and is comprised of certain software, described more fully as the “Service(s)” in the Statement of Work that is made available to Customer for use, including web data portal, external control panel, mobile application and all applications installed on VR headsets.

“Subscription Term” means subscription term set forth in the Statement of Work.

“Third Party Software” means any or all third-party software provided or recommended for use in or with the Software, documentation relating to such software, and updates, upgrades, revisions, and other changes to any of the above.

“User” means a person who has received User Credentials from XRHealth to login and use the Services and has agreed to XRHealth’s Terms of Use and Privacy Policy.

2. Acceptance. CUSTOMER’S ACCEPTANCE OF THE TERMS AND CONDITIONS SHALL BE CONCLUSIVELY PRESUMED FROM CUSTOMER’S ACCEPTANCE OF ALL OR ANY PART OF THE HARDWARE, CUSTOMER’S USE OF THE SERVICE, SOFTWARE OR THIRD-PARTY SOFTWARE OR FROM PAYMENT BY CUSTOMER FOR ALL OR ANY PART OF THE HARDWARE, SERVICE, SOFTWARE AND/OR THIRD-PARTY SOFTWARE. NONE OF THESE TERMS AND CONDITIONS MAY BE ADDED TO, MODIFIED, SUPERSEDED OR OTHERWISE ALTERED, EXCEPT BY A WRITTEN INSTRUMENT SIGNED BY AN AUTHORIZED EXECUTIVE OF XRHEALTH. FAILURE OF XRHEALTH TO OBJECT TO ANY TERMS OR CONDITIONS WHICH MAY BE CONTAINED IN ANY DOCUMENT OR FORM OF CUSTOMER SHALL NOT BE CONSTRUED AS A WAIVER OF THESE CONDITIONS, NOR AS AN ACCEPTANCE OF ANY SUCH TERMS AND CONDITIONS.

3. The Services.

Access to Software. XRHealth will provide Customer with access to the Service in accordance with these Terms and Conditions. To the extent any software updates, upgrades, revisions, or other changes are made available by XRHealth to Customer, Customer shall promptly download and install such items and all such items together with any related documentation will be considered part of the Software herein.

Grant of Rights. Subject to these Terms and Conditions, XRHealth hereby grants to Customer a limited, non-exclusive, non-transferable license for Customer’s Users to access and use the Services, and to use the login credentials as provided by XRHealth, in all cases solely for Customer’s internal business use in providing a service to its Users during the Subscription Term. The above license is only to the executable code of the Software and does not extend to any source code. Customer acknowledges that use of the Software requires simultaneous connection to the Services and/or to XRHealth via high-speed internet access, including to verify Customer’s ongoing subscription covering relevant Users. All rights not expressly granted to Customer herein are reserved by XRHealth and its licensors or other providers. There are no implied rights.

Restrictions. Customer shall not (and shall not allow any third party to): (a) use the Software for the benefit of any third party, or to develop or market any product, software or service that is functionally similar to or derivative of the Software, or for any other purpose not expressly permitted herein; (b) permit any non-User to access or use the Software; (c) sell, distribute, rent, lease, sublicense, transfer, service bureau, post, link, disclose or provide access to the Software, directly or indirectly, to any third party; (d) reproduce the Software; (e) adapt, translate, alter, modify, debug, reverse engineer, decompile or disassemble any Software; (f) alter, modify, debug, reverse engineer, decompile, disassemble, or otherwise attempt to derive or gain access to any software (including source code) associated with the Service; (g) use any robot, spider, scraper or other automated means to access the Software, or engage in any scraping, data-mining, harvesting, screen-scraping, data aggregating or indexing of the Software; (h) use the Software in a manner inconsistent with the Software’s Instructions for Use (“IFU”); or (i) use the Software in an illegal or fraudulent manner. All acts and omissions of Users shall be deemed to be those of Customer, and Customer shall be responsible therefore. Customer shall keep all passwords safe and secure and shall be responsible for all use of the Service using passwords issued to Customer and Users. Each User login/password shall be for an individual person and may not be shared with or transferred to other persons. Customer shall notify XRHealth immediately of any actual or suspected unauthorized use of its passwords for the Service. Each User must review and understand the training session or materials provided by XRHealth before using the Software. Without limiting any of its other rights or remedies, XRHealth reserves the right to suspend any User’s right to access or use the Software if XRHealth reasonably believes that such User has materially violated the restrictions and obligations in these Terms and Conditions (in which case, it shall provide Customer prompt written notice of such suspension).

