KARDIAPRO TERMS of SERVICE

1.Definitions.

(a) “Administrator” shall mean Employees designated by You on the KardiaPro Service who have rights to set up Users in Your KardiaPro Service account.

(b) “Connected Patients” shall mean patients for whom You link to the KardiaPro Service.

(c) “Patient Services” shall mean the services provided to AliveCor patient-users through apps (e.g., Kardia App), Devices (e.g., KardiaMobile and Kardia ECG Sensors) or data collection and storage services to record ECGs, algorithmically analyze ECG data, and store this and other data in AliveCor HIPAA-compliant systems. More information on Patient Services can be found at AliveCor.com.

(d) “Devices” shall mean any devices, e.g., KardiaMobile and Kardia devices, Connected Patients may use in connection with Patient Services.

(e) “Employees” shall mean persons You pay to perform activities in furtherance of your business activities related to providing healthcare to Your patients.

(f) “Effective Date” shall mean the date of the last signature on the Agreement.

(g) “KardiaPro Service” shall mean the services offered via www.kardiapro.com and via the KardiaStation app, if applicable.

(h) “User” shall mean Your Employees for whom a KardiaPro Service account has been established by an Administrator.

2. KardiaPro Service.

(a) License.

Subject to the restrictions set forth in these Terms including without limitation payment under Section 3, AliveCor grants You a limited, non-exclusive, non-transferable, non sublicensable, revocable license to use KardiaPro Service (“License”).

(b) Use of the KardiaPro Service.

You and Your Employees may use KardiaPro Service, subject to these Terms and during the Term, solely for Your internal business purposes.

(c) Acceptable Use.

You will not, and will not encourage or assist any third party to: (i) use KardiaPro Service in any manner that interferes with the functionality or performance of KardiaPro Service; (ii) attempt to gain unauthorized access to all or a portion of KardiaPro Service, the networks or systems related to KardiaPro Service, or any data contained therein; (iii) interfere with another’s use of KardiaPro Service; (iv) permit access to KardiaPro Service by any third party; (v) rent, lease, lend, or grant a security interest in KardiaPro Service to any third party; (vi) provide KardiaPro Service to third parties in any service-bureau or similar capacity; (vii) modify, copy, or make derivative works based on KardiaPro Service or Devices; (viii) disassemble, reverse engineer, or decompile KardiaPro Service, the Devices, or any software associated with KardiaPro Service or the Devices, except to the extent that such actions are expressly permitted by applicable law notwithstanding this restriction; (ix) “frame” or “mirror” any of AliveCor’s content; (x) access KardiaPro Service to build a competitive service or reproduce features of KardiaPro Service; (xi) disclose any user IDs, passwords, API keys or other similar access credentials to any third party; or (xii) without AliveCor’s prior written consent, publish, disclose to any third party, or otherwise disseminate any benchmarking or other test results or similar data or reports, or other information, opinions, or results generated in connection with Your use of KardiaPro Service, including any comparisons of KardiaPro Service with alternative services or technology.

3. Complaints, Reportable Events, and Recalls.

You will report any Device or Patient Service defects (including safety problems) or other complaints, of which You become aware, relating to the Devices or Patient Services in sufficient detail so that AliveCor can reproduce and confirm such defects, and all requests for service to the Devices to the AliveCor product complaint coordinator at support@alivecor.com, or such other email address as AliveCor may designate from time to time. You will report to AliveCor any incident of which You become aware that involves or may involve the failure or malfunction of any Device or Patient Service or might constitute a reportable event under 21 CFR Section 803 (Medical Device Reporting) within five business days of becoming aware of such failure or malfunction. AliveCor as the manufacturer of the Devices and Patient Services will be solely responsible for all medical device reporting to regulatory agencies with respect to the Devices and Patient Services. In the event that either Party has reason to believe that one or more of the Devices or Patient Services might be the subject of a recall or withdrawal from distribution, such Party shall immediately notify the other. AliveCor shall have sole discretion as to whether or not to initiate a recall, product replacement, or product enhancement, and AliveCor shall be responsible for all costs and expenses of such recall, product replacement, or product enhancement, unless such action is required because of Your negligent act or wrongful omission, in which case the costs and expenses of such actions shall be reimbursed by You on behalf of You to AliveCor. You shall provide, at AliveCor’s expense, assistance reasonably requested by AliveCor in connection with any reporting, recall, legal, or regulatory matter relating to the Devices.

4. Ownership.

All rights not expressly granted hereunder are reserved to AliveCor.

5. AliveCor Content.

AliveCor owns and operates KardiaPro Service. The documents and other information and content available on Kardia Pro Service and the web site kardiapro.com (“Site Content“) are protected by copyright and other intellectual property laws throughout the world. All copyright and other proprietary notices on any Site Content must be retained on any copies made thereof. Any unauthorized reproduction, modification, distribution, public display or public performance of any Site Content is strictly prohibited. AliveCor and its suppliers reserve all rights not granted in these Terms.

6. User Content.

(a) User Content Generally.

Certain features of KardiaPro Service may permit You to upload content to KardiaPro Service, including messages, images, data, text, location information, and other types of information (“User Content”). You retain the copyrights, including any moral rights, and any other proprietary rights that You may hold in the User Content.

(b) Limited License Grant to AliveCor.

By posting or publishing User Content, You grant AliveCor a perpetual, irrevocable, worldwide, non-exclusive, royalty-free, fully paid, transferable right and license (with the right to sublicense) to use User Content, in whole or in part, for any purpose in accordance with the Privacy Policy and any applicable laws (e.g., HIPAA).

7. Business Associate Agreement.

The Parties agree that, to the extent AliveCor creates, receives, maintains, or transmits “protected health information” (as that term is defined by 45 C.F.R. 160.103) for or on behalf of You under these Terms, the business associate agreement (“BAA”), located at https://www.kardiapro.com/baa shall govern. The BAA is incorporated herein by reference and made a part of these Terms.

8. Privacy Policy.

Please read AliveCor’s privacy policy (“Privacy Policy”), located at https://www.kardia.com/privacy/en, carefully for information relating to Our collection, use, storage and disclosure of information for KardiaPro Service. The Privacy Policy is incorporated herein by reference and made a part of these Terms.

9. Representations, Warranties, and Disclaimer.

(a) Mutual.

Each Party represents and warrants to the other Party that it has all necessary power and authority to enter into these Terms and to carry out its obligations hereunder, that the execution and performance of these Terms does not and will not conflict with or violate any law or its contractual or other obligations to any third party, and that the undersigned has full legal authority to bind the Party to these Terms.

(b) AliveCor’s Representations.

AliveCor represents and warrants that it will provide KardiaPro Service in a professional manner consistent with applicable industry standards, and that KardiaPro Service will substantially conform in all material respects to user documentation provided by AliveCor for KardiaPro Service. AliveCor’s sole obligations, and Your sole remedy, for breach of the foregoing warranty are the commitments set forth in Section 2.

(c) Your Representations.

You represent and warrant that (i) You have the necessary rights and permissions or approvals to use and to permit the use of any information You provide to AliveCor hereunder; and (ii) You will not provide to AliveCor any personal data or personally identifiable information, as such terms are defined under applicable law, in violation of any contractual or other obligations, including Your privacy policies and guidelines, and applicable laws, including without limitation the Health Insurance Portability and Accountability Act; (iii) You have read and agree to the BAA located at www.kardiapro.com/kp-baa.

(d) Disclaimer.

EXCEPT FOR THE EXPRESS WARRANTIES CONTAINED IN THIS SECTION 9 AND THE EXPRESS LIMITED WARRANTY PROVIDED WITH THE DEVICES, IF ANY, KARDIAPRO SERVICE IS OFFERED AND PROVIDED “AS IS” AND ON AN “AS AVAILABLE” BASIS, WITHOUT WARRANTY OR CONDITION OF ANY KIND, EITHER EXPRESS OR IMPLIED. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, ALIVECOR HEREBY DISCLAIMS ALL OTHER WARRANTIES IN CONNECTION WITH THIS AGREEMENT AND KARDIAPRO SERVICE WHETHER IMPLIED, STATUTORY OR OTHERWISE, INCLUDING WITHOUT LIMITATION ANY WARRANTIES OF MERCHANTABILITY, SATISFACTORY QUALITY, ACCURACY, NON-INFRINGEMENT, FITNESS FOR A PARTICULAR PURPOSE, OR THAT KARDIAPRO SERVICES OR PATIENT SERVICES WILL BE ERROR-FREE OR UNINTERRUPTED.

ALIVECOR DOES NOT REVIEW, MONITOR, EVALUATE, OR ANALYZE ANY INFORMATION GENERATED FROM OR BY CONNECTED PATIENTS FOR ANY MEDICAL PURPOSE. ALIVECOR DOES NOT ENGAGE IN THE PRACTICE OF MEDICINE AND DOES NOT PROVIDE ANY MEDICAL ADVICE OR DIAGNOSES TO CONNECTED PATIENTS. IT IS YOUR RESPONSIBILITY TO DISPENSE MEDICAL ADVICE TO OR MAKE DIAGNOSES FOR YOUR CONNECTED PATIENTS BASED ON YOUR PROFESSIONAL JUDGMENT, YOUR REVIEW OF ANY CONNECTED PATIENT DATA USING KARDIAPRO SERVICE AND YOUR PHYSICAL EVALUATION OF YOUR CONNECTED PATIENTS.

10. Indemnification.

(a) By AliveCor.

AliveCor shall defend or, at its option, settle any third-party claim, suit or proceeding (“Claim”) brought against You to the extent that such Claim alleges that the use of KardiaPro Service by You or Your Connected Patients in accordance with these Terms infringes or misappropriates any third-party intellectual property right. AliveCor shall have sole control of the defense or settlement negotiations for such Claims, and, subject to the limitations set forth below, AliveCor agrees to pay and indemnify You against any final judgment entered against You or agreed to by AliveCor in settlement as a result of such infringement in any such Claim defended by AliveCor; provided that You give AliveCor (i) prompt written notice of such Claim; and (ii) all reasonably available information and assistance, at AliveCor’s expense, to settle and/or defend any such Claim.

(b) Additional Rights.

In the event that any Claim is brought or threatened, or, in AliveCor’s opinion, a Claim is likely to be brought, AliveCor may, at its sole option and expense: (i) procure for You the right to continue to use KardiaPro Service; (ii) modify or amend KardiaPro Service or replace KardiaPro Service, with non-infringing services that do not materially impair the functionality of KardiaPro Service; or (iii) if either of the foregoing is not feasible on commercially reasonable terms, terminate these Terms, and upon such termination, You will immediately cease all use of KardiaPro Service and all use, sale and resale of the Devices and Patient Services.

(c) Limitations.

AliveCor shall have no obligation to You under Section 10(a) to the extent a Claim arises from (i) Your breach of these Terms; or (ii) use or resale of KardiaPro Services, Devices, or Patient Services in combination with any products, services, data, software, hardware or business process not contemplated by these Terms, if the alleged infringement would not have occurred absent such combination.

(d) Sole Remedy.

The foregoing provisions of this Section 10 state the entire liability of AliveCor, and Your sole remedy, with respect to any actual or alleged claim of infringement or misappropriation of intellectual property rights.

(e) By You.

You shall defend or, at Your option, settle any Claims brought against AliveCor to the extent they allege (i) breach of any of Your warranties set forth in Section 9; (ii) breach of Your obligations to patients or other third parties; and (iii) violations of law by You, Your Employees or agents. You shall have sole control of the defense or settlement negotiations, and You agree to pay, subject to the limitations set forth below, any final judgment entered against AliveCor as a result of such breach, in any such Claim defended by You; provided that AliveCor provides You with (a) prompt written notice of such Claim; and (b) available information and assistance, at Your expense, to settle and/or defend any such Claim.

11. Limitations of Liability.

(a) Damages.

IN NO EVENT SHALL ANY PARTY HAVE ANY LIABILITY TO THE OTHER PARTY FOR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES, INCLUDING WITHOUT LIMITATION LOST PROFITS, LOSS OF DATA, LOSS OF USE, OR COSTS OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, HOWEVER CAUSED AND WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, WHETHER OR NOT THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. EXCEPT FOR THE PARTIES’ OBLIGATIONS UNDER SECTION 10, IN NO EVENT SHALL ANY PARTY'S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, EXCEED THE GREATER OF ONE THOUSAND UNITED STATES DOLLARS OR THE AMOUNTS ACTUALLY PAID DURING THE ONE-YEAR PERIOD IMMEDIATELY PRECEDING THE DATE THE CAUSE OF ACTION AROSE.

(b) Basis of the Bargain.

AliveCor provides and licenses KardiaPro Service upon the limitations of liability and the disclaimers of warranties and damages set forth herein, which form an essential basis of the bargain between the Parties. The Parties agree that such limitations and exclusions of liability and disclaimers will apply even if limited remedies fail of their essential purpose.