Terms & Conditions
Scope of Agreements.
Xcelrate offers services and tools to Client that facilitate and track certain medical device information and medical supplies, enabling Client to better serve and focus on patients, as well as comply with various applicable regulations. These services and tool also allow Client to review and analyze various medical device and supply information on and through Xcelrate applications, websites, and platforms, while also offering certain ancillary applications, analytics, documentation, and services to Client all as more particularly identified in the Order Form (the “Service”), and Xcelrate desires to make such Service available to Client.
Description of Services.
Service. Subject to the terms and conditions contained in this Agreement, Xcelrate agrees to use commercially reasonable efforts to furnish the Service to Client as well as any other ancillary services, if any, expressly described on the order form attached hereto as Exhibit A (“Order Form”).
Availability of Service. Xcelrate will use commercially reasonable efforts to make the Service available to Client in accordance with the Order Form. Client acknowledges that availability of the Service may be affected by: (i) telecommunication network activity or capacity; (ii) hardware failures; and/or (iii) compatibility with third party communication equipment, Internet access software and/or browsers not in accordance with the Service requirements. Xcelrate disclaims any and all responsibility for any service interruption in connection with such activity, capacity, failure and/or compatibility. Client is responsible for providing all equipment and telecommunication services necessary to access the Service.
Modifications to Service. Xcelrate reserves the right to change the Service (including the content, appearance, design, functionality and all other aspects thereof), access procedures, tools, documentation, format requirements, communications protocols and services offered at any time for any reason without prior written notice to Client; provided, however, such changes to the Services will not materially degrade the performance, availability or security of the Services during the period for which Client has ordered the Services.
Technical Support. Xcelrate will use commercially reasonable efforts to provide Client with the support services set forth in Exhibit B attached hereto.
Additional Services. In the event that Client desires to procure custom or professional services from Xcelrate, including without consultation on any marketing campaigns, the parties will identify such services on the Order Form or may enter into a mutually agreed professional services agreement or custom statement of work to reflect such services.
Client Responsibilities
Accuracy and Review of Client Material. Client assumes sole responsibility for: (a) all content, data or other materials provided or made available to Xcelrate or on the Service by Client or its users (“the Client Materials”); and (b) ensuring that the Client Materials do not infringe or violate any right of any third party.
Compliance With Xcelrate Policies. Client will at all times comply with Xcelrate’s posted policies, including without limitation Xcelrate’s privacy policy.
Data Backup.
Xcelrate disclaims any and all responsibility for any loss of any Client Materials, data or results from the Service. Xcelrate is not responsible for the backup of any Client Materials, data or results. Client acknowledges that data conversion, processing and manipulation are subject to the likelihood of human and machine errors, omissions, delays, and losses, including inadvertent loss of data or damage to media that may give rise to loss or damage. To the extent within its control, Client is responsible for adopting reasonable measures to limit the impact of such problems, including backing up data, and adopting procedures to ensure the accuracy of input data; examining and confirming results prior to use; and adopting procedures to identify and correct errors and omissions, replace lost or damaged media, and reconstruct data. Client is also responsible for complying with all local, state, and federal laws pertaining to the use and disclosure of any data. In the event of termination or expiration of this Agreement or disconnection of the Service, Xcelrate may delete or store, in its discretion, any files, programs, data or messages associated with Client; provided that anything stored will continue to be protected under the confidentiality obligations (if applicable to such items stored) under this Agreement.
License Grants.
Xcelrate’s Grant of License. So long as Client complies with the terms of this Agreement, Xcelrate grants Client a limited, royalty-free, worldwide, non-exclusive, non-transferable license to use, access, input data into, and process data through the Service for Client’s internal use. Client may not use, copy, modify, rent, loan, lease, sublicense, create derivative works or distribute the Service for any other purposes or make the Service available to any third parties. Xcelrate grants no rights other than explicitly granted herein, and Client shall not exceed the scope of its license. Client will not: (i) sell, resell, lease, lend, or the functional equivalent thereof, the Service in whole or in part, to a third party, (ii) in any way alter, change, modify, adapt, translate or make derivative works of the Service, (iii) transmit any viruses or programming routines intended to damage, surreptitiously intercept, or expropriate any system, data or personal information, or (iv) sublicense or operate the Service for timesharing, rental, outsourcing, or service bureau operations, or to train persons other than Client’s employees, agents, or subcontractors contractually bound by the terms contained herein. Xcelrate reserves all rights not expressly granted to Client hereunder. All techniques, know-how, software, algorithms and methods or rights thereto owned by Xcelrate at the time this Agreement is executed, developed during the course of the design, development, and provision of the Service, or which are employed by Xcelrate in connection with the Service, shall be and remain the property of Xcelrate. Client shall not decompile, disassemble, or reverse engineer the Service or any elements of the Service, or otherwise derive source or object code from the Service or any elements thereof. Client agrees not to access the Service by any means other than through the interfaces that are provided by Xcelrate. Client shall not do any "mirroring" or "framing" of any part of the Service or create Internet links to the Service which include log-in information, usernames, passwords, and/or secure cookies. Client shall ensure that all access and use of the Service is in accordance with the terms and conditions of this Agreement, including but not limited to those users that are contractors and agents. Any action or breach by any of such contractors, agents or Affiliates shall be deemed an action or breach by Client.
Client's Grant of License. Client hereby grants to Xcelrate a worldwide, non-exclusive, royalty-free, license to use, distribute, reproduce, publicly perform, publicly display, digitally perform, make, have made, store, maintain and import all Client Materials for the purposes of providing and operating the Service. The license may also be exercised on behalf of Xcelrate by third parties acting on Xcelrate’s behalf (e.g., technology partners, service providers and independent contractors) to the extent necessary to perform the Services.
Feedback. Xcelrate shall have a royalty-free, worldwide, perpetual, irrevocable license to use or incorporate into the Service any suggestions, ideas, enhancement requests, feedback, recommendations or other information provided by Client relating to the operation of the Service.
Ownership. As between Xcelrate and Client, Xcelrate (or its licensors) is the sole and exclusive owner, and will retain all right, title and interest in and to the Service, including without limitation all of the software comprising any portion thereof and all related services, specifications, documentation, technical information, corrections, customizations, modifications, additions, improvements and enhancements to and all intellectual property rights in the foregoing. As between Xcelrate and Client, the Client Materials shall be and remain the sole and exclusive property of Client. As between Xcelrate and Client, all data analytics and aggregated data generated from Client’s use of the Service shall be the sole and exclusive property of Xcelrate. Xcelrate shall have the right to use, create derivative works of, distribute and otherwise exploit all such data analytics and anonymous or aggregate usage data derived from Client Materials or Client’s use of the Services (“Usage Data”) such as the aggregate number of transactions that occur within a particular Service. In no event will Usage Data include data which can be reverse engineered to identify Client.
Term And Termination.
Term. The initial term of this Agreement shall be for a period of one (1) year following the Effective Date. Thereafter, this Agreement shall automatically renew for additional one (1) year unless terminated by written notice by a party at least sixty (60) days before the expiration of the then current term.
Suspension for Cause. Xcelrate may suspend Client’s access to the Service upon written notice in the event that Client exceeds the license described in Section 5.1, Client fails to pay any amount when due, Client breaches Section 9, or where Xcelrate reasonably believes such action is necessary to protect the security or integrity of the Service or any data thereon.
Termination for Cause. Except as otherwise provided for herein, either party may terminate this Agreement (a) upon the material breach of the other party, provided that the breaching party shall have fourteen (14) days to cure such breach following written notice unless the breach by its nature takes longer than fourteen (14) days to cure in which case the breaching party shall not be in breach so long as the party begins to cure the breach within fourteen (14) days and diligently completes such cure; (b) upon the cessation of business by either party or the filing of a petition in bankruptcy (voluntary or involuntary) with respect to a party, which in the case of an involuntary petition the party shall have sixty (60) days in which to vacate such petition; or (c) upon the failure by Client to pay any amount due hereunder, provided that Client shall have three (3) business days to cure such monetary breach following written notice. Xcelrate may further terminate this Agreement with fourteen (14) days’ prior written notice in the event that there is any material change in circumstance that will result in substantial interference in Xcelrate’s operation or any substantial increase in the cost of Xcelrate’s cost of doing business.
Effect of Termination. Upon any termination of this Agreement, all rights and obligations of the parties under this Agreement will be extinguished, except that (a) the rights and obligations under Sections 5.3, 6, 7.2, 8.4, 11, 12, 13, and 15 will survive the termination of the Agreement, and (b) Client shall pay all unpaid and outstanding fees through the effective date of termination or expiration of the Agreement. Client further agrees to no longer use, uninstall and delete the application from all workstations upon the termination date. Failure to comply will renew the contract terms.
Lawful Conduct.
Client shall comply with all applicable local, state, and federal laws and regulations, and, to the extent that Client establishes offices outside the United States, applicable foreign laws, treaties, regulations, and conventions in connection with its use of the Service, including without limitation those related to privacy, electronic communications and anti-spam legislation. Client shall comply with the export laws and regulations of the United States and other applicable jurisdictions in using the Service and obtain any permits, licenses and authorizations required for such compliance. Without limiting the foregoing, (i) Client represents that it is not named on any U.S. government list of persons or entities prohibited from receiving exports, (ii) Client shall not authorize users to access or use the Service in violation of any U.S. export embargo, prohibition or restriction, and (iii) Client shall comply with all applicable laws regarding the transmission of technical data exported from the United States and the country in which its users are located. Client will not knowingly send any electronic communication from the Service that is unlawful, harassing, libelous, defamatory or threatening; provided that Client has taken commercially reasonable measures to prevent all such occurrences.
Warranties.
Each party represents and warrants to the other party that (i) such party has the full corporate right, power and authority to enter into this Agreement and to perform the acts required of it hereunder; (ii) the execution of this Agreement by such party, and the performance by such party of its obligations and duties hereunder, do not and will not violate any agreement to which such party is a party or by which such party is otherwise bound; and (iii) when executed and delivered by such party, this Agreement will constitute the legal, valid and binding obligation of such party, enforceable against such party in accordance with its terms.
Indemnification.
Client agrees to indemnify and hold harmless Xcelrate (its affiliates, subsidiaries, shareholders, officers, directors, employees, contractors, agents and representatives) (together, the “Xcelrate Indemnified Parties”) against any cost, claim, liability or expense any of the Xcelrate Indemnified Parties incur as a result of or arising out of or related to: (i) Client’s breach of this Agreement or of Client’s warranties, covenants and representations made hereunder; (ii) Client’s willful, negligent, tortious or criminal acts or omissions; and (iii) Client’s violation of any third party rights. The applicable Xcelrate Indemnified Party shall provide Client written notice of any claim for it seeks indemnification under this Section.
Xcelrate agrees to indemnify and hold harmless Client (its affiliates, subsidiaries, shareholders, officers, directors, employees, contractors, agents and representatives) (together, the “Client Indemnified Parties”) against any cost, claim, liability or expense any of the Client Indemnified Parties incur as a result of or arising out of or related to: (i) Xcelrate’s breach of this Agreement or of Xcelrate’s warranties, covenants and representations made hereunder; (ii) Xcelrate’s willful, negligent, tortious or criminal acts or omissions; (iii) any improper access of Client’s Materials; and (iv) Xcelrate’s violation of any third party rights. The applicable Client Indemnified Party shall provide Client written notice of any claim for it seeks indemnification under this Section.
Confidential Information.
Each party acknowledges and agrees that it (and its subcontractor(s), if any), in performing its obligations under this Agreement, shall have access to or be directly or indirectly exposed to each other’s Confidential Information. Each party shall hold confidential all Confidential Information and shall not disclose such Confidential Information to third parties nor use the other party’s Confidential Information for any purpose other than as necessary to perform under this Agreement. Each party shall use reasonable measures and reasonable efforts to provide protection for each other’s Confidential Information, including measures at least as strict as those each party uses to protect its own Confidential Information. Such measures shall include, without limitation, requiring employees and independent contractors to sign a non-disclosure agreement before obtaining access to the other party’s Confidential Information and such other measures as the party takes to protect its Confidential Information or trade secrets in the course of its business. “Confidential Information” means information in the possession or under the control of a party relating to the technical, marketing, product, and/or business affairs or proprietary and trade secret information of that party in oral, graphic, written, electronic or machine readable form, Client Materials, source code and information pertaining to usage and design of the Service, and the terms and conditions of this Agreement.
The foregoing restrictions on disclosure shall not apply to Confidential Information which is (a) already known by the recipient, (b) becomes, through no act or fault of the recipient, publicly known, (c) received by recipient from a third party without a restriction on disclosure or use, or (d) independently developed by recipient without reference to the other party’s Confidential Information.
Xcelrate will implement commercially reasonable physical, technical, administrative and organizational safeguards to protect any Client Materials or Client or Customer data or Confidential Information that are no less rigorous than accepted industry security practices and will ensure that all such safeguards are in compliance with all applicable data protection and privacy laws and regulations.
Because of the unique nature of each party’s proprietary materials, each party understands and agrees that the other party may suffer irreparable injury in the event that a party fails to comply with any of the terms of this Section 12, and that monetary damages may be inadequate to compensate for such breach. Accordingly, each party agrees that the other party will, in addition to any other remedies available to it at law or in equity, be entitled to seek injunctive relief to enforce the terms of this Agreement against any actual or threatened breach of this Section 12.
Disclaimers of Warranty; Limitation of Liability.
THE SERVICE IS MADE AVAILABLE BY XCELRATE TO CLIENT “AS IS” AND “WITH ALL FAULTS, ERRORS, BUGS AND DEFECTS.” EXCEPT AS OTHERWISE STATED IN THIS AGREEMENT, XCELRATE MAKES NO OTHER REPRESENTATION OR WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, AS TO THE CONDITION, CHARACTER, NATURE, CAPABILITY, PERFORMANCE, SECURITY, AVAILABILITY, SUITABILITY, TITLE, SOURCE OR ANY OTHER CHARACTERISTIC OF THE SERVICE OR ANY PORTION THEREOF. XCELRATE HEREBY DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, WITH RESPECT TO THE SERVICE OR THIS AGREEMENT, INCLUDING: (A) ANY IMPLIED WARRANTY OF CLIENTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE OR NON-INFRINGEMENT; (B) ANY IMPLIED WARRANTY ARISING FROM COURSE OF DEALING, COURSE OF PERFORMANCE OR USAGE OF TRADE; OR (C) ANY WARRANTY THAT THE SERVICE WILL BE SECURE OR ERROR-FREE, WILL MEET CLIENT’S REQUIREMENTS, WILL CONTAIN ANY PARTICULAR FEATURES OR FUNCTIONALITY, WILL ALWAYS BE AVAILABLE, ACCESSIBLE, UNINTERRUPTED, TIMELY OR SECURE, OR OPERATE WITHOUT ERROR. XCELRATE UDI, INC. ADDITIONALLY MAKES NO REPRESENTATIONS OR GUARANTEES FOR THE ACCURACY OF THE DATA PROVIDED BY THE THIRD-PARTY DATABASES OR ANY OTHER REPOSITORY THAT PROVIDES UDI, PRODUCT AND MANUFACTURER DETAILS RETRIEVED FROM THE USE OF OUR BARCODE SCANNING SOLUTIONS. XCELRATE UDI IS SIMPLY A PASS-THROUGH AGENT OF THIS INFORMATION AND THE CLIENT AND THE MANUFACTURER ARE SOLELY RESPONSIBLE FOR USE, DISSEMINATION, AND ANY DECISIONS MADE (MEDICAL OR OTHERWISE) AS A RESULT OF THIS INFORMATION. THE CLIENT IS SOLELY RESPONSIBLE FOR THE PROTECTION OF THEIR EQUIPMENT AND BACKUP OF THEIR DATA. XCELRATE UDI, INC. IS NOT LIABLE FOR ANY DAMAGES THE CLIENT MAY SUFFER IN CONNECTION WITH USING, MODIFYING, OR DISTRIBUTING THIS SERVICE.
EXCEPT WITH RESPECT TO DAMAGES OR LIABILITY ARISING FROM (A) A PARTY’S INDEMNIFICATION OBLIGATIONS UNDER THIS AGREEMENT, (B) A PARTY’S BREACH OF ITS OBLIGATIONS WITH RESPECT TO CONFIDENTIAL INFORMATION, OR (C) GROSS NEGLIGENCE OR INTENTIONALLY WRONGFUL ACTS OR OMISSIONS, IN NO EVENT SHALL (I) EITHER PARTY BE LIABLE FOR CONSEQUENTIAL, INDIRECT, INCIDENTAL, PUNITIVE, EXEMPLARY OR SPECIAL DAMAGES ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR THE SERVICE, INCLUDING ANY LOSS OF REVENUE, PROFITS, OR DATA, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES; AND (II) EITHER PARTY’S TOTAL AGGREGATE LIABILITY ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT FOR ALL CLAIMS ACCRUING DURING THE TERM OF THIS AGREEMENT EXCEED THE AMOUNTS PAID OR PAYABLE BY CLIENT UNDER THE AGREEMENT.
Notices.
Unless otherwise specifically provided in this Agreement, every notice or other communications required or permitted under this Agreement shall be valid only if in writing and shall be delivered by e-mail, fax, personal delivery; by nationally recognized overnight courier service; or by certified or registered mail, return receipt requested, addressed to the names and addresses of each party set forth on the corresponding order form or similar document.
General Provisions.
This Agreement shall be governed by and interpreted in accordance with the laws of the State of Delaware without regard to its conflict of law’s provisions. The titles of the sections of this Agreement are for convenience only and shall not affect the interpretation or construction of any section. The language used in this Agreement shall be deemed to be the language chosen by the parties hereto to express their mutual agreement. Any rule of construction to the effect that ambiguities are to be resolved against the drafting party shall not be applied in the construction or interpretation of this Agreement. The words “include” and “including” and variations thereof are not terms of limitation, but rather shall be deemed to be followed by the words “without limitation.” This Agreement, including the corresponding Order Form or similar document and any other policies referenced herein or on such Order Form, represents the entire agreement between the parties with respect to the subject matter hereof and all other negotiations, understandings and agreements relating thereto, whether written or oral, including but not limited to all requests for proposal, proposals, payments or other forms, are nullified and superseded hereby. Whenever possible, each provision of this Agreement shall be interpreted in such manner as to be effective and valid under applicable law, but if any provision of this Agreement is held to be prohibited by or invalid under applicable law, such provision shall be ineffective only to the extent of such prohibition or invalidity, without invalidating the remainder of such provision or the remaining provisions of this Agreement. A waiver of any of the terms of this Agreement, or any breach or default hereunder, shall not be deemed or construed as a waiver of such terms for the future or any subsequent breach or default, whether or not of the same or similar nature. This Agreement may only be modified, amended or supplemented in a written document signed by authorized signatories of both parties subsequent to the date of execution of this Agreement. If any litigation is brought to enforce, or arises out of, the Agreement or any term, clause, or provision hereof, the prevailing party shall be awarded its reasonable attorneys’ fees together with expenses and costs incurred with such litigation, including necessary fees, costs, and expenses for services rendered, as well as subsequent to judgment in obtaining execution thereof. If Client submits to Xcelrate a purchase order to effectuate its ordering or payment of the Services specified herein or an Order Form and (b) Xcelrate acknowledges such purchase order by means of any kind of acknowledgement document, each of Client and Xcelrate hereby rejects any terms or conditions appearing on any such purchase order or acknowledgement document that are in addition to, or different from, the terms and conditions of this Agreement and/or the Order Form (“Form Terms”), and the Parties agree that all Form Terms shall be void and of no force or effect.