Customer Cooperation. Customer shall: (a) reasonably cooperate with XRHealth in all matters relating to the Software; (b) respond promptly to any XRHealth request to provide information, approvals, authorizations or decisions that are reasonably necessary for XRHealth to provide access to the Software in accordance with these Terms and Conditions; and (c) provide such Customer materials or information as XRHealth may reasonably request to provide access to the Software and ensure that such materials or information are complete and accurate in all material respects.

Third Party Software and Hardware. XRHealth may, from time to time, lease (or recommend) Third Party Software and/or Hardware detailed in a Statement of Work attached hereto for use in or with the Software. The lease and use of Third-Party Software and/or Hardware is governed by XRHealth’s Terms of Use (unless expressly stated otherwise in a Statement of Work) and the terms of any third-party user license or similar terms and conditions applicable thereto. To the extent there are any updates to the Third-Party Software, the Software may no longer work with such Third-Party Software, and Customer should not download or use any such updates unless and until XRHealth validates they are compatible with the Software as explained in the IFU. Warranties, representations, or commitments concerning a Third-Party Software and/or Hardware are specified in the terms of any third-party user license or similar terms and conditions applicable thereto. Such supplier shall be solely responsible for any commitments, warranties, or representations and for any damages incurred to Customer and/or its end-users in connection with the use of such Third-Party Software and Hardware. XRHealth shall not be liable for any Third-Party Software and/or Hardware used in connection with the Software.

Hosting Providers. Customer acknowledges that the Service is hosted by third party hosting providers (the “Hosting Providers”). XRHealth may change its Hosting Providers at any time. Customer’s use of the Service is subject to any applicable restrictions imposed by the Hosting Providers. XRHealth shall not be responsible or liable for any problems, failures, defects, or errors with the Service to the extent caused by the Hosting Providers.

Training.  If a Statement of Work includes training by XRHealth, then at agreed-upon times selected by the Parties, XRHealth will provide orientation and training on use of the Services to the Patients and Customer’s staff (as applicable).  The orientation and training may be provided through in-person meetings, telephonic support, email support, webinars, and other teaching and educational methods used by XRHealth from time to time.

XRHealth Technology. In connection with providing the Service, XRHealth shall operate and support the hosted environment used by XRHealth to provide the Service, including the XRHealth Technology, the server hardware, disk storage, firewall protection, server operating systems, management programs, web server programs, documentation and all other technology or information so used by XRHealth.

Downtime. XRHealth shall use commercially reasonable efforts to provide access to the Service twenty-four (24) hours a day, seven (7) days a week. Customer agrees that from time to time the Service may be inaccessible or inoperable for various reasons, including (a) equipment malfunctions; (b) periodic maintenance procedures or repairs which XRHealth may undertake from time to time; or (c) causes beyond the reasonable control of XRHealth, including Third Party Software or other third party technology issues, interruption or failure of telecommunication or digital transmission links, hostile network attacks or network congestion or other failures (collectively “Downtime”). XRHealth shall use commercially reasonable efforts to provide advance notice to Customer in the event of any scheduled Downtime. XRHealth shall use commercially reasonable efforts to minimize any disruption, inaccessibility and/or inoperability of the Service in connection with Downtime, whether scheduled or not.

Connectivity; Infrastructure; Encryption. Each Party is responsible for procuring, implementing, and maintaining the network connections, hardware, and other infrastructure, and third-party software licenses necessary for XRHealth to furnish Customer and the Users to use the Service. Customer is further responsible for ensuring that all data containing personal health information is transmitted by Customer and the Users through monitoring devices utilized in connection with provision of the Service to or from XRHealth’s servers in compliance with valid encryption processes for data at rest and data in motion consistent with all applicable data privacy laws.

4. Ownership. Customer acknowledges and agrees that as between XRHealth and Customer, all right, title and interest in and to the Software (including the data, information, text, images, designs, sound, music, marks, logos, compilations (meaning the collection, arrangement and assembly of information) and other content in, on or made available through the Software, other than Customer Data), the XRHealth Technology and all improvements and derivatives of the foregoing (including all intellectual property and proprietary rights embodied therein or associated therewith) are and shall remain owned by XRHealth or its licensors or other providers, and these Terms and Conditions in no way conveys any right, title or interest in the Software or the XRHealth Technology other than a limited right to access and use the Software in accordance with the terms and conditions herein. No right or license is granted hereunder to Customer under any trademarks, service marks, trade names or logos. Customer shall not remove any XRHealth trademark, service mark or logo, or any proprietary notices or labels (including any copyright or trademark notices) from the Software.

Customer agrees that, as between Customer and the Patients using the Service, on the one hand, and XRHealth, on the other hand, all right, title, and interest in and to all aspects of the Software and the Service, including associated know-how, technology and other proprietary information, including data or data analytics generated by or derived from the use of the Software and the Services, all improvements, enhancements, additions, modifications, and derivative works prepared from or relating to any of them are and will remain the exclusive property of XRHealth. XRHealth will have the unrestricted and permanent right to use and implement all ideas, advice, recommendations, or proposals of Customer with respect to the Software or the Services in any manner and in any media.

5. Confidentiality. For the purposes of these terms and conditions , “Confidential Information” means any software including the Software (in all formats, including object code and source code), material, data (excluding PHI, as described in the Business Associate Addendum to these terms and conditions ) or business, financial, operational, customer, vendor and other information disclosed by one Party to the other and not generally known by or disclosed to the public, and will include, without limitation, the terms of these terms and conditions . For the avoidance of doubt, PHI will not be considered Confidential Information and will be governed by the terms of the Business Associate Addendum to these terms and conditions.  Notwithstanding anything in these terms and conditions  to the contrary, Confidential Information will not include information that is:  (i) already known to or otherwise in the possession of a Party at the time of receipt from the other Party and that was not known or received as the result of violation of any obligation of confidentiality; (ii) publicly available or otherwise in the public domain prior to disclosure by a Party;  (iii) rightfully obtained by a Party from any third party having a right to disclose such information without restriction and without breach of any confidentiality obligation by such third party; (iv) developed by a Party independent of any disclosure hereunder, as evidenced by written records; or (v) disclosed pursuant to the order of a court or administrative body of competent jurisdiction or a government agency, provided that the Party receiving such order will notify the other prior to such disclosure and will cooperate with the other Party in the event such Party elects to legally contest, request confidential treatment, or otherwise avoid such disclosure.

Each Party will maintain all of the other Party’s Confidential Information in strict confidence and will protect such information with the same degree of care that such Party exercises with its own Confidential Information, but in no event less than a reasonable degree of care.

Except as provided in these terms and conditions, a Party will not use or disclose any Confidential Information of the other Party without the express prior written consent of such Party.

Access to and use of any Confidential Information will be restricted to those employees, persons within a Party’s organization or consultants, subcontractors, or professional advisors with known discretion and with a need to use the information to perform such Party’s obligations under these terms and conditions.

All of a Party’s Confidential Information disclosed to the other Party, and all copies thereof, will be and remain the property of the disclosing Party. All such Confidential Information and any and all copies and reproductions thereof will, upon the expiration or termination of these terms and conditions, be promptly returned to the disclosing Party or destroyed at the disclosing Party’s direction.  In addition, upon fifteen (15) days of a written request by the disclosing Party, the receiving Party will promptly return all Confidential Information, and any and all copies and reproductions thereof, or destroy it at the disclosing Party’s direction.

6. Termination.

6.1           Termination for Default. In the event that Customer breaches a material provision of these Terms and Conditions, XRHealth may terminate any existing Statement of Works and Services without penalty upon at least thirty (30) days prior notice to Customer, provided such breach is not cured (if curable) within such thirty (30) day notice period. In addition, XRHealth shall have the right to immediately terminate these terms and conditions for the following reasons by providing written notice thereof to Customer: (a) Suspension, exclusion, debarment or sanction of Customer under the Medicare Program, any Medicaid Program or any other federal program for the payment or provision of medical services; or the listing of Customer by a federal agency as barred, excluded or otherwise ineligible for federal program participation; (b) Customer makes any materially false or misleading representation or warranty contained in these terms and conditions, or otherwise misrepresents any information or provides false or misleading information or certification on a financial report required by these terms and conditions ; or (c) Customer makes an application for the appointment of a receiver, trustee or custodian for any of Customer’s assets; files a petition under any section or chapter of the federal Bankruptcy Code or any similar law; makes an assignment for the benefit if its creditors; or becomes insolvent or fails generally to pay its debts as they become due.

6.2           Effect of Termination. (a) The termination or expiration of these terms and conditions for any reason will not affect either Party’s obligations for the Services rendered prior to the effective date of termination or expiration.  Upon termination or expiration of these terms and conditions or any of the Services, Customer will immediately pay to XRHealth all amounts due and payable hereunder for the Services provided through the effective date of termination or expiration; (b) At termination of these terms and conditions, the Fees will continue to be due and payable to XRHealth until the date on which provision of the Services ends; and (c) Within thirty (30) days after termination of these terms and conditions, Customer shall return any equipment provided by XRHealth in connection with the Service, including but not limited to any virtual reality headsets.  The customer shall be responsible for the then-current replacement cost for the loss of any such equipment. 

6.3           Remedies.  Notwithstanding anything in these terms and conditions to the contrary, where a material breach of any provision of these terms and conditions may cause either Party irreparable injury or may be inadequately compensable in monetary damages, the aggrieved Party will be entitled to obtain equitable relief.

6.4           Survival.  The provisions of these terms and conditions, which by their terms survive termination, including without limitation, Sections 4, 5, 7-11 and 15-19 will continue to be enforceable notwithstanding expiration or termination of these terms and conditions for any reason. 

7. Data and Privacy.

7.1           Privacy Policy. At all times Customer Data will be treated by XRHealth in accordance with XRHealth’s Privacy Policy. If XRHealth will collect or generate PHI in connection with the Service, the PHI will be treated in accordance with HIPAA.

7.2           Confidentiality of Patient Information.  The Parties expressly acknowledge and agree that Customer is a “covered entity” as defined by HIPAA. It is expressly intended by the Parties that both Parties and all Services comply with HIPAA and that any protected health information shared by the Parties fall within HIPAA’s exemption for disclosures of such information for treatment purposes. To the extent that the Parties need to share information for purposes other than the treatment of Patients, the Parties will either (i) ensure that the disclosure of such information falls within separate permissible grounds for disclosure under HIPAA, or (ii) obtain the Patient’s written consent to the disclosure of such information.

7.3           Use and Disclosure of PHI. The Parties will comply with all Legal Requirements applicable to health information and records privacy and security, including without limitation HIPAA, regarding the use and disclosure of PHI, provided that XRHealth will have the right to use PHI for proper management and administration, to provide data aggregation services, to create de-identified health information, and to create limited data sets for research, public health, or health care operations, as permitted under HIPAA or other applicable state Legal Requirements. Customer also hereby represents and warrants that it has the right to disclose and transmit the PHI to XRHealth and to permit XRHealth to create, receive, maintain, store and transmit the PHI on behalf of Customer.  If required by applicable Legal Requirements, the Business Associate Agreement available at: https://www.xr.health/xrhealth-baa shall govern Customer’s relationship with XRHealth in connection with third-parties’ PHI provided by Customer to XRHealth.

7.4 Additional Customer Responsibilities. Customer is solely responsible for all Customer Data. XRHealth does not guarantee the accuracy, integrity, or quality of Customer Data. For clarity, Customer Data will only be accessible to Customer during the applicable Subscription Term. Customer shall not: (a) upload or otherwise make available to XRHealth any Customer Data that is unlawful or that violates the rights of any third parties; (b) upload or otherwise make available to XRHealth any Customer Data that Customer does not have a right to transmit due to any law, rule, regulation or other obligation; (c) use, upload or otherwise transmit any Customer Data that infringes any intellectual property, other proprietary rights or other rights of any third party; (d) upload or otherwise make available to XRHealth any material that contains software viruses or any other computer code, files or programs designed to interrupt, destroy or limit the functionality of any computer software or hardware or telecommunications equipment; (e) interfere with or disrupt the Service or servers or networks connected to the Service; (f) except as permitted by and in compliance with applicable privacy related laws, upload or otherwise make available to XRHealth any Customer Data that constitutes PHI under applicable privacy related laws; or (g) violate any applicable law, rule or regulation, including those regarding the export of technical data.

8. Representations and Warranties of Customer

8.1           Customer represent and warrants to XRHealth that: (a) it is organized and validly existing under the Legal Requirements of the state of its formation and has full corporate power and authority to enter into these Terms and Conditions and to carry out the provisions hereof; (b) it is duly authorized to execute and deliver these Terms and Conditions and to perform its obligations hereunder; (c) these Terms and Conditions is a legal and valid obligation binding upon it and enforceable according to its terms; and (d) the execution, delivery, and performance of these Terms and Conditions by such Party does not conflict with any agreement, instrument, or understanding, oral or written, to which it is a party or by which it may be bound.

8.2           Compliance with Federal Payers.  Customer represents and warrants to XRHealth that: (1) it is not currently and has not been suspended, excluded, barred or sanctioned under or by the Medicare program, any Medicaid program, any other federal program that provides for the payment or provision of medical services, or any government licensing agency, and has not been listed by any federal agency as barred, excluded or otherwise ineligible for federal program participation, and (2) it shall immediately disclose to the other Party any future debarment, exclusion, suspension or other event that makes it ineligible for federal program participation.   It shall cause its employees and other agents to comply with federal, state and local law, rules and regulations, and, applicable accreditation agency record keeping and reporting requirements.

8.3           Licenses and Permits.  Customer represents and warrants that Customer and, as applicable, its facilities are, and throughout the Subscription Term will hold and maintain all required licenses, certifications, and other mandatory qualifications necessary to engage in Customer’s business in the states in which the Services are provided.  Customer will promptly notify XRHealth of any action taken against such licensure, certification, or other qualification by any federal, state, or local agency or governing body.  Customer will not request that XRHealth provide services that would violate any applicable law governing the operation of Customer’s facilities. Customer will defend, indemnify, and hold XRHealth harmless from any losses incurred by XRHealth arising out of Customer’s failure to comply with applicable licensure, certification, and other qualifications during the Subscription Term.

8.4           Litigation. If any material litigation or proceeding involving the provision of health care services to the Patients is threatened or commenced against Customer or XRHealth, Customer or XRHealth, as applicable, will promptly give notice thereof to the other Party.

8.5           Patient Complaints. Customer shall immediately inform XRHealth in writing of any complaints received from its Patients in respect of the Hardware or Software or of any irregular events (including events resulting in bodily injury or monetary damages) involving the use of the Hardware or Software and shall deal promptly and properly with such complaints or events.  Customer shall promptly report to XRHealth any adverse event, product failure, Customer feedback, and other information.

8.6           Insurance.  During the Subscription Term, Customer will continuously maintain in full force and effect insurance by insurers of recognized financial responsibility against such losses and risks and in such amounts as are prudent and customary in the businesses in which the Customer is engaged, including, but not limited to general commercial and professional liability insurance and workers’ compensation insurance.  Upon request by XRHealth, Customer will provide documentation to XRHealth evidencing the coverage required by this Section 8.6.  Customer agrees to notify XRHealth at least thirty (30) days prior to the non-renewal, cancellation or modification of the coverage required hereunder.

8.7           Informed Consent.  Customer agrees that all of the Patients will be asked to sign the informed consent form furnished to the Patients by XRHealth regarding provision of the Service, in addition to any consent form required of the Patients by Customer.

8.8           Compliance with Laws. Customer will, during the Term, fully comply with all applicable Legal Requirements applicable to it and to its business of furnishing medical and other health care services to the Patients.

9. No Warranty Disclaimer. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE XRHEALTH PRODUCTS ARE PROVIDED “AS IS” AND “AS AVAILABLE” BASIS, AND XRHEALTH EXPRESSLY DISCLAIMS ALL REPRESENTATIONS, WARRANTIES AND CONDITIONS (EXPRESS OR IMPLIED, ORAL OR WRITTEN), INCLUDING ANY IMPLIED WARRANTIES OF TITLE, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. IN ADDITION,  XRHEALTH DOES NOT REPRESENT OR WARRANT THAT (A) THE FUNCTIONS CONTAINED IN THE XRHEALTH PRODUCTS AND SERVICES WILL BE ACCURATE OR MEET CUSTOMER’S REQUIREMENTS, (B) AS A RESULT OF THE USE OF THE SERVICES, THE CUSTOMER WILL IMPROVE THE TREATMENTS AND THERAPIES OF PATIENTS OR THE RESULTS THEREOF, (C)  THE OPERATION OF THE XRHEALTH PRODUCTS WILL BE SECURE, UNINTERRUPTED, ERROR-FREE OR VIRUS-FREE, OR (D) ANY DEFECTS IN THE XRHEALTH PRODUCTS WILL BE CORRECTED. NO ORAL OR WRITTEN INFORMATION, GUIDELINES OR ADVICE GIVEN BY XRHEALTH OR ANYONE ON ITS BEHALF WILL CREATE A WARRANTY.

THE CUSTOMER AND ITS USERS ARE SOLELY RESPONSIBLE FOR THE PROPER USE OF THE HARDWARE AND SERVICES. THE CUSTOMER AND ITS USERS ARE SOLELY RESPONSIBLE FOR THE PROPER USE OF THE HARDWARE AND SERVICES. THE INFORMATION PROVIDED BY THE SERVICES SHOULD NOT BE THE SOLE INFORMATION USED BY THE CUSTOMER AND ITS USERS TO MAKE DECISIONS ABOUT THE TREATMENT AND THERAPY OF THEIR PATIENTS, NOR DOES INFORMATION PROVIDED BY THE XRHEALTH SERVICES REPLACE THE CUSTOMER AND ITS USERS’ TRAINED JUDGMENT.

10. Limitations of Liability.

TO THE FULLEST EXTENT PERMISSIBLE BY LAW, AND REGARDLESS OF WHETHER THE DAMAGES ARE IN CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE: (A) XRHEALTH’S AND ITS AFFILIATES’ AGGREGATE TOTAL LIABILITY FOR ALL DAMAGES ARISING OUT OF OR RELATED TO THE SOFTWARE OR THESE TERMS AND CONDITIONS SHALL NOT EXCEED THE TOTAL AMOUNT OF SUBSCRIPTION FEES PAID BY CUSTOMER TO XRHEALTH DURING THE PRIOR 12 MONTHS; AND (B) IN NO EVENT SHALL XRHEALTH AND ITS AFFILIATES BE LIABLE FOR ANY INDIRECT, CONSEQUENTIAL, INCIDENTAL, SPECIAL, EXEMPLARY OR PUNITIVE DAMAGES (INCLUDING LOSS OF DATA, PROFITS OR REVENUE) ARISING OUT OF OR RELATED TO THE SOFTWARE OR THESE TERMS AND CONDITIONS, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES IN ADVANCE.

11. Indemnification. Customer shall indemnify and hold harmless XRHealth, its affiliates, and their respective directors, officers, employees, agents, representatives, licensors and other providers from and against any third party claims, actions, proceedings, demands, lawsuits, damages, liabilities, costs, expenses, losses or obligations of any kind or nature (including reasonable attorneys’ and experts’ fees) to the extent based on, arising out of, or otherwise relating to Customer’s provision to XRHealth of the Customer Data and XRHealth’s use thereof as permitted herein, Customer’s breach of these Terms and Conditions, or Customer’s use of the Software (except to the extent caused by the gross negligence or willful misconduct of XRHealth).

12. Force Majeure. XRHealth shall not be liable or responsible to Customer, nor be considered to have defaulted or breached these Terms and Conditions, for any failure or delay in fulfilling or performing any provision of these Terms and Conditions to the extent such failure or delay is caused by or results from any cause beyond the reasonable control of XRHealth.

13. Notices. Any notice or communication required or permitted under these Terms and Conditions shall be in writing to the parties at the addresses set forth on the Statement of Work or at such other address as may be given in writing by either party to the other. Any notice sent shall be effective (i) if mailed by registered mail, seven (7) days after mailing, (ii) if sent by messenger, upon delivery, and (iii) if sent via email, upon transmission (provided that no notification of failure to deliver was received) and electronic confirmation of receipt.

14. Compliance. The Parties agree that Services under these Terms and Conditions are not considered illegal remuneration, as that term is defined in Section 1128B(b)(1)(A) of the Social Security Act.  Each Party, and its employees, subcontractors, downstream entities, related entities, and agents who provide Services under the terms of these Terms and Conditions will participate in health care fraud, abuse and waste compliance training, education or communications annually or as otherwise required by Legal Requirements.  Such training must also be made a part of the orientation of new employees. Customer will, during the Subscription Term, fully comply with all applicable Legal Requirements applicable to it and to its business of furnishing medical and other health care services to the Patients. XRHealth will, during the Subscription Term, fully comply with all applicable Legal Requirements applicable to it and to its business of furnishing the Service.

15. Export Regulations. Customer agrees to comply fully with all laws and regulations concerning the purchase and sale of products. 

16. Confidentiality and Injunctive Relief. Customer acknowledges that the Software contains trade secrets, and is the confidential and proprietary property, of XRHealth or its licensors or other providers. Customer will not access or use the Software except as expressly permitted herein. Customer will not disclose the Software, or any other information provided by XRHealth to Customer relating to the Software, to (a) any Customer employee who does not have a need to know for the purpose of exercising Customer’s rights hereunder, or (b) any third party. Customer acknowledges that a breach of the provisions in these Terms and Conditions would cause substantial harm to XRHealth that could not be remedied by payment of damages alone. Accordingly, XRHealth will be entitled to seek preliminary and permanent injunctive relief, and other equitable relief, for any such breach, without any requirement to prove damages or post bond.

17. Non-Solicitation of Employees.  During the Subscription Term and for a period of one (1) thereafter, Customer will not offer to hire, solicit for employment or retention as an independent contractor, or in any way employ or contract with any employee of XRHealth without the prior written consent of XRHealth.

18. Publicity. XRHealth shall have the right to use Customer’s name and logo on client lists published on XRHealth’s website and marketing materials. XRHealth may announce the relationship hereunder in a press release provided that XRHealth obtains Customer’s prior approval of the wording of the release (not unreasonably withheld).

19. Dispute Resolution. Governing Law; Venue. Unless otherwise agreed in writing, these Terms and Conditions contained herein shall be governed and construed in accordance with the laws of the State of New York, USA without giving effect to any conflict or choice of law provisions. Any dispute arising from or in connection with these Terms of Sale will be brought before the competent courts of the State of New York, USA. Dispute Resolution. If a dispute arises out of or relates to these Terms and Conditions, or the breach thereof, either Party may, by notice to the other Party, have such dispute referred to authorized representatives for each Party for attempted resolution by good faith efforts. Each Party’s authorized representative will have the power to bind the Party. If the authorized representatives are not able to resolve such dispute within fifteen (15) days after such notice is received, then the dispute will be determined by non-binding mediation administered by the American Arbitration Association (“AAA”) under its Commercial Mediation Rules, before resorting to litigation, or some other dispute resolution procedure. Absent agreement to the contrary of the Parties, the mediation will be conducted in New York, New York, by a sole mediator selected by the Parties. If there is no agreement on the selection of the mediator, the AAA will have the power to select the mediator. If the Parties fail to settle the dispute within thirty (30) days from the commencement of the non-binding mediation, and do not mutually agree to extend the thirty (30) day period, or if the Parties do not submit the matter to non-binding mediation, either Party may submit the matter to a federal or state court of competent jurisdiction located in New York, New York. The Parties, their representatives, other participants, and the mediator will hold the existence, content, and result of the mediation in confidence.  This provision will survive the termination of these Terms and Conditions. Nothing in this clause will be construed to preclude any Party from seeking injunctive relief in order to protect its rights pending mediation.

Notwithstanding the foregoing, XRHealth may seek injunctive relief in any court of competent jurisdiction.

20. Default. In the case of default or breach by Customer in the performance of any or all of the provisions of these Terms and Conditions, XRHealth may cancel any quotations by XRHealth or outstanding purchase order from Customer. Customer shall be liable for XRHealth’s expenses incurred in exercising any remedies available to it, including reasonable attorney’s fees and legal expenses